United States v. Moreno

Opinion

USCA1 Opinion

July 14, 1994
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No.94-1596 

                                    UNITED STATES,

                                      Appellee,

                                          v.

                              ALVARO MORENO, A/K/A ANDY,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                    [Hon.Nathaniel M. Gorton, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                               Torruella, Selya and Cyr,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Raymond E. Gillespie on Memorandum for appellant.
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            Donald  K. Stern,  United States Attorney, and  Michael J. Pelgro,
            ________________                                _________________
        Assistant United States Attorney on Memorandum for appellee.

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____________________

Per Curiam.     Defendant Alvaro E.  Moreno appeals
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            from a second district  court order affirming the magistrate-

            judge's denial of bail  pending trial.  For the  reasons that

            follow, we affirm.  

                      Moreno   was  arrested  pursuant   to  a  complaint

            charging  that  he  and   three  co-defendants  conspired  to

            possess, and possessed, cocaine with intent to distribute, in

            violation  of  21  U.S.C.       841(a)(1),  846.    After   a

            detention/probable  cause hearing,  Magistrate-Judge Collings

            issued  a   detailed  Memorandum  and   Order  granting   the

            government's motion for detention  under 18 U.S.C.   3142(f),

            because  "no condition  or  combination  of  conditions  will

            reasonably  assure  the  appearance  of  the  [defendant]  as

            required  and  the  safety  of   any  other  person  and  the

            community."  Moreno filed  two subsequent motions for release

            on conditions.   The  first was  denied without prejudice  by

            District  Judge  Zobel.    Thereafter  an  indictment  issued

            against  Moreno  and   five  others,  charging   Moreno  with

            distribution  of  five  or   more  kilograms  of  cocaine  in

            violation  of 21 U.S.C.    841(a)(1)  and 18  U.S.C.    2, in

            addition  to conspiracy  to distribute,  and to  possess with

            intent to distribute.   Moreno then  filed his second  motion

            for release, which was denied by Judge Gorton.

                      The  evidence  at   the  detention/probable   cause

            hearing included a  videotape which showed  Moreno and a  co-

defendant negotiating  the sale of five  kilograms of cocaine

            to  an undercover  agent.   Moreno's  statements on  the tape

            indicated  that he  was  able to  routinely  arrange for  the

            interstate delivery  of up to twenty kilograms  of cocaine at

            one  time.    He   expressed  general  familiarity  with  the

            mechanics  of  illegal  cocaine  trafficking,  including  the

            comparative prices  of the  drug in  various cities, and  the

            identity of sources.   He also made statements to  the effect

            that he was planning a trip to Colombia  to obtain heroin for

            illegal sale in  the United  States.  Other  evidence at  the

            hearing tended  to show  that Moreno had  participated in  an

            earlier  sale of  one kilogram  of cocaine,  and that  multi-

            kilogram  quantities of  the  drug  had  been picked  up  and

            delivered from his residence.  

                      Moreno  is a  native  of Colombia  and possesses  a

            Colombian  passport.    His  mother and  siblings  reside  in

            Colombia.   He entered  the United States  illegally in 1981,

            was granted amnesty, and has been a lawful permanent resident

            since July, 1989.   He maintains  a familial relationship  in

            Massachusetts with  his girlfriend and two  children (ages 10

            and 7).  At the time of the hearing in February, 1994, he had

            been  employed by a paving company for several years, but was

            temporarily  laid off due to bad  weather.  He offered a work

            history dating back to 1982, and several letters stating that

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he is  viewed as a  responsible worker and  a person  of good

            character. 

                      It appears that after the arrest of a co-defendant,

            Moreno fled briefly to Canada.  He returned within a week for

            the ostensible purpose of facing the charges against him.  He

            was arrested at Chelsea  District Court where he had  gone to

            clear an unrelated default.   

                      In   pretrial  detention  cases   we  undertake  an

            "independent review, tempered by a degree of deference to the

            determinations made  below."   United States v.  Tortora, 922
                                           _____________     _______

            F.2d 880, 882 (1st Cir. 1990).  With due respect to the lower

            court's factual determinations, we use "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."   Tortora, 922  F.2d at 883;  United States  v.
            ____            _______                     _____________

            O'Brien, 895 F.2d  810, 814 (1st Cir.  1990).  There  must be
            _______

            clear and  convincing evidence that  the defendant's  release

            poses  a risk of danger to the community; and 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). 
            ______    _________

                       Where, as here, there is probable cause to believe

            that the defendant committed a  controlled substances offense

            punishable  by a maximum term of imprisonment of ten years or

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more,1 the  government is aided by  the statutory presumption

            that no conditions will assure the defendant's appearance nor

            the safety of the community.  See 18 U.S.C.   3142(e).  
                                          ___

            The   presumption  reflects  Congress's  findings  that  drug

            traffickers often have the  resources and foreign contacts to

            escape to  other countries, as  well as strong  incentives to

            continue in the  drug trade.   See United  States v.  Palmer-
                                           ___ ______________     _______

            Contreras,  835 F.2d 15,  17 (1st Cir.  1987) (presumption of
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            risk of flight); United States v. Williams, 753 F.2d 329, 335
                             _____________    ________

            (4th Cir. 1985) (presumption of pretrial recidivism).  When a

            defendant offers evidence  in rebuttal, the  presumption does

            not disappear, but "retains  evidentiary weight -- the amount

            dependent  on  how  closely defendant's  case  resembles  the

            congressional paradigm."   Palmer-Contreras, 835 F.2d  at 18.
                                       ________________

            The  presumption  is then  considered  along  with the  other

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

            Contreras, 835 F.2d at 18.   
            _________

                      We  agree with  the magistrate that  the government

            made  a  strong showing  that Moreno  posed  a danger  to the

            community and a  risk of  flight.  The  evidence of  Moreno's

            willingness  and  ability  to  deliver  large  quantities  of

            illegal drugs, his family  and other connections in Colombia,

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            1.  Probable  cause for  the  arrest was  established by  the
            evidence at the hearing,  a finding which defendant  does not
            challenge.     The  grand  jury  indictment,   too,  facially
            established probable cause.  See United States v. Vargas, 804
                                         ___ _____________    ______
            F.2d 157, 163 (1st Cir. 1986).  

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and  his  pre-arrest flight  to Canada,  all reflect  a close

            match to the  congressional paradigm of a defendant  with the

            resources and foreign contacts  to escape to other countries,

            and the financial  incentive to continue  in the drug  trade.

            The magistrate persuasively reasoned  that Moreno's proof  of

            family ties and employment  in Massachusetts was insufficient

            to rebut this strong  presumption, especially considering the

            other relevant factors: the  gravity of the offense charged,2

            the  weight   of  the   evidence  against  Moreno,   and  the

            possibility of his deportation upon conviction.  

                      At the  hearing before  the magistrate, and  in his

            first motion for  release, Moreno offered no  rebuttal to the

            presumption  of  dangerousness  raised  by  evidence  of  his

            ability to deal in large quantities  of drugs.  In his second

            motion for release, however, Moreno offered his own affidavit

            stating  that  he had  merely  "pose[d] as  a  Colombian drug

            dealer"  and  a "big  shot," as  a favor  to  one of  his co-

            defendants.  Moreno argued  that if released he would  be too

            busy to engage in illegal activities, pointing to two current

            job offers and volunteer work at his church.  He proffered as

            conditions,   $1,000  cash   security,   and  a   third-party

            custodianship by his girlfriend or a co-worker.  The district

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            2.  The  magistrate  stated  that  Moreno  faced   a  minimum
                                                                  _______
            mandatory  sentence   of  five  years'  imprisonment.     The
            ___________
            government  argues here  that the  minimum mandatory  is even
            higher, at ten years.   

                                         -6-

court summarily rejected the motion.  We  see   no  error  in

            light of the very  strong presumption of dangerousness raised

            by the government's evidence.   As the government argues, the

            proposed custodians and conditions are easily manipulated and

            their  effectiveness hinges  on the  defendant's  good faith.

            They thus fall far short of providing the needed "objectively

            reasonable assurance of community safety."  Tortora, 922 F.2d
                                                        _______

            at  886.   Defendant's final  argument, that  two of  his co-

            defendants  were  released   on  conditions,  is  irrelevant.

            Detention  determinations are  fact-bound,  and must  be made

            individually.  Tortora, 922 F.2d at 888.
                           _______

                      For the  reasons stated, the order  of detention is

            affirmed.
            ________

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