* This order and judgment is not binding precedent, except under the doctrines of law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. 

UNITED STATES COURT OF APPEALS

Filed 5/29/96

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

JOHN HUDSON WHITAKER,

Defendant-Appellee.

No. 96-5090

(D.C. No. 96-CR-12-H)

(N.D. Okla.)

ORDER AND JUDGMENT*

Before PORFILIO, KELLY, and HENRY, Circuit Judges.

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); 10th Cir. R. 34.1.9. The case is therefore ordered submitted

without oral argument.
2

Defendant is charged by indictment with two counts of possession with intent to

distribute controlled substances, in violation of 21 U.S.C. § 841 (a)(1). The government

moved for detention without bond. A hearing was held before a magistrate judge, who

issued an order of detention without bond pending trial. Defendant filed a motion to review

the detention order, and the district court reversed the detention order and ordered that

defendant be released pending trial. The government appeals the district court’s order

releasing defendant pending trial.

It is our task to afford plenary review to the district court’s release order with respect

to mixed questions of law and fact and to review purely factual findings independently with

due deference. United States v. Stricklin, 932 F.2d 1353, 1355 (10th Cir. 1991). We cannot

review, however, that which does not exist. As a result, we must remand this case to the

district court.

Defendant agrees with the government’s contention that the indictment itself

establishes the probable cause necessary to trigger the rebuttable presumption of 18 U.S.C.

§ 3142(e). See Stricklin, 932 F.2d at 1355. It does not appear, however, that the district

court applied the § 3142(e) rebuttable presumption. Neither does the district court’s oral

ruling set forth any findings as to why it declined to apply the presumption. Further, if it was,

in fact, the intention of the district court that the presumption does not apply, the oral ruling

contains no findings justifying the order of release. Similarly, if it was the intention of the

district court that the presumption applied, but that defendant presented sufficient evidence
3

to rebut the presumption, the district court gave no hint as to the factual findings supporting

that result. 

Consequently, we remand this case to the district court for further findings as to (1)

why the § 3142(e) presumption was not applied; and (2) justification of the release order if

the presumption does not apply. Further, should the district court determine that the

presumption does apply but that it was rebutted by sufficient evidence, we must have the

benefit of factual findings upon which that decision is based.

The case is REMANDED to the district court for further proceedings consistent with

this order and judgment.

ENTERED FOR THE COURT

PER CURIAM