U.S. v. Palmer-Contreras, PALMER-CONTRERAS and J

• Decision Date: 23 February 1988
• Docket Number: No. 87-1966,PALMER-CONTRERAS and J,87-1966
• Citation: 835 F.2d 15
• Parties: UNITED STATES, Appellee, v. Eligioose A. Casanova Ortiz, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 15

835 F.2d 15

UNITED STATES, Appellee, v. Eligio PALMER-CONTRERAS and Jose A. Casanova Ortiz Defendants, Appellants.

No. 87-1966.

United States Court of Appeals, First Circuit.

Submitted Dec. 7, 1987.

Decided Dec. 11, 1987.

Consideration In Banc Denied Feb. 23, 1988.

Luis F. Abreu Elias, Hato Rey, P.R., on brief, for defendants, appellants.

Salixto Medina-Malave, Asst. U.S. Atty., Santurce, P.R., Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., and Jorge L. Arroyo, Asst. U.S. Atty., San Juan, P.R., on brief, for appellee.

Before CAMPBELL, Chief Judge, COFFIN and SELYA, Circuit Judges.

PER CURIAM.

Defendants appeal from the denial of pretrial bail. We review the background.

At the detention hearing, Drug Enforcement Administration (DEA) agent Rodriguez testified as follows. Based on intelligence information provided by United States Customs, surveillance was conducted of a pier at Las Croabas, Fajardo, Puerto Rico. On October 1, 1987 at 11:15 p.m., a 23-foot boat was observed coming into port without navigational lights. Customs agents searched the vessel, finding radios of the sort used for communicating with planes and 195 kilos of cocaine. On a wholesale basis, the cocaine is worth $37,000 to $40,000 per kilo. Hence, there was over $7 million worth of cocaine on the boat. The two defendants were the only occupants of the boat. Defendants were given their Miranda warnings. They then stated that after failing to catch any fish, they had pulled up onto a beach and found burlap bags containing the cocaine. They decided to bring the bags back to the mainland in order to make a little money. Agent Rodriguez did not participate in the arrest or search. Hence, his testimony was based on information provided by customs agents.

Defendants presented six witnesses--their spouses, some neighbors, and friends--who provided the following information. Defendant Palmer has been married for seven years, has two children, and has lived his entire life in Puerto Rico. He has worked for the telephone company since at least 1975 and currently earns $1,200 per month. He owns no real estate or car, but his mother is willing to post her property, worth $40,000 or $50,000, to secure Palmer's release. Defendant Ortiz has been married for seven years, has three children aged five, three, and one, owns no real estate, and has never lived outside Puerto Rico. The family is supported by food stamps and defendant's upholstery business from which defendant earns sometimes $400 per month and sometimes nothing. An aunt is willing to post her property, worth $40,000 to $50,000, to secure defendant's release.

The magistrate concluded that defendants had adequately rebutted the presumption of dangerousness and flight imposed by 18 U.S.C. Sec. 3142(e), stating as follows:

"Defendants are both residents of Puerto Rico with all their family, employment and community ties to this jurisdiction. Neither defendant has ever left Puerto Rico or expressed any intention to do so. Defendants enjoy the reputation of being good neighbors and workers in their communities. Defendants' financial resources and other circumstances indicate that they were but minor players in this billion dollar narcotics game. No evidence of any criminal records or past history relating to narcotics trafficking or abuse was presented as to either of these defendants."

The magistrate set bail at $50,000 for each defendant, to be secured by real estate.

The magistrate's order entered on Friday, October 9, 1987. That afternoon, the government moved to stay the magistrate's release order. The court granted the stay and scheduled a hearing for ten days later, Monday, October 19, 1987. The stated reason for the delay was that the judge would be in Massachusetts attending the judicial conference scheduled for Tuesday, October 13 through Thursday, October 15, 1987. Attendance at the conference is required, unless excused by the chief judge of the circuit. 28 U.S.C. Sec. 333. At defendants' request, the detention hearing was rescheduled for October 21, 1987. A hearing was held that day, but no transcript of it has been provided to this court. Two days later (Friday, October 23, 1987), the judge signed a detention order. The order issued on October 27, 1987.

According to the detention order, the only new evidence submitted at the October 21, 1987 hearing were reports prepared by pretrial services which provided defendants' arrest histories. According to the detention order, Palmer's only prior contact with the law was an arrest for embezzlement which was not pursued. Defendant Ortiz was convicted of embezzlement, ¹ was placed on probation for six months in 1983, was found not guilty of receipt of stolen goods in 1984, and has been arrested or summoned for assault, possession of burglary tools, and attempted theft.

The district court disagreed with the magistrate and concluded no combination of conditions would reasonably assure defendants' appearances. It reasoned that in view of the planes, radios, and large amount of cocaine involved, defendants were involved in a major, sophisticated, international drug transaction. While defendants likely were but "mules" in the transaction, and while perhaps ordinarily a drug organization might be less likely to finance the flight of its mules, given the value of the cocaine, "nothing [was] assured." Furthermore, the weight of the evidence against defendants was great--they were caught red-handed and admitted possession--and the resources available to defendants to secure their release--the relatives' $50,000 real estate--were trivial in the context of the resources surrounding a multi-million dollar drug transaction.

The burden of establishing that no combination of conditions will reasonably assure a defendant's appearance for trial rests on the government. Where, as here, a defendant is charged with a controlled substance offense punishable by a maximum term of 10 years or more, the government is aided by Sec. 3142(e)'s rebuttable flight presumption. As we explained in United States v. Jessup, 757 F.2d 378, 380-86 (1st Cir.1985), this 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. Section 3142(e), however, only imposes a burden of production on a defendant. The burden of persuasion remains with the government. Nevertheless, even after a defendant has introduced some evidence to rebut the flight presumption, the presumption does not disappear, but rather retains evidentiary weight--the amount depending on how closely defendant's case resembles the congressional paradigm, Jessup, 757 F.2d at 387--to be considered along with all the other relevant factors.

Pointing to their strong family ties to Puerto Rico, their meager financial resources, the absence of any prior drug related arrests or convictions, and their minor roles as mules, defendants contend that the district court misapplied Sec. 3142(e)'s presumption and concluded that mere possession of drugs is sufficient ground for detention. We disagree with defendants' interpretation of the district court's detention order. This is no ordinary drug case. Rather, defendants were caught with 195 kilos of cocaine valued at $37,000 to $40,000 per kilo, that is to say, over $7 million worth of cocaine. The large amount of drugs supports the court's inference (for...