United States v. Santos-Ferrer

Opinion

USCA1 Opinion

        June 5, 1992            [NOT FOR PUBLICATION]

____________________

        No. 92-1445

                                    UNITED STATES,
                                      Appellee,

                                          v.

                              KIM DE LOS SANTOS-FERRER,
                                Defendant, Appellant.
                                                     
                                 ____________________

        No. 92-1446

                                    UNITED STATES,
                                      Appellee,

                                          v.

                                 PEDRO AYALA-ROSARIO,
                                Defendant, Appellant.
                                 ____________________

                    APPEALS FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]
                                               ___________________
                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                           Campbell, Senior Circuit Judge,
                                     ____________________
                               and Cyr, Circuit Judge.
                                        _____________
                                 ____________________

            Joaquin Monserrate  Matienzo, on  brief for  appellant Kim  de los
            ____________________________
        Santos-Ferrer.
            Everett M. DeJesus, on brief for appellant Pedro Ayala-Rosario.
            __________________
            Daniel  F.  Lopez Romo,  United States  Attorney,  and Antonio  R.
            ______________________                                 ___________
        Bazan, Assistant United States Attorney, on brief for appellee.
        _____

____________________

____________________

Per  Curiam.    Defendants-appellants  Kim  de  los
                      ___________

            Santos-Ferrer  ("Santos") and  Pedro Ayala  Rosario ("Ayala")

            were arrested by federal agents on February 5, 1992 and later

            indicted by a  grand jury for  importing and possessing  with

            intent  to  distribute  four   kilograms  of  cocaine.    The

            government filed  motions in the district  court for pretrial

            detention of Santos  and Ayala under 18 U.S.C.    3142(f).  A

            magistrate judge held  detention hearings  and issued  orders

            setting bail for Santos at $225,000 with use of an electronic

            monitoring  device, and  setting bail  for Ayala  at $150,000

            with additional conditions to be imposed upon release.

                      The government on February  14, 1992 filed  motions

            requesting that the district court undertake a de novo review
                                                           __ ____

            of the magistrate  judge's orders and, in  the meantime, stay

            both  defendants' release.   The  district court  granted the

            stays and, on February 28, 1992, conducted a de novo hearing.
                                                         __ ____

            On  March  27,  1992,  the district  court  entered  an order

            denying bail  and directing  detention pending trial  of both

            Santos and Ayala.  Santos and Ayala appeal.  We affirm.

                      At the  de novo  hearing the  government introduced
                              __ ____

            the tape  of a consensually monitored  telephone conversation

            held on  February 5, 1992, between Santos  and a confidential

            informant.   This tape was  played in  open court.   In  this

            conversation  the  informant told  Santos  when  and where  a

            shipment  of  cargo from  Colombia  would arrive  by  boat in

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Puerto  Rico later that day.  The informant made reference to

            a Mr. Estela  in Colombia, whom Santos acknowledged  he knew.

            It was arranged that Santos would  meet the boat in Ponce and

            would  be  driving a  gold  Porsche.   The  informant pressed

            Santos  to be  sure  to  bring  the  requisite  money.    The

            government also  introduced a  tape of a  second consensually

            monitored  telephone conversation  held a  few minutes  later

            between the  informant and another individual,  in which this

            drug pickup was further planned.

                      According  to the government's evidence, later that

            day  Santos, Ayala  and Jairo  Torres, a  Colombian national,

            appeared  at  the   dock  area  in  Ponce   in  a  Mitsubishi

            automobile.    Santos  was  driving.    They  approached  the

            informant and  asked him to enter the vehicle.  He did so and

            placed  on the  floor in the  back seat  of the  automobile a

            wrapped-up package containing four  kilograms of cocaine.  He

            asked about the money and was told by Santos that that was no

            problem.  The  informant sat in the back,  next to Ayala, and

            the  automobile  began to  drive away.   Federal  agents then

            ordered  the car  to stop.   Santos,  Ayala, and  Torres were

            placed under arrest.

                      Although  defendants were driving a Mitsubishi, the

            government  introduced  evidence  that  Santos  owns  a  gold

            Porsche, the keys to which were seized upon his arrest.  Also

            seized from the  automobile were $3,970  in U.S. currency;  a

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cellular  telephone  assigned   the  number   to  which   the

            confidential  informant's  two  calls  had  been placed;  and

            documents belonging  to Santos' sister, Maria  de los Santos-

            Ferrer, relating  to a pending cocaine case  in federal court

            in Puerto Rico in which she  is a defendant.  A  beeper/pager

            was seized  from  Ayala.    A federal  agent  testified  that

            through  all this Ayala  sat in the  back of the  car, saying

            nothing, until his arrest.

                      The  government also  proffered  evidence of  prior

            cocaine smuggling activity by Santos and Ayala.  According to

            this evidence, on September  24, 1991, following a high-speed

            chase, federal  agents found 93  kilograms of cocaine  in two

            suitcases in a Jeep  Cherokee.  Also inside the  vehicle were

            found a cellular  phone, whose memory revealed  that the last

            number dialed on the phone was the number of Santos'  home; a

            beeper  belonging to Santos' wife;  and a beeper belonging to

            Ayala.   Ayala's beeper  contained messages to  call a liquor

            store owned by Santos  and to call  the alias of a  Dominican

            national who was later charged with a murder that occurred at

            the landing site of the 93 kilograms of cocaine.

                      The  Jeep Cherokee  was registered  in the  name of

            Ayala's  father and  was  reported  stolen  the next  day  by

            Ayala's sister, who gave two  different accounts of the place

            from which it had been  stolen.  Ayala later stated  that his

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beeper was  in the vehicle  because he was fixing  it the day

            before it was seized.

                      The  government  also  proffered evidence  that  in

            another cocaine prosecution in which three defendants pleaded

            guilty, one of the defendants at the time he was arrested had

            a  beeper containing a message to call the liquor store owned

            by   Santos.     In  yet   another  cocaine   prosecution,  a

            confidential informant identified Santos as the source of the

            cocaine.

                      Evidence in the record showed that Santos has lived

            in Puerto Rico, where he has a wife and three minor children,

            for the  last thirty  years.   He works in  Puerto Rico  as a

            well-known musician, singer, and band leader, and also owns a

            liquor store.   Ayala, similarly,  is a lifelong  resident of

            Puerto Rico, where he has a  wife and two minor children.  He

            works  in Puerto  Rico as  a self-employed  truck  driver and

            mechanic.

                      The  district  court,  finding  probable  cause  to

            believe  that  Santos and  Ayala  had  committed a  narcotics

            offense  carrying a maximum term of imprisonment of ten years

            or more, invoked the presumption of dangerousness and risk of

            flight  in 18 U.S.C.    3142(e).  The  court ordered pretrial

            detention  of both Santos and  Ayala on the  grounds "that no

            condition or combination of conditions will reasonably assure

            the appearance of these defendants as required and the safety

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of  the  community."    The  district  court  summarized  its

            findings as follows:

                           Because  of  their strong  community
                      ties,  the question of  whether these two
                      defendants  will  probably  flee  is  not
                      easily answered although the incentive to
                      leave is increased by  the weight of  the
                      evidence   in   the  government's   case.
                      However,    the    question   of    their
                      dangerousness  to  the community  is more
                      readily resolved against them.  These are
                      not  minor players  on the stage  of drug
                      trafficking.     The  vehicles,  beepers,
                      cellular  phones,   telephone  tolls  and
                      quantities  of  cocaine involved  in this
                      and  related  cases,  plus  their  active
                      involvement   with   other   major   drug
                      traffickers lead to  the conclusion  that
                      if  released they will  pose an immediate
                      danger to the safety of the community.

                      We undertake an independent review of  the district

            court's  pretrial detention  decision,  but with  appropriate

            deference   to  the  district  court's  first-hand  judgment.

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

            See  United  States v.  Bayko, 774  F.2d  516, 520  (1st Cir.
            ___  ______________     _____

            1985).

                      We  agree  with   the  district   court  that   the

            government made out a strong case that "[t]hese are not minor

            players  on the  stage of  drug trafficking."    The evidence

            against  both Santos and  Ayala in  the instant  case appears

            weighty.  According to this evidence, both men arrived in the

            same  automobile for  the pre-arranged  cocaine pickup.   The

            arrangement was made by  the confidential informant on behalf

            of   an   individual  in   Colombia;  a   Colombian  national

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accompanied  Santos  and Ayala  in  the automobile.    It was

            Santos whom the confidential informant had been instructed to

            call to arrange the pickup.

                      In addition, the  government's proffer of  evidence

            regarding other incidents of  cocaine smuggling, as  outlined

            above, persuasively  suggests that both Santos  and Ayala are

            deeply  involved in the  local trade in  cocaine.  In  two of

            these incidents, as  well as  in the instant  case, calls  to

            Santos' cellular telephone or home, or messages on beepers to

            call  Santos' liquor store, appear  to have played  a role in

            the  cocaine transaction.  In one of these incidents, as well

            as  in  the instant  case, a  beeper  belonging to  Ayala was

            seized.  All  of this  evidence makes it  difficult to  think

            that the instant  charges against Santos and  Ayala arise out

            of an isolated  incident in  which either played  only a  bit

            part.

                      This  evidence  is  bolstered,  of  course,  by the

            presumption of  dangerousness  established  by  18  U.S.C.   

            1342(e).  The presumption  is triggered in this  case because

            both Santos and Ayala  have been indicted for a  drug offense

            that carries a maximum  term of imprisonment of ten  years or

            more.    Id.; 21  U.S.C.     841(a)(1),  (b)(1)(A).   Even if
                     ___

            Santos  or  Ayala  were   deemed  to  have  introduced  "some

            evidence" to rebut the presumption, "the presumption does not

            disappear, but  rather  retains  evidentiary  weight  --  the

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amount depending on  how closely  defendant's case  resembles

            the congressional paradigm -- to be considered along with all

            the  other  relevant  factors."   United  States  v.  Palmer-
                                              ______________      _______

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

            omitted).   See United States v. Jessup, 757 F.2d 378, 382-84
                        ___ _____________    ______

            (1st Cir. 1985).

                      Given the above-discussed  evidence of  defendants'

            apparent involvement in a drug trafficking organization, this

            case does indeed closely resemble the Congressional paradigm.

            Congress  found  that  "[p]ersons  charged  with  major  drug

            felonies  are   often  in   the  business  of   importing  or

            distributing dangerous drugs, and thus, because of the nature

            of the criminal  activity with which  they are charged,  they

            pose a significant risk of pretrial recidivism."  S. Rep. No.

            98-225, 98th Cong., 2d  Sess., at 20, reprinted in  1984 U.S.
                                                  ____________

            Code Cong. & Admin. News 3182,  3203.  Congress felt that  an

            "especially significant" consideration in  determining danger

            to the community "is  the drug network's ability to  continue

            to function while the defendant awaits trial."  United States
                                                            _____________

            v. Portes,  786  F.2d 758,  765  (7th  Cir. 1985).    We  are
               ______

            satisfied that the government's evidence, viewed in the light

            of the statutory  presumption, establishes  that both  Santos

            and  Ayala would pose a  danger to the  community if released

            pending trial.

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Although we need not reach the issue, we would also

            conclude that  pretrial  detention is  justified on  risk-of-

            flight  grounds, although  we agree  with the  district court

            that  this question  is much closer.   It  is true  that both

            Santos and  Ayala have  close and long-standing  personal and

            family  ties  to  Puerto  Rico.    On  the  other  hand,  the

            government's evidence strongly suggests  that they are active

            participants in a drug  trafficking operation with close ties

            to Colombian  drug traffickers.   The evidence  suggests that

            Santos himself has been in contact with them.  Thus, there is

            ample  reason to believe that both Santos and Ayala have both

            the incentive and the wherewithal to flee.

                      The  statutory  presumption of  risk-of-flight also

            applies  and, although rebutted,  retains evidentiary weight.

            "[T]his  presumption reflects  Congress's findings  that drug

            traffickers often have the  resources and foreign contacts to

            escape to other countries.   Forfeiture of even a  large bond

            may  be just  a  cost  of  doing  business,  and  hence  drug

            traffickers  pose special  flight risks."   Palmer-Contreras,
                                                        ________________

            supra, 835 F.2d at 17.
            _____

                      It is as to close  issues like this, moreover, that

            the deference  that we accord to the  district court's first-

            hand determinations  in bail cases, O'Brien,  supra, 895 F.2d
                                                _______   _____

            at 814,  comes into play.   The district court, at  a de novo
                                                                  __ ____

            hearing,  heard  the  taped  telephone calls  placed  by  the

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confidential informant, including  the one  with Santos,  and

            the testimony  of  the federal  agent  who made  the  arrest.

            Given   the  strength   of   the  government's   evidence  of

            defendants' involvement in  a drug trafficking  organization,

            we  are not moved to quarrel with the district court's first-

            hand   determination   (albeit   conclusorily  stated)   that

            defendants' ties to foreign drug traffickers are sufficiently

            strong  so  that pretrial  detention  of  both defendants  is

            justified on risk-of-flight grounds.

                      The  district court's pretrial detention orders are

            affirmed.
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