IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 92-2669

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

MAURICIO RUEBEN and GERARDO GUERRA,

Defendants-Appellees.

__________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________ _ (September 24, 1992)

Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Mauricio Rueben and Gerardo Guerra were indicted for

conspiracy to possess with intent to distribute in excess of 1000

kilograms of marijuana in violation of the Controlled Substances

Act,

, et seq.1 Following a hearing, the magistrate

concluded that no condition or combination of conditions of bond

could reasonably assure the appearance of Rueben or Guerra at trial

1 Subsequent to the detention hearings, a superseding indictment was returned. Guerra is now charged with four counts and Rueben is now charged with twenty-two counts. and that they were a danger to the community. He therefore ordered

that Rueben and Guerra be detained pursuant to

pending trial. Rueben and Guerra requested that the district court

revoke the detention order, but the district court refused.

Several months later, the district court revoked the detention

order and ordered the release of Rueben and Guerra on $100,000

unsecured bond. The government appeals the district court's order.

We have previously granted the government's application for a stay

of the district court's order pending resolution of this appeal.

We now hold that the decision of the district court is not

supported by the proceedings below and we therefore reverse and

vacate.

I

A

The Bail Reform Act of 1984,

, et seq.,

provides that upon the motion of a government attorney, a judicial

officer must hold a hearing to determine whether any "condition or

combination of conditions will reasonably assure the appearance of

the person as required, and the safety of any other person and the

community."

(e).2 Rueben and Guerra were indicted

under the Controlled Substances Act,

, et seq.,

2 This hearing can be held only if one of the six circumstances listed in § 3142(f)(1) or (2) is present. United States v. Byrd, No. 92-4602 (5th Cir. August 7, 1992), at 7. Rueben and Guerra have been indicted for violation of the Controlled Substances Act,

, et seq., which is a circumstance listed in § 3142(f)(1)(C).

-2- which triggers a rebuttable presumption under

(e)

that no condition or combination of conditions will assure their

appearance at trial or the safety of the community if they are

released.

B

The magistrate conducted a detention hearing for Guerra on

May 9, 1991. The government sought pretrial detention of Guerra as

both a flight risk and as a danger to the community. The

government called a special agent as a witness. Guerra's counsel

cross-examined this witness, but did not present any other evidence

except that contained in the pretrial services report.

The government's evidence showed that Guerra had been arrested

in 1985 and had pled guilty to charges of delivering more than

fifty and less than two hundred pounds of marijuana. He was

sentenced to ten years imprisonment. After serving six months, he

was placed on probation. Evidence relevant to that charge showed

that Guerra had negotiated the sale of 300 pounds of marijuana.

After undercover agents accompanied Guerra to his residence at 414

Finfrock in Pasadena, he produced 132 pounds of marijuana. A

search of his house after his arrest revealed another eleven pounds

of marijuana.

The government also presented evidence from a confidential

informant that in 1983 Guerra had delivered marijuana to him on at

least twenty-five occasions at Guerra's house at 414 Finfrock.

According to the government, this information has been verified by

-3- telephone records, utility and property records, and an undercover

operation. The government alleges that at this time Guerra was

partners with his next door neighbor, Desiderio (Desi) Guerra, who

has also been indicted in this case.

Guerra was arrested on March 1, 1989, four months after being

released from probation, for delivering 307 pounds of marijuana to

a customer in Maryland. Arrested along with Guerra was Raynoldo

Perez, another defendant in this case. Perez was later arrested

for transporting 280 pounds of marijuana through Jackson,

Mississippi; arrested with Perez in that case was Onofre Guerra,

Guerra's brother and a defendant in this case. The government

presented evidence that Guerra was observed at the loading site

while the vehicle was being loaded with the 280 pounds of marijuana

and just prior to its departure. Also observed with Guerra was

Desi Guerra.

The government also presented evidence that Guerra has been

identified during an undercover operation involving another

defendant, Dario Maldonado, as the source of the marijuana that was

delivered to an undercover agent. When Guerra was arrested in this

present case, he admitted the continued use of cocaine as recently

as moments before his arrest. In his possession at the time of his

arrest was written documentation of his drug trafficking

activities. The government argued that all of this information

must lead to the conclusion that Guerra will continue dealings in

-4- drugs if allowed out on bond pending trial and for this reason he

constitutes a danger to the community.

The government also presented evidence that Guerra was a

flight risk because his community ties were suspect. First, when

he was arrested, Guerra listed his place of employment as Jackson

Auto Service, 1009 West Jackson, Pasedena, Texas. The government

presented evidence that the owners and operators of Jackson Auto

Service had recently been convicted in federal court for

distributing multi-ton quantities of marijuana from that location

during the time Guerra claims to have worked there. Across the

street from Jackson Auto Service is Rueben's Automotive, which is

owned by Desi Guerra. The adjoining property is also owned by Desi

Guerra and in the past was occupied by two other defendants in this

case. Guerra's home address is 414 Finfrock; Desi Guerra owns 412

and 415 Finfrock. The government also offered proof that 415

Finfrock was the location of the seizure of 415 pounds of marijuana

in January 1990. The government presented evidence that this case

involves a family run marijuana enterprise that began in 1977.

According to the government testimony, Desi Guerra and Onofre

Guerra are the co-heads and they utilize family members as couriers

for the distribution of marijuana and currency. The government

presented evidence that this family operation imports as much as

two tons of marijuana a week. Desi Guerra is married to Guerra's

sister; Onofre Guerra, as we have noted, is Guerra's brother. In

view of this background, the government urges that Guerra's family

-5- ties and his ties to the community are suspect. For this reason,

the government contends that he has failed to overcome the

presumption that no condition or combination of conditions will

reasonably assure his presence at trial and he is therefore a

flight risk.

After hearing all of this evidence, the magistrate concluded

that Guerra was actively engaged in marijuana trafficking and was

a danger to the community. The magistrate also concluded that

there was reason to believe Guerra would flee the jurisdiction if

released. For these reasons, the magistrate held that no

conditions or combination of conditions could assure the safety of

the community or the presence of Guerra if he were released pending

trial. Accordingly, the magistrate ordered the pretrial detention

of Guerra.

C

The magistrate judge conducted a detention hearing for Rueben

on May 30, 1991. The government sought pretrial detention on the

dual grounds that Rueben constituted both a risk of flight and a

danger to the community. The government called a special agent as

a witness. Rueben's counsel cross-examined this witness, but did

not call witnesses or present evidence.

The government first presented evidence that Rueben was

identified by a confidential informant in 1987 as being involved

with his brothers in the distribution of cocaine. The source of

the cocaine was identified as "Adam," and the pager number was

-6- assigned to Adam Troy Contreras. In October 1990, while Rueben was

on probation, Adam Troy Contreras was intercepted on a pen register

and wiretap of a telephone at Rueben's Automotive, 1012 W. Jackson,

Pasedena, which was Rueben's business address. According to the

government, the intercepted conversations include Rueben arranging

transactions in cocaine to take place at Rueben's Automotive. The

government further offered proof that surveillance established that

these transactions did take place and at least one delivery took

place at Rueben's residence.

In May 1989, Rueben pled guilty to a Texas state felony charge

of possession of cocaine and was placed on two years probation.

The government presented evidence that six months after being

placed on probation, Rueben participated in loading two vehicles at

1018 W. Jackson with approximately one hundred pounds of marijuana

each. One of these vehicles was later seized in Baton Rouge.

Eight months after being placed on probation, Rueben was discovered

in possession of at least 511 pounds of marijuana at his brother's

415 Finfrock residence. This marijuana was seized pursuant to a

search warrant based on information received concerning Rueben's

activity at that location. According to the government,

immediately prior to the execution of the search warrant

surveillance revealed the presence of two vehicles registered to

Rueben at 415 Finfrock and travel by Rueben, carrying suitcases,

between 415 Finfrock and the nearby Rueben's Automotive.

-7- Fourteen months after being placed on probation, Rueben was

arrested in Pennsylvania for unlawfully possessing a firearm. The

government stated that Rueben admitted to the arresting officers

that he had delivered 1,100 pounds of marijuana several days

earlier and gave the location of the delivery.3 At this location,

officers found approximately $950,000 cash, approximately twenty-

five pounds of marijuana, and the horse trailer that had been used

to transport the marijuana. During this Pennsylvania incident,

Rueben violated numerous terms of his Texas probation.

The government presented evidence that while Rueben was on

pre-trial release on his Pennsylvania firearms charge and prior to

the entry of his guilty plea, which was also seventeen months after

being placed on probation in Texas, he arranged cocaine

transactions from his business and home. The government stated

that these transactions were revealed by a court authorized wiretap

of the telephone at Rueben's Automotive and that contemporaneous

surveillance also established that Rueben did in fact conduct these

transactions.

Twenty-three months after being placed on probation in Texas

and five months after being placed on probation in Pennsylvania for

the firearms conviction, Rueben's residence at 7707 Grahamcrest was

searched pursuant to a search warrant. Authorities discovered

cocaine and eight firearms, one of which was fully automatic. A

3 In his appeal brief Rueben denies that he made this statement.

-8- simultaneously executed search warrant of Rueben's Automotive

revealed a quantity of marijuana.

The government contended that all of these factors led to the

conclusion that Rueben would continue to deal in drugs if released

on bond pending trial, and for this reason Rueben constituted a

danger to the community. The government also argued that Rueben's

family ties are actually a contributing factor to his continued

criminal activity and increase the likelihood of his continued

criminal activities because his wife and two brothers are criminal

associates.

Following the hearing at which all of this evidence was

presented, the magistrate found that Rueben was actively engaged in

marijuana and cocaine trafficking and that no conditions or

combination of conditions could assure the safety of the community

if he were released. The magistrate also concluded that Rueben had

not rebutted the presumption of risk of flight. Accordingly, the

magistrate ordered that Rueben be detained pending his trial.

II

A

On September 30, 1991, four months after his hearing, Guerra

filed a motion to revoke the detention order. In his motion,

Guerra alleged the following:

(1) He is thirty-six years old, a citizen of the United States, and has never had a passport; (2) All of his identification records are in his name and there has been no suggestion that he has used any other name or identity;

-9- (3) He has been married for sixteen years and has two sons; (4) He and his wife have lived at 414 Finfrock in Pasadena, Texas, for the last thirteen years; (5) His house is mortgaged to Homestead Savings; (6) His two sisters and their families have lived in the Houston area for many years; (7) He has completed his GED; (8) Because of the economic hardship of his being in custody and not being able to work his family is about to be evicted from their home; (9) His family are faithful members of a church and regularly attend church services.

Guerra argued that there are conditions that will assure his

appearance and that he will not endanger the safety of any other

person or the community. On October 4, 1991, the government filed

an opposition and on November 27, 1991, the district court denied

Guerra's motion to revoke the detention order. Guerra did not

appeal this order.

On February 11, 1992, nine months after his detention hearing,

Rueben filed with the district court his motion to revoke the

detention order. Rueben stated the following facts:

(1) He is thirty years old and acquired resident alien status in 1968; (2) He has lived in the Houston area continually for the last twenty-three years; (3) In the Pre-Trial Report it states that he has established community ties through school, employment, residence, and family; (4) All of his identifications are in his name and the government does not suggest hat he has used any other name or identity; (5) He has been married since 1984; (6) He and his wife have lived in a house in Houston for nearly ten years; (7) He has no record of failing to appear for court in his prior matters; (8) His business was the subject of a government search in April 1991 but he was not arrested for crimes relating to the seized documents until May 1991;

-10- (9) If he were planning to flee, he would have done so during the time between the search and the arrest; (10) Not taking advantage of this opportunity to flee is indicative of his commitment to stay in the community and resolve this matter; (11) It is virtually impossible to prepare his defense while he is incarcerated.

Rueben contended that there were conditions that would reasonably

assure his appearance at trial and that he will not endanger the

safety of any other person or the community. The government filed

its opposition on July 9, 1992. On July 16, 1992, the district

court denied Rueben's motion. Rueben did not appeal this order.

B

On August 24, 1992, at an unrelated hearing involving Guerra

and Rueben, the district court judge commented that pretrial

services was reviewing the pretrial detention orders of unspecified

defendants. The prosecutor requested that the district court

include a stay provision in any order of release. According to the

government, the district court denied this request and stated that

no stay of release order would be granted under any circumstances,

including an appeal of that release order to this court.

On September 8, 1992, the government received an order entered

on September 3 requiring it to show cause why Guerra and Rueben

should be detained pending trial. The government filed its

opposition the following day. On September 9 the district court

revoked the detention order and issued conditions of release for

Guerra and Rueben. The district court ordered that Rueben and

Guerra be released on $100,000 unsecured bonds under the standard

-11- conditions and (1) that they be subject to electronic monitoring

for ninety days, with a schedule to be set by pretrial services and

to include a reasonable curfew; (2) that their travel be restricted

to Harris County; and (3) that they be subject to random urinalysis

and treatment if requested by pretrial services.

The government received a copy of this order on September 9 at

approximately 6:30 P.M., and was informed that Guerra and Rueben

would be released September 10 at 10:00 A.M. following an in-court

appearance. The government filed a notice of appeal at 8:30 A.M.

on September 10, 1992, and this court granted a stay of the order

revoking detention pending the outcome of this appeal.

III

On appeal, the government argues that the district court

clearly abused its discretion in revoking the detention order for

Guerra and Rueben because the factors set forth in § 3142(g) were

not weighed and no reasons for the action were assigned. The

government further contends that the district court's revocation of

the detention order and imposition of conditions of release lacks

support in the record. The government also urges that the district

court was required to issue written findings concerning why the

magistrate's detention order was revoked. On the other hand,

Guerra and Rueben argue that the government has failed to

demonstrate that the district court has clearly and erroneously

abused its discretion in allowing bail. Guerra and Rueben further

argue that the Bail Reform Act does not require the district court

-12- to issue written findings in granting conditions of release.

Guerra and Rueben finally assert that the district court is

permitted to release detained defendants for preparation of their

defense or for compelling reason.

IV

A

When the district court acts on a motion to revoke or amend a

magistrate's pretrial detention order, the district court acts de

novo and must make an independent determination of the proper

pretrial detention or conditions for release. United States v.

Fortna,

(5th Cir. 1985). Absent an error of law,

we must uphold a district court order "if it is supported by the

proceedings below," a deferential standard of review that we equate

to the abuse-of-discretion standard. United States v. Hare,

(5th Cir. 1989). On appeal, the question becomes

whether the evidence as a whole supports the conclusions of the

proceedings below. United States v. Trosper,

(5th Cir. 1987).

B

Under the Bail Reform Act, the existence of probable cause to

believe that the defendant committed a crime in violation of

, et seq., creates a rebuttable presumption that no

conditions of release exist that would reasonably assure the

appearance of the person as required and the safety of the

community.

(e). We have previously held that when

-13- the defendant has presented considerable evidence of his

longstanding ties to the locality in which he faces trial, the

presumption of flight has been rebutted. United States v. Jackson,

(5th Cir. 1988). We have also held, however,

that the risk of continued narcotics trafficking on bail does

constitute a risk to the community. Hare,

(citing

United States v. Hawkins,

(5th Cir.), cert. denied,

(1980)). For pretrial detention to be imposed on a

defendant, the lack of reasonable assurance of either the

defendant's appearance, or the safety of others or the community,

is sufficient; both are not required. Hare,

;

Fortna,

.

The rebuttable presumption of § 3142(e) shifts to the

defendant only the burden of producing rebutting evidence, not the

burden of persuasion; however, the mere production of evidence does

not completely rebut the presumption. Hare,

. In

making its ultimate determination, the court may still consider the

finding by Congress that drug offenders pose a special risk of

flight and dangerousness to society.

.

Section 3142(g) lists factors the judicial officer considers

in determining whether there are conditions of release that will

reasonably assure the appearance of the person as required and the

safety of any other person and the community. These include the

nature and circumstances of the offense charged, including whether

the offense involves a narcotic drug; the weight of the evidence

-14- against the person; the history and characteristics of the person,

including the person's character, family ties, employment,

financial resources, length of residence in the community,

community ties, past conduct, history relating to drug or alcohol

abuse, criminal history, and record concerning appearance at court

proceedings; and the nature and seriousness of the danger to any

person or the community that would be posed by the person's

release.

C

After reviewing the evidence as a whole, we conclude that the

decision of the district court simply is not supported by the

proceedings below. We can only assume that implicit in the

district court's order is the finding that Guerra and Rueben have

overcome the presumption that they are flight risks or a danger to

the community. It is a finding that is unsupported. First, Guerra

and Rueben have not rebutted the presumption that they are flight

risks. Their alleged family ties was hardly more than a reflection

of the drug conspiracy itself. It is certainly not the sort of

family ties from which we can infer that a defendant is so deeply

committed and personally attached that he cannot be driven from it

by the threat of a long prison sentence. Moreover, the fact that

one owns a house is not compelling as a tie to the community when

its loss through forfeiture is a possibility because of its use in

drug trafficking. Similarly, a job is meaningless as an indicator

of future appearances before the court when it is directly

-15- connected to drug trafficking. Additionally, neither of these

witnesses presented any testimony to rebut the government's strong

case against them. In short, Guerra and Rueben have introduced no

evidence to support their position that their appearance at trial

can be reasonably assured. Accordingly, they have not rebutted

the presumption that they are flight risks and that no condition or

combination of conditions will reasonably assure their appearance

at trial.

Guerra and Rueben have likewise not rebutted the presumption

that they are a danger to the community. The government presented

substantial evidence to show that Guerra and Rueben have

continuously engaged in the trafficking of drugs for several years,

including while being on parole or shortly after being released

from parole. Guerra and Rueben, on the other hand, have presented

absolutely no evidence whatsoever to indicate that they will not

continue to engage in drug trafficking if released on bail pending

trial. Guerra and Rueben have therefore not overcome the

presumption that they constitute a danger to the community.

V

We conclude that the district court erred in revoking the

pretrial detention order for Guerra and Rueben. The district

court's decision to revoke the detention order and issue conditions

of release for Guerra and Rueben is not supported by the

proceedings below. The evidence as a whole does not support the

conclusion that Guerra and Rueben are neither a flight risk nor a

-16- danger to the community. We therefore reverse and vacate the order

of the district court.

REVERSED and VACATED.

-17-