The opinion of the court was delivered by: NICKERSON
NICKERSON, District Judge
The attorney for the government moves for a pretrial detention order under the Bail Reform Act of 1984 (the Act). 18 U.S.C. § 3141 et seq.
Under the Act, "[u]pon motion of the attorney for the Government," a judicial officer must hold a hearing to determine whether any conditions will reasonably assure the appearance of a defendant if the case involves, among other things, a "serious risk that the person will flee." 18 U.S.C. § 3142(f)(2). The Act further states that the
hearing shall be held immediately upon the person's first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance. Except for good cause, a continuance on motion of the person may not exceed five days, and a continuance on motion of the attorney for the Government may not exceed three days.
18 U.S.C. § 1342(f). If the judicial officer finds by a preponderance of the evidence that no combination of conditions will reasonably assure the appearance of the person, he shall order that person detained under 18 U.S.C. § 1342(e). See United States v. Chimurenga, 760 F.2d 400, 405-6 (2d Cir. 1985).
The court is asked to determine (1) whether the attorney for the government made a "motion" at defendant's "first appearance" before a judicial officer for a detention hearing within the meaning of section 3142(f), and (2) is such motion was made, whether either the government or the defendant sought a continuance at that first appearance. If the government requested a continuance (which cannot exceed three days "[e]xcept for good cause"), the court is asked to determine whether the government sought and the court granted an extension beyond the three days. If the continuance, however, was sought by the defendant, no showing of good cause is required so long as the continuance does not exceed five days. A further question is whether the defendant could and did waive his right to a hearing within the three day period.
The court finds the following. Defendant was arrested in Florida in the early morning hours of Wednesday, July 10, 1985. His first appearance was before Magistrate Patricia Kyle in Florida on July 10, 1985. At that appearance, the Magistrate made clear to defendant and his attorney in Florida, Jeffrey Kaye, that the United States Attorney in this district had applied for a detention hearing. Laurina Snow, the Assistant United States Attorney in Florida, then made a formal application for such a hearing and a request for a three day continuance. Defendant's attorney then said it was defendant's desire to have the hearing in this district rather than in Florida on the ground that the only meaningful hearing would be here where defendant's parents resided.
Ms. Snow informed the Magistrate that the Assistant United States Attorney in charge of the case in this district would be willing to come down to Florida for the hearing. The Magistrate announced that she could hold the hearing on Friday, July 12, 1985. She also said that she would be available to hold the hearing on Monday, July 15, 1985.
Defendant's attorney reiterated that defendant wished to have the hearing held here and said that defendant would waive removal proceedings if the Magistrate would be willing to obtain an order from a judge directing the Marshal to transport defendant to New York promptly. The Magistrate said she would try to obtain an order to have the defendant brought here in time for a hearing on Tuesday, July 16, 1985, a date she had been informed this court had scheduled for the hearing if defendant were brought from Florida.
After having heard this and consulted with counsel, defendant waived removal proceedings.
This court finds that defendant was given the option of having the hearing held in Florida on Friday, July 12, 1985 or having the hearing held here on Tuesday, July 16, 1985. He chose the latter.
A hearing in Florida on July 12 would have been timely. So too would one held on July 15 since Saturday and Sunday are not to be counted. Fed. R. Crim. P. 45(a). Defendant contends that the hearing was not timely in this district when held on July 16, 1985. He asserts that it should have been held at the latest on Saturday, July 13. He argues that Saturdays (although not Sundays) are to be included in the count, that the hearing was outside the three day continuance the government applied for, and that the government never applied to extend that period for "good cause."
This court holds that by opting for the hearing in New York on July 16, 1985 defendant may not be heard to argue that it should have been held before that date. In effect he sought a continuance until the later date. Whether his knowing choice be construed as a "motion" for a five day continuance or as a waiver of an earlier hearing makes no difference. If defendant could apply for a five day continuance he could also waive his rights for that period of time. Even assuming arguendo that an accused may not waive his right to a hearing date beyond five days, defendant concedes that July 16, 1985 was ...