USCA1 Opinion
July 14, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No.94-1596
UNITED STATES,
Appellee,
v.
ALVARO MORENO, A/K/A ANDY,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon.Nathaniel M. Gorton, U.S. District Judge]
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Before
Torruella, Selya and Cyr,
Circuit Judges.
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Raymond E. Gillespie on Memorandum for appellant.
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Donald K. Stern, United States Attorney, and Michael J. Pelgro,
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Assistant United States Attorney on Memorandum for appellee.
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Per Curiam. Defendant Alvaro E. Moreno appeals
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from a second district court order affirming the magistrate-
judge's denial of bail pending trial. For the reasons that
follow, we affirm.
Moreno was arrested pursuant to a complaint
charging that he and three co-defendants conspired to
possess, and possessed, cocaine with intent to distribute, in
violation of 21 U.S.C. 841(a)(1), 846. After a
detention/probable cause hearing, Magistrate-Judge Collings
issued a detailed Memorandum and Order granting the
government's motion for detention under 18 U.S.C. 3142(f),
because "no condition or combination of conditions will
reasonably assure the appearance of the [defendant] as
required and the safety of any other person and the
community." Moreno filed two subsequent motions for release
on conditions. The first was denied without prejudice by
District Judge Zobel. Thereafter an indictment issued
against Moreno and five others, charging Moreno with
distribution of five or more kilograms of cocaine in
violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2, in
addition to conspiracy to distribute, and to possess with
intent to distribute. Moreno then filed his second motion
for release, which was denied by Judge Gorton.
The evidence at the detention/probable cause
hearing included a videotape which showed Moreno and a co-
defendant negotiating the sale of five kilograms of cocaine
to an undercover agent. Moreno's statements on the tape
indicated that he was able to routinely arrange for the
interstate delivery of up to twenty kilograms of cocaine at
one time. He expressed general familiarity with the
mechanics of illegal cocaine trafficking, including the
comparative prices of the drug in various cities, and the
identity of sources. He also made statements to the effect
that he was planning a trip to Colombia to obtain heroin for
illegal sale in the United States. Other evidence at the
hearing tended to show that Moreno had participated in an
earlier sale of one kilogram of cocaine, and that multi-
kilogram quantities of the drug had been picked up and
delivered from his residence.
Moreno is a native of Colombia and possesses a
Colombian passport. His mother and siblings reside in
Colombia. He entered the United States illegally in 1981,
was granted amnesty, and has been a lawful permanent resident
since July, 1989. He maintains a familial relationship in
Massachusetts with his girlfriend and two children (ages 10
and 7). At the time of the hearing in February, 1994, he had
been employed by a paving company for several years, but was
temporarily laid off due to bad weather. He offered a work
history dating back to 1982, and several letters stating that
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he is viewed as a responsible worker and a person of good
character.
It appears that after the arrest of a co-defendant,
Moreno fled briefly to Canada. He returned within a week for
the ostensible purpose of facing the charges against him. He
was arrested at Chelsea District Court where he had gone to
clear an unrelated default.
In pretrial detention cases we undertake an
"independent review, tempered by a degree of deference to the
determinations made below." United States v. Tortora, 922
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F.2d 880, 882 (1st Cir. 1990). With due respect to the lower
court's factual determinations, we use "an intermediate level
of scrutiny, more rigorous than the abuse-of-discretion or
clear-error standards, but stopping short of plenary or de
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novo review." Tortora, 922 F.2d at 883; United States v.
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O'Brien, 895 F.2d 810, 814 (1st Cir. 1990). There must be
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clear and convincing evidence that the defendant's release
poses a risk of danger to the community; and a preponderance
of the evidence that there is a risk of flight. See United
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States v. Patriarca, 948 F.2d 789, 792-93 (1st Cir. 1991).
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Where, as here, there is probable cause to believe
that the defendant committed a controlled substances offense
punishable by a maximum term of imprisonment of ten years or
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more,1 the government is aided by the statutory presumption
that no conditions will assure the defendant's appearance nor
the safety of the community. See 18 U.S.C. 3142(e).
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The presumption reflects Congress's findings that drug
traffickers often have the resources and foreign contacts to
escape to other countries, as well as strong incentives to
continue in the drug trade. See United States v. Palmer-
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Contreras, 835 F.2d 15, 17 (1st Cir. 1987) (presumption of
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risk of flight); United States v. Williams, 753 F.2d 329, 335
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(4th Cir. 1985) (presumption of pretrial recidivism). When a
defendant offers evidence in rebuttal, the presumption does
not disappear, but "retains evidentiary weight -- the amount
dependent on how closely defendant's case resembles the
congressional paradigm." Palmer-Contreras, 835 F.2d at 18.
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The presumption is then considered along with the other
relevant factors outlined in 18 U.S.C. 3142(g). Palmer-
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Contreras, 835 F.2d at 18.
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We agree with the magistrate that the government
made a strong showing that Moreno posed a danger to the
community and a risk of flight. The evidence of Moreno's
willingness and ability to deliver large quantities of
illegal drugs, his family and other connections in Colombia,
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1. Probable cause for the arrest was established by the
evidence at the hearing, a finding which defendant does not
challenge. The grand jury indictment, too, facially
established probable cause. See United States v. Vargas, 804
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F.2d 157, 163 (1st Cir. 1986).
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and his pre-arrest flight to Canada, all reflect a close
match to the congressional paradigm of a defendant with the
resources and foreign contacts to escape to other countries,
and the financial incentive to continue in the drug trade.
The magistrate persuasively reasoned that Moreno's proof of
family ties and employment in Massachusetts was insufficient
to rebut this strong presumption, especially considering the
other relevant factors: the gravity of the offense charged,2
the weight of the evidence against Moreno, and the
possibility of his deportation upon conviction.
At the hearing before the magistrate, and in his
first motion for release, Moreno offered no rebuttal to the
presumption of dangerousness raised by evidence of his
ability to deal in large quantities of drugs. In his second
motion for release, however, Moreno offered his own affidavit
stating that he had merely "pose[d] as a Colombian drug
dealer" and a "big shot," as a favor to one of his co-
defendants. Moreno argued that if released he would be too
busy to engage in illegal activities, pointing to two current
job offers and volunteer work at his church. He proffered as
conditions, $1,000 cash security, and a third-party
custodianship by his girlfriend or a co-worker. The district
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2. The magistrate stated that Moreno faced a minimum
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mandatory sentence of five years' imprisonment. The
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government argues here that the minimum mandatory is even
higher, at ten years.
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court summarily rejected the motion. We see no error in
light of the very strong presumption of dangerousness raised
by the government's evidence. As the government argues, the
proposed custodians and conditions are easily manipulated and
their effectiveness hinges on the defendant's good faith.
They thus fall far short of providing the needed "objectively
reasonable assurance of community safety." Tortora, 922 F.2d
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at 886. Defendant's final argument, that two of his co-
defendants were released on conditions, is irrelevant.
Detention determinations are fact-bound, and must be made
individually. Tortora, 922 F.2d at 888.
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For the reasons stated, the order of detention is
affirmed.
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