The opinion of the court was delivered by: Gary L. Sharpe District Court Judge
Charles Vasconcellos and Bryan Wilson have been indicted for conspiring to distribute at least five kilograms of cocaine and fifty grams of crack. See Indictment, Dkt. No. 1; see also 21 U.S.C. §§ 841(b)(1)(A), 846. At their arraignment, the government moved to detain them as risks of danger and flight. See 5/29/07 Min. Entry; see also 18 U.S.C. § 3141 et. seq. After a bail hearing, Magistrate Judge Randolph H. Treece denied the motion, and issued release orders. See 5/30/07 "Vasconcellos Release Order", Dkt. No. 20; 5/31/07 "Wilson Release Order", Dkt. No. 47. The government now moves to revoke those orders. See 18 U.S.C. § 3145(a)(1); see also Dkt. Nos. 55, 109, 123, 150. Vasconcellos and Wilson oppose, and Vasconcellos cross-moves to reduce the bond amount recited in release condition 7(b). See 18 U.S.C. 3145(a)(2); VASCONCELLOS Release Order, ¶ 7(b); see also Dkt. Nos. 106, 120, 156. After receipt of the motions, the court conducted a de novo bail hearing.
For the reasons that follow, the court: grants the government's motion, revokes the Wilson Release Order, and detains him as a risk of flight and danger; denies the government's motion to revoke Vasconcellos' Release Order; and denies VASCONCELLOS' cross-motion to modify condition 7(b).
In this district, magistrate judges make the initial bail decision. See 18 U.S.C. §§ 3041, 3141(a), 3156(a)(1); see also L. R. CR. P. 58.1(a)(2)(I) & (b). If dissatisfied with that decision, either the government or the defendant may seek district court review. See 18 U.S.C. § 3145(a)(b). Nothing in the statute itself, however, defines the scope of that review. See 18 U.S.C. § 3145.
The Circuit has said that the district court "should not simply defer to the judgment of the magistrate, but reach its own independent conclusion." U.S. v. Leon, 766 F.2d 77, 80 (2d Cir. 1985). This language is a generic reference to de novo review, a standard district courts routinely employ when reviewing a magistrate's dispositive recommendation. See e.g., FED. R. CIV. P. 72(b) ("The district judge ... shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition ..."); 28 U.S.C. § 636(b)(1)(C) (same). Other judges in this district have conducted de novo review of bail decisions. See U.S. v. Maley, No. 5:07-MJ-194, 2007 WL 2667469, *2 (N.D.N.Y. Sept. 6, 2007) (Scullin, SJ); U.S. v. Aref, No. 04-CR-402, 2006 WL 1650660, *1 (N.D.N.Y. Jun. 8, 2006) (McAvoy, SJ); U.S. v. Gilkeson, 431 F. Supp. 2d 270, 295 (N.D.N.Y. 2006) (Hurd, DJ); U.S. v. Kaminski, No. 97-CR-382, 1998 WL 275594, * 10 (N.D.N.Y. May 27, 1998) (Pooler, then DJ, now CJ). This court has defined the scope of de novo review as follows:
De novo review requires that the court "'give fresh consideration to those issues to which specific objections have been made.' It will examine the entire record, and make an independent assessment of the magistrate judge's factual and legal conclusions." United States v. Raddatz, 447 U.S. 667, 675 (1980) (citing H.R. Rep. No. 94-1609, 94th Cong., 1st Sess. p. 3 (1976), U.S. Code Cong. & Admin. News 1976, p. 6163); see also 12 Charles Alan Wright et. al., Federal Practice and Procedure § 3070.2 (2d ed. 1997). 28 U.S.C. § 636(b)(1) actually employs the phrase "de novo determination" rather than "de novo hearing," thus permitting "whatever reliance a district judge, in the exercise of sound judicial discretion, [chooses] to place on a magistrate's proposed findings and recommendations." Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989) (citing Raddatz, 447 U.S. at 676). When the district court makes its de novo determination, the parties have no right to present evidence not submitted to the Magistrate Judge. Nonetheless, the court retains the discretion to consider additional evidence although it should afford the parties notice.
See Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir. 1998) (citing Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994); Pan American World Airways, Inc. v. International Bhd. of Teamsters, 894 F.2d 36, 40 n. 3 (2d Cir. 1990)).
Almonte v. N.Y.S. Div. of Parole, No. Civ. 9:04CV484, 2006 WL 149049, *5
(N.D.N.Y. Jan. 18, 2006).
Accordingly, while the court will give fresh consideration to a bail decision and make an independent judgment, the question remains as to what record it will consider when doing so.*fn1 First of all, the court will enforce proposed Rule 58.1(a)(3) of the Local Rules of Criminal Procedure.*fn2 Additionally, the moving party must specifically identify that portion of the magistrate judge's decision for which review is sought. If exhibits were introduced at the hearing but not preserved in the record, they should be attached to the motion or response. Absent a finding of good cause supported by an explanation set forth in the motion or response, the court will not consider new evidence or arguments not presented to the magistrate judge. If there is new evidence or argument, the parties should seek reconsideration by the magistrate judge before seeking district court review. The parties need not re-file relevant items that have been docketed, and the court will retrieve items subject to its control.*fn3 If the court elects to expand the record and permit oral argument or new evidence, it will notify the parties.
Both Vasconcellos and Wilson have been indicted for conspiring to distribute more than five kilograms of powder cocaine and fifty grams of crack cocaine. See Indictment, Dkt. No. 1; 21 U.S.C. §§ 841(b)(1)(A), 846; see also Pinkerton v. U.S., 328 U.S. 640 (1946) (conspiratorial liability). If convicted, each faces a maximum life sentence and a mandatory minimum ten years. Accordingly, the government moved to detain them as risks of ...