United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE.
the court is defendant's Motion to Revoke Order of
Detention and Grant Release (ECF No. 17). The government has
responded in opposition to defendant's motion (ECF No.
24) and defendant was granted leave to file a reply to the
government's response (Order at ECF No. 26), which
defendant filed (ECF No. 27).
December 6, 2016, defendant filed a motion for bond (ECF No.
13), which was denied without prejudice by Magistrate Judge
Foley (ECF No. 15) based on his finding that defendant had
received a full detention hearing before Magistrate Judge Kim
in the Central District of California and that defendant was
not precluded from filing a motion for review of, and to
revoke, the detention order entered by Magistrate Judge Kim
(ECF No. 15) under 18 U.S.C. § 3145(b). Defendant's
motion to revoke, which is presently before the court, was
Bail Reform Act provides that, “[i]f after a hearing .
. ., the judicial officer finds that no condition or
combination of conditions will reasonably assure the
appearance of [a defendant] as required and the safety of any
other person and the community, such judicial officer shall
order the detention of the person before trial.” 18
U.S.C. § 3142(e). If the judicial officer is a
magistrate judge or “a person other than a judge of a
court having original jurisdiction over the offense[,
]” the defendant “may file, with the court having
original jurisdiction over the offense, a motion for
revocation or amendment of the order.” Id.
§ 3145(b). The district judge reviews such a motion
de novo, United States v. Koenig, 912 F.2d
1190, 1192 (9th Cir. 1990), and must consider the following
factors: “(1) the nature and circumstances of the
offense charged . . .; (2) the weight of the evidence against
the person; (3) the history and characteristics of the person
. . .; and (4) the nature and seriousness of the danger to
any person or the community that would be posed by the
person's release.” Id. § 3142(g).
Defendant is Not Entitled to Another Detention
has requested that this court hold an evidentiary hearing as
part of its de novo review. Under the Bail Reform
Act, a magistrate judge must hold an evidentiary hearing
before ordering a defendant's pre-trial detention, 18
U.S.C. § 3142(e), (f), and at least one circuit court
has held that the reviewing district court has discretion to
hold its own evidentiary hearing. See United States v.
Delker, 757 F.2d 1390, 1394 (3d Cir. 1985). Defendant,
however, has not contended that the Act or any other
provision of law requires district courts to hold their own
subsequent evidentiary hearing, and this court has not
identified any authority that would require one.
the court finds that, based on this case's extensive
record and briefing, an additional hearing is not warranted.
The court has reviewed and considered the entire record in
this matter, including prepared transcripts of
defendant's appearances and evidence and arguments
presented to Magistrate Judge Kim in an initial appearance on
November 15, 2016. The court has also considered the
memorandum from the United States Pretrial Services for the
District of Nevada dated December 2, 2016, which attached the
Pretrial Services report prepared for Magistrate Judge Kim by
the Pretrial Services Office for the Central District of
California. Both Pretrial Services Offices recommend that
defendant be detained.
court has made an independent determination concerning
Magistrate Judge Kim's findings that there is a risk of
nonappearance by defendant, as well as his being a danger to
the community, and Judge Kim's ultimate conclusion that
defendant should be detained pending trial. This court agrees
with Magistrate Judge Kim's conclusions, and this
court's findings parallel those which were found by Judge
Defendant should be detained.
regard to the assessment of the risk of nonappearance, the
court's conclusion is based upon defendant's lack of
stable employment, lack of financial or property ties to this
or any community, and noncompliance with requirements of
supervision in the pending California case. Defendant's
extensive criminal history reflects prior warrants, failures
to appear, a pending misdemeanor charge in Ventura,
California, and prior arrests and convictions for probation
and parole violations. With regard to the newly filed charge
in the District of Nevada, the court notes that this is a
significant new development since earlier orders in the
Central District of California allowing pretrial release.
Defendant is now exposed to a lengthy prison sentence on the
Nevada charge due to the nature and length of his criminal
history referenced herein. If convicted in both California
and Nevada, the sentencing could be consecutive.
regard to the risk of danger to the community, the court is
again most concerned with defendant's prior criminal
history as a whole, which dates back to 1997 and includes
five felony convictions, including arrests and convictions
for weapons related offenses, violation of court orders,
interference with witnesses, and probation and parole
violations. It also appears that, while on supervised release
in the Central District of California, defendant engaged in
threatening conduct towards a California Employment
Development Department administrative judge on October 10,
2016; engaged in evasion and frustration of the location
monitoring requirements of his supervised release in the Fall
of 2016; and engaged in threatening conduct towards Ventura
Harbor (California) patrol officers and others in 2015, which
resulted in restraining orders being issued against him.
court therefore finds that there is no condition or
combination of conditions that will reasonably ensure the
appearance of defendant as required (as proven by a
preponderance of the evidence) or the safety of any ...