with whom LAY, Chief Judge, and HEANEY and McMILLIAN, Circuit Judges, join, dissenting.
We dissent.
The majority today casts to the wind any real consideration for the constitutional limitation in the eighth amendment that “[ejxcessive bail shall not be required, * * * ” in a criminal case, U.S. Const, amend. VIII, and disregards the clearly expressed language of the Bail Reform Act of 1984 favoring release over pretrial detention, United States v. Orta, 760 F.2d 887, 890-91 (8th Cir.1985) (en banc). Moreover, the actions of the district court, which the majority today approves, arguably violate fundamental principles of due process. This court thus creates an unfortunate precedent which is unsupported by any appellate case in other circuits, and contrary to the decided appellate cases in the Second and Fifth Circuits.,
We briefly review the background as related in the majority opinion. Fleet Wallace Maull faces serious charges for violations of federal narcotics laws and income tax laws. After voluntarily surrendering to law enforcement officers on May 23, 1985, Maull appeared before a judicial officer, in this instance a United States magistrate, for a determination of his bond status. At that first appearance, neither the attorney for the Government nor the judicial officer moved for pretrial detention as authorized by the provisions of 18 U.S.C. § 3142(f) of the 1984 Act. Upon the recommendation of the Government, the magistrate sent bond at $1,000,000, and after a subsequent hearing on May 24, he denied Maull’s motion for modification of the bond.
At this juncture, it is important to observe that section 3142 of the Act requires that all persons charged with an offense appear before a judicial officer, who must decide whether that person shall be released on personal recognizance or unsecured appearance bond (section 3142(b)), released subject to certain conditions (section 3142(c)), detained temporarily to prevent, among other things, revocation of conditional release (section 3142(d)), or detained pending trial (section 3142(e)). The statutory scheme requires progression from one choice to the next and, “[t]he wide range of [release conditions] available ensures, as Congress intended, that very few defendants will be subject to pretrial detention.” Orta, 760 F.2d at 890-91. A pretrial detention hearing is not triggered without a motion by the Government or the judicial officer, and if such motion is made, a hearing must be held immediately upon the person’s first appearance unless a continuance is granted.1
In the present case, when the magistrate refused to modify the $1,000,000 bond, Maull sought review of the release order under the review provisions of section 3145(a) of the Act. That section provides *1490in pertinent part that if a person is ordered released by a magistrate, either the Government (section 3145(a)(1)) or the defendant (section 3145(a)(2)) may seek “amendment of the conditions of release.” The Government did not challenge the magistrate’s order.
In his motion for amendment of the conditions of release from the district court, Maull argued that the bail of $1,000,000 violated the Act’s clear prohibition against using inordinately high bail to detain defendants. 18 U.S.C. § 3142(c);2 see Orta, supra, 760 F.2d at 890-92 & n. 22. The district court, however, did not confine itself to reviewing whether the bail set was inordinately high, thus requiring “amendment of the conditions of release,” which was the only issue in front of it. Instead it, sua sponte, converted its review into a detention hearing and, finding that no conditions of release would assure Maull’s appearance, ordered Maull detained without bond pending trial. Maull then filed the present appeal, challenging the propriety of the district court’s actions.
The majority concludes that the district court had the power to order Maull’s pretrial detention, despite the clear language of the Bail Reform Act requiring that detention hearings be held upon the defendant’s first appearance before a judicial officer, and despite the fact that the Government here did not challenge, and indeed had requested, the $1,000,000 bond. The majority reaches this conclusion by reading the language of the Bail Reform Act out of context, and by selectively interpreting cases from other circuits, which, upon examination, support this dissent.
The statutory language requiring a detention hearing upon the defendant’s first appearance before a judicial officer is clear and unambiguous. The Second Circuit, in United States v. Payden, 759 F.2d 202 (2d Cir.1985), recognized that a court of appeals cannot act as a legislature to read this language out of existence. In Payden, the defendant was arraigned on October 17, 1984, five days after the Bail Reform Act took effect, but the parties apparently did not know of its provisions. On October 31, 1984, the Government first moved for pretrial detention and the district judge granted that motion at a later date after a hearing, holding that the “first appearance” requirement was not absolute. The Second Circuit reversed, stating, “[bjecause the terms of the Act mandated its application to Payden [defendant] at his October 17 hearing rather than two weeks later, we conclude the district court’s detention order must be reversed.” Id. at 204.
Noting the constraints under which the court was governed in its interpretation of the Act’s “first appearance” requirement, the court added “[n]othing in the Act suggests that the initial requirement is mitigated in any way by any subsequent hearings. Where statutory language is clear and unambiguous, we are not at liberty to adopt an interpretation different from that directed by the language.” Id.
Payden is clearly contrary to the majority position, as recognized by the majority’s attempts to distinguish the case, and by its assertion that the Second Circuit reached the result it did by misreading the Bail Reform Act. See supra at 1483.
Not only did the Second Circuit misread the Act, according to the majority, but so did the Fifth Circuit. In United States v. O’Shaughnessy, 764 F.2d 1035 (5th Cir.1985), the Fifth Circuit also faced the interpretation to be given the “first appearance” requirement of 18 U.S.C. § 3142, as it relates to pretrial detentions. There, defendant initially appeared on April 24,1985, when the government moved to continue bail, which was increased from $75,000 to $175,000 cash or surety. Five days later at arraignment, defendant moved to reduce the bond and the government moved for pretrial detention on grounds that defendant posed a danger to the community. The magistrate granted the government’s mo*1491tion. The district court denied defendant’s subsequent motion to revoke the detention order. On appeal, the Fifth Circuit reversed, stating:
At O’Shaughnessy’s first appearance on April 24, 1985, the Government neither moved for a detention hearing nor sought a continuance. The judicial officer did not move for pretrial detention on his own motion. The judicial officer did not conduct a detention hearing. To the contrary, the Government moved to continue bail. Under the Act’s unambiguous mandatory language, noncompliance with the “first appearance” requirement of 18 U.S.C. § 3142(f) precludes detention under 18 U.S.C. § 3142(e).
Id. at 1038.
This case too is directly contrary to the majority position, but according to the majority, is once again merely the product of the Fifth Circuit’s misinterpretation of the “first appearance” mandate of section 3142(f). Instead of the “plain words” construction adopted by the Payden and O’Shaughnessy courts, the majority construes the “first appearance” requirement as applying to the “first appearance” before the district court, even though the defendant appears there seeking review under section 3145(a)(2) of the Act. That interpretation deviates from the “clear, unambiguous and mandatory statutory language,” O’Shaughnessy, 764 F.2d at 1038, and “potentially weakenfs] the procedural fabric of the Act * * *.” Payden, 759 F.2d at 205.
The 1984 Bail Reform Act begins with the following provision:
§ 3141. Release and detention authority generally
(a) Pending Trial. — A judicial officer who is authorized to order the arrest of a person pursuant to section 3041 of this title shall order that an arrested person who is brought before him be released or detained, pending judicial proceedings, pursuant to the provisions of this chapter.
The “judicial officer” referred to may be a federal judge, a United States magistrate, a state judge, a justice of the peace, or even a mayor of a city. See 18 U.S.C. § 3041. Thus, the term “judicial officer” as used in section 3142 means the official, state or federal, before whom the defendant is brought for arrest purposes. In this case, the magistrate before whom Maull first appeared was a judicial officer who was authorized to order his arrest. At that time the “first appearance” requirement was triggered. The district court did not, and could not on review, act as the judicial officer who has the right under section 3142(f)(2) to move for pretrial detention.3
The majority attempts to buttress its interpretation of the “first appearance” requirement by asserting that the district court had the implied authorization to call for detention hearings under its power of de novo review. The majority relies primarily on two cases, United States v. Fortna, 769 F.2d 243 (5th Cir.1985), and United States v. Delker, 757 F.2d 1390 (3d Cir.1985), but examination of these cases reveals the obvious error in such reliance.
*1492The. majority argues that the Fifth Circuit’s decision in Fortna, supra, “ratifies the propriety of the exercise of power by the district court to consider upon de novo review grounds other than those considered by the magistrate.” Supra at 1484. Fortna, however, did not present a case in which pretrial detention was not called for within the “first appearance” requirement of section 3142(f). Indeed, the magistrate in Fortna timely called for a detention hearing, and, in fact, ordered detention upon finding that Fortna posed a danger to the community. Fortna sought review in the district court to “revoke or amend” the magistrate’s detention order. The district court upheld the magistrate’s detention order, merely adding that it believed that Fortna would also pose a serious risk of flight if released. On appeal, the Fifth Circuit affirmed.
The distinctions between the facts in Fortna and those present in this case are evident. Here, neither the Government nor the magistrate sought pretrial detention at Maull’s first appearance before the magistrate, or at any time subsequent. Moreover, the district court in this case did not review a magistrate’s order pertaining to detention, and affirm or reverse. Rather, the district court, on its own motion, held an entirely new hearing on detention, a full seven days after Maull’s first appearance in front of the magistrate.
Despite these clear distinguishing features, the majority attempts to rely on Fortna to support its position. It quotes a portion of the Fifth Circuit’s opinion that explains the district court’s power of de novo review when acting on a motion for review by the defendant or the Government. This quote reads, in part:
Moreover, the rule of de novo determination applies not only when the accused challenges the magistrate’s order, but also when the government does, as it is authorized to do by section 3145(a)(1). * * * In such a situation, the district court, making an independent determination, can order pretrial detention even though the magistrate has refused to do so.
Fortna, supra, at 249 (citations omitted). This quote applies only to those situations where a motion for pretrial detention has been timely made and denied, and the Government challenges that ruling on a motion for review. The Fifth Circuit’s citation to United States v. Delker, 757 F.2d 1390, 1390-94 (3d Cir.1985) makes this limitation clear. In Delker, the Government moved for pretrial detention but the magistrate denied the motion and set bail. The Government then sought review in district court and that court ordered pretrial detention. The Third Circuit affirmed, holding that the district court may exercise de novo review when the Government challenges a magistrate’s order denying pretrial detention. Thus, the Delker case, also relied on by the majority is distinguishable from the case at hand, as it involved a governmental appeal from the denial of detention after a timely-initiated hearing.
Fortna and Delker, therefore, cannot serve as authority for the majority's proposition that the reviewing district court can move, sua sponte, for pretrial detention when no previous motion for detention has been made. Indeed, the court in Fortna clearly states that, even if such a motion is timely made, and the magistrate refuses to order pretrial detention, the reviewing court cannot order detention if the government does not seek review of. the magistrate’s ruling: “[w]e do not suggest, of course, that the district court may modify the detention or release terms actually ordered by the magistrate in a manner unfavorable to the accused in the absence of an appeal by the government.” Fortna, supra, at 250-51, n. 6.. Under the Fortna reasoning, therefore, the district court in this case could not have ordered Maull’s pretrial detention even had a motion for such been timely considered and denied by the magistrate, because it was Maull, not the Government, seeking the district court’s review.
The majority dismisses the Fortna court’s limitation on its holding as mere “dictum,” supra at 1485 n. 5, yet relies on dictum itself, because the district court in *1493Fortna affirmed the magistrate’s timely order for pretrial detention on the defendant’s motion for review. The majority seriously misconstrues the Fortna decision by ignoring its express limitation on the scope of the district court’s de novo review powers, while concurrently citing it for the proposition that a district court has the power to order pretrial detention, sua sponte, on review of a magistrate’s release order. Moreover, the majority’s misplaced reliance on Fortna cannot be reconciled with the Fortna court’s explicit adherence to its position in United States v. O’Shaughnessy, supra, requiring that the “first appearance” mandate of section 3142(f) be strictly applied.4
We have no dispute with the majority’s position that the district court exercises a de novo standard of review over challenged orders of the magistrate. We do, however, vigorously assert that the scope of that review is limited, under the review provisions of the Act, by the nature of the order before the district court and by the issue raised by the party seeking review. See 18 U.S.C. § 3145(a). Thus, whereas here the defendant challenged an order directing that he be released on bail on the condition that he post $1,000,000 bond and no motion for detention had been made, the district court exceeded the scope of its review authority under the Act. As just discussed, Fortna and Delker do not support the majority’s position. Moreover, pre-Act bail cases cited by the majority are not particularly apposite here, where we deal with a new concept under a new statutory scheme.
Thus, both under case law and the express terms of the Bail Reform Act, the district court in this case erred in calling for and conducting a pretrial hearing because
(1) the hearing was not held at the “first appearance” of the offender before the judicial officer as required by the clear language of section 3142(f); and
(2) the district court did not have authority to move for pretrial detention under the Bail Reform Act, even given its “original jurisdiction over the offense.” 18 U.S.C. § 3145.5 The court’s function, *1494as defined by the language of section 3145(a), was to review the motion for amendment of the conditions of release.
The majority attempts to justify its interpretation of the Bail Reform Act by suggesting that the review powers of the district judge, as an Article III judge, should not be restricted by the earlier action of the magistrate. This argument misconceives, in our view, the narrow issue before us. It was the Government’s prosecutor who made the initial choice not to seek Maull’s pretrial detention. The majority does not and cannot argue that this exercise of pros-ecutorial discretion is reviewable. Essentially, however, such review is the end result of the majority’s decision to permit district court review of the magistrate’s failure to move for pretrial detention and the setting of bail. Article III concerns do not even remotely require such a result. When the prosecutor (or the magistrate) does move for detention hearings, the magistrate’s subsequent decision to order or deny detention is fully reviewable if review is sought by the appropriate party. Every aspect of that judicial function exercised by the magistrate, therefore, remains in the “district court’s total control and jurisdiction.” United States v. Raddatz, 447 U.S. 667, 681, 100 S.Ct. 2406, 2415, 65 L.Ed.2d 424 (1980). The magistrate’s discretion to choose not to move for pretrial detention, however, appears to be a prosecutorial rather than judicial function.
Although the majority asserts that its interpretation is necessary to avoid constitutional problems, the interpretation, in fact, creates such problems. The delicate constitutional balance struck by the Bail Reform Act is in serious danger of upset through the considerable due process problems arising from the majority’s decision to vest both prosecutorial and judicial functions in the district court.
Here the district judge, on review of the release order, received the record of the hearing before the magistrate. That record revealed that the prosecutor perceived that a serious risk of flight existed, and believed that Maull had hidden assets which, if used as bail, would deter flight. Again, we must emphasize that the prosecutor never sought pretrial detention and he indicated at oral argument that he believed that Maull held substantial hidden assets which could be used to make bail and that high bail would be an appropriate deterrent to minimize the risk of flight.6
With the magistrate’s record before it, the district court exercised an essentially prosecutorial function and moved for pretrial detention. After exercising this pros-ecutorial function, the district court then became the judge of its own motion and ordered pretrial detention on the record made before the magistrate, which was stipulated to by the parties for review. The district court thus became both the prosecutor and the judge. The Supreme Court condemned similar conduct in In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955), where a state judge, sitting as a one-man grand jury, charged the defendant with contempt and then presided over the subsequent hearing on the contempt charge. The Supreme Court stated, “It would be very strange if our system of law permitted a judge to act as a grand jury and then try the very persons accused as a result of his investigations.” Id. at 137, 75 S.Ct. at 625. See also Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950) (members of administrative agency may not serve as both a prosecutor of a charge and judge of the hearing of that charge).
These due process concerns are not implicated when the decision whether to initiate *1495detention hearings is vested in the magistrate or the Government prosecutor. The functions of the judge who reviews a release order, and the magistrate who moves for pretrial detention on the first hearing, are distinct. The district court’s factual determination underlying its decision to impose pretrial detention in this case is reviewed only under the clearly erroneous rule, not de novo. See supra at 1487. In contrast, the magistrate’s decision on pretrial detention would be subject to de novo review by the district court on both the law and the facts.
Our belief that the majority’s reading of the statute raises serious due process questions enforces our view that the statute should, under well-settled principles of statutory interpretation, be read in a way to avoid constitutional questions. Accordingly, in reviewing a magistrate’s order of release on bail, the statute should not be interpreted to permit district court judges to move for pretrial detention, conduct a hearing on the motion, and then order pretrial detention.
This conclusion is further reinforced by the majority decision’s undeniable potential to chill and impede the defendant’s right to seek review of release orders because of the threat of obtaining a more onerous result. The prospect of this chilling effect raises fundamental constitutional and policy issues relating to the function of courts in reviewing lower courts or tribunals. The majority did not feel constrained by these issues, noting that pretrial detention is merely “regulatory,” not punitive, and thus does not fall within the reasoning of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), as Maull suggests. Supra, at 1485-86. Yet the chilling effect of the majority’s decision is unavoidably present if detention can be ordered whenever a defendant challenges the magistrate’s setting of inordinately high bail.
The function of a reviewing court is to judge the legality of the ruling of the lower tribunal, and either to affirm or reverse, but not to try a different case. The threat that a defendant’s legitimate right to review will be chilled under the approach advanced by the majority supports our view that the Bail Reform Act of 1984 should be read as written and should not imply powers to the reviewing court under section 3145 which are not expressly conferred by the Act.
One further observation impels us to vigorously reject the majority opinion. The right to pretrial release without excessive bail is a precious right preserved by the eighth amendment. U.S. Const, amend. VIII. Just as precious and fundamental to our concept of criminal justice is the presumption of innocence, which has been secured to the citizens of this country through centuries of struggle. See Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 S.Ct. 1 (1951). Although that presumption is preserved and maintained in criminal trials and is not necessarily determinative on the issue of pretrial incarceration, Bell v. Wolfish, 441 U.S. 520, 531-34, 99 S.Ct. 1861, 1869-71, 60 L.Ed.2d 447 (1979), the right to freedom before conviction is recognized as a traditional right which “permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction.” Stack v. Boyle, supra, 342 U.S. at 4, 72 S.Ct. at 3. These principles are important in our system, and should not lightly be disregarded. Here the majority gives a strained and unusual reading to a statute which is intended to favor release over detention, instead of giving it an ordinary reading, which gives some modest protection to individuals accused but not yet convicted of any crime.
For all these reasons, we unhesitatingly reject the majority’s interpretation of the Bail Reform Act which empowers a district court to convert a review hearing brought by a defendant into a detention hearing brought by the district court. Unlike the majority, we are unable to find authorization for the power to incarcerate on review in a law that speaks specifically only to the power of “amendment of the conditions of *1496release.” 18 U.S.C. § 3145(a)(2) (emphasis added).
Accordingly, we would hold that the district court erred as a matter of law in moving for pretrial detention of Maull and issuing an order for pretrial detention. In our view, the panel’s order in this case rightly determined that we should reverse and remand these proceedings to the district court for prompt review of the conditions of release set by the magistrate.7 United States v. Maull, 768 F.2d 211 (8th Cir.1985). We also would adopt the further observations of the panel.
That review [by the district court] should be conducted consistent with the discussion of this court in United States v. Orta, 760 F.2d 887, 890-91 (8th Cir.1985) (en banc), particularly relating to the prohibitions against using inordinately high financial conditions to detain defendants.
We note that both the magistrate and the district judge articulated concern that Maull may flee. Modification of an improperly high bail may well be accompanied by substantial other conditions for release, without pretrial detention, under 18 U.S.C. § 3142(c).
United States v. Maull, supra, at 213.
The district court failed to undertake the required review in this case and his pretrial detention order should be reversed.
. Section 3142(f) reads in pertinent part:
(f) Detention hearing. — The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in subsection (c) will reasonably assure the appearance of the person as required and the safety of any other person and the community in a case—
******
(2) Upon motion of the attorney for the Government or upon the judicial officer’s own motion, that involves—
(A) a serious risk that the person will flee;
(B) a serious risk that the person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror.
The hearing shall be held immediately upon the person’s first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance.
. Section 3142(c) provides in the penultimate sentence:
The judicial officer may not impose a financial condition that results in the pretrial detention of a person.
. § 3041. Power of courts and magistrates
For any offense against the United States, the offender may, by any justice or judge of the United States, or by any United States magistrate, or by any chancellor, judge of a supreme or superior court, chief or first judge of common pleas, mayor of a city, justice of the peace, or other magistrate, of any state where the offender may be found, and at the expense of the United States, be arrested and imprisoned or released as provided in chapter 207 of this title, as the case may be, for trial before such court of the United States as by law has cognizance of the offense. Copies of the process shall be returned as speedily as may be into the office of the clerk of such court, together with the recognizances of the witnesses for their appearances to testify in the case.
A United States judge or magistrate shall proceed under this section according to rules promulgated by the Supreme Court of the United States. Any state judge or magistrate acting hereunder may proceed according to the usual mode of procedure of his state but his acts and orders shall have no effect beyond determining, pursuant to the provisions of section 3142 of this title, whether to detain or conditionally release the prisoner prior to trial or to discharge him from arrest.
. The court in Fortna stated:
These facts demonstrate that the present case is in a materially different posture than that recently before this Court in United States v. O'Shaughnessy, 764 F.2d 1035 (5th Cir.1985). There the defendant was arrested on April 23 on a warrant providing for $75,000 bail, and was first brought before the magistrate on April 24, at which time the government moved to continue bail, which the magistrate thereupon set at $175,000. It was not until arraignment on April 29 that the govern'ment moved for pretrial detention, the hearing on which was then set for (and was later held on) May 1. This Court held that the absence of any request for a pretrial detention hearing on April 24, the defendant’s first appearance before a judicial officer, prevented his detention on the grounds of dangerousness to prospective witnesses. In so holding, this Court specifically observed that ”[t]he judicial officer did not move for pretrial detention on his own motion” and that “the Government moved to continue bail.” At 1038. Neither condition is applicable here. In the present case, the magistrate, at the defendant’s first appearance, on his own motion ordered a detention hearing to determine, inter alia, whether any bond would suffice to reasonably assure the defendant’s appearance. These same circumstances likewise distinguish United States v. Payden, 759 F.2d 202 (2d Cir.1985), where the defendant was arraigned on October 17, and there was no mention of detention without bond until the government moved for such an order on October 31, the initial hearing on which was not held until two weeks later.
We observe that the defendant does not complain, and never has complained, that the detention hearing was not held on April 24.
Fortna, supra, at 248.
. This review section reads
(a) Review of a release order. — If a person is ordered released by a magistrate, or by a person other than a judge of a court having original jurisdiction over the offense and other than a Federal appellate court—
(1) the attorney for the Government may file, with the court having original jurisdiction over the offense, a motion for revocation of the order or amendment of the conditions of release; and
(2) the person may file, with the court having original jurisdiction over the offense, a motion for amendment of the conditions of release.
The motion shall be determined promptly.
(b) Review of a detention order. — If a person is ordered detained by a magistrate, or by a person other than a judge of a court having *1494original jurisdiction over the offense and other than a Federal appellate court, the person may file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order. The motion shall be determined promptly.
. This statement by the prosecutor has importance. In this case, the prosecutor did not seek high bail as a substitute for pretrial detention. Thus the majority’s observation, supra at 1482-1483, that the legislative history addresses the Maull situation is inappropriate and irrelevant to the issues before us.
. Subsequent proceedings in the district court preceding the en banc hearing suggest that the magistrate erred in setting a $1,000,000 bail requirement. On remand from the panel, the district court reduced the bail to $500,000 secured by $250,000 cash or acceptable surety. Dist.Ct. Order of July 12, 1985. Maull remained incarcerated because he could not, or did not, raise the bail and the bail privilege was revoked when, on August 9, 1985, this en banc court granted the government’s stay request and ordered the case heard en banc.