United States v. Pubill Rivera

• Court: Court of Appeals for the First Circuit
• Decided: February 10, 1992
• Docket: 91-2208
• Status: Published

Opinion

USCA1 Opinion

February 10, 1992

___________________
          No. 91-2208

UNITED STATES,

                                      Appellee,

                                          v.

                                EDGARDO PUBILL RIVERA,

                                Defendant, Appellant.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Gilberto Gierbolini, U.S. District Judge]
                                              ___________________

                                 ___________________

                                        Before

                              Torruella, Circuit Judge,
                                         _____________
                           Campbell, Senior Circuit Judge,
                                     ____________________
                              and Selya, Circuit Judge.
                                         _____________

                                 ___________________

               Jose Antonio (ABI) Lugo on brief for appellant.
               _______________________
               Robert S. Mueller, III, Assistant Attorney General, Mary Lee
               ______________________                              ________
          Warren, Chief  Narcotic and  Dangerous Drug  Section, William  H.
          ______                                                ___________
          Kenety and Daniel F. Lopez-Romo, United States Attorney, on brief
          ______     ____________________
          for appellee.

__________________

                                 __________________ 

Per Curiam.  Appellant, Edgardo Pubill-Rivera,  appeals
                    __________

          from the  decision of  the United States  District Court  for the

          District of Puerto Rico denying  his request for release  pending

          trial.

                                      BACKGROUND
                                      __________

                    Appellant  was  indicted,  along  with  over  25  other

          persons, on  charges of  conspiring to  possess cocaine  with the

          intent  to  distribute  it  and  with  aiding  and  abetting  the

          possession  of cocaine  with the  intent to  distribute it.   The

          amount of cocaine involved was over 10,000 kilograms.   According

          to the government, appellant played  a leading role in this large

          drug  trafficking conspiracy.   A detention  hearing was  held on

          September 20, 1991.  The hearing revealed the following evidence.

                    Appellant  has  seven  children,  several  of  whom  he

          supports.  He  has lived with  his common-law  wife for the  past

          eight years.   At the time of his  arrest, appellant was employed

          at  the  gas  station owned  by  his  father.   He  was receiving

          approximately $2,500  per month  as salary.   Appellant  owns the

          home  in  which  his  father  lives;  it  is worth  approximately

          $80,000.   Appellant refused  to divulge  the existence of  other

          financial assets  to pretrial  services.   Appellant stated  that

          friends and  family were  willing to post  eight parcels  of real

          estate worth over $440,000 as security for bail.  

                    As for appellant's past criminal activity, he has three

          prior  narcotics  convictions.      Upon  his  first  conviction,

          appellant  was  sentenced  to  probation.    However,   probation

subsequently was  revoked due to a violation of the terms of this

          release.    Nonetheless,  appellant  averred  that  he  had  been

          released on bail  in all three  cases and always had  appeared in

          court when required. 

                    The government  cross-examined appellant's sister.   In

          addition to the  home in  which their  father lives,  appellant's

          sister  stated  that  she,  appellant  and  their  father  own  a

          laundromat and  that appellant  owns a second  home.   She stated

          that  she had, on one occasion, purchased a bank check for $8,000

          or $9,000  for her brother; she did not  know how her brother had

          obtained the money for this check.  The government also proffered

          the following evidence.    Although appellant's tax return showed

          a yearly  income  of only  $24,000, appellant  owned assets  that

          indicated unexplained sources of income.  These assets included a

          condominium, a  $68,000 speedboat  apparently paid  for in  cash,

          $195,000  in  real   estate  equity  and  three   bank  accounts.

          Appellant has a passport and  has travelled outside of the United

          States.  In addition,  when he was arrested he possessed two fake

          drivers' licenses.    Finally, under  the Sentencing  Guidelines,

          appellant probably would  be subject to a minimum  sentence of 25

          years.     

                    The magistrate judge  before whom the hearing  was held

          ordered  appellant detained  prior to  trial.  He  considered the

          magnitude of  the drug enterprise  of which appellant was  a part

          and the length  of the minimum sentence to  which appellant could

          be  exposed.    Based  on these  factors,  the  magistrate  judge

3

concluded  that appellant  could  not be  trusted  to follow  any

          conditions of  release.  In  addition to  finding that  appellant

          would pose a danger to  the community if released, the magistrate

          judge  determined that the  seriousness of the  charges appellant

          faces, along  with the  unexplained sources  of income,  provided

          appellant with the  incentive to flee.  The  district court judge

          affirmed the detention order, rejecting appellant's argument that

          18  U.S.C.      3142(g)  prevented  the  magistrate   judge  from

          considering defendant's sources of income.

                                      DISCUSSION
                                      __________

                    Based upon the transcript of the detention hearing, the

          district  court's  findings  and  the  parties'  briefs,  we  now

          consider the merits of the appeal.   A special standard of review

          applies to pretrial detention orders:

                         We  approach  our  task  mindful of  our
                    obligation  to  afford   independent  review,
                    tempered  by a  degree  of  deference to  the
                    determinations made below.   Recognizing that
                    appellate courts are  ill-equipped to resolve
                    factbound  disputes,   this  standard   cedes
                    particular respect, as a practical matter, to
                    the  lower  court's  factual  determinations.
                    Hence,  independent   review  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,  882-83 (1st  Cir.
            _____________      _______

            1990) (citations omitted).

                      The grand jury  indictment provided probable  cause

            to  believe that appellant had committed an offense for which

            a  maximum term  of ten  years or  more is prescribed  in the

4

Controlled  Substances Act,  21 U.S.C.    801  et. seq.   See
                                                           __  ___    ___

            United States  v. Vargas, 804  F.2d 157, 163 (1st  Cir. 1986)
            _____________     ______

            (per curiam).   Thus, the statutory presumption  contained in

            18  U.S.C.   3142(e)  became applicable.   This provides that

            "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."   To

            rebut  this presumption,  appellant need  only  produce "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).   This is  a burden  of

            production, not persuasion.   Id. at  380-81.  However,  even
                                          __

            assuming  appellant successfully  rebuts  the presumption  by

            producing "some  evidence," the bubble does not "burst."  Id.
                                                                      __

            at 383.  The burden  of persuasion remains on the government,

            but the rebutted  presumption retains evidentiary force:   it

            becomes a  factor to be  considered in addition to  the other

            relevant factors  in    3142(g).   United  States v.  Palmer-
                                               ______________     _______

            Contreras, 835 F.2d 15, 18 (1st Cir. 1987) (per curiam).
            _________

                      On  the facts before us we  agree with the district

            court that a detention order was justified under the terms of

            the statute.  Congress has made it clear that  "the risk that

            a  defendant  will  continue to  engage  in  drug trafficking

            constitutes a  danger to the  'safety of any other  person or

            the community.'"  S. Rep. No. 98-225, 98th Congress, 2d Sess.

            13 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3196.   Here,
                       ____________

5

there  is  the  risk  that  appellant  might  return  to  the

            narcotics  trade  if  released   on  bail;  appellant's  past

            convictions did not  prevent him from continuing to engage in

            drug trafficking.  Of relevance  is the fact that he violated

            the terms of  his probation which  then was  revoked.    See,
                                                                     ___

            e.g., United States v. Williams,  753 F.2d 329, 335 (4th Cir.
            ___   _____________    ________

            1985) (finding evidence that defendants would "continue to be

            involved in  narcotics if released  on bail" based  upon fact

            that they  had done so despite presence  of prior convictions

            and parole supervision);  United States v. Dominquez,  629 F.
                                      _____________    _________

            Supp. 701 (N.D. Ind. 1986) (detention on grounds of danger to

            community ordered where defendant drug suppliers continued to

            engage  in  drug-related  activities  even  after  government

            intervention). 

                      Appellant's evidence  did not  significantly negate

            the  risk of danger  established by the  government.  Indeed,

            most of his evidence did not relate directly to the issue  of

            the  "safety  of community."    Rather, the  evidence  of the

            number of persons  willing to aid appellant  in securing bail

            related  to  his  community  ties  and  the  risk  of  flight

            question.   As Congress has  pointed out, community ties have

            no  correlation  with  the  question  of  the safety  of  the

            community.  See S. Rep. at 24, reprinted in 1984 U.S.C.C.A.N.
                        ___                ____________

            at 3207.

                      In   addition,   the    evidence   concerning   the

            undisclosed  financial assets belonging  to appellant and his

6

apparent  access  to  large  amounts  of  cash  supports  the

            district  court's finding that  appellant presents a  risk of

            flight.  Indeed,  appellant has a  passport and the  apparent

            wherewithal  to   obtain  false  identification.     Finally,

            appellant  appears to belong to a large narcotics trafficking

            organization;  further,  he is  not just  a "mule."   Compare
                                                                  _______

            United  States v. Palmer-Contreras,  835 F.2d at  18 (despite
            ______________    ________________

            the fact that defendants were only mules, detention proper on

            risk  of   flight  grounds   where  organization   for  which

            defendants  worked  appeared  to have  significant  financial

            resources to assist flight).

                      In  conclusion,  the  seriousness  of  the  charges

            against  appellant, the stiff sentence he faces if convicted,

            the nature  and size of  the criminal enterprise to  which he

            allegedly  belongs, his apparent  access to large  amounts of

            cash  and the  fact  that  he continued  to  engage in  drug-

            trafficking  after three  state  drug  convictions provide  a

            solid foundation on which to base a detention order.  

                      The order of the district court is affirmed.   

                      The motion to dispense with oral argument is denied

            as moot.

7