DocketNumber: No. CRIM 99-308(DRD)
Citation Numbers: 86 F. Supp. 2d 19
Judges: Dominguez
Filed Date: 2/4/2000
Status: Precedential
Modified Date: 11/26/2022
AMENDED OPINION AND ORDER
Defendant, José Capella Quiñones, has requested the court to revisit the determination of Magistrate Judge J. Antonio Cas-tellanos on reconsideration detaining Defendant without bail, (Docket No. 41). The Magistrate Judge on reconsideration determined that there was probable cause that defendant had committed an offense for which a maximum term of imprisonment of more than ten years is prescribed under 21 U.S.C. 841(a)(1) and that the defendant had failed to rebut the statutory presumption of detention that no condition or combination of conditions will reasonably assure the appearance of the defendant as required and the safety of the community, 18 U.S.C. 3142(e). The Magistrate further found that there is a serious risk that the defendant will endanger the safety of another person or the community. The Magistrate Judge on reconsideration
The court is required to make a de novo review of the contested Detention Order. United States v. Tortora, 922 F.2d 880, 883 n. 4 (1st Cir.1990).
The Bail Reform Act of 1984, 18 U.S.C. 3141 et seq. at § 3142(f)(1)(c) sets forth the presumption that no condition or combination. of conditions will reasonably assure the appearance of the accused as required and the safety of the community if there is probable cause to believe that the person committed an offense for which the term of imprisonment of ten or more years is prescribed in the Controlled Substance Act, 21 U.S.C. 801. In the instant case the presumption has been triggered because the quantities of drugs alleged in the indictment mandate a ten-year minimum sentence.
The presumption has a “significant practical effect.” United States v. Jessup, 757 F.2d 378, 384 (1st Cir.1985). The presumption does not shift the burden of persuasion to the defendant, because the government retains the burden throughout. The defendant, however, once the presumption is triggered, is required to carry the burden of production. United States v. Jessup, 757 F.2d at 380-384.
The presumption created is that “... it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed- an offense for which a maximum term of imprisonment of ten or more years is prescribed in the Controlled Substances Act, (21 U.S.C. 801 et seq.)” 18 U.S.C. 3142(e). The presumption created is of “flight” and “danger.” Jessup, 757 F.2d at 381,
Once the presumption is triggered, the defendant is required to produce “conflicting evidence” to undercut the legislative purpose of the presumption. United States v. Jessup, 757 F.2d at 383, (but it is not merely any evidence that destroys the presumption since the “bursting bubble theory” was rejected by then Chief Justice Bryer at United States v. Jessup, 757 F.2d at 382-383). The “intermediate position” adopted in Jessup requires defendant to produce “conflicting evidence” as to “danger” and “flight”
Trial judges were reminded in United States v. Jessup, 757 F.2d at 384, that Congress in establishing the presumption found that “flight to avoid prosecution is particularly high among persons charged with major drug offenses.” Senate Judiciary Report # 225, 98th Congress 1984 p. 20, 1984 U.S.Code Cong. & Admin.News, p. 23, and further that “drug traffickers often have established ties outside the United States ... [and] have both the resources and foreign contacts to escape to other countries.” [Id].
The court in United States v. Jessup, Id., stated the following as to the method of “rebutting the presumption”: “In order to ‘rebut’ the presumption, the defendant
Finally, in making its final determination after receiving the rebuttal pursuant to § 3142(g), the judicial officers must consider among other factors “the nature and circumstance of the offense,” “weight of the evidence,” “history and characteristics of the person including ... character, physical and mental condition, family history ... past conduct.” United States v. Jessup, Id.
In the instant case the court listened and frequently replayed several tape recordings of the defendant in another criminal case, 99-161, before U.S. District Judge Salvador Casellas, also involving drug transactions. Although in some of the tapes played the codefendant is not a participant, the court concludes that the tapes are strong evidence of narcotics criminal activity subject to jury credibility and weight evaluation. The court explains. In several of the tapes the defendant although a participant does not respond to the coded incriminating drug related statements of another conspirator, notwithstanding the tapes incriminate codefendant because a criminal conspirator rarely speaks about criminal activity with an innocent stranger. United States v. Batista-Polanco, 927 F.2d 14, 18 (1st Cir.1991) (“criminal conspirators do not often welcome innocent nonparticipants as witnesses to their crimes.”); United States v. Cuevas-Esquivel, 905 F.2d 510, 515 (1st Cir.1990); United States v. Montilla-Rivera, 115 F.3d 1060, 1064 (1st Cir.1997) (“no effort was made to keep illicit deal from Montilla’s ears. Indeed Zorrilla [another conspirator] loudly bragged about the purity of the cocaine in front of Montilla.”) Further, in some other tapes the defendant himself speaks in coded language about drugs, drug transactions and drug money. Overall, the court is left with the clear impression that a reasonable juror could find that defendant is a narcotic conspirator.
Furthermore, in the instant case (99-308) the U.S. Attorney proffered
Although the tapes do not involve evidence as to the importation of drugs, the tapes point to defendant as a drug conspirator/dealer thus providing reasonable credibility at this bail stage to the proffer made by the United States as to the cooperators’ statements.
Considering the criteria that the court must consider under 18 U.S.C. 3142(g) “the nature and circumstances of the case” favors detention because defendant stands accused of a very serious charge, (importa
Moreover, the presumption of danger to the community is present in the instant case because “it is clear [that] the harm to society caused by narcotic trafficking is encompassed within Congress’ definition of ‘danger.’ ” United States v. Leon, 766 F.2d 77, 81 (2nd Cir.1985).
The conclusion is inescapable, codefend-ant Joseph Capella Quiñones has failed to rebut the presumption that “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community.” 18 U.S.C. 3142(e). The evidence preponderates in favor of detention. The Detention Order of Magistrate Judge J. Antonio Castellanos is SUSTAINED. The defendant is to remain detained without bail.
IT IS SO ORDERED.
. This court does not delect any abuse of discretion of the Magistrate Judge in reopening the hearing because of the reasons stated by the government to this court, "there was absolutely no notice to the government of that particular hearing," (Docket No. 69 at 15), referring to the fact that codefendant had then two bail cases before different Magistrate Judges and the hearing in this particular case 99-308 was not duly notified to the government.
. The court also notes the illustrated opinion of District Judge Keeton in United States v. Phillips, 732 F.Supp. 255, 258-259 (D.Mass.
. Jessup, 757 F.2d at 383 citing the theory of Hecht and Pinzler, Rebutting Presumptions: Order Out of Chaos, 58 B.U.L.Rev. 527 (1978); Jessup (Id.) states that "the House of Judiciary adopted this sort of ‘intermediate position’_”
. A detailed proffer was made to the undersigned at the De Novo Hearing (Docket No. 69 at 41-42); the Magistrate Judge was prior thereto informed at the bail hearing as to the existence of the cooperators incriminating the defendant.
. The court notes that in case # 99-161, Magistrate Judge Arenas, also ordered the detention without bail of the defendant; said detention order had not been challenged to the date of the de novo hearing in the instant case,