You are on page 1of 19

USCA1 Opinion

April 21, 1992

[NOT FOR PUBLICATION]

____________________
No. 92-1126
No. 92-1129
UNITED STATES,
Appellee,
v.
PETER KATTAR,
Defendant, Appellant.
____________________
No. 92-1127
UNITED STATES,
Appellee,
v.
SAYED HACHEM,
Defendant, Appellant.
____________________
No. 92-1128
UNITED STATES,
Appellee,
v.

DAVID ABDOO,
Defendant, Appellant.
__________________

APPEALS FROM THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Campbell, Senior Circuit Judge,
____________________
and Selya, Circuit Judge.
_____________
____________________

James B. Krasnoo on brief for appellant, Peter Kattar.


________________
Douglas I. Louison and Merrick & Louison on brief for appella
__________________
__________________
Sayed Hachem.
Albert F. Cullen, Jr. and Cullen
& Butters on brief
________________________
___________________
appellant, David Abdoo.
A. John Pappalardo, Acting United States Attorney, and Robert
___________________
______
Iuliano, Assistant United States Attorney, on brief for appellee.
_______

____________________
____________________

Per Curiam.
__________

In these consolidated appeals,

Peter

Kattar, Sayed Hachem and David Abdoo appeal from the decision
of

the United

Massachusetts

States

District Court

denying their

requests

for

the District

for

release

of

pending

trial.
BACKGROUND
__________
Appellants
defendants,
violation

were

on charges

indicted, along

of conspiring

of 21 U.S.C.

963.

with

nine other

to import

hashish in

Kattar and

Abdoo also were

charged with conspiring to possess hashish with the intent to


distribute it in
of

hashish

involved

government
3142(f).
and

violation of 21 U.S.C.

moved

The amount

approximately three

to detain

appellants

tons.

under

The

18 U.S.C.

A magistrate judge held a hearing concerning Kattar

Hachem on

September 4, 1991.

magistrate judge

all three

As

for Abdoo,

held hearings on September

and December 4, 1991.

that no

was

864.1

the same

9, November 27,

The magistrate judge determined

that

appellants presented a danger to the community and


conditions or

combination of conditions

of release

would reasonably assure the safety of the community.

He also

found that Kattar and Hachem presented risks of flight.


On
held

as to

appeal to
each

the trial

appellant.

The

judge, new
trial judge

hearings were
upheld

the

____________________
1. In a separate indictment, Kattar was charged with money
laundering in violation of 18 U.S.C.
1956(a)(3).
-3-

detention

orders

addition,

the judge concluded that Abdoo presented a risk of

flight as

well as a danger

judge did

not make written findings, the

hearings

entered

reveal that

by

the

magistrate

to the community.

he clearly

judge;

in

Although the

transcripts of the

articulated the

reasons upon which he based his affirmance of

facts and

the magistrate

judge's detention orders.


STANDARD OF REVIEW
__________________
It
independent
deference
States
______

as

now

standard

O'Brien,
_______

appellate

factbound

by

of

well-settled
review

which

895
courts

F.2d 810,
are

we

employ

nonetheless

disputes, this standard

practical

matter,

to

882-83

1990).

and made

(1st

an

gives

See United
___ ______
Cir.
to

1990).
resolve

cedes particular respect,

the

United States v.
______________

(1st Cir.

814

"ill-equipped

determinations."

evidence

that

to the decision of the district court.

v.

Because

is

Where the

carefully detailed

lower

court's

factual

Tortora, 922
_______

F.2d 880,

trial court

has taken

findings, as

in this

case,

the

degree of

guidelines

deference is

in mind, we turn

heightened.

to the merits

With these

of the detention

orders.
THE DISTRICT COURT'S FINDINGS
_____________________________
The grand jury indictment, which gave

the district

court probable cause to believe that appellants had committed


offenses for which

they could receive sentences of ten years

-4-

or

more

U.S.C.

for violating

Controlled

801 et seq., triggers

contained in
F.2d

the

1412,

rebuttal

3142(e).
1416

by

the

(1st

Substances Act,

the "rebuttable presumption"

See United States


___ _____________
Cir.

person,

it

21

1991).

v. Dillon,
______

Thus,

shall

be

938

"[s]ubject to

presumed

that

no

condition or combination of conditions will reasonably assure


the

appearance of the person

the community.

. . ."

persuasion remains
retains

evidentiary

on

as required and

18 U.S.C.

3142(e).

the government
weight where,

the safety of

and

as here

The burden of
the

presumption

and as

in most

cases, the

defendants come

evidence.

See
___

forward

with "some"

refutatory

id.; see also United States v. Perez-Franco,


___ ___ ____ ______________
____________

839 F.2d 867, 870 (1st Cir. 1988) (per curiam).


As

for

risk

of

establish by a preponderance

flight,

the

government

of the evidence that no

must
set of

conditions of release will

reasonably assure the presence of

the appellants as required.

See United States v. Patriarca,


___ ______________
_________

948 F.2d

789, 793 (1st Cir. 1991) (preponderance of evidence

standard applies to risk

of flight determinations);

938 F.2d at 1416.

To measure whether

this

district court

burden, the

the government has met

is required

account the relevant factors set forth in


weight

of the

circumstances

evidence
of

characteristics

of

as to

guilt;

the

crime

the

accused,

Dillon,
______

to take

3142(g):
(2) the

charged;
including

and

into

(1) the

nature

and

(3)

the

community

and

-5-

family

ties,

employment.

past

history,

financial

resources

and

We summarize the findings of the district court.

(1)

Weight of the Evidence


______________________
The evidence

presented by

the government was

the

result of an extensive investigation conducted by the Federal


Bureau of
Firearms

Investigation, the Bureau of


and

the

United

States

Customs

investigation occurred

over a period

and

of

involved

undercover

the use

electronic

Service.

of more than

a confidential

FBI agent, both

Kattar and Hachem; the

Alcohol, Tobacco and

of whom had

the

one year

informant

and an

direct contact with

government also employed physical and

surveillance,

including

the

interception

recording of telephone and oral communications.


court

This

concluded that, in the light

and

The district

of such direct evidence,

government had a very strong case.

The question whether

evidence such as tape recordings will be

admissable at trial

does

for pre-trial

not

preclude their

decisions.
(2)

bail

See Tortora, 922 F.2d at 886.


___ _______

The Nature of the Offense


_________________________
Kattar

conspiracy.

He

acted
is a

passports, however, one


issued by
a

consideration

Lebanon.

bank account

as

the

organizer

United States

of

citizen.

issued by the United

the

alleged

He has

two

States and one

He also owns property in Lebanon and has

there.

Hachem

-6-

is

a citizen

of

Lebanon,

although

he has lived in the

years as a resident
Hachem, he

alien.

had sufficient

United States for the past ten


According to statements

political contacts in

made by

Lebanon to

expedite the importation of the hashish.


Through
access

these

contacts

and

others,

Kattar

to large amounts of hashish grown in Lebanon.

a resident of Vermont,

had

Abdoo,

and another defendant provided Kattar

with purchasers for the hashish -- an organized crime network


in Canada.

If

successful, Kattar planned to import

on a monthly basis.
shipment

As part of the effort to bring the first

of hashish into this country, Kattar and Abdoo each

advanced $100,000.
on two occasions.
fact,

hashish

In

addition, Kattar travelled to Lebanon

Hachem visited Lebanon more frequently; in

he personally

oversaw

the initial

packaging of

the

hashish.
As a result
Lebanon in May 1991.
approximately
packed
and

600

of these efforts, a ship departed from


On it was a sealed container

barrels were

housed.

in which

The hashish

was

inside over 300 of the barrels under layers of olives

Lebanese spices.

United States Customs officials seized

the container when the ship arrived in Boston in August 1991.


According
hearing

to an FBI agent who testified at the September 9th


before

the

magistrate

judge, the

three

tons

of

hashish had a street value in Canada of over $90,000,000.


(3)

Individual Characteristics
__________________________

-7-

(a)
longstanding

Kattar.
______

The trial judge acknowledged Kattar's

ties to the community in which he lived and the

presence in his life of substantial family ties.

Contrary to

the government's assertion, the judge accepted Kattar's claim


that he

was legitimately involved in

business.

Nonetheless, the

employment

was

activities.

"in

In

no

addition

there was evidence

the financial services

judge determined

small part"
to the

that Kattar

that Kattar's

connected

to

illegal

drug trafficking

scheme,

intended to act

as an

arms

importer.

Specifically, when the undercover agent, posing as

a foreign

mercenary, asked whether Kattar

for him, Kattar

indicated that

he could.

could obtain guns


At a

subsequent

meeting between Kattar, Abdoo and the agent, Kattar indicated


that Abdoo

would be

securing the

weapons requested

by the

agent.
The
contacts and
exit from this

judge

knowledge

than one

country

that

Kattar

had

concerning ways

country and

noted by the judge,


more

found

to

Although

it is undisputed that Kattar

occasion, that

he would

should he be apprehended.

sixty-one

surreptitiously

flee to Lebanon.

years

of

age,

not

stated, on

not remain

in this

The pressure to flee, the

court concluded, was particularly strong


is

international

faces,

because Kattar, who


if

convicted,

what

essentially may turn out to be a life sentence.

-8-

(b)

Hachem.
______

Like

Hachem had the international


a

Kattar, the

judge found

that

contacts and know-how to effect

departure from this country.

In addition,

alien, Hachem, should

he be convicted,

deportation after his

prison term.

as a resident

would be faced

Thus,

with

the court pointed

out, the only difference to Hachem is "whether or not he will


serve time in an American prison before he's deported."
(c)

Abdoo.
_____

The judge determined that Abdoo was a

core figure in Kattar's operation, serving as a broker and as


a financier.

In so finding,

the judge specifically rejected

Abdoo's claim that he had withdrawn from the drug deal before
the
that

shipment arrived

in Boston.

The

government contended

Abdoo also had been involved in two aborted attempts to

smuggle hashish directly into Canada.

These schemes involved

the use of boats, diving teams, and underwater storage of the


drugs at certain buoy markers.
that

the evidence only

The judge concluded, however,

supported a

finding that

Abdoo was

quite familiar with international drug traffic in general and


the above operations in particular.
details

of the

reflected

access

two

Abdoo's knowledge of the

Canadian operations,
to

non-public

sources

the judge
of

found,

information

concerning the activities of organized crime in Canada.


As for
trial judge

Abdoo's involvement in the

rejected the government's

arms trade, the

allegation that Abdoo

had sought to purchase weapons from an individual in Vermont.

-9-

The

evidence,

Nonetheless,
the

the

judge

concluded, was

the judge credited

undercover agent

Kattar's

source

silence,

Abdoo

of

that

The

essentially

conflicting.

the information provided by

Kattar had

arms.

too

identified Abdoo

court
had

noted

that by

"ratified"

as
his

Kattar's

description of Abdoo's role.


Abdoo

presented

testimony

individuals

who had personal

with

These

him.

and

affidavits

from

and professional relationships

individuals attested

to Abdoo's

general

reputation and charitable activities in the community and his


good

standing as

stated

a respected

that Abdoo

given the

would

fact that

he

businessman.

not flee
runs two

They generally

if released,

especially

successful businesses

in

Vermont.
The judge acknowledged that the decision whether to
detain Abdoo pending
the

one hand,

history
impact

trial presented a

Abdoo had

of drug

or

no prior

those who

criminal history

alcohol abuse;

on his community were

close question.

his

positive.

and no

reputation in
On

had submitted character references

On

and

the other hand,


obviously were

not familiar with the history and characteristics revealed by


the charges contained in the indictment.
Weighing
strength

of the

the seriousness of
government's

these charges and the

case against

Abdoo's "public

character" and relation to the community, the court concluded

-10-

that there

were no

conditions that would

Abdoo's presence at trial.

reasonably assure

Specifically, Abdoo's familiarity

with international drug operations and his apparent access to


large

amounts

of

cash

supported

finding

that

Abdoo

presented a risk of flight.


DISCUSSION
__________
On appeal, Kattar argues that it would, in fact, be
very difficult for him to
Lebanese

flee.

He offers to turn

passport, maintaining that

over his

without it, his alleged

Lebanese contacts could not aid him in entering that country.


He

next

resources.

contends

that

Because the

he

has

no

first (and,

shipment was confiscated, Kattar

available
he claims,

financial
only) drug

maintains he never actually

possessed the hashish or realized any profit from selling it.


He emphasizes that if
his wife were used
he

could

raise the

his real estate holdings and

as security, there is no
amount

of money

those of

likelihood that

needed to

flee.

In

addition,

he avers that as

a result of

the first

shipment, there

is no existing

that could assist him in relocating.


to Lebanon, Kattar avers
and,

on one

occasion,

drug organization
for his prior trips

that he travelled there reluctantly


only at

confidential informant or the


points to the

As

the interception of

the

urging of

either

undercover agent.

fact that he was released prior

the

Finally, he
to trial in a

previous federal case and always had appeared as required.

-11-

Hachem argues that


community along
assets

with

adequately

his ten-year

the absence

rebuts the

residency in

of significant

presumption

of

the

financial

flight.

In

addition, as a minor player in the alleged conspiracy, Hachem


contends that he did not have access to any of the money used
to finance
without

the drug enterprise.

aid from

Without

Kattar's organization

Kattar, maintains has essentially

his passport
which Hachem,

and
like

been disabled, he does not

have the means or wherewithal to seek asylum elsewhere.


Abdoo argues

that the government

did not

produce

"clear and convincing"

evidence that he presented a

flight.

his admittedly strong

and

He points to

lack of criminal history.

fund a departure,
for

As

risk of

community ties

for his access to cash to

Abdoo maintains that there

was no support

the court's finding that he had strong ties to organized

crime in

Canada.

nothing more
deal

Rather, he

than monies

from which

court erred in

asserts, the evidence

becoming available to

Abdoo withdrew."
finding that no

reasonably assure

Thus, Abdoo

finance one
states, the

conditions of release

his appearance

at trial.

"shows

would

Finally, Abdoo

argues that his rights to due process and a speedy trial will
be violated if he is detained
number

of

audiotapes

of

pending trial.

surveillance

Because of the

and the

voluminous

transcripts that must be reviewed, pretrial detention will be


prolonged, he contends, through no fault of his own.

-12-

We

find

that

the

outweigh those favoring release.

factors

favoring

detention

Although Kattar has strong

community and family ties, his own words render him a risk of

flight.

The fact that he appeared in court as

he previously
change

our

offense

was under indictment


calculation.

The

were not as severe

required when

for mail fraud

penal

does not

consequences of

that

as those Kattar currently faces.

As for Hachem, the prospect of deportation if he is convicted


provides a motive

for flight.

This is

not outbalanced

by

Hachem's ten-year residency in this country.


Although Abdoo

presents a

that the trial judge's finding


would

reasonably

supported

by the

history and
is

evidence.

We

presence
are

gravity

Abdoo
a

of

the

at

mindful of

think

charges

and

trial
his

was a central

past

figure in
which

tons of hashish.
the

is

Nonetheless, this

criminal enterprise

importing over three

government's case,
We

Abdoo's

and organizing

successful in
the

assure

drug case.

case, we

that no conditions of release

reputation in the community.

no ordinary

financing

closer

Given

strength

the incentive to relocate

was

of

the

is pronounced.

note, in relation to Abdoo's due process and speedy trial

claims, that

it is

speculation,

whether

too
his

sufficiently long enough

early to
pretrial

ascertain, without
incarceration

undue

will

be

to trigger constitutional concerns.

See Tortora, 922 F.2d at 889.


___ _______

-13-

In sum,
all three

we find

appellants were

that the evidence


involved in the

indicates that
kind of

"highly

lucrative" drug operation that prompted Congress to enact the


Bail Reform Act.
presumption

As we have explained before, the rebuttable

contained

in

3142(e)

reflects

Congress's

finding that generally drug traffickers pose special risks of


flight.

See
___

17 (1st

Cir. 1987)

district

court

appellants'
would

United States v. Palmer-Contreras, 835 F.2d 15,


_____________
________________

did not

proffer of

reasonably

Because

(per curiam).

we conclude

err

in

Thus,

determining that,

evidence,

assure

we hold that

their

that detention

no conditions
appearance

as

is required

the

despite

of release
required.
to prevent

flight, we need not address the issue whether appellants also


present a

danger to the

community.

Cf.
___

United States v.
______________

Jessup, 757 F.2d 378, 380 (1st Cir. 1985).


______
The judgment of the district court is affirmed.
________

-14-