United States v. Jose Rafael Perez-Franco, United States v. Jose Luis Leon-Urena, 839 F.2d 867 (1st Cir. 1988). · Go Syfert
United States v. Jose Rafael Perez-Franco, United States v. Jose Luis Leon-Urena, 839 F.2d 867 (1st Cir. 1988). Cases Citing This Book View Copy Cite
44 citation events (19 in the last 25 years) across 4 distinct courts.
Strongest positive: United States v. Rivera-Nieves (prd, 2017-07-18)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 34 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Rivera-Nieves
D.P.R. · 2017 · confidence medium
The nature of the offenses in this case, however, is different, exposing him to life in prison, See, United States v. Pérez-Franco, 839 F.2d 867, 870 (1st Cir. 1988)(denying bail to defendants charged with violating 21 U.S.C. §§ 841 (a)(1), (b)(1)(A)(i) and 846, in part because although they did not have a prior criminal record, they faced serious consequences as a result of the charges). .
discussed Cited as authority (rule) United States v. Guerra-Hernandez
D.P.R. · 2015 · confidence medium
During the course of a hearing conducted pursuant to 18 U.S.C. § 3142 , the government typically retains the burden of persuading the court that “ ‘no condition or combination of conditions will reasonably assure’ defendant’s presence at trial.... ” United States v. Pérez-Franco, 839 F.2d 867, 870 (1st Cir.1988) (quoting United States v. Palmer-Contreras, 835 F.2d 15, 17-18 (1st Cir.1987)).
discussed Cited as authority (rule) United States v. Fernandez-Aviles
D.P.R. · 2014 · confidence medium
During the course of a hearing conducted pursuant to 18 U.S.C. § 3142 , the government typically retains the burden of persuading the court that “ ‘no condition or combination of conditions will reasonably assure’ defendant’s presence at trial....” United States v. Perez-Franco, 839 F.2d 867, 870 (1st Cir.1988) (quoting United States v. Palmer-Contreras, 835 F.2d 15, 17-18 (1st Cir.1987)).
discussed Cited as authority (rule) United States v. Nuñez-Guerrero
D.P.R. · 2014 · confidence medium
During the course of a hearing conducted pursuant to 18 U.S.C. § 3142 , the government typically retains the burden of persuading the court that “ ‘no condition or combination of conditions will reasonably assure’ defendant’s presence at trial.... ” United States v. Perez-Franco, 839 F.2d 867, 870 (1st Cir.1988) (quoting United States v. Palmer-Contreras, 835 F.2d 15, 17-18 (1st Cir.1987)).
discussed Cited as authority (rule) United States v. Cidraz-Santiago (2×)
D.P.R. · 2014 · confidence medium
To rebut the presumption, therefore, defendant Cidraz is required to produce some “conflicting evidence” in order to show that “what is true in general is not true in the particular case before [the Court].” United States v. Perez-Franco, 839 F.2d 867, 870 (1st Cir.1988) (internal citation omitted).
discussed Cited as authority (rule) United States v. Perez-Lugo (2×)
D.P.R. · 2013 · confidence medium
To rebut the presumption, the defendant must produce “some evidence” to the contrary, O’Brien, 895 F.2d at 815 (internal citation omitted), in order to show that “what is true in general is not true in the particular case before [the Court].” United States v. Perez-Franco, 839 F.2d 867, 870 (1st Cir.1988) (internal citation omitted).
discussed Cited as authority (rule) United States v. Acosta-Hernandez
D.P.R. · 2011 · confidence medium
During the course of a hearing conducted pursuant to 18 U.S.C. § 3142 , the government typically retains “[t]he burden of persuading the court that ‘no condition or combination of conditions will reasonably assure’ defendant’s presence at trial.... ” United States v. Perez-Franco, 839 F.2d 867, 870 (1st Cir.1988) (quoting United States v. Palmer-Contreras, 835 F.2d 15, 17-18 (1st Cir.1987)).
discussed Cited as authority (rule) United States v. Jiménez-Rivera
D.P.R. · 2011 · confidence medium
During the course of a hearing conducted pursuant to 18 U.S.C. § 3142 , the government typically retains the burden of persuading the court that “ ‘no condition or combination of conditions will reasonably assure’ defendant’s presence at trial....” United States v. Perez-Franco, 839 F.2d 867, 870 (1st Cir.1988) (quoting United States v. Palmer-Contreras, 835 F.2d 15, 17-18 (1st Cir.1987)).
discussed Cited as authority (rule) United States v. Agosto-Vives
D.P.R. · 2010 · confidence medium
During the course of a hearing conducted pursuant to 18 U.S.C. § 3142 , the government typically retains the burden of persuading the court that “ ‘no condition or combination of conditions will reasonably assure’ defendant’s presence at trial.... ” United States v. Pérez-Franco, 839 F.2d 867, 870 (1st Cir.1988) (quoting United States v. Palmer-Contreras, 835 F.2d 15, 17-18 (1st Cir.1987)).
discussed Cited as authority (rule) United States v. Rivera-Ibarrondo
D.P.R. · 2010 · confidence medium
During the course of a hearing conducted pursuant to 18 U.S.C. § 3142 , the government typically retains the burden of persuading the court that “ ‘no condition or combination of conditions will reasonably assure’ defendant’s presence at trial.... ” United States v. Pérez-Franco, 839 F.2d 867, 870 (1st Cir.1988) (quoting United States v. Palmer-Contreras, 835 F.2d 15, 17-18 (1st Cir.1987)).
discussed Cited as authority (rule) United States v. Valentin-Rosa
D.P.R. · 2010 · confidence medium
During the course of a hearing conducted pursuant to 18 U.S.C. § 3142 , the government typically retains the burden of persuading the court that “ ‘no condition or combination of conditions will reasonably assure defendant’s presence at trial.... ” United States v. Pérez-Franco, 839 F.2d 867, 870 (1st Cir.1988) (quoting United States v. Palmer-Contreras, 835 F.2d 15, 17-18 (1st Cir.1987)).
cited Cited as authority (rule) United States v. Samuels
D. Mass. · 2006 · confidence medium
See Dillon, 938 F.2d at 1416 ; United States v. Perez-Franco, 839 F.2d 867, 870 (1st Cir.1988); United States v. Palmer-Contreras, 835 F.2d 15, 18 (1st Cir.1987).
examined Cited as authority (rule) United States v. Arndt (3×) also: Cited "see, e.g."
D. Mass. · 2004 · confidence medium
The defendant, however, “bears only the burden of production.” United States v. Perez-Franco, 839 F.2d 867, 870 (1st Cir.1988).
discussed Cited as authority (rule) United States v. Joost
1st Cir. · 1994 · confidence medium
Defendant, in any event, -12- has proffered no evidence to suggest that a home-confinement monitoring system "is readily available or workable." United ______ States v. Perez-Franco, 839 F.2d 867, 870 (1st Cir. 1988) ______ ____________ (per curiam).
discussed Cited as authority (rule) United States v. Joost
1st Cir. · 1994 · confidence medium
Defendant, in any event, has proffered no evidence to suggest that a home-confinement monitoring system "is readily available or workable." United States v. Perez- Franco, 839 F.2d 867, 870 (1st Cir. 1988) (per curiam).
discussed Cited as authority (rule) United States v. Alonso
D.P.R. · 1993 · confidence medium
Dillon, 938 F.2d at 1416 (“the rebutted presumption retains evidentiary weight.”); United States v. Pérez-Franco, 839 F.2d 867, 870 (1st Cir.1988); United States v. Palmer-Contreras, 835 F.2d 15, 17-18 (1st Cir.1987); United States v. Jessup, 757 F.2d 378, 384 (1st Cir.1985).
discussed Cited as authority (rule) United States v. Jairo Giraldo Parra
1st Cir. · 1992 · confidence medium
United States v. Vargas, 804 F.2d 157, 163 (1st Cir. 1986). 6 17 Notwithstanding the applicability of § 3142(e)'s presumption, the government retains the burden of persuading the court by a preponderance of the evidence that " 'no condition or combination of conditions will reasonably assure' the defendant's presence at trial." United States v. Perez Franco, 839 F.2d 867, 870 (1st Cir. 1988)(citation omitted).
discussed Cited as authority (rule) United States v. Parra
1st Cir. · 1992 · confidence medium
United States v. ______________ Vargas, 804 F.2d 157, 163 (1st Cir. 1986).6 ______ Notwithstanding the applicability of 3142(e)'s presumption, the government retains the burden of persuading the court by a preponderance of the evidence that "'no condition or combination of conditions will reasonably assure' the defendant's presence at trial." United States v. _____________ Perez Franco, 839 F.2d 867, 870 (1st Cir. 1988)(citation _____________ omitted).
discussed Cited as authority (rule) United States v. Adipietro
W.D. Mo. · 1991 · confidence medium
See also United States v. Cook, 880 F.2d 1158, 1162 (10th Cir.1989) (“burden of production is not heavy ... but in order to rebut the presumption, the defendant must produce some evidence”); United States v. Perez-Franco, 839 F.2d 867, 870 (1st Cir. 1988); United States v. Carbone, 793 F.2d 559, 560 (3rd Cir.1986) (defendant must pro *1273 duce “some credible evidence” to rebut presumption); United States v. Dominguez, 783 F.2d 702, 707 (7th Cir.1986); Hurtado, 779 F.2d at 1470, n. 4 (defendant must merely come forward with “some quantum of evidence” to rebut the § 3142(e) presump…
discussed Cited as authority (rule) United States v. Bailey
W.D. Mo. · 1990 · confidence medium
See also United States v. Cook, 880 F.2d 1158, 1162 (10th Cir.1989) (“burden of production is not heavy ... but in order to rebut the presumption, the defendant must produce some evidence); United States v. Perez-Franco, 839 F.2d 867, 870 (1st Cir.1988); United States v. Carbone, 793 F.2d 559, 560 (3rd Cir.1986) (defendant must produce “some credible evidence” to rebut presumption); United States v. Dominguez, 783 F.2d 702, 707 (7th Cir.1986); Hurtado, 779 F.2d at 1470, n. 4 (defendant must merely come forward with “some quantum of evidence” to rebut the § 3142(e) presumption); Unit…
discussed Cited as authority (rule) United States v. Michael S. Bouffard (2×)
1st Cir. · 1990 · confidence medium
See Hernandez-Hernandez v. United States, 904 F.2d 758, 763 (1st Cir.1990) ("our general rule is not to consider claims raised for the first time on appeal"); United States v. Perez-Franco, 839 F.2d 867, 871 (1st Cir.1988) (per curiam) (same).
cited Cited as authority (rule) United States v. DiGiacomo
D. Mass. · 1990 · confidence medium
Nonetheless, the court “may still conclude ^ that what is true in general is not true in the particular case before [it].” Id.; United States v. Perez-Franco, 839 F.2d 867, 870 (1st Cir.1988).
discussed Cited "see" United States v. Hernandez
D.P.R. · 2001 · signal: see · confidence high
See United States v. Perez-Franco, 839 F.2d 867 (1st Cir.1988) (holding non-citizen Defendant was not entitled to be released on bail pending trial for possession of heroin, despite lack of criminal record and strong presence of his family in jurisdiction because he could not overcome the presumption that he would not flee the jurisdiction).
cited Cited "see" United States v. Hussain
1st Cir. · 2001 · signal: see · confidence high
See, United States v. Perez-Franco, 839 F.2d 867, 871 (1st Cir.1988) (per curiam).
cited Cited "see" United States v. Jones
1st Cir. · 1999 · signal: see · confidence high
See United States v. Perez-Franco, 839 F.2d 867, 871 (1st Cir. 1988).
cited Cited "see" United States v. Jones
1st Cir. · 1999 · signal: see · confidence high
See United States v. Perez-Franco, 839 F.2d 867, 871 (1st Cir. 1988).
discussed Cited "see" United States v. Femia
1st Cir. · 1993 · signal: see · confidence high
See United States v. Perez-Franco, 839 F.2d 867 ___ _____________ ____________ (1st Cir. 1988) (district court did not err in refusing to release defendant pursuant to proposed conditions: among other things, defendant had proposed that the homes of his relatives be posted as security, but presented no evidence that family was willing to do so); see also United States v. ___ ____ _____________ Harris, 732 F. Supp. 1027, 1033 (N.D.
discussed Cited "see" United States v. Noel Femia
1st Cir. · 1993 · signal: see · confidence high
See United States v. Perez-Franco, 839 F.2d 867 (1st Cir. 1988) (district court did not err in refusing to release defendant pursuant to proposed conditions: among other things, defendant had proposed that the homes of his relatives be posted as security, but presented no evidence that family was willing to do so); see also United States v. Harris, 732 F. Supp. 1027, 1033 (N.D.
discussed Cited "see" United States v. Pasciuti
1st Cir. · 1992 · signal: see · confidence high
See United States v. Perez- ___ _____________ ______ Franco, 839 F.2d 867, 870 (1st Cir. 1988) (no evidence that a ______ home confinement monitoring bracelet is readily available or workable).
cited Cited "see" United States v. John R. Pasciuti
1st Cir. · 1992 · signal: see · confidence high
See United States v. Perez-Franco, 839 F.2d 867, 870 (1st Cir.1988) (no evidence that a home confinement monitoring bracelet is readily available or workable).
discussed Cited "see, e.g." United States v. Rogers
1st Cir. · 1995 · signal: see, e.g. · confidence medium
See, e.g., United ___ ____ ______ States v. Perez-Franco, 839 F.2d 867, 870 (1st Cir. 1988). ______ ____________ Rather, the district judge was required to consider the congressional presumption that drug traffickers generally pose special risks of flight along with the other factors outlined in 18 U.S.C. 3142(g) in determining whether pretrial detention was warranted.
cited Cited "see, e.g." United States v. David Irizarry Cruz
1st Cir. · 1994 · signal: see also · confidence medium
See id.; see also United States v. Perez- Franco, 839 F.2d 867, 870 (1st Cir. 1988) (per curiam).
cited Cited "see, e.g." United States v. Kattar
1st Cir. · 1992 · signal: see also · confidence medium
See id.; see also United States v. Perez-Franco, ___ ___ ___ ____ ______________ ____________ 839 F.2d 867, 870 (1st Cir. 1988) (per curiam).
discussed Cited "see, e.g." United States v. Peter Kattar, United States v. Sayed Hachem, United States v. David Abdoo
1st Cir. · 1992 · signal: see also · confidence medium
See id.; see also United States v. Perez-Franco, 839 F.2d 867, 870 (1st Cir. 1988) (per curiam). 6 As for risk of flight, the government must establish by a preponderance of the evidence that no set of conditions of release will reasonably assure the presence of the appellants as required.
Retrieving the full opinion text from the archive…
UNITED STATES, Appellee,
v.
Jose Rafael PEREZ-FRANCO, Defendant, Appellant; UNITED STATES, Appellee, v. Jose Luis LEON-URENA, Defendant, Appellant
87-2060, 87-2061.
Court of Appeals for the First Circuit.
Feb 23, 1988.
839 F.2d 867
John F. Cicilline, Providence, R.I., on brief, for defendant, appellant Perez-Franco., Joseph Bevilacqua, Jr., Providence, R.I., on brief, for defendant, appellant Leon-Urena., Lincoln C. Almond, U.S. Atty., and James H. Leavey, Asst. U.S. Atty., Providence, R.I., on brief, for appellee.
Bownes, Breyer, Per Curiam, Torruella.
Cited by 35 opinions  |  Published
PER CURIAM.

On November 23, 1987, Jose Rafael Perez-Franco and Jose Luis Leon-Urena were charged, pursuant to 21 U.S.C. §§ 841(a)(1), (b)(l)(A)(i) and 846, with possession of a kilogram or more of heroin with intent to distribute. These offenses carry maximum terms of ten or more years. A magistrate held a combination probable cause-detention hearing on November 25, 1987. The district court judge reviewed the magistrate’s detention orders concerning Leon on December 3, 1987 and concerning Perez on December 4, 1987. On December 9, 1987 the judge ordered both defendants detained pending trial. This appeal ensued. [1]

I.

At the detention hearings, the following evidence was presented. John Adams, a special agent with the Drug Enforcement Agency (DEA), testified. He related information that he had received from an undercover detective of the East Providence Police Department. According to Adams, the detective had purchased 1,000 packets of heroin for $8,000 from Perez and a Wilfredo Germosen on October 26, 1987. This transaction was videotaped. Adams made an identification of Perez based on the tape. Also on the tape is a discussion between the undercover detec[*869] tive and Germosen and Perez concerning the purchase of 25,000 packets of heroin for $200,000. On November 20, 1987, a conversation concerning the sale of the 25,-000 packets of heroin was taped. In this conversation, Leon told a DEA informant that Leon could deliver only 20,500 packets which he would sell for $165,000. The purchase was set up for that evening. Perez and Leon were arrested as they were about to deliver the 20,500 packets of heroin; each defendant was carrying a bag which contained heroin.

Perez tendered the information that he has resided in Rhode Island for the past four years. He has permanent resident status. He is married and has ten brothers and sisters living in Rhode Island. Two sisters and one brother own homes. He has been employed continuously since his residence in Rhode Island; currently he is employed at the Xiony Market in Providence. Perez has no prior record of convictions, bail jumping violations or defaults on bail. Perez offered to comply with the following conditions: (1) warrantless searches of his person and premises; (2) relocation to Block Island, Rhode Island with notification to ferry and airline personnel concerning his presence on the Island; (3) daily reporting to the local chief of police; (4) a residence without a telephone; (5) no maintenance or use of an automobile; and (6) the wearing of a “home confinement monitoring bracelet.” He also suggested that the homes of his relatives be posted as security.

Leon is a legal resident in the United States. He has been located in Rhode Island since 1976; he currently is working at the Xiony Market where he has been employed since 1980. His father and one sister live in Rhode Island. He has no prior record of arrests or convictions. Leon agreed to comply with the following conditions: (1) warrantless searches of his person and premises; (2) no presence of a telephone in his home and no ownership of an automobile; (3) daily reporting to the state or local police; (4) the wearing of a “home confinement monitoring bracelet”; and (5) the turning in of his passport.

The magistrate found probable cause to believe that both defendants committed the crimes with which they were charged. Based on the nature of the substance (heroin), the quantity seized, the substantial penalty facing defendants if convicted, the absence of evidence of addiction (thereby suggesting that defendants were motivated solely by greed) and, in the case of Perez, the involvement in two trafficking offenses, the magistrate concluded that both defendants presented a risk of flight and a danger to the community.

The judge agreed, finding the existence of “more than probable cause.” He found that Leon’s ties with the community were not “cast in concrete.” As a result, given the seriousness of the charges he faced, the judge indicated that there were “strong inducements” for Leon to flee in order to avoid the consequences. As for Perez, the judge acknowledged that Perez had more than minimal family connections in Rhode Island. However, he stated that he was not prepared to accept as fact the suggestion that the family would post their property as security. He concluded that there was nothing before him that established any set of conditions that would assure the appearance of either defendant as required.

II.

The district court relied on § 3142(e)’s rebuttable flight presumption:

Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.)....

18 U.S.C. § 3142(e). This presumption represents Congressional findings of fact concerning persons who deal in drugs and the problems of assuring their presence at trial. United States v. Palmer-Contreras, 835 F.2d 15, 17-18 (1st Cir.1987); United States v. Jessup, 757 F.2d 378, 385 (1st Cir.1985). Congress found that persons charged with major drug offenses often have the foreign ties and resources neces[*870] sary to escape with ease to other countries; the imposition of a large bond is often ineffective in deterring flight. Jessup, 757 F.2d at 385 (citing S.Rep. No. 225, 98th Cong., 1st Sess. 20, 23-24 (1983), reprinted, in 1984 U.S.Code Cong. & Admin.News, pp. 23, 26, 27). Congress therefore concluded that “flight to avoid prosecution is particularly high among persons charged with major drug offenses.” Id.

The burden of persuading the court that “no condition or combination of conditions will reasonably assure” defendant’s presence at trial rests with the government. Palmer-Contreras, at 17-18; Jessup, 757 F.2d at 381. Defendant bears only the burden of production; that is, he must present some evidence to rebut the flight presumption. However, the presumption does not disappear even on the presentation of such evidence. Palmer-Contreras, at 17-18; Jessup, 757 F.2d at 383-84. Rather, the judge or magistrate continues to keep in mind, along with the other factors listed in § 3142(g), [2] the fact found by Congress — that generally drug traffickers pose special risks of flight. See id. As Jessup stated, “the magistrate or judge may still conclude that what is true in general is not true in the particular case before him.” 757 F.2d at 384.

Applying these standards, we uphold the district court’s conclusion that the evidence was insufficient to rebut the presumption of flight. Evidence favorable to Perez is that he has lived in Rhode Island for four years and that he has family here. He has no prior criminal record. However, he is not a citizen of the United States. Although he currently is employed, his place of employment, the Xiony Market, has been described as a focal point of a heroin distribution network. See Affidavit of John Adams in support of a search warrant for, among other locations, the Xiony Market, at 1111.

Leon is in a similar position. He has been a resident of Rhode Island since 1976; he has some family members in that state. He also has no prior criminal record. He is unmarried and is not a citizen of the United States. As with Perez, he is employed at the Xiony Market.

Against this evidence is the fact that defendants were charged with possession of, with intent to distribute, over a kilogram of heroin. The weight of the evidence against defendants appears strong. Perez was videotaped during the October 26 transaction; the November 20 transaction involved a sale to an undercover detective. Although neither defendant has a prior criminal record, they face serious consequences as a result of the current charges.

We agree with the district court and the magistrate that defendants’ ties to the community do not appear strong enough to assure their appearance at trial. Given the gravity of the charges they face and their noncitizenship, we think the risk of flight is pronounced. The community ties of these defendants are not as established as those of the defendants in Palmer-Contreras where we affirmed pretrial detention. The Palmer-Contreras defendants had always lived in Puerto Rico; they were married and had children. Although the value of the heroin seized in this case does not approach the amount (over $7 million) of cocaine seized in Palmer-Contreras, the defendants here are not just “mules.” Rather, they sell heroin for profit. The connections necessary to secure over one kilogram of heroin may reflect the resources necessary to escape with ease to another jurisdiction.

We also find that the district court did not err in refusing to release defendants pursuant to the conditions under which they agreed to live if not detained. There is no evidence that these actually are practical alternatives. There is no evidence that Perez contacted the Island authorities to determine if they would be willing to assist him in his relocation or that his family actually was willing to post their homes as security. Similarly, there is no evidence that a “home confinement monitoring bracelet” is readily available or workable.[*871] Nor do we see how defendants can be prevented from using telephones or automobiles other than those owned by them. In short, these conditions are insufficient to “reasonably assure the appearance of [defendants] as required” at trial.

Finally, Perez raises the argument that the detention hearing violated his due process rights. Specifically, he alleges that the government was required to provide him with notice concerning the particular rebuttable presumption — risk of flight or danger to the community — on which it would rely in objecting to bail. First, we find no evidence that Perez raised this claim below. He therefore cannot raise it now. See Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir.1979). In any event, it is a patently frivolous claim. The statute already provides Perez with notice that either or both grounds may be relied on by the government or by the judicial officer. No more is required to protect the due process rights of Perez.

The district court’s order is therefore Affirmed.

1

. Although defendants requested an expedited appeal, the transcript of the December 3, 1987 hearing was not received by us until mid-January, 1988. At the December 3 hearing, the judge decided to postpone, due to the lack of a translator, the issues concerning the detention of Perez. We received the transcript of this latter hearing, held on December 4, in late January, 1988.

2

. The factors relevant to this case include (1) the "nature and circumstances of the offense charged”; (2) the "weight of the evidence" against defendant; and (3) the defendant's "family ties, employment, financial resources, length of residence in the community, community ties [and] past conduct". 18 U.S.C. § 3142(g)(1), (2) and (3)(A).