USCA1 Opinion

      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]



                 United States Court of Appeals

                     For the First Circuit

                                

                                







No. 98-1354



                          UNITED STATES,



                            Appellee,



                                v.



                   MARCOS A. RIVERA HERNANDEZ,



                            Defendant.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF PUERTO RICO



          [Hon. Jose Antonio Fuste, U.S. District Judge]







                              Before



                      Torruella, Chief Judge,

                 Coffin, Senior Circuit Judge,

                   and Stahl, Circuit Judge.

                                

                                





     Ricardo R. Pesquera on brief for appellant.

     Guillermo Gil, United States Attorney, Rosa E. Rodriguez-

Velez, Executive Assistant United States Attorney, Nelson Perez-

Sosa, Assistant United States Attorney, and Jose A. Quiles-

Espinosa, Senior Litigation Counsel, on brief for appellee.











May 14, 1998







                                

                                

                                            Per Curiam. After conducting an independent review of

    the district court record, and giving due deference to the

    district court's findings of fact, see United States v.

    Tortora, 922 F.2d 880, 882 (1st Cir. 1990), we decline to

    disturb the order of pretrial detection.  This order concluded

    that the government had demonstrated, by clear and convincing

    evidence, that "no condition or combination of conditions will

    reasonably assure . . . the safety of any other person and the

    community" if defendant is released.  See 18 U.S.C.  3142(e).

        First, we accept the district court's conclusion that

    the evidence shows that defendant is part of a tightly-knit

    drug organization prone to violence.  We also note that

    defendant does not appear to play just a minor role in this

    organization since, according to the government's proffer, he

    has been tape-recorded discussing drug deals with the head of

    the organization, Miguel Gonzalez-Sanchez.  In this context, we

    question defendant's contention that the discovery provided to

    him so far shows only that he is a "small-scale buyer"; that

    is, the amount he supposedly bought -- about one kilogram of

    drugs -- arguably was not for personal use, but for resale.

        As for the conditions of release posed by defendant,

    we agree that they are not adequate to assure the community's

    safety.  Specifically, the posting of the properties of

    defendant's relatives as security for bail absent an agreement

    that the properties be forfeited upon the breach by defendant

    of any of the conditions of release goes more to assuring the

    presence of defendant than to assuring the community's safety. 

    See United States v. Patriarca, 948 F.2d 789, 793-94 (1st Cir.

    1991).  Similarly, electronic monitoring, while allowing

    detection of flight, "cannot be expected to prevent a defendant

    from committing crimes or deter him from participating in

    felonious activity within monitoring radius."  Tortora, 922

    F.2d at 887.  In the same vein, by permitting defendant to

    work, "a sizeable loophole" may be created -- the opportunity

    to use outside communication facilities to continue drug

    dealaing.  See id.  Finally, given the prevalence of cellular

    telephones, agreeing to have no telephone line in the home also

    is scant protection against continued criminal activity.  Seeid.

        In relation to defendant's medical condition, we note

    that the district court entered an order on March 17, 1998

    directing the prison warden to have defendant evaluated by a

    neurologist "ASAP."  We assume that this order has been obeyed

    and that defendant's medical condition is under control. 

    Should further problems arise, defendant can notify the

    district court and request it to take appropriate action.

        Based on the foregoing, we affirm the order of

    pretrial detention.