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U.S. v. BORCHERT
February 24, 2004.
United States of America, Plaintiff
Ronald Borchert, Defendants
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
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)
(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.
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