concurring:
Evans was arrested in Arizona on a warrant arising out of proceedings commenced in the Northern District of West Virginia. After an Arizona magistrate judge ordered Evans detained without bail, Evans sought review of that order in the Arizona district court. The district court ordered Evans released on $100,000 bond. The government appeals, arguing that the Arizona district court did not have jurisdiction to review the magistrate judge’s order. I agree, and so concur generally with Judge Hug’s opinion vacating the district court’s order of release. I write separately to explain my reasoning.
This case raises an issue of first impression: when a magistrate judge from one district issues a detention order for a criminally accused person, what district court has jurisdiction to review that order? The answer requires that we interpret 18 U.S.C. § 3145(b), which provides that a person detained by a magistrate judge’s order may file a motion for review “with the court having original jurisdiction over the offense.”
All federal district courts have “jurisdiction” over “offenses” committed against the United States. See 18 U.S.C. § 3231. But section 3145 is more specific — it allows review only by the district court having original jurisdiction over the offense. The word “the” is important. Failure to pay attention to it would allow any district court in the country to review the order of a magistrate judge with respect to a bail hearing. That, I suggest, makes no sense.
Nevertheless, it is not obvious to which district court the term “the” refers. Federal Rule of Criminal Procedure 40 helps guide the inquiry. Rule 40(a) provides that when a person is arrested in a district other than where the offense is alleged to have been committed (as was Evans), preliminary proceedings will take place before the nearest available magistrate judge. Once those proceedings end, the record is transmitted to the “clerk of the district court in which the prosecution is pending.” Fed.R.Crim.P. 40(c). Rule 40 tells us that the magistrate judge’s role is limited, and that the district court where the prosecution is pending should take over the case as soon as possible.
The minimal role of the magistrate judge is further underscored by the defendant’s right to elect to have the preliminary examination (detention proceeding) itself conducted in “the district in which the prosecution is pending.” Fed.R.Crim.P. 40(a). This right of election indicates that the fundamental purpose of having the preliminary examination conducted by the nearest available magistrate judge is to ensure that the defendant is not prevented from obtaining prompt review of his detention. Because this concern is not implicated by allowing review of the magistrate judge’s order solely in the district in which the criminal prosecution is pending, and because the district court in which the prosecution is pending will usually be the one with the requisite familiarity with the matter, see 18 U.S.C. § 3142(g) (requiring judicial officer to consider nature and circumstances of offense charged, the weight of the evidence against the person, the dangerousness of the person, and the history and characteristics of the person, including his character, family ties, employment, financial condition, length of residence, community ties, past conduct, history of substance abuse, criminal history, and record concerning court appearances), the magistrate judge’s order should properly be reviewed by the district court in which the prosecution in pending.
It makes eminently good sense to read section 3145 and Rule 40 consistently. Doing *1239so leads to the conclusion that “the” district court referred to in section 3145(b) is the district court where the prosecution is pending. Only that district court has the authority to review the magistrate judge’s order. Cf. United States v. Gebro, 948 F.2d 1118, 1120 (9th Cir.1991) (in a single district proceeding, district court can sua sponte review a magistrate judge’s detention order); United States v. Acheson, 672 F.Supp. 577, 580 (D.N.H.1987) (district court in district of arrest lacks jurisdiction to review order by district court where prosecution is pending that set aside magistrate judge’s bail order).
It is time that Evans can, consistent with Federal Rule of Criminal Procedure 20, waive trial in the district where the prosecution is pending and be tried in the district where arrested. But this waiver is “subject to the approval of the United States attorney for each district.” Fed.R.Crim.P. 20(a). Should Evans and the United States attorneys agree to proceed in the district of arrest, then the district court in that district could review the decision of the magistrate judge. This follows from the fact that the prosecution would no longer be pending in the district court where the crime was allegedly committed, but rather pending in the district of arrest.
In short, the term “the” in section 3145(b) refers to the district court where the prosecution is pending. Only that district court can review the magistrate judge’s decision regarding bail. In this case, the district court where the prosecution is pending is the Northern District of West Virginia. Only that court can review the magistrate judge’s order in this case. Therefore, the Arizona district court’s order should be vacated.