Opinion
Case No. 3:05-mj-355.
February 10, 2006
DECISION AND ORDER DENYING MOTION FOR BOND HEARING WITHOUT PREJUDICE
This case is before the Court on Defendant's Motion for Reasonable Bond and Bond Hearing (Doc. No. 11).
Defendant is charged with one count of distribution and possession with intent to distribute cocaine base, one count of possession of a firearm during and in relation to the drug distribution, and one count of possessing a firearm after having been convicted of a felony. When Defendant was arrested, the United States moved to detain him without bond under 18 U.S.C. § 3142(f)(1) on grounds (1) that he was charged with an offense under the Controlled Substance Act which carried a maximum penalty in excess of ten years imprisonment, (2) that not more than five years had expired since the previous conviction, (3) there was probable cause to believe the Defendant had committed an offense under 18 U.S.C. § 924(c) involving the use or carrying of a firearm, and (4) there was a serious risk of flight (Motion for Pretrial Detention, Doc. No. 3).
As required by law, the Motion was set for hearing within three days of arrest and at the same time as the preliminary examination. At the time of the hearing and with the advice of counsel, Defendant waived both the preliminary examination and an opportunity to present evidence on the detention motion. Based on the resulting finding of probable cause, the nature of the offense, and the recommendations of the Pretrial Services Officer, the Court made the requisite findings under the Bail Reform Act and ordered the Defendant detained without bond.
From the style of the Motion, the Court assumes Defendant is seeking reconsideration of the detention decision by the Magistrate Judge, rather than review of that decision by a district judge. Although the statute does not expressly provide for reconsideration, it is certainly consistent with judicial economy and protecting the rights of an accused to be at liberty on bond if possible. Otherwise a defendant could only obtain reconsideration by moving for district judge review under 18 U.S.C. § 3145. This Court has always understood it has jurisdiction to reconsider a bond until an indictment has been returned and the case has been assigned to a district judge.
Although the Court has jurisdiction to reconsider, it has not been presented with any evidence or any projection in the Motion of what evidence would be presented. On the basis of the evidence the Court has already seen in the Pretrial Services Report, it would not grant a bond. Similarly the Court would want to have any proposed release conditions or evidence supporting such conditions investigated by Pretrial Services before relying on them.
Accordingly, the Motion is denied without prejudice to its refiling if accompanied by proposed conditions of release and a proffer of what evidence Defendant would rely on in support of those proposed conditions. This will give Pretrial Services an opportunity to consider the matter before any hearing, rather than afterwards.