[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals

For the First Circuit

No. 01-1629

UNITED STATES,

Appellee,

v.

ROBERTO FORTES NEVES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O’Toole, Jr., U.S. District Judge]

Before

 Selya, Boudin and Lynch,

Circuit Judges.

J. Martin Richey on brief for appellant.

Donald K. Stern, United States Attorney, and Timothy Q.

Feeley, Assistant U.S. Attorney, on brief for appellee.

May 31, 2001
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Per Curiam. Defendant Roberto Fortes Neves appeals

from the district court’s order revoking the magistrate

judge’s pretrial release order.

I. Procedural Background 

Neves is charged with illegal reentry after

deportation, in violation of 8 U.S.C. § 1326. Born in Cape

Verde twenty-five years ago, Neves came to the United States

with his mother as an infant. He remained here, without

becoming a U.S. citizen, until his deportation to Cape Verde

in 1999. Neves was deported pursuant to 8 U.S.C. §

1227(a)(2), following a state conviction for distributing

cocaine. He returned to this country and was arrested in

New Bedford, Massachusetts on February 13, 2001. The

Immigration and Naturalization Service (“INS”) reinstated

its prior order of removal/deportation pursuant to 8 U.S.C.

§ 1231(a)(5). Neves’ removal has been stayed, however,

pending his trial and the expiration of any period of

incarceration imposed in this case.

The government moved for detention pending trial

pursuant to 18 U.S.C. § 3142 (f)(2)(A), on the ground of

risk of flight. Following a hearing, the magistrate judge

denied the government’s motion and ordered Neves released on

the following conditions: 1) execution of an appearance bond
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in the amount of $150,000, to be secured with $15,000 in

cash; 2) confinement of Neves to his mother’s residence

where he is to be under the custody of his mother; and 3)

monitoring at all times by an electronic bracelet. The

government moved for reconsideration of the release order.

A hearing was held pursuant to United States v. Nebbia, 357

F.2d 303 (2d Cir. 1966), at which Neves’ mother, Maria

Fortes, and his former girlfriend, Adamiz Goncalves (the

sureties), testified. The magistrate judge denied the

government’s motion, but stayed Neves’ release pending the

district court’s determination of the government’s motion to

revoke the release order. See 18 U.S.C. § 3145(a)(1).

The district court held a bail hearing, at which

Fortes and Goncalves testified again. The district court

issued a five-page memorandum and opinion stating its

reasons for finding that Neves posed a risk of flight and

that there was no condition or combination of conditions

(including those imposed by the magistrate judge) which

would reasonably assure his appearance in court when

required. The district court granted the government’s

motion for revocation of the order of release and for Neves’

detention pending trial. Neves appeals from that order.

II. Standard of Review
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We apply an intermediate level of review to the

district court’s detention order, “tempered by a degree of

deference to the determinations made below.” United States

v. Tortora, 922 F.2d 880, 882-83 (1st Cir. 1990). 

If upon careful review of all the facts

and the trial judge’s reasons the

appeals court concludes that a different

result should have been reached, the

detention decision may be amended or

reversed. If the appellate court does

not reach such a conclusion -- even if

it sees the decisional scales as evenly

balanced -- then the trial judge’s

determination should stand.

United States v. O’Brien, 895 F.2d 810, 814 (1st Cir. 1990).

The government moved for detention pursuant to 18

U.S.C. § 3142, which provides, in relevant part, that if,

after a hearing, the judicial officer finds that “no

condition or combination of conditions will reasonably

assure the appearance of the person as required . . . , such

judicial officer shall order the detention of the person

before trial.” 18 U.S.C. § 3142(e). In making such

determination, the judicial officer is to consider, among

other factors, the weight of the evidence against the

defendant, family ties, employment, financial resources,

length of residence in the community, community ties, past

conduct, criminal history, and record concerning appearance

at court proceedings. Id. § 3142(f).
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Our review of the district court’s determination

that no conditions of release will reasonably assure Neves’

appearance proceeds in two steps. First, we “decide whether

we agree with the district court that the government proved

that the defendant poses a . . . risk of flight.” United

States v. Patriarca, 948 F.2d 789, 791 (1st Cir. 1991).

Second, if “there is some risk, we proceed to evaluate the

conditions to see if they will serve as a reasonable guard.”

Id.

III. Risk of Flight

Based upon our independent review of the record,

we do not hesitate in agreeing with the district court’s

determination that Neves poses a risk of flight. He has a

lengthy criminal record in the state courts, dating from

1984 and continuing until his drug conviction in 1996, which

precipitated his deportation to Cape Verde. The district

court supportably found that Neves’ record was “remarkable

for the number of defaults.” The weight of the evidence

against Neves on the illegal re-entry charge is strong and

the INS has reinstated the prior deportation order. Compare

United States v. Xulam, 84 F.3d 441, 444 (D.C. Cir. 1996)

(revoking order of detention where there was no outstanding

deportation order against defendant). The evidence supports
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the district court’s findings that Neves has both a general

tendency to avoid court appearances and a strong incentive

to flee in this case to avoid the near-certainty of a prison

sentence followed by deportation again to Cape Verde.

Neves argues that the district court overestimated

the length of sentence that Neves would receive because it

did not take into consideration the possibility of a

downward departure from the applicable guideline sentencing

range. As the government points out, however, a downward

departure would not soften the most dreaded consequence

facing Neves: reinstatement of his deportation to Cape

Verde. Neves claims that he lacks the financial resources

to flee and to avoid prosecution. But, his mother has

testified that she has $8,000 in savings and would rather

see Neves dead than returned to Cape Verde. Neves was able

to obtain the financial resources necessary to get himself

back to this country from Cape Verde. Neves points to his

voluntary appearance in the state court on the most serious

of his previous charges. Those cases, however, did not

involve the same near-certainty of conviction and subsequent

deportation that Neves faces in this case. Moreover, at the

time of those appearances, Neves had not yet experienced the

grim realities of deportation. Applying independent review
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to the district court’s determination that Neves poses a

risk of flight, we are not persuaded that “a different

result should have been reached.” O’Brien, 895 F.2d at 814.

 

IV. Adequacy of Conditions

A. $150,000 Bond Secured by $15,000 from Fortes and

Goncalves

We need not assume that Neves lacks close ties to

his family and to Goncalves to find that the bond provides

inadequate protection against flight. As the government

argued before the district court, Fortes and Goncalves might

well be willing to sacrifice the $15,000 security to help

Neves avoid being deported again to Cape Verde. Both

sureties testified that they felt it was unfair for Neves to

be deported to a country where he has no ties and faces

language and cultural barriers. Although the sureties also

testified that they were willing to put up their life

savings because they trusted Neves to appear in court, the

prospect of a significant federal sentence followed by

deportation might overcome Neves’ loyalty to his family and

friends.

B. Electronic Monitoring
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We have recognized the value of electronic

monitoring in pretrial release cases “especially in allowing

early detection of possible flight.” Tortora, 922 F.2d at

887. But, where, as in this case, there is a particularly

strong incentive to flee, the early detection capabilities

of electronic monitoring may be insufficient to overcome

that incentive and to guard against the risk of flight.

Neves argues that electronic monitoring would be effective

here because he “utterly lacks the resources to run very far

for very long.” However, as explained above, we are not

persuaded that lack of resources poses an insurmountable

hurdle to Neves’ flight.

C. Placement of Neves in the Custody of his Mother.

Neves argues on appeal that his mother will be able

to control him because her custody will be augmented by the

electronic monitor. It is not clear, however, what

additional protection Neves’ mother would provide, beyond

that provided by the electronic bracelet. We do not doubt

the sincerity of her good intentions, but Fortes’ ability to

serve as custodian is hampered by, among other things, her

full-time job which she testified keeps her away from home

for “forty or more” hours a week.
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Having carefully reviewed the record and considered

the district court’s reasons for revoking release, we are

not persuaded that a different result should have been

reached. The evidence supports a finding that Neves poses

a risk of flight and that no condition or combination of

conditions (including those imposed by the magistrate judge)

would reasonably assure Neves’ appearance in court. His

record of failed appearances combined with the weight of the

evidence and near-certainty of deportation persuade us that

the district court did not err in granting the government’s

motion pursuant to § 3142(e).

The district court’s order, dated April 18, 2001,

revoking the magistrate judge’s order of release and

ordering Neves detained pursuant to 18 U.S.C. § 3142(e), is

affirmed.