United States v. Mauricio Londono-Villa

898 F.2d 328, 1990 U.S. App. LEXIS 3937, 1990 WL 28057

• Court: Court of Appeals for the Second Circuit
• Decided: March 13, 1990
• Docket: Dockets 90-8015, 90-1169
• Status: Published

Opinions

PER CURIAM:

The Government has moved to reverse the order of the United States District Court for the Southern District of New York, Peter K. Leisure, Judge, releasing the defendant, Mauricio Londono-Villa, on bail after conviction and pending sentence. The defendant had been incarcerated without bail before trial under orders of a magistrate in Florida (October 25, 1989), Magistrate Michael H. Dolinger in New York (November 16, 1989), Judge Milton Pollack in New York (November 17, 1989), and Judge Leisure (January 10, 1990), the last despite numerous letters from friends, family and co-workers of the defendant attesting to his good character. The judge signed an order of immediate release on February 28, 1990, stating that “substantial questions of law or fact” would be raised on appeal of the conviction and, operating under 18 U.S.C. § 3143(a) (1988), found by clear and convincing evidence that the defendant no longer posed a risk of flight. The court, relying in part on the defendant’s and his family’s demeanor at trial and in part on the defendant’s character witnesses who testified as to his reputation for honesty and law-abidingness, imposed conditions including: (a) the posting of a $1 million bond secured by a house owned by defendant’s sister and brother-in-law in California and having $1 million equity, the bond being signed by them as well as defendant; (b) the surrender of defendant’s and his wife’s passports; (c) the execution of a waiver of extradition applicable to any country in which he may be found; and (d) the promise that he and his wife reside at the sister’s and brother-in-law’s California home, with restriction on travel to 100 miles from the house and to the Southern District of New York for appearances in court and meetings with counsel and the Department of Probation, coupled with monitoring of his whereabouts through the use of a luma phone.

We reverse the court’s order of release and hold that the court’s finding by clear and convincing evidence that the defendant did not pose a risk of flight was clearly erroneous for the following reasons:

1. Defendant was convicted both of conspiracy to import 150 kilograms of cocaine into this country from Medellin, Colombia, and aiding and abetting the importation of 111 kilograms, the convictions subjecting him to a mandatory minimum sentence of ten years and, on one of the counts, to a potential Guidelines range of 292-365 months’ imprisonment and thus has a powerful incentive to flee that did not exist pre-trial;

2. Defendant, as a 29-year-old commercial pilot whose job was flying for Avianca Airlines and who possesses a proven familiarity with clandestine foreign airstrips, facing such sentences and armed with the financial resources that his own and his wife’s family are said to have and having few ties to the community, would have little difficulty and great incentive to hire the use of a plane to fly himself and his spouse to Mexico or Central America and thence to South America;

3. Although the loss of a $1 million home would be a substantial blow to his sister, a top California real estate agent, and her husband, the sum of money involved or potentially involved in the drug conspiracy and transaction in which the jury found the defendant to have participated, albeit in a tangential way (guiding a plane to an airstrip in Colombia at which it was to pick up the cocaine), dwarfs the $1 million;

4. We have taken into account the court’s statement that defendant was a “minor participant in the alleged scheme ... [who] filled in as a favor for a friend as a pilot at the last minute,” but there was also evidence, the Government represents, that the defendant knew one of the owners of the cocaine, worked for a friend of another owner, flew with a pilot to the secret airstrip in Colombia, tested the cocaine and helped to load it on the airplane, and assured the other pilot that he would guarantee the shortfall of 39 kilograms, to the benefit of which evidence, given the jury verdict, the Government was entitled;

5. We note the district court’s reliance on the demeanor of the defendant, his family and his witnesses, but do not believe that is determinative on the issue of risk of flight after conviction. We fail to see how such subjective assessments can, on their own, satisfy the heightened burden of proof placed on the defendant to establish that he is not likely to flee by clear and convincing evidence, particularly given the not unreasonable presumption that the defendant concealed his criminal activities from his family in the past; and

6. Finally, we note that the defendant may have at least one substantial issue for appeal of his conviction — the question of the extent and necessity of his knowledge that the cocaine in question was destined for importation into the United States, a question on which we, of course, express no opinion. That factor, however, is implicated only if a court first correctly determines that clear and convincing evidence exists that the defendant is not likely to flee.

See generally United States v. Shakur, 817 F.2d 189, 200 (2d Cir.1987) (errors of law and clearly erroneous findings of fact impact ultimate finding that defendant poses no serious pre-trial risk of flight). Doubtless defendant can seek to have sentencing, which we understand to be set for May 1990, and the hearing of the appeal expedited.

Order reversed.¹

1 . Our colleague's strong dissent might be more persuasive were it not for the standard of evidence imposed by the applicable statute upon the district judge in finding no likelihood of flight, namely, the “clear and convincing" standard. It simply cannot be said that the evidence that the defendant is not likely to flee by virtue of the bail imposed was “clear and convincing."