U.S. v. Santiago-Méndez, Criminal No. 07-346 (DRD).

• Citation: 599 F.Supp.2d 95
• Decision Date: 30 January 2009
• Docket Number: Criminal No. 07-346 (DRD).
• Parties: UNITED STATES of America, Plaintiff, v. [2] Pascual SANTIAGO-MÉNDEZ, [3] Anthony Domínguez-Cólon [4] Victor Cortes-Cabán [5] Luis Ruperto-Torres, Defendants.
• Court: U.S. District Court — District of Puerto Rico

599 F.Supp.2d 95

UNITED STATES of America, Plaintiff, v. [2] Pascual SANTIAGO-MÉNDEZ, [3] Anthony Domínguez-Cólon [4] Victor Cortes-Cabán [5] Luis Ruperto-Torres, Defendants.

Criminal No. 07-346 (DRD).

United States District Court, D. Puerto Rico.

January 30, 2009.

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Scott H. Anderson, United States Attorney's Office, San Juan, PR, for Plaintiff.

Lydia Lizarribar-Buxo, Lizarribar Masini Law Office, San Juan, PR, Ernesto Hernandez-Milan, Ernesto Hernandez Law Office, San Juan, PR, Johnny Rivera-Gonzalez, Carlos A. Vazquez-Alvarez, Julio Cesar Alejandro-Serrano, Nicolas Nogueras-Cartagena, Nicolas Nogueras Law Offices, San Juan, PR, Ramon Garcia-Garcia, Santurce, PR, Jorge E. Vega Pacheco Law Office, Rio Piedras, PR, Joseph C. Laws, Joannie Plaza-Martinez, Victor J. Gonzalez-Bothwell, Federal Public Defender's Office, Hato Rey, PR, for Defendants.

AMENDED ORDER DENYING BAIL

DANIEL R. DOMINGUEZ, District Judge.

Pending before the court is a barrage of emergency motions requesting reconsideration of the bail request denied by the court on the afternoon of the verdict on December 19, 2008.

FACTUAL AND PROCEDURAL BACKGROUND

Co-defendants [2] Pascual Santiago-Méndez, [3] Anthony Domínguez-Colón, [4] Victor Cortes-Cabán, and [5] Luis Ruperto-Torres were all found guilty of Count One of the indictment charging a violation of civil rights under 18 U.S.C. 241 consisting of the deprivation of enjoyment of rights secured by citizens to be free from injury, oppression, threats, and intimidation in the free exercise of rights secured to them by the United States Constitution. The specific rights constituted "unreasonable search and seizure by one acting under color of law (co-defendants acting as policemen) to be free from being detained and arrested based on fabricated evidence (the planting of drugs by police officers) and "[t]he right not to be deprived of liberty without due process of law, which includes the right not to have false evidence (planting of drugs presented against them, citizens of the town of Mayaguez) by one acting under color of law." (Indictment Docket 3, id.)

Co-defendants [2] Pascual Santiago Méndez, [3] Anthony Domínguez Colón, [4] Víctor Cortes Cab × n, and [ ] Luis Ruperto Torres were found also guilty of Count Two which was a conspiracy to possess with intent to distribute controlled substances (marihuana, cocaine, cocaine base and heroin) of sufficient amount found by the jury warranting a jail sentence of at least five years and up to a maximum of forty years.¹ A black box containing all varieties of drugs was regularly located at the offices of codefendant [2] Pascual Santiago Méndez in a file cabinet under his control which was temporarily transferred in his absence to the work desk of [6] Luis Vélez Class. The object of the conspiracy was "to possess with intent to distribute controlled substances (to be used) in the fabrication of cases in the Commonwealth of Puerto Rico." Co-defendant Luis Ruperto Torres was found innocent of the narcotics' conspiracy, Count No. 2.²

The court was not originally convinced on the afternoon of the verdict that the defendants charged under the civil rights violations produced "clear and convincing evidence" that they were not a danger to the community, the presumption of detention prevailing over the individual proffers of the defendants made by their respective counsel. As to the defendants found guilty as to the drug conspiracy, all co-defendants except [5] Luis Ruperto Torres, the court found that they were a danger to the community, the presumption of danger to the community prevailing for a violation of a narcotic violation involving a sentence of ten or more years.

The pending motions are the following: "Emergency Motion Requesting Reconsideration of Bail Denial Pending Sentencing et al." filed by co-defendant [5] Luis Ruperto Torres, Docket No. 420; "Motion Requesting Bail Pending Sentence" filed by codefendant [2] Pascual Santiago Méndez, Docket No. 436; "Motion Requesting Codefendants Request for Bail and Hearing" filed by co-defendant Anthony Domínguez Colón, Docket No. 432; "Second Urgent Motion for Reconsideration and Bail" filed by co-defendant [5] Luis Ruperto Torres, Docket No. 440³; "Motion Joining Co-defendants Request for Bail and Hearing" filed by co-defendant [4] Víctor Cortes Caban, Docket No. 442. The court held a hearing after the court re-opened after the holidays on December 29, 2008. (D. 452.)

Co-defendant [5] Luis Ruperto Torres in his original motion alleges that because he was found innocent as to the drug count, the same conclusion must follow in the second count. He thus alleges an inconsistent verdict resolution. The court disagrees based on jurisprudence set forth by the Supreme Court. (See discussion infra.)

Co-defendant [5] Luis Ruperto Torres further alleges that he is the father of five children ranging between the ages of 27 to 7 years and raising two children of his current wife, ages 10 and 7 years old. He has no prior record and has been a policeman for seventeen (17) years with a clear record, promoted to Sargent, now married to a policewoman. He allegedly complies with the criteria of not likely to flee and not posing a danger to the community. Further, it is alleged, that he is no longer a member of the police and unlikely to continue his conduct. He is not likely to flee because the maximum sentence is only 10 years and his guideline sentence is not "more than three years." (Docket No. 420 p. 5.)⁴ Defendant emphasizes the necessity of the children being with their father in Christmas Season for the well being of his family ties. Defendant moves the court for more stringent conditions of release in substitution of imprisonment. Defendant further alleges that he has a strong case of dismissal under Rule 29. The court agrees that the proper standard is the case of United States v. Bayko, 774 F.2d 516, 522-523 (1st Cir.1985). But the issue in the court's opinion is first one of sufficiency of evidence which the court discusses on a defendant to defendant basis infra. Defendant further alleges that no overt charges were charged nor proven as to [5] Luis Ruperto Torres "review[ing] and approv[ing] false statements." Docket No. 420, p. 8. But, the issue is not whether defendant actually incurred in a specific substantive conduct of the conspiracy; the issue is if he participated in the "plan to violate civil rights." Defendant's counsel also avers that defendant is not a danger to the community because he is no longer a member of the police force, and, hence, is impeded from continuing with the fabrication of evidence. But defendant does not account for the presumption of danger to the community created by the conviction, discussed infra nor the potential danger to the three co-defendants who testified against all co-defendants who faced the criminal charges. (See discussion infra.) Finally, defendant [5] Luis Ruperto Torres alleges that he has no proclivity "to violate the civil rights of citizens." His admissions in the video, Ex. 11, indicate the contrary (see discussion infra). (Docket No. 420 p. 9.) He therefore requests bail.

Co-defendant [2] Pascual Santiago-Méndez request bond on the hearing date following the bail relief of co-defendant [5] Luis Ruperto Torres and requests to join. (Docket No. 436.) Co-defendant [3] Anthony Domínguez-Colón joins the request for bail of other co-defendants at Docket No. 437. Co-defendant Domínguez accepts that he made a threat to cooperator co-defendant [7] Josue Bosques-Muñiz but that Bosques-Muñiz never felt threatened. Further, Domínguez and his wife received various phone calls afterwards from Bosques Muñiz offering help as to the trial. The wife of Domínguez testified that all the phone calls occurred before Josue Bosques-Muñiz became known as a testimonial cooperator with the government. Codefendant Domínguez-Colón alleges that he is neither a flight risk nor a danger to the community. Co-defendant Domínguez further urges the imposition of other more stringent bail conditions instead of detention. He urges bail considering his compliance with prior court bail conditions.

Co-defendant [4] Cortes-Caban filed a motion entitled "Motion Joining Co-defendants Request for Bail and Hearing," Docket No. 442. Co-defendant Cortes-Caban avers that by "clear and convincing evidence" the court has authority to determine that defendant is not a flight risk nor a danger to the community. Defendant avers that "he is not likely to flee nor does he pose a danger to anyone." (Docket No. 442, p. 1). He further urges the court to impose more stringent conditions including increasing the money guarantee and including a family member as a third party custodian. He also alleges that he has faithfully complied with all bond obligations during the last year and hence "there is no reason he will not [continue] to comply." (Docket No. 442 p. 2.)

The United States filed a timely opposition to the motions for the release of all defendants at Docket No. 445. The United States first stresses the court as to the guidelines calculations proposed by co-defendant Ruperto Torres that the calculation made by defense counsel at Docket No. 420 are understated. Notwithstanding not including any potential role in the offense, yield an adjusted offense level of twenty-three (23) points meaning a potential sentence of 43 to 57 months.⁵ Further, all appearing defendants, except Luis Ruperto Torres, were found guilty as to Count Two, the drug conspiracy charge (possession with intent to distribute) are facing a statutory minimum of five years and a maximum of forty years. The United States reiterates that pursuant to 18 U.S.C. 3143 the defendants are presumed to be detained except if they prove by "clear and convincing evidence" that they are not to flee nor a danger to the community. The...