United States v. John Edward Clark, A/K/A Eddie Hatcher, Timothy Bryan Jacobs, Defendants

SPROUSE, Circuit Judge,

concurring in part and dissenting in part:

Although I agree with my brethren in the majority that the statutory requirements for detention hearings in the Bail Reform Act, 18 U.S.C.A. § 3142(f) (West 1985 & Supp.1988), are waivable, I do not feel that the magistrate in this case made an adequate determination of whether the defendants in fact waived their rights under the Act. In my view, a defendant can waive the Act’s requirements only by his own clear and definitive expressions after direct inquiry from the judicial officer. The judicial officer must also make findings detailing this inquiry and the defendant’s expressions. As Judge Phillips points out in Part V of his dissent, the magistrate did not explain the consequences of a waiver to the defendants, and he did not determine if their possible waiver was informed, voluntary, and intelligent. In my view, the magistrate’s colloquy with counsel did not satisfy his duty to determine directly the defendants’ intentions and states of mind. If the issue were not moot, I would reverse and remand for a rehearing on the question of waiver, directing the district court to make specific findings on the question of whether the requisite elements of waiver had been satisfied.*

I am authorized to say that Chief Judge HARRISON L. WINTER joins this opinion.

In arriving at this conclusion, I, of course, reject the thesis of Judge Phillips’ dissenting opinion that the provisions of the Bail Reform Act are jurisdictional so that an infraction of the time requirement for a detention hearing means that the accused must be released.