* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 11 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. MARTIN PINA-ABOITE,

Defendant-Appellant, and RAUL DEL ROSARIO SEPULVEDA,

Defendant. No. 04-2055 (D.C. No. CR-03-1097 JC) (D. N.M.)

ORDER AND JUDGMENT *

Before MURPHY , Circuit Judge, BRORBY , Senior Circuit Judge, and McCONNELL , Circuit Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of1 Mr. Sepulveda has not appealed the detention order. -2- this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Martin Pina-Aboite appeals the district court’s ord er of continued detention pending appeal by the government of the court’s ord er granting defendant’s motion to suppress. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3145(c), and we affirm.
I. Mr. Pina-Aboite and his co-defendant, Mr. Sepulveda , 1 were arrested in May 2003 after a police officer turned a routine tr affic stop into a search of the car, which ultimately resulted in the seizure of te n pounds of methamphetamine. After the arrest, Mr. Pina-Aboite was ordered detai ned pending trial. Mr. Pina-Aboite did not contest this detention and it is not the subject of this appeal. On June 11, 2003, Mr. Pina-Aboite was indi cted and charged with conspiracy to possess with intent to distribute ove r 500 grams of methamphetamine, in violation of 21 U.S.C. § 846, a nd with the substantive offense, in violation of 21 U.S.C. §§ 841(a)(1), (b )(1)(A). During the pre-trial process, Mr. Pina-Aboite fileda motion to suppress the evidence arguing that it was found as the result of an unconstitutional search and seizure. The court granted the motion. The govern ment moved for-3-

reconsideration, which the court granted. Mr. Pina -Aboite then moved for reconsideration, and the district court ultimat ely went back to its original ruling and granted the motion to suppress. The gov ernment appealed the suppression order. The district court then held a hearing on the issue of Mr. Pina-Aboite’s release pending appeal. After the hearing, the cou rt ordered the continued detention of Mr. Pina-Aboite pending appeal because it found that there was “a serious risk that [Mr. Pina-Aboite] would flee a nd that no condition or set of conditions could reasonably assure [Mr. Pina-Aboite ’s] future appearance before the Court.” Aplt. App., Ex. H.
II. An appeal from a detention order pending a governme nt appeal is controlled by 18 U.S.C. §§ 3143. That statute prov ides that a court should treat a defendant in this situation according to § 3142. See 18 U.S.C. § 1343(c). Accordingly, the district court was obligated to de tain defendant if it found that no “condition or combination of conditions [would] reasonably assure the appearance of [the defendant] as required and the s afety of any other person and the community.” 18 U.S.C. § 3142(e). Section 3142(e) includes a rebuttable presumption i n favor of detention if certain criteria are met. The relevant portion of the statute states:-4-

Subject to rebuttal by the person, it shall be pres umed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probabl e cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act . . . . 18 U.S.C. § 3142(e). In this case, the district co urt found that the rebuttable presumption applied. The burden of production on the defendant to overco me the presumption is not a heavy one, but the defendant must produce som e evidence. United States v. Stricklin , 932 F.2d 1353, 1354-55 (10th Cir. 1991). Even if the presumption is overcome, the presumption remains a factor in the d istrict court’s detention decision. Ultimately, the burden of persuasion is always on the government. Id. Mr. Pina-Aboite did produce some evidence to overco me the presumption, which led the court to consider the factors in § 3142(g) to complete his detention determination. The § 3142(g) factors are: (1) the nature and circ umstances of the offense charged, including whether the offense is a crime o f violence or involves a narcotic drug; (2) the weight of the evidence again st the person; (3) the history and characteristics of the person; and (4) the natu re and seriousness of the danger to any person or the community that would be posed by the person’s release.-5-

We review de novo mixed questions of law and fact concerning the detention decision. United States v. Cisneros , 328 F.3d 610, 613 (10th Cir. 2003). We review the district court’s findings of fact for clear error. Id.
A. Mr. Pina-Aboite argues on appeal that the district court should not have considered the evidence that it suppressed when det ermining whether the rebuttable presumption in § 3142(e) applies and whe n determining whether the weight of the evidence favored Mr. Pina-Aboite or the government,

see § 3142(g)(2). The district court applied the presumption in favorof detention in § 3142(e). Mr. Pina-Aboite argues that this was error because there is no admissible evidence to support a probable cause fin ding because of the suppression order. The probable cause determinatio n, however, was made when Mr. Pina-Aboite was initially indicted. The g rand jury indictment of Mr. Pina-Aboite is sufficient to establish probable cause that he has committed a federal drug offense carrying a maximum prison te rm of ten years or more. See United States v. Stricklin, 932 F.2d 1353, 1355 (10th Cir. 1991). Mr. Pina-Abo ite confuses the district court’s ruling on the admissi bility of evidence at trial with the determination that there was probable cause that he committed the offense.-6-

The suppression order does not impact the probable cause determination, and the district court properly applied the presumption. Under § 3142(g)(2), the district court must conside r the weight of the evidence against the person as a factor in the dete ntion determination. The district court found that the weight of the evidenc e was overwhelmingly against Mr. Pina-Aboite and it reached this conclusion by c onsidering the evidence of the seized drugs as if it had not been suppressed. Mr. Pina-Aboite argues that it was improper for the court to consider this evidence. In a detention hearing, the district court is permitted to consider the evidenc e sought to be suppressed as if it were admissible. See 18 U.S.C. § 3142(f) (“The rules concerning the admissibility of evidence in criminal trials do notapply to the presentation and consideration of information at the [detention] hea ring.”). The district court did not err in considering the suppressed evidence and in finding that the weight of the evidence was against Mr. Pina-Aboite.
B. Mr. Pina-Aboite argues that the district court erre d because it relied on his alleged deportable status without considering his i ndividual circumstances under § 3142(g)(3)(A). Mr. Pina-Aboite asserts that he p resented evidence that he has a long work history in Nebraska, that he has no cri minal history, and that he was willing to be released to a halfway house in Albuqu erque. The court considered-7-

these circumstances, see Aplt. App., Ex. G at 7, but ultimately found that the fact that Mr. Pina-Aboite was an illegal alien, who was likely to flee to Mexico if released, outweighed any other individual circumsta nces that Mr. Pina-Aboite presented. See id. at 10. The district court’s finding on this facto r was not clearly erroneous.
C. Mr. Pina-Aboite argues that considering all of the § 3142(g) factors, there are conditions of release that will reasonabl y assure the appearance of Mr. Pina-Aboite as required, contrary to the distri ct court’s finding. The record, however, supports the district court’s determinatio n. First, Mr. Pina-Aboite is charged with a serious drug offense involving ten pounds of methamphetamine. Second, as the districtcourt found, the evidence of Mr. Pina-Aboite’s guilt is overwhelming. Third, Mr . Pina-Aboite is in this country illegally and, although he may have a long work history in Nebraska, he has no ties to New Mexico, the state in which he wo uld be released. Finally, the danger-to-the-community factor is not simply about physical violence; the risk that a defendant will continue to engage in drug tr afficking constitutes a danger to the community. See United States v. Cook, 880 F.2d 1158, 1161 (10th Cir. 1989).-8- III. Because the record supports the district court’s fi ndings and there is no legal error, we AFFIRM the judgment of the districtcourt. The underlying appeal in this matter, No. 04-2036, United States v. Pina-Aboite , will be expedited. Case No. 04-2036 will be set for oral argument on t he next available calendar. The clerk will notify counsel as early as possible of the date and time for the oral argument setting.

ENTERED FOR THE COURT PER CURIAM