Opinion
CASE NO.: 4:19-cr-80
08-05-2019
UNITED STATES OF AMERICA, v. LEVI JOSEPH OURY, Defendant.
ORDER
This matter comes before the Court on the Defendant's Appeal from Order of Detention by Magistrate Judge. (Doc. 30.) The Court is aware of its obligation to determine this matter promptly; however, the parties have not perfected the record to enable the Court to fulfill that obligation. The United States has not filed a response to Defendant's Motion. Additionally, the Defendant has not requested a transcription of the hearing before the Magistrate Judge nor has that transcript been filed with the Court.
While the Defendant has requested a de novo hearing on his appeal, the Court is not required to hold such a hearing but must conduct a de novo review of the proceedings including the parties' arguments and the transcript of the proceedings before the Magistrate Judge. United States v. Gaviria, 828 F.2d 667, 670 (11th Cir. 1987) (rejecting defendant's contention that the district judge "erred in failing to conduct a de novo hearing" where district court's order "expressly states that it affirmed the magistrate's order after reviewing 'the Government's and Defendants' Memorandum of Law and the transcript of the proceedings before the Magistrate in accordance with U.S. v. Hurtado, 779 F.2d 1467 (11th Cir. 1985).'"). "In conducting the review [of a detention order], the district court may rely entirely on the pleadings and the evidence developed at the magistrate judge's detention hearing, or it may conclude that additional evidence is necessary and conduct its own evidentiary hearing." United States v. Ansah, No. 1:17-CR-381-WSD, 2018 WL 817241, at *2 (N.D. Ga. Feb. 9, 2018) (citing United States v. King, 849 F.2d 485, 490 (11th Cir. 1988)). Without the benefit of a response from the Government or a transcript of the proceedings before the Magistrate Judge, the Court cannot assess whether an additional hearing is necessary much less address the merits of Defendant's appeal.
Accordingly, the Court ORDERS the Government to file a response to the Defendant's appeal on or before August 9, 2019. Defendant's counsel shall contact the Magistrate Judge's Courtroom Deputy Clerk to obtain a transcript of the proceedings before the Magistrate Judge on an expedited basis.
SO ORDERED, this 5th day of August, 2019.
/s/_________
R. STAN BAKER
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA