USCA1 Opinion

October 8, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 93-1938

UNITED STATES,
Appellee,
v.
EDDIE TRAVIESO OCASIO,
Defendant, Appellant.
_________________
No. 93-1939
UNITED STATES,
Appellee,
v.
ANGEL DAVID TEJADA MORALES,
Defendant, Appellant.
_______________________
No. 93-1940
UNITED STATES,
Appellee,

v.
ANGEL RODRIGUEZ RODRIGUEZ,
Defendant, Appellant.
___________________

No. 93-1941
UNITED STATES,
Appellee,
v.
LUIS MAYSONET MACHADO,
Defendant, Appellant.
____________________
No. 93-1942
UNITED STATES,
Appellee,
v.
ANGEL FELICIANO-COLON,
Defendant, Appellant.
__________________
No. 93-1943
UNITED STATES,
Appellee,
v.
LUIS MALONADO RODRIGUEZ,

Defendant, Appellant.
__________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
___________________
___________________
Before
Breyer, Chief Judge,
___________
Torruella and Selya, Circuit Judges.
______________
___________________

Carlos Lopezde Azua on brief for appellant, Eddie Travieso

___________________
Ocasio.
Eric M. Quetglas Jordan on brief for appellant Angel David
________________________
Tejada Morales.
Roberto Roldan Burgos on brief for appellant Angel Rodriguez
______________________

Rodriguez.
Manuel San Juan on brief for appellant Luis Maysonet
_________________
Machado.
Edgardo L. Rivera-Rivera, on brief for appellant Angel
__________________________
Feliciano-Colon.
Benicio Sanchez Rivera, Federal Public Defender, and Laura
______________________
_____
Maldonado Rodriguez, Assistant Federal Public Defender, on brief
___________________
for appellant Luis Maldonado Rodriguez.
Charles E. Fitzwilliam, United States Attorney, Jose A.

_______________________
________
Quiles Espinosa, Senior Litigation Counsel, and Esther Castro_______________
______________
Schmidt, Assistant United States Attorney, on brief for appellee
_______
in appeal no. 93-1938.
Guillermo Gil, United States Attorney, Jose A. Quiles_____________
_________________
Espinosa, Senior Litigation Counsel, and Esther Castro-Schmidt,
________
______________________
Assistant United States Attorney, on brief for appellees in nos.
93-1939, 93-1940, 93-1941, 93-1942 and 93-1943.
__________________
__________________

Per Curiam.
___________
David

Tejada

Maysonet
Rodriguez

Appellants Eddie Travieso

Morales,

Angel

Rodriguez

Machado, Angel Feliciano

appeal the

order by

Ocasio, Angel

Rodriguez,

Luis

Colon, and Luis Maldonado

the

United States

District

Court for the District of Puerto Rico detaining them prior to

trial pursuant to 18 U.S.C.

The
detailed
briefly.
[DEA] Task
gathered

evidence
in

the

presented
district

On July

Force Agent
together near

appellant

previously
appeared
suspicious

at the
court

1, 1993, Drug

opinion.

We

is

summarize

observed several
Eight

men

or nine

The agent recognized one of the

Rodriguez,

observed at a known

as

drug point.

for someone.

behavior which

hearing

Enforcement Administration

a basketball court.

Maldonado

to be waiting

We affirm.

detention

Carlos Rivera

vehicles were parked nearby.

men,

3142(e).

led him

someone

he

had

The individuals

Agent Rivera observed

to believe that

the men

were involved in drug activity.

After

observing

the

situation

for

several

minutes,

Rivera

and another

agent intervened

suspects.

Inside the

suitcases,

containing a total

and

twelve

vehicles, the

United States

and

detained fourteen

agents found

of 225 kilograms

Department of

fourteen

of cocaine,

Agriculture [USDA]

-4-

airport clearance stickers

airline

tickets

for

valid for that afternoon.1

flight

scheduled

to

Nine

depart

that

afternoon for New York were found on various defendants.

tickets

were issued under

consecutive numbers.

The

fictitious names and

several had

Some of the suspects were

found to be

carrying large amounts of cash.

On July 7, a grand
and abetting
distribute,
U.S.C.

jury indicted appellants for

in the unlawful
225

kilograms

841(a)(1)

hearing, a Magistrate

and 18

possession of, with

of cocaine
U.S.C.

in
2.

intent to

violation
After

Judge issued an order

aiding

of 21

a detention

for the release

of appellants on bail ranging from $15,000 to $75,000.

Third

party custody and curfews were also imposed.

The

government appealed

court granted a stay.

hearing

On July

at which Agent

proffered
strong

order

and the

ties to

district

28, the district court held a

Rivera testified and

other evidence.

family

this

the government

Appellants proffered evidence of

Puerto Rico,

of family

members and

friends willing to assist in their supervision and in placing

bail,

and of

court

issued an

ordering

records of

employment.

order reversing

that appellants

Two days

the

later, the

Magistrate Judge

be detained

without bail

and

pending

____________________
1.
The USDA x-rays all baggage leaving Puerto Rico for the
continental United States looking for prohibited food and
plants.
These stickers are used by drug traffickers to
attempt to avoid inspection. They cannot be legally obtained
prior to inspection at the airport.
-5-

trial.

Relying

appellants
found

that

on

and the

the

weight

amount of

appellants

had

of

cocaine
not

presumption of flight established by

that no

condition or

the

combination of

evidence

against

involved, the

rebutted
18 U.S.C.

the

court

statutory
3142(e) and

conditions of

release

would assure appellants' appearance in court.

Appellants Travieso Ocasio and Maysonet Machado

that the

district court

examination

of

Agent

erred in
Rivera

restricting their

at

the

detention

who appear at the hearing. 18 U.S.C.

has the discretion

3142(f).

to limit the

(11th Cir.

cross-examination on

1985); United States v.

______________

1390, 1398 (3d Cir.

1985).

full

or

fledged-trial

A bail

1985).

In the instant

factor at

best,

of minor

discovery

"a

expedition."
(1st Cir.

the government's case

detention hearings, 18

the questions

757 F.2d

755 F.2d 203, 204

While the strength

case,

Delker,
______

case, appellants sought to use cross-

examination to establish that

them was weak.

F.2d 1467,

hearing is not to be

defendant's

United States v. Acevedo-Ramos,

_____________
_____________

witnesses

However, the

relevancy grounds. United States v. Hurtado, 779

______________
_______
1480

crosshearing.

Appellants have a statutory right to cross-examine

court

contend

the

of the case is a relevant

U.S.C.

court refused

relevance to

the issue

-6-

against

3142(g),
to permit
of risk

in this
were, at

of flight.

Moreover, any error which might have occurred was harmless in

light of the other evidence of guilt presented.
As

for

the

merits

of

the

government bears the burden of

the

evidence

that

no

reasonably assure that

United States
_____________

v.

detention

decision,

the

proving by a preponderance of

combination

of

conditions

defendant will appear for trial.

Patriarca, 948
_________

F.2d

789, 793

(1st

will
See
___
Cir.

1991); United States v. Dillon, 938 F.2d 1412, 1416 (1st Cir.
_____________
______
1991).
for

Where, as here, a defendant has already been indicted

a controlled substance

term

of ten

years or

offense punishable by

more,

a presumption

a maximum

arises that

no

condition or combination of conditions will reasonably assure

appearance at trial.
F.2d

157, 163

(1st

(maximum term

See id.; United States

___ __
_____________
Cir. 1986);

of twenty

21

years to

v. Vargas, 804
______

U.S.C.

841(b)(1)(A)

life for possession

with

intent to distribute more than five kilograms of cocaine); 18

U.S.C.
traffickers

3142(e)
pose

(establishing

presumption

special

of

risk

presumption is rebuttable, 18 U.S.C.

v.

Jessup, 757
______

F.2d 378,

384 (1st

because

flight).

While

drug
the

3142(e); United States

_____________
Cir. 1985),

it retains

evidentiary
1416;

weight even when

United States
_____________

(1st Cir. 1987).

rebutted, Dillon, 938

______

v. Palmer-Contreras,
________________

835 F.2d

In determining whether any

assure the appearance

specific factors

F.2d at
15, 18

conditions will

of defendant, the court must weigh the

listed

in 18

U.S.C.

3142(g):

(1)

the

the nature

and

and

the

-7-

weight

of the

circumstance

evidence
of

characteristics

the

as

to guilt;

crime

(2)

charged;

of the accused,

including family ties, past

history, financial

resources and employment.

v.

F.2d 789,

Patriarca, 948
_________

review

the

court's

the trial court.

F.2d

810,

particular
court's

814

791-92

determinations

standard of review which gives

respect,

as

United States
_____________

(1st Cir.

1991).

under

independent

an

We

deference to the decision

Id. at 791; United States

__
_____________
(1st Cir.

(3)

1990).

factual determinations."

v. O'Brien, 895
_______

"[T]his standard

a practical

matter,

of

to

cedes

the lower

Patriarca, 948 F.2d at 791

_________
(quoting United States v. Tortora, 922 F.2d 880, 882-83
_____________
_______

(1st

Cir. 1990)).

We agree with the district court that the government has

met its

burden

of showing

that

no conditions

of

release

reasonably will assure appellants' presence at trial.

First, the
All

evidence against each

were observed

daylight,

in

appellants
at the

a major

DEA
drug

Agent participating,
transaction.

strong.
in broad

Several

of

the

claim that the evidence shows only their presence

scene of

neither

by a

appellant is

of

abetting.

a crime and

which

is

sufficient

United States
_____________

Cir. 1993).

association with

However, as

for

proving

v. Alvarez, 987
_______
this court

a principal,
aiding

F.2d 77,

has said,

and

83 (1st

"criminals

-8-

rarely
crimes."

welcome

innocent

United States v.
_____________

persons as

witnesses

to

serious

Hernandez, 995 F.2d 307 (1st Cir.

_________

1993),

petition for
________ ___

cert. filed
____ _____

United States
_____________

v. Ortiz, 966
_____

cert.
____

113

denied
______

S.Ct

(Sept.

7, 1993)

F.2d 707, 712 (1st

1005

(1993)).

circumstantial evidence exists that

(quoting

Cir. 1992),

Moreover,

strong

each appellant was

more

than simply present.

Travieso
discussions

Ocasio
with

was

observed

individuals who

packages of drugs to the group.

participating

appeared

found had been lent to

him that morning,

and a bag

own car was found

to have traces of cocaine.

with a first

issued under an assumed

removed from Travieso

name.

This was one

by

other

Tejada

Morales

was

date from the

one thousand dollars in cash.

Rodriguez

owner of

cocaine laden suitcases.

a vehicle

possessed

also found

possession of over
was the

New York

of four tickets

The other three tickets were

defendants.

Ocasio's

Tejada Morales

class passenger ticket for

with consecutive numbers purchased on the same

same travel agency.

be bringing

One of the vehicles in which

two suitcases containing cocaine were

was found

to

in

in

Rodriguez

which contained

two

His wallet was found in one of the

suitcases containing cocaine.

Feliciano Colon was

found in

airline ticket issued

under an

possession of

a first class

assumed name.

The ticket was for the same flight as that for

which other defendants had tickets.

-9-

Two suitcases containing

cocaine

and two U.S.D.A. inspection stickers were found in a

van registered to him.

Maldonado Rodriguez was the owner of

a jeep in which two suitcases containing cocaine were

Two

inspection

stickers

Moreover, Maldonado
two

men who

were

also

Rodriguez was

appeared to

be

found

in

found.

the

jeep.

observed conversing

bringing drugs

to the

with
group.

Maysonet Machado had a first class airline ticket on the same

flight as the others.

The ticket was issued under an assumed

name and was part of a consecutive series of tickets

held by

various defendants.
Second,
indicates

the crime
that

trafficking

with

appellants

conspiracy

which appellants
are

which

part
sought

of
to

are

charged

large

deliver

drug

several

million

dollars worth of cocaine into the continental United

States.

Such a "'highly lucrative' drug operation[] [was] at

the

center

of

congressional

statutory presumption
F.2d at
statutory

386.

concern"

in 18 U.S.C.

Thus, appellants

presummption is

in

enacting

3142(e).

are among those

specifically aimed.

the

Jessup, 757
______
at whom the
Dillon, 938
______

F.2d at 1416.
Third,
"mules" in

although

the operation,

supports the
person

or

the

appellants

may

the value

of the

inference that
organization

Palmer-Contreras, 835
________________

have

appellants are

with

F.2d at

great
18.

been

only

drugs involved
connected to

financial

resources.

Such organizations

are

-10-

able

and may

be

Dillon, 938 F.2d

______
The incentive

willing

to

finance

appellants'

at 1416; Palmer-Contreras, 835

________________

for flight in

ties

to the community,

F.2d at 18.

this case is strengthed

weight of the evidence against appellants.

The district court

flight.

by the

Id.
__

did find that appellants

had strong

meager financial resources

without substantial

criminal records.

noted that they had

likely played relatively minor roles

the drug trafficking scheme.

Moreover,

and were

However, this court

the court
in

has found

similar characteristics insufficient to rebut the presumption

of

flight where,

as here,

the evidence

is strong

and the

value

of

detention
195

the

narcotics

large.

where defendants were

kilograms of cocaine

family

is

See
___

id.
__

(affirming

apprehended on a

even though defendants

boat with
had strong

ties, meager financial resources, an absence of prior

drug arrests, and

1415 (affirming
negotiating

minor role as mules); Dillon,

______
detention

where defendant

938 F.2d at

was involved

in

several million dollar drug deal even though his

role in negotiation was small, he had minimal criminal record

and no

prior drug

community).
Contreras
_________

convictions, and had

Although
and

Dillon,
______

deference we owe
conclude that the

this

case,

presents

like
a

strong ties
those

close

Palmer_______

question,

to the district court findings

government has met

in

to the

the

leads us to

its burden of

showing

-11-

that

no condition

or combination

will assure appellants' appearance.

of conditions

reasonably

Affirmed.
________

-12-