The opinion of the court was delivered by: Elizabeth T. Hey United States Magistrate Judge
This case presents the question whether a defendant, arrested in one district for violating conditions of release set in another district, is entitled to a preliminary hearing and determination of probable cause in the district of arrest. I answer this question in the negative.
On October 31, 2008, Arti Jaitly pled guilty in the Eastern District of New York to criminal information number 05-688-4, charging her with willful failure to file a tax return. The Honorable Sandra Feuerstein accepted Ms. Jaitly's guilty plea, and continued her on pretrial release with conditions. According to the docket in the Eastern District of New York, sentencing has not yet been scheduled.
On March 31, 2009, Judge Feuerstein issued a warrant for Ms. Jaitly's arrest in connection with an alleged violation of the conditions of her pretrial release.*fn1 The affidavit in support of revocation alleges that Ms. Jaitly committed wire and mail fraud, conspiracy and false statement while on pretrial release. The alleged offenses are not the subject of any new criminal charges, but rather are offered as grounds for revocation of bail.
On April 10, 2009, Ms. Jaitly was arrested in this district on the warrant and was brought before me for an initial appearance, and I appointed the Federal Defenders' Office to represent her. After conferring with counsel, she stipulated that she was the person named in the New York warrant, and I denied the government's request for detention or the posting of security in addition to that already posted in the underlying case. I ordered Ms. Jaitly's release on her own recognizance with the posting of a $50,000 bond, pending further proceedings in the Eastern District of New York. All documents in this court were transferred to the Eastern District of New York, and my staff contacted Judge Feuerstein's chambers to advise them of the proceedings. I did not make a probable cause finding.
On April 15, 2009, I received a Motion for a Preliminary Hearing from Kevin Mulhearn, Ms. Jaitly's counsel in the Eastern District of New York.*fn2 Although Mr. Mulhearn is not admitted to practice in this court, I directed the Clerk of Court to file the motion and directed the United States Attorney of this district and the Defenders' Association to respond. The Government has responded in opposition to the motion, and the Defenders' Association has moved for Mr. Mulhearn's admission to this court pro hac vice.*fn3
Mr. Mulhearn argues that, pursuant to Federal Rule of Criminal Procedure 5.1, Ms. Jaitly is entitled to a preliminary hearing in this district. See Def.'s Mot. at ¶¶ 2, 3. One of the purposes of a preliminary hearing is for a judicial determination whether there is probable cause that the defendant committed an offense. See Fed. R. Cr. P. 5.1(e). Thus, Ms. Jaitly seeks to have this court, rather than Judge Feuerstein, determine the existence of probable cause underlying the alleged violations. In response, the United States Attorney urges the court to deny the motion because the issue of probable cause for a bail violation is left to the judicial officer who ordered the defendant's release. See Resp. at 2.
A. Applicable Rules and Statutory Provisions
I should first dispense with Mr. Mulhearn's primary argument, which is premised on the theory that Ms. Jaitly has been charged criminally with mail fraud, wire fraud, conspiracy, and making a false statement. This premise is inaccurate, because there are no new criminal charges. Rather, the warrant issued by Judge Feuerstein is based upon an affidavit alleging probable cause that new criminal conduct has occurred which merits the revocation of Ms. Jaitly's release. Had Ms. Jaitly been brought to court on new charges, I would agree that she would be entitled to a preliminary hearing and probable cause determination on those new charges. But such was not the case.
No federal rule or statute directly addresses the question whether a defendant alleged to have violated the conditions of release set in one district, but who is arrested for that violation in another district, is entitled to a preliminary hearing in the district of arrest to determine whether there is probable cause that she committed the alleged violation. The answer to this question requires examination of four provisions -- Rule 40, governing arrests for violating release conditions in another district, Rules 5 and 5.1, governing the right to a preliminary hearing, and section 3148, providing sanctions for violating a release condition.
First, Rule 40 applies to arrests in one district for either a failure to appear in or a violation of conditions of release set in another district. Fed. R. Cr. P. 40. The Rule requires that the person be brought before a magistrate judge in the district of arrest, but does not direct the magistrate judge to hold a preliminary hearing. Rather, Rule 40(b) provides that the judge must proceed under Rule 5(c)(3).*fn4
The analysis thus turns to Rule 5, which addresses procedures for a defendant's initial appearance. Specifically, Rule 5(c)(3) addresses procedures in the district of arrest "other than where the offense was allegedly committed," and requires the magistrate judge to, among other things, transfer the matter to the originating district based on a warrant and proof of identity. Fed. R. Cr. P. 5(c)(3). The Rule also states that "the magistrate judge must conduct a preliminary hearing if required by Rule 5.1." Id. Turning to Rule 5.1(a), that provision states:
If a defendant is charged with an offense other than a petty offense, a magistrate judge must conduct a preliminary hearing unless:
(1) the defendant waives the hearing;
(2) the defendant is indicted;
(3) the government files an information . . . charging the defendant with a felony;
(4) the government files an information charging the defendant ...