The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on Defendant Jose Luis Hernandez Nunez's Appeal of Magistrate Judge's Order Denying Defendant's Request for a Detention Hearing and Request for a De Novo Hearing (d/e 14) (Appeal).
On April 17, 2009, Nunez was arrested after he was found transporting 40 kilograms of cocaine in his truck. On April 27, 2009, United States Magistrate Judge Byron G. Cudmore held a preliminary hearing. At that time, Nunez waived his right to a detention hearing. Minute Entry entered April 27, 2009. The hearing was recorded. The recording equipment, however, did not function properly, and as a result, Nunez's waiver of his right to a detention hearing was not recorded. Clerk's Remark entered June 3, 2009 (d/e 15).
On May 20, 2009, Nunez secured new counsel. His new counsel asked for a detention hearing. Defendant's Request for Review of Detention Order (d/e 13). Judge Cudmore denied the request without prejudice. Minute Entry entered May 21, 2009. Nunez then appealed that decision to this Court. He challenges the voluntariness of the waiver of his right to a detention hearing.
Nunez is entitled to appeal a detention order to the Court. This Court is directed to rule on the appeal promptly. 18 U.S.C. § 3145. The Court, therefore, directed the Government to respond quickly. The Court is troubled by the lack of a record of the hearing in which Nunez waived his right to a detention hearing. Without a record of the hearing, the Court cannot review the voluntariness of Nunez's waiver. Given the unique circumstances of the lack of a record in this case, the Court will allow the appeal and direct Judge Cudmore to hold a detention hearing for Nunez.
THEREFORE, the Court rules on Defendant Jose Luis Hernandez Nunez's Appeal of the Magistrate Judge's Order Denying Defendant's Request for a Detention Hearing and Request for a De Novo Hearing (d/e 14) and reverses the decision of United States Magistrate Judge Byron G. Cudmore made at the May 21, 2009, hearing, to deny Defendant Nunez a detention hearing. Judge Cudmore is directed to conduct a detention hearing for Defendant Jose Luis Hernandez Nunez.
IT IS THEREFORE SO ORDERED.
JEANNE E. SCOTT UNITED STATES DISTRICT JUDGE
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