US v. Phillips

• Citation: 732 F. Supp. 255
• Decision Date: 01 February 1990
• Docket Number: Crim. No. 89-307-K.
• Parties: UNITED STATES of America v. Parris H. PHILLIPS, Kevin Smith, London Williams, Michael Davis, and Devon Brown, Defendants.
• Court: U.S. District Court — District of Massachusetts

732 F. Supp. 255

UNITED STATES of America v. Parris H. PHILLIPS, Kevin Smith, London Williams, Michael Davis, and Devon Brown, Defendants.

Crim. No. 89-307-K.

United States District Court, D. Massachusetts.

February 1, 1990.

Michael Pelgro, for U.S.

Michael Liston, Boston, Mass., for Parris H. Phillips.

John E. Conwell, Boston, Mass., for John Tibbs.

Norman Zalkind, Boston, Mass., for Kevin Smith.

Mitchell Benjoya, Newton, Mass., for London Williams.

James Krasnoo, Boston, Mass., for Troy Smith.

James Dilday, Boston, Mass., for Michael Davis.

Henry Owens and Kevin Nixon, Boston, Mass., for Devon Brown.

MEMORANDUM AND ORDER

KEETON, District Judge.

An eleven count indictment dated December 11, 1989, charges Parris Phillips, Kevin Smith, London Williams and Michael Davis with conspiracy, unlawful interstate transportation and receipt of firearms, and aiding and abetting such unlawful transportation and receipt, in violation of 18 U.S.C. §§ 2, 371, 922(a)(3) and 922(a)(5). The same indictment also charges Devon Brown with possession of a firearm by a person previously convicted of a felony in violation of 18 U.S.C. § 922(g).^*

At the defendants' initial appearance on December 14, 1989, the government moved for a detention hearing pursuant to 18 U.S.C. § 3142(f). Magistrate Collings held that hearing on December 18 and 19, 1989, and subsequently ruled that only defendant Brown would be committed to pretrial detention.

Now before the court are: (1) the government's motion pursuant to section 3145(a) to revoke the Magistrate's Order of pretrial release for defendants Phillips, K. Smith, Williams and Davis (filed December 26, 1989); and (2) defendant Brown's motion pursuant to section 3145(b) to revoke the Magistrate's Order of pretrial detention (filed December 21, 1989).

I. Scope of Review

Both motions are before this court pursuant to section 3145, which is entitled "review and appeal of a release or detention order":

(a) Review of a release order.—If a person is ordered released by a magistrate, or by a person other than a judge of a court having original jurisdiction over the offense and other than a Federal appellate court—

(1) the attorney for the Government may file, with the court having original jurisdiction over the offense, a motion for revocation of the order or amendment of the conditions or release; and

(2) the person may file, with the court having original jurisdiction over the offense, a motion for amendment of the conditions of release.

The motion shall be determined promptly.

(b) Review of a detention order.—If a person is ordered detained by a magistrate, or by a person other than a judge of a court having original jurisdiction over the offense and other than a Federal appellate court, the person may file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order. The motion shall be determined promptly.

(c) Appeal from a release or detention order.—An appeal from a release or detention order, or from a decision denying revocation or amendment of such an order, is governed by the provisions of section 1291 of title 28 and section 3731 of this title. The appeal shall be determined promptly.

18 U.S.C. § 3145.

This statute, in paragraph (a), requires the government to seek "review of a release order" (as phrased in the heading), or determination of a "motion for revocation of the order" (as phrased in the text), by the district court, before the government may make an "appeal from a release ... order," paragraph (c), to the court of appeals. Similarly, paragraph (b) of the statute requires the defendant to seek "review of a detention order" (as phrased in the heading), or determination of a "motion for revocation or amendment of the order" (as phrased in the text), by the district court, before the defendant may make an "appeal from a ... detention order," paragraph (c), to the court of appeals. The statute thus provides for two separate levels of review, by right, of a magistrate's order of pretrial release or detention. See 18 U.S.C. § 3731 and 28 U.S.C. § 1291 (authorizing appeal to court of appeals only upon decision of district court, not from magistrate).

In mandating this two-tier process of review, however, Congress did not explicitly specify the scope of the first level of "review"—that is, the scope of the district court's consideration of the "motion for revocation or amendment of the magistrate's order." The legislative history is similarly devoid of explicit guidance with respect to the level of deference, if any, that a district court should accord to a magistrate's findings of fact. S.Rep. No. 225, 98th Cong., 2d Sess. 29-30, reprinted in 1984 Code Cong. & Admin.News 3182, 3212-13.

Nevertheless, the structure of this statute provides some guidance. First, as noted above, the statute provides for two separate levels of reconsideration by right —first, "review" by the district court, and then, "appeal" to the court of appeals. Except to the extent that more judicial officers of higher authority were being added to the decisionmaking process, the two-tier reconsideration would be redundant if the scope of reconsideration were identical in both instances—if both the district court and the court of appeals were directed to review the magistrate's findings of fact under a "clearly erroneous" standard. Although the issue is debatable, I conclude that by providing for two levels of review, Congress manifested an intention for the district court to review the magistrate's factfindings under a standard less deferential than the "clearly erroneous" standard.

Moreover, Congress used the term "appeal" in subsection (c), which carries with it certain connotations about the scope of appellate review and the use of the "clearly erroneous" standard, but not in subsections (a) and (b), where Congress instead used the term "review." As the court noted in United States v. Smith, 87 F.R.D. 693 (E.D.Cal.1980), aff'd, 734 F.2d 22 (9th Cir.), cert. denied, 469 U.S. 867, 105 S.Ct. 211, 83 L.Ed.2d 142 (1984), a case interpreting a similar review provision under the predecessor to section 3145:

"The legislature must be presumed to know the meaning of words, and to have used the words advisedly." 73 Am. Jur.2d 393. To paraphrase myself, "Congress knew how to say appeal when it meant it, having used that precise word ... in the immediately subsequent subparagraph."

Id. at 699 (paraphrasing United States v. Salsedo, 477 F.Supp. 1235, 1241 (E.D.Cal. 1979), vacated on other grounds sub nom., United States v. Torres, 622 F.2d 465 (9th Cir.1980)) (brackets in Smith opinion).

Reading all three paragraphs and their statutory headings together, I conclude that "review" is used in paragraphs (a) and (b) in a broad sense that includes not only "appeal" (which is used in paragraph (c) in a narrower, traditional sense), but as well other forms of reconsideration by standards that are less deferential to factfindings than are the standards traditionally applied in appeals.

Although the use of the term "review" in subsections (a) and (b) implies that the district court should not use the "clearly erroneous" standard in reviewing the magistrate's findings of fact, it also implies that the court should not, at the other extreme, ignore the magistrate's order and written findings and conduct the detention hearing entirely anew. Of course, in any appeal or other form of review, the reviewing court, examines the legal conclusions anew, and I do so as to the Magistrate's conclusions of law below. As to a magistrate's factfindings, however, the reasonable inference from Congress' use of the term "review," instead of, for example, explicitly providing for a de novo hearing, is that the court's starting point should be the magistrate's findings, and that the court should then "review" the magistrate's findings in light of the court's independent "review," or reconsideration, of the evidence presented to the magistrate.

In a trio of opinions concerning the scope of district court review of a section 3145 motion, the Eleventh Circuit prescribed use of a similar standard of review lying between a tabula rasa detention hearing and review by the "clearly erroneous" standard. The court first held that, when reviewing a magistrate's order regarding pretrial detention, a district court must "undertake an independent review of the case." United States v. Hurtado, 779 F.2d 1467, 1480 (1985), reh'g denied, 788 F.2d 1570 (11th Cir.1986) (emphasis in original). This requirement, the court subsequently held, does not require the court to conduct a de novo hearing; it only requires that "the court exercise independent consideration of all facts properly before it." United States v. Gaviria, 828 F.2d 667, 670 (11th Cir.1987). When it revisited this issue for the third time, the court summarized the applicable law as follows:

As both Hurtado and Gaviria teach, in this situation of a motion pursuant to section 3145(b), the district court must conduct an independent review to determine whether the magistrate properly found that pretrial detention is necessary.

United States v. King, 849 F.2d 485, 490 (11th Cir.1988).

I too conclude that a district court, when reviewing a magistrate's order of pretrial detention, and also when reviewing a magistrate's order of pretrial release, must make an independent review of the evidence, but need not conduct a de novo detention hearing. Accordingly, I have reviewed the transcripts of the detention hearing held before the Magistrate, and have reviewed the evidence that was presented at that hearing. In addition, I held a hearing on the parties' motions on January 19, 1990, and offered the parties an opportunity to present any additional evidence at that hearing. See United States v. Freitas, 602 F.Supp. 1283, 1293 (N.D.Cal.1985) (utilizing same procedure); United States v. Ramey, 602 F.Supp. 821, 822 (E.D.N.C.1985) (same); United...