front company called
Skin Tight Products ("Skin Tight"). William Handy owns and operates Skin
Tight, while Hudspeth serves as its director of marketing. The United
States further proffers that Handy and Hudspeth used one of Skin Tight's
vans, a blue Toyota Previa, a vehicle fitted with a secret compartment,
to transport the cocaine across country.
Based on surveillance video and intercepted telephone calls, the
Government submits that Handy drove the Previa van to Hudspeth's home in
Compton, California, where it was loaded with 39 kilograms of cocaine
hidden in the van's secret compartment, along with 50 to 150 bottles of
Skin Tight merchandise. About a day and a half later, Donald Goodman and
Michael Zorn drove the van from Hudspeth's home in California to the
Washington, D.C. area. The Government proffers that Hudspeth was in
regular phone contact with Goodman and Zorn during the trip and that he
monitored their progress across the country.
Once the van arrived in the Washington, D.C. area, Handy and Hudspeth
flew from California to meet up with the van. But before Handy and
Hudspeth arrived at the meeting location, police authorities in
Frederick, Maryland stopped and searched the van, discovering the 39
kilograms of cocaine powder hidden in the van's secret compartment. Zorn
and Goodman were placed under arrest. Later, a police officer posing as
Zorn called Handy to indicate that Goodman had been arrested for a minor
traffic offense, but that he (the police officer disguised as Zorn) had
possession of the van and its contents. Zorn indicated that he could not
complete the drop off and that Handy and Hudspeth should travel to
Frederick, Maryland to get the van. Handy and Hudspeth drove together to
pick up the van, but were later arrested by police authorities. After the
arrests, police officials executed a search warrant at Hudspeth's
Compton, California home. Authorities seized $2,200 in cash, a heat
sealer, a digital scale, plastic bags, and two glass beakers. The
officers also found cocaine residue in the glass beakers.
Following a two-hour detention hearing, Magistrate Judge Robinson
concluded that "the Government had not carried its burden of proving by
clear and convincing evidence, even with the aid of the presumption, that
no condition or combination of conditions would reasonably assure the
safety of the community" if Hudspeth were released pending trial.
Transcript of Detention Hearing before Magistrate Judge Robinson at 80
(D.D.C. May 14, 2001) ("Hearing Transcript"). In lieu of detention,
Magistrate Judge Robinson released Hudspeth on a $25,000 unsecured
appearance bond and ordered that he be placed on electronic monitoring to
be supervised by the United States Probation Office in Los Angeles.
Magistrate Judge Robinson also set specific restrictions on Hudspeth's
Upon the oral request of an Assistant United States Attorney, this
court set a date and time for a hearing on the United States' motion for
review of the Magistrate Judge's release decision, and Magistrate Judge
Robinson stayed her order releasing Hudspeth until this court's decision
on the United States' review motion.
II. Proper Procedure
The United States' effort to have Magistrate Judge Robinson's release
order reviewed and revoked raises two important issues that merit a
written response from this court. The first issue is the procedure the
Government must follow if it wishes to have a District Judge review a
Judge's order releasing an accused pending trial.
Fortunately, the court need not write on a clean slate for the Bail
Reform Act, 18 U.S.C. § 3145, clearly sets forth the procedure to be
followed. In pertinent part, the Bail Reform Act states:
(a) Review of a release order. — If a person is
ordered released by a magistrate, or by a person other
than a judge of a court having original jurisdiction
over the offense . . .
(1) the attorney for the Government may file, with the court having
original jurisdiction over the offense, a motion for revocation of the
order or amendment of the conditions of release;
The motion shall be determined promptly.
18 U.S.C. § 3145(a) (emphasis supplied).
It is readily apparent that in order to have a District Judge review a
Magistrate Judge's decision the Government must "file . . . a motion"
asking for review. Id. (emphasis added). Necessarily, the requirement
that a motion be filed means that the motion must be in writing and, like
other motions, must be served on the attorney for the defendant. The
procedure followed in this case was not proper. No motion for review was
filed. Instead, an Assistant United States Attorney merely called the
court's staff to request a date and time for the court to hear the
government's objection to the Magistrate Judge's release order. This
request should have been denied.
The court appreciates that the requirement for a motion to be filed
when the Government seeks review of a Magistrate Judge's release order
may mean that an accused will be released pending a resolution of the
Government's request for review. Such an outcome does not warrant
disregarding the plain requirements of the governing law, however. In
this regard, it is useful to consider that it has never been questioned
that in order for a defendant to have a District Judge review a
Magistrate Judge's pretrial detention order he must file a written
motion.*fn2 Nor has there been any question of the appropriateness of
the accused remaining detained until there is a resolution of the
defendant's motion. This court is unaware of any legal principle or logic
that accords the Government's position regarding whether a defendant
should be released pending trial a standing superior to that of the
defendant such that the Government's position, as a matter of course, is
effectively adopted — albeit temporarily — even after a
judicial officer has ruled otherwise. The illogic of this proposition is
further underscored when one considers that it is the Government that
carries the burden of showing that an accused should be detained pending
Standard of Review
The second issue raised by the government's effort to have the
Magistrate Judge's release order in this case reviewed and revoked is the
appropriate standard of review a District Judge should apply when
reviewing such an order. Apparently, this
is a matter of first impression
in this judicial district. At the hearing on the government's review
request, this court stated that it was persuaded by Judge Walker's
analysis in United States v. Harris, 732 F. Supp. 1027, 1032 (N.D.Cal.
1990). Judge Walker held that the appropriate standard to employ when
reviewing a Magistrate Judge's release or detention decision was
"somewhere between de novo and appellate review." Id. at 1033 (internal
quotations omitted). Judge Walker stated that District Judges should give
appropriate deference to a Magistrate Judge's factual findings, absent a
showing that they were clearly erroneous, but also make an independent
assessment of the facts as established by the record. See id. at
1032-33. This court agreed with Judge Walker that such a middle-ground
approach favors judicial economy and respects the authority specifically
delegated to magistrate judges to make decisions regarding whether an
accused should be released or detained pending trial.
While the court continues to believe that Judge Walker's analysis is
well reasoned, subsequent research on the issue reveals that his view has
been rejected by the Ninth Circuit in United States v. Koenig,
912 F.2d 1190, 1191 (9th Cir. 1990). Holding that the standard of review
announced by Judge Walker in Harris was in error, the Ninth Circuit
adopted the reasoning of the Fifth Circuit in United States v.
Thibodeaux, 663 F.2d 520, 522 (5th Cir. 1981). The Fifth Circuit stated:
The statutory scheme adopted in [18 U.S.C. § 3145]
confers a responsibility on the district court to
reconsider the conditions of release fixed by another
judicial officer under [18 U.S.C. § 3142] as
unfettered as it would be if the district court were
considering whether to amend his own action. He is not
constrained to look for abuse of discretion or to
defer to the judgment of the prior judicial officer.
These latter considerations would be pertinent when,
under section [§ 3145(c)], the district court's
action is called before the court of appeals.
Thibodeaux, 663 F.2d at 522.
The Koenig court found no "flaw in this reasoning" and determined that
the Thibodeaux standard was the "equivalent of `de novo.'" Koenig, 912
F.2d at 1191-92. The Ninth Circuit in Koenig also pointed out that a de
novo standard had also been endorsed by other circuits that had
considered the issue. See id. (citing United States v. King,
849 F.2d 485,491 (11th Cir. 1988); United States v. Maull, 773 F.2d 1479,
1481 (8th Cir. 1985) (en banc)). This court's own research has also
uncovered the following cases: United States v. Rueben, 974 F.2d 580,
585-86 (5th Cir. 1992) (holding that the district court reviews the
magistrate judge's pretrial detention orders de novo), cert. denied,
507 U.S. 940 (1993); United States v. Tortora, 922 F.2d 880, 884 n. 4 (1st
Cir. 1990) (same); United States v. Clark, 865 F.2d 1433, 1437 (4th Cir.
As has been mentioned, neither the United States Court of Appeals for
this Circuit nor any other court in this jurisdiction has ruled on the
issue of the proper standard for reviewing a Magistrate Judge's decision
regarding a defendant's release or detention pending trial. The court
need not dwell on the issue further, however, because even if the de novo
standard of review advocated by the Government is employed, this court
has determined that Magistrate Judge Robinson's decision releasing Mr.
Hudspeth should not be revoked.
Determinations regarding pretrial detention are governed by provisions
of the Bail Reform Act. See 18 U.S.C. § 3142 et seq. Section 3142(b)
states that a person charged with an offense shall be released on his
personal recognizance or an
unsecured appearance bond, unless the court
determines that "such release will not reasonably assure the appearance
of the person as required or will endanger the safety of any other person
or the community." Id. If a person is charged with certain crimes,
including drug offenses that carry a maximum term of imprisonment of ten
years or more (the case here), the statute provides a rebuttable
presumption that no condition or combination of conditions will reasonably
assure the safety of the community. See 18 U.S.C. § 3142(e). Still,
the court must evaluate various factors to determine whether conditions
of release could be imposed that would reasonably assure a defendant's
presence and not leave the community at risk. These factors include (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. See
18 U.S.C. § 3142(g). Of course, the United States bears the burden of
showing, by a preponderance of the evidence, that a defendant poses a
flight risk and, by clear and convincing evidence, that a defendant poses
a danger to the community. See 18 U.S.C. § 3142(f); United States v.
Xulam, 84 F.3d 441, 442 (D.C. Cir. 1996).
Except for the rebuttable presumption required by § 3142(e) and
arguably the weight of the evidence against Hudspeth, the factors the
court has considered in determining whether to detain Hudspeth do not
weigh in favor of detention. Indeed, Hudspeth's personal history and
personal characteristics weigh strongly in favor of pretrial release.
There is no evidence that Hudspeth has ever been convicted of a crime.*fn3
He lives at home with and cares for his elderly mother. And various
letters submitted to the court indicate that he is constructively
involved with his community and supports his 14-year-old son, who lives
in the Washington, D.C. area, a circumstance which connects him to this
As for the weight of the evidence of guilt, the factor upon which the
Magistrate Judge and the Government focused, the court concludes that the
evidence, while substantial, is not compelling.*fn4 There is no direct
evidence tying Hudspeth to a transcontinental drug conspiracy in general
and to the 39 kilograms of seized cocaine in particular. There is no
evidence that Hudspeth packed the van with cocaine or knew that it was
present in the van. Although the FBI intercepted approximately 2,700
telephone calls during its investigation of this case, only 200 or so
were deemed relevant to this case, and of those 200, only "two or three"
included a voice believed to be that of Hudspeth. See Hearing Transcript
Simply put, when all pertinent matters are put on the scale, there is
no clear and convincing showing that there is no condition or combination
of conditions of release that would reasonably assure the safety of the
community should Hudspeth remain released.*fn5 Indeed, the court
concludes that the conditions imposed by Magistrate Judge Robinson are
adequate for this purpose.