US v. Jones

• Decision Date: 15 October 1992
• Docket Number: No. IP 92-130-CR.,IP 92-130-CR.
• Citation: 804 F. Supp. 1081
• Parties: UNITED STATES of America, Plaintiff, v. Charles Dehart JONES, Defendant.
• Court: U.S. District Court — Southern District of Indiana

804 F. Supp. 1081

UNITED STATES of America, Plaintiff, v. Charles Dehart JONES, Defendant.

No. IP 92-130-CR.

United States District Court, S.D. Indiana, Indianapolis Division.

October 15, 1992.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John Dowd, Asst. U.S. Atty., Office of the U.S. Atty., Indianapolis, Ind., for plaintiff.

Robert W. Hammerle, Indianapolis, Ind., Edward H. Laber, Tucson, Ariz., for defendant.

RENEWED ORDER OF DETENTION

TINDER, District Judge.

For the reasons stated in an Entry filed contemporaneously with the Order, the Court ORDERS that the defendant be detained pending trial on the following terms and conditions: The defendant, CHARLES DEHART JONES, is hereby committed to the custody of the Attorney General or his designated representative for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal. That the defendant shall be afforded a reasonable opportunity for private consultation with defense counsel. Upon order of a Court of the United States or on request of an attorney for the government, the person in charge of the corrections facility shall deliver the defendant to the United States Marshal for the purpose of an appearance in connection with a Court proceeding.

RULING ON DEFENDANT'S APPEAL OF ORDER OF DETENTION

The dispute in this detention/pretrial release issue may really be about the procedural posture of this matter rather than the substance of the facts. The parties don't dispute what route the case took in its journey here, but they surely don't agree on what effect, if any, that route should have on this court's review of the earlier rulings by two Magistrate Judges. An attempt will be made to briefly describe how this matter got here and then an effort will be made to sort out the legal significance of the detention/release decisions made along the way. Finally, the decision or decisions properly before the court will be reviewed to determine whether the defendant should be released pending trial.

The defendant was initially charged in this district after the filing of an affidavit by Drug Enforcement Administration (DEA) Agent Gary Alter. The affidavit and proposed criminal complaint alleged that the defendant conspired to possess and possessed a quantity of marijuana in excess of 100 kilograms. After reviewing the affidavit and proposed complaint on August 17, 1992, Chief Magistrate Judge John Paul Godich of this district issued a warrant for the defendant's arrest. Two days later, on August 19, 1992, the defendant was arrested at his home in Tucson, Arizona. He then appeared before Magistrate Judge Nancy Fiora in Tucson on August 21 for purposes of determining whether he should be released or detained pending further proceedings. The government sought detention. The hearing was continued until August 27.

At that continued hearing, the government presented additional evidence on its request for detention. The second Arizona hearing also resulted in the determination that the defendant should be removed to this district for all further proceedings. The following day, Magistrate Judge Fiora ordered that the defendant be removed to this district. She also issued a ruling denying the government's request for detention and setting conditions for pretrial release. That brief order stated:

Government's request for detention DENIED. Short of detention, a $300,000.00 cash or corporate surety bond is a reasonable and necessary bond to reasonably assure the appearance of defendant at future court proceedings. FURTHER, defendant is to participate in an electronic surveillance program and comply with Pretrial Services' rules and regulations, including payment of the designated fee. Further conditions to be set upon release. IT IS FURTHER ORDERED: a hearing pursuant to Title 18, United States Code, Section 3142(g)(4), shall be held prior to the court's acceptance of bond proffered to secure the defendant's release.

The defendant then sought to delay his removal to this district in order to make arrangements to post the bond. Magistrate Judge Fiora denied that request.

Thereafter, the defendant was promptly transported to Indianapolis. At his first court appearance here before Magistrate Judge Kennard Foster on September 8, 1992, the government, through the United States Attorney's Office in this district, moved for pretrial detention and followed up that oral motion with a written one the next day. The defendant opposed that motion, arguing that the government had, in effect, already had "one bite at the apple" in Arizona, and lost. Absent new evidence, the defendant argued, the government should not be permitted to make successive motions for detention. The detention/release matter was set for a hearing before Magistrate Judge Foster on September 10th.

At that hearing, the question of whether the government was entitled to a second motion or hearing on the detention question was debated. The hearing was continued until September 17th to allow Magistrate Judge Foster to get the record of the proceedings in Arizona, including the tapes of the hearings. The day before the continued hearing, the defendant was indicted by a grand jury here in a three-count indictment. The indictment charges the defendant with conspiring to possess over 1,000 kilograms of marijuana with the intention of distributing it, and with two separate counts of possessing over 50 kilograms of marijuana with the intent to distribute it. After the September 17th hearing, Magistrate Judge Foster orally announced his decision to detain the defendant, which was reduced to writing later the same day.

The defendant's appeal presently before this court followed. A hearing was set and arguments of counsel were heard. No additional evidence was presented. Transcripts of the hearings before Magistrate Judges Fiora and Foster have been reviewed.

As the notice of hearing indicated, the court presumes that defendant's motion is filed pursuant to the provisions of 18 U.S.C. § 3145(b), which permits this court to review a Magistrate Judge's detention order. The defendant's Petition for Review did not specify the authority for the review, but counsel for the defendant did not contradict the court's presumption during his argument. Pursuant to § 3145(b), this court is authorized to affirm, revoke or amend a Magistrate Judge's order.

As also noted in the notice of hearing, § 3145(b) does not specify the type of review that is to be given an appeal to the district court. Moreover, the arguments of counsel at the hearing demonstrated that this matter is one of first impression (at least insofar as reported cases under the Bail Reform Act, 18 U.S.C. § 3141 et seq., are concerned) which requires an interpretation of the Act and cases decided under it. The defendant argues that the release decision of Magistrate Judge Fiora must stand unless appealed by the government pursuant to 18 U.S.C. § 3145(a), and further, that any review of the Arizona Magistrate Judge's ruling must be done in a deferential manner, citing United States v. Harris, 732 F.Supp. 1027 (N.D.Cal.1990).

As for Magistrate Judge Foster's detention order, the defendant argues that it is a nullity because there is no statutory authority for the holding of a second detention hearing, absent the development of new material evidence not presented by the movant at the first hearing. See 18 U.S.C. § 3142(f). Implicit in this argument is an assertion that Magistrate Judge Fiora had considered all of the relevant matters during the Arizona proceedings.

The government's argument is equally intriguing. The government contends that the defendant's appearance before Magistrate Judge Fiora was on the initial complaint only, and that United States v. Dominguez, 783 F.2d 702 (7th Cir.1986) stands for the proposition in this circuit that the government is entitled to a detention hearing when the defendant first appears here, that is, in the district from which the charge originated. The government further argues that the defendant's situation changed materially when the indictment was returned by a grand jury here, and additional and more substantial charges were brought (thus satisfying the "new evidence" requirement of 18 U.S.C. § 3142(f), if applicable).

Implicit in the government's argument is an assertion that Magistrate Judge Fiora's ruling is a nullity, or that it should be reconsidered de novo, without deference. The government concedes that this court has authority to review the defendant's detention/release status, but it contends that the proper subject of review is the Indiana Magistrate Judge's detention ruling, not the Arizona Magistrate Judge's release order. In review of either ruling, the government contends that this court starts anew, reviewing the detention/release question de novo, with no deference to the earlier Magistrate Judge's ruling(s).

Regardless of the manner in which this matter comes before the court in a procedural sense, the well reasoned cases appear to uniformly apply a de novo standard of review so that the district court can exercise independent consideration of all of the facts properly before it on such a motion. See, e.g., United States v. Freitas, 602 F.Supp. 1283, 1293 (N.D.Cal.1985); United States v. Ramey, 602 F.Supp. 821, 822 (E.D.N.C.1985); United States v. Allen, 605 F.Supp. 864, 867 (W.D.Pa.1985). Notwithstanding the eloquent discussion of a "middle ground" type of review in the Harris case cited by the defendant, no support for that position is found in either the Bail Reform Act or 28 U.S.C. § 636.

If the matter to be reviewed by this court is the Arizona Magistrate Judge's ruling, it is especially appropriate that the review be de novo for the simple reason that Magistrate Judge Fiora made no findings of fact whatsoever, and merely reached the conclusion that pretrial release was appropriate....