Opinion
No. 03 CR 1199
February 24, 2004
MEMORANDUM OPINION
This matter is before the court on Defendant Ronald Borchert's ("Borchert") motion for amendment of detention order. Borchert was arrested and charged with a violation of 18 U.S.C. § 2423(b) (travel with intent to engage in illicitly sexual conduct). Borchert had his initial appearance before Magistrate Judge Denlow and Judge Denlow conducted a detention hearing. Judge Denlow concluded that Borchert had not overcome the rebuttable presumption under 18 U.S.C. § 3142(e) that no condition or combination of conditions would reasonably assure the safety of the community if Borchert was released. On January 12, 2004 Borchert filed a motion to reopen the detention hearing and after oral arguments Judge Denlow denied the motion. Borchert argues that this court is required to conduct a detention hearing de novo and make its own findings citing United States v. Torres, 929 F.2d 291 (7th Cir. 1991). First of all, we note that Borchert fails to include a page number in his citation indicating where in the case the court mandates a de novo detention hearing. Borchert merely contends that Torres "made it clear" that a district court must hold a detention hearing de novo. Borchert's interpretation of Torres is incorrect. In Torres the court stated that "[a]lthough § 3145(a)(1) speaks of `review' by the district judge, the court may start from scratch . . . [and that a] district judge who elects to do this, however, must follow the same procedures that apply to the taking of evidence before the magistrate judge." Id. at 292. There is no mandate in Torres for a de novo detention hearing before the district court judge after a detention hearing before a magistrate judge as Borchert contends.
A detention order may be reviewed pursuant to 18 U.S.C. § 3145(b) which provides:
(b) Review of a detention order. — If a person is ordered detained by a magistrate judge, or by a person other than a judge of a court having original jurisdiction over the offense and other than a Federal appellate court, the person may file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order. The motion shall be determined promptly.
We have elected not to start from scratch and have reviewed the transcripts of the hearings before Judge Denlow, the parties' briefs, and other materials. Given the extremely serious nature of the crime, information regarding a sixteen year old girl from Canada that Borchert was associated with, the alleged conduct by Borchert, including his attempts to contact a minor over the internet and meet with a minor to engage in sexual acts, the evidence against Borchert, the lack of a proper custodian, and other factors considered by Judge Denlow we find that his determination was appropriate. Therefore, we deny the motion to amend the magistrate's order of detention in this action.