USA v. Burton

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
Plaintiff,
v.
CORBIN BURTON,
Defendant.
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No. 4:23-CR-00318-JMD
DETENTION OPINION
The Court issues this opinion to explain a matter about detaining criminals that has
split courts, including judges on this Court. The Eighth Circuit is one of the few circuits that
has not expressly weighed in. Guidance would be welcome.
Criminal conviction does not trigger immediate detention for every federal offender.
18 U.S.C. § 3143. A convicted felon, ultimately bound for prison, can sometimes remain free
for months—for example, while awaiting sentencing. Not wanting highly serious offenders
to remain free, Congress required federal courts to detain offenders immediately upon
conviction of certain crimes, including crimes involving violence, terrorism, exploitation of
children, or drug trafficking. §§ 3142(f)(1), 3143(a)(2). There are two exceptions. The first
applies if the Federal Government recommends no prison sentence—very rare for these
serious crimes—and the district court determines by clear and convincing evidence that the
person is not likely to flee or pose a danger. § 3143(a)(2). The second applies if “the judicial
officer” determines that “it is clearly shown that there are exceptional reasons why such
person’s detention would not be appropriate.” § 3145(c).
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For this second exception, courts are split on who decides whether “exceptional
reasons” for release exist: district judges or appellate judges. 	The Eighth Circuit has not
expressly resolved the issue. See United States v. Hamm, No. 4:19-cr-00613 SRC, 2021 WL
1669973, at *3 (E.D. Mo. Apr. 27, 2021) (describing Eighth Circuit decisions). I am inclined
to agree with “the majority of circuits,” which hold that district 	judges make this
determination. United States v. Meister, 744 F.3d 1236, 1238 (11th Cir. 2013) (per curiam).
But in a well-reasoned opinion, another judge on this Court adopted the minority view: only
appellate judges can decide this question about detention. Hamm, 2021 WL 1669973, at *4,
*8.
Guidance from the Eighth Circuit would be welcome. 	The question might appear
mostly academic because giving bail to a defendant convicted of a serious crime is almost
never warranted; by definition, “exceptional reasons” rarely exist. 	E.g., United States v.
Larue, 478 F.3d 924, 926 (8th Cir. 2007) (per curiam) (“exceptional” means “clearly out of the
ordinary, uncommon, or rare”). 	Still, somebody is required by federal law to determine
whether a defendant has identified exceptional reasons justifying release. 	And it affects
judicial resources when it is unclear which judge must do so. If Hamm is wrong, then some
district judges will fail to address questions properly before them, and appellate courts may
need to address those questions in response to emergency motions and without the benefit of
evidentiary hearings. See, e.g., Meister, 177 F.3d at 1237 (resolving an emergency appeal in
between conviction and sentencing after having to remand for a hearing); Larue, 478 F.3d at
924 (granting “an expedited appeal” in a case where a district judge released a convicted
felon). 	But if Hamm is right and I am wrong, then district judges are needlessly and
improperly wasting resources hearing arguments they have no power to resolve, and criminal
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defendants are poorly served by not knowing which forum is proper for their arguments.
Either way, all district judges would benefit from appellate clarity.
Central to the disagreement among courts is whether to apply the statutory definition
of “judicial officer.” 	The detention statute says that when a person is convicted of certain
crimes, that person must be detained unless “the judicial officer” concludes that “it is clearly
shown that there are exceptional reasons why such person’s detention would not be
appropriate.” § 3145(c). All agree that Congress, in a neighboring provision, defined “judicial
officer” to include district court judges, “unless otherwise indicated.” § 3156(a)(1); see also,
e.g., Hamm, 2021 WL 1669973, at *3. But a minority of courts believe that “judicial officer”
in § 3145(c) means only appellate judges.
I.
Hamm adopts that minority view after assessing several canons of interpretation.
First, titles can illustrate textual meaning. 	Brotherhood of R.R. Trainmen v. Baltimore &
Ohio R.R. Co., 331 U.S. 519, 528–29 (1947); Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 221 (2012); William N. Eskridge Jr., Interpreting Law: A
Primer on How to Read Statutes and the Constitution 103 (2016). The title of subsection (c)—
the relevant detention provision—focuses on appeals: “Appeal From a Release or Detention
Order.” § 3145(c).
Second, the text of subsection (c) can be read to focus on appellate courts. Subsections
(a) and (b) address a district judge’s review of a detention or release order issued by a
magistrate judge or a district judge who sits outside the district where the indictment was
issued. Subsection (c), in turn, contemplates “[a]n appeal from a release or detention order”
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to an appellate court (emphasis added). See also Hamm, 2021 WL 1669973, at *4–*6. And
it is that subsection where the text at issue here appears.
Third, Hamm argues that the statutory definition of “judicial officer” does not apply
because of Federal Rule of Criminal Procedure 46(c) and Federal Rule of Appellate Procedure
9(c). 	Invoking the familiar concept of in pari materia—laws addressing the same subject
should be interpreted together—Hamm argues that these rules (when combined with other
canons) make clear that “judicial officer” in § 3145(c) includes only appellate judges. 	Rule
46(c) tells district courts that “[t]he provisions of 18 U.S.C. § 3143 govern release pending
sentencing or appeal” (emphasis added). 	The rule is silent about § 3145. 	Rule 9(c), in
contrast, tells appellate courts to “make [a] decision regarding release in accordance with the
applicable provisions of 18 U.S.C. §§ 3142, 3143, and 3145(c)” (emphasis added). 	In other
words, only the federal appellate rules expressly cite the detention provision at issue here.
Hamm says the express inclusion of § 3145(c) in the rule governing appellate review, and not
in the rule governing district courts, tips the scales against following the statutory definition.
II.
I disagree. 	Although I accept that there are good arguments in both directions,
Hamm, 2021 WL 1669973, at *7 (calling the issue a “very close call” when looking at the
Mandatory Detention Act alone), I disagree that any of the text is strong enough to dislodge
the statutory definition of “judicial officer.”
First, like Hamm, I place great weight on Congress’s decision to define “judicial
officer” expressly. 	Everybody agrees that the definition includes district judges. 	So any
argument against applying that definition faces an uphill battle. Although statutory context
sometimes can overcome an express definition, “[i]t is very rare that a defined meaning can
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be replaced with another permissible meaning of the word on the basis of other textual
indications; the definition is virtually conclusive.” Scalia & Garner, supra, at 228 (emphasis
added). To be sure, the definition itself contemplates that context may “otherwise indicate[ ]”
a meaning of “judicial officer” different from the express definition. § 3156(a)(1). That makes
no difference. That text simply makes explicit what would have been implicit: the definition
applies by default unless displaced by other text. See Scalia & Garner, supra, at 226.
Second, the courts aligning with the minority view have tended to rely on canons that
are relatively weak. 	Hamm, for example, identifies the “title and headings” canon. 	But
reliance on the title of a provision can be “precarious,” see id. at 221, and may be done “only
when it sheds light on some ambiguous word or phrase,” Pennsylvania Dept. of Corr. v.
Yeskey, 524 U.S. 206, 212 (1998) (cleaned up); see also Scalia & Garner, supra, at 222
(emphasizing that “a title or heading should never be allowed to override the plain words of
a text”); Eskridge, supra, at 105 (cautioning that “federal judges should probably not rely on
titles or captions . . . as anything but supporting evidence”); Hamm, 2021 WL 1669973, at *6
(warning against giving “undue weight to the title of the section 3145(c) at the expense of the
plain meaning of the text”).
Similarly, Hamm draws a negative inference from the Supreme Court’s decision to
promulgate an appellate rule, but not a trial rule, expressly citing the statute at issue here.
But the Supreme Court has long said that “great caution is requisite in dealing with” the
negative-implications canon. 	Ford v. United States, 273 U.S. 593, 612 (1927) (citation
omitted); see also Scalia & Garner, supra, at 107 (highlighting that the canon “must be
applied with great caution, since its application depends so much on context”). To overcome
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the statutory definition of “judicial officer,” one would expect a relatively strong signal from
Congress. In this context, these canons do not cut it.
If anything, the negative-implications canon tugs the other way. 	Hamm draws a
negative implication based on what is included or excluded from court-drafted federal rules.
Far more relevant, however, is the negative implication drawn in the statute itself. Section
3145 includes three subsections. Under the first two subsections, judicial authority is limited
to “the court having original jurisdiction over the offense.” 	In other words, only specific
district judges, not any judicial officer, have authority under those subsections. Subsection
(c), in sharp contrast, includes no express limit; “judicial officer” is left unqualified. § 3145(c);
see also United States v. Goforth, 546 F.3d 712, 715 (4th Cir. 2008) (“When Congress has
altered the . . . definition of ‘judicial officer’ in other provisions within the Bail Reform Act—
that is, when it has ‘otherwise indicated’ that the term should be read differently—it has
done so clearly.”). 	This negative implication is much more powerful than any implication
drawn from the nonstatutory federal rules. The negative-implications canon carries the most
weight when an omission occurs in the same statute. “When Congress includes particular
language in one section of a statute but omits it from a neighbor, we normally understand
that difference in language to convey a difference in meaning.” Bittner v. United States, 598
U.S. 85, 94 (2023). 	Implications within the statute itself are far more probative than
implications between the statute and other sources of law. 	Cf. Eskridge, supra, at 122
(describing the in pari materia canon as “of more limited utility” than a canon associated
with the specific statute).
I also am skeptical of Hamm’s reliance on nonstatutory federal rules to overcome
Congress’s statutory definition. I do not disagree that statutes addressing the same subject
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matter should be read in harmony with each other. 	But the Federal Rules of Appellate
Procedure and the Federal Rules of Civil Procedure (typically) are not statutes. 	With few
exceptions, the Supreme Court drafts them. 28 U.S.C. §§ 2071, 2072, 2074. These federal
rules are of course binding unless they “exceed[ ] statutory authorization or Congress’s
rulemaking power.” Berk v. Choy, No. 24-440, 2026 WL 135974, at *3 (U.S. Jan. 20, 2026)
(citation omitted). But rules drafted by courts say little, if anything, about whether Congress,
in enacting § 3145(c), departed from the statutory definition of “judicial officer.”
It makes no difference that Congress retains authority to pass legislation to override
court-drafted rules; that Congress has done so on occasion, see, e.g., Simon DeBartolo Group,
L.P. v. Richard E. Jacobs Group, Inc., 186 F.3d 157, 166–67 (2d Cir. 1999) (discussing a
partial override by Congress of one rule); and that Congress did not do so for these rules. The
same is true for regulations passed by administrative agencies. 	Congressional inaction on
agency regulations is not a stamp of approval, because congressional silence typically is a
poor signal of congressional intent. 	See, e.g., Patterson v. McLean Credit Union, 491 U.S.
164, 175 n.1 (1989) (“It is ‘impossible to assert with any degree of assurance that
congressional failure to act represents’ affirmative congressional approval of the Court’s
[decision].” (citation omitted)); Gamble v. United States, 587 U.S. 678, 723 (2019) (Thomas,
J., concurring) (“[C]ongressional silence . . . falls short of the bicameralism and presentment
required by Article I and therefore is not a ‘valid way for our elected representatives to
express their collective judgment.’” (citation omitted)).
Silence within enacted legislation sometimes can be meaningful, as “[w]hen Congress
includes particular language in one section of a statute but omits it from a neighbor,” Bittner,
598 U.S. at 94. But the absence of any legislation at all will rarely, if ever, reveal Congress’s
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collective policy preferences. 	Legislation fails all the time (or is never introduced) for
innumerable reasons having little to do with collective policy judgment. 	The member who
controls the floor agenda dislikes the legislation. 	The relevant committee chair dislikes it.
The floor leader or committee chair likes the idea but dislikes the member who proposed it.
The policy idea is popular but is not a high priority in light of limited floor time. This Court
cannot consider presumptions about congressional silence when those presumptions fail to
“approximate reality” of how Congress operates. Loper Bright Enters. v. Raimondo, 603 U.S.
369, 399 (2024). Because Congress neither legislatively enacted nor legislatively disavowed
any court-drafted rule relevant here, those rules shine no light on whether Congress
“indicated” that “judicial officer” carries a different meaning in § 3145(c) than it does in
neighboring provisions.
Reading § 3145(c) in harmony with the rest of criminal law may in fact cut the other
direction. 	Throughout criminal law, district courts typically are the first decisionmakers.
Only rarely does an appellate court decide an issue of criminal law where a district court has
not already made a ruling. Hamm’s interpretation would create this oddity. See Meister, 744
F.3d at 1239 (noting the oddity of an interpretation that would have appellate courts make
determinations in the first instance and then have appeals from those determinations go to
the same appellate courts). 	Indeed, the appellate rule on which Hamm relies expressly
contemplates that district judges will make “release or detention” decisions in the first
instance. 	That rule requires appellate judges to “promptly determine the appeal [from a
release or detention order] on the basis of the papers, affidavits, and parts of the record that
the parties present or the court requires,” including “a transcript of the release proceedings.”
Fed. R. App. P. 9(a)(1)–(2). And by default “briefs need not be filed.” Fed. R. App. P. 9(a)(2).
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If § 3145(c) is read to prohibit district judges from addressing a defendant’s assertion of
“exceptional reasons,” then appellate judges would be required to “promptly” decide the issue
without the benefit of factual findings by the district court about whether the asserted
reasons actually exist and without the “transcript of the release proceedings” that the
appellate rule contemplates.
Having concluded that § 3145(c) directs district judges to assess whether there is an
exception to mandatory detention, I determined that no exceptional reasons exist that would
justify the defendant remaining on bond. 	ECF 62. 	But if Hamm is correct, then I should
never have conducted that inquiry. 	And if I am correct, then other judges are failing to
conduct a required inquiry. Appellate guidance on this issue would be welcome.
Dated this 11th day of February, 2026
__________________________________
JOSHUA M. DIVINE
UNITED STATES DISTRICT JUDGE
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