United States v. Santiago-Méndez (599 F. Supp. 2d 95, 2009)

AMENDED ORDER DENYING BAIL

DANIEL R. DOMINGUEZ, District Judge.

Pending before the court is a barrage of emergency motions requesting reconsideration of the bail request denied by the court on the afternoon of the verdict on December 19, 2008.

FACTUAL AND PROCEDURAL BACKGROUND

Co-defendants [2] Pascual Santiago-Méndez, [3] Anthony Domínguez-Colón, [4] Víctor Cortes-Cabán, and [5] Luis Ru-perto-Torres were all found guilty of Count One of the indictment charging a violation of civil rights under 18 U.S.C. 241 consisting of the deprivation of enjoyment of rights secured by citizens to be free from injury, oppression, threats, and intimidation in the free exercise of rights secured to them by the United States Constitution. The specific rights constituted “unreasonable search and seizure by one acting under color of law (co-defendants acting as policemen) to be free from being detained and arrested based on fabricated evidence (the planting of drugs by police officers) and “[t]he right not to be deprived of liberty without due process of law, which includes the right not to have false evidence (planting of drugs presented against them, citizens of the town of Maya-guez) by one acting under color of law.” (Indictment Docket 3, id.)

Co-defendants [2] Pascual Santiago Méndez, [3] Anthony Domínguez Colón, [4] Victor Cortes Cab x n, and [ ] Luis Ruper-to Torres were found also guilty of Count Two which was a conspiracy to possess with intent to distribute controlled substances (marihuana, cocaine, cocaine base and heroin) of sufficient amount found by the jury warranting a jail sentence of at least five years and up to a maximum of forty years. A black box containing all varieties of drugs was regularly located at the offices of codefendant [2] Pascual Santiago Méndez in a file cabinet under his control which was temporarily transferred in his absence to the work desk of [6] Luis Vélez Class. The object of the conspiracy was “to possess with intent to distribute controlled substances (to be used) in the fabrication of cases in the Commonwealth of Puerto Rico.” Co-defendant Luis Ruper-to Torres was found innocent of the narcotics’ conspiracy, Count No. 2.

The court was not originally convinced on the afternoon of the verdict that the defendants charged under the civil rights violations produced “clear and convincing evidence” that they were not a danger to the community, the presumption of detention prevailing over the individual proffers of the defendants made by their respective counsel. As to the defendants found guilty as to the drug conspiracy, all co-defendants except [5] Luis Ruperto Torres, the court found that they were a danger to the community, the presumption of danger to the community prevailing for a violation of a narcotic violation involving a sentence of ten or more years.

The pending motions are the following: “Emergency Motion Requesting Reconsideration of Bail Denial Pending Sentencing et al.” filed by co-defendant [5] Luis Ru-perto Torres, Docket No. 420; “Motion Requesting Bail Pending Sentence” filed by eodefendant [2] Pascual Santiago Mén-dez, Docket No. 436; “Motion Requesting Codefendants Request for Bail and Hearing” filed by co-defendant Anthony Dominguez Colón, Docket No. 432; “Second Urgent Motion for Reconsideration and Bail” filed by co-defendant [5] Luis Ruperto Torres, Docket No. 440; “Motion Joining Co-defendants Request for Bail and Hearing” filed by co-defendant [4] Victor Cortes Caban, Docket No. 442. The court held a hearing after the court re-opened after the holidays on December 29, 2008. (D. 452.)

Co-defendant [5] Luis Ruperto Torres in his original motion alleges that because he was found innocent as to the drug count, the same conclusion must follow in the second count. He thus alleges an inconsistent verdict resolution. The court disagrees based on jurisprudence set forth by the Supreme Court. (See discussion infra.)

Co-defendant [5] Luis Ruperto Torres further alleges that he is the father of five children ranging between the ages of 27 to 7 years and raising two children of his current wife, ages 10 and 7 years old. He has no prior record and has been a policeman for seventeen (17) years with a clear record, promoted to Sargent, now married to a policewoman. He allegedly complies with the criteria of not likely to flee and not posing a danger to the community. Further, it is alleged, that he is no longer a member of the police and unlikely to continue his conduct. He is not likely to flee because the maximum sentence is only 10 years and his guideline sentence is not “more than three years.” (Docket No. 420 p. 5.) Defendant emphasizes the necessity of the children being with their father in Christmas Season for the well being of his family ties. Defendant moves the court for more stringent conditions of release in substitution of imprisonment. Defendant further alleges that he has a strong case of dismissal under Rule 29. The court agrees that the proper standard is the case of United States v. Bayko, 774 F.2d 516, 522-523 (1st Cir.1985). But the issue in the court’s opinion is first one of sufficiency of evidence which the court discusses on a defendant to defendant basis infra. Defendant further alleges that no overt charges were charged nor proven as to [5] Luis Ruperto Torres “reviewing] and approving] false statements.” Docket No. 420, p. 8. But, the issue is not whether defendant actually incurred in a specific substantive conduct of the conspiracy; the issue is if he participated in the “plan to violate civil rights.” Defendant’s counsel also avers that defendant is not a danger to the community because he is no longer a member of the police force, and, hence, is impeded from continuing with the fabrication of evidence. But defendant does not account for the presumption of danger to the community created by the conviction, discussed infra nor the potential danger to the three co-defendants who testified against all co-defendants who faced the criminal charges. (See discussion infra.) Finally, defendant [5] Luis Ruperto Torres alleges that he has no proclivity “to violate the civil rights of citizens.” His admissions in the video, Ex. 11, indicate the contrary (see discussion infra). (Docket No. 420 p. 9.) He therefore requests bail.

Co-defendant [2] Pascual Santiago-Mén-dez request bond on the hearing date following the bail relief of co-defendant [5] Luis Ruperto Torres and requests to join. (Docket No. 436.) Co-defendant [3] Anthony Domínguez-Colón joins the request for bail of other co-defendants at Docket No. 437. Co-defendant Dominguez accepts that he made a threat to cooperator co-defendant [7] Josué Bosques-Muñiz but that Bosques-Muñiz never felt threatened. Further, Domínguez and his wife received various phone calls afterwards from Bos-ques Muñiz offering help as to the trial. The wife of Dominguez testified that all the phone calls occurred before Josué Bos-ques-Muñiz became known as a testimonial cooperator with the government. Co-defendant Domínguez-Colón alleges that he is neither a flight risk nor a danger to the community. Co-defendant Dominguez further urges the imposition of other more stringent bail conditions instead of detention. He urges bail considering his compliance with prior court bail conditions.

Co-defendant [4] Cortes-Caban filed a motion entitled “Motion Joining Co-defendants Request for Bail and Hearing,” Docket No. 442. Co-defendant Cortes-Ca-ban avers that by “clear and convincing evidence” the court has authority to determine that defendant is not a flight risk nor a danger to the community. Defendant avers that “he is not likely to flee nor does he pose a danger to anyone.” (Docket No. 442, p. 1). He further urges the court to impose more stringent conditions including increasing the money guarantee and including a family member as a third party custodian. He also alleges that he has faithfully complied with all bond obligations during the last year and hence “there is no reason he will not [continue] to comply.” (Docket No. 442 p. 2.)

The United States filed a timely opposition to the motions for the release of all defendants at Docket No. 445. The United States first stresses the court as to the guidelines calculations proposed by co-defendant Ruperto Torres that the calculation made by defense counsel at Docket No. 420 are understated. Notwithstanding not including any potential role in the offense, yield an adjusted offense level of twenty-three (23) points meaning a potential sentence of 43 to 57 months. Further, all appearing defendants, except Luis Ruperto Torres, were found guilty as to Count Two, the drug conspiracy charge (possession with intent to distribute) are facing a statutory minimum of five years and a maximum of forty years. The United States reiterates that pursuant to 18 U.S.C. 3143 the defendants are presumed to be detained except if they prove by “clear and convincing evidence” that they are not to flee nor a danger to the community. The defendants may also raise after verdict a substantive legal or factual issue to the trial court that complies with the standard set forth under United States v. Bayko, 774 F.2d 516, 523 (1st Cir.1985) which may cause that bail be granted. The court must, therefore, examine the legal issues raised by the defendants that may exculpate them.

The United States, in performing an analysis of the evidence, considers that codefendant Domínguez-Colón made a threat on the life of a cooperator, co-defendant Josué Bosques-Muñiz, who gathered in video and audio tapes most of the incriminating evidence as to the co-defendants. Originally Bosques-Muñiz did not feel threatened because at the time, he was not a known active cooperator. After receiving the original threat, he testified in court and became a target of threat that is now a reality as a known cooperator and principal witness.

As to co-defendant Luis Ruperto Torres, who was found guilty only as to Count One, notwithstanding that the defendant alleges that there is no evidence as to civil rights violations, the government alleges that the jury found otherwise. The matter will be examined by the court under a sufficiency of evidence to convict argument under the Rule 29 standard.

The remaining co-defendants were found guilty as to Count One, violation of civil rights, as well as to Count Two the drug charge. Hence, they are presumed to be, according to the United States, by the verdict a danger to the community as well as risk of flight. The risk of flight danger is raised also by a potentially stronger sentence under the narcotics law. (The sentence by the amount of drugs found proven by the jury is from five to forty years.) The United States urges that the bail request made by defendants be denied.

THE STANDARD UNDER 18 USC 3143 BAIL PENDING SENTENCE ON APPEAL

The court follows the standard for bail pending sentence on appeal as set by the Court of Appeals in the cases of United States v. Bayko, 774 F.2d 516, 520-523 (1st Cir.1985); United States v. Castiello, 878 F.2d 554 (1st Cir.1989) and United States v. Abuhamra, 389 F.3d 309, 317-321 (2nd Cir.2004).

The case of United States v. Bayko, 774 F.2d 516, sets forth at the beginnihg a discussion as to the standard for review which is not of this court’s concern. The court, however, determined that “the defendant must show (meaning that the defendant has the burden) ‘by clear and convincing evidence’ that he or she ‘is not likely to flee or pose a danger to the safety of any other person or of the community if released.’ ” United States v. Bayko, 774 F.2d at 520, citing 18 U.S.C.A. 3143(b) (1985). The case of Bayko is also critical as to the significance of an appeal that potentially “raises a substantial question of law or fact likely to result in the reversal” under 18 U.S.C.A. 3143 (a)(2) (A) (i). United States v. Bayko, 774 F.2d at 521-522. Said “substantial question” is to be discussed infra. The case of Castiello, 878 F.2d 554, authorizes the court to use as criteria, as to flight risk, the length of the potential sentence.

The case of United States v. Abuhamra, 389 F.3d 309, 317-321 discusses the constitutional and statutory ramifications of the Bail Review Act particularly after a verdict has been rendered. First, a defendant “having been found guilty beyond a reasonable doubt at trial of felony crimes ... has no substantive constitutional right to bail pending sentencing.” United States v. Abuhamra, 389 F.3d at 317. Further, after guilt determination in a felony case, “present federal law disfavors release on bail,” United States v. Abuhamra, Id., as the statute has a presumption of detention by express language. 18 U.S.C. 3143. (The defendant is to be “detained” unless the guideline calculation does not recommend a term of imprisonment and/or the United States recommends a sentence of no imprisonment.) The defendant carries the burden by establishing under “clear and convincing evidence” standard that he “is not likely to flee or pose a danger to the safety of any other person or the community if released ...” 18 U.S.C. 3143(a). (... “Once a defendant is afforded the considerable process and constitutional protections of a jury trial and found guilty beyond a reasonable doubt, the substantive interest in avoiding punitive detention essentially disappears, and any continued expectation of liberty pending final sentencing depends largely on the statute.”) United States v. Abuhamra, Id. After perusing the constitutional dimensions, the court now proceeds to examine the statutory requirements to determine release and/or detention.

Firstly, “the statute ... the Bail Reform Act of 1984 creates no general expectation of post verdict liberty. To the contrary, it establishes a presumption in favor of detention.” See 18 U.S.C. 3143(a); see also S.Rep. No. 225, 98th Congress, 1st Sess. 26 (1983), reprinted in 1984 U.S.Code Cong, and Administrative News 3182, 3209 (Once guilt of a crime has been established in a court of law, there is no reason to favor release pending imposition of sentence or appeal.) “To secure release on bail after a guilty verdict, a defendant must rebut this presumption with clear and convincing evidence that he is not a risk of flight or a danger to any other person or the community. Citations omitted ...” (“The Committee intends that in overcoming the presumption in favor of detention [in 3143] the burden of proof rests with the defendant.)” (Emphasis ours.)

Notwithstanding, “while this burden is plainly substantial, if a defendant can make the required evidentiary showing, the statute establishes a right to liberty that is not simply discretionary but mandatory.” The [trial] judge “shall order the release of the person in accordance with Section 3142(b) or (c).” United States v. Abuhamra, Id.

Hence, the burden of proving by the standard of “clear and convincing evidence” is on the defendant, the burden “is plainly substantial,” should the defendant comply the judge “shall order the release of the [affected] person.” Therefore, the language of § 3143(a) “confers sufficient liberty interest in continued release ... to warrant some measure of protection.” United States v. Abuhamra, Id. citing Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

However, the individuals release, liberty interest must, on the other hand, be weighted against the government’s “strong and obvious countervailing interest in detaining defendants who have been found guilty beyond a reasonable doubt of serious crimes; such detention providing public safety by removing a presumptively dangerous person from the community; it also encourages general respect for the law by signaling that a guilty person will not be able to avoid or delay imposition and service of the sentence prescribed by law.” United States v. Abuhamra, 389 F.3d at 320.

The enacting Congress, as to the Bail Reform Act, clearly expressed serious concerns relating to continued crimes being committed by person who where then in release of a prior crime and providing the trial courts with authority to detain dangerously and/or likely to flee individuals who have been found guilty. See Rep. 225 supra at 26 reprinted in 1984 U.S.Code Cong, and Administrative Laws at 3185 cited at United States v. Abuhamra, 389 F.3d at 320. “Many of the changes in the Bail Reform Act ... reflect the committees’ determination that federal bail law must address the alarming problem of crimes committed by persons on release and must give courts adequate authority to make release decisions that give appropriate recognition to the danger a person may pose to others if released.”

The government’s interest “in community safety can, in appropriate circumstances, outweigh [that] liberty interest [of the defendant].” United States v. Salerno, 481 U.S. 739, 748, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) cited at Abuhamra, Id.

The court is particularly conscious that “the fact that a person has been found guilty, beyond a reasonable doubt, to have committed a criminal act certainly indicates dangerousness.” Jones v. United States, 463 U.S. 354, 364, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983) cited at Abuhamra, Id. The court notes that a person who fabricates evidence in violation of due process, either to apprehend those the police consider eluding the law, or as a personal vendetta, are engaged in a serious violation, all signifying a presumptable rebuta-ble presumption that may be rebutable but nevertheless a strong presumption of dangerousness.

The same conclusion of dangerousness applies to the crime of drugs by express congressional mandate contained at 18 U.S.C. 3143(a)(2) referring to a detention of a person found guilty wherein a maximum term of ten years or more is contemplated under the Controlled Substances Act as set forth at 18 U.S.C.A. 3142(f)(1)(c) except if the person has filed a motion which “the judicial officer finds there is substantial likelihood that a motion for acquittal will be granted” under 18 U.S.C.A. 3143(a)(2)(A).

In United States v. Bayko, 774 F.2d at 522-523, the First Circuit Court interprets the phrase “substantial question of law or fact” to mean that the matter is a “close question or one that very well could be decided the other way,” adopting the standard of United States v. Giancola, 754 F.2d 898, 901 (1st Cir.1985). The court in Bayko, 774 F.2d at 523 concluded that “[w]e think that the Giancola test more accurately reflects the intent of Congress.” As stated before, the court must analyze any legal or factual arguments which may be “close” causing exculpation of the verdict. These arguments are analyzed separately.

THE APPLICABILITY OF THE STANDARD TO EACH CO-DEFENDANT

A. Anthony Dominguez

At the reconsideration hearing of bail co-defendant Anthony Dominguez, hereinafter referred to as “Dominguez” requested more stringent bail conditions short of outright detention. An additional monetary guarantee was offered; house arrest was urged to be sufficient with an electronic monitoring device.

Further, co-defendant Dominguez proffered through counsel that even after the threat expressed to co-defendant José Bos-ques by Domínguez, Bosques continued to call him and his wife in a cordial friendly manner and the then unknown to be a cooperator urged Dominguez to fight the case. Bosques, therefore, offered help to Dominguez in his case. However, at the time the phone calls were made by Bos-ques to Dominguez and his wife, neither of them knew Bosques was in fact the principal cooperator of the case who, was in fact wired and video taped serious incriminatory evidence. Dominguez further alleges that he has complied with all pre-trial conditions of detention.

Dominguez stands convicted of a count of conspiracy related to a violation of possession of drugs with intent to distribute, and a count of violation of civil rights by violation of due process by fabrication of evidence, being the fabrication one performed through the use of drugs.

All defendants, except Luis Ru-perto Torres, alleged that they have a close question of law under Bayko in that the drug conspiracy case constitutes “a close question [of law] or one that may well be decided the other way.” United States v. Bayko, 774 F.2d at 522-523. The court opines differently. First, co-defendants Pascual Santiago and Velez Class had access to a black box wherein drugs were stashed to be later distributed to other codefendants to fabricate cases. The drugs that were in the black box were in fact scientifically tested and were proven to be marihuana, cocaine chloride, cocaine base and heroin. These drugs were in fact distributed to other policemen and they used the narcotics to plant them to otherwise innocent citizens. At least the first transaction from the policeman who possessed the black box to other public officers constituted a distribution of narcotics. The court grants that the distribution was not intended for profits but was intended to be further planted to fabricate a criminal case. But the distribution does not have to be for profit. The ultimate purpose of the plan was to distribute the illegal narcotics, already distributed, and to be ultimately used for the illegal purpose of fabricating evidence. That is, it is the court’s opinion that although the final purpose was to fabricate a criminal case, the prior step was one of a plan to possess drugs with intent to distribute the drugs from one policeman in possession to distribute to another policeman recipient of the drugs. That initial interchange involved a plan of possession with intent to distribute illegal narcotics. The fact that the final link in the chain is not for profit, and the final recipient ignored that he has been distributed drugs, does not eradicate the prior steps in the conspiracy of stashing drugs in joint possession form, as many policemen had access to the drugs and distributed them to other policeman. See Ex. 4(a)-(g). The drugs were to be distributed later to another policeman with a final outcome of a fabrication of a criminal case. Notwithstanding the trial court’s opinion, the court grants for arguments sake that the matter constitutes a close ease, as it is a case of first impression, one that may be very well “decided the other way.”

That leaves then for analysis by the court the guilty verdict of Dominguez under the civil rights case and whether he is to be granted bail or remain detained for that violation.

The court analyses first the evidence for satisfaction of sufficiency of evidence as to the defendant Dominguez, and all others found guilty co-defendants, under the standard of “in the light most flattering to the government and taking all reasonable inferences on its favor, a rational fact finder could find, beyond a reasonable doubt, that the prosecution successfully proved the essential elements of the crime.” United States v. O’Brien, 14 F.3d 703, 706 (1st Cir.1994) reiterated at United States v. Hernández, 146 F.3d 30, 32 (1st Cir.1998). Further, and most critical “the trial judge must resolve all evi-dentiary conflicts and credibility determination in the prosecution’s favor, and moreover, as among competing inferences, two or more which are plausible, the judge must choose the inference that best fits the prosecution theory of guilt.” United States v. Olbres, 61 F.3d 967, 970 (1st Cir.1995). On the other hand, the court must always satisfy itself “that the guilty verdict finds support in the plausible rendition of the record.” United States v. Gómez, 255 F.3d 31, 35 (1st Cir.2001).

The evidence against co-defendant Dominguez is strong. Bosques the principal cooperator originally calls by phone and advises Pascual Santiago that there are “mother fuckers from over there driving me nuts and I do not know what to do ...” Pascual states: “Well you know what you have to do.” Bosques says: “But I need to get some” [referring to drugs]. Pascual says: “All right come over.” Bos-ques then asks “can I come down?” Bos-ques says “at least a couple of bags [unine-ligible]” [later it is clear by subsequent conversations on the same day that it was a couple of bags of small quantities of marihuana and cocaine.] Pascual Santiago agrees and says “all right sir, yes, yes.” Ex. 4(a).

Pascual later states to Bosques that co-defendant Luis Vélez-Class is to provide the drugs. I left it with Velez.” Ex. 4b. Pascual Santiago states that it was “whatever you want [referring to the drugs].” But Vélez Class is with his wife in San Juan at a doctor’s appointment. Ex. 4(c). Pascual told him [Vélez] but “he didn’t tell me it was for today.” Vélez-Class clarified that “[Pascual] doesn’t know I am here today.” Bosques then offers that the narcotics transactions “may be tomorrow or the day after.” Ex. 4(c) p. 3. Vélez-Class reiterates that: “Because Pascual spoke with me ... Pascual spoke with me, the thing is that I am not over there at work.” Ex. 4(c) id.

At Exhibit 4(d) Bosques speaks with Santiago and informs that Vélez is not in Mayaguez because “Vélez is in San Juan.” Santiago then offers to speak to co-defendant Bey. Santiago states “and how about Bey, is he in the division ... call Bey he should be there.” Ex. 4(d) p. 1. Bosques calls subsequently Bey. See Ex. 4(e). Bey agrees to check if there is availability of a couple of bags of grass and cocaine. Specifically Bosques asks for a “couple of bags of grass and a couple of coke.” Bey says “alright, I’ll check over there to see if there is some.” Ex. 4(e).

However, when Bosques arrives at the drug division of the police precinct, fully wired to continue gathering evidence, the person that ultimately delivers to him the drugs is codefendant Anthony Dominguez. The court briefly explains. Bosques was wired when he arrived at the drug division precinct and asks to speak to Dominguez, “listen to me for a second I am coming to give confidential information to Dominguez. I need you to leave me alone to speak with Anthony Domínguez.” Ex. 4(g) p. 6. Later Bosques asks Dominguez: “What do you have, what’s that. A couple of bags more? A couple of coke? Dominguez agrees and answers the request “all right.” Ex. 4(g) p. 10. Moreover, Dominguez recognizes that prior thereto he had spoken to co-defendant Bey. “That’s what I told Bey.”

Finally, Dominguez asks Bosques “are you wired up, you mother fucker, because you’re making some fucking questions.” Bosques changes the subject “let me take my vest because there’s no need for me to be here. We’ll talk later.” Ex. 4(g) p. 14.

Co-defendant Dominguez was also the subject of testimony as to a drug transaction wherein he participated with co-defendant Cortes Caban and Luis Ruperto Torres in the fabrication of evidence against one W.H.P., victim/witness Wilfredo Enri-quez Pérez, who testified in court as to his arrest without any cause and the fabrication of evidence by the planting of evidence. A lawyer, named José H. Marti Fajardo, aka “Pita,” friend and neighbor of the W.H.P., testified that he witnessed the arrest and saw that the victim was never searched and no drugs being found on him. Later “Pita” was called by the victim’s wife to visit the drug division as her husband had been arrested and found with drugs in his possession.

Although the incident was subject to strenuous cross examination “the trial judge must resolve all evidentiary conflicts and credibility questions in the prosecution’s favor ...” United States v. Olbres, 61 F.3d at 970 unless the testimony is “unreasonable, unsupportable or speculative ...” United States v. Ofray-Campos, 534 F.3d 1, 31-32 (1st Cir.2008).

The presumption of dangerousness applies to the defendant in the instant case by express disposition of United States v. Abuhamra, 389 F.3d at 320 citing Jones v. United States, 463 U.S. at 364, 103 S.Ct. 3043. “The fact that a person has been found beyond a reasonable doubt to have committed a criminal act certainly indicates dangerousness.”

The violation of civil rights is a felony constituting a criminal act meaning that pursuant to United States v. Abuhamra, Id., and pursuant to United States v. Bayko, 774 F.2d at 521, the accused must then satisfy the burden “by clear and convincing evidence” signifying “substantial evidence” under United States v. Abuhamra, Id., that he is not a danger to the community. “The defendant has the burden of showing by “clear and convincing evidence” that he or she will not be a danger to the community.” Bayko, Id.; “it requires the defendant to carry the burden by clear and convincing evidence. Not by mere preponderance. Only if a defendant clears these high procedural hurdles is he entitled to release pending sentencing.” United States v. Abuhamra, Id.

The court finds that defendant Dominguez falls short of the threshold mark as to the civil rights conspiracy conviction. First, he threatened the government’s principal witness, cooperator co-defendant Josué Bosques, which initially did not impress the witness, but Josué Bosques had at that time not yet been revealed to the co-defendants as the principal cooperator. Further, the government also presented as witnesses other cooperators who were also policemen, co-defendant Dennis Muñiz-Ti-rado and co-defendant Luis Vélez-Class. Revealing the cooperators to the defendants and the specific cooperation of each, places these co-defendants, who are not detained, in danger should the defendants be released.

Defendants further argue that they have been stripped of power and hence they do not represent danger. The court disagrees. Taking the argument to its logical consequence, should the crime have been committed with an assigned police weapon, even to the point of killing a victim, the policeman does not loose his dangerousness presumption by the fact that he no longer has possession of the assigned weapon. The danger is not eradicated by the loss of the trust position. Further, the reasons provided by defendant simply do not reach the “high procedural hurdles” of “clear and convincing evidence” required under Abuhamra and Bayko, Id.

Persons convicted in positions of trust of fabricating civil rights using drugs (even though possession with intent to distribute may not be proven) present to the undersigned federal judge an example of a clear convincing case where “the government’s regulatory interest in community safety can, in appropriate circumstances, outweigh [the] liberty interest.” United States v. Abuhamra, 389 F.3d at 320 citing United States v. Salerno, 481 U.S. 739 at 748, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Further as found in the policy statement of the Bail Reform Act set forth in United States v. Abuhamra, Id., granting bail to a policeman who fabricates evidence that causes the incarceration of a victim, “release of [that particular] criminal defendant into the community after conviction may undermine the deterrent effect of the criminal law” citing United States v. Shoffner, 791 F.2d 586, 589 (7th Cir.1986). The bail as to Anthony Dominguez is, therefore, DENIED.

B. Víctor Cortes-Caban

Co-defendant Víctor Cortes-Caban has filed a Rule 29 Motion and a Motion to Dismiss challenging the sufficiency as to the count relating to the drug conspiracy. The Rule 29 was timely filed after the government terminated its case in chief and after the end of trial. As of this date, the court has not provided a final determination as the codefendant’s motion and has to this date not been resolved. The court differs as stated herein but has not made a final determination on the matter. The court for arguments sake grants that the drug conspiracy only, pursuant to United States v. Bayko, 774 F.2d at 523, “the matter is close or one that very well could be decided the other way” citing United States v. Giancola, 754 F.2d at 901. The same argument was made in a Motion to Dismiss at Docket 362 which the court from the bench denied using the same reasoning as expressed at p. 106 to 107 of this order in the section of analysis as to co-defendant Anthony Domínguez Colón supra. Co-defendant also requested bail, at the reconsideration bail hearing, with more stringent conditions including house arrest and his sister acting as third party custodian.

The incriminating facts as to co-defendant Victor Cortes Caban relating to the count as to violation of civil rights are relatively simple. He confessed twice and on each occasion he signed a document entitled Advice of Rights. See Exs. 18 and 19. Specifically, FBI agents waited for co-defendant Cortes Caban to exit the court house in Aguadilla, Puerto Rico, and in the parking lot of the court house, the FBI agents, informed him that he had just fabricated a criminal case by signing a false affidavit related to a search and seizure. He followed the FBI agents to the FBI car wherein he signed at 4:23 p.m. on July 17, 2007 a document recognizing that he had been duly forewarned as to his rights under Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant Cortes Caban began to confess by accepting his signing of the false affidavit. He then proceeded to request the FBI officers to move the automobile, where he was with the FBI agents, to another location as he did not want to be seen in the car with the FBI agents in the parking lot of the court house. The FBI automobile proceeded to another parking lot across the street from the court house parking lot used by a small shopping center. Once location of the automobile was changed, Cortes Cabán continued to confess and fully accepted providing further information as to his participation in the false statement used to arrest a citizen. He agreed to return and later meet the FBI agents. Most critical, on yet another day, he voluntarily returned to the FBI facilities in Aguadilla, PR, on July 21, 2007. He again signed another document entitled Advice of Rights at 8:45 a.m. at the FBI offices before the interrogation of him was resumed. The FBI agent was Julio Tovar, who testified as to the events of July 17 and July 21, 2007. Julio Tovar explained that he could not recall specifically how the defendant arrived on the second day but that standard procedure was that the person is driven to known location, and is picked up and from there driven by FBI agents to the FBI offices. The court first determined the admissibility of the confession on a hearing away from the jury on December 10, 2008, making specific findings to determine the surrounding circumstances as to a voluntary, knowing and intelligent waiver of rights associated with the Miranda standards and the voluntariness and non coercitive nature of the confession. See generally Sims v. State of Georgia, 385 U.S. 538, 543-544, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967); Jackson v. Denno, 378 U.S. 368, 376-377, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Pinto v. Pierce, 389 U.S. 31, 33, 88 S.Ct. 192, 19 L.Ed.2d 31 (1967).

In addition to co-defendant Dominguez accepting his providing a false sworn statement used in a search warrant, defendant also participated in the arrest of W.H.P., Wilfredo Enriquez Pérez, [also spelled as Henriquez] a victim who was illegally detained by several policemen including Anthony Domínguez, Ruperto Torres and Victor Cortes Caban. See discussion infra in the section of analysis as to co-defendant Anthony Domínguez Colón (supra) and co-defendant Luis Ruperto Torres (infra).

Victor Cortes Caban further participated in a police intervention at El Carmen and Candelaria Public Housing Facility. As stated before, certain individuals were stopped for the purpose of accepting drug dependency allegedly only to receive drug treatment. But in reality, they were later carried in the police books of the precinct as arrested persons for the purposes of satisfying police quota arrests for drug crimes. (See discussion infra in the analysis as to co-defendant Luis Ruperto Torres.)

The court finds that the proffer of the defendant as to reasons for granting bail does not reach the threshold burden of showing by “clear and convincing evidence” that he is not a “danger to the community” as a policeman who has been duly convicted of a crime carries the rebut-table “dangerousness” presumption. United States v. Abuhamra, 389 F.3d at 320; United States v. Bayko, 774 F.2d at 521, referring to the statute at 18 U.S.C. 3143(b). The Court reiterates that there are three co-defendant policemen who testified who are potential subjects of the dangerousness of the defendants as the court must provide “appropriate recognition to the danger a person may pose to other if released.” United States v. Abuhamra, Id. citing the Congressional history of the Bail Reform Act of 1984 at S. Rep. 225 at 26 reprinted at 1984, U.S.Code Cong, and Administrative News at 3185. The court reiterates the words of the U.S. Attorney opposing bail at reconsideration hearing that the policeman currently seeking bail precisely “victimized the persons whom they were attempting to protect.” The court understands that these policemen who were found to be in a conspiracy to fabricate evidence using drugs have of course a liberty interest but the court is of the opinion that it is outweighed by the “strong and obvious countervailing interest in detaining the [former police] defendants who have been found guilty beyond a reasonable doubt of serious crimes [conspiracy to fabricate criminal cases in violation of civil rights], such detention promotes public safety by removing a presumptively dangerous person from the community; it also encourages general respect for the law by signaling that a guilty person will not be able to avoid or delay imposition and service of the sentence prescribed by the law.” United States v. Abuhamra, 389 F.3d at 320.

The court incorporates the reasoning also provided as to co-defendant Anthony Domínguez Colón in that the instant case presents a proper example of the “government’s regulatory interest in community safety ... outweighing] the liberty interest [of the defendant],” United States v. Salerno, 481 U.S. at 748, 107 S.Ct. 2095, and that “release of a criminal defendant into the community after conviction undermine[s] the deterrent effect of criminal law.” United States v. Abuhamra, Id. citing United States v. Shoffner, 791 F.2d at 589.

The bail as to co-defendant Victor Cortes Caban is DENIED.

C. Pascual Santiago Méndez

At the reconsideration of bail hearing, co-defendant Pascual Santiago through counsel suggested that his bail could be increased; he stressed his strong community ties; he also emphasized his prior no violent conduct and that he no longer represents a danger because he no longer is a policeman nor does he possess a weapon.

Similarly to the other co-defendants, although the court is of the opinion that the drug conspiracy was fully proven specially as to Pascual Santiago, since he had obviously joint possession of the black box containing drugs and from there he personally distributed and/or authorized the distribution of the drugs located at the black box to other policemen, the court grants for arguments sake that the question is “close,” pursuant to United States v. Bayko, 774 F.2d at 523.

The court, therefore, proceeds to analyze his participation in the scheme relating to Count I, the violation of civil rights. First, he is the person who had the control of the black box containing the drugs that were used to fabricate criminal cases in violation of the due process of the victims in the Mayaguez-Arecibo area. He is further facing a potential enhancement as leader/organizer under the advisory guidelines and/or under 18 U.S.C. 3553. Pascual Santiago also quarterbacks the distribution of drugs to violate the civil rights of the neighbors of Bosques “driving him nuts,” see Ex. 4(a)-(g). Pascual Santiago plans through recorded phone calls the logistics through which Bosques is to receive the drug that is to be planted to the neighbors of Bosques who were “driving him nuts.” The logistics of the management of producing the drugs to Bosques is performed by Pascual Santiago who is not in the precinct on that day and solicits Vélez Class to deliver the drugs to Bos-ques. However, Vélez Class was at a doctor’s appointment with his wife in San Juan and, hence, Bosques calls again Pas-cual Santiago and he suggested the help of co-defendant Efrain Bey-Arce. Ex. 4(d). Bey Arce agreed to deliver drugs, should the drugs be available there. Bosques requested “a couple of bags of grass and a couple of cocaine.” Bey stated that “I’ll check over there to see if there is some.” It is thus unquestionable that they are talking about narcotics. Actually it was co-defendant Dominguez who delivered the drugs as Bey Arce called Bosques (unrecorded), as per the testimony of Bosques, that it would be co-defendant Anthony Domínguez Colón who would deliver the drugs to Bosques. In fact, Dominguez actually delivered the drugs to Bosques as confirmed by the audio recorded phone calls (Ex. 4(a)-(g)). However, the person who throughout planned the logistics of the distribution of drugs to perform the fabrication at least from Vélez Class to Bey-Arce was Pascual Santiago. Pascual Santiago was undoubtedly, pursuant to the audio tape played, involved in the plan to provide drugs to fabricate a ease against the neighbors of Bosques then “driven him nuts.”

Pascual Santiago was also intimately and directly involved in the fabrication of evidence using drugs as to victim OSL one surnamed Pichi that occurred at Barrio Maní meaning that her civil rights were violated via a trampling of her civil rights violations. The drug was on this occasion in possession of Pascual Santiago delivered to Vélez Class all with the intention to be planted to OLS alias Pichi. The evidence was essentially produced as indicated in overt act “C” of count one except that Vélez Class was not specifically included in the overt act as a participating member.

Finally, three days after the FBI searched the Mayaguez Drug Division precinct and found the black box, Pascual Santiago Méndez organized a meeting in Bayamón, among co-defendants at a restaurant located at Rio Hondo Shopping Center with the purpose to further fabricate false evidence. The purpose was to spoliate evidence by a cover-up to offset the legal effect of the black box found by the FBI in the drug division of a precinct in Mayaguez. A sworn statement was to be produced in an attempt to legalize the black box by connecting the black box to a genuine pending narcotic criminal cases. The ultimate effect was to continue the secrecy and the existence of the conspiracy. (See discussion infra in the legal analysis section as to Luis Ruperto Torres.)

Again, we must conclude, as was the case as to co-defendants Domínguez and Cortes Caban, that co-defendant Pascual Santiago Méndez also has failed to rebut the presumption as to dangerousness. That is, he has failed to rebut the presumption as to Count I, the civil rights conspiracy, by “clear and convincing evidence” that he is not a danger to any other person or to the community. The court in order to avoid repetition incorporates the analysis of the court, infra, as to Dominguez and Cortes Cabán stated herein. The bail as to co-defendant Pascual Santiago Méndez is, therefore, DENIED.

D. Luis Ruperto Torres

Counsel for Luis Ruperto Torres stressed at the reconsideration hearing defendant’s long years of good service with an unblemished record. Counsel spoke vehemently as to “not a single [criminal] record.” Counsel further argued that defendant did not pose a flight risk or a danger to the community. Counsel urged at the hearing the granting of bail with home detention and an electronic device.

The United States responded that this particular defendant was involved in the fabrication of evidence of Wilfredo Enri-quez Pérez, (sometimes spelled as Henri-quez), Urbanization, Rio Cristal on July 10, 2007, Torres was also involved, on a later different date, riding in the same unmarked car with Josué Bosques Muñiz when two cars went to El Carmen and Candelaria Public Housing Development on July 12, 2007, in order to fabricate drug cases. Co-defendant Cortes Caban was also present on this July 12, 2007 date in another unmarked car at Public Dwelling Carmen/Candelaria. The incidents of July 12, 2007 were video/audio recorded by Jo-sué Bosques. (Ex. 11 Transcript; Ex. 11 video.)

There is no doubt and it was irrefutable that Luis Ruperto Torres, hereinafter referred to as Ruperto Torres, was present with Josué Bosques at the car on the early morning hours, since Bosques identified him as being in the car and the transcript, as they left the police station, reflects that the unmarked car had the rear mirror broker. Ruperto Torres suggest some sort of glue/tape to be used to fix the rear view mirror.

Bosques: That rear view mirror is broken. That rear view mirror is broken dude.

L R: Glue there.

Bosques: Well tape it really well. (Ex. 11 p. 5).

Further, it is Ruperto Torres that decides the logistics as to how to get into the Public Housing Development relating to the police drug operation of this date:

Bosques: Ruper, how we are doing this.

L R: We’re going to come in through the school.

Bosques: Alright but we’re going where. To El Carmen and Candelaria?

L R: To El Carmen and Candelaria.

Bosques: Okay.

Ruperto Torres also determines on this date the numbers of arrests that are needed.

Bosques: Ruper you, have the numbers, what are we going to do.

L R: Huh?

Bosques: How many arrests.

L R: Around eight.

Bosques: Eight arrests.

L R: Eight. (Ex. 11 p. 7.)

Further, as the highest ranking officer [Sargent], in the operation at El Ca-men/Candelaria Housing Dwelling, Ruper-to Torres (L.R. in the transcript, Luis Torres) is the person in charge and directs the safe entry into the Public Housing Development on this date.

L.R. You two go in through — explain to him, for both of them to go in through Kennedy and we — we will come in through the school over here [referring to the unmarked car of Luis Ruperto Torres and Josué Bosques Muñiz].

(Ex. 11 p. 8.)

Bosques: There’s a problem of distance. Tell him [speaking to Luis Ruperto Torres].

L R: Danny will come in through the, through the court, through the handball court, what’s called the fish bowl, ah and Cortés will come in through el Palito. I’ll come in through the school and we’ll catch them there. Go ahead, I’ll give you a break until you arrive

L R: We’re coming in through this one. (Ex. 11 p. 9.)

Luis Ruperto identifies a target.

L R: Look at them there ... look at them there ... I’ll go through the back.

As the tape was payed to the jury, Josué Bosques explained and testified simultaneously that he had been authorized by the FBI to obtain evidence in this date about the fabrication of drug cases. “Also — that day I was — I was to obtain evidence as to statistics, about drug users to take their names with the only purpose of statistics.” (D. 398 p. 7.) The problem was that Bos-ques testified that at the field in El Carmen/Candelaria the names were taken and the victims were advised that their names were taken only for helping them to receive drug treatment but in reality they were charged with a drug offense to satisfy a number of quota of arrests.

Q: So did you take personal information from individuals you did not arrest.

A: [Bosques] that is correct.

Q: Are you aware whether any of your colleagues, particularly Victor Cortés or Ruperto Torres, did they take personal information of individuals who were not arrested?

A: That is correct. (D. 398, p. 29.)

Q: Did you witness Luis Ruperto or Victor Cortés obtaining the personal information of individuals not arrested?

A: I was able to observe Victor Cortés. (D. 398 p. 32.)

But although Bosques did not observe co-defendant Luis Ruperto, the instant civil rights count did not constitute substantive offense of civil rights violation but a conspiracy to violate civil rights. Luis Ru-perto Torres was there, he lead the operation, the operation was to fulfill a quota of drug arrests fabricating evidence, and ultimately later the plan called for the fabrication of evidence at the police precinct. Further, Luis Ruperto Torres was not merely present, he was leading the operation and knows exactly the purpose.

The procedure used was the following as testified by Bosques Muñiz:

A: They would use a name — They were drug users[;] we would say that we were going to take them into a program, a rehab program. But you didn’t really do that and you just took information and let the person go and after that, you justify those arrests illegally with controlled substances. (D. 398 p. 37.)

Q: With respect to those individuals whose information you took during this operation, how did you fabricate cases involving these individuals.

A: With the names of those innocents that were arrested.

Mr. Nogueras: Objection.

The court: Sustained, [foundation] Did that actually take place, or are you stating that this was already done. The court wants an answer from you as to those three individuals.

A: That is correct. Their names were taken and then afterwards, at the division [precinct] evidence was fabricated.

Q: [By AUSA, Anderson]:

A: In my personal case agent Victor Cortés gave the drugs to me.

Q: And you went and made the arrest.

A: [Bosques] the information the data was taken, but the person was set free, [they] were let go.

Q: [The court] But the key question was, were they subsequently — were they subsequently the subject of a fabrication.

A: That’s correct.

Q: [The court] And what is your foundation for that.

A: The instruction of the Sargent Ruperto Torres to get statistics that had to be without [sic] [short of]— statistics which we had to justify. (Emphasis ours.)

The court: But the question is, did you have personal knowledge for the subsequent arrests that were made of those three individuals.

A: ... but none, except the one arrested by Miguel Hernández, had controlled substances.

Mr. Nogueras: Your honor, I move to strike anything that he stated related to something he does not know.

Mr. Anderson: I’m going to clarify it right now.

The court: Okay fine. So please be aware that you are on the brink of Niagara Falls on this one [referring to the two arrest who the witness lacked personal knowledge].

Q. By Mr. Anderson:

You have already stated — we saw [in the video] the one person being arrested, actually a person being arrested and brought to the cuartel, right? [a person seen several time wearing a band on his head]

A: That’s correct.

Q: Was anyone else that we see in the video physically taken into custody and brought to the cuartel?

A: No sir.

Q: The information that you took from them, we heard it, their names, what happened with that information?

A: You put that information into the novelty book, registry, and then we have to justify why that person is placed there.

[repeated question at the request of Mr. Nogueras]

Q: The person were never arrested.

A: That’s correct.

Q: But paperwork was completed as though the person was arrested, correct?

A: That is correct. (D. 398 p. 41-45.)

There is, however, important circumstantial evidence, aside from the testimony of Bosques stated above as to Luis Ruper-to Torres’ knowledge of the operations to fabricate evidence. That is, that Ruperto Torres openly lauded Bosques in the video by referring to Bosques as the “mass destruction machine” during the police’s drug operation of the civil rights fabrication of evidence incidents occurring at the Cande-laria Housing Projects. The lauding comment as to Bosques occurred after the first operation on this date, but prior to moving to another housing projects. Here Luis Ruperto Torres admits openly that he also fabricated cases by referring to himself as the “drunkards mass destruction machine.”

L R: The man is fucking too much, [referring to Bosques]

Bosques: I am going to tell you one thing, just one thing I will tell you Rupert — I returned from vacation.

L R: You’re in zero you fag (referring to zero arrests).

Bosques: I am in zero. I’m in zero in everything.

L R: You must rank yourself with a couple of searches, in order for you to continue being on the top. As soon as you return from — this is your month. As soon as you return from vacation, Agent of the Month. So they say, and with the mass destruction machine, this had to come. (Emphasis ours.)

L R: And in half, in half of the month— [the facts were occurring on July 12, 2007] for him to become agent, that is because he is a machine.

Bosques: Let me see how I can tell you. To your — to please you — how many arrests do you want?

L R: Today?

Bosques: Today.

L R: No, no we’ll — we’ll—go with two or three arre...with those that are already there, a couple more and that’s it.

Bosques: But how much is the quota?

L R: About 15 ... (D. 11 p. 32-34.)

In the above reproduction of transcript, Ruperto Torres thus clearly admits that there was a quota to be satisfied aside from the actual number of arrests. Through the interchange the jury could have made a reasonable inference, specifically as to Bosques being referred to a “mass destruction machine” by Ruperto Torres, who referred immediately thereafter as to himself as being the “drunkards machine destruction machine.” Ex. 11 p. 40, Emphasis ours. Ruperto Torres bragged that, while assigned to the Puerto Nuevo Police precinct, he fabricated cases against drunkards by having then blow in a machine and then placing another name.

L R: I was the drunkards mass destruction machine. In Puerto Nue-vo, the drunkards don’t hate anyone else more than me. (Emphasis ours.)

Bosques: Why.

L R: That was 20/20, dude just like that [UI]. You don’t want to blow/ There’s no problem at all [U.I.]. Come here dude, dude blow here — dude, you came out with twenty some, [laughs] You’re scr — you’re screwed.

Bosques: How come?

L R: Huh? I would put another one of the ones there to blow. I wouldn’t get screwed for one.

Bosques: Listerine.

L R: With Listerine?

Bosques: It works?

L R: You take — you take the drunks who are there waiting — you tell them, “come here dude, blow in here, to see if may leave.”

Bosques: You’re kidding!

L R: And you put someone else’s name, [laughs] (Emphasis ours.) “Let’s leave, that” [laughs] (Ex. 11 p. 40-41.)

The above interchange clearly places into focus the subject of the “mass destruction machine” pseudonym compared to “drunkards mass destruction machine” for the jury to make a reasonable inference as to why Luis Ruperto Torres refers to Bosques as to “mass destruction machine” immediately after the first intervention as to the beginnings of a drug fabrication case. To be compared with the “drunkards mass destruction machine” wherein Luis Ruperto Torres attributes that pseudonym to himself. By his own testimony, as contained in the video of July 12, 2007, the reputation of co-defendant Luis Ruperto Torres has been seriously tarnished and counsel’s insistence as to his “excellent reputation and good conduct” crumbles, as a sand castle yields to incoming beach waves.

Further, the analogy based on Ruperto Torres own testimony of Bosques being a “mass destruction machine” immediately after the beginnings of fabrication at the Candelaria Housing Projects operation, and to himself as the “drunkards mass destruction machine” both titles as to “mass destruction machine,” obviously referring to the fabrication of criminal evidence in violation of victims’ civil rights. Hence, the jury could infer that Ruperto Torres knew very well what Bosques was doing at Candelaria Housing Project when he referred to him as the “mass destruction machine” and compared Bosques to himself when he fabricated evidence at Puerto Nuevo against drunkards, naming himself the “drunkards mass destruction machine.”

Finally, on this date July 12, 2007, Luis Ruperto Torres admits that he participated in the incident of the arrest of Flaco, at Rio Cristal Urbanization, on July 10, 2007. Flaco being Wilfredo Enriquez Pérez. The facts can be corroborated by the transcript p. 44-47 of Ex. 11. Luis Ruperto Torres asks to go to Gandara section.

L R: Better go to Gandara.

Then Bosques suggest to la Chorra.

Bosques: To la Chorra. (Ex. 11 p. 45.)

Finally, Luis Ruperto Torres states that “tell them to wait for me there, that I am going to go by Pita’s for a moment.” (Emphasis ours.)

Ruperto Torres therefore determines to move his unmarked car to Pita’s (referring to Counsel of W.H.P., Marti Fajardo).

Bosques asks “what’s Pita home? [correction from “Tita” to “Pita,” at the transcript, is authorized and explained at Docket No. 398 p. 98-99] [Pita, José H. Marti Fajardo, was counsel for Enriquez (also spelled as Henri-quez).

Luis Ruperto Torres then states “we ran out to the back, right?” The jury could infer that this was referring to the running to chase Enriquez when he was arrested as testified by victim Enriquez (sometimes spelled as Henriquez).

Bosques then asks “Oh, but the intervention took place here?

Ruperto Torres then says: “Yes and then ah — we came all the way here.” (D. 11 p. 45.)

Suddenly, Ruperto Torres says “look at Flaco, where we arrested him.” Bosques then asks “which one.” Ruperto Torres answers [UI]. Bosques says “that one is Flaco.” Luis Ruperto Torres finally says “Yes” ... Bosques asks “are you sure.” Torres says “yes” and later repeats “look, here’s the guy we arrested.” (D. 11 p. 46.)

Counsel Nogueras alleges that “we” when referring to “we arrested him”; “we ran out the back” and “we all came all the way” does not refer to Luis Ruperto Torres participating in the conspiracy to arrest Enriquez leading later to the fabrication of evidence. The problem is that the inferences are left to the jury to determine what “we meant.” After the jury renders a verdict the court must examine the evidence “in the light must flattering to the government and taking all reasonable inferences in its favor.” United States v. O’Brien, 14 F.3d at 706. “In the light most favorable to the government” means that “we” means Luis Ruperto Torres and others who arrested Wilfredo En-riquez Pérez. Hence, the defendant that has been found guilty of a felony must prove under Section 3143 “by clear and convincing evidence” that he does not present a danger to the community.

For the reasons set forth as to co-defendants Anthony Dominguez, Victor Cabán, and Pascual Santiago Méndez, the court denies bail as to co-defendant Luis Ruper-to Torres. However, the court must also examine whether or not defendant has presented a legal issue under United States v. Bayko, 774 F.2d at 522-523 as to a “substantial question of law or fact” constituting a “close” question or one that very well “could be decided the other way.”

The court briefly discusses some of the legal issues raised by co-defendant Luis Ruperto Torres and other co-defendants.

Legal Issues as to Luis Ruperto Torres

1. Inconsistent verdict

Luis Ruperto Torres alleged that the civil rights count should be dismissed as the fabrication was utilizing drugs and he was exonerated as to the possession with intent to distribute drug conspiracy. He is, hence, alleging dismissal due to an inconsistent verdict.

In the first instant, once again the court emphasizes that in this case as to the civil rights count the charged crime constitutes a conspiracy that is a “plan” to violate civil rights, the underlying crime is a civil rights violation not a drug violation case. Hence, the defendant’s plan could have very well included use of drugs without having himself criminally actually possessed the drugs with intent to distribute.

Second, and most critical in the First Circuit jurisdiction, inconsistent verdicts are “non reviewable.” United States v. Figueroa-Encarnación, 343 F.3d 23, 29 Fn. 3 (1st Cir.2003) (Torruellas C. J.)

Under United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) and Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932), a “claim that the jury verdict is internally inco