                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                         July 3, 2014

                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                        No. 14-4048
                                               (D.C. No. 2:14-CR-00176-DAK-1)
DONALD B. GERKIN,                                          (D. Utah)

             Defendant - Appellant.


                            ORDER AND JUDGMENT*


Before TYMKOVICH, O’BRIEN, and BACHARACH, Circuit Judges.


      Donald B. Gerkin appeals from an order affirming a magistrate judge’s

pre-trial detention order. We remand for further proceedings.

                                     I. Background

      Mr. Gerkin was arrested by Forest Service officers after a traffic stop. He was

charged with four misdemeanor crimes: simple possession of a controlled substance


*
       This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
on National Forest Service land, possession of drug paraphernalia, interfering with a

Forest Service officer in the performance of his official duties, and operating a

vehicle in violation of a Forest Service order.

      At his initial appearance that same day, the government indicated that it was

seeking detention. The magistrate judge entered a temporary detention order and set

a detention hearing for two days later. The record reveals no objection from

Mr. Gerkin.

      At the detention hearing, Mr. Gerkin initially argued that there was no

statutory basis for even holding a detention hearing in his case because he was only

charged with a misdemeanor. The magistrate judge disagreed, and the argument

shifted to a discussion of whether Mr. Gerkin constituted a danger to the community.

Mr. Gerkin argued that the presumption is that he should be released and that there

were conditions that could ensure the protection of the public, such as monitoring.

After hearing argument by the parties, the magistrate judge detailed Mr. Gerkin’s

criminal history and prior failures to appear for court. The magistrate judge

concluded that Mr. Gerkin was a danger to the community and ordered him detained.

      Mr. Gerkin sought review of the magistrate judge’s detention order. At the

hearing before the district judge, Mr. Gerkin asserted that because he was charged

with a misdemeanor the statute required the government to show that he was a

serious flight risk before the magistrate judge could even hold a detention hearing.

He further argued that once the magistrate judge held the hearing, there was no basis


                                          -2-
to detain him and he should have been released on appropriate conditions. The

district judge took the matter under advisement and then issued a written order

stating: “The Court heard arguments of counsel, reviewed the file and after due

consideration, AFFIRMS the Detention Order entered by the Magistrate Judge. The

Court finds that based on the circumstances of this matter and the history of this

Defendant that he is a serious flight risk.” Aplt. Br., Attach. A. Mr. Gerkin

appealed.

                               II. The Bail Reform Act

      In general, persons charged with a crime are not detained pre-trial. They may

be “released on [their] own personal recognizance or upon execution of an unsecured

appearance bond,” 18 U.S.C. § 3142(a)(1), or they may be “released on a condition

or combination of conditions” that will ensure their appearance in court and the

safety of the community, id. §§ 3142(a)(2) and (c)(1). As the Supreme Court has

explained: “In our society liberty is the norm, and detention prior to trial or without

trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755

(1987). The government bears the burden of proving that a defendant should be

detained pre-trial. See United States v. Cisneros, 328 F.3d 610, 616 (10th Cir. 2003).

      Under the Bail Reform Act, the judicial officer1 must undertake a two-part

inquiry to decide whether a defendant should be detained pre-trial. At the first step,
1
       A judicial officer authorized to order the arrest of a person under 28 U.S.C.
§ 3041 before whom the person is brought, in this case the magistrate judge, shall
order the person released or detained. 28 U.S.C. §3141(a).


                                          -3-
the judicial officer must decide whether there is any basis to hold a detention hearing.

The judicial officer shall hold a detention hearing if the Government moves for

detention and the defendant has been charged with certain serious crimes, see

18 U.S.C. § 3142(f)(1). The judicial officer shall also hold a detention hearing on his

own motion or on the government’s motion if the case involves “a serious risk that

such person will flee,” id. § 3142(f)(2)(A), or a serious risk that the person will

obstruct justice or attempt to threaten prospective witnesses, id. § 3142(f)(2)(B).

“The hearing shall be held immediately upon the person’s first appearance.”

Id. § 3142(f)(2).

      If the government establishes a basis for a detention hearing, then the second

step is for the government to show that there is “no condition or combination of

conditions” that “will reasonably assure the appearance of [the defendant] as required

and the safety of any other person and the community.” Id. § 3142(f). If the 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,” then the judicial officer shall order the person detained before trial.

Id. § 3142(e). In determining whether the government has established a basis for

detention or whether there are appropriate conditions of release, the judicial officer is

required to consider certain factors set forth in § 3142(g). If the person is to be

detained the judicial officer must issue a detention order that “include[s] written

findings of fact and a written statement of the reasons for detention,” id. § 3142(i)(1).


                                          -4-
                                    III. Discussion

      We review de novo mixed questions of law and fact concerning the detention

decision, but review any findings of historical fact for clear error. United States v.

Cisneros, 328 F.3d 610, 613 (10th Cir. 2003). The parties agree that this case

involves questions of law that should be reviewed de novo.

      Mr. Gerkin first argues that the magistrate judge should not have held a

detention hearing when the government did not make the threshold showing that his

case involved a “serious risk that [he] will flee,” § 3142(f)(2)(A). He next argues

that even if the magistrate judge was correct in holding a detention hearing, the

government did not meet its burden of proving that no set of conditions existed to

reasonably assure Mr. Gerkin’s appearance at future court proceedings. He further

argues that the magistrate judge and district judge erred by failing to make any

written findings of fact to support the detention decision.

      On the first issue, Mr. Gerkin did not provide an adequate record for this court

to consider his argument. The docket sheet reflects that the government moved for

detention at Mr. Gerkin’s initial appearance and that the hearing was electronically

recorded. Mr. Gerkin, however, failed to provide a transcript or digital copy of that

hearing. He contends in his reply brief that the hearing was not recorded. We are not

convinced of the accuracy of that statement, but if that were the case, then

Mr. Gerkin should have prepared a statement of the proceedings pursuant to

Fed. R. App. P. 10(c). Nothing in the record provided indicates that Mr. Gerkin


                                          -5-
objected to the delayed detention hearing at his initial appearance. Although

Mr. Gerkin did raise the issue at the beginning of his detention hearing, his argument

came too late as the magistrate judge had already decided to hold the hearing. Since

Mr. Gerkin has not provided a record of what happened at the initial appearance, we

cannot properly review whether the magistrate judge gave a permissible ground for

setting a detention hearing or whether the delay was waived or forfeited for want of a

timely objection.

      We next address the third issue. A person ordered detained by a magistrate

judge may file with a district judge a motion to revoke or amend the detention order.

28 U.S.C. § 3145(b). Mr. Gerkin filed such a motion. At the hearing on the review

motion the attorneys made legal arguments, but offered no new evidence. The

district judge affirmed the magistrate judge’s detention order and found that

Mr. Gerkin is a serious flight risk; he did not provide written factual findings to

support that conclusion.

      Nothing in the release and detention statute requires the reviewing district

judge to make findings or reduce them to writing. Here, only legal argument was

made to the district judge, who, accordingly, was obliged to determine whether legal

error was committed or whether the factual findings of the magistrate judge were

clearly erroneous. More may be required if the reviewing judge considers new

factual material. In an unpublished decision we decided that if the district court

makes oral findings sufficient for appellate review, then the failure to make written


                                          -6-
findings is not reversible error. See United States v. Boy, 322 F. App’x 598, 602

(10th Cir. 2009). Other courts also follow this approach. See, e.g., United States v.

Peralta, 849 F.2d 625, 626 (D.C. Cir. 1988) (per curiam) (“We find no cause to

remand when the transcript clearly embodies the district court’s findings and reasons

for detention.”).

       In this case, however, the transcripts from the detention hearing before the

magistrate judge and from the review hearing held by the district judge are

insufficient to allow for meaningful appellate review. At the initial detention

hearing, the magistrate judge detailed Mr. Gerkin’s criminal history, found him to be

a danger to the community (because of his history of heroin abuse and because his

female companion was not a heroin user prior to her association with him), and

concluded he should be detained. But the statute requires that the court consider a

range of alternatives to pre-trial confinement before ordering detention and, if

detention is ordered, to explain why lesser conditions are inadequate. The magistrate

judge did not make any oral or written findings on the dispositive question of

whether there are any conditions or combination of conditions that could reasonably

assure Mr. Gerkin’s appearance at trial and the safety of the community,

see § 3142(e)(1).

       At the review hearing the district judge made no oral findings, rather he

summarily affirmed the magistrate judge’s detention order in a two-sentence




                                         -7-
decision, finding that “based on the circumstances of this matter and the history of

this Defendant, that [Mr. Gerkin] is a serious flight risk.”2 Aplt. Br., Attach. A.

      This brief written order does not provide sufficient explanation and factual

findings to support the detention decision. The existence of a serious flight risk is

the predicate for a detention hearing under § 3142(f)(2)(A), but it does not alone

justify detention. Under § 3142(e)(1), judges can order detention only if they find

that no conditions or combination of conditions will reasonably assure community

safety and appearance in court.

      If the district judge meant the finding of a serious flight risk to support the

ultimate detention decision, that is also problematic. First, the magistrate judge

ordered Mr. Gerkin detained based on a finding of danger to the community, not

flight risk. Although the district judge could shift the rationale for detention from

community danger to flight risk, he should explain why and make factual findings to

support that determination. Second, while we might be able to infer from the

available evidence that Mr. Gerkin is a flight risk and that the failure to adequately

explain that finding was harmless, we cannot necessarily infer that conditions other

than detention would be inadequate. It is not clear from the record whether the

magistrate judge or the district judge considered the § 3142(g) factors and whether

there are conditions of release that could assure Mr. Gerkin’s appearance at trial and
2
      The pretrial services report indicates that Mr. Gerkin failed to appear in
several other cases, resulting in arrest warrants and one conviction for failure to
appear on a misdemeanor.


                                          -8-
the safety of the community. Because there is no written finding on that issue as

required by § 3142(e)(1), we cannot conduct meaningful appellate review of the

detention decision.

      Given the lack of written factual findings, we cannot review Mr. Gerkin’s

second argument that the government failed to meet its burden of showing that no

condition or combination of conditions could assure his appearance at trial and the

safety of the community. Accordingly, we remand to the district court for findings of

fact and a statement of reasons that explain and support the detention decision or

otherwise to order Mr. Gerkin’s pre-trial release subject to appropriate conditions.


                                               Entered for the Court
                                               Per Curiam




                                         -9-
