USCA1 Opinion
April 22, 1992 [NOT FOR PUBLICATION]
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No. 92-1068
UNITED STATES,
Appellee,
v.
VINCENT "MICKEY" HURLEY,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Selya, Circuit Judges.
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Frederick G. Cass, on brief for appellant.
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Lincoln C. Almond, United States Attorney, James H. Leavey
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and Margaret E. Curran, Assistant United States Attorneys, on
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brief for appellee.
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Per Curiam. A 152-count indictment returned in November
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1991 charges thirteen persons with various offenses in
connection with an alleged international money-laundering
scheme. Vincent Hurley, one of the named defendants, here
appeals from a district court order under 18 U.S.C. 3142(e)
directing that he be detained pending trial due to risk of
flight. We find that the government has sustained its burden
of establishing by a preponderance of the evidence that no
conditions of release will reasonably assure Hurley's
appearance at trial. We therefore affirm.
The indictment, returned in Rhode Island federal court,
charges Hurley with one count of RICO conspiracy, 18 U.S.C.
1962(d), four counts of failure to file Currency Transaction
Reports, 31 U.S.C. 5324(1), three counts of structuring
violations, id. 5324(3), and two counts of Travel Act
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offenses, 18 U.S.C. 1952(a)(3). On December 2, 1991, a
magistrate-judge (magistrate) held a detention hearing and
ordered that Hurley be detained because of risk of flight.
Three weeks later, the magistrate granted Hurley's motion for
reconsideration and ordered his release under stringent
conditions, including full surety of $400,000 and a nightly
curfew. The district court, in turn, reimposed detention
following a de novo hearing on December 30, 1991, and this
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appeal ensued.1 We undertake an independent review of the
detention order, tempered by deference to the district
court's determinations, particularly its factual findings.
See, e.g., United States v. Patriarca, 948 F.2d 789, 791 (1st
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Cir. 1991); United States v. Tortora, 922 F.2d 880, 882-83
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(1st Cir. 1990).
The evidence below2 showed that Hurley was involved in
an organization which laundered hundreds of millions of
dollars of drug proceeds for Colombian drug cartels. The
organization, which was headed by codefendant Stephen
Saccoccia, functioned on a commission basis; it had no
involvement in the underlying drug activity itself. The
scheme operated, in the main, as follows. Large volumes of
cash would be delivered by courier to Saccoccia in New York
City. In accordance with faxed instructions, much of the cash
would then be shipped, by armored car or private vehicle, to
either of two companies owned by Saccoccia in Cranston, Rhode
Island: Trend Precious Metals (Trend) and Saccoccia Coin
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1. David Izzi, one of Hurley's codefendants, filed a
companion appeal from a similar detention order but later
opted for voluntary dismissal. Consideration of the instant
appeal has been delayed in part by the fact that Hurley first
requested leave to file a supplemental brief and then
withdrew that request.
2. No testimony was heard; both sides relied on affidavits
and oral proffers. The affidavits consisted of those
submitted by government agents in support of search warrants
and orders for electronic surveillance, and those submitted
by friends and relatives of Hurley.
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Company. These two companies together constituted the
headquarters for the Rhode Island branch of the organization.
In 1990 and early 1991, such shipments occurred almost daily
and would typically contain hundreds of thousands of dollars
in small denominations. Once in Rhode Island, the money
would be counted on an automatic counting machine and sorted.
Pursuant to Saccoccia's instructions, it would then be taken
to area banks and used to purchase cashier's or treasurer's
checks. These transactions were frequently "structured" so
that the amounts were less than $10,000--a device designed to
avoid the filing of a Currency Transaction Report. On other
occasions, when the purchases exceeded that amount, the
defendants caused false reports (or no reports at all) to be
filed. The checks were made payable to Trend or other dummy
companies controlled by Saccoccia--businesses ostensibly
engaged in such trades as gold or jewelry that would be
expected to generate large quantities of cash.3 The checks
would be deposited in those companies' accounts, and the
funds later transferred to a central account maintained by
Trend at a Providence bank. The evidence shows that, between
January 1990 and April 1991, over $30 million was deposited
into this clearinghouse account in such a manner. From
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3. In March and April 1990, portions of the cash used to
purchase checks were segregated at random and dog-tested for
controlled substances. Each such test resulted in a positive
alert.
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there, the money would be wired to bank accounts in Colombia
and elsewhere.4
The indictment charges, and the district court found,
that Hurley helped to supervise the organization's Rhode
Island operations through his base at Saccoccia Coin Company-
-communicating frequently with Saccoccia, participating in
the receipt of cash, and overseeing its deposit into the
various bank accounts. In addition, there was evidence
showing the following. Hurley (who is described in one
affidavit as Saccoccia's brother-in-law) was present on
several occasions with him in New York when cash was
delivered. A search of Hurley's residence found $67,000 in
cash, numerous ounces of gold, and several firearms,
including a .44 magnum pistol. Intercepted conversations
revealed that Hurley, along with other defendants, routinely
used code words designed to make references to cash sound
like discussions of precious metals.5 He and the others
repeatedly spoke of security measures, such as obtaining
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4. Saccoccia also wired large sums of money to the Trend
account from Los Angeles and New York. In total, between
January 1990 and April 1991, approximately $137 million was
laundered through this central account. On April 2, 1991, the
Providence bank closed Trend's account, and Saccoccia set up
a new clearinghouse account in Los Angeles.
5. For example, "ounces" meant thousands of dollars.
"Karat" referred to the denomination of currency: e.g.,
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twenty karat meant twenty dollars. "High grade" and "low
grade" referred to high and low denomination currency,
respectively.
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cellular telephones in the belief that they were less
vulnerable to wiretapping. According to the government's
proffers, Hurley was overheard on November 26, 1990 agreeing
to "fence" $132,000 in gold that had been stolen in an armed
robbery earlier that day. He was overheard a month later
stating, "We're not coin dealers; we're fences." And he was
overheard threatening to "get" an IRS agent if that agent
bothered his mother or father.6
On his own behalf, Hurley presented evidence of
substantial ties to the community. He is 34-year-old native
and life-long resident of Rhode Island who has resided in
Cranston for the past two years. He has a four-year-old
daughter, for whom he pays monthly child support, and lives
with his girlfriend, to whom he is contemplating marriage.
His parents also live in Cranston; his father is a double-
amputee Korean War veteran. In addition, Hurley has no
criminal record. He claims to be indigent. While he
apparently owns no real estate himself, his parents and two
sisters have all agreed to post their houses as security.
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6. The district court downplayed the seriousness of this
threat and did not base the detention order on the ground of
dangerousness. The government has not argued in favor of
detaining Hurley on this basis, either below or on appeal.
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And he states that, if released on bail, he could find
employment as a trailer salesperson or apprentice plumber.7
We agree with the district court that, notwithstanding
these "admittedly significant" factors, the government has
sustained its burden of proving by a preponderance of the
evidence that no conditions of release would reasonably
assure Hurley's appearance at trial. Even substantial
community ties can be outweighed by strong countervailing
evidence of risk of flight. See, e.g., United States v.
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Palmer-Contreras, 835 F.2d 15 (1st Cir. 1987) (per curiam).
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We think such evidence exists here. Hurley concedes that he
faces a potential prison term in excess of fifteen years.
Based on the present record, the evidence against him--
consisting largely of intercepted oral communications--would
appear to be strong. Together, these factors provide a
considerable incentive to flee. And from the nature of the
organization and Hurley's role in it, the inference is
compelling that he likely has access to the financial
resources and international contacts that would provide him
with the means to flee and thereafter to absorb the cost of
any security that is forfeited by relatives or friends. I n
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7. Hurley also proffers (1) that the weapons found in his
home (including the .44 magnum) were used for hunting, (2)
that he brought the cash and gold home from the Saccoccia
Coin Company because the security system had recently been
tampered with, and (3) that the "we're fences" comment was
nothing more than sarcasm.
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addressing this latter consideration, the district court
deemed relevant--at least by analogy--the congressional
findings giving rise to the rebuttable presumption of flight
created by 18 U.S.C. 3142(e) as to major drug offenders.8
Hurley on appeal claims that such reliance was error. Yet
the district court did not purport to apply the presumption
itself (recognizing that Hurley had not been charged with any
offense to which it applies). Rather, it simply noted that
the same policy considerations underlying the statutory
presumption were applicable here. As another court has
explained:
"[M]oney laundering" is an integral part of the
narcotics business. The same factors which create
an unusually high risk of flight in narcotics
offenses and which form the basis for the statutory
presumption are present here--the business is
extremely lucrative and those involved have
established substantial ties outside the United
States. Thus, persons involved in money
laundering, just as those involved in narcotics
trafficking, have the resources and foreign
contacts to escape to other countries to avoid
prosecution.
United States v. Botero, 604 F. Supp. 1028, 1033 (S.D. Fla.
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1985), aff'd mem. 853 F.2d 928 (11th Cir. 1988). Whether a
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8. See, e.g., United States v. Jessup, 757 F.2d 378, 384
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(1st Cir. 1985) ("After hearing evidence, Congress concluded
that 'flight to avoid prosecution is particularly high among
persons charged with major drug offenses.' It found that
'drug traffickers often have established ties outside the
United States ... [and] have both the resources and foreign
contacts to escape to other countries ....'") (quoting S.
Rep. No. 225, 98th Cong., 1st Sess. 20 (1983), reprinted in
1984 U.S.C.C.A.N. 3203) (citation omitted).
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person accused of money laundering can be presumed, in the
absence of any direct evidence thereof, to have access to
such "resources and foreign contacts" is a question we need
not decide. For that is not what occurred here. Rather, the
organization's close links to Colombian drug cartels and the
ready availability of large sums of cash were both
established by direct evidence--evidence which Hurley has not
attempted to dispute.
Hurley also contends that the district court erred in
finding that he played a supervisory role in the
organization's Cranston, Rhode Island operations. Based on
the evidence presented, we agree that he was not the ranking
person in the local hierarchy; that role appears to have been
filled by codefendant David Izzi. It is also true that
Hurley appears not to have conducted any of the actual bank
transactions himself.9 We are not persuaded, however, by his
argument that his rank in the organization was no higher than
that of other defendants who have been released on bail. To
the contrary, as the government argued and the district court
implicitly found, Hurley appears to have been second-in-
command in Rhode Island. Among other evidence, his nearly-
daily conversations with Saccoccia (and Izzi) and his
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9. Exhibit A to the indictment lists hundreds of check
purchases and, in each instance, identifies both the
individual conducting the transaction and the business
designated as "payee." Hurley's name, and that of the
Saccoccia Coin Company, do not appear in this listing.
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occasional visits with Saccoccia in New York warrant a
finding that he played a supervisory role--receiving and
implementing instructions from Saccoccia and overseeing the
receipt and subsequent disposition of the drug proceeds.
Given the organization's access to large sums of money and
foreign contacts, a substantial risk of flight might be
deemed present even with respect to someone lower in the
hierarchy. Cf. United States v. Dillon, 938 F.2d 1412, 1416-
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17 (1st Cir. 1991) (per curiam) (applying presumption to
uphold pretrial detention of individual with strong local
ties who participated only marginally in attempted drug
purchase); Palmer-Contreras, 835 F.2d at 18 (same; defendants
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served as "mules" in drug importation scheme). Here, in
light of Hurley's supervisory position and the other factors
recited above, we think the district court's determination
was well warranted.
Finally, Hurley advances a pair of arguments challenging
the constitutionality of his detention on the ground that
pretrial proceedings are likely to be protracted. We are
told that Saccoccia and his wife (who is also a defendant)
were arrested in Switzerland and are fighting extradition;
trial must await resolution of that matter. Furthermore, the
government's evidence in this case includes over 1600 hours
of tape recordings and over 5000 pages of handwritten logs
summarizing the contents thereof, all of which must be
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scrutinized by the defendants. Hurley first argues that, in
light of these circumstances, his pretrial detention is
likely to be so extended as to violate due process, such that
he should now be released. We rejected an identical argument
in Tortora:
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At this stage of the proceedings, Tortora's
pretrial incarceration has not been so protracted
as to support a due process claim. Because the
duration of further immurement is still
speculative, consideration of whether an
appreciably longer incarcerative period would
constitute a violation of constitutional or
statutory law in Tortora's case is presently
unripe.
922 F.2d at 889 (citations and footnote omitted). Tortora
had been held "for more than half a year," id., at the time
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of that decision--longer than Hurley has been detained here.
Hurley attempts to distinguish Tortora on the ground that,
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whereas he is being held due to risk of flight, Tortora was
held because of dangerousness. Yet he fails to explain, and
we fail to see, how this distinction makes any difference for
purposes of a due process analysis.
Hurley's second argument is that his continued detention
will prevent him from reviewing the tapes and logs with his
counsel, thereby violating the Sixth Amendment. As a basis
for revoking the order of detention, this argument falls well
short. Hurley, however, has a right to listen to the tapes
and review the logs in the company of his attorney. See,
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e.g., Dillon, 938 F.2d at 1417 (noting that appellant was to
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be afforded "reasonable opportunity" for private
consultations with his attorney). If suitable arrangements
cannot be made at the institution where Hurley is currently
detained, it may well be desirable for the parties and the
district court to work together to fashion some other
alternative. See 18 U.S.C. 3142(i) ("The judicial officer
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may, by subsequent order, permit the temporary release of the
person, in the custody of a United States marshal or another
appropriate person, to the extent that the judicial officer
determines such release to be necessary for preparation of
the person's defense or for another compelling reason.") We
need not, however, address the matter further at this
juncture, as no particular issue in this regard is before us.
The order of detention is affirmed.
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