U.S. v. Mercedes

• Decision Date: 09 April 2001
• Docket Number: Docket No. 01-1105
• Citation: 254 F.3d 433
• Parties: (2nd Cir. 2001) UNITED STATES OF AMERICA, Appellant, v. MIGUEL MERCEDES, ELYNSON MATOS, aka "Tony," MIGUEL CARO, ROGELIN FLORIAN, BOBBY MALDANADO, Defendants. ALBERT RIOS, DANIELLE BAUTISTA, ROBERTO ROMAN, Defendants-Appellees. August Term 2000 Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 433

254 F.3d 433 (2nd Cir. 2001)

UNITED STATES OF AMERICA, Appellant, v. MIGUEL MERCEDES, ELYNSON MATOS, aka "Tony," MIGUEL CARO, ROGELIN FLORIAN, BOBBY MALDANADO, Defendants.

ALBERT RIOS, DANIELLE BAUTISTA, ROBERTO ROMAN, Defendants-Appellees.

Docket No. 01-1105

August Term 2000

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: April 9, 2001

Decided: June 27, 2001

Appeal from an order of the United States District Court for the Eastern District of New York (Garaufis, J.), releasing the defendants-appellees on bail.

REVERSED.

DWIGHT C. HOLTON, Assistant United States Attorney (Loretta E. Lynch, United States Attorney for the Eastern District of New York, Emily Berger, Assistant United States Attorney, on the brief) Brooklyn, N.Y., for Appellant NEIL B. CHECKMAN, Esq., New York, N.Y., for Defendant-Appellee Roberto Roman,

ALLEN LASHLEY, Esq., Brooklyn, N.Y., for Defendant-Appellee Albert Rios,

DAVID H. WEISS, Esq., New York, N.Y., for Defendant-Appellee Danielle Bautista.

Before: WALKER, Chief Judge, McLAUGHLIN and SOTOMAYOR, Circuit Judges.

PER CURIAM:

The United States appeals from a February 23, 2001 order of the United States District Court for the Eastern District of New York (Nicholas G. Garaufis, Judge), affirming Magistrate Judge Robert Levy's release of Roberto Roman, Danielle Bautista, and Albert Rios on bail pending trial. On February 8, 2001, the defendants-appellees were arrested for conspiracy to commit armed robbery in violation of 18 U.S.C. § 1951, and possession of a weapon in connection with that offense in violation of 18 U.S.C. § 924(c). Magistrate Judge Levy ordered Roman, Bautista, and Rios released on $200,000 bonds secured by cash deposits of $15,000, $10,000 and $5,000, respectively. On March 6, 2001, we granted the government's motion to stay the release order pending resolution of this appeal. The government contends that the appellees failed to present sufficient evidence to rebut the statutory presumption favoring detention that arises in this case. See 18 U.S.C. § 3142(e). We review the district court's decision granting release on bail pending appeal for clear error. See United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985). We now reverse.

BACKGROUND

On February 8, 2001, the three defendants-appellees were arrested as part of a government sting operation targeting a violent gang led by co-defendant Elynson Matos, who is not a party to this appeal. According to the government, a confidential informant proposed that Matos and his crew hijack a shipment of drugs and split the proceeds. The government asserts that at trial, it will prove that Matos accepted the proposal and assembled several men, including the defendants-appellees, to complete the operation. According to the confidential informant, Matos planned to accomplish the robbery by using a crew of people, several of whom would pose as law enforcement officers. During a taped meeting between Matos and the informant, Matos explained that his cousin could sell the drugs after they had been stolen. On February 8, agents of the U.S. Drug Enforcement Agency ("DEA") established surveillance at Matos's residence, and at the appointed location for the robbery in Brooklyn. The surveillance agents saw eight men leave Matos's residence in three separate cars, after the informant called with the location of the robbery target, and saw them drive by the appointed place looking for the van that was supposed to be highjacked. After they drove repeatedly past this location, DEA agents arrested the defendants. Bautista was driving one of the cars. Rios was driving another, in which Roman was a passenger, and in which agents found several loaded guns, two law enforcement badges, and a pair of handcuffs.

Pre-Trial Services ["PTS"] recommended that Roman and Bautista be detained pending trial, but that Rios be released on "substantial bond."

DISCUSSION

The government contends that the district court erred in granting release pending appeal to the appellees, because they failed to present sufficient evidence to rebut the statutory presumption favoring detention. We agree, and find that the government met its burden of proving that all three appellees pose either a danger to the community or flight risk, or both.

Because the appellees have been indicted for violating 18 U.S.C. § 924(c), a statutory presumption in favor of detention arises that "no 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). In a presumption case such as this, a defendant bears a limited burden of production -- not a burden of persuasion -- to rebut that presumption by coming forward with evidence that he does not pose a danger to the community or a risk of flight. See United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir. 1991) (presumption of dangerousness); United States v. Martir, 782 F.2d 1141, 1144 (2d Cir. 1986) (presumption of risk of flight); Chimurenga, 760 F.2d at 405. Once a defendant has met his burden of production relating to these two factors, the presumption favoring release does not disappear entirely, but remains a factor to be considered among those weighed by the district court. See Martir, 782 F.2d at 1144.

Even in a presumption case, the government retains the ultimate burden of persuasion by clear and convincing evidence that the defendant presents a danger to the community. See Rodriguez, 950 F.2d at 88. The government retains the ultimate burden of persuasion by the lesser standard of a preponderance of the evidence that the defendant presents a risk of flight. See Martir, 782 F.2d at 1146; Chimurenga, 760 F.2d at 405-06.

To determine whether the presumptions of dangerousness and flight are rebutted, the district court considers:

(1) the nature and circumstances of the crime charged;

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

(3) the history and characteristics of the defendant, including family ties, employment, community ties, past conduct;

(4) the nature and seriousness of the danger to the community or to an individual.

See 18 U.S.C. § 3142(g).

We address each defendant in turn.

I. Roman

The district court found that the government failed to meet its burden of proving Roman a danger to the community given his consent to electronic monitoring and other bail conditions. It also found that the government failed to meet its burden of demonstrating that Roman was a substantial flight risk, given his U.S. citizenship. The government contends that Roman came forward with no evidence whatsoever to rebut the statutory presumption favoring detention. Moreover, the government asserts broadly that any showing of strong community ties, a substantial bond, or electronic monitoring cannot rebut the presumption of dangerousness, though it may be relevant to the issue of flight risk.

We agree with the government that these factors cannot outweigh the presumption of dangerousness in this case, and reverse the order granting Roman's release. We need not address the broader question of whether these showings can ever rebut the presumption of dangerousness.

We have expressly held in several cases that a bail package that might "reasonably assure the appearance of [the defendant] at trial, will not reasonably assure the safety of the community." Rodgriguez, 950 F.2d at 89; see also United States v. Orena, 986 F.2d 628, 632 (2d Cir. 1993) (reversing grant of bail to defendants indicted on RICO charges based upon murder, conspiracy to murder, loansharking, and illegal weapons possession, and holding that electronic monitoring, house arrest and interactions limited to family would not "alleviate [Amato's]...