United States District Court, S.D. Alabama, Southern Division
K. DUBOSE, CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant's “Appeal
of Denial of Motion to Reconsider Detention Order under
Seal.” (Doc. 16).
29, 2017, the Government filed an indictment against the
Defendant for violation of 8 U.S.C. § 1326(a) &
(b)(2) (illegal re-entry into the United States after
removal). (Doc. 1). On July 12, 2017, the Government filed a
Motion for Detention as to the Defendant, asserting a
“serious risk” that he will flee and a
“serious risk” that he will obstruct or attempt
to obstruct justice…” (Doc. 3 at 2). The
Government asserted as well, that there are no conditions or
combinations of conditions of release which will reasonably
assure the Defendant's appearance and/or the safety of
any other person and/or the community. (Id.) On July
17, 2017 the Magistrate Judge held a detention hearing, and
subsequently ordered the Defendant to be detained. (Doc.
10-SEALED; Doc. 11). On July 28, 2017, Defendant filed a
motion for reconsideration of the detention order, with
additional evidence which he moved to file under seal. (Doc.
14-SEALED). On August 1, 2017, the Magistrate Judge received
the additional evidence under seal, but denied
Defendant's motion for reconsideration. (Doc. 15-SEALED).
On August 1, 2017, the Defendant appealed the Magistrate
Judge's denial of his motion to reconsider the order of
detention. (Doc. 16).
of the Magistrate Judge's findings and conclusions is
de novo. United States v. King, 849 F.2d
485, 489-490 (11th Cir.1988); United States v.
Kidd, 2013 WL 142317, *1 (N.D.Ga. Jan. 11, 2013) (citing
United States v. Jeffries, 679 F.Supp. 1114, 1115
(M.D. Ga. 1987), United States v. Gaviria, 828 F.2d
667, 670 (11th Cir. 1987) and United States v.
Hurtado, 779 F.2d 1467, 1481 (11th Cir.
Bail Reform Act, 18 U.S.C. § 3141 et
seq., governs the release and detention of a defendant
awaiting trial. Pursuant to Section 3142(f)(2)(A), the
Government may move for detention in a case that involves
“a serious risk that such person [the defendant] will
flee.” When considering pretrial detention, the Court
must decide whether there are conditions of release that will
reasonably assure the appearance of the defendant and protect
the safety of any other person or the community. 18 U.S.C.
§ 3142(e). Factors relevant to this inquiry are: 1) the
nature and circumstances of the offense, 2) the weight of the
evidence, 3) the history and characteristics of the
defendant, and 4) the nature and seriousness of the danger
posed by the defendant's release. 18 U.S.C. §
3142(g). The Government bears the burden of establishing by a
preponderance of the evidence that no conditions will
reasonably assure the defendant's presence at trial.
United States v. Medina, 775 F.2d 1398, 1402
(11th Cir. 1985). Additionally, when a defendant
seeks review of a detention order, the court may conduct an
evidentiary hearing if it “determines that additional
evidence is necessary or that factual issues remain
unresolved” after reviewing the defendant's motion,
or may rely on the pleadings and evidence considered by the
magistrate judge to determine whether “the magistrate
[judge]'s factual findings are supported and...the
magistrate [judge]'s legal conclusions are
correct.” King, 849 F.2d at 490. If the
magistrate judge's factual findings are supported and
legal conclusions are correct, the court may
“explicitly adopt the magistrate's pretrial
detention order” without writing separate findings of
fact and statement of reasons supporting detention.
conducted an independent and de novo review of the
pleadings (including Defendant's submission of additional
evidence with the motion to reconsider), the Pretrial
Services Report, the taped July 17, 2017 detention hearing
and the Magistrate Judge's rulings, the Court finds that
the Magistrate Judge's detention order and her denial of
the Defendant's motion to reconsider the detention order
are due to be affirmed.
under Section 3142(f)(2), the Magistrate Judge's denial
of the Defendant's motion to reconsider the detention
order is an implicit finding that the new evidence contained
in the motion to reconsider would not have a material bearing
on the decision to deny the Defendant's release. The
Court agrees as the Court concurs with the determination of
the Magistrate Judge that there is a serious risk the
Defendant will flee, 18 U.S.C. § 3142(f)(2)(A), and that
no release condition or combination of conditions will
reasonably assure his presence at trial such that he must be
detained (i.e., he remains a flight risk). This determination
is based on the reasons stated by the Magistrate Judge in the
detention order, as well as the fact that the Defendant has
an extensive history of either failing to appear or failing
to abide by court orders (i.e., not remaining outside the
United States after being deported). The additional evidence
of a person willing to act as a third party custodian does
not change this determination.
it is ORDERED that the Defendant's
Appeal (Doc. 16) is DENIED and that the
Magistrate Judge's order denying the Defendant's
motion to reconsider the detention order (Doc. 15-SEALED) is