USCA1 Opinion

February 10, 1992

___________________
No. 91-2208

UNITED STATES,
Appellee,
v.
EDGARDO PUBILL RIVERA,
Defendant, Appellant.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
___________________
___________________
Before
Torruella, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Selya, Circuit Judge.
_____________

___________________

Jose Antonio (ABI) Lugo on brief for appellant.

_______________________
Robert S. Mueller, III, Assistant Attorney General, Mary Lee
______________________
________
Warren, Chief Narcotic and Dangerous Drug Section, William H.
______
___________
Kenety and Daniel F. Lopez-Romo, United States Attorney, on brief
______
____________________
for appellee.

__________________
__________________

from the

Per Curiam.
__________

Appellant, Edgardo Pubill-Rivera,

appeals

decision of

the United States

District Court

for the

his request for release

pending

District of Puerto Rico denying

trial.

BACKGROUND
__________
Appellant
persons, on
intent

was

charges of

indicted,

along

conspiring to

to

distribute

it

and

possession

of cocaine

with the

with

with

over

possess cocaine
aiding

intent to

and

25

other

with the

abetting

distribute it.

the

The

amount of cocaine involved was over 10,000 kilograms.

to the government, appellant played
drug

trafficking conspiracy.

September 20, 1991.

Appellant
supports.

He

at

the

has

seven

station owned

by

per month

home

father

which

$80,000.

his

Appellant refused

financial assets
friends and

children,

to pretrial

family were

several

his common-law

approximately $2,500
in

hearing was

held on

The hearing revealed the following evidence.

At the time of his

gas

a leading role in this large

A detention

has lived with

eight years.

According

of

whom

wife for the

he

past

arrest, appellant was employed

his

father.

as salary.

lives;

it

to divulge
services.

willing to post

He

was receiving

Appellant

is worth

owns the

approximately

the existence of

other

Appellant stated
eight parcels

that

of real

estate worth over $440,000 as security for bail.

As for appellant's past criminal activity, he has three

prior

narcotics

appellant

was

subsequently was
release.

convictions.
sentenced

his

probation.

first

conviction,

However,

probation

revoked due to a violation of the terms of this

Nonetheless,

released on bail

to

Upon

appellant

in all three

averred

that

cases and always had

he

had

been

appeared in

court when required.

The government
addition to the
sister

stated

that

laundromat and
that

home in

cross-examined appellant's sister.

which their

she,

father lives,

appellant

that appellant

and

their

owns a second

In

appellant's

father

home.

own

She stated

she had, on one occasion, purchased a bank check for $8,000

or $9,000

for her brother; she did not

obtained the money for this check.

know how her brother had

The government also proffered

the following evidence.

Although appellant's tax return showed

a yearly

$24,000, appellant

income

of only

indicated unexplained sources of income.

condominium, a
$195,000

in

$68,000 speedboat
real

estate

States.

In addition,

drivers' licenses.

and

that

These assets included a

apparently paid

equity

Appellant has a passport and

owned assets

three

for in
bank

cash,

accounts.

has travelled outside of the United

when he was arrested he possessed two fake

Finally, under

appellant probably would

the Sentencing

be subject to a minimum

Guidelines,

sentence of 25

years.
The magistrate judge
ordered

appellant detained

magnitude of

before whom the hearing

prior to

the drug enterprise

trial.

of the minimum sentence to

be

Based

on these

factors,
3

considered the

of which appellant was

and the length

exposed.

He

was held

a part

which appellant could

the

magistrate

judge

concluded

that appellant

conditions of

release.

would pose a danger to

judge

could
In

with the

appellant with the

trusted

addition to

to follow

finding that

any

appellant

the community if released, the magistrate

determined that the

faces, along

not be

seriousness of the

unexplained sources

incentive to flee.

The

charges appellant

of income,

provided

district court judge

affirmed the detention order, rejecting appellant's argument that

18

U.S.C.

3142(g)

prevented

the

magistrate

judge

from

considering defendant's sources of income.

DISCUSSION
__________

Based upon the transcript of the detention hearing, the

district

court's

findings

and

the

consider the merits of the appeal.

parties'

briefs,

we

now

A special standard of review

applies to pretrial detention orders:

We approach our task mindful of our
obligation to afford
independent review,
tempered by a degree of deference to the
determinations made below.
Recognizing that
appellate courts are ill-equipped to resolve
factbound disputes,
this standard
cedes
particular respect, as a practical matter, to
the lower court's factual determinations.
Hence, independent
review represents
an
intermediate level of scrutiny, more rigorous
than the abuse-of-discretion or clear-error
standards, but stopping short of plenary or
de novo review.
_______
United States

v.

Tortora, 922

F.2d 880,

882-83 (1st

Cir.

_____________

_______

1990) (citations omitted).

The grand jury
to
a

indictment provided probable

cause

believe that appellant had committed an offense for which

maximum term

of ten

years or

more is prescribed

in the

Controlled

Substances Act,

United States
_____________

v. Vargas, 804
______

(per curiam).
18

U.S.C.

"it

conditions
person
rebut

will

reasonably
and the

this presumption,

evidence" to show that

757 F.2d

et. seq.
__ ___

F.2d 157, 163 (1st

became applicable.

presumed that

as required

in [his]

801

Thus, the statutory presumption

3142(e)

shall be

21 U.S.C.

appellant need

contained in

combination of

appearance

(1st Cir.

production, not persuasion.

1985).
Id. at
__

of the

the community."
only

To

produce "some

"what is true in general

particular case . . . ."

378, 384

the

safety of

Cir. 1986)

This provides that

no condition or
assure

See
___

is not true

United States v. Jessup,

_____________
______
This is
380-81.

a burden
However,

of
even

assuming

appellant successfully

producing "some
at 383.

the presumption

evidence," the bubble does not "burst."

The burden

but the rebutted

becomes a

rebuts

factor to be
in

Id.
__

of persuasion remains on the government,

presumption retains evidentiary force:

relevant factors

by

considered in addition to
3142(g).

it

the other

United States v.
______________

Palmer_______

Contreras, 835 F.2d 15, 18 (1st Cir. 1987) (per curiam).

_________
On

the facts before us we

agree with the district

court that a detention order was justified under the terms of

the statute.

Congress has made it clear that

will

defendant

constitutes a

continue to

danger to the

the community.'"

engage

in

"the risk that

drug trafficking

'safety of any other

person or

S. Rep. No. 98-225, 98th Congress, 2d Sess.

13 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3196.

____________

Here,

there

is

narcotics

the
trade

risk
if

convictions did not

that

appellant

released

on

might
bail;

return

to

appellant's

the
past

prevent him from continuing to engage in

drug trafficking.
the terms of

Of relevance

is the fact that he violated

his probation which

e.g., United States v. Williams,

___
_____________
________

then was

revoked.

See,
___

753 F.2d 329, 335 (4th Cir.

1985) (finding evidence that defendants would "continue to be

involved in
that they

narcotics if released

on bail" based

had done so despite presence

and parole supervision);

upon fact

of prior convictions

United States v. Dominquez,

_____________
_________

629 F.

Supp. 701 (N.D. Ind. 1986) (detention on grounds of danger to

community ordered where defendant drug suppliers continued to
engage

in

drug-related

activities

even

after

government

intervention).
Appellant's evidence
the

risk of danger

did not

established by the

significantly negate
government.

Indeed,

most of his evidence did not relate directly to the issue

the

"safety

of community."

number of persons
related

to

question.
no

his

willing to aid appellant

community

As Congress has

correlation

community.

Rather, the

with

the

ties

and

the

evidence

of

of the

in securing bail
risk

of

flight

pointed out, community ties have

question

of

the safety

of

the

See S. Rep. at 24, reprinted in 1984 U.S.C.C.A.N.

___
____________

at 3207.
In
undisclosed

addition,

the

evidence

financial assets belonging

6

concerning

the

to appellant and his

apparent

access

district

court's finding that

flight.

Indeed,

wherewithal
appellant

to

to

large

amounts

cash

supports

appellant presents a

appellant has a
obtain

of

false

passport and the

the

risk of
apparent

identification.

Finally,

appears to belong to a large narcotics trafficking

organization;

further,

he is

not just

United States v. Palmer-Contreras,

______________
________________

a "mule."

835 F.2d at

Compare
_______

18 (despite

the fact that defendants were only mules, detention proper on

risk

of

flight

defendants

worked

grounds

where

appeared

organization

to have

for

significant

which

financial

resources to assist flight).

In
against

the

seriousness

of

the

charges

appellant, the stiff sentence he faces if convicted,

the nature

and size of

allegedly
cash

conclusion,

the criminal enterprise to

belongs, his apparent

and the

trafficking

fact

that

after three

access to large

he continued
state

drug

to

which he
amounts of

engage in

drug-

convictions provide

solid foundation on which to base a detention order.

The order of the district court is affirmed.
The motion to dispense with oral argument is denied

as moot.