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United States v. Ervin

August 19, 2010

UNITED STATES OF AMERICA
v.
ALBERT LEROY ERVIN



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

MEMORANDUM ORDER

Pending before the Court is the MOTION TO REVOKE DETENTION ORDER filed on behalf of Defendant, Albert Leroy Ervin (Document No. 25), and the RESPONSE IN OPPOSITION filed by the government (Document No. 28). The Court has reviewed a transcript of the detention hearing on December 21, 2009, conducted before United States Magistrate Judge Amy Reynolds Hay. For the reasons that follow, the Motion is DENIED.

Facts and Procedural History

On December 16, 2009, a federal grand jury returned a three-count Indictment against Defendant in which he was charged in Count 1 with Robbery of a United States Postal Station, on or about October 9, 2008, in violation of 18 U.S.C. ' 214(a); in Count 2 with Possession of a Firearm by a Convicted Felon, on or about October 9, 2008, through on or about April 23, 2009, in violation of 18 U.S.C. § 922(g)(1); and in Count 3 with Illegal Possession of a Firearm, on or about October 9, 2008, through on or about April 23, 2009, in violation of 18 U.S.C. § 922(g)(8) (Document No. 1). Defendant made his initial appearance on December 18, 2009, at which time the government requested that Defendant be temporary detained without bond pending hearing pursuant to the Bail Reform Act, 18 U.S.C. " 3141, et. seq. (Document Nos. 6 and 9). A detention hearing was scheduled for December 21, 2009.

As scheduled, an arraignment and detention hearing was held on December 21, 2009, before United States Magistrate Judge Amy Reynolds Hay. The Defendant was present and represented by counsel at the detention hearing. At the hearing, counsel for the government presented evidence and proffers of evidence including, but not limited to, information which pertained to the Defendant=s history and the circumstances of his arrest on this charge. In particular, the government presented evidence that on October 9, 2008, Defendant committed an armed robbery of the Langeloth Post Office, while he was serving a sentence of 365 days home confinement, which included electronic home monitoring, for a conviction of driving under DUI suspension. The uncontested evidence presented during the detention hearing also reflected that Defendant's house arrest ankle bracelet was removed from his body approximately one hour before the robbery took place and then put back on his body approximately one-half hour after the robbery was concluded.

The government also presented evidence that thirteen (13) previous bench warrants have been issued for Defendant due to his failure to appear in Court, two of which remained active warrants. Defendant has a past criminal history which includes multiple charges and pleas to driving under suspension - DUI related, two felony convictions, and had an active PFA (for breaking his girlfriend's nose and leaving her on the side of the road unconscious) which was finalized on August 31, 2007.

At the conclusion of the hearing, the magistrate judge granted the government=s motion and ordered that Defendant be detained pending further disposition of this matter. (Document No. 15).

Defendant has filed the instant motion in which he requests that the Court revoke the Order of Detention and order his release on bond. According to Defendant, "[t]he primary reason for detention was numerous bench warrants that were issued for Mr. Ervin's failure to attend hearings on traffic and driving offenses. Each of those was resolved by Mr. Ervin's appearance and apology for missing the scheduled dates...." Mot. at ¶ 3. Additionally, Defendant states that "[t]he Pretrial Agency recommended release on conditions." Id. at ¶ 5.

Standard of Review

When a district court acts on a motion to revoke a pretrial detention order issued by a magistrate judge, the district court acts de novo and must make an independent determination of the proper pretrial detention or conditions for release. United States v. Kelker, 757 F.2d 1390, 1394 (3d Cir. 1985).

In conducting a de novo review, the district court may rely on the evidence presented before the magistrate judge. Though not required to do so, the reviewing court may, in its discretion, choose to hold an evidentiary hearing if necessary or desirable to aid in the determination. However, a de novo review does not require a de novo evidentiary hearing. See United States v. Chagra, 850 F. Supp. 354, 357 (W. D. Pa. 1994) (noting that the court may incorporate the records of the proceedings and the exhibits before the magistrate judge).

The legal standards which govern review of a magistrate judge=s decision regarding pretrial detention were summarized as follows:

This court exercises de novo review over the detention order entered by the magistrate judge. See United States v. Delker, 757 F.2d 1390, 1393-95 (3d Cir. 1985). The magistrate judge=s decision and reasoning is to be given careful consideration where a transcript of the detention hearing is available, id., even though the standard of review removes any obligation to accord deference to the magistrate judge=s findings and decision. See United States v. Koenig, 912 F.2d 1190, 1193 (9th Cir. 1990). This court may make its independent determination based solely upon the evidence introduced at the prior hearing. Delker, 757 F.2d at 1395; Koenig, 912 F.2d at 1193 (AClearly, the district court is not required to start over in every case, and proceed as if the magistrate=s decision and findings did not exist.@); United States v. Torres, 929 F.2d 291, 292 (7th Cir. 1991) ...


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