of the community if he were to be released. Accordingly, by written order dated February 5, 1990, the magistrate ordered that Harris be detained without bail pursuant to 18 U.S.C. § 3142(e) pending disposition of the case.
On February 7, 1990, Harris was indicted on one count of armed bank robbery in violation of 18 U.S.C. § 2113(d), two counts of bank robbery and one count of attempted bank robbery in violation of 18 U.S.C. § 2113(a), one count of use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1), and one count of conspiracy in violation of 18 U.S.C. § 371.
Harris moved this court on February 13, 1990 for an order revoking the magistrate's order of detention on the grounds that he is not a danger to the community and that there are conditions of release that reasonably assure the safety of the community and his appearance in court. Harris argues that the magistrate relied excessively on the weight of the evidence against him on the criminal charges and that he would enter a residential drug treatment program if released. Moreover, since his aunt is willing to post her house, which is willed to Harris' son, as security for bail of $ 100,000, Harris asserts that his appearances in court are guaranteed.
In its opposition to Harris' motion, the government stated as a preliminary matter that this court should conduct a de novo review of the magistrate's findings and conclusions. Consequently, according to the government, the issue before the court is the same as that addressed by the magistrate at the pre-trial detention hearing: whether there is any condition or combination of conditions of release that will reasonably assure the appearance of the defendant at trial and the safety of any other person and the community. At a hearing on Harris' motion on February 16, 1990, the court requested supplemental briefs on the issue of the standard of review a district court is to apply when ruling on a motion to revoke a magistrate's pretrial detention order.
Having considered the parties' oral arguments at the hearing and the papers submitted, the court finds for the reasons stated in Part I below that a magistrate's detention order should not be revoked unless its findings of fact are clearly erroneous or its conclusions contrary to law. The court adopts the standard of review set forth in United States v. Motamedi, 767 F.2d 1403 (9th Cir. 1985). Based on an independent examination of the findings made by the magistrate and the information presented in this court, the court finds that the magistrate's detention order was neither clearly erroneous nor contrary to law. Accordingly, for the reasons set forth in Part II below, the court finds that Harris should be detained pending trial because no condition or combination of conditions of release will reasonably assure the safety of the community.
I. THE STANDARD OF REVIEW.
A. Pre-trial Detention Orders and the Provision for Review by the District Court.
Under 18 U.S.C. § 3142, a judicial officer may order a person detained before trial if after a hearing it is determined that no condition or combination of conditions will reasonably assure the appearance of the person and the safety of any other person and the community. A United States magistrate has the power to issue such an order. 18 U.S.C. § 3041.
A person who has been ordered detained by a magistrate may file a motion for revocation or amendment of the order with the court having original jurisdiction over the offense. 18 U.S.C. § 3145(b).
Neither the language of the review provision nor its legislative history provides guidance as to the standard of review to be applied by the district judge. See S.Rep. No. 98-225, 98th Cong., 2d Sess. 29-30, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3212-3213.
B. Judicial Interpretations of Section 3145(b).
1. Circuit Court Opinions.
The parties cite numerous opinions of the courts of appeal supporting their view that a district judge must review a magistrate's order de novo in the event of a § 3145(b) motion to revoke or amend. E.g., United States v. Leon, 766 F.2d 77 (2d Cir. 1985); United States v. Delker, 757 F.2d 1390 (3d Cir. 1985); United States v. Williams, 753 F.2d 329 (4th Cir. 1985); United States v. Fortna, 769 F.2d 243 (5th Cir. 1985); United States v. Maull, 773 F.2d 1479 (8th Cir. 1985) (en banc); United States v. Hurtado, 779 F.2d 1467 (11th Cir. 1985); United States v. King, 849 F.2d 485 (11th Cir. 1988). This court finds these cases unpersuasive for the simple reason that none truly stands for the proposition for which it is cited. A brief survey of these cases illustrates their deficiency.
To begin with, five of the seven cases in the above group rely principally on the other cases and account for nine citations to other cases in the same group.
One case in particular merely mentions the concept of a de novo hearing, without passing in any way on its appropriateness.
Six of the seven cases either rely on United States v. Thibodeaux, 663 F.2d 520 (5th Cir. 1981), or cite cases that do so. If the assertion that a district court must review a magistrate's order de novo can claim nothing more than these cases as support, it is truly a house of cards. Repeated reliance on less than authoritative cases has displaced careful consideration of the appropriate standard of review. A reader of these cases is left questioning whether words have lost their meaning.
2. Thibodeaux and the Predecessor to Section 3145(b).
A brief history of the review provision of the Bail Reform Act aids an examination of Thibodeaux. The predecessor of current 18 U.S.C. §§ 3141-3150 was the Bail Reform Act of 1966 (the "1966 Act"). The 1966 Act contained a review provision codified at 18 U.S.C. § 3147(a)
that was almost identical to current § 3145(b), with the only significant change under the new provision being that the defendant may move to "revoke" as well as "amend" a magistrate's order.
In Thibodeaux, a case widely interpreted as holding that a district judge must undertake a de novo review of a magistrate's detention order, the Fifth Circuit vacated the denial by a district judge of a "motion to review" a magistrate's detention order under § 3147 of the 1966 Act on the grounds that the district court, which had found that the order was "supported by the proceedings below," had used the wrong standard of review. The district court had relied on the standard set forth in § 3147(b), which governed appeals of the district court's action to the court of appeals. The relevant language of the opinion of the court of appeals follows:
Except for requiring a prompt determination of a motion to amend, subsection (a) does not suggest how a judge of the court of original jurisdiction is to consider whether to amend an order of another judicial officer fixing conditions of release.