IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 92-2669
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
MAURICIO RUEBEN and GERARDO GUERRA,
Defendants-Appellees.
__________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________ _ (September 24, 1992)
Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Mauricio Rueben and Gerardo Guerra were indicted for
conspiracy to possess with intent to distribute in excess of 1000
kilograms of marijuana in violation of the Controlled Substances
Act, 21 U.S.C. § 801, et seq.1 Following a hearing, the magistrate
concluded that no condition or combination of conditions of bond
could reasonably assure the appearance of Rueben or Guerra at trial
1 Subsequent to the detention hearings, a superseding indictment was returned. Guerra is now charged with four counts and Rueben is now charged with twenty-two counts. and that they were a danger to the community. He therefore ordered
that Rueben and Guerra be detained pursuant to 18 U.S.C. § 3142
pending trial. Rueben and Guerra requested that the district court
revoke the detention order, but the district court refused.
Several months later, the district court revoked the detention
order and ordered the release of Rueben and Guerra on $100,000
unsecured bond. The government appeals the district court's order.
We have previously granted the government's application for a stay
of the district court's order pending resolution of this appeal.
We now hold that the decision of the district court is not
supported by the proceedings below and we therefore reverse and
vacate.
I
A
The Bail Reform Act of 1984, 18 U.S.C. § 3142, et seq.,
provides that upon the motion of a government attorney, a judicial
officer must hold a hearing to determine whether any "condition or
combination of conditions will reasonably assure the appearance of
the person as required, and the safety of any other person and the
community." 18 U.S.C. § 3142(e).2 Rueben and Guerra were indicted
under the Controlled Substances Act, 21 U.S.C. § 801, et seq.,
2 This hearing can be held only if one of the six circumstances listed in § 3142(f)(1) or (2) is present. United States v. Byrd, No. 92-4602 (5th Cir. August 7, 1992), at 7. Rueben and Guerra have been indicted for violation of the Controlled Substances Act, 21 U.S.C. § 801, et seq., which is a circumstance listed in § 3142(f)(1)(C).
-2- which triggers a rebuttable presumption under 18 U.S.C. § 3142(e)
that no condition or combination of conditions will assure their
appearance at trial or the safety of the community if they are
released.
B
The magistrate conducted a detention hearing for Guerra on
May 9, 1991. The government sought pretrial detention of Guerra as
both a flight risk and as a danger to the community. The
government called a special agent as a witness. Guerra's counsel
cross-examined this witness, but did not present any other evidence
except that contained in the pretrial services report.
The government's evidence showed that Guerra had been arrested
in 1985 and had pled guilty to charges of delivering more than
fifty and less than two hundred pounds of marijuana. He was
sentenced to ten years imprisonment. After serving six months, he
was placed on probation. Evidence relevant to that charge showed
that Guerra had negotiated the sale of 300 pounds of marijuana.
After undercover agents accompanied Guerra to his residence at 414
Finfrock in Pasadena, he produced 132 pounds of marijuana. A
search of his house after his arrest revealed another eleven pounds
of marijuana.
The government also presented evidence from a confidential
informant that in 1983 Guerra had delivered marijuana to him on at
least twenty-five occasions at Guerra's house at 414 Finfrock.
According to the government, this information has been verified by
-3- telephone records, utility and property records, and an undercover
operation. The government alleges that at this time Guerra was
partners with his next door neighbor, Desiderio (Desi) Guerra, who
has also been indicted in this case.
Guerra was arrested on March 1, 1989, four months after being
released from probation, for delivering 307 pounds of marijuana to
a customer in Maryland. Arrested along with Guerra was Raynoldo
Perez, another defendant in this case. Perez was later arrested
for transporting 280 pounds of marijuana through Jackson,
Mississippi; arrested with Perez in that case was Onofre Guerra,
Guerra's brother and a defendant in this case. The government
presented evidence that Guerra was observed at the loading site
while the vehicle was being loaded with the 280 pounds of marijuana
and just prior to its departure. Also observed with Guerra was
Desi Guerra.
The government also presented evidence that Guerra has been
identified during an undercover operation involving another
defendant, Dario Maldonado, as the source of the marijuana that was
delivered to an undercover agent. When Guerra was arrested in this
present case, he admitted the continued use of cocaine as recently
as moments before his arrest. In his possession at the time of his
arrest was written documentation of his drug trafficking
activities. The government argued that all of this information
must lead to the conclusion that Guerra will continue dealings in
-4- drugs if allowed out on bond pending trial and for this reason he
constitutes a danger to the community.
The government also presented evidence that Guerra was a
flight risk because his community ties were suspect. First, when
he was arrested, Guerra listed his place of employment as Jackson
Auto Service, 1009 West Jackson, Pasedena, Texas. The government
presented evidence that the owners and operators of Jackson Auto
Service had recently been convicted in federal court for
distributing multi-ton quantities of marijuana from that location
during the time Guerra claims to have worked there. Across the
street from Jackson Auto Service is Rueben's Automotive, which is
owned by Desi Guerra. The adjoining property is also owned by Desi
Guerra and in the past was occupied by two other defendants in this
case. Guerra's home address is 414 Finfrock; Desi Guerra owns 412
and 415 Finfrock. The government also offered proof that 415
Finfrock was the location of the seizure of 415 pounds of marijuana
in January 1990. The government presented evidence that this case
involves a family run marijuana enterprise that began in 1977.
According to the government testimony, Desi Guerra and Onofre
Guerra are the co-heads and they utilize family members as couriers
for the distribution of marijuana and currency. The government
presented evidence that this family operation imports as much as
two tons of marijuana a week. Desi Guerra is married to Guerra's
sister; Onofre Guerra, as we have noted, is Guerra's brother. In
view of this background, the government urges that Guerra's family
-5- ties and his ties to the community are suspect. For this reason,
the government contends that he has failed to overcome the
presumption that no condition or combination of conditions will
reasonably assure his presence at trial and he is therefore a
flight risk.
After hearing all of this evidence, the magistrate concluded
that Guerra was actively engaged in marijuana trafficking and was
a danger to the community. The magistrate also concluded that
there was reason to believe Guerra would flee the jurisdiction if
released. For these reasons, the magistrate held that no
conditions or combination of conditions could assure the safety of
the community or the presence of Guerra if he were released pending
trial. Accordingly, the magistrate ordered the pretrial detention
of Guerra.
C
The magistrate judge conducted a detention hearing for Rueben
on May 30, 1991. The government sought pretrial detention on the
dual grounds that Rueben constituted both a risk of flight and a
danger to the community. The government called a special agent as
a witness. Rueben's counsel cross-examined this witness, but did
not call witnesses or present evidence.
The government first presented evidence that Rueben was
identified by a confidential informant in 1987 as being involved
with his brothers in the distribution of cocaine. The source of
the cocaine was identified as "Adam," and the pager number was
-6- assigned to Adam Troy Contreras. In October 1990, while Rueben was
on probation, Adam Troy Contreras was intercepted on a pen register
and wiretap of a telephone at Rueben's Automotive, 1012 W. Jackson,
Pasedena, which was Rueben's business address. According to the
government, the intercepted conversations include Rueben arranging
transactions in cocaine to take place at Rueben's Automotive. The
government further offered proof that surveillance established that
these transactions did take place and at least one delivery took
place at Rueben's residence.
In May 1989, Rueben pled guilty to a Texas state felony charge
of possession of cocaine and was placed on two years probation.
The government presented evidence that six months after being
placed on probation, Rueben participated in loading two vehicles at
1018 W. Jackson with approximately one hundred pounds of marijuana
each. One of these vehicles was later seized in Baton Rouge.
Eight months after being placed on probation, Rueben was discovered
in possession of at least 511 pounds of marijuana at his brother's
415 Finfrock residence. This marijuana was seized pursuant to a
search warrant based on information received concerning Rueben's
activity at that location. According to the government,
immediately prior to the execution of the search warrant
surveillance revealed the presence of two vehicles registered to
Rueben at 415 Finfrock and travel by Rueben, carrying suitcases,
between 415 Finfrock and the nearby Rueben's Automotive.
-7- Fourteen months after being placed on probation, Rueben was
arrested in Pennsylvania for unlawfully possessing a firearm. The
government stated that Rueben admitted to the arresting officers
that he had delivered 1,100 pounds of marijuana several days
earlier and gave the location of the delivery.3 At this location,
officers found approximately $950,000 cash, approximately twenty-
five pounds of marijuana, and the horse trailer that had been used
to transport the marijuana. During this Pennsylvania incident,
Rueben violated numerous terms of his Texas probation.
The government presented evidence that while Rueben was on
pre-trial release on his Pennsylvania firearms charge and prior to
the entry of his guilty plea, which was also seventeen months after
being placed on probation in Texas, he arranged cocaine
transactions from his business and home. The government stated
that these transactions were revealed by a court authorized wiretap
of the telephone at Rueben's Automotive and that contemporaneous
surveillance also established that Rueben did in fact conduct these
transactions.
Twenty-three months after being placed on probation in Texas
and five months after being placed on probation in Pennsylvania for
the firearms conviction, Rueben's residence at 7707 Grahamcrest was
searched pursuant to a search warrant. Authorities discovered
cocaine and eight firearms, one of which was fully automatic. A
3 In his appeal brief Rueben denies that he made this statement.
-8- simultaneously executed search warrant of Rueben's Automotive
revealed a quantity of marijuana.
The government contended that all of these factors led to the
conclusion that Rueben would continue to deal in drugs if released
on bond pending trial, and for this reason Rueben constituted a
danger to the community. The government also argued that Rueben's
family ties are actually a contributing factor to his continued
criminal activity and increase the likelihood of his continued
criminal activities because his wife and two brothers are criminal
associates.
Following the hearing at which all of this evidence was
presented, the magistrate found that Rueben was actively engaged in
marijuana and cocaine trafficking and that no conditions or
combination of conditions could assure the safety of the community
if he were released. The magistrate also concluded that Rueben had
not rebutted the presumption of risk of flight. Accordingly, the
magistrate ordered that Rueben be detained pending his trial.
II
On September 30, 1991, four months after his hearing, Guerra
filed a motion to revoke the detention order. In his motion,
Guerra alleged the following:
(1) He is thirty-six years old, a citizen of the United States, and has never had a passport; (2) All of his identification records are in his name and there has been no suggestion that he has used any other name or identity;
-9- (3) He has been married for sixteen years and has two sons; (4) He and his wife have lived at 414 Finfrock in Pasadena, Texas, for the last thirteen years; (5) His house is mortgaged to Homestead Savings; (6) His two sisters and their families have lived in the Houston area for many years; (7) He has completed his GED; (8) Because of the economic hardship of his being in custody and not being able to work his family is about to be evicted from their home; (9) His family are faithful members of a church and regularly attend church services.
Guerra argued that there are conditions that will assure his
appearance and that he will not endanger the safety of any other
person or the community. On October 4, 1991, the government filed
an opposition and on November 27, 1991, the district court denied
Guerra's motion to revoke the detention order. Guerra did not
appeal this order.
On February 11, 1992, nine months after his detention hearing,
Rueben filed with the district court his motion to revoke the
detention order. Rueben stated the following facts:
(1) He is thirty years old and acquired resident alien status in 1968; (2) He has lived in the Houston area continually for the last twenty-three years; (3) In the Pre-Trial Report it states that he has established community ties through school, employment, residence, and family; (4) All of his identifications are in his name and the government does not suggest hat he has used any other name or identity; (5) He has been married since 1984; (6) He and his wife have lived in a house in Houston for nearly ten years; (7) He has no record of failing to appear for court in his prior matters; (8) His business was the subject of a government search in April 1991 but he was not arrested for crimes relating to the seized documents until May 1991;
-10- (9) If he were planning to flee, he would have done so during the time between the search and the arrest; (10) Not taking advantage of this opportunity to flee is indicative of his commitment to stay in the community and resolve this matter; (11) It is virtually impossible to prepare his defense while he is incarcerated.
Rueben contended that there were conditions that would reasonably
assure his appearance at trial and that he will not endanger the
safety of any other person or the community. The government filed
its opposition on July 9, 1992. On July 16, 1992, the district
court denied Rueben's motion. Rueben did not appeal this order.
On August 24, 1992, at an unrelated hearing involving Guerra
and Rueben, the district court judge commented that pretrial
services was reviewing the pretrial detention orders of unspecified
defendants. The prosecutor requested that the district court
include a stay provision in any order of release. According to the
government, the district court denied this request and stated that
no stay of release order would be granted under any circumstances,
including an appeal of that release order to this court.
On September 8, 1992, the government received an order entered
on September 3 requiring it to show cause why Guerra and Rueben
should be detained pending trial. The government filed its
opposition the following day. On September 9 the district court
revoked the detention order and issued conditions of release for
Guerra and Rueben. The district court ordered that Rueben and
Guerra be released on $100,000 unsecured bonds under the standard
-11- conditions and (1) that they be subject to electronic monitoring
for ninety days, with a schedule to be set by pretrial services and
to include a reasonable curfew; (2) that their travel be restricted
to Harris County; and (3) that they be subject to random urinalysis
and treatment if requested by pretrial services.
The government received a copy of this order on September 9 at
approximately 6:30 P.M., and was informed that Guerra and Rueben
would be released September 10 at 10:00 A.M. following an in-court
appearance. The government filed a notice of appeal at 8:30 A.M.
on September 10, 1992, and this court granted a stay of the order
revoking detention pending the outcome of this appeal.
III
On appeal, the government argues that the district court
clearly abused its discretion in revoking the detention order for
Guerra and Rueben because the factors set forth in § 3142(g) were
not weighed and no reasons for the action were assigned. The
government further contends that the district court's revocation of
the detention order and imposition of conditions of release lacks
support in the record. The government also urges that the district
court was required to issue written findings concerning why the
magistrate's detention order was revoked. On the other hand,
Guerra and Rueben argue that the government has failed to
demonstrate that the district court has clearly and erroneously
abused its discretion in allowing bail. Guerra and Rueben further
argue that the Bail Reform Act does not require the district court
-12- to issue written findings in granting conditions of release.
Guerra and Rueben finally assert that the district court is
permitted to release detained defendants for preparation of their
defense or for compelling reason.
IV
When the district court acts on a motion to revoke or amend a
magistrate's pretrial detention order, the district court acts de
novo and must make an independent determination of the proper
pretrial detention or conditions for release. United States v.
Fortna, 769 F.2d 243, 249 (5th Cir. 1985). Absent an error of law,
we must uphold a district court order "if it is supported by the
proceedings below," a deferential standard of review that we equate
to the abuse-of-discretion standard. United States v. Hare, 873
F.2d 796, 798 (5th Cir. 1989). On appeal, the question becomes
whether the evidence as a whole supports the conclusions of the
proceedings below. United States v. Trosper, 809 F.2d 1107, 1111
(5th Cir. 1987).
Under the Bail Reform Act, the existence of probable cause to
believe that the defendant committed a crime in violation of 21
U.S.C. § 801, et seq., creates a rebuttable presumption that no
conditions of release exist that would reasonably assure the
appearance of the person as required and the safety of the
community. 18 U.S.C. § 3142(e). We have previously held that when
-13- the defendant has presented considerable evidence of his
longstanding ties to the locality in which he faces trial, the
presumption of flight has been rebutted. United States v. Jackson,
845 F.2d 1262, 1266 (5th Cir. 1988). We have also held, however,
that the risk of continued narcotics trafficking on bail does
constitute a risk to the community. Hare, 873 F.2d at 798 (citing
United States v. Hawkins, 617 F.2d 59 (5th Cir.), cert. denied, 449
U.S. 952 (1980)). For pretrial detention to be imposed on a
defendant, the lack of reasonable assurance of either the
defendant's appearance, or the safety of others or the community,
is sufficient; both are not required. Hare, 873 F.2d at 799;
Fortna, 769 F.2d at 249.
The rebuttable presumption of § 3142(e) shifts to the
defendant only the burden of producing rebutting evidence, not the
burden of persuasion; however, the mere production of evidence does
not completely rebut the presumption. Hare, 873 F.2d at 798. In
making its ultimate determination, the court may still consider the
finding by Congress that drug offenders pose a special risk of
flight and dangerousness to society. Id. at 798-99.
Section 3142(g) lists factors the judicial officer considers
in determining whether there are conditions of release that will
reasonably assure the appearance of the person as required and the
safety of any other person and the community. These include the
nature and circumstances of the offense charged, including whether
the offense involves a narcotic drug; the weight of the evidence
-14- against the person; the history and characteristics of the person,
including the person's character, 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 the nature and seriousness of the danger to any
person or the community that would be posed by the person's
release.
After reviewing the evidence as a whole, we conclude that the
decision of the district court simply is not supported by the
proceedings below. We can only assume that implicit in the
district court's order is the finding that Guerra and Rueben have
overcome the presumption that they are flight risks or a danger to
the community. It is a finding that is unsupported. First, Guerra
and Rueben have not rebutted the presumption that they are flight
risks. Their alleged family ties was hardly more than a reflection
of the drug conspiracy itself. It is certainly not the sort of
family ties from which we can infer that a defendant is so deeply
committed and personally attached that he cannot be driven from it
by the threat of a long prison sentence. Moreover, the fact that
one owns a house is not compelling as a tie to the community when
its loss through forfeiture is a possibility because of its use in
drug trafficking. Similarly, a job is meaningless as an indicator
of future appearances before the court when it is directly
-15- connected to drug trafficking. Additionally, neither of these
witnesses presented any testimony to rebut the government's strong
case against them. In short, Guerra and Rueben have introduced no
evidence to support their position that their appearance at trial
can be reasonably assured. Accordingly, they have not rebutted
the presumption that they are flight risks and that no condition or
combination of conditions will reasonably assure their appearance
at trial.
Guerra and Rueben have likewise not rebutted the presumption
that they are a danger to the community. The government presented
substantial evidence to show that Guerra and Rueben have
continuously engaged in the trafficking of drugs for several years,
including while being on parole or shortly after being released
from parole. Guerra and Rueben, on the other hand, have presented
absolutely no evidence whatsoever to indicate that they will not
continue to engage in drug trafficking if released on bail pending
trial. Guerra and Rueben have therefore not overcome the
presumption that they constitute a danger to the community.
V
We conclude that the district court erred in revoking the
pretrial detention order for Guerra and Rueben. The district
court's decision to revoke the detention order and issue conditions
of release for Guerra and Rueben is not supported by the
proceedings below. The evidence as a whole does not support the
conclusion that Guerra and Rueben are neither a flight risk nor a
-16- danger to the community. We therefore reverse and vacate the order
of the district court.
REVERSED and VACATED.
-17-