                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           AUG 13 2002
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

    v.                                                    No. 02-1222
                                                    (D.C. No. 01-CR-395-D)
    THOMAS GRANT DOWELL,                                 (D. Colorado)

                  Defendant - Appellant.


                               ORDER AND JUDGMENT         *




Before EBEL Circuit Judge, BRORBY , Senior Circuit Judge, and         KELLY ,
Circuit Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendant-appellant Thomas Grant Dowell appeals the district court’s

denial of release pending trial. We have jurisdiction pursuant to 18 U.S.C.

§ 3145(c) and 28 U.S.C. § 1291, and we affirm.


                                         I.

      Defendant is currently awaiting trial in the District of Colorado on charges

that he destroyed government property by means of a fire and forcibly interfered

with government employees and administration. Defendant was arrested on these

charges in November 2001 in the Northern District of Texas and a magistrate

judge ordered him detained unless he posted a $100,000.00 cash or surety bail

bond. Defendant was then transferred to the District of Colorado, where

a magistrate judge ordered that the bond conditions remain in effect. Defendant

filed a motion to review and/or modify the conditions of release, but a magistrate

judge denied the motion at a hearing on April 4, 2002.

      On April 8, 2002, defendant filed a motion for revocation or amendment of

the magistrate judge’s order regarding conditions of release. The government

opposed the motion, and it also moved to have the district court detain defendant

before trial under § 3142(e). A hearing on these motions was held before the

district judge on April 23, 2002. On April 26, 2002, the district judge entered an

order denying defendant’s motion for revocation or amendment and granting the

government’s motion for pretrial detention under § 3142(e).

                                         -2-
       On May 10, 2002, defendant filed a pro se notice of appeal, seeking

review of the district court’s order. On June 5, 2002, defendant’s counsel filed

a memorandum regarding the issues on appeal in which he stated that the pro se

notice of appeal was filed without his knowledge or consent and that he “does not

believe this appeal to be meritorious.”   1
                                              Mem. Regarding Issues on Appeal at 2

n.1. On June 18, 2002, the government informed this court that it was not going

to file a response to defense counsel’s memorandum since counsel admitted that

this appeal lacks merit.

       On June 24, 2002, this court sent defendant a notice informing him that his

counsel had filed a brief stating a belief that this appeal is without merit. The

court further informed defendant that he had thirty days to raise any points to

show why the order entered by the district court on April 26, 2002 should not be

affirmed. Defendant did not file anything in response to this court’s notice, and

the thirty-day period expired on July 24, 2002.


                                              II.

       We hold that the district court acted properly in granting the government’s

detention motion under 18 U.S.C. § 3142(e). Accordingly, we need not address



1
      Both the district court and this court have permitted defendant’s counsel to
withdraw as counsel of record, and defendant is currently represented both on
appeal and in the district court by new counsel.

                                              -3-
whether the district court erred in denying defendant’s motion    for revocation or

amendment of the magistrate judge’s order regarding conditions of release.

      The fundamental reason for detaining a defendant pending trial is that, after

a hearing, a “judicial officer finds that no condition or combination of conditions

will reasonably assure the appearance of the person as required and the safety of

any other person and the community.” 18 U.S.C. § 3142(e). Factors to be

considered in this determination include the nature and circumstances of the

offense, including whether it is a crime of violence or a drug offense; the weight

of the evidence against the defendant; defendant’s history, character, physical and

mental condition, family ties, employment, financial resources, length of

residence in the community, community ties, past conduct, criminal history,

record concerning court appearances, and whether at the time of arrest defendant

was on probation or parole; and the nature and seriousness of the danger

defendant poses to any person or the community.       See 18 U.S.C. § 3142(g).

      A detention order must include “written findings of fact and a written

statement of the reasons for the detention.” 18 U.S.C. § 3142(i)(1). Rule 9(a)(1)

of the Federal Rules of Appellate Procedure further requires that the district court

“state in writing, or orally on the record, the reasons for an order regarding the

release or detention of a defendant in a criminal case.” This court’s “review of

detention or release orders is plenary as to mixed questions of law and fact and


                                           -4-
independent, with due deference to the district court’s purely factual findings.”

United States v. Stricklin , 932 F.2d 1353, 1355 (10th Cir. 1991).

      The government moved for pretrial detention under § 3142(e) on the

grounds that defendant is a danger to the community and a flight risk. In his

order granting the government’s motion, the district judge found that pretrial

detention was necessary for the following reasons:

      The Government asserts that Defendant should be detained because
      of the severity of the crime with which Defendant is charged, arson
      to the IRS building in Colorado Springs, CO, which caused over
      two and a half million dollars in damage, destroyed thousands of
      individual taxpayer returns and posed risk of death and serious bodily
      injury to responding firefighters. The Government also states that it
      believes Defendant is a substantial risk of flight based on the long
      duration of the sentence, should the Defendant be convicted at the
      upcoming trial, the substantive evidence against Defendant, and
      the fact that Defendant does not have a permanent address or
      employment ties to the community. I find that Defendant’s detention
      is necessary under 18 U.S.C. § 3142(e) for the reasons stated on the
      record at the hearing, including the nature of the offense Defendant
      is charged with, his lack of ties to the community, and the pro se
      letter Defendant filed on March 26, 2002. From what the Court was
      able to decipher of the pro se letter, entitled Judicial Notice of
      Military Flag and Challenge of Jurisdiction, Defendant indicated his
      lack of deference for the Court and stated his belief that the federal
      courts do not have jurisdiction over him or his case. Thus, I find that
      no condition or combination of conditions will reasonably assure
      Defendant’s appearance as required and the safety of any other
      person and the community, and I will order Defendant’s pretrial
      detention.

R., Doc. 154 at 4.




                                         -5-
      Neither defendant nor the government have provided this court with a

transcript of the hearing before the district court on April 23, 2002. Although

Rule 9(a)(1) of the Federal Rules of Appellate Procedure generally requires an

appellant who questions the factual basis for a district court’s detention order to

file a transcript of the detention proceedings, we hold that the district court’s

order sufficiently sets forth the factual findings underlying the detention order

and that the findings are not clearly erroneous.

      The order of the district court is AFFIRMED.


                                        ENTERED FOR THE COURT
                                        PER CURIAM




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