United States v. Travieso Ocasio

October 8, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1938
UNITED STATES,
Appellee,
v.
EDDIE TRAVIESO OCASIO,
Defendant, Appellant.
No. 93-1939
UNITED STATES,
Appellee,
v.
ANGEL DAVID TEJADA MORALES,
Defendant, Appellant.
No. 93-1940
UNITED STATES,
Appellee,
v.
ANGEL RODRIGUEZ RODRIGUEZ,
Defendant, Appellant.
No. 93-1941
UNITED STATES,
Appellee,
v.
LUIS MAYSONET MACHADO,
Defendant, Appellant.
No. 93-1942
UNITED STATES,
Appellee,
v.
ANGEL FELICIANO-COLON,
Defendant, Appellant.
No. 93-1943
UNITED STATES,
Appellee,
v.
LUIS MALONADO RODRIGUEZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Before
Breyer, Chief Judge,
Torruella and Selya, Circuit Judges.
Carlos Lopezde Azua on brief for appellant, Eddie Travieso
Ocasio.
Eric M. Quetglas Jordan on brief for appellant Angel David
Tejada Morales.
Roberto Roldan Burgos on brief for appellant Angel Rodriguez
Rodriguez.
Manuel San Juan on brief for appellant Luis Maysonet
Machado.
Edgardo L. Rivera-Rivera, on brief for appellant Angel
Feliciano-Colon.
Benicio Sanchez Rivera, Federal Public Defender, and Laura
Maldonado Rodriguez, Assistant Federal Public Defender, on brief
for appellant Luis Maldonado Rodriguez.
Charles E. Fitzwilliam, United States Attorney, Jose A.
Quiles Espinosa, Senior Litigation Counsel, and Esther Castro-
Schmidt, Assistant United States Attorney, on brief for appellee
in appeal no. 93-1938.
Guillermo Gil, United States Attorney, Jose A. Quiles-
Espinosa, Senior Litigation Counsel, and Esther Castro-Schmidt,
Assistant United States Attorney, on brief for appellees in nos.
93-1939, 93-1940, 93-1941, 93-1942 and 93-1943.
Per Curiam. Appellants Eddie Travieso Ocasio, Angel
David Tejada Morales, Angel Rodriguez Rodriguez, Luis
Maysonet Machado, Angel Feliciano Colon, and Luis Maldonado
Rodriguez appeal the order by the United States District
Court for the District of Puerto Rico detaining them prior to
trial pursuant to 18 U.S.C. 3142(e). We affirm.
The evidence presented at the detention hearing is
detailed in the district court opinion. We summarize
briefly. On July 1, 1993, Drug Enforcement Administration
[DEA] Task Force Agent Carlos Rivera observed several men
gathered together near a basketball court. Eight or nine
vehicles were parked nearby. The agent recognized one of the
men, appellant Maldonado Rodriguez, as someone he had
previously observed at a known drug point. The individuals
appeared to be waiting for someone. Agent Rivera observed
suspicious behavior which led him to believe that the men
were involved in drug activity.
After observing the situation for several minutes,
Rivera and another agent intervened and detained fourteen
suspects. Inside the vehicles, the agents found fourteen
suitcases, containing a total of 225 kilograms of cocaine,
and twelve United States Department of Agriculture [USDA]
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airport clearance stickers valid for that afternoon.1 Nine
airline tickets for a flight scheduled to depart that
afternoon for New York were found on various defendants. The
tickets were issued under fictitious names and several had
consecutive numbers. Some of the suspects were found to be
carrying large amounts of cash.
On July 7, a grand jury indicted appellants for aiding
and abetting in the unlawful possession of, with intent to
distribute, 225 kilograms of cocaine in violation of 21
U.S.C. 841(a)(1) and 18 U.S.C. 2. After a detention
hearing, a Magistrate Judge issued an order for the release
of appellants on bail ranging from $15,000 to $75,000. Third
party custody and curfews were also imposed.
The government appealed this order and the district
court granted a stay. On July 28, the district court held a
hearing at which Agent Rivera testified and the government
proffered other evidence. Appellants proffered evidence of
strong family ties to Puerto Rico, of family members and
friends willing to assist in their supervision and in placing
bail, and of records of employment. Two days later, the
court issued an order reversing the Magistrate Judge and
ordering that appellants be detained without bail pending
1. The USDA x-rays all baggage leaving Puerto Rico for the
continental United States looking for prohibited food and
plants. These stickers are used by drug traffickers to
attempt to avoid inspection. They cannot be legally obtained
prior to inspection at the airport.
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trial. Relying on the weight of the evidence against
appellants and the amount of cocaine involved, the court
found that appellants had not rebutted the statutory
presumption of flight established by 18 U.S.C. 3142(e) and
that no condition or combination of conditions of release
would assure appellants' appearance in court.
Appellants Travieso Ocasio and Maysonet Machado contend
that the district court erred in restricting their cross-
examination of Agent Rivera at the detention hearing.
Appellants have a statutory right to cross-examine witnesses
who appear at the hearing. 18 U.S.C. 3142(f). However, the
court has the discretion to limit the cross-examination on
relevancy grounds. United States v. Hurtado, 779 F.2d 1467,
1480 (11th Cir. 1985); United States v. Delker, 757 F.2d
1390, 1398 (3d Cir. 1985). A bail hearing is not to be "a
full fledged-trial or defendant's discovery expedition."
United States v. Acevedo-Ramos, 755 F.2d 203, 204 (1st Cir.
1985). In the instant case, appellants sought to use cross-
examination to establish that the government's case against
them was weak. While the strength of the case is a relevant
factor at detention hearings, 18 U.S.C. 3142(g), in this
case, the questions the court refused to permit were, at
best, of minor relevance to the issue of risk of flight.
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Moreover, any error which might have occurred was harmless in
light of the other evidence of guilt presented.
As for the merits of the detention decision, the
government bears the burden of proving by a preponderance of
the evidence that no combination of conditions will
reasonably assure that defendant will appear for trial. See
United States v. Patriarca, 948 F.2d 789, 793 (1st Cir.
1991); United States v. Dillon, 938 F.2d 1412, 1416 (1st Cir.
1991). Where, as here, a defendant has already been indicted
for a controlled substance offense punishable by a maximum
term of ten years or more, a presumption arises that no
condition or combination of conditions will reasonably assure
appearance at trial. See id.; United States v. Vargas, 804
F.2d 157, 163 (1st Cir. 1986); 21 U.S.C. 841(b)(1)(A)
(maximum term of twenty years to life for possession with
intent to distribute more than five kilograms of cocaine); 18
U.S.C. 3142(e) (establishing presumption because drug
traffickers pose special risk of flight). While the
presumption is rebuttable, 18 U.S.C. 3142(e); United States
v. Jessup, 757 F.2d 378, 384 (1st Cir. 1985), it retains
evidentiary weight even when rebutted, Dillon, 938 F.2d at
1416; United States v. Palmer-Contreras, 835 F.2d 15, 18
(1st Cir. 1987). In determining whether any conditions will
assure the appearance of defendant, the court must weigh the
specific factors listed in 18 U.S.C. 3142(g): (1) the
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weight of the evidence as to guilt; (2) the nature and
circumstance of the crime charged; and (3) the
characteristics of the accused, including family ties, past
history, financial resources and employment. United States
v. Patriarca, 948 F.2d 789, 791-92 (1st Cir. 1991). We
review the court's determinations under an independent
standard of review which gives deference to the decision of
the trial court. Id. at 791; United States v. O'Brien, 895
F.2d 810, 814 (1st Cir. 1990). "[T]his standard cedes
particular respect, as a practical matter, to the lower
court's factual determinations." Patriarca, 948 F.2d at 791(quoting United States v. Tortora, 922 F.2d 880, 882-83 (1st
Cir. 1990)).
We agree with the district court that the government has
met its burden of showing that no conditions of release
reasonably will assure appellants' presence at trial.
First, the evidence against each appellant is strong.
All were observed by a DEA Agent participating, in broad
daylight, in a major drug transaction. Several of the
appellants claim that the evidence shows only their presence
at the scene of a crime and association with a principal,
neither of which is sufficient for proving aiding and
abetting. United States v. Alvarez, 987 F.2d 77, 83 (1st
Cir. 1993). However, as this court has said, "criminals
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rarely welcome innocent persons as witnesses to serious
crimes." United States v. Hernandez, 995 F.2d 307 (1st Cir.
1993), petition for cert. filed (Sept. 7, 1993) (quoting
United States v. Ortiz, 966 F.2d 707, 712 (1st Cir. 1992),
cert. denied 113 S.Ct 1005 (1993)). Moreover, strong
circumstantial evidence exists that each appellant was more
than simply present.
Travieso Ocasio was observed participating in
discussions with individuals who appeared to be bringing
packages of drugs to the group. One of the vehicles in which
two suitcases containing cocaine were found had been lent to
him that morning, and a bag removed from Travieso Ocasio's
own car was found to have traces of cocaine. Tejada Morales
was found with a first class passenger ticket for New York
issued under an assumed name. This was one of four tickets
with consecutive numbers purchased on the same date from the
same travel agency. The other three tickets were possessed
by other defendants. Tejada Morales was also found in
possession of over one thousand dollars in cash. Rodriguez
Rodriguez was the owner of a vehicle which contained two
cocaine laden suitcases. His wallet was found in one of the
suitcases containing cocaine. Feliciano Colon was found in
possession of a first class airline ticket issued under an
assumed name. The ticket was for the same flight as that for
which other defendants had tickets. Two suitcases containing
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cocaine and two U.S.D.A. inspection stickers were found in a
van registered to him. Maldonado Rodriguez was the owner of
a jeep in which two suitcases containing cocaine were found.
Two inspection stickers were also found in the jeep.
Moreover, Maldonado Rodriguez was observed conversing with
two men who appeared to be bringing drugs to the group.
Maysonet Machado had a first class airline ticket on the same
flight as the others. The ticket was issued under an assumed
name and was part of a consecutive series of tickets held by
various defendants.
Second, the crime with which appellants are charged
indicates that appellants are part of a large drug
trafficking conspiracy which sought to deliver several
million dollars worth of cocaine into the continental United
States. Such a "'highly lucrative' drug operation[] [was] at
the center of congressional concern" in enacting the
statutory presumption in 18 U.S.C. 3142(e). Jessup, 757
F.2d at 386. Thus, appellants are among those at whom the
statutory presummption is specifically aimed. Dillon, 938
F.2d at 1416.
Third, although the appellants may have been only
"mules" in the operation, the value of the drugs involved
supports the inference that appellants are connected to a
person or organization with great financial resources.
Palmer-Contreras, 835 F.2d at 18. Such organizations are
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able and may be willing to finance appellants' flight.
Dillon, 938 F.2d at 1416; Palmer-Contreras, 835 F.2d at 18.
The incentive for flight in this case is strengthed by the
weight of the evidence against appellants. Id.
The district court did find that appellants had strong
ties to the community, meager financial resources and were
without substantial criminal records. Moreover, the court
noted that they had likely played relatively minor roles in
the drug trafficking scheme. However, this court has found
similar characteristics insufficient to rebut the presumption
of flight where, as here, the evidence is strong and the
value of the narcotics is large. See id. (affirming
detention where defendants were apprehended on a boat with
195 kilograms of cocaine even though defendants had strong
family ties, meager financial resources, an absence of prior
drug arrests, and minor role as mules); Dillon, 938 F.2d at
1415 (affirming detention where defendant was involved in
negotiating several million dollar drug deal even though his
role in negotiation was small, he had minimal criminal record
and no prior drug convictions, and had strong ties to the
community). Although this case, like those in Palmer-
Contreras and Dillon, presents a close question, the
deference we owe to the district court findings leads us to
conclude that the government has met its burden of showing
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that no condition or combination of conditions reasonably
will assure appellants' appearance.
Affirmed.
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