United States v. Real

          MEMORANDUM AND ORDER

          JOHN W. BROOMES UNITED STATES DISTRICT JUDGE

         This case comes before the court on the government's motion to revoke the magistrate's order of release. (Doc. 20.) The court held an evidentiary hearing on November 6, 2019. The government's motion is GRANTED and Magistrate Judge Gale's order granting bond is REVOKED for the reasons herein.

         I. Procedural History

         On September 4, 2019, Defendant was indicted pursuant to 21 U.S.C. § 841. A superseding indictment was returned on October 9, 2019. The superseding indictment as to Defendant includes seven counts of distribution of methamphetamine.

         On October 2, Defendant appeared before Magistrate Judge Gale for a detention hearing. After hearing the proffers from the government and Defendant, Magistrate Judge Gale denied the government's motion for detention and entered an order setting conditions of release. (Doc.18.) The government appealed the release order. (Doc. 20.) This court held an evidentiary hearing on November 6. The government presented testimony from DEA Special Agent Jacob Seibel. Defendant declined to testify or call witnesses at the hearing. Defendant did offer affidavits from his parents and wife in support of his release.

         II. Legal Standard

         Pursuant to 18 U.S.C. § 3145(a)(1), the government may seek review of a magistrate judge's order of release. The district court's review of a magistrate judge's order of release is de novo. United States v. Cisneros, 328 F.3d 610, 616 n. 1 (10th Cir. 2003). A de novo evidentiary hearing, however, is not required. The district court may either “start from scratch and take relevant evidence or incorporate the record of the proceedings conducted by the magistrate judge including the exhibits admitted.” United States v. Collier, No. 12-20021-09, 2012 WL 4463435, at *1 (D. Kan. Sept. 27, 2012) (citing United States v. Torres, 929 F.2d 291, 292 (7th Cir. 1991)). The Federal Rules of Evidence do not apply to detention hearings. See 18 U.S.C. § 3142(f). The court may allow the parties to present information by proffer or it may insist on direct testimony. See id.

         Under the Bail Reform Act of 1984, the court must order a defendant's pretrial release, with or without conditions, unless it “finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(e). In making this determination, the court must take into account the available information concerning

(1) The nature and circumstances of the offense charged, including whether the offense is a crime of violence ... or involves a minor victim or a controlled substance, firearm, explosive, or destructive device;

(2) the weight of the evidence against the person;

(3) the history and characteristics of the person, including-

(A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and

(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and

(4) the nature and seriousness of the danger to any person or the community that would be posed by the ...