United States v. Santiago, 1st Cir. (1993)
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Scribd Government DocsUnited States v. Santiago, 1st Cir. (1993)
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Scribd Government DocsUSCA1 Opinion
August 18, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1743
UNITED STATES,
Appellee,
v.
ROBERTO GOMEZ-SANTIAGO,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
___________________
____________________
Before
Cyr, Boudin and Stahl,
Circuit Judges.
______________
____________________
Edwin Quinones and Frank D. Inserni on brief for appellant.
______________
________________
Juan A. Pedrosa, Acting United States Attorney, Edwin O. Vazqu
_______________
______________
Assistant United States Attorney, and Jose A. Quiles-Espinosa, Sen
_______________________
Litigation Counsel, Criminal Division, on brief for appellee.
____________________
____________________
Per Curiam.
__________
an
order by
the
Robert Gomez
district
court
Santiago (Gomez) appeals
denying
him
bail.
We
affirm.1
Gomez was arrested pursuant to a criminal complaint
charging him with aiding and
abetting others to possess with
intent to distribute approximately
The
800 kilograms of cocaine.
government moved that he be detained without bail, and a
detention hearing was held.
presented the
At the hearing, the
criminal complaint, an affidavit
to conversations implicating
distribute
cocaine,
and
Gomez in a
certain
government
by a witness
plan to import
documents
(not
and
further
described at the
that
hearing) to show probable
Gomez had
committed
the
offense
cause to believe
with which
he
was
charged.
The government also
that,
on
previous
activity with
guarded
which
stated
he was
it had
several
weeks
charged, Gomez
shipment
information
before
the
had stored
and
of cocaine,
indicating
major participant in the drug activity, and it
that Gomez would soon be charged with respect to that
activity.
The government
danger to the
being
occasion
a similarly-sized
that he was a
said that
argued
community and
subject
to the
that
a risk of
statutory
Gomez presented
flight; rather
minimum
of ten
than
years
in
____________________
1. We hereby deny Gomez's motion for release pending appeal
as moot and grant his request for expedited resolution of his
appeal of the detention order.
prison,
because
substantial
of
prior
conviction
quantity of marijuana
for
into Puerto
importing
Rico Gomez's
actual minimum sentence would be twenty years in jail.
Gomez's
attorney
proffered
the information
that
Gomez
owned
two
farms,
which
grew
coffee,
vegetables, and a warehouse in the community of
he
lived.
Gomez's attorney
fifteen family
members and
was hardworking,
good
oranges
and
Yauco, where
also proffered the testimony of
neighbors from Yauco
responsible, a good father
that Gomez
and provider, a
neighbor and a good citizen, and stated that they would
post the bond of
$75,000, which had been recommended
by the
pretrial services probation officer.
The
magistrate
judge
ordered
Highlighting the government's evidence
Gomez
detained.
about the size of the
shipment in question, the additional shipment of cocaine with
which the government
said it would charge Gomez, and Gomez's
major role as safekeeper of the cocaine pending distribution,
he found
believe
that the
that
maximum term
government had
Gomez had
of
committed
imprisonment
of
shown
an offense
ten
prescribed by the Controlled Substances
et seq.2
He
probable cause
or
more
for
which a
years
Act, 21 U.S.C.
also noted Gomez's prior conviction
to
was
801
for aiding
____________________
2. Several weeks later Gomez was indicted on six counts of
conspiring to import, possessing with intent to distribute,
and importing approximately 1,336 kilos of cocaine from
Colombia into the customs territory of the United States,
reflecting the two shipments of cocaine referred to by the
-3-
and abetting an
over 2,000
apparently notorious
pounds of
Gomez's minimum
magistrate
community's
marijuana in 1983
jail term.
judge
gang's importation
which would
Under these
stated that
he
of
double
circumstances, the
did not
share
the Yauco
faith that Gomez did not present a danger to the
community; he
also found that any
alternatives to detention
were "illusory" given the scale of operation described by the
government.
condition
assure
Accordingly, the
or
combination
the safety of the
magistrate judge found that no
of
conditions
would
community or that
reasonably
Gomez would not
flee.
Thereafter,
motion
for
apparently
magistrate
reconsideration.
a
reconsideration,
alleged
the
new
Responding
argument
in
the magistrate
diabetes
did
not
judge denied
to
Gomez's
judge
what
motion
stated that
justify his
Gomez's
release
was
for
Gomez's
since
his
affirmed
the
diabetes could be controlled in custody.
Subsequently,
magistrate
judge's
"enormous" amount
the
district
decision.
of cocaine
court
The court
found
involved indicated
that
the
that Gomez
was close to the
source of the drugs and
that his increased
minimum sentence
of twenty years due to
his prior marijuana
conviction
supported
the
magistrate judge's
determination
____________________
government at the detention hearing.
The government
appended the indictment to its memorandum on appeal.
has
-4-
that
Gomez
posed
community.
Gomez
risk
of
flight
and
danger
to
the
The court also found that the evidence offered by
was insufficient
to
rebut the
statutory presumption
against him.
On this
that
record, we
the district
judge's
detention
court's
order
of Gomez
was
challenges
the
magistrate
judge found
rendered
strength
1416
probable
of
(1st
cause
correct.
the
Although
evidence
by Gomez's
magistrate
on
Gomez
which
his point
the
has been
subsequent indictment
See United States v. Dillon, 938 F.2d
_________________
______
Cir.
for
concluding
affirming the
probable cause,
essentially moot
for importing cocaine.
1412,
have no hesitation
1991)
(an
purposes
of
indictment
the
establishes
section
3142(e)
presumption).
Nor
do we
think that
the affidavits
and letters
that
Gomez has submitted to
us are sufficient
section 3142(e)
presumption that
combination
conditions
of
[Gomez's] appearance . .
. .
."3
to rebut the
there is "no
[that]
will
condition or
reasonably
assure
. and the safety of the community .
For the most part, the affidavits of Gomez's fellow
citizens
are
conclusory
and thus
rebutting the presumption.
essentially
useless
in
For example, the affidavit of the
____________________
3. We hereby grant Gomez's motions to submit an additional
affidavit and additional documents in support of his motion
for release pending appeal and in support of his appeal of
the district court's detention order.
-5-
mayor
of
Yauco
states
approximately eighteen
represent any risk
that
could
that
years
to the
escape
or
he
has
known
and "[t]hat
for
[Gomez] does
community [and] is
abandon
Gomez
the
not a
United
not
person
States
jurisdiction."4
Gomez's remaining allegations
the
magistrate
judge
and
the
are meritless.
district
court
considered the factors described in 18 U.S.C.
Both
adequately
3142(g).
The
order of the district court is affirmed.
________
____________________
4. Since Gomez has presented no evidence that his diabetes
could not be controlled in custody, we agree that Gomez's
alleged diabetes is not a consideration favoring release.
-6-
