The opinion of the court was delivered by: Gary L. Sharpe District Court Judge
Bradley Colin has been indicted for the interstate receipt and possession of child pornography. See Indictment, Dkt. No. 9; see also 18 U.S.C. §§ 2252A(a)(2), 2252A(a)(5)(B), 2256(8)(A). At his arraignment, the government moved to detain him as a risk of danger and flight. See Gov't Detention Motion, Dkt. No. 7; see also 18 U.S.C. § 3141 et. seq. After a bail hearing, Magistrate Judge Randolph H. Treece issued a release order. See Release Order, Dkt. No. 20
The government sought to stay Colin's release pending district court review, and Judge Treece denied the application. See Gov't MOL at 4, Dkt. 19-1. The government then filed an order to show cause seeking a stay, and revocation of Judge Treece's order. See 18 U.S.C. § 3145(a)(1); see also Dkt. No. 19. After providing defense counsel an opportunity to respond, the court granted a temporary stay pending an expedited return the following day. See FED. R. CRIM. P. 38; FED. R. APP. P. 8(c), 9; Dkt. No. 18 & 11/29/07 Min. Entry.
During the return, the court discussed the substance of Judge Treece's bail decision and the underlying record with the parties. See Dkt. No. 22. Because neither party wished to supplement that record, the court declined to compel full compliance with proposed Local Rule 58.1(a)(3) which requires a transcript of the bail hearing. See United States v. Vasconcellos, -- F. Supp. 2d --, 2007 WL 3274778, *2 and n.2 (N.D.N.Y. Nov. 5, 2007). The court then conducted a de novo hearing and revoked the release order, detaining Colin as a risk of danger. When detention is ordered, it is unclear whether a district court's bail review requires a written decision containing factual and legal conclusions. Cf. 18 U.S.C. §§ 3142(i)(1),3145(a). Nonetheless, the court elects to do so.
Bail decisions are reviewed de novo, and the court has defined that standard 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.... [It] ... permit[s] whatever reliance a district judge, in the exercise of sound judicial discretion, [chooses] to place on a magistrate's proposed findings and recommendations. 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.
Vasconcellos, 2007 WL 3274778, at *1-2 (internal citations and quotations omitted, and alterations added).
Accordingly, the court gives fresh consideration to the underlying bail decision and makes its own independent judgment.*fn1
Colin has been charged with the interstate receipt and possession of child pornography. If convicted of the interstate receipt offense, he faces a maximum sentence of twenty years and a mandatory minimum five years. See 18 U.S.C. § 2252A(b)(1). Because the offenses are violent crimes, there is a rebuttable presumption that Colin is a dual flight and danger risk. See 18 U.S.C. §§ 3142(f)(1)(A), 3156(a)(4)(C). The grand jury indictment constitutes a finding of probable cause sufficient to trigger the presumption. See United States v. Rodriquez, 950 F.2d 85, 87 (2d Cir. 1991) (citation omitted).
The court presumes familiarity with its recent summary of bail principles, see Vasconcellos, 2007 WL 3274778, at * 2-5, and briefly comments on those ...