United States v. Neves

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]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
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 (1 st 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.
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