                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 05-50444
                 Plaintiff-Appellee,               D.C. No.
                v.                            CR-05-00335-ABC-
SHELDON FIDLER,                                       01
             Defendant-Appellant.
                                                  OPINION

         Appeal from the United States District Court
            for the Central District of California
         Audrey B. Collins, District Judge, Presiding

                     Argued and Submitted
                    Submitted July 21, 2005*
                    San Francisco, California

                      Filed August 16, 2005

  Before: Diarmuid F. O’Scannlain, Consuelo M. Callahan,
             and Carlos T. Bea, Circuit Judges.

                        Per Curiam Opinion




   *This case was decided without oral argument pursuant to Fed. R. App.
P. 27(e).

                                10775
                  UNITED STATES v. FIDLER            10777


                       COUNSEL

Jill K. Ginstling, Deputy Federal Public Defender, and Myra
Sun, Deputy Federal Public Defender, Federal Public Defend-
10778               UNITED STATES v. FIDLER
er’s Office, Los Angeles, California, for the defendant-
appellant.

Ellyn Marcus Lindsay, Assistant United States Attorney,
United States Attorney’s Office, Los Angeles, California, for
the plaintiff-appellee.


                          OPINION

PER CURIAM:

   Appellant Sheldon Fidler (“Fidler”) appeals, pursuant to 18
U.S.C. § 3145(c), a district court order denying his motion to
modify the bail condition in his release order pending trial in
this criminal case. Although the district court earlier granted
Fidler bail pending trial, he remains in custody because he is
unable to meet the financial condition that he post a $300,000
bond secured by deeding of real property. Fidler contends that
the district court’s order and his continued custody violate
various provisions of the bail statute, 18 U.S.C. § 3142. We
write to clarify the procedural and substantive requirements
that obtain when a defendant is detained pending trial based
on his inability to meet a financial condition of release
imposed by the district court.

                                I

   The Federal Trade Commission brought a civil enforce-
ment action against Fidler in the Central District of California,
alleging that he and others engaged in a fraudulent business
opportunity scam, which allegedly resulted in over $30 mil-
lion of losses for the victims. The district court in the civil
case entered an order freezing Fidler’s assets, including all of
his bank accounts, and directing Fidler not to remove or trans-
fer money from any account. It is alleged in the criminal case
that Fidler and his wife, in violation of the civil order,
                   UNITED STATES v. FIDLER               10779
engaged in a complicated series of transfers of approximately
$90,000 from one of their accounts to various friends and rel-
atives, who then gave the money to Fidler and his wife, who
in turn then spent approximately $70,000 dollars of it on bills
and a gambling trip to Las Vegas. Fidler and his wife later
turned over $20,000 to the receiver in the civil case when the
transfers were discovered.

   Fidler and his wife were charged in a single-count indict-
ment with criminal contempt in violation of 18 U.S.C.
§ 401(3). At the initial detention hearing, Magistrate Judge
Woehrle ordered, over the government’s objections, that
Fidler be released, subject to a number of conditions, includ-
ing home detention with electronic monitoring and an unse-
cured $100,000 appearance bond signed by Fidler. Magistrate
Judge Woehrle stayed the order pending the government’s
appeal to District Court Judge Schiavelli, who was the crimi-
nal duty-judge.

   In that appeal, the government contended that Fidler should
be detained because of the risk of flight and the danger he
posed to the community. Judge Schiavelli denied the govern-
ment’s request but found that concerns regarding Filder’s past
contempt conviction, the nature of the instant alleged offense,
and several hostile and possibly threatening statements Fidler
had made to people involved in the civil action warranted
increasing the financial condition. Thus, Judge Schiavelli
vacated the unsecured $100,000 bond condition and imposed
in its place a requirement that Fidler post a $300,000 bond
secured by property.

   Approximately two months later, after the indictment was
filed and the case was assigned to District Judge Collins,
Fidler, who was in custody because he had not posted the
$300,000 bond, moved for review of the bail order. Fidler
asked the district court to change the bond condition to a
$110,000 bond secured by cash to be posted by three of his
relatives. The government opposed the motion, contending
10780               UNITED STATES v. FIDLER
that the proposed condition was insufficient. After a hearing
in which both Fidler’s counsel and the Government partici-
pated, the district court denied the motion for review and
modification of bail. Fidler, who remains in custody because
he has not satisfied the $300,000 bond condition, has timely
appealed that decision.

                               II

   [1] According to 18 U.S.C. § 3142(a), the district court has
four options regarding whether to release or detain a defen-
dant pending trial. The court must order that the person be: (1)
released on personal recognizance or an unsecured appear-
ance bond; (2) released on conditions that are determined to
be the least restrictive conditions that will reasonably assure
the defendant’s appearance and the safety of the community;
(3) temporarily detained to permit revocation of release,
deportation or exclusion; or (4) detained pending trial. If the
district court orders that the defendant be released subject to
conditions, the statute specifically prohibits the court from
“impos[ing] a financial condition that results in the pretrial
detention of the [defendant].” 18 U.S.C. § 3142(c)(2). This
provision was intended to prevent the practice of “de facto
preventative detention,” where a judge could in effect issue a
detention order without a proper finding of risk of flight or
danger to the community by granting bail but setting an exor-
bitant financial condition that the defendant could not meet.
United States v. Westbrook, 780 F.2d 1185, 1187 n.3 (5th Cir.
1986).

   [2] Several other circuits have addressed the apparent viola-
tion of § 3142(c)(2) that arises when, as in Fidler’s case, a
defendant is granted pretrial bail, but is unable to comply with
a financial condition, resulting in his detention. It may appear
that detention in such circumstances always contravenes the
statute. We agree, however, with our sister circuits that have
concluded that this is not so. See Westbrook, 780 F.2d at
1188-89; United States v. McConnell, 842 F.2d 105, 108-09
                      UNITED STATES v. FIDLER                    10781
(5th Cir. 1988); United States v. Szott, 768 F.2d 159, 160 (7th
Cir. 1985) (per curiam); United States v. Wong-Alvarez, 779
F.2d 583, 585 (11th Cir. 1985) (per curiam) United States v.
Jessup, 757 F.2d 378, 388-89 (1st Cir. 1985), abrogated on
other grounds by United States v. O’Brien, 895 F.2d 810 (1st
Cir. 1990). These cases establish that the de facto detention of
a defendant under these circumstances does not violate
§ 3142(c)(2) if the record shows that the detention is not
based solely on the defendant’s inability to meet the financial
condition, but rather on the district court’s determination that
the amount of the bond is necessary to reasonably assure the
defendant’s attendance at trial or the safety of the community.
This is because, under those circumstances, the defendant’s
detention is “not because he cannot raise the money, but
because without the money, the risk of flight [or danger to
others] is too great.” Jessup, 757 F.2d at 389.

                                  A

   [3] Although the practical result of a release order that
imposes a bond that the defendant is unable to post is the
same as that of a detention order imposed under § 3142(e),
from a procedural standpoint the two circumstances are quite
different. Section 3142(c), which governs the procedures for
issuing a release order, does not direct that a full hearing fol-
lowing the guidelines set out in § 3142(f) be held either
before or after the release order is issued. By way of contrast,
§ 3142(e), which governs the procedures for issuing detention
order, explicitly requires a detention hearing to be held “pur-
suant to the provisions of [§ 3142(f)].”

   [4] Once a release order has been issued under § 3142(c),
the defendant may either appeal the order directly to the Court
of Appeals under § 3145(c) or file a motion with the district
court for reconsideration or review. If the defendant chooses
the latter course and the judicial officer declines to revise the
amount of the bond,1 then the defendant may appeal that deci-
sion under § 3145(c).
  1
   We note that the language of the statute does not require a detention
hearing once the defendant has demonstrated his inability to post a bond
10782                  UNITED STATES v. FIDLER
                                    B

   Factual findings underlying a district court’s pretrial release
or detention order, including whether a defendant is a flight
risk or a danger to the public, are reviewed under the clearly
erroneous standard, “coupled with an independent review of
the facts, the findings, and the record to determine whether
the order may be upheld.” See United States v. Gebro, 948
F.2d. 1118, 1121 (9th Cir. 1991); United States v. Donaghe,
924 F.2d 940, 945 (9th Cir. 1991); Marino v. Vasquez, 812
F.2d 499, 509 (9th Cir. 1987). Because under § 3145(c) a
defendant can appeal the initial release order directly or file
a motion for reconsideration of the order and then appeal that
decision (as Fidler did in this case), we apply the same scru-
tiny and standard of review to both procedural postures.

   The $300,000 bail condition was affirmed by Judge Collins
after: (1) her consideration of Fidler’s written motion, the
Government’s response and the Pretrial Services’ report rec-
ommending that the bond remain as set; (2) a hearing in
which Fidler’s counsel and the Government both participated;
and (3) her independent review of the record of proceedings
before Judge Schiavelli and Magistrate Judge Woehrle. The
evidence presented included Fidler’s previous contempt con-
viction, his alleged appropriation of frozen assets in violation
of a court order, the duplicitous nature of the alleged offense,
the size and scope of the alleged scam, several alleged hostile
and possibly threatening statements Fidler had made to people
involved in the civil action, and the real risk that he might
intimidate or threaten prospective witnesses or jurors. After
considering the evidence, which she characterized as “ex-

determined to be a necessary condition to his release. Section 3145(a) sets
out the proper recourse for review of a release order, which is that “the
person may file, with the court having original jurisdiction over the
offense, a motion for amendment of the conditions of release” and directs
only that “[t]he motion shall be determined promptly,” without requiring
that the court hold a formal hearing.
                    UNITED STATES v. FIDLER               10783
tremely strong” and “extremely serious,” Judge Collins found
that it supported the conclusion that Fidler “is a danger to the
community by clear and convincing evidence and that he’s a
flight risk by a preponderance of the evidence.” She further
found that the $300,000 appearance bond “is necessary given
that the Defendant, in this Court’s view, has shown he’s not
willing to abide by the decrees of the Court in a civil case
[and] is a flight risk.”

   [5] Based upon our independent review of the facts, the
findings and the record, and our duty to defer to the findings
of the district court unless they are “clearly erroneous,” we
conclude that the decision to deny defendant’s motion for
review and modification of his release order was proper.

  The decision of the district court is

AFFIRMED.
