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UNITED STATES v. VELASCO

March 17, 1995

UNITED STATES OF AMERICA against FRANK VELASCO, et al., Defendants.


The opinion of the court was delivered by: PETER K. LEISURE

 LEISURE, District Judge:

 Defendant Frank Velasco ("Velasco") has moved to dissolve a stay of an order admitting him to bail. For the reasons stated below, Velasco's motion is denied.

 Velasco was indicted on January 31, 1995, by a Grand Jury sitting in the Southern District of New York, for his alleged involvement in a large-scale heroin smuggling operation. A Magistrate Judge in the Southern District of New York issued a warrant for Velasco's arrest, which was executed in Miami, Florida on February 2, 1995. Velasco is now in federal custody in the Southern District of Florida, where he has sought and obtained some four stays of his removal hearing.

 Although Velasco is currently in custody, a Magistrate Judge in the Southern District of Florida has ordered that Velasco be admitted to bail. Pursuant to 18 U.S.C. § 3145(a), however, the Government moved before the Hon. Charles S. Haight, Jr., United States District Judge of this District (who was then presiding in Part I), to revoke Velasco's bail order. Judge Haight stayed Velasco's bail order pending resolution of the Government's motion for revocation. Velasco appealed Judge Haight's stay to the Court of Appeals for the Second Circuit. The Second Circuit upheld the stay.

 Meanwhile, pursuant to a local rule in the Southern District of Florida, the Government's filing of a notice that it had moved to revoke the bail order triggered an automatic stay of the bail order. Velasco moved before the Hon. Donald L. Graham, United States District Judge for the Southern District of Florida, to dissolve this automatic stay. Judge Graham granted Velasco's motion. In so doing, however, Judge Graham also purported to "affirm" the bail order.

 Against this backdrop, Velasco moved before me, as the Court to whom Velasco's case had been assigned for all purposes, to dissolve the stay entered by Judge Haight and affirmed by the Second Circuit, on the ground that Judge Graham's purported "affirmance" of the bail order rendered moot the Government's motion in this District for revocation of the bail order.

 Section 3145(a) provides:

 
(a) Review of 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 and other than a Federal appellate court --
 
(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; and
 
(2) the person may file, with the court having original jurisdiction over the offense, a motion for amendment of the conditions of release.
 
The motion shall be determined promptly.

 18 U.S.C. § 3145(a) (emphases added). Velasco argues, in substance, that, once Judge Graham purported to "affirm" the bail order, "a judge of a court having original jurisdiction over the offense," § 3145(a) (emphasis added), had ordered that Velasco be released, so that § 3145(a)(1) and (2) became inapplicable and the Government's motion in this Court to revoke the bail order became moot. The Government responds, in substance, that, once the Magistrate Judge in the Southern District of Florida ordered that Velasco be released, only "the court having original jurisdiction over the offense," § 3145(a)(1),(2) -- this Court, in which the indictment underlying Velasco's current arrest was filed -- had jurisdiction under § 3145(a) to hear a motion for revocation or amendment of the bail order. Judge Graham's purported "affirmance" of the bail order does not operate to require Velasco's release from custody, in the Government's view, and the Government's motion in this District to revoke the bail order is not moot.

 In this Court's view, the narrow issue before it is whether, after a party has moved pursuant to § 3145(a)(1) or (2), in the district of prosecution, to revoke or amend a release order, and a district judge in the district of prosecution has properly stayed the release order, a district judge in the district of arrest may effectuate the defendant's release on bail and deprive the district judge before whom the prosecution ...


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