Vous êtes sur la page 1sur 14

USCA1 Opinion

August 15, 1994


[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

___________________
No. 94-1535

UNITED STATES,
Appellee,
v.
JUAN CARLOS ARROYO-REYES,
Defendant, Appellant.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
___________________
___________________
Before
Cyr, Boudin and Stahl,
Circuit Judges.
______________

___________________

Luis F. Abreu Elias on brief for appellant.


___________________
Guillermo Gil, United States
Attorney, and Miguel A.
______________
__________
Pereira, Assistant U.S. Attorney, on brief for appellee.
_______

__________________
__________________

Per Curiam.
__________
from

Defendant Juan

a district

court

Carlos Arroyo-Reyes appeals

order denying

him

bail.

For

the

following reasons, we affirm.


I.
On March 9, 1994,
count

indictment

distribute

at

kilograms of
U.S.C.
21 U.S.C.

a federal grand jury returned

charging

least
cocaine,

fifty

defendant

with

grams

cocaine

and one

of

kilogram of

a five

conspiracy
base,

heroin, see
___

to
five
21

841(a)(1), 846; continuing criminal enterprise, see


___
848(a)-(b); and using

and carrying firearms

in

relation to

drug trafficking

924(c)(1).

The indictment

offense,

see 18
___

further charged, as

U.S.C.
overt acts,

that defendant supervised sales of controlled substances; and


that he and his co-conspirators
operations,
honest

to

carry

judge.

carjackings, and

citizens who might report

enforcement officials.
charges,

out

used weapons to protect drug

a detention
The magistrate

bail pending trial on


hearing was

to

intimidate

on their activities to law

Following defendant's arrest on these


hearing was

held before

decided to detain

a magistrate

defendant without

grounds of risk-of-flight.

subsequently held

before the district

de novo
judge on

April 22, 1994.


At the

detention

Polley testified

hearings, F.B.I.

for the government.

Special Agent

Todd

Polley testified that

based on information provided him by confidential sources and

-2-

the

local police precinct, the defendant is the leader of an

approximately
point in Toa

twenty-six member gang


Baja, Puerto

which operates

Rico, and which

a drug

uses weapons

to

protect
gangs.
the

its

members and

its

stashes of

money

from rival

Polley and other FBI agents conducted surveillance of

alleged drug

weapons,

communicating

what appeared

to

agents observed
within

point

and

by radio

be drug
over

drug point on

equipment,

transactions.

one hundred

a three hour period.

drugs were being

observed individuals

carrying

and conducting

On one

transactions

occasion,
take

place

A controlled buy confirmed that

sold.

Agent Polley saw

defendant at

the

a number

of occasions, and

observed that

he

appeared to be followed by body guards.

home

Polley further

testified that

revealed over

$14,000 cash,

bags similar

to

those

transmission

equipment

used to

included

radio

carjackings.
freshly

On

members

pigeons."

Other

that

gang members

depicted defendant,

threats

perceived
evidence

to

of defendant's
counter, ziplock

drugs,
used

at

included

by the

gang
of

hearings,

to weapons,

drugs and

gang members discussed


to

intimidate

"snitches"
a

or

"stool

photograph

which

roughly fifteen feet away

-3-

radio

the

designed
be

and

Tape recordings

played

one of these tapes,

spray-painted

community

package

each other.

communications,

references by

a money

similar to

members to communicate with


overheard

a search

from the drug

point,

wearing

accompanied
pistol.

cellular

phone

by two individuals,

on his

hip

one of whom

pocket

and

was carrying a

Another photograph depicted defendant transferring a

packet from the

drug point

to a motor

vehicle.1

Finally,

the government proffered testimony that on September 6, 1993,


defendant and

another individual

Puerto Rico with

were arrested

in Bayamon,

$30,598 cash, two kilograms of cocaine, and

two loaded weapons.2

As a result of this

arrest, defendant

faces charges in the Superior Court of Puerto Rico.


The

defendant

is

resident of Puerto Rico.

twenty

and

including

ties;

Defendant proffered

testify, among other things, to

community

and

life-long

At the time of his arrest,

living with his grandfather.


who would

years old

his

positive

witnesses

his strong family

employment

work as an electronic technician

in

the community.

employer, would have testified

to provide

witness

would

electronics

employment records
have

and had

testified that
a

witness, a

and his
former

that defendant was a "trusted

employee," and that he was willing


and

One

history,

and a laborer in

the construction industry; his religious upbringing;


good reputation

he was

part-time

to employ defendant again


to

the court.

defendant
job

in his

Another

had

studied

home

fixing

____________________
1.

The contents of the packet is unknown.

2. Defense counsel contested this


proffered testimony,
stating that defendant was merely a passenger in a motor
vehicle in which drugs and weapons were found.
-4-

electronic

equipment.

Defendant's

grandfather

offered to

post his home (worth $44,000) as bond, as well as to serve as


a third-party custodian if defendant were released.3
The

district

detention

affirmed

the

magistrate

judge's

order on the grounds that defendant is both a risk

of flight and
observed
for

court

a danger to

the community.

that where, as here,

The court

first

a defendant has been indicted

a drug offense punishable by ten


et seq., as well as a

or more years under 21

U.S.C.

801

firearm offense under 18

U.S.C.

924(c)(1), a "rebuttable presumption" arises that no

condition or combination of conditions will reasonably assure


his appearance as
See
___
157,

18 U.S.C.
163

sufficient

(1st
to

required and the safety


3142(e);
Cir.

United States v.
_____________

1986)

establish

(per

probable

curiam)
cause

of the community.
Vargas, 804 F.2d
______
(indictment
for

purposes

is
of

triggering

the rebuttable

presumption in

3142(e)).

The

court then stated:


Mindful of the fact that the presumption shifts to
the defendant the burden of production, not the
burden of persuasion, the defendant's proffer of
evidence is not enough to grant him bail.
This
record contains strong indicia
of defendant's
involvement in a drugs and firearms conspiracy and
criminal enterprise.
The testimony of F.B.I.
Special Agent Todd Polley, as well as the taped
recordings and photo evidence, so confirm.
The
defendant operated what appears to be a large drug
____________________
3. The transcript of the de novo bail hearing also indicates
that defendant submitted to the court a letter signed by
seventy-seven community members.
This letter was
not
presented to us on appeal.
-5-

point
backed
up
by
a
twenty-plus
member
organization under his direction. Large amounts of
cash were seized.
The presence of cash suggests
that fleeing is easier to achieve.
Money buys
access to
boats and private
airplanes to a
multitude of neighboring
islands, from
where
further escape is quite easy.
Furthermore, the
obvious
violent
nature
of the
drug-related
activities and the use of firearms and armed
carjacking demonstrate that the safety of the
community is compromised.
The presumption remains
that no condition or combination of conditions will
reasonably assure appearance and the safety of the
___

community.
II.
In

pretrial

review,

detention

tempered

by

cases,
degree

determinations made

below."

F.2d

Cir. 1990).

880, 882 (1st

defer greatly
at 882-83.

and circumstances of
evidence; (3)

to

the

Tortora, 922
_______

As a practical

matter, we
Id.
___

seriousness

of the

U.S.C.

United States v.
_____________

O'Brien, 895 F.2d


_______

These factors are:

history and

and

danger posed

by the

We give

"as we think the

by the . .

(4)

-6-

the weight of

the nature

the
and

accused's release.

such deference

to the

care and consideration

. district court

895 F.2d at 816.

(1) the nature

characteristics of

past conduct;

3142(g).

court's conclusions

attention was given to all

the offense charged; (2)


the

including

manifested

deference

We also carefully scrutinize the district court's

810, 816 (1st Cir. 1990).

See 18
___

of

to the district court's factual findings.

the statutory factors."

accused,

employ "independent

United States v.
_____________

reasons, considering whether "due

the

we

warrant."

O'Brien,
_______

Defendant attacks the


First, he
placed

contends

reasoning of the district

that the

district

court

court.

impermissibly

the burden on him to prove that pre-trial release was

warranted.

Second, defendant

argues that the district court

ignored some of the statutory factors relevant to release and


improperly

weighed

those

factors

it

did

consider.

In

particular, defendant contends that the district court relied


almost solely on the first factor, the nature of the offense,
and

failed to assess the

suggests,
proffered

is

weak),

evidence

characteristics of

weight of the

attached

too

regarding

the

the defendant,

evidence (which, he

little

weight

history

and

and failed to

to

his

personal
articulate

any danger that defendant poses to the community.


The government unquestionably bears
at

a pretrial detention hearing.4

aided by the presumption,


that

no

appearance

conditions
and the

the burden of proof

Here, the government was

set forth in 18 U.S.C.

would

reasonably

safety of

assure

the community.

3142(e),
defendant's
The district

court's order makes it plain that it was fully cognizant that


this presumption merely shifts to the defendant the burden of
production, not the burden of

persuasion.

v. Jessup,
______

(1st Cir. 1985).

757 F.2d 378, 381

____________________

See United States


___ _____________
Contrary to

4. The government must demonstrate, by clear and convincing


evidence, that the defendant's release poses a risk of danger
to the community; or, by a preponderance of the evidence,
that there is a risk of flight.
See United States v.
___ ______________
Patriarca, 948 F.2d 789, 792-93 (1st Cir. 1991).
_________
-7-

the defendant's
statement

suggestion, we do not

that his

"proffer of

interpret the court's

evidence

is not

enough to

grant him bail" to mean that the district court lost sight of
who had
remark

the burden of proof.


merely

indicates

defendant's proffer

Rather, read in context, this

that

the

but ultimately

court

duly

considered

concluded that,

even in

light of it, there was sufficient evidence to detain him.


We add that the presumption reflects Congress's findings
that drug

traffickers often

have the resources

and foreign

contacts to escape to other countries,

and that they present

a special risk of pre-trial recidivism.

See United States v.


___ _____________

Palmer-Contreras,
________________
curiam);

835

United States
_____________

F.2d

15,

17 (1st

Cir.

1987)

v. Williams, 753 F.2d 329,


________

(per

335 (4th

Cir. 1985).

Even

when, as here, a defendant

has introduced

"some evidence" to rebut the presumption, the facts that gave


rise

to the presumption

upon

how

closely

retain evidentiary weight depending

defendant's

case

lucrative

drug

concern.

See Palmer-Contreras, 835


___ ________________

size of the

the

center of

the

the evidence

F.2d at 18.

appropriately

gave

of cash resources,
continuing

highly

congressional
Given the

organization here, its apparent heavy

business, and
court

operations at

resembles

volume of

the district

weight

to

the

presumption.5
____________________
5. Contrary to defendant's suggestion, we do not construe
the district court's statement that the presumption "remains"
to mean that it gave conclusive weight to it.
-8-

We also reject

defendant's argument

that the

district

court did not properly consider all of the relevant statutory


factors.
the

First, we note that defendant errs in stating that

district

court

evidence against

him.

failed
To

to

assess

the

the contrary, the

weight

of the

district court

found

that

the

record

involvement "in
enterprise."
linking him

contains "strong

a drug and firearms


We are

similarly persuaded that

complains that some of

hearing.

See
___

207 (1st

Cir. 1985).

reliable hearsay at

United States v. Acevedo-Ramos,


_____________
_____________
Here, the

defendant is connected to,

tape

the evidence

is hearsay,
a detention
755 F.2d 203,

second-hand reports

and indeed the leader of,

gang are corroborated by the observations of FBI


photographs, the

his

Although defendant

the evidence against him

may utilize

of

conspiracy and criminal

to these offenses is strong.

the government

indicia"

recordings, and

that
a drug

agents, the

the evidence

seized

from defendant's home.


Second, with respect to defendant's personal history and
characteristics, we observe, as

did the district court, that

he has had "prior brushes with the law."


the

time of the current

offense, he was

Most relevantly, at
on release pending

trial in state court for drug and firearm offenses.


has made it clear that

Congress

an "especially significant" danger to

the community is the risk that the drug network will continue
to function while

defendant awaits trial.

-9-

See United States


___ _____________

v.

Portes, 786
______

defendant's

F.2d

758,

765

apparent behavior

(7th
in

Cir.

1985).

this regard,

Given

as well

as

evidence of the violent nature of the drug-related activities


and

defendant's

district

leadership role

court,

aided

by

in

the

the organization,

statutory

dangerousness, supportably found that


the

safety

Williams,
________

of

the community

753 F.2d at

and convincing

if

presumption

the
of

he presented a risk to

released

on

335 (suggesting that

bail.

Cf.
___

there was clear

evidence that defendants were a danger to the

community where they

had continued

to be

involved in

drug

trafficking despite prior narcotics convictions).


Finally,

although

the

question

persuaded that pretrial detention


of-flight grounds.

On the

is

closer,

we

are

is also justified on risk-

one hand, defendant

did proffer

evidence of strong family and community ties, offer security,


point

to

faithful appearances

propose a custodial arrangement.


potentially severe
large

amounts of

believe

penalties and
cash.

that he has

Moreover,

it

is

deference

we

afford

Thus,

at

prior

close
the

and

On the other hand, he faces


apparently
there

the incentive and

as to

court dates,

issues

district

has access

is ample

reason

to
to

wherewithal to flee.
like

this that

the

court's

first

hand

determination in bail cases comes into play.

Affirmed.
_________

-10-