United States v. Tooze

236 F.R.D. 442, 2006 U.S. Dist. LEXIS 39305, 2006 WL 1652618
CourtDistrict Court, D. Arizona
DecidedJune 14, 2006
DocketNo. CR-06-0527-PHX-DGC
StatusPublished
Cited by2 cases

This text of 236 F.R.D. 442 (United States v. Tooze) is published on Counsel Stack Legal Research, covering District Court, D. Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Tooze, 236 F.R.D. 442, 2006 U.S. Dist. LEXIS 39305, 2006 WL 1652618 (D. Ariz. 2006).

Opinion

ORDER

CAMPBELL, District Judge.

Magistrate Judge Lawrence Anderson has ordered that Defendants Candace Tooze and Cecilia Herzberg be released upon posting secured bonds of $100,000 each. The government has appealed Judge Anderson’s release decision. The appeal raises a question of first impression: whether the recently-enacted time and waiver provisions of Federal Rule of Criminal Procedure 59(a) govern the appeal rights provided in 18 U.S.C. § 3145. If they do, the government has waived its right to appeal. The Court must then decide whether it possesses and should exercise discretion to review Judge Anderson’s order.

The Court concludes that the government has waived its right to appeal. The Court also concludes, however, that it should exercise its discretion and reverse the magistrate judge’s order releasing Defendants.

I. Background.

Sisters Candace Tooze and Cecilia Herz-berg are charged with bank robbery and conspiracy to commit bank robbery. Doc. #29. At a detention hearing on April 27, 2006, Judge Anderson found that the government had failed to meet its burden of proving that Defendants were dangers to the community or serious flight risks. Doc. # 35 at 55-56. Judge Anderson ordered that Defendants be released upon posting secured bonds of $100,000 each. Id. at 56. On May II, 2006, Defendants filed a joint motion to reduce the bond amount. Doc. # 14. Judge Anderson denied this request, stating that Defendants posed a sufficient flight risk to justify a substantial bond requirement. Doc. # 17 at 6.

The flaneé of the Defendants’ mother subsequently agreed to pledge his house as security for Defendant Tooze’s bond. A hearing concerning the sufficiency of the bond and other conditions of release was held on May 24, 2006. Judge Anderson found the bond requirement satisfied and ordered Ms. Tooze released. Doc #36. The government objected and requested a stay. Judge Anderson denied the stay, concluding that the government had waived its right to appeal because no objections were filed within 10 days of the April detention hearing as required by Rule 59(a). Id. at 5-7.

The government filed a notice of appeal and request for stay the same day. Doc. # 18. District Judge Earl H. Carroll granted the stay. On May 31, 2006, the Court heard oral argument on the government’s appeal and Defendant Herzberg’s motion to reduce bond.

II. Rule 59(a) Applies to the Government’s Appeal.

Rule 59(a), provides:

A district judge may refer to a magistrate judge for determination any matter that does not dispose of a charge or defense. The magistrate judge must promptly conduct the required proceedings and, when appropriate, enter on the record an oral or written order stating the determination. A party may serve and file objections to the order within 10 days after being served with a copy of a written order or after the oral order is made on the record, or at some other time the court sets. The district judge must consider timely objections and modify or set aside any part of the order that is contrary to law or clearly erroneous. Failure to object in accordance with this rule waives a party’s right to review.

The government argues that the rule does not apply to this appeal because the question of Defendants’ detention was not specifically “referred” to Judge Anderson by a district judge. Local Rule of Criminal Procedure 57.6(d)(3) provides, however, that magistrate judges shall “[cjonduct all detention hearings and hearings to amend, modify or revoke conditions of release under the Bail Reform Act of 1984....” This local rule has been promulgated by the district judges to clearly [444]*444assign pre-trial detention hearings to magistrate judges. The Court concludes that the local rule constitutes a referral of detention matters to magistrate judges within the meaning of Rule 59(a).

Rule 59(a) was designed to “enhance the ability of a district court to review a magistrate judge’s decision or recommendation by requiring a party to promptly file an objection to that part of the decision or recommendation at issue.” Rule 59 Advisory Committee Notes (2005 Adoption). The Court can identify no principled basis for concluding that Rule 59(a) applies only to matters referred to magistrates by orders in individual cases and not to matters referred by local rule. The uniform standards established by Rule 59(a) are beneficial in all non-dispositive matters, whether referred by local rule or individual order.

During the hearing on April 27, 2006, Judge Anderson stated on the record that the government had failed to carry its burden of proving that Defendant Tooze was a danger to the community or a serious flight risk and ordered her release on bond. Doc. #35 at 55-59. This ruling constituted an “oral order ... made on the record” within the meaning of Rule 59(a). The government accordingly had 10 days to appeal Judge Anderson’s ruling.

The government argues that the appeal was timely because it was filed within 10 days of Judge Anderson’s release order at the May 24, 2006 hearing. But the government appeals Judge Anderson’s decision that Defendants are not sufficient flight risks, and that decision was made on April 27, not May 24. See Docs. ##35, 36. Moreover, the government appeals Judge Anderson’s decision to release both Defendants even though the May 24 hearing was limited to approving the bond for Defendant Tooze. Doc. #36. Clearly, it is the April 27 order that the government seeks to appeal. If Rule 59(a) controls, the government waived its right to appeal by waiting more than 10 days before acting.

III. Rule 59(a) Govern Appeals Under 18 U.S.C. § 3145(a).

The government argues that § 3145(a) grants a statutory right to seek review of the magistrate judge’s order, that the statute contains no time limit for the appeal, and that Rule 59(a) cannot trump a statutory right. The Supreme Court has held that the right to appeal from a magistrate judge’s decision can be waived by the parties. Thomas v. Arn, 474 U.S. 140, 146, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Rule 59(a) makes this waiver explicit in criminal cases. The question is whether it controls earlier enacted statutes.

Rule 59 became effective on December 1, 2005. The rule was derived from Federal Rule of Civil Procedure 72 and was adopted in response to the Ninth Circuit’s decision in United States v. Abonce-Barrera, 257 F.3d 959 (2001). See Fed.R.Crim.P. 59, Advisory Committee Notes (2005 Adoption). The court in Abonce-Barrera refused to apply Civil Rule 72 in a criminal context and noted that the normal rule-making process would be a more appropriate avenue for placing limits on appeals of magistrate judge decisions in criminal cases. Id. at 968.

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Cite This Page — Counsel Stack

Bluebook (online)
236 F.R.D. 442, 2006 U.S. Dist. LEXIS 39305, 2006 WL 1652618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tooze-azd-2006.