United States v. Parra

• Court: Court of Appeals for the First Circuit
• Decided: September 17, 1992
• Docket: 92-1839
• Status: Published

Opinion

USCA1 Opinion

          September 17, 1992    [NOT FOR PUBLICATION]

___________________

No. 92-1839

UNITED STATES,

                                      Appellee,

                                          v.

                                 JAIRO GIRALDO PARRA,

                                Defendant, Appellant.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Hector M. Laffitte, 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,  Carlos  A.
               _____________________                             __________
          Perez-Irizarry,  Assistant United  States Attorney,  and Jose  A.
          ______________                                           ________
          Quiles  Espinosa,   Senior  Litigation  Counsel,   on  brief  for
          ________________
          appellee.

__________________

__________________
                 Per Curiam.  Defendant  Jairo Giraldo-Parra appeals from
                 __________

            an order denying his request for pretrial bail.  We affirm. 

                                          I.

                 Giraldo-Parra  and five  codefendants have  been charged

            with violating 21 U.S.C.   841(a)(1), 846 and 18 U.S.C.  2 by

            participating  in  a conspiracy  to  possess  with intent  to

            distribute  cocaine and  heroin between  August  and December

            1991.1     During  that  time,  Giraldo-Parra,   a  Colombian

            national, owned  a  restaurant in  the  Hato Rey  section  of

            Puerto Rico called "Mi Peque a Colombia."  The thirteen count

            indictment  alleged that the  defendants used this restaurant

            as a front  for their drug trafficking activities.   Giraldo-

            Parra was specifically  charged with aiding  and abetting  in

            possessing drugs for distribution and distributing 27.4 grams

            of heroin on August 29, 1991, 27 grams of heroin on September

            25, 1991, 489.1  grams of  cocaine on December  6, 1991,  and

            .767 grams of heroin  and 5.941 grams of cocaine  on December

            12, 1991.  The Drug Enforcement Administration (DEA) arrested

            the  five co-defendants  on May  27, 1992  but was  unable to

            locate  Giraldo-Parra, who  voluntarily  surrendered  to  the

            authorities on the following day.  

                 A detention  hearing was held before  a magistrate judge

            on  May 29,  1992.   The transcript  of that  hearing  is not

            before  us  but   the  magistrate  judge's  detention   order

            indicates that Immigration  and Naturalization Services (INS)

            employee  Richard Escalera  and DEA  agents Pablo  Rivera and

____________________

            1.  The codefendants are Oscar Gonzalez-Lopez, Daniel Atilio-
            Adinolfi, Victor Rodriguez-Alvarez, Edgar Rodriguez-Velazquez
            and Jorge Omar Lopez-Almeida. 

James Baker testified  for the  government.   Giraldo-Parra's

            counsel made  a proffer on his  behalf.  On June  9, 1992 the

            magistrate judge  issued a written  detention order requiring

            that  all the  defendants,  including  Giraldo-Parra,  remain

            committed.   The magistrate  judge found that  the defendants

            had been  charged with  drug related offenses  that triggered

            the presumption that they  posed a risk of flight  and danger

            to the community  under 18  U.S.C.  3142(e).2   Based on  the

            evidence discussed below, the  magistrate judge found that no

            conditions could assure Giraldo-Parra's presence in court  or

            safety of  the  community.    Giraldo-Parra  "appealed"  this

            decision to the district court.  

                 A second evidentiary hearing  was held before a district

            judge.  At the  conclusion of the hearing the  district judge

            sustained  the findings  of the  magistrate judge  and denied

            bail.  This appeal followed. 

                                         II.

____________________

            2.  18 U.S.C.  3142(e) provides, in relevant part, that

                      Subject  to rebuttal  by  the person,  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 years
                      or more  is prescribed in  the Controlled
                      Substances Act (21 U.S.C.  801  et seq.),
                      ... .

                                         -3-

The record before us  consists of the transcript  of the

            district court's hearing and the magistrate judge's detention

            order. We  have observed that meaningful  appellate review is

            possible if either the judicial officer initially considering

            the matter or the district judge provides a written statement

            of  reasons underlying a detention or  release order.  United
                                                                   ______

            States  v. Tortora, 922 F.2d  880, 884 (1st Cir. 1990)(citing
            ______     _______

            United  States v. Moss, 887 F.2d 333, 338 (1st Cir. 1989)(per
            ______________    ____

            curiam)).   As  the district  judge sustained  the magistrate

            judge's findings, we recite the evidence the magistrate judge

            found and  supplement this  description  with the  additional

            evidence adduced at the district court hearing.  

                 DEA agent Pablo Rivera generally related how one or more

            of  the defendants sold drugs to undercover agents at or near

            Giraldo-Parra's restaurant on five  occasions.  On August 21,

            1991 defendant Oscar Gonzalez-Lopez informed the  agents that

            his  source had the following drugs for sale: 1/8 kilogram of

            heroin for $29,000,  1 ounce of heroin for  $7500, and 1 gram

            of heroin for $250.  Gonzalez Lopez told the agents  to go to

            Giraldo-Parra's  restaurant.   While the  agents were  parked

            outside, Gonzalez Lopez brought  them a package of cigarettes

            containing  heroin.    On  August 29,  1991,  Gonzalez  Lopez

            arranged to sell  the agents  an ounce of  heroin for  $7500.

            DEA Agent Pablo Rivera testified that this sale was conducted

            outside the restaurant  and that defendant  Rodriguez Alvarez

-4-

required  the  agents to  pay  first,  after which  Rodriguez

            Alvarez   went  inside  the   restaurant  and  retrieved  the

            heroin.3  Later on,  Giraldo-Parra arrived at the restaurant.

            Rodriguez Velazquez gave him a folded pack of money.  

                 On September 13, 1991 Rodriguez Alvarez sold an ounce of

            heroin  to an  undercover  agent for  $7000 after  meeting at

            Giraldo-Parra's  restaurant.     On  September  25th,   after

            exchanging  an   ounce  of   heroin  for  $7000   at  another

            restaurant, Rodriguez  Alvarez took  the money to  Mi Peque a

            Colombia, where  Giraldo-Parra and two  other defendants were

            waiting.   Rodriguez Alvarez  asked  defendant Daniel  Atilio

            Adinolfi  for  his  commission.    Atilio  Adinolfi  referred

            Rodriguez Alvarez to Giraldo-Parra to collect his commission.

            Giraldo-Parra told  Rodriguez Alvarez  that $200  was missing

            from the proceeds of the sale.    

                 An informant  met  defendant Daniel  Atilio Adinolfi  at

            Giraldo-Parra's restaurant on December 6, 1991 and  purchased

            1/2 kilogram of cocaine for $5000.  DEA agent Jefferson Moran

            described this transaction in more detail before the district

____________________

            3.  During   the  interval  between  the  magistrate  judge's
            decision  and the  district  court hearing  Rodriguez Alvarez
            began cooperating  with the government.   The evidence before
            the district court indicated that Rodriguez Alvarez delivered
            an  ounce of  heroin to  undercover agent Jefferson  Moran on
            August 29,  1991, after  obtaining the heroin  from defendant
            Edgardo  Rodriguez Velazquez (Giraldo-Parra's nephew).  After
            the   sale  was   completed,  Giraldo-Parra   telephoned  the
            restaurant and was told  that Rodriguez Alvarez had delivered
            the heroin.  

                                         -5-

court.    According  to  Moran,  the  informant  entered  the

            restaurant and met with defendant Daniel Atilio Adinolfi.  As

            the informant and Atilio  Adinolfi were negotiating, a second

            undercover officer entered  the restaurant and  overheard the

            informant tell Giraldo-Parra that he was interested in buying

            a car from Atilio Adinolfi.  Giraldo-Parra told the informant

            to take a long drive with Atilio Adinolfi and to  buy the car

            if he liked it.   The informant and Atilio Adinolfi then left

            the  restaurant and  entered  a Burgundy  Ford.   They  drove

            around the corner and consummated the sale.  Their activities

            were  surveilled by the DEA and by another codefendant, Jorge

            Lopez Almeida,  who had  followed the  Ford on  a motorcycle.

            The informant and Atilio  Adinolfi returned to the restaurant

            and parked out  front, still  followed by the  DEA and  Lopez

            Almeida.   The informant exited  the restaurant with  a brown

            paper  bag and  departed with  the undercover  agent.   Lopez

            Almeida followed them until the  local police stopped him  to

            prevent his discovery of the undercover operation.  

                 At  the  district  court  hearing  agent  Moran  further

            related  that  on December  12,  1991,  DEA  agent Ortiz  and

            confidential  informants  went to  the  restaurant  to buy  a

            sample of  heroin and to obtain  6 grams of cocaine  that had

            been  missing from the 1/2 kilogram sold on December 6, 1991.

            An  informant entered  the  restaurant and  greeted defendant

            Daniel  Atilio Adinolfi, who indicated that Giraldo-Parra had

-6-

the  heroin  and  that  the  informant  should  wait  because

            Giraldo-Parra was  speaking to  other people.   The informant

            then saw  Atilio Adinolfi take  something from Giraldo-Parra.

            Atilio Adinolfi  immediately returned  to  the informant  and

            gave him the sample of heroin  and six grams of cocaine  that

            had been  missing from the  half kilogram.   Atilio  Adinolfi

            told  the  informant  he could  pay  for  the  heroin on  the

            following day.  

                 Agent  Moran testified that  the DEA considered Giraldo-

            Parra to  be a significant offender  because DEA intelligence

            indicated  that  he was  the  head  of  an organization  that

            imported a  new type of  Colombian heroin, 90-94%  pure, that

            had  been  trying to  make its  way  into the  United States.

            Agent Amador testified that Rodriguez Alvarez said that while

            incarcerated together at the state penitentiary Giraldo-Parra

            and  two  other  defendants  threatened him  because  he  had

            allowed an  undercover agent to  penetrate the  organization.

            Giraldo-Parra allegedly instructed  Rodriguez Alvarez to tell

            the authorities  that he alone (i.e.,  Rodriguez Alvarez) was

            responsible for distributing narcotics.  

                 The evidence before the magistrate judge and judge as to

            Giraldo-Parra's   history    and   personal   characteristics

            indicated that Giraldo Parra is  a resident alien who entered

            Puerto  Rico  legally  around  1980.    He  married, had  two

            children, and divorced in 1988.  His ex-wife reported that he

-7-

provided child support  payments.  He  has been employed  for

            the  past three  years  as an  encyclopedia salesman  earning

            approximately  $28,000 per year.  He has no real property and

            sold  the restaurant  and  a video  store  that he  owned  in

            December 1991.   Giraldo-Parra's  family ties to  Puerto Rico

            included a  half-brother and  common law wife,  Aixa Santiago

            Nieves, with whom  he had lived for approximately three years

            and had another child.   Santiago  related that Giraldo-Parra

            visits his  two children  from his previous  marriage weekly.

            She described their own relationship as stable, although they

            had quarrels.   She stated that  he is diabetic and  that she

            takes food to  him in  prison.  Santiago  testified that  her

            parents were willing to post their house, which she estimated

            had a $100,000 value, as collateral for Giraldo-Parra's bail.

                 Pretrial  Services  Officer  Jose Oben  deemed  Giraldo-

            Parra's relationship with Aixa Santiago Nieves to be unstable

            because  she had indicated  that they had  separated.4  While

            Giraldo-Parra had  no prior  arrests in Puerto  Rico, shortly

            after  his  arrest  the INS  filed  a  detainer against  him.

            Officer  Oben recommended  that, in  view of  the presumption

            that Giraldo-Parra presented  a risk of flight  and danger to

____________________

            4.  DEA  Agent Domingo  Carrasquillo  testified that  another
            confidential  informant had  informed the  DEA  that Giraldo-
            Parra  was  involved  with   the  daughter  of  another  drug
            trafficker.   He allegedly was with her when the DEA arrested
            the other defendants. 

-8-

the community, Giraldo-Parra should be detained pending trial

            particularly  because he appeared to be deportable due to the

            INS' detainer. 

                 The  magistrate judge concluded that notwithstanding the

            evidence  of Giraldo-Parra's  family and  community  ties, in

            view  of the  statutory  presumption, the  fact  that an  INS

            detainer  had been filed, and  the fact that his relationship

            to  his  common  law  wife appeared  unstable,  Giraldo-Parra

            continued  to pose both  a risk of  flight and  danger to the

            community. In sustaining the magistrate judge's findings, the

            district court  considered the  same factors as  well as  the

            evidence that Giraldo-Parra is the leader of the organization

            charged with conspiracy, that the drug sales involved cocaine

            of high  purity and a new  type of heroin, and  that Giraldo-

            Parra  had   participated  in  threatening   the  cooperating

            defendant.5    The court  also  viewed  the evidence  against

            Giraldo-Parra as strong.  

                                         III.

                 On  appeal, Giraldo-Parra  argues that  he  succeeded in

            rebutting  the presumption  of flight  and dangerousness  and

            that the government failed to meet its burden of proving that

            no conditions or  combination of conditions could  reasonably

            assure  his  appearance  at  trial   or  the  safety  of  the

____________________

            5.  We note that there  was no evidence on the  purity of the
            cocaine.

                                         -9-

community.    In  particular,  the defendant  says  that  the

            evidence  against him  is weak  because  none of  the alleged

            transactions took place inside the restaurant and there is no

            direct evidence of his participation in a sale of drugs.  

                  We  afford  the  district  court's   order  independent

            review, with  deference to the determination  of the district

            court.   United States v.  Patriarca, 948 F.2d  789, 791 (1st
                     _____________     _________

            Cir. 1991).  This  standard "represents 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."  United States  v. Tortora, 922  F.2d 880, 883
            ____            _____________     _______

            (1st  Cir.  1990).    "[I]ndependent review  ...can  vary  in

            intensity according to the care put into the decision below."

            Patriarca,  948  F.2d  at  794.   We  consider  whether  "due
            _________

            attention  was given  to  all the  statutory  factors [in  18

            U.S.C.   3142(g) and]  ... shall  give such  deference  as we

            think the  care and consideration manifested  by the district

            court  warrant."  United States v. O'Brien, 895 F.2d 810, 816
                              _____________    _______

            (1st Cir. 1990).

                 First,  it is  clear  that the  district court  properly

            determined  that  the  presumption   that  "no  condition  or

            combination   of  conditions   will  reasonably   assure  the

            appearance of the ... [defendant]  as required and the safety

            of  the community  ... "  applied to  Giraldo-Parra.   See 18
                                                                   ___

            U.S.C.   3142(e).   Eight  of  the  thirteen  counts  in  the

-10-

indictment  charged  him with  violations  of  the Controlled

            Substances  Act,   21  U.S.C.    841(a)(1)  and   846.    The

            indictment  established   probable  cause  to   believe  that

            Giraldo-Parra committed one or more offenses for which he may

            receive a sentence  of ten years of  more.  United  States v.
                                                        ______________

            Vargas, 804 F.2d 157, 163 (1st Cir. 1986).6    
            ______

                 Notwithstanding   the    applicability   of    3142(e)'s

            presumption, the government retains the  burden of persuading

            the  court  by  a preponderance  of  the  evidence  that "'no

            condition   or  combination  of  conditions  will  reasonably

            assure' the defendant's presence at trial."  United States v.
                                                         _____________

            Perez  Franco, 839  F.2d  867, 870  (1st Cir.  1988)(citation
            _____________

            omitted).  See also United States v. Patriarca, 948 F.2d 789,
                       ___ ____ _____________    _________

            793 (1st Cir. 1991)(upholding district court's application of

            preponderance of the evidence  standard).  In contrast, proof

            that  no conditions  of  release will  reasonably assure  the

            safety of any other person or the community must be by "clear

            and convincing evidence."  See 18 U.S.C.  3142(f).
                                       ___

                 A defendant  need only produce "some  evidence" to rebut

            the  presumption of flight.   Perez-Franco, 839  F.2d at 870;
                                          ____________

____________________

            6.  Giraldo-Parra  argues  that he  is  likely  to receive  a
            sentence  of  less  than   ten  years  under  the  Sentencing
            Guidelines  because  the  quantities  of drugs  involved  are
            relatively  small and he has  no criminal record.   This does
            not  render the statutory  presumption inapplicable.  Rather,
            these  considerations   are  relevant   to  the   weight  the
            presumption  is afforded. See United States v. Moss, 887 F.2d
                                      ___ _____________    ____
            333, 337 (1st Cir. 1989).

                                         -11-

United States v. Jessup, 757 F.2d 378, 384 (1st  Cir. 1985). 
            _____________    ______

            Thereafter,  the presumption retains  evidentiary weight, and

            "the magistrate or judge  should still keep in mind  the fact

            that Congress  has found that [drug] offenders,  as a general

            rule,  pose special risks of flight.  The magistrate or judge
                        _______

            should  incorporate that  fact  and finding  among the  other

            special  factors  that Congress  has  told him  to  weigh ...

            [under 18  U.S.C.  3142(g)]."7    Applying  these principles,

____________________

            7.  Under 18 U.S.C.  3142(g),  the district court is required
            to consider:

                 (1) the  nature and  circumstances  of the  offense
                 charged, including whether  the offense is a  crime
                 of violence or involves a narcotic drug;

                 (2) the weight of the evidence against the person; 

                 (3) the history and  characteristics of the person,
                 including-

                      (A) the person's character,  physical and
                      mental     condition,    family     ties,
                      employment,  financial resources,  length
                      of residence in the  community, community
                      ties, past conduct,  history relating  to
                      drug or alcohol abuse,  criminal history,
                      and record concerning appearance at court
                      proceedings; and

                      (B) whether,  at the time of  the current
                      offense  or  arrest,  the person  was  on
                      probation, on parole, or on other release
                      pending  trial,  sentencing,  appeal,  or
                      completion  of  sentence  for an  offense
                      under Federal, State, or local law; and 

                  (4) the  nature and  seriousness of the  danger to
                 any  person or the community that would be posed by
                 the person's release...  .

                                         -12-

we  conclude  that  the  government  has met  its  burden  of

            persuasion that Giraldo-Parra poses a risk of flight.  

                 Giraldo-Parra  is  alleged  to   be  the  leader  of  an

            organization  involved in  importing high purity  heroin into

            the  United  States  from  Colombia.   While  the  quantities

            involved in  the transactions are arguably  small, the heroin

            was said to be a "new breed" of "very high  quality" that had

            been  trying to make its way to  the United States. (App. 31-

            32)   This  indicates that  Giraldo-Parra is a  drug offender

            with important  foreign connections and  that the presumption

            that  he posed a risk  of flight was  due considerable weight

            even in  the face  of the  evidence Giraldo-Parra  adduced in

            rebuttal.    We  also  think  that  the  district  court  was

            warranted in  concluding that  the evidence  against Giraldo-

            Parra is strong, particularly  in view of Rodriguez Alvarez's

            statements.   To be sure,  the evidence before the magistrate

            judge  was considerably  less than  that before  the district

            judge.    The government  only  placed  Giraldo-Parra at  the

            restaurant on two occasions  (August 29 and September  25) at

            the hearing before the magistrate judge and on both occasions

            he did not arrive until after the sales had been consummated.

            Nevertheless,   the  evidence  before  the  magistrate  judge

            suggested  that Giraldo-Parra received  the proceeds of those

            sales.  This conclusion  was bolstered by Rodriguez Alvarez's

            statements as described  to the district judge.  In addition,

-13-

agent  Moran's testimony suggested that Giraldo-Parra invited

            the informant to test the cocaine that was the subject of the

            December  6th sale  and that  he also  gave defendant  Atilio

            Adinolfi the sample of heroin given to the undercover  agents

            on  December 12th.   The  circumstantial and  direct evidence

            before the  district court thus tended  to directly implicate

            Giraldo-Parra in drug trafficking.

                 The evidence  tending to rebut the  presumption was that

            Giraldo-Parra had  resided in Puerto Rico  since around 1980,

            had  a   positive  employment  history   as  an  encyclopedia

            salesman, and family  ties to three children, his  common law

            wife, and  half brother.   In addition, Giraldo-Parra  has no

            criminal   record  and   voluntarily   surrendered   to   the

            authorities after his counsel advised him to do so.  While he

            is licensed to  carry a gun,  he has no history  of violence.

            Various  persons may be able to post property to secure bail.

            Weighing  against these  factors  was the  evidence that  his

            relationship to his common  law wife is unstable and  that he

            participated  in  threatening   the  cooperating   defendant,

            Rodriguez Alvarez.  In view of the fact that the defendant is

            not  a citizen, the evidence  against him is  strong, and the

            offenses with  which he stands charged are  serious, we agree

            that the  evidence  of Giraldo-Parra's  family and  community

-14-

ties does not appear  strong enough to assure  his appearance

            at trial.8

                 Affirmed. 
                 _________

____________________

            8.  As we conclude that  the district court was justified  in
            concluding that Giraldo-Parra poses a risk of flight, we need
            not  consider  whether  the   evidence  met  the  "clear  and
            convincing" standard of proof  on the issue of dangerousness.
            See  18 U.S.C.  3142 (f).  Cf.  United  States v. Jessup, 757
            ___                        ___  ______________    ______
            F.2d at 380.     

                                         -15-