United States v. Iglesias-Benitez

First Circuit

United States v. Iglesias-Benitez

Court of Appeals for the First Circuit·Decided September 1, 1992·No. 92-1837·Published

Opinion

USCA1 Opinion

September 1, 1992
[NOT FOR PUBLICATION]

___________________

No. 92-1837

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

LUIS ERNESTO IGLESIAS-BENITEZ,

Defendant, Appellant.

__________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, U.S. District Judge]
___________________

___________________

Before

Torruella, Cyr and Stahl,
Circuit Judges.
______________

___________________

Luis Rafael Rivera on brief for appellant.
__________________
Daniel F. Lopez Romo, United States Attorney, Jose A. Quiles
____________________ ______________
Espinosa, Senior Litigation Counsel, and Rosa Emilia Rodriguez
________ ______________________
Velez, Assistant United States Attorney, on brief for appellee.
_____

__________________

__________________
Per Curiam. Luis Ernesto Iglesias Benitez appeals from
__________

a district court order affirming the magistrate-judge's

denial of bail pending trial. For the reasons that follow,

we affirm.
______

On May 6, 1992, appellant was indicted on charges of

participating in a broad-based conspiracy to import and

distribute multi-kilo quantities of heroin. In particular,

defendant is charged in count two with agreeing to provide to

another defendant $150,000 for purchase of about 3.5

kilograms of heroin in Hong Kong, to be imported and

distributed in Puerto Rico. He is charged in count twelve,

in combination with others, with transporting about $310,000

in cash from the United States to a place outside the United

States in furtherance of drug trafficking. And he is charged

in counts thirteen and fourteen with importing and possessing

with intent to distribute, over two kilograms of heroin.

On motion by the prosecution for detention without bail,

a hearing was held before the magistrate-judge on June 4,

1992. The magistrate-judge heard from both prosecution and

defense counsel, accepting into evidence the testimony

proffered in defendant's thirteen page cross-motion for

release on bail. The magistrate-judge also accepted into

evidence the Pretrial Services Report, ultimately adopting it

by reference in his opinion.1

____________________

1. Both parties accepted the procedure followed here without
objection and both relied on the Pretrial Services Report in
their arguments to the magistrate-judge and their briefs
here. The decision to rely on defendant's proffer, rather
than live testimony, was apparently based on the fact that
defendant's witnesses were unable to reach the courthouse due

Defendant is thirty years old, a native of Puerto Rico

and father of five children, at least three of whom he

supports. The witnesses he proffered included his mother,

brother-in-law, a former common-law wife and two current

common law wives. This evidence was accepted by the

magistrate as proof of strong family and community ties.

Defendant has steady employment as a grocer in a store he

apparently owns. He proposed a variety of conditions for his

release which he claimed would guarantee his appearance at

trial, including the posting of a $150,000 real estate bond,

a limited form of house arrest, supervision by a custodian,

and the wearing of an electronic bracelet.

Defendant said that he had known for several weeks prior

to his arrest that he was a target of the grand jury

investigation and was planning to surrender, but did not.

When he was arrested, two weeks after the indictment, he was

in possession of his murdered brother's handgun. He

allegedly explained to Drug Enforcement Administration

officials that he had been given the gun by a third person

after his brother's death. In any event, defendant did not

____________________

to inclement weather. The hearing had previously been
postponed several times to allow defendant to obtain counsel
of his choice.

-3-

have a license for the gun and also faces charges for illegal

possession of a firearm. See 18 U.S.C. 922(g)(1).2
___

In addition to the federal charges against him,

defendant is currently on probation from a three-year

suspended sentence for a felony violation of a state

controlled-substances law (possession of marijuana). Another

recent state charge, statutory rape of a teenage girl, was

dismissed when defendant acknowledged paternity of the child

born to the victim. Finally, the prosecutor proffered that

defendant is currently the subject of a state investigation

into the murder of a former drug trafficker.

The magistrate-judge found that despite defendant's

strong family and community ties and lengthy residence in the

community, no condition or combination of conditions will

reasonably assure defendant's appearance and the safety of

the community. The district court affirmed the detention

order on June 19, 1992.

DISCUSSION

In pretrial detention cases we follow a special standard

of review: "independent review, tempered by a degree of

deference to the determinations made below." United States
_____________

____________________

2. Defendant was indicted on July 22, 1992, for violation of
18 U.S.C. 922

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USCA1 Opinion



September 1, 1992
                                [NOT FOR PUBLICATION]

___________________

No. 92-1837

UNITED STATES OF AMERICA,

                                 Plaintiff, Appellee,

                                          v.

                            LUIS ERNESTO IGLESIAS-BENITEZ,

                                Defendant, Appellant.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                              Torruella, Cyr and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ___________________

               Luis Rafael Rivera on brief for appellant.
               __________________
               Daniel F. Lopez Romo, United States Attorney, Jose A. Quiles
               ____________________                          ______________
          Espinosa, Senior  Litigation Counsel, and  Rosa Emilia  Rodriguez
          ________                                   ______________________
          Velez, Assistant United States Attorney, on brief for appellee.
          _____

__________________

                                __________________   
                 Per Curiam.   Luis Ernesto Iglesias Benitez appeals from
                 __________

            a  district  court  order  affirming  the  magistrate-judge's

            denial of bail pending  trial.  For the reasons  that follow,

            we affirm.
               ______

                 On May  6, 1992,  appellant was  indicted on  charges of

            participating  in a  broad-based  conspiracy  to  import  and

            distribute multi-kilo  quantities of heroin.   In particular,

            defendant is charged in count two with agreeing to provide to

            another  defendant  $150,000   for  purchase  of  about   3.5

            kilograms  of  heroin  in  Hong  Kong,  to  be  imported  and

            distributed in Puerto Rico.   He is charged in  count twelve,

            in  combination with others, with transporting about $310,000

            in  cash from the United States to a place outside the United

            States in furtherance of drug trafficking.  And he is charged

            in counts thirteen and fourteen with importing and possessing

            with intent to distribute, over two kilograms of heroin. 

                 On motion by the prosecution for detention without bail,

            a  hearing was  held before  the magistrate-judge on  June 4,

            1992.   The magistrate-judge heard from  both prosecution and

            defense  counsel,  accepting  into  evidence   the  testimony

            proffered  in  defendant's  thirteen  page  cross-motion  for

            release  on bail.   The  magistrate-judge also  accepted into

            evidence the Pretrial Services Report, ultimately adopting it

            by reference in his opinion.1

____________________

            1.  Both parties accepted the procedure followed here without
            objection and both relied on the Pretrial Services  Report in
            their  arguments to  the  magistrate-judge and  their  briefs
            here.  The  decision to rely  on defendant's proffer,  rather
            than live  testimony, was apparently  based on the  fact that
            defendant's witnesses were unable to reach the courthouse due

Defendant is thirty years  old, a native of  Puerto Rico

            and  father of  five  children, at  least  three of  whom  he

            supports.   The witnesses  he proffered included  his mother,

            brother-in-law,  a  former common-law  wife  and two  current

            common  law  wives.    This  evidence  was  accepted  by  the

            magistrate  as proof  of  strong family  and community  ties.

            Defendant has steady  employment as  a grocer in  a store  he

            apparently owns.  He proposed a variety of conditions for his

            release which  he claimed  would guarantee his  appearance at

            trial, including the posting of a  $150,000 real estate bond,

            a limited form  of house arrest, supervision by  a custodian,

            and the wearing of an electronic bracelet. 

                 Defendant said that he had known for several weeks prior

            to  his  arrest that  he  was  a  target  of the  grand  jury

            investigation  and was  planning to  surrender, but  did not.

            When  he was arrested, two weeks after the indictment, he was

            in  possession  of  his   murdered  brother's  handgun.    He

            allegedly  explained  to   Drug  Enforcement   Administration

            officials that he had  been given the gun  by a third  person

            after his brother's death.   In any event, defendant  did not

____________________

            to  inclement  weather.    The hearing  had  previously  been
            postponed several times to  allow defendant to obtain counsel
            of his choice.    

                                         -3-

have a license for the gun and also faces charges for illegal

            possession of a firearm.  See 18 U.S.C.   922(g)(1).2  
                                      ___

                 In  addition   to  the  federal   charges  against  him,

            defendant   is  currently  on  probation  from  a  three-year

            suspended  sentence  for  a   felony  violation  of  a  state

            controlled-substances law (possession of marijuana).  Another

            recent state charge,  statutory rape of  a teenage girl,  was

            dismissed when defendant acknowledged paternity  of the child

            born to the victim.   Finally, the prosecutor proffered  that

            defendant is  currently the subject of  a state investigation

            into the murder of a former drug trafficker.

                 The  magistrate-judge  found  that  despite  defendant's

            strong family and community ties and lengthy residence in the

            community,  no condition  or combination  of conditions  will

            reasonably assure defendant's  appearance and  the safety  of

            the  community.   The district  court affirmed  the detention

            order on June 19, 1992.

                                     DISCUSSION

                 In pretrial detention cases we follow a special standard

            of  review:   "independent review,  tempered  by a  degree of

            deference to  the determinations made below."   United States
                                                            _____________

____________________

            2.  Defendant was indicted on July 22, 1992, for violation of
            18  U.S.C.     922(g)(1)  (unlawful for  convicted  felon  to
            knowingly  receive a  firearm which  has been  transported in
            interstate commerce).  The  indictment identifies the handgun
            as a .9mm Smith  and Wesson semi-automatic pistol.   See note
                                                                 ___
            3, infra.
               _____

                                         -4-

v.  Tortora, 922  F.2d  880, 882  (1st Cir.  1990).   We give
                _______

            "respect  ... to the  lower court's  factual determinations,"

            using "an intermediate level  of scrutiny, more rigorous than

            the   abuse-of-discretion   or  clear-error   standards,  but

            stopping short of  plenary or de novo  review."  Id.  at 883;
                                          __ ____            __

            United States v. O'Brien, 895 F.2d 810, 814 (1st Cir. 1990).
            _____________    _______

                  The  government  bore the  burden  of  proving that  no

            combination of conditions would reasonably assure defendant's

            appearance  or the safety of the community.  United States v.
                                                         _____________

            Palmer-Contreras,  835  F.2d  15,  17 (1st  Cir.  1987)  (per
            ________________

            curiam). To meet  this burden the government was  required to

            offer clear and convincing  evidence to prove  dangerousness;

            and  a preponderance  of  the evidence  to  prove a  risk  of

            flight. See United States v.  Patriarca, 948 F.2d 789, 792-93
                    ___ _____________     _________

            (1st  Cir.  1991).    The  grand  jury  indictment,  however,

            facially established probable cause to believe that appellant

            had committed an offense  for which a maximum penalty  of ten

            years or more is prescribed in the Controlled Substances Act,

            21 U.S.C.   801 et. seq. and the Controlled Substances Import
                            ___ ____

            and Export Act, 21 U.S.C.    951 et. seq.  See  United States
                                             __  ___   ___  _____________

            v. Vargas,  804  F.2d  157, 163  (1st  Cir. 1986).    Thus  a
               ______

            rebuttable   presumption  arose   that   no   "condition   or

            combination   of  conditions  will   reasonably  assure"  the

            defendant's appearance  and "the  safety of any  other person

            and the community." 18 U.S.C.   3142(e), (f). 

-5-

Although defendant predicts that the  actual sentence he

            stands  to receive under the Sentencing Guidelines will be as

            short as eight years,  the statutory presumption is triggered

            solely  by the seriousness and type of crime charged.  United
                                                                   ______

            States v. Moss,  887 F.2d 333, 336-37 (1st Cir. 1989).  While
            ______    ____

            prediction  of  a  lesser  sentence  may  affect  the  weight
                                                                   ______

            assigned  to the presumption, id.  at 337, we  agree with the
                                          __

            magistrate-judge  that  defendant's  analysis  here   is  too

            "ethereal"  to diminish the  presumption's force.  Especially

            in light of his  prior state felony conviction,  defendant is

            actually  faced with a possible minimum term of twenty years'
                                            _______

            imprisonment. See 21 U.S.C.   841(b)(1)(A)(i).       
                          ___

                 Thus,  to rebut  the  statutory  presumption,  defendant

            needed  "some evidence" to show that "what is true in general

            is not true in  [his] particular case...."  United  States v.
                                                        ______________

            Jessup, 757 F.2d 378, 384 (1st Cir. 1985).  The burden is one
            ______

            of production, not persuasion.  Id. at 380-81.  When met, the
                                            __

            presumption does not  disappear entirely.   Id. at  383.   It
                                                        __

            retains  evidentiary weight,  the  amount  dependent  on  how

            closely   defendant's   case   resembles  the   congressional

            "paradigm."  Palmer-Contreras, 835  F.2d at  18; Jessup,  757
                         ________________                    ______

            F.2d  at 383.  Its  remaining force is  considered along with

            the other relevant factors  in 18 U.S.C.   3142(g).   Palmer-
                                                                  _______

            Contreras, 835 F.2d at 18; O'Brien, 895 F.2d at 815.
            _________                  _______

                 The evidence offeredby defendant did little to mitigate 

-6-

the risk of danger that informs the presumption.  The charges

            in  the  indictment  place  defendant  squarely   within  the

            paradigm of a drug trafficker who has "both the resources and

            foreign contacts  to escape to other  countries with relative

            ease in order to avoid prosecution for offenses punishable by

            lengthy prison  sentences".   Senate Report No.  98-225, 98th

            Congress,  2d Session at 20,  reprinted in U.S.  Code Cong. &
                                          ____________

            Ad.  News at  3203.   Defendant is  charged with  agreeing to

            supply  large quantities  of cash  to finance  drug purchases

            abroad  in connection  with  a multi-person  conspiracy  that

            spanned  at least two continents.  In addition, defendant has

            visible  access  to other  resources  which  might finance  a

            flight from prosecution.  He has owned a grocery business for

            several   years,  an   interest  in   real  estate,   several

            automobiles, and  enjoys "a comfortable  financial condition"

            according to  the Pretrial Services Report.   Compare Palmer-
                                                          _______ _______

            Contreras,  835 F.2d  at  18 (although  defendants were  only
            _________

            "mules" and had no  individual means of their own,  detention

            was   proper  on   risk-of-flight  grounds   where  narcotics

            organization  for   which  they   worked  appeared   to  have

            significant financial resources to assist their flight).   

                 Although defendant presented  evidence of strong  family

            and  community ties,  offered  security, and  pointed to  his

            faithful appearance  at all prior court  and probation dates,

            the  government's case  against  defendant is  strong and  he

-7-

faces potentially severe penalties.   In light of defendant's

            means and the motive to flee, a preponderance of the evidence

            supported  the  magistrate-judge's  decision  that  defendant

            presented a risk of flight.  See United States v. Dillon, 938
                                         ___ _____________    ______

            F.2d  1412, 1416-17  (1st Cir.  1991) (court  did not  err in

            denying bail on risk of flight grounds where  evidence showed

            defendant's connection  to narcotics ring which  could absorb

            loss of $200,000 worth of security). 

                 Moreover,  defendant presented no  evidence to rebut the

            presumption  that his release would pose a risk to the safety

            of the community.  Congress has  made it clear that "the risk

            that a defendant will continue  to engage in drug trafficking

            constitutes" a danger to the community.  Senate Report at 13,

            reprinted in U.S.C.C.A.N. at 3196.   Defendant was already on
            ____________

            probation from  one felony  conviction for a  narcotics crime

            when he  was indicted  here.   Given the monetary  incentives

            involved and  his demonstrated  inclination to remain  in the

            drug  trade despite  government intervention, there  is clear

            and  convincing  evidence  that  he would  continue  were  he

            released  on bail.  See  United States v.  Williams, 753 F.2d
                                ___  _____________     ________

            329, 335 (4th  Cir. 1985) (where finding  that defendants, if

            released, would  continue to  be involved with  narcotics was

            based  on the  fact that  they had  already done  so "despite

            convictions   and  parole   supervision").     In   addition,

            defendant's possession of  a gun  at the time  of his  arrest

-8-

adds weight and immediacy to the government's contention that

            he presented a danger to the community.3  

                 Finally, defendant's possession of a firearm despite his

            status as  a probationer,  and  his self-professed  knowledge

            that he was a target of the instant investigation, manifest a

            flagrant  disdain  for  the  authority  of  the  law.    This

            circumstance  wholly  undermines  the  value  of  defendant's

            claimed  willingness to  submit  to a  variety of  conditions

            allegedly designed to assure  his appearance in court.   Most

            of  the conditions  proposed "hinge  on the  defendant's good

            faith compliance,"  and "can  be too easily  circumvented," a

            flaw  which "takes  on  great significance  where ...  little

            about  defendant  ...  suggests   that  good  faith  will  be

            forthcoming."   Tortora, 922 F.2d  at 886-87.   In any event,
                            _______

            the  conditions  defendant  proposed,  like the  evidence  he

____________________

            3.  This conclusion  is further buttressed by testimony given
            at  defendant's  second   detention  hearing,  following  his
            indictment for  possession of  the firearm.   The magistrate-
            judge's detention  order there recites  a government  agent's
            testimony  that the  gun was  loaded when it,  and additional
            ammunition,  were seized from defendant's control.  Defendant
            reportedly said he  needed the gun  because one Jose  Alberto
            Cosme  had attempted  to kill  him.   The agent  testified to
            information that defendant is a suspect in the murder of Jose
            Alberto  Cosme,  and currently  holds  "a  strong control  on
            narcotic distribution"  in a public housing  project.  Though
            we rarely consider materials which were not  presented to the
            court  directly  below, both  parties  have  referred to  the
            subsequent indictment in their briefs, the magistrate-judge's
            opinion there is  part of the court's  records, and defendant
            had  an  opportunity to  rebut  this evidence  at  the second
            hearing.  Tortora, 922 F.2d at 884 n.5; O'Brien, 895  F.2d at
                      _______                       _______
            814  & n.6; F.R.A.P. 9(a)(b). See United States v. Bayco, 774
                                          ___ _____________    _____
            F.2d 516, 520 (1st Cir. 1985).

                                         -9-

presented  of  strong  family  and community  ties,  has  "no

            correlation  with   the  question   of  the  safety   of  the

            community," Senate Report at 24, reprinted in U.S.C.C.A.N. at
                                             ____________

            3207.  

                 For the reasons stated,  there is sufficient evidence to

            conclude that  no combination  of conditions  will reasonably

            assure  defendant's   appearance  and   the  safety   of  the

            community.  The decision below is affirmed.
                                              ________

-10-

United States v. Iglesias-Benitez, (1st Cir. 1992).

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