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UNITED STATES v. HEILIG

April 3, 1986

UNITED STATES OF AMERICA
v.
THEODORE H. HEILIG



The opinion of the court was delivered by: RAMBO

 Sylvia H. Rambo, United States District Judge.

 A. Background and Procedural History

 Defendant Theodore H. Heilig was arrested on February 25, 1986 for distribution of and conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. On February 26, 1986, defendant was taken before United States Magistrate Andrew J. Smyser for a Rule 5 proceeding. At that hearing, the Government moved for a detention hearing pursuant to 18 U.S.C. § 3142(f). Although the Government was prepared to proceed with the hearing, defendant Heilig moved for a one day continuance to permit him time to confer with retained counsel. Because of the absence of Magistrate Smyser, the matter was transferred to Magistrate Durkin. The Clerk's Office issued a notice to counsel and defendant that the detention hearing would be held on March 4, 1986. Defendant neither filed a motion objecting to this date nor requested an earlier hearing.

 On March 10, 1986, defendant filed an Application to Amend or Revoke Detention Order. Defendant has filed a supporting brief and the Government has filed a brief in opposition to defendant's application. Defendant was arraigned before this court on March 18, 1986. A hearing on defendant's motion was held on March 27, 1986.

 Defendant's Application to Amend or Revoke Detention Order will be denied. As required by 18 U.S.C. § 3142(i), this memorandum sets forth the court's findings of fact and statement of the reasons for the detention of defendant.

 B. Timeliness of Detention Hearing

 The first issue that must be decided is whether the detention hearing before Magistrate Durkin was timely held. Defendant argues that 18 U.S.C. § 3142(f), which limits continuances on the motion of the defendant to five days except for good cause, was violated since the hearing was held six days after his initial appearance. As a result, defendant submits, this court may not order unconditional pretrial detention.

 The determination whether the detention hearing was held within five days of defendant's initial appearance turns on whether weekends are to be included in computation of the five day period. If weekends are included, the hearing was held six days after defendant's initial appearance before Magistrate Smyser. If weekends are excluded from the computation, the hearing was held four days after defendant's initial appearance.

 Defendant submits that weekends are to be included in the computation of time under Section 3142(f). Defendant relies upon the fact that in 18 U.S.C. § 3142(d), Congress expressly provided that weekends are not to be included in computation of the ten day period for temporary detention. He argues that if Congress had similarly intended to exclude weekends in computation of the five day continuance period, it would have expressly provided in Section 3142(f) that weekends were to be excluded. In United States v. Hurtado, 779 F.2d 1467, 1474 n.8. (11th Cir. 1985), the court in a footnote accepted the construction of Section 3142(f) proffered by defendant.

 The Government argues that defendant misconstrues Congress' intent. It submits that Federal Rule of Criminal Procedure 45(a), which excludes weekends and legal holidays from statutory time period computations of less than seven days, applies to the computation of the five day continuance period of 18 U.S.C. § 3142(f). The Government also relies on Rule 45(a) to explain why Congress expressly excluded weekends in Section 3142(d) but did not do so in Section 3142(f). The Government contends that by stating weekends and holidays would be excluded in computing the temporary ten day detention period under Section 3142(d), Congress evidenced its intention that the normal method for computing a ten day time period under Federal Rule of Criminal Procedure 45(a) would not be followed in the context of temporary detentions. However, if Congress had intended that the normal method for computing a five day time period under Rule 45 should not apply under Section 3142(f), then Congress would have expressly stated in Section 3142(f) that weekends and holidays are to be included in that five day computation. The Government concludes that Congress' failure to do so evidences its intent that Rule 45 should apply to computation of the five day time period under Section 3142(f).

 The District of Columbia Code further mandates rejecting the Government's argument that the reason Congress expressly excluded weekends from the temporary detention period of 18 U.S.C. § 3142(d) was to modify the normal computation under Federal Rule of Criminal Procedure 45(a). Rather, Congress' express exclusion of weekends from Section 3142(d) manifests its adoption of the analogous provision of the District of Columbia Code § 23-1322(e), which as amended expressly excludes weekends from the temporary detention period. *fn1" Congress' failure to expressly exclude weekends from Section 3142(f) indicates that it similarly intended to adopt the District of ...


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