USCA1 Opinion

September 1, 1992
[NOT FOR PUBLICATION]

___________________
No. 92-1837
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
LUIS ERNESTO IGLESIAS-BENITEZ,
Defendant, Appellant.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
___________________
___________________
Before

Torruella, Cyr and Stahl,

Circuit Judges.
______________
___________________

Luis Rafael Rivera on brief for appellant.

__________________
Daniel F. Lopez Romo, United States Attorney, Jose A. Quiles
____________________
______________
Espinosa, Senior Litigation Counsel, and Rosa Emilia Rodriguez
________
______________________
Velez, Assistant United States Attorney, on brief for appellee.
_____

__________________
Per Curiam.
__________
a

district

court

__________________
Luis Ernesto Iglesias Benitez appeals from
order

denial of bail pending

affirming

trial.

the

magistrate-judge's

For the reasons

that follow,

we affirm.
______
On May

6, 1992,

participating

in a

appellant was
broad-based

distribute multi-kilo

indicted on

conspiracy

to

quantities of heroin.

charges of
import

and

In particular,

defendant is charged in count two with agreeing to provide to

another
kilograms

defendant
of

$150,000

heroin

in

distributed in Puerto Rico.

in

for

Hong

purchase

Kong,

to

of
be

He is charged in

about

3.5

imported

and

count twelve,

combination with others, with transporting about $310,000

in

cash from the United States to a place outside the United

States in furtherance of drug trafficking.

And he is charged

in counts thirteen and fourteen with importing and possessing

with intent to distribute, over two kilograms of heroin.
On motion by the prosecution for detention without bail,
a

hearing was

1992.

held before

the magistrate-judge on

The magistrate-judge heard from

defense
proffered
release

counsel,
in

accepting

defendant's

on bail.

The

June 4,

both prosecution and

into

evidence

thirteen

page

the

testimony

cross-motion

magistrate-judge also

for

accepted into

evidence the Pretrial Services Report, ultimately adopting it

by reference in his opinion.1
____________________
1. Both parties accepted the procedure followed here without
objection and both relied on the Pretrial Services Report in
their arguments to the magistrate-judge and their briefs
here. The decision to rely on defendant's proffer, rather
than live testimony, was apparently based on the fact that
defendant's witnesses were unable to reach the courthouse due

Defendant is thirty years

and

father of

supports.

five

old, a native of

children, at

The witnesses

least

Puerto Rico

three of

he proffered included

whom

he

his mother,

brother-in-law,
common

law

magistrate

former common-law

wives.

This

as proof

of

Defendant has steady

apparently owns.
release which

evidence

and two

was

accepted

strong family

employment as

current
by

and community

a grocer in

the
ties.

a store

he

He proposed a variety of conditions for his

he claimed

would guarantee his

trial, including the posting of a

a limited form

wife

appearance at

$150,000 real estate bond,

of house arrest, supervision by

a custodian,

and the wearing of an electronic bracelet.

Defendant said that he had known for several weeks prior
to

his

arrest that

investigation
When
in

he

and was

was

target

planning to

of the

grand

surrender, but

jury

did not.

he was arrested, two weeks after the indictment, he was

possession

allegedly

of

his

explained

officials that he had

murdered

to

Drug

brother's

Enforcement

been given the gun

after his brother's death.

handgun.

He

Administration

by a third

In any event, defendant

person
did not

____________________
to inclement weather.
The hearing had previously been
postponed several times to allow defendant to obtain counsel
of his choice.
-3-

have a license for the gun and also faces charges for illegal
possession of a firearm.
In

addition

defendant

is

suspended

to

See 18 U.S.C.
___
the

currently

sentence

federal
on

for

922(g)(1).2
charges

probation
felony

against

from

violation

three-year
of

controlled-substances law (possession of marijuana).

recent state charge,

statutory rape of

defendant is

state
Another

a teenage girl,

dismissed when defendant acknowledged paternity

born to the victim.

him,

of the child

Finally, the prosecutor proffered

currently the subject of

was

that

a state investigation

into the murder of a former drug trafficker.

The

magistrate-judge

found

that

despite

defendant's

strong family and community ties and lengthy residence in the

community,

no condition

or combination

reasonably assure defendant's

the

community.

The district

of conditions

appearance and
court affirmed

the safety

will
of

the detention

order on June 19, 1992.

DISCUSSION
In pretrial detention cases we follow a special standard
of

review:

deference to

"independent review,

tempered

the determinations made below."

by a

degree of

United States
_____________

____________________
2. Defendant was indicted on July 22, 1992, for violation of
18 U.S.C.
922(g)(1) (unlawful for convicted felon to
knowingly receive a firearm which has been transported in
interstate commerce). The indictment identifies the handgun
as a .9mm Smith and Wesson semi-automatic pistol.
See note
___
3, infra.
_____
-4-

v.

Tortora, 922
_______

"respect

F.2d

... to the

880, 882

lower court's

using "an intermediate level

the

abuse-of-discretion

stopping short of

(1st Cir.

1990).

We give

factual determinations,"

of scrutiny, more rigorous than

or

clear-error

plenary or de novo
__ ____

standards,

review."

Id.
__

but

at 883;

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

government

bore the

burden

of

proving that

no

combination of conditions would reasonably assure defendant's

appearance

or the safety of the community.

Palmer-Contreras,
________________

835

F.2d

15,

17 (1st

United States v.
_____________
Cir.

1987)

(per

curiam). To meet

this burden the government was

offer clear and convincing

and

a preponderance

of

evidence to prove
the evidence

flight. See United States v.

___ _____________
(1st

Cir.

1991).

The

to

required to

dangerousness;

prove a

risk

of

Patriarca, 948 F.2d 789, 792-93

_________

grand

jury

indictment,

however,

facially established probable cause to believe that appellant

had committed an offense

for which a maximum penalty

of ten

years or more is prescribed in the Controlled Substances Act,

21 U.S.C.

801 et. seq. and the Controlled Substances Import

___ ____

and Export Act, 21 U.S.C.

v. Vargas,
______
rebuttable
combination

804

F.2d

157, 163

presumption
of

951 et. seq.

__ ___

arose

conditions

defendant's appearance

(1st

and "the

and the community." 18 U.S.C.

United States
_____________

Cir. 1986).

that

will

See
___

no

Thus

"condition

reasonably
safety of any

assure"

a
or
the

other person

3142(e), (f).

-5-

Although defendant predicts that the

actual sentence he

stands

to receive under the Sentencing Guidelines will be as

short as eight years,

solely

the statutory presumption is triggered

by the seriousness and type of crime charged.

States v. Moss,
______
____
prediction
assigned

887 F.2d 333, 336-37 (1st Cir. 1989).

of

lesser

sentence

to the presumption, id.

__

magistrate-judge
"ethereal"

actually

that

affect

at 337, we

the

While
weight
______

agree with the

analysis

here

presumption's force.

prior state felony conviction,

is

too

Especially
defendant is

faced with a possible minimum term of twenty years'

_______

imprisonment. See 21 U.S.C.

___
Thus,
needed

may

defendant's

to diminish the

in light of his

United
______

to rebut

the

841(b)(1)(A)(i).
statutory

presumption,

defendant

"some evidence" to show that "what is true in general

is not true in

[his] particular case...."

United States v.
______________

Jessup, 757 F.2d 378, 384 (1st Cir. 1985).

______

The burden is one

of production, not persuasion.

presumption does not
retains
closely

F.2d

disappear entirely.

evidentiary weight,
defendant's

"paradigm."
at 383.

Id. at 380-81.
__

case

the

Palmer-Contreras, 835
________________
Its

dependent
the

F.2d at

remaining force is

the other relevant factors

Id. at
__

amount

resembles

in 18 U.S.C.

When met, the

383.

It

on

how

congressional
18; Jessup,
______

757

considered along with

3142(g).

Palmer-

_______
Contreras, 835 F.2d at 18; O'Brien, 895 F.2d at 815.
_________
_______
The evidence offeredby defendant did little to mitigate

-6-

the risk of danger that informs the presumption.

The charges

in

within

the

indictment

place

defendant

squarely

the

paradigm of a drug trafficker who has "both the resources and

foreign contacts

to escape to other

countries with relative

ease in order to avoid prosecution for offenses punishable by

lengthy prison
Congress,
Ad.

sentences".

2d Session at 20,

News at

3203.

Senate Report No.

98-225, 98th

reprinted in U.S.
____________

Code Cong. &

Defendant is

supply

large quantities

abroad

in connection

of cash

with

at least two continents.

visible

access

flight from prosecution.

several

years,

an

to finance

a multi-person

spanned

to other

charged with

agreeing to

drug purchases
conspiracy

that

In addition, defendant has

resources

which

might finance

He has owned a grocery business for

interest

in

real

estate,

several

automobiles, and
according to
Contreras,
_________

enjoys "a comfortable

the Pretrial Services Report.

835 F.2d

"mules" and had no

was

financial condition"

proper

organization

on

at

18 (although

Compare Palmer_______ _______

defendants were

individual means of their own,

risk-of-flight

for

which

grounds

they

worked

where

only

detention
narcotics

appeared

to

have

significant financial resources to assist their flight).

Although defendant presented
and

community ties,

faithful appearance
the

offered

evidence of strong

security, and

at all prior court

government's case

against

family

pointed to

his

and probation dates,

defendant is

strong and

he

-7-

faces potentially severe penalties.

In light of defendant's

means and the motive to flee, a preponderance of the evidence

supported

the

magistrate-judge's

presented a risk of flight.

F.2d

1412, 1416-17

decision

that

defendant

See United States v. Dillon, 938

___ _____________
______

(1st Cir.

1991) (court

denying bail on risk of flight grounds where

did not

err in

evidence showed

defendant's connection

to narcotics ring which

could absorb

loss of $200,000 worth of security).

Moreover,
presumption

defendant presented no

evidence to rebut the

that his release would pose a risk to the safety

of the community.

Congress has

made it clear that "the risk

that a defendant will continue

to engage in drug trafficking

constitutes" a danger to the community.

reprinted in U.S.C.C.A.N. at 3196.
____________
probation from
when he

was indicted

involved and
drug
and

one felony

convincing

released

329, 335 (4th

on the

convictions

incentives

inclination to remain

government intervention, there

See
___

that

he would

United States v.
_____________

continue to
fact that

and

narcotics crime

Given the monetary

Cir. 1985) (where finding

released, would
based

here.

evidence

on bail.

Defendant was already on

conviction for a

his demonstrated

trade despite

Senate Report at 13,

parole

defendant's possession of

-8-

were

he

Williams, 753 F.2d

________
that defendants, if
narcotics was

already done

supervision").
a gun

is clear

continue

be involved with

they had

in the

at the time

In

so "despite
addition,

of his

arrest

adds weight and immediacy to the government's contention that

he presented a danger to the community.3
Finally, defendant's possession of a firearm despite his
status as

a probationer,

and

his self-professed

knowledge

that he was a target of the instant investigation, manifest a

flagrant

disdain

circumstance
claimed

for

wholly

the

undermines

willingness to

submit

allegedly designed to assure

of

the conditions

and "can

flaw

which "takes

on

about

defendant

the

conditions

the

...

of

law.

of

This

defendant's

variety of

conditions

his appearance in court.

Most

on the

defendant's good

be too easily

circumvented," a

great significance
suggests

Tortora, 922 F.2d

_______
defendant

the

value

to a

proposed "hinge

faith compliance,"

forthcoming."

authority

that

where ...

good

faith

at 886-87.

proposed,

like the

little
will

be

In any event,
evidence

he

____________________
3. This conclusion is further buttressed by testimony given
at defendant's second
detention hearing, following his
indictment for possession of the firearm.
The magistratejudge's detention order there recites a government agent's
testimony that the gun was loaded when it, and additional
ammunition, were seized from defendant's control. Defendant
reportedly said he needed the gun because one Jose Alberto
Cosme had attempted to kill him.
The agent testified to
information that defendant is a suspect in the murder of Jose
Alberto Cosme, and currently holds "a strong control on
narcotic distribution" in a public housing project. Though
we rarely consider materials which were not presented to the
court directly below, both parties have referred to the
subsequent indictment in their briefs, the magistrate-judge's
opinion there is part of the court's records, and defendant

had an opportunity to rebut this evidence at the second

hearing. Tortora, 922 F.2d at 884 n.5; O'Brien, 895 F.2d at
_______
_______
814 & n.6; F.R.A.P. 9(a)(b). See United States v. Bayco, 774
___ _____________
_____
F.2d 516, 520 (1st Cir. 1985).
-9-

presented

of

correlation

strong
with

family

the

and community

question

of

the

ties,

has

"no

safety

of

the

community," Senate Report at 24, reprinted in U.S.C.C.A.N. at

____________
3207.
For the reasons stated,
conclude that
assure

no combination

defendant's

community.

there is sufficient evidence to

of conditions

appearance

and

the

The decision below is affirmed.

________

will reasonably
safety

of

the

-10-