USAM 9:4.000 RELEASE AND DETENTION PENDING JUDICIAL PROCEEDINGS

USAM 9:4.000 RELEASE AND DETENTION PENDING JUDICIAL PROCEEDINGS Page 1 of 2 US Attorneys > USAM > Title 9 prey I next I Criminal Resource Manual 9-6.000 RELEASE AND DETENTION PENDING JUDICIAL PROCEEDINGS - 18 U.S.C. §§ 3141 ET SEQ. 9-6.190 Introduction 9-6.200 Pretrial Disclosure of Witness Identity 9-6.100 Introduction The release and detention of defendants pending judicial proceedings is governed by the Due Process Clause of the Fifth Amendment, the Excessive Bail Clause of the Eighth Amendment, and the Bail Reform Act of 1984. The Bail Reform Act of 1984 provides procedures to detain a dangerous offender, as well as an offender who is likely to flee pending trial or appeal. See United States v. Salerno, 481 U.S. 739 (1987). For a discussion of the provisions of the Bail Reform Act of 1984 (18 U.S.0 §§ 3141 et seq.) and related case law see the Criminal Resourceiganutl at 26. 9-6.200 Pretrial Disclosure of Witness Identity Insuring the safety and cooperativeness of prospective witnesses, and safeguarding the judicial process from undue influence, are among the highest priorities of federal prosecutors. See the Victim and Witness Protection Act of 1982, P.L. 97-291, § 2, 96 Stat. 1248-9. The Attorney General Guidelines for Victim Witness Assistance 2000 provide that prosecutors should keep in mind that the names, addresses, and phone numbers of victims and witnesses are private and should reveal such information to the defense only pursuant to Federal Rule of Procedure 16, any local rules, customs or court orders, or special prosecutorial need. Therefore, it is the Department's position that pretrial disclosure of a witness' identity or statement should not be made if there is, in the judgment of the prosecutor, any reason to believe that such disclosure would endanger the safety of the witness or any other person, or lead to efforts to obstruct justice. Factors relevant to the possibility of witness intimidation or obstruction of justice include, but are not limited to, the types of charges pending against the defendant, any record or information about the propensity of the defendant or the defendant's confederates to engage in witness intimidation or obstruction of justice, and any threats directed by the defendant or others against the witness. In addition, pretrial disclosure of a witness' identity or statements should not ordinarily be made against the known wishes of any witness. However, pretrial disclosure of the identity or statements of a government witness may often http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/6mcnn.htm 4/10/2008 EFTA00191587 USAM 9-6.000 RELEASE AND DETENTION PENDING JUDICIAL PROCEEDINGS Page 2 of 2 . promote the prompt and just resolution of the case. Such disclosure may enhance the prospects that the defendant will plead guilty or lead to the initiation of plea negotiations; in the event the defendant goes to trial, such disclosure may expedite the conduct of the trial by eliminating the need for a continuance. Accordingly, with respect to prosecutions in federal court, a prosecutor should give careful consideration, as to each prospective witness, whether absent any indication of potential adverse consequences of the kind mentioned above reason exists to disclose such witness' identity prior to trial. It should be borne in mind that a decision by the prosecutor to disclose pretrial the identity of potential government witnesses may be conditioned upon the defendant's making reciprocal disclosure as to the identity of the potential defense witnesses. Similarly, when appropriate in light of the facts and circumstances of the case, a prosecutor may determine to disclose only the identity, but not the current address or whereabouts of a witness. Prosecutors should be aware that they have the option of applying for a protective order if discovery of the private information may create a risk of harm to the victim or witness and the prosecutor may seek a temporary restraining order under 18 U.S.C. § 1514 prohibiting harassment of a victim or witness. In sum, whether or not to disclose the identity of a witness prior to trial is committed to the discretion of the federal prosecutor, and that discretion should be exercised on a case-by-case, and witness-by-witness basis. Considerations of witness safety and willingness to cooperate, and the integrity of the judicial process are paramount. November 2000 USAM Chapter 9-6 http://www.usdoj.gov/usao/eousa/foia_reading_room/usarn/title9/6mcrm.htm 4/10/2008 EFTA00191588 •• • -7 EFTA00191589 Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 1 of 22 USABook Online > Criminal Procedure > Sixth Circuit Desk Book > Chapter 7 next I help I download Chapter 7 Bail and Detention Issues 1. The Bail Reform.Act of 19,84 H. Release or Detention Pending Trial ILA. Generally II.B. Release on Personal Recognizance or Unsecured Appearance Bond II.C. Release on Conditions II.C.I. sera* II.C.2. Release on Secured Appearance Bond II.C.3. gelease,_on Bail Bond with a Solyent Surety LLD. The Defendant's Failure tst Appear ILE. Temporary Detention for Revocation of Conditional Release or Deportation II.F. Detention II.F.1. Generally II.F.2. Risk of Flight ILF.3. Dangerousness II.G. The Detention Hearing II.G.I. Hearing Procedures ILG.2. Criteria for Pretrial Release or_Detention 11.G.3. Content of Release or Detention Order II.G.4. Reopening the Detention Hearing http://10.173.2.12/usao/eousa/ole/usabook/desk/07desk.htm 4/10/2008 EFTA00191590 Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 2 of 22 II.H. Review of Release/Detention Order by District Judge, Court of Appeals Ill. Release or Detention Pending Imposition or Execution of Sentence IV. Release or Detention Pending Appeal V. Release or Detention of Arrestees Other than Ordinary Defendants V.A. Probationers and Supervised Releasees V.B. Material Witnesses V.C. Aliens VI. Additional Resources I. The Bail Reform Act of 1984 All things relating to bail in fede ral prosecutions are governed by the Bail Reform Act of 1984 (Act or 1984 Act) . In Reno v. Koray, 515 U.S. 50 (1995), the Supreme Court explained: The Bail Reform Act of 1984 pr ovides a federal court with two choices when dealing with a crimina 1 defendant who has been "charged with an offense" and is awaiting trial, 18 U.S.C. § 3142(a), or who "has been found guilty of an offense and . . . is awaiting imposition or execution of sentence," 18 U.S.C. § 3143(a)(1) (1988 ed., Supp. V). The court may either (1) "release" the defendant on bail or (2) order him "detained" without bail. A court m ay "release" a defendant subject to a variety of restrictive conditions, including residence in a community treatment center. See SS 3142(c)(1)(2)(i), (x), and (xiv). If, however, the court "fin ds that no condition or combination of conditions will reasonably assure t he appearance of the person as required and the safety of any other person and the community," § 3142(e), the court "shall order the detention of the person," ibid., by issuing a "detention order" "direct(ing) th at the person be committed to the custody of the Attorney General for confinement in a corrections facility," S 3142(i)(2). Thus, under the language of t he Bail Reform Act of 1984, a defendant suffers "d etention" only when committed (by the district court) to the custody of t he Attorney General; a defendant admitted to bail on restrictive con ditions, as respondent was, is "released." 515 U.S. at 57 (citations omitted); see also 18 U.S.0 § 3141(a) ("A http://10.173.2.12/usao/eousa/ole/usabook/deskJ07desk.htm 4/10/2008 EFTA00191591 Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 3 of 22 judicial officer [i.e., federal magistrate judge or district judge] . . before whom an arrested person is brought shall order that such person be released or detained, pending [further) j udicial proceedings, under this [Act]."). The 1984 Act completely superseded the Bail Reform Act of 1966 and funda - mentally changed the law. "It transforme d preexisting practice in very significant ways, providing among other t hings for the pretrial detention of persons charged with certain serious felo nies on the ground of dangerousness -- a ground theretofore not cognizable." United States v. Tortora , 922 F.2d 880, 884 (1st Cir. 1990).[9111] As a technical matter, the 1984 Act ad ded sections 3062 and 3141-3150 to Title 18 of the U.S. Code, and it repealed then existing sections 3043 and 3141 -3151. The 1984 Act also amended 18 U.S.0 . 9S 3041, 3042, 3154, 3156, 3731, 3772, and 4 282; 28 U.S.C. § 636; Fed. R. Crim. P. 5, 15, 40, 46, and 54; a nd Fed. R. App. P. 9. II. Release or Detention Pending Trial A. Generally A person arrested for a federal off unnecessary delay before the nearest avai initial appearance. Fed. R. Crim. P. 5(a magistrate judge "shall," among other thi the defendant as provided by statute or i Rule 46, captioned "Release from Custody, release prior to trial shall be in accord and 3144." Fed. R. Crim. P. 46(a). Sect Bail Reform Act of 1984 (1984 Act). ense must be brought "without lable federal magistrate judge" for his ), 9(c)(1). At this proceeding, the ngs, "detain or conditionally release n these rules." Fed. R. Crim. P. 5(c). " provides that "felligibility for ante with 18 U.S.C. S9 3142 ions 3142 and 3144 are a part of the Under the 1984 Act, the magistrate judge "shall" charged with an offense" be (1) released on personal recogniza appearance bond, under subsect (2) released on a condition or com subsection (c) of this section (3) temporarily detained to permit deportation, or exclusion unde (4) order that a "person nce or upon execution of an unsecured ion (b) of this section; bination of conditions under revocation of conditional release, r subsection (d) of this section; or detained under subsection (e) of this section. http://10.173.2.12/usao/eousa/ole/usabookidesk/07desk.htm 4/10/2008 EFTA00191592 Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention U.S.C. § 3142(a). In figuring out which option to pic k, the magistrate judge relies -- at least in part -- on the recommendation of the U.S. Pretria 1 Services Agency. See 18 U.S.C. 55 3152-3154 (establishing Pretrial Services Agency in every judicial district and pre scribing duties); E.D. Mich. Local Crim. R. 5.1(b), 10.1(b). This recommendation is the result of a Pretrial Services Officer's (1) interview of the defendant, (2) receipt of information from the government and defense counsel, and (3) i ndependent (though brief and necessarily cursory) investigation of the defendant's residential, familial, and employment situations. The recommendation is usuall longer than 4 pages with a radioactive o uncommon for the recommendation to be mad insufficient time for the Pretrial Servic These recommendations typically carry som are not controlling. Remember that the P not know anything about the specifics of defendant unless those facts are made pla provide this information to the officer. government is seeking detention or restri should contact the Pretrial Services Offi that she has all of the available informa the defendant's (1) criminal record, (2) drug or alcohol abuse, (3) employment sit domestic situation and recent residential relevant. B. Release on Personal Recognizance or an "Release on personal recognizance," means release on the following conditions appear at all subsequent judicial proceed a Federal, State, or local crime," id. y made in writing (in a report rarely range cover sheet), but it is not e orally in open court because there was es Officer to prepare a written report. e weight with the magistrate judges, but retrial Services Officer will usually the offense or the dangerousness of the in in the charging document or you Thus, in any case in which the ctive conditions of release, the AUSA cer early in the process to make sure tion about both the crimes alleged and history of violence, jumping bail, and uation and history, (4) assets, (5) history, and (6) anything else that is Unsecured Appearance Bond 18 U.S.C. § 3142(b) (caption), (1) that the defendant promise to ings(FN2J and (2) that he "not commit "Release on . . . (an] unsecured appearance bond," id. (caption), means release on the following conditions : (1) that the defendant promise to appear at all subsequent judicial proceed ings; (2) that he not commit another crime, id.; and (3) that he execute "an unsecured a ppearance bond in an amount specified by the court," id. A bond is a promise, see Black's Law Dictionary (Bryan A. Garn er ed., 7th ed. 1999), and an unsecured appearance bond is "(a) bond that holds a defendant liable for a breach of the bond's conditions (such as failure to app ear in court), but that is not secured Page 4 of 22 http://10.173.2.12/usao/eousa/ole/usabook/desk/O7desk.htm 4/10/2008 EFTA00191593 Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 5 of 22 by a deposit of or lien on property," id. released on an unsecured bond, the defend signing an unsecured appearance bond in t that he agrees to forfeit $10,000 to the judicial proceeding. C. Release on Conditions at 170. Thus, if ordered ant need not put up any money. His he amount of, say, $10,000, simply means court if he fails to appear for a 1. General ly If the court believes that release on personal recognizance or an unsecured appearance bond is inadequate to the task , it may order the defendant's release on certain additional conditions. See 18 U.S.C. § 3142(c)(1)(8). "Release on conditions," id. § 3142(c) (caption), means release on the following conditions: (1) that he pro mise to appear at all subsequent judicial proceedings; (2) that he not com mit another crime; and (3) that he be "subject to the least restrictive further condition, or combination of conditions, that such judicial officer de termines will reasonably assure the appearance of the person as required and( /or) the safety of any other person and the community(.]" 18 U.S.C. § 3142(c). Section 3142(c)(1)(8) lists the additional conditions of pretrial release that the court may impose, including a catch-all for "any other condition that is reas onably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community." 18 U.S.C. § 3142(c)(1)(B)(xiv). Some of the more commonly used conditions require that def endants report as directed to their Pretrial Services Officers, stay within a specific geographical area (e.g., the State of Michigan, metropolitan Detroit ( specifying certain counties), surrender their passports, reside in specific house s or apartments, be electronically tethered to their houses ("home detention "), remain in the "custody" of a third party (e.g., uncle Sam, granny), seek or maintain employment, or submit to drug testing and treatment. With respect to financial condition s of release, the court may decide that an unsecured appearance bond is not enoug of the person as required and(/or) the sa community(,)" and that the defendant shou commitment to the court. The COURT may o financial conditions: first, the court ma secured appearance bond and put up some p court may order the defendant to execute If the defendant violates any condi be "subject to a revocation of release, a h to "reasonably assure the appearance fety of any other person and the ld also have to make a firmer financial rder either one of two additional y order the defendant to execute a roperty as the security; second, the a bail bond with a solvent surety. tion of his pretrial release, he could n order of detention, and a prosecution http://10.173.2.12/usao/eousa/ole/usabook/desk/O7desk.htm 4/10/2008 EFTA00191594 Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 6 of 22 for contempt of court." 18 U.S.C. § 3148(a). 2. Release on Secured A ppearance Bond A secured appearance bond, see 18 V.S.C. § 3142(c)(1)(B)(xi), is an unsecured appearance bond that requ ires security in the form of personal or real property that is specified by the court. If the collateral for a secured appearance bond is cash, often referred t o as a "cash bond," the defendant must deposit the "cash" with the clerk's offic e. In this district, "cash" may take the form of "cash, [a] money order, or [a ] cashier's check made payable to 'Clerk, United States District Court.'" E .D. Local Crim. R. 46.1(b)(1). A "VISA or MasterCard credit card is [also] accep table for a cash bond." Id. If the collateral for a secured app earance bond is property other than cash, the magistrate judge must obtain th e prior approval of a district judge. See E.D. Local Crim. R. 46.1(b)(2) ("Unless approved in writing by a District Judge, property [other than cash ] shall not be accepted as collateral for a bond."). A defendant seeking relea se on an appearance bond secured by non cash property "shall provide the court wi th proof of ownership and the value of the property along with information regar ding existing encumbrances as the judicial office may require." 18 U.S.C. § 3142(c)(1)(B)(xi). This office ordinarily opposes the use of non -cash property to collateralize an appeara nce bond.[FN3) To prevent property constituting or derived from criminal proceeds from serving as collateral for an appearance b ond, the 1984 Act provides: In considering the conditions of re (c)(1)(B)(xi) or (c)(1)(B)(xii) of upon his own motion, or shall upon an inquiry into the source of the p forfeiture or offered as collateral accept the designation, or the use because of its source, will not rea person as required. lease described in subsection this section, the judicial officer may the motion of the Government, conduct roperty to be designated for potential to secure a bond, and shall decline to as collateral, of property that, sonably assure the appearance of the 18 U.S.C. § 3142(g). This section codifies the rule of United States v. Nebbia, 357 F.2d 303 (2d Cir. 1966), in which t he Second Circuit held that a district court has the authority to in quire into the source of a large cash bond (a 8100,000 cashier's check). The Nebbia court noted that "the mere deposit of cash bail is not sufficient to deprive the court of the right to inquire into other factors which might be ar on the question of the adequacy of the bail . . . ." Id. at 304. Of course, cash and non-cash property http://10.173.2.12/usao/eousakle/usabookJdesk/07desk.htm 4/10/2008 EFTA00191595 Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 7 of 22 representing or derived from criminal pro ceeds are not likely to assure the appearance of the defendant, who will oft en be all too happy to abandon such property as the cost of doing business. Thus, if indicated, the AUSA should request the court to examine whether the proposed collateral for an appearance bond is derived from criminal proceeds. Depending on the evidence produced at the hearing, called a "Nebbia hearing," the court could refuse to accep t the defendant's proposed collateral or the proposed surety. And whatever the court's decision turns out to be, if the AUSA believes that the collateral is "dir ty," she should consult with the Asset Forfeiture Unit of this office's Civil Di vision to assess the likelihood that the collateral (whether cash or non -cash property) could be subject to crimin al or civil forfeiture under 18 U.S.C. SS 981, 982 or 21 U.S.C. 9$ 853, 881. 3. Release on Bail Bond wit h a Solvent Surety A "bail bond with solvent sureties, " Is U.S.C. S 3142(c)(1)(3)(xii), is the other harsher financial alternativ e to an unsecured appearance bond. A bail bond with a solvent surety, also cal led a "surety bond," is basically a three-party agreement involving, naturally, a t hird party, the surety.[FN41 The defendant "executers) a bail bond with [a ] solvent suret[y]," and the solvent surety "executers) an agreement [with the court) to forfeit [to the court) such amount as is reasonably necessary to assu re appearance of the person as required." id.[FN5) Thus, if the court sets a surety bond in the amount of $100,000, and if the defendant thereaf ter fails to appear at a judicial proceeding, the surety must pay the court $100,000. Most sureties are corporations esta bailing people out. Corporate sureties, their customers a fee. Defendants in thi sureties that have been approved by the d For the court to approve of the use blished to engage in the business of like most service providers, charge s district may use only those corporate istrict court. of a non-corporate surety, it must be satisfied of the surety's solvency. Rule 46 provides in relevant part: (d) Justification of Sureties. Every surety, except a corporate surety which is approved as provide d by law, shall justify by affidavit and may be required to describe in the affidavit the property by which the surety proposes to justify and the encumbrances thereon, the number and amount of other bonds and undertaki ngs for bail entered into by the surety and remaining undischarged and all the other liabilities of the surety. No bond shall be approved unless the s urety thereon appears to be qualified. http://10.173.2.12/usao/eousa/ole/usabook/desk/O7desk.htm 4/10/2008 EFTA00191596 Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 8 of 22 Fdd. R. Crim. P. 46(d). Similarly, the 1 984 Act directs that a surety shall provide the court with inform and liabilities of the surety if of nature and extent of encumbrances a surety shall have a net worth which value to pay the amount of the bail 18 U.S.C. S 3142(c)(1)(8)(xii). ation regarding the value of the assets her than an approved surety and the gainst the surety's property; such shall have sufficient unencumbered bond; In United States v. Nebbia , 357 F.2d 303 (2d Cir. 1966), the Second Circuit observed that a district court ma y reject a surety "'Ulf the court lacks confidence in the surety's purpose or abi lity to secure the appearance of a bailed defendant.'" Id. at 304. Thus, if indicated, the AUSA sh ould request the court to examine whether the defendant's proposed surety is sufficiently reliable and solvent. Depen ding on the evidence produced at the Nebbia hearing, the court could reject the prop osed surety. D. The Defendant's Failure to Appear If the court releases the defendant pending trial on an unsecured appearance bond, a secured appearance bon d, or a surety bond, and the defendant thereafter fails to appear for a judicial proceeding, the government should move for and "the district court shall declare a forfeiture of the bail." Fed. R. Crim. P. 46(e)(1); see also 18 U.S.C. 5 3146(d) ("judicial officer may . . declare any property designate d [as bail] to be forfeited to the United States"). To be useful, th e declaration of forfeiture must be followed by the entry of a civil judgment in favor of the government. But if the defendant surrenders himself or is arrest ed and dragged in by his surety(( FN6J] before entry of the judgment, "(t]he court may direct that [the] forfeiture be set aside in whole or in part, upon such conditions as the court may impose." Fed. R. Crim. P. 46(e)(2). If the defend ant does not reappear, "the court shall on motion [of the government] enter a jud gment of default and execution may issue thereon." Fed. R. Crim. P. 46(e)(31. A judgment for the government is en forced by the Financial Litigation Unit under the Federal Debt Collection Procedu res Act of 1990. See 28 U.S.C. S 3201-3206 (relating to government's "postjudgm ent remedies"). If the defendant reappears "(a)fter entry of suc h judgment, the court may remit it in whole or in part." Fed. R. Crim. P. 46(e )14). "When the condition of the bond has been satisfied or the forfeiture ther eof has been set aside or remitted, the court shall exonerate the obligors and re lease any bail. A surety may be http://10.173.2.12/usao/eousa/ole/usabook/desk/07desk.htm 4/10/2008 EFTA00191597 Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 9 of 22 exonerated by a deposit of cash in the am ount of the bond or by a timely surrender of the defendant into custody." Fed. R. Crim. P. 46(f). The defendant's failure to appear h as serious nonfinancial consequences as well. Once the defendant is apprehended, he could be made "subject to a revocation of release, an order of detent ion, and a prosecution for contempt of court." 18 U.S.C. § 3148(a). In addition, he could be prosec uted for the separate offense of bondjumping. See id. § 3146. R. Temporary Detention for Revocation of Conditional Release or Deportation Temporary detention is a limited pe riod business days -- that can be ordered only in Temporary detention "shall" be ordered if * the defendant is on release pending or federal) that involves a felony; execution of sentence or pending ap probation or released on parole in of detention -- no more than 10 certain limit ed circumstances. trial in another criminal case (state on release pending imposition or peal in another criminal case; on another criminal case, and * "the person may flee or pose a dang er to community." 18 U.S.C. SS 3142(d)(1)(A), Temporary detention "shall" also be order ed if any other person or the (2). * the defendant is neither a U.S. cit izen nor a permanent resident alien (i.e. someone with a "green card"), and * "the person may flee or pose a dang er to any other person or the community." 18 U.S.C. SS 3142(d)(1)(B), (2). During the period of temporary detention, the AUSA must notify the appropriate court, proba local law enforcement official, or Immigration and Naturalization Sery to take such person into custody du treated in accordance with the othe notwithstanding the applicability o release pending trial or deportatio tion or parole official, or State or the appropriate official of the ice. If the official fails or declines ring that period, such person shall be  provisions of this section, f other provisions of law governing n or exclusion proceedings. 18 U.S.C. § 3142(d). "Such person shall be treated i n accordance with the other provisions of this section" simply means that the magistrate judge must http://10.173.2.12/usao/eousa/olefusabook/desk/O7desk.htm 4/10/2008 EFTA00191598 Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 10 of 22 order that the defendant pending further judicial defendants. F. Detention be released (wit h or without conditions) or detained proceeding based on the criteria applicable to ordinary 1. General ly Although there is a general presump tion in favor of pretrial release, the 1984 Act provides that the magistrate jud ge "shall" order that the defendant be detained pending trial [i]f, after a hearing pursuant to t [magistrate judge] finds that no co will reasonably assure the appearan safety of any other person and the he provisions of [section 3142(f)1, the ndition or combination of conditions ce of the person as required and the community. 18 U.S.C. 5 3142(e). Thus, a defendant may be detain ed because he represents an unacceptable risk of flight or an unacceptable danger to specific individuals or to the community at large. The AUSA should make clear to the court which basis for detention th e government is relying on, or that it is relying on both. 2. Risk of Fl ight The 1984 Act authorizes the court t o order pretrial detention if there is "a serious risk that the [defendant] will flee." 18 U.S.C. 5 3142(f)(2)(A). The government must estab sh risk of fli ght by a preponderance of the evidence. See, e.g., United States Mercedes , F.3d , (2d Cir. It 2001) ("The government re ins the ultima to burden of persuasion by the lesser standard of a preponderance the eviden ce that the defendant presents a risk of flight."); United States Gebro , 948 F.2d 1118, 1121 (9th Cir. 1991) (per curiam) ("On a motion f r pretrial d etention, the government bears the burden of showing by a preponderance of t he evidence that the defendant poses a flight risk, and by clear and convincing evidence tir t the defendant poses a danger to the community."); see also United States Hazime, 762 F.2d 34, 37 (6th Cir. 1985) ("Nor has the government distinguished between flight and dangerousness, although as we read se ction 3142(f), the clear and convincing standard applies only to the latter."). The 1984 Act creates a rebuttable p resumption in favor of detention based on risk of flight http://10.173.2.12/usao/eousa/ole/usabook/desk/O7desk.htm 4/10/2008 EFTA00191599 Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 11 of 22 if the judicial officer finds that the person committed an offense for of ten years or more is prescribed U.S.C. 801 et seq.), the Controlled U.S.C. 951 et seq.), the Maritime D 1901 et seq.), or an offense under firearm in relation to crime of vio 956(a) (conspiracy to kill, kidnap, [terrorism across international bou States Code. 18 U.S.C. 5 3142(e). there is probable cause to believe that which a maximum term of imprisonment in the Controlled Substances Act (21 Substances Import and Export Act (21 rug Law Enforcement Act (46 U.S.C. App. section 924(c) (using or carrying lence or drug trafficking crime), etc. in a foreign country), or 2332b ndaries) of title 18 of the United The principal risk -of-flight considerations are whether the def endant (1) has substantial ties to the local communi ty (employment, spouse, children, ownership of business, real estate, or of her nonportable assets, etc.); (2) has failed to appear in court in another crim inal case; (3) has a genuine incentive to flee (high likelihood of conviction, e xposure to long prison term, likelihood of bad collateral consequences in other c riminal cases, fear of retribution from victims, etc.), and (4) has a mental dise ase or defect (too drunk, drug -addled, paranoid, schizoid, etc. to control own b ehavior). See 18 U.S.C. 5 3142(g). 3. Dangerous ness The 1984 Act authorizes the court t o order pretrial detention on the basis of dangerousness if (1) the defendant is charged with a "crime of violence,"( EN7) a capital offense, or a drug offense carr ying a maximum term of imprisonment of 10 years or more, and (2) "no condition or combination of conditions or [pretrial release] will rea sonably assure . . . the safety of any other person and the community." 18 U.S. C. SS 3142(e), (f). The government must establish the defendant's dangerousness "by clear and convincing li idence." Id. 5 3142(f); see also, e.g., United States Hazime, 762 F.2d 34, 37 (6th Cir. 1985) ("Nor h as the government istinguished between flight and dangerou sness, although as we read section 3142(f), the clear and convincing standard applies only to the latter."). The 1984 Act also authorizes the co any case if there is "a serious risk that attempt to obstruct justice, or threaten, threaten, injure, or intimidate, a prospe § 3142(f)(2)(B). urt to order pretrial detention in su ch person will obstruct or injure, or intimidate, or attempt to ctive witness or juror." 18 U.S.C. http://10.173.2.12/usao/cousa/ole/usabook/desk/O7desk.htm 4/10/2008 EFTA00191600 Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 12 of 22 The Act creates a rebuttable presum on dangerousness in two situations. The finds that there is probable cause to bel the charged offense and the charged maximum term of imprisonment of ten Controlled Substances Act (21 U.S.0 Substances Import and Export Act (2 Drug Law Enforcement Act (46 U.S.C. under section 924(c) [using or carr of violence or drug trafficking cri kidnap, etc. in a foreign country], international boundaries] of title 18 V.S.C. S 3142(e). The second situation giving rise t dangerousness, also described in Section when it is determined that a person offense has in the past been convic while on pretrial release [i.e., a capital offense, or drug offense ca of 10 years or more). Such a histo mitigating information, a rational poses a significant threat to commu trusted to conform to the requireme ption in favor of detention based first is when the judicial officer ieve that the person committed offense is an offense for which a years or more is prescribed in the . 801 et seq.), the Controlled 1 U.S.C. 951 et seq.), the Maritime App. 1901 et seq.), or an offense ying firearm in relation to crime me], 956(a) [conspiracy to kill, or 2332b [terrorism across 18 of the United States Code. o a rebuttable presumption of 3142(e), is charged with a seriously dangerous ted of committing another serious crime federal or state "crime of violence," rrying a maximum term of imprisonment ry of pre-trial criminality is, absent basis for concluding that a defendant nity safety and that he cannot be nts of the law while on release. S. Rep. No. 98-225, at 4 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3202. See 18 U.S.C. S 3142(e). This rebuttable presumption doe s not arise, however, if the period beginning w ith the date of defendant's prior conviction or the date of his release fro m imprisonment for that conviction, whichever is later, and the date of the d etention hearing exceeds five years Id. 5 3142(8)(3). G. The Detention Hearing Before issuing an order of pretrial detention, the magistrate judge must conduct a detention hearing. See 18 U.S.C. SS 3142(e), (f). 1. Hearing Proc edures http://10.173.2.12/usao/eousa/ole/usabook/desk/O7desk.htm 4/10/2008 EFTA00191601 Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 13 of 22 • The 1984 Act requires that the dete ntion hearing be held "immediately upon the person's first appearance before the judicial officer," id. § 3142(f), but it also entitles the governm ent to a continuance of the hearing for at least one but no more than three busin ess days, and entitles the defendant to a continuance of at least one but no more than five business days, id. § 3142(f)(2). "(Nor good cause," the magi strate judge may grant either party a longer continuance. Id. "During (the] continuance, (the defendant) shall be detained . . . ." Id. CFN8l However, once the detention hearing begins, the defendant " may be detained pending completion of the hearing." Id. In practice, the magistrate judges continuances to the government only if th establishing a basis for detention author continuances that are granted are usually government fails to make an adequate prof the detention hearing immediately and rel of the hearing. in our district usually grant e AUSA makes a factual proffer ized by the 1984 Act, and the for only one or two days. If the fer, the magistrate judge may well start ease the defendant pending completion "The rules concerning admissibility of evidence in criminal trials do not apply to the presentation and considerati on of information at la detention) hearing." 18 U.S.C. § 3142(f). Thus, hearsay is admissible. See also Fed. R. Evid. 1101(6)(3) (FRE do not app ly to "proceedings with respect to release on bail or otherwise"). With respect to due process, the 19 84 Act provides: At the hearing, such person has the and, if financially unable to obtai counsel appointed. The person shal testify, to present witnesses, to c the hearing, and to present informa 18 U.S.C. § 3142(f). The government's presentation of ev testimony of the case agent (who is the g and/or a proffer of evidence made by the automatically include the report of the P right to be represented by counsel, n adequate representation, to have 1 be afforded an opportunity to ross-examine witnesses who appear at tion by proffer or otherwise. idence typically consists of the overnment's sole or principal witness), AUSA. The evidence will also retrial Services Officer. The Jencks Act, now codified at Fed . R. Crim. P. 26.2, applies to detention hearings. See Fed. R. Crim. P. 26.2(9)(3), 46(i). Thi s means that each party must disclose to the other party th e prior statements of its witnesses, if hup://10.173.2.12/usao/eousa/ole/usabook/desk/O7desk.htm 4/10/2008 EFTA00191602 Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 14 of 22 any. Although a witness's prior statemen is are not required to be disclosed until after the witness testifi es on direct examination, see Fed. R. Crim. P. 26.2(a), the magistrate judge will likely be irritated if the government fails to disclose witness stat ements before the hearing begins. 2. Criteria for Pretrial Rel ease or Detention The Act sets forth the criteria by which the court (usually the magistrate judge) must decide the question of pretri al release or detention. Section 3142(g) provides that the court shall . . . take into account t he available information concerning (1) The nature and circumstances the o ffense charged, including If whether the offense is a crime of iolence or involves a narcotic drug; (2) (3) the weight of the evidence aga inst the person; the history and characteristic s of the person, including (A) the person's character, physical and m ental condition, family ties, employment, financial re sources, length of residence in the community, community ties, pas t conduct, history relating to drug or alcohol abuse, criminal histor y, and record concerning appearance at court proceedings; and (B) whether, at the time of th person was on probation, on pa trial, sentencing, appeal, or under Federal, State, or local e current offense or arrest, the role, or on other release pending completion of sentence for an offense law; and (4) the nature and seriousness of the danger to any person or the com - munity that would be posed by the person' s release. 18 U.S.C. S 3142(g). 3. Content of Release or If at the conclusion of the hearing released pending trial, the order "shall that sets forth all the conditions to whi Detention Order the court orders . . . include ch the release is that the defendant be a written statement subject, in a manner http://10.173.2.12/usao/eousa/olc/usabook/desk./07desk.htm 4/10/2008 EFTA00191603 Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 15 of 22 sufficiently clear and specific to serve as a guide for the person's conduct." 18.U.S.C. S 3142(h)(1). If, instead, the court orders that the defendant be detained pending trial, the order "shall . . . include writte n findings of fact and a written statement of the reasons for the detentio n." Id. S 3142(i)(1); see also Fed. R. App. P. 9(a)(1) ("The district c ourt must state in writing, or orally on the record, the rea sons for an order regarding the release or detention of a defendant in a criminal case."). 4. Reopening the Dete ntion Hearing A detention hearing may officer, at information hearing and be reopened before or a (ter a determination by the judicial any time before trial i f the judicial officer finds that exists that was not kno wn to the movant at the time of the that has a material bea ring on the issue whether there are conditions of release that will rea sonably assure the appearance of such person as required and the safety o f any other person and the community. 18 U.S.C. 5 3142(f). "The judicial officer may at an y time amend the order (of release on conditions] to impose addi tional or different conditions." Id. S 3142(c)(3). H. Review of Release/Detention Order by District Judge, Court of Appeals Detention hearings in this district are invariably conducted by magistrate judges. See Fed. R. Crim. P. 5(c) (at in itial appearance, "magistrate judge shall detain or conditionally release the defendant"); 28 U.S.C. S 636(a)(2) (conferring on magistrate judge s "power to . . issue orders pursuant to section 3142 of title 18 conc erning release or detention of persons pending trial"). A magistrate ju dge's order of pretrial release or detention must be reviewed by a district judge if eithe r party moves for such review. See 18 U.S.C. SS 3145(a), (b). If the magistrate judge enters an order of relea se, "(1) the attorney for the Government may file . . . a motion for revocation of the order or amendment of the conditions of release; a nd (2) the (defendant] may file a motion for amendment of the conditions of release." 18 U.S.C. S 3145(a). If the magistrate judge enters an order of detention, "the (defendant) may file a motion for revocat ion or amendment of the order" Id. S 3145(b). A motion filed by the government or the defendant "shall be http://10.173.2.12/usao/eousa/ole/usabookidesk/O7desk.htm 4/10/2008 EFTA00191604 Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 16 of 22 determined promptly." Id. If the AUSA believes that a magistr should be reviewed by a district judge, s appropriate district judge immediately to charging instrument is a complaint, the r See E.D. Mich. Local Crim. R. 57.2, Local instrument is an indictment, the reviewer was assigned, or if that judge is unavail see E.D. Mich. Local R. 77.2(b). ate judge's order of pretrial release he should contact the court clerk of the schedule the review hearing. If the eviewer is the presiding district judge. R. 77.2(a). If the charging is the district judge to whom the case able, the presiding district judge, The fact that under the 1984 Act th e government has the right to have a magistrate judge's order of releas e reviewed by a district judge, see 18 U.S.C. § 3145(a), implies that the magistrate judg e's order li of release sho d be stayed pending revie w of the order by a district judge. In United States Huckabay, 707 F. Supp. 35 (E.D. Pa. 1989), the ma gistrate judge ordered pretrial release but detain ed the defendant pending review by a district judge, explaining that "'an appe after a motion for detention has been fil statutory implication, authorizes the jud judge] to stay the release order to allow (i.e., the district judge] to pass upon t The district judge agreed, observing that the district court could frustrate the ve 37. If the magistrate judge refuses to s should request a stay from the district j The AUSA should make sure that the tape from the hearing before the magistra judge's order of release, and a copy of t Agency. The government's motion for revi "shall be determined promptly" by the dis Some district judges will conduct the hea for another day or two. The AUSA should hearing before the magistrate judge (afte Chief). Some judges will not conduct the available. al of the magistrate's release order ed at the initial appearance, by icial officer (i.e., the magistrate the court having original jurisdiction he detention issue.'" Id. at 36. "(dequiring release pending review by ry purpose of review." Id. at tay her order of release, the AUSA udge. district judge has a copy of the audio to judge, a copy of the magistrate he report of the Pretrial Services ew of the magistrate judge's order trict judge. 18 U.S.C. § 3145(a). ring on the same day; others will wait order an expedited transcript of the r obtaining the approval of the Criminal it review until a transcript is The district judge's review of a ma gistrate judge's decision is de novo.[FN9] The district judge, therefore, may rel y entirely on the record that was before the magistrate judge, or he may expand the record by conducting a limited or full-blown hearing. The AUSA should be prepar ed to present live witnesses at such a hearing. At the conc lusion of his review, the district judge will enter an order of pretrial detention or release, and he "must state in http://10.173.2.12/usao/eousa/ole/usabook/desk/O7desk.htm 4/10/2008 EFTA00191605 Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 17 of 22 writing, or orally on the record, the rea sons for (that] order." Fed. R. App. P..9(a)(1); see also 18 U.S.C. § 3142(i)(1). If the district judge issues an or der of pretrial release, the government may appeal the order to the U.S. Court of Appeals for the Sixth Circuit. See 18 U.S.C. § 3145(c); Fed. R. App. P. 9(a). The AUSA should contact her supervisor and the Appellate Chief immediately to discuss this option. A government appeal of an order of release, like its appeal of any other order or judgment of the district court, must be approved by the Appellate Chief, the United States Attorney, and the Solic itor General of the United States. "The appeal should be determined promptly." 1 8 U.S.C. § 3145(c); see also Fed. R. App. P. 9(a)(2). III. Release or Detention Pending :wool tion or Execution of Sentence Once a defendant has been convicted , the 1984 Act toward detention. It provides: The judicial officer shall order th detained, unless the judicial offic evidence that the person is not lik safety of any other person or the c 3142(b) or (c). If the judicial off judicial officer shall order the re section 3142(b) or (c). tilts the playing field at (a convicted defendant] . . be er finds by clear and convincing ely to flee or pose a danger to the ommunity if released under section icer makes such a finding, such lease of the person in accordance with 18 U.S.C. § 3143(a)(1). In practice, the government, at least in this district, often permits a convicted defen dant to remain free pending the imposition of sentence or the execution o f sentence following its imposition.(FN10] This generally occurs in cases where a defendant on pretrial release pleads guilty, or where a defenda nt on pretrial release is convicted at trial and the AUSA is not really concerne d about the risk of flight or danger to others posed by the defendant. Of course , the AUSA should insist that the court comply with Section 3143(a) when circumst antes indicate that detention pending sentencing or service of sentence would b e prudent. If a defendant is convicted of a sp of detention is even stronger. The speci violence," capital offenses, and drug off imprisonment of 10 years or more. 18 U.S "shall" be detained unless -- ecified serious offense, the presumption fied offenses are "crime(s1 of enses carrying a maximum term of .C. § 3143(a) (2). Such a defendant hup://10.173.2.12/usao/cousa/ole/usabook/desk/07desk.htm 4/10/2008 EFTA00191606 Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 18 of 22 (A)(i) (B) the judicial officer finds ther e is a substantial likelihood that a motion for acquit tal or new trial will be granted; or (ii) an attorney for the Gove rnment has recommended that no sentence of imprisonment be imposed on the person; and the judicial officer finds by clear and convincing evidence that the person is not likely to flee o r pose a danger to any other person or the community. 18 U.S.C. S 3143(a)(2). IV. Release or Detention Pending Appeal The 1984 Act sets forth a presumpti on of detention when a defendant who has been sentenced to a term of imprisonment files an appeal. See 18 U.S.C. S 3143(b). Ordinarily, the presumption is rebuttable, and the burden is on the defendant to establish by clear and c onvincing evidence that he should be released pending appeal. See id. S 3143(b)(1) (defendant must show that he is not likely to flee or pose a d anger to any other person or the community, and that the appeal will likel y result in the reversal of his conviction or the vacation of his prison term). If, however, the defendant has been convicted of and sentenced for a "c rime of violence," a capital offense, or a drug offense carrying a maximum term of imprisonment of 10 years or more, the presumption of detention is irrebutta ble. See id. 5 3143(b)(2). I. Release or Detention of Arrestees Oth er than Ordinary Defendants A. Probationers and Supervised Rel A defendant arrested for a violatio "may be released pursuant to Rule 46(c) p R. Crim. P. 32.1(a)(1). Rule 46(c) says accordance with 18 U.S.C. S 3143." Fed. governs the release or detention of convi or execution of sentence. See supra pp. B. Material Witnesses n of probation or supervised release ending the revocation hearing." Fed. that release or detention "shall be in R. Crim. P. 46(c). Section 3143(a) cted defendants awaiting the imposition 17-18. A provision of the 1984 Act deals w ith material witnesses, see 18 http://10.173.2.12/usao/eousa/ole/usabook/desk/O7desk.htm 4/10/2008 EFTA00191607 Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 19 of 22 U.S.C. S 3144, who are individuals whose presence at trial "may become impracticable to secure . . . by subpoena ." Many material witnesses are aliens whose whereabouts at the time of trial wi 11 be a foreign country or unknown. Basically, a material witness may be acre sted on a material witness complaint and warrant issued by the court, and then det ained until his testimony can be secured by deposition. Std. ; Fed. R. trim. p. 15(a); see also, e.g., Torres-Ruiz United States District Court , 120 F.3d 933 934 - 36 (9th Cir. 1997) (per curiam). C. Aliens Aliens may be subject to "temporary detention" for up to 10 days to allow for the notification of INS and the defen dant's transfer to INS for administrative deportation proceedings. See 18 U.S.C. SS 3142(d)(1)(B), (2); supra p. 9. VI. Additional Resources • Annual Review of Criminal Procedure (Part II: Preliminary Proceedings (Bail) , Georgetown Law Journal. • 27 Moore's Federal Practice ch 646 (3d ed., looseleaf service updated annually). 3A Charles Alan Wright, Federa 1 Practice and Procedure SS 761-778 (2d ed. Supp. 2001). • David Marshall Nissman, Proving Federal Crimes ch. 17 (2001). • 3 Wayne R. LaFave et al., Crim inal Procedure ch. 12 (2d ed. 1999). FN 1. Still, under the 1966 Act district tour is effectively ordered pretrial detention based on dangerousness by order ing pretrial release with bail set in an amount clearly beyond the defendant 's means (e.g., $ 500,000), a practice specifically prohibited by the 1 984 Act. See 18 U.S.C. 3142(c)(2) ("The judicial officer may not impose a financial condition that results in the pretrial de tention of the person."). FN 2. "personal recognizance. The release of a defendant in a criminal case in which the court takes th e defendant's word that he or she will appear for a scheduled matter or whe n told to appear." Black's Law http://10.173.2.12/usao/eousa/olc/usabook/desk/07dcsklum 4/10/2008 EFTA00191608 Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 20 of 22 Dictionary 1278 (Bryan A. Garner ed., 7th ed. 1999). "release on recognizance. The pretrial release of an arrested per son who promises, usu. in writing but without supplying a a urety or posting bond, to appear for trial at a later date. -- Also termed release on own recognizance." Id. at 1292. FN 3. If real property is offered as collater al, the AUSA must be satisfied based on a review of deeds, mortgages, li ens, and appraisals that the owner (whether the defendant or someone else) h as sufficient equity in the property to back the amount of the bond. The office's Asset Forfeiture Unit can assist the AUSA in making this inquir y. The AUSA should also thoroughly examine or cross-examine anyone with an ownership interest in the property about several matters, including her will ingness to lose her interest in the property if the defendant fails to appear ; her knowledge of the defendant's criminal activity; her involvement with t he defendant in criminal activity, if any, and her own criminal record and a ctivity, if any; and her knowledge of the existence of assets owned by the d efendant from which she might expect repayment in the event of forfeitu re of collateral. Such questioning may lead to surprising and helpful inform ation, especially when defense counsel fails to thoroughly prepare the w itness. In the rare case where the real pro valuable and "clean" to serve as collater defense counsel to jointly seek the appro the charges are contained in a complaint, to whom the case was assigned if the char perty in question is sufficiently al, the AUSA should simply agree with val of the presiding district judge if or the approval of the district judge ges are contained in an indictment. FN 4. "surety (shuur( -1)1-tee). 1. A person who is primarily liab le for the payment of another's debt or the performa nce of another's obligation. . . ." Black's Law Dictionary 1278 (Bryan A. Gar ner ed., 7th ed. 1999). A surety can be an individual or a corporation. I n this context, a surety is often referred to as a "bail bondsman," and the formal legal term is "bailer." See id. at 136. Another term used is "bail bond ing agency." See E.D. Local Crim. R. 46.1(b)(3) ("Court p ersonnel shall not recommend specific bail bonding agencies. "). FN 5. "bail bond. A bond given to a court by a criminal d efendant's surety, guaranteeing that the defendant w ill duly appear in court in the future; a bond given to obtain a prisoner 's release and to secure the prisoner's appearance to answer legal pro cess. • The effect of the release on bail bond is to transfer custody of th e prisoner from the officers of the law to the custody of the surety on the b ail bond, whose undertaking is to redeliver the defendant to legal custody at the time and place appointed in the bond." littp://10.173.2.12/usao/eousa/ole/usabook/desk/07desk.htm 4/10/2008 EFTA00191609 Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 21 of 22 BLick's Law Dictionary 169 (Bryan A. Garn er ed., 7th ed. 1999). FN 6. The 1984 Act empowers sureties to arres t a fugitive defendant. See 18 U.S.C. 5 3149 ("A person charged with an offense, who is released upon the execution of an appeara nce bond with a surety, may be arrested by the surety, and if so arreste d, shall be delivered promptly to a United States marshal and brought before a judicial officer."). FN 7. "Crime of violence" is defined at 18 U. S.C. S 3156(a)(4). The circuits are split as to whether the crim e of being a felon in possession of a firearm, id. S 922(9)(1), is a rime of violence" under the 1984 Act. Compare United States Dillard , 214 F.3d 88 (2d Cir. 2000) (FIP "crime of violence ) with United States . li Lane, 252 F.3d 05 (7th Cir. 2001) (FIP not " crime of violence"), and United States Singleton, 182 F.3d 7 (D.C. Cir. 1999) (same). The Sixth Circuit as not yet addressed the i ssue in a published opinion. FN 8. This brief detention is often referred to as "temporary detention," which is a term of art in the 1984 Act, see 18 U.S.C. S 3142(d) (caption), that actually refers to an ent irely different kind of detention. See id. (providing for detention of up to 10 day s of either a defendant who is on release in connection with another criminal case or a defendant who is an alien, and who "may f lee or pose a danger to any other person or the community"). FN 9. Although 1(tihe Sixth Circuit has not a ddressed this question," United States Yamini , 91 F. Supp. 2d 1125, 1127 (S.D. Ohio 20 00), the great weig I t of authority holds that the district judge's standard of review of a magistrate ju e's order of p retrial release or detention is de novo.. See United Sta s Leon , 766 F.2d 77, 80 (2d Cir. 1985); United fates Be ker, 757 F.2d 1390, 1394 (3d Cir.1985); Ir United ates Clar , 865 F.2d 1433, 1436 (4th Cir.1989); United States Fortna, 769 F.2d 243, 251 (5th Cir. 1985); United States Mann, 3 F.2d 1479, 1481 -82 (8th Cir. 1985) (en banc); United States Hurtado, 779 F.2d 1467, 1481 (11th Cir.1985). I n Yamini, a Sixth Circuit district judge canvasse d the case law and concluded: The district court . . . should ultimate conclusion, even if "the w . does not] start from scratch, a magistrate had never occurred." Ra court is to make its own 'de novo' I. not defer to the magistrate judge's hole process (in the district court] . s if the proceedings before the ther, "(title point is that the district determination of facts, whether http://10.173.2.12/usao/eousa/ole/usabook/desk/O7desk.htm 4/10/2008 EFTA00191610 Sixth Circuit Criminal Dcsk Book Chapter 7. Bail and Detention Page 22 of 22 different from or an adoption of th e findings of the magistrate." Thus, while the district courts are not r equired to engage in a plenary procedure pursuant to 5 3145(b), the circuit courts that have addressed the standard of review ag ree that some independent review is required. 91 F. Supp. 2d at 1128 (citations omitted , brackets in original). FN 10. The imposition of sentence occurs at th e sentencing hearing. The execution of sentence, by contrast, "comm ences on the date the defendant is received in custody awaiting transportati on to, or arrives voluntarily to commence service of sentence at, the offi cial detention (read penal or correctional] facility at which the sente nce is to be served." 18 U.S.C. 3585(a). http://10.173.2.12/usao/eousa/ole/usabook/desk/O7desk.htm 4/10/2008 EFTA00191611 Chapter 17 Bail and Detention 17.01 General provisions 17.02 Bail Reform Act 17.03 Categories 17.04 Personal recognizance 17.05 Conditional release 17.06 Eligibility for release - factors 17.07 Temporary detention orders 17.08 Detention 17.09 Bail application following detention 17.10 Breach of condition of bond 17.11 Defendant's appeal of detention order 17.12 Miscellaneous sections 17.01 General provisions The Eighth Amendment to the United States Constitution provides that le)xtessive bail shall not be required . . ." U.S. COMET. AMEND. VIII. The United States Supreme Court has interpreted this amendment to prohibit the imposition of excessLve bail without creating a right to bail in criminal cases. See United States' Salerno. 481 U.S. 739, 754.55 (1987)("Eighth Amendment does not grant absolute right to bail"). The subject of bail and detention also implicates the Fourteenth Amendment's Due Process Clause, and requires that laws imposing pretrial detention "servea compelling governmental interest', Salerno, 481 U.S. at 752, and "the Due Process Clause of the Fifth Amendment". The principal source of this chapter is the Criminal Resource Manual of the United States Attorney's Manual § 26. 17.02 Bail Reform Act In federal criminal proceedings, release and detention determinations are governed by the Bail Reform Act of 1984. 18 U.S.C. §§ 3141.3156 (1990). These sections contain specific guidelines that 'judicial officers" must follow in considering whether a defendant should be detained or released pending federal criminal proceedings. Ch. 17 Bail and Detention 543 EFTA00191612 Title 18, United States Code, Section 3141(a) gives 'judicial officers' authority to make determinations regarding bail in all stages of a criminal case, up to and including the trial stage. The term 'judicial officers' is defined in Tide 18, United States Code, Section 3156, along with other terms relevant to the matter of bail in criminal cases. Once a defendant has been convicted of the federal charges, Title 18, United States Code, Section 3141(b) vests authority with district judges and the appellate courts to make bail determinations pending the imposition or execution of sentence, or pending appeal of the same. Title 18, United States Code, Sections 3152 through 3154 pertain to the administration and the supervision authority of pretrial services officers in the federal criminal system. Section 3154 specifically empowers pretrial services officers with the authority to collect information from defendants and other sources relative to the matter of bail. Pretrial services officers are authorized to make recommendations as to whether a defendant should be detained or released, including specific recommendations regarding conditions of release. 18 U.S.C. § 3154(1). Pretrial services officers are also authorized to establish facilities for and conduct the supervision of defendants released under the provisions of Section 3142. 17.03 Categories Tide 18, United States Code, Section 3142 defines the categories of "release and detention" a defendant may be subject to and contains the rules under which the court and parties must proceed relating to bail matters. In that regard, Section 3142(a) states "that upon the appearance before a judicial officer of a person charged with an offense, the judicial officer shall make a determination regarding bail status of the defendant, and shall enter an order designating a defendant's custodial status' under one of four categories: (1) released on personal recognizance or upon execution of an unsecured appearance bond (following the provisions of Section 3142(b)); (2) released on a condition or combination of conditions as defined by Section 3142(c); (3) temporarily detained to permit revocation of conditional release, deportation, or exclusion under Section 3142(d); or (4) detained pursuant to the provisions of Section 3142(e). 544 Proving Federal Crimes EFTA00191613 17.04 Personal recognizance Title 18, United States Code, Section 3142(b) requires a judicial officer to order the pretrial release of a defendant on "personal recognizance" or upon the defendant's execution of an "unsecured appearance bond" in an amount specified by the court. A Section 3142(b) release order must be conditioned on a defendant's agreement to "not commit a Federal, State, or local crime during the period of release." If, however, the judicial officer determines that the release of a defendant on "personal recognizance" or "unsecured appearance bond" could not "reasonably assure" the defendantt appearance at court proceedings, or will "endanger the safety of any other person or the community", then there is no obligation to order release. 18 U.S.C. §§ 3142(b) and 3142(c). In this event, the judicial officer must follow the provisions of Title 18, United States Code, Section 3142(c). 17.05 Conditional release Once a judicial officer has made the determination that a defendant does not qualify for release under Section 3142(6), then the judicial officer must follow Section 3142(c). When structuring the release of a defendant under Section 3142(c), the judicial officer must order that the defendant 'hot commit a Federal, State, a Local crime during the period of release. 18 U.S.C. § 3 I 42(c)( I )(A). In addition, the judicial officer must impose the least restrictive condition or combination of conditions necessary to "reasonably assure" the defendant's appearance as required and to "reasonably assure" the safety of any person and the community". 18 U.S.C. § 3142(c)(1)(B). An illustrative list of conditions is set forth in § 3142(c)( I )(B)(i)-(x iv) which gives the judicial officer authority to impose conditions not specifically enumerated so long as the same serve the purposes set out in § 3 I 42(c)(1)(B). It is important to note that "Section 3142 speaks only of conditions that will "reasonably" assure appearance, not guarantee it". United States' Xuluni, 84 F.3d 441, 443 (D.C. Cir. 1996)(per curiam). A judicial officer is not permitted to impose any financial conditions of release which result in the pretrial detention of a defendant. 18 U.S.C. § 3142(c)(2). The conditions of release imposed on a defendant under a Section 3142(c) order may be amended at any time to impose additional or different conditions of release. 18 U.S.C. § 3142(c)(3). Ch. 17 Bail and Detention 545 EFTA00191614 17.06 Eligibility for release - factors When making a determination regarding the eligibility of a defendant for pretrial release (whether personal recognizance unsecured appearance bond, or release on conditions), the judicial officer must consider the factors listed in Section 3142(g), including: (1) the nature and circumstances of the offense (in particular whether it is an offense which is violent or nonviolent in nature, or involves narcotics); (2) the weight of the evidence against the person; (3) the history and characteristics of the person -- (A) character -- including physical and mental condition), family ties, employment, finandal resources, length of time in the community, community ties, past conduct history relating to drug or alcohol abuse, criminal history, record of court appearances; and (B) whether, at the time of the current offense or arrest, the person wason probation, on parole,or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and (4) the nature and seriousness of the danger to any person or to the community that would be posed by the person's release. 18 U.S.C. § 3142(g) In addition to considering evidence of the factors set forth above, the court may upon its own motion, or upon the motion of the government attorney, conduct an inquiry into the source of any property to be designated for potential forfeiture or offered as collateral to secure any bond. 18 U.S.C. § 3I42(g)(4). If the court determines that any such collateral or property, because of its source, will not reasonably assure the appearance of the defendant as required, the designation or use of the collateral or property as security for a bond shall be refused. 18 U.S.C. § 3 I 42(g)(4). 17.07 Temporary detention orders Title 18, United States Code, Section 3142(d) requires a judicial officer to enter an order of temporary detention in cases where a factual determination is made that: 546 Proving Federal Crimes EFTA00191615 (1) the defendant: (A) is, and was at the time the offense was committed, on (i) release pending trial for a felony under Federal. State, or local law; (ii) release pending imposition or execution of sentence, appeal of sentence or conviction, or completion of sentence, for any offense under Federal, State, or local law; a (iii) probation or parole for any offense under Federal, State, or local law; OR (8) is not a citizen of the United States or lawfully admitted for permanent residence, as defined in section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 110I(a) (2); and (2) the defendant may flee or pose a danger to any other person or the community. 18 U.S.C. § 3142(d) The formula for calculating the 10 day temporary detention period is set forth in Section 3142(d). At the time the 10 day order is entered, the judicial officer must direct the attorney for the government to notify the appropriate "authorities" of the defendant's status. In the event that the "notified authority declines to take the defendant into custody. then the judicial officer must make an independent determination regarding bail under the provisions of Sections 3142(b), 3142(c), and 3142(e)(if the government moves for detention). 17.08 Detention The Bail Reform Act requires the pretrial detention of a defendant only if a judicial officer determines that no conditions or combination of conditions exist whi will I "reasonably assure the appearance of the person", United States Xidam , 84 F.3d 441, 442 (D.C. Cir. 1996)(per curiam , and "the safety of any other person and the community." United States I Rodriguez. 897 F. Supp. 1461, 1463 (S.D. Fla. 1995); IS U.S.C. § 3142(c). Cases Which Qualify For Detention Hearings: Section 3142(f) defines specific situations under which a judicial officer may hold a detention hearing. Those situations are as follows: ( I) Upon the motion of the government attorney, in a case that involves: (a) a crime of violence; (b) an offensewith a maximum sentence of life imprisonment or death; (c) Ch. 17 Bail aid Detention 547 EFTA00191616 an offense for which the maximum term of imprisonment is 10 or more years as prescribed by the Controlled Substances Act; or (d) any felony if the person has been convicted of two or more offenses described in paragraphs (a) through (c) or comparable state offenses. (2) Upon the motion of the government attorney or on the court's own motion, in a case that involves: (a) a serious risk of flight; or (b) a serious risk that the defendant will obstruct justice or threaten a witness. 18 U.S.C. § 3142(0 Section 3142(f) "does not authorize a detention hearing in t absence of one of the six situations set forth above." United States. Butler, 165 F.R.D. 68, 71 (N.D. Ohio 1996). Thus, the government may not request a detention hearing only on the allegations of danger to the community or another person. The "government is required to demonstrate that there are grounds for a hearing under the specific provisions of either 3142(f)(1) or (f)(2)." Butler, 165 F.R.D. at 71. "When there exists one or more grounds for holding a hearing under those provisions, the government may proceed on the theory of risk of flight and/or danger to the community or any other person." Id. Section 3142(f) may fairly be interpreted as authorizing pretrial detention "only upon proof of a likelihood of flight, a threatened obstruction of justice or a danger of recidivism in one or more of the crimes actually s ified by the bail statute." Butler, 165 F.R.D. at 71 (quoting United Sta r Hinder, p 797 F.2d 156, 160 (3d Cir. 1986) and eirg United States I yrd, 969 F.2d 106 (5th Cir. 1992); United States Plinf, 851 F.2d 7 (1st Cir. 1988)). When the court has determined that a detention hearing is warranted, it may consider evidence relating to a defendant's danger to the community. Detention considerations are then guided by the factors set forth in 18 U.S.C. § 3142(g), and the specific consideration of "the nature and seriousness of the danger to any person or the community that would be posed by the person's release." Butler, 165 F.R.D. at 71; 18 U.S.C. § 3142 (g)(4 ). Accordingly, the government must first prove one or more of the grounds listed in 3142(f)(1) or (2) as a prerequisite to the court considering the factor of danger to the community whether there exist appropriate conditions of release in the case. In the Butler decision, the court evaluated the government's motion to detain a defendant charged with firearms offenses. In reaching a decision in favor of pretrial detention, the Butler court stated: there is danger inherent to the community in the unlawful possession of firearms, both a rifle and a pipe bomb. This is particularly true where the possessor has a lengthy criminal 548 Proving Federal Crimes EFTA00191617 history, has not been deterred from the commission of crime by prior convictions and appears to be involved in ongoing drug offenses. 165 F.R.D. at 72. Timing Of Detention Hearing: Title 18, United States Code, Section 3 I 42(f)(2) contains specific guidelines regarding the timing of detention hearings. Ideally, the hearing is supposed to take place immediately upon the defendant's first appearance before the judicial officer. However, given the fact that a defendant may lack representation at this initial appearance, the detention hearing is not Ikely to go forward unless the court has made other arrangements for the defendant to be represented by counsel. Section 3142(f)(2) also permits a 3 day delay of the detention hearing upon the motion of the government attorney. A defendant may request a continuance of up to 5 days under this section. for good cause shown. Between the time the detention motion is filed and the actual detention hearing (up through the court's ruling on the motion for detention), the defendant will remain in the custody of the United States Marshals Office. 18 U.S.C. § 3142(0(2). A hearing may be reopened before or after the court's ruling on a detention motion, at any time before trial if the judicial officer makes a factual finding that information exists that was not previously known at the time of the hearing and that the information is material on the issue of whether there are conditions of release that will reasonably assure the appearance of the defendant and the safety of any other person and the community. Detention Hearings May Proceed By Way of Proffer; Rules of Evidence Do Not Apply: "Detention hearings are an informal proceeding, and the evidence presented is not governed by the Federal Rules of Evidence." United States I Duncan, 897 F. Supp. 688, 690 (N.D.N.Y. 1988); 18 U.S.C. § 3142(0 (2) . The governmeitsa proceed in a detention hearing by way of proffer. United States I 39 Fed. Appx. 278, 278-78 (6th Cir. 2002); UniteiStatesl. Smith, 79 F.3d 1208, 1209-10 (DC Cir. 1996); Unit States Gaviria, 828 F.2d 667, 669 (11th Cir. 1987); United States Martir, 782 F.2d 1141, 1145 (2d Cir. 1986)E/rata/States' Winsor, 785 F.2d 755, 756 (9th Cir. 1986); United States Acevedo-Ramos, 755 F.2d 203, 206-07 (1st Cir. 1985). The rationale for permitting detention hearings to proceed by way of proffer is that such hearings are "neither a discovery device for the defense nor a trial on the merits." Smith, 79 F.3d at 1210. "The process that is due is only that which is required by and proportionate to the purpose of the proceeding." Id. 'That purpose includes neither a reprise of all the evidence presented before the grand jury, United States I Suppa, 799 F.2d 115, 119 (3d Cir. 1986), nor the right to confront non-testifying government witnesses, United States I Aceetturo, 783 F.2d 382, 388-89 Ch. 17 Bail and Detention 549 EFTA00191618 (3d Cir. 1986)." Smith, 79 F.3d at 1210 also citing United States Hurtado, 779 F.2d 1467, 1479 (11th Cir. 1985)( purpose of pretrial detention hearing is not to "rehash . . . probable cause" but to provide opportunity for detainee ir show no risk of flight or danger to community); United States Williams, 798 F. Supp. 34, 36 (D.D.C. 1992). "A right to require the government to produce its witnesses against [a defendant] would complicate the hearing to a degree out of proportion to the liberty interest at stake - viz. the interest in remaining free until trial, for what is by statute a period of limited duration." Smith, 79 F.3d at 1210: see also Speedy Trial Act, 18 U.S.C. § 3161, a seq. Application of the Rebuttable Presumption: Title 18, United States Code, Section 3142(e) contains three categories of criminal offenses that give rise to a rebuttable presumption that "no condition or combination of conditions" will (I) "reasonably assure" the safety of any other person and the community if the defendant is released; or (2) "reasonably assure" the appearance of the defendant as required and "reasonably assure" the safety of any other person and the community if the defendant is released. These three categories are: (e) ... a judicial officer finds that: (1) the person has been convicted of a Federal offense that is described in subsection (f)(1) of t his section, or of a State or local offense that would have been an offense described in subsection (0(1) of this section if a circumstance giving rise to Federal jurisdiction had existed; (2) the offense described in paragraph one of this subsection was committed while the person was on release pending trial for a Federal, State, or local offense; and (3) a period of not more than five years has elapsed since the date of conviction, or the release of the person from imprisonment, for the offense described in paragraph (1) of this subsection, whichever is later. 18 U.S.C. § 3142(e)(1)-(3). Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term o f imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.), an offense under section 924(c), 956(a), or 23321> of this title, or an offense involving a minor victim under section 550 Proving Federal Crimes EFTA00191619 1201, 1591, 2241, 2242, 2244(a)(1), 2245, 2251, 2251A, 2252(a)(I ), 2252(a)(2), 2252(a)(3), 2252A(a)( I ), 2252A(a)(2), 2252A(a)(3), 2252A(a)(4), 2260, 2421, 2422, 2423, or 2425 of this title. 18 U.S.C. § 3142(e). The rebuttable presumption relating only to the safety of any other person and the community pertains to those cases meeting the criteria of Section 3142(e)(1)-(3). It is important to rote, that all 3 of these conditions must be met for the proper application of the rebuttable presumption of "danger to the community." The rebuttable presumption relating to both "risk of flight' and "danger to the community" pertains to those cases where the judicial officer fords there is probable cause to believe that the defendant committed: (1) a drug offense (as defined under Title 21) when the maximum term of imprisonment is 10 years or more; or (2) an offense under Title 18, United States Code, Section 924(c). 18 U.S.C. § 3142(e). The indictment alone is sufficient to raise the rebuttable presumption that no cond ition (or combination of conditions) will ensure the defendant's reappearance for trial and that no conditions of release i will ensure the safety of the mmunity. See, e.g., Smith, 79 F.3d at 1210-1211 citing United StatesDillon, 938 F.2d 1412 (1st Cir. 1991); Suppa, 799 F.2d at 119; United taus, Dominguez, 783 F.2d 702, 706 n.7 (7th Cir. 1986); Hurtado, 779 F.2d at 147i-79; United States `Contreras, 776 F.2d 51 (2d Cir. 1985). nited Stata Hazime, 762 F.2d 34, 37 (6th Cir. 1985); United States Mauro, 648 F. Supp. 316, 318 (D.D.C. 1986); see also United States Tedder, 903 F. Supp. 344, 345 (N.D.N.Y. 1995). Burden of Proof At Detention Hearing: In a pretrialdetendon hearing, the government's burden is to establish by clear and convincing evidence that no conditions of release will reasonably assure the safety iaf the community. Rodriguez, 897 F. Supp. at 1463 citing United States Orta, 760 F.2d 887 (8th Cir. 1985); see also United States 894 F. Supp. 580, 585-86 (N.D.N.Y. 1995) citing United States Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985). 'The issue in such a hearing is whether releasing a defendant would pose a danger to the community that would not exist were [the de ndant) detained? Rodriguez, 897 F. Supp. at 1463 citing United States I Phillips, 732 F. Supp. 255, 267 (D. i Mass. 990), &rig denied, 952 F.2d 591 (1st Cir. 1992); see also United States Smith, 79 F.3d 1208, 1209 (D.C.Cir.1996) (per cur(im); United States Porus, 786 F.2d 758 (7th Cir. 1985); United States I Orta, 760 F.2d 887 (8th Cir. 1985). The standard is different when the issue is whether any conditions of release will reasonably assure the defendant's attendance at trial (risk of flight); the government need only prove that Ch. 17 Bail and Detention 551 EFTA00191620 there are no such conditions by a "preponderance of the evidence." See United States I Tedder, 903 F. Supp. 344, 345 (N.D.N.Y. 1995)citing United States v. Martin 782 F.2d 1141, 1146 (2d Cir. 1986); 18 U.S.C. § 3I42(c). It is not necessary that the government prove both flight risk and danger to the community to warrant detention. See United States'. Flora, 856 F. Supp. 1400, 1401 (ED. Cal. 1994). Requirements For The Contents Of Release and Detention Orders: Title 18, United States Code, Section 3142(h) lists the requirements for the contents of a "release order." Title 18, United States Code, Section 3142(g) lists the requirements for the contents of a "detention order," including the requirement of "written findings of fact and a written statement of the masons for detention." 17.09 Bail application following detention When a defendant moves for release on bail following pretrial detention, the court must consider three factors: "(1) the length of the pretrial detention; (2) the extent to which the prosecution is responsible i for the delay of the trial; and (3) the strength of t e evidence upon which the pretrial detention was based." tired States Milian, 4 F.3d 1038, 1043 (2d Cir. 1993); United States O'Neill, 52 F. Supp. 2d 954, 960 (ED. Wis. 1999)(to get to first base on this issue, the defendant must show that either the prosecution or the court has unnecessarily delayed in bringing the case to trial—maybe the prosecutor is stalling because he realizes his case is so weak that pretrial detention is the only punishment in fact he can impose on the dekndant). Regarding the length of pretrial detention, there is no doubt that the longer the pretrial detention the more lately the denial of due process. Typically, this f or weighs in favor of the moving dekndant. See, e.g., United States I Gonzales-Claudio, 806 F.2d 334, 341 (2d Cir. 1986)("detention that has lasted for fourteen months and, without speculation, is scheduled to last considerably longer, points strongly to a denial of due process"). This factor by itself, however, is not determinative of a defendant's bail application. See Milian, 4 F.3d at 1044 (pretrial detention period of 30-31 months a factor in defendant's favor but not dispositive); see also United States' Melemlez-Carrion, 820 F.2d 56 (2d Cir. 1987)(pretrial detention period of 19 month did not violate defendants due process rights). Regarding the reason or "responsibility" for delay factor, the court will consider information relating to pretrial events such as motions for 552 Proving Federal Crimes EFTA00191621 continuance, discovery disputes, complexity of the case, plea discussions, and other matters relating to the progress (or lack thereof) of the case. Regarding the reasons for the pretrial detention, the court will examine the findings from the detention hearing. 17.10 Breach of condition of bond Title 18, United States Code, Sections 3146 through 3148 describe the penalties a defendant may be subject to for: (I) failure to appear at any proceeding as required (Section 3146); (2) committing an offense while on pretrial release (Section 3147); and (3) violating any condition of pretrial release (which includes the sanction of bond revocation)(Section 3148). In addition, Title 18, United States Code, Section 3149 empowers a surety with arrest authority over offenders, and requires that the surety promptly deliver the offender to the custody of the United States Marshal for proceedings under Section 3148. In this instance, judicial officers are also bound by Federal Rule of Criminal Procedure 46. Federal Rule of Criminal Procedure 46(e) provides that "[t]he court must declare the bail forfeited if a condition of the bond is breached." FED. R. CRIM. P. 46(f)( 1 ). This la age is broad, and reaches any condition of release. See United States' Ggante, 166 F.R.D. 3, 4 (E.D.N.Y. 1996). The Bail Reform Act of 1984 I does ot supersede Rule 46(f). Gigante, 166 F.R.D. at 4 (ling United States Vaccaro, 51 F.3d 189 (9th Cir. 1995); United States Dunn, 781 F.2d 447 (5th Cir. 1986); and by way of implication Unit States' Dudley, 62 F.3d 1275, 1278 (10th Cir. 1995); Oiled States Patriarca, 948 F.2d 789, 793 (1st Cir. 1991); United States Santiago, 826 F.2d 499 (7th Cir. 1987). "[There is no conflict between Rule 46(f) and the Bail Reform Act; the Rule and the Act are complementary and form a unified system dealing with pretrial release.'" Giganu, 166 F.R.D. at 6 quoting Vaccaro, 51 F.3d at 192. 17.11 Defendant's appeal of detention order When a defendant seeks review of a magistrate judge's order of detention, the district court is bound to review the matter de novo, and undertake a complete review of the matter for the pu ose of arriving at f its own "independent conclusion." See United States I uncan. 897 F. Supp. 688, 689-90 (N.D.N.Y. 1995) citing United States Lam, 766 F.2d Ch. 17 Bail and Deternion 553 EFTA00191622 77, 80 (2d Cir. 1985); see also U ted States ' King, 849 F.2d 485, 489-91 (11th Cir. 1988); United States Williams, 753 F.2d 329, 331 (4th Cir. 1985). 18 U.S.C. § 3145(a)-(c). 17.12 Miscellaneous sections Other provisions of Title 18 are relevant to matters concerning release and detention in criminal cases. For example, Section 3143 contains the framework for release or detention of a defendant pending sentence or appeal. Likewise, Section 3144 pertains to the release or detention of a material witness. Finally, Sections 3150 and 3151 discuss the applicability of the Bail Reform Act to those State cases which are removed to Federal Court, and the issue of forfeited bail. 554 Proving Federal Crimes EFTA00191623 Federal Narcotics Prosecutions - Chapter 26 Page 1 of 12 USABOok :> Crimes > Narcotics > Federal Narcotics Prosecutions > Chapter 26 prey I next I help I download Chapter 26 Bail and Detention Barry Wiegand Assistant United States Attorney District of District of Columbia 26.1 Introduction 26.2 Detention for serious drug crimes 26.3 First appearance 26.4 Standard of proof 26.5 Detention hearing 26.6 Rebuttable presumptions 26.7 Temporary detention 26.8 Other bases for denying bail 26.9 Nebbia hearings 26.10 Resources 26.11 Acknowledgments 26.1 Introduction Whether a defendant is detained without bail pending trial often profoundly affects the course of a drug prosecution. For example, pretrial detention or release influences whether a defendant decides to co-operate with the government, as well as the calculation of whether to plead guilty or go to trial. Moreover, Congress has paid special attention to serious drug offenders in the law of pretrial detention, placing much stricter limitations on http://10.173.2.12/usao/cousa/ole/usabook/drug/26drug.htm 4/10/2008 EFTA00191624 Federal Narcotics Prosecutions - Chapter 26 Page 2 of 12 their right to bad, and presuming that most should be detained pending trial. Federal law of pretrial detention, release, and bail is set forth in the Bail Reform Act of 1984, as amended, 18 U.S.C. §§ 3141-3156. The most important provisions, which govern when a defendant may be held without bail pending trial, are set forth in § 3142(e) (detention), § 3142(f) (detention hearing), and § 3142(g) (factors to be considered in determining whether there are conditions of release that will reasonably assure the appearance of the defendant and the safety of the community). 26.2 Detention for serious drug crimes westlaw query 18 +S 3142(F)(1)(C) Nearly all defendants charged with serious drug crimes may be detained pending trial under 18 U.S.C. § 3142(f)(1)(C), which permits the government to move for the pretrial detention of any defendant charged with a federal drug crime for which the maximum penalty is more than ten years in prison. In practice, this means that any defendant is subject to pretrial detention if charged with the manufacture, distribution, or possession with intent to distribute of heroin, cocaine powder, crack cocaine base, methamphetamine, phencyclidine, or any other drug classified as a Schedule I or Schedule II controlled substance, as these crimes all have maximum penalties of 20 years in prison under 21 U.S.C. § 841(b)(1)(C) and § 960(b)(3). Defendants conspiring or attempting to commit these offenses are punishable to the same extent under 21 U.S.C. § 846 and § 963, and similarly may be held without bail pending trial under § 3142(f). • Maximum penalty. Section 3142(f)(1)(C) specifically refers to violations of "the Controlled Substances Act (21 U.S.C. § 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. § 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. § 1901 et seq.)." Under this section, it is the maximum penalty that must be ten years or more, not whether the charged offense has a mandatory-minimum penalty of ten years or more. • Marijuana. Defendants charged with distribution or possession with intent to http://10.173.2.12/usaoteousaiole/usabook/drug/26drug.htm 4/10/2008 EFTA00191625 Federal Narcotics Prosecutions - Chapter 26 Page 3 of 12 distribute marijuana are not subject to pretrial detention unless the amount involved is greater than 50 kilograms, see 21 U.S.C. § 841(b)(1)(D) (less than 50 kilograms of marijuana subject to sentence of not more than five years), or the defendant is charged with a "schoolhouse," "playground," or "public housing" offense, in violation of 21 U.S.C. § 860, under which such violations are subject to twice the maximum punishment authorized under § 841(b). • PCP. Most statute books list phencyclidine (PCP) under Schedule III of the Controlled Substances Act, where it originally was classified. However, PCP has been reclassified as a Schedule II drug, subject to maximum penalties of 20 years in prison under 21 U.S.C. § 841(b)(1)(C) and § 960(b)(3), so that almost any felony federal offense involving PCP would be a "detainable" crime. See 43 Fed. Reg. 3359-60 (January 23, 1978) (Final rule transferring phencyclidine to Schedule II from Schedule III, effective February 24, 1978). 26.3 First appearance A motion for pretrial detention is to be made at a defendant's first appearance, which normally is presentment on a complaint in a case founded upon an arrest on probable cause, or an arraignment on a grand jury original indictment. Although the statute contemplates an immediate hearing on the detention motion, see 18 U.S.C. § 3142(f), in common practice, the government is accorded up to three working days after the first appearance for the hearing to be held under the continuance provision of § 3142(f). During this period, the defendant must be held without bond. The "shall" language of the § 3142(f) indicates that the court must grant a motion for a hearing on the motion for pretrial detention, and lacks discretion to deny it outright. Normally, when a defendant is arrested in a district other than where the prosecution will occur, the first appearance is deemed to take place when the defendant first appears in in the osecuting district. However, this question is not free from doubt. See United States Me/endez-Carrion, 790 F.2d 984, 990 (2d Cir. 1986) (detention hearing may be held in first appearance n charging district where defendant is arrested in another district); United States Dominguez, 783 F.2d 702, 704 (7th Cir. 1986) (government was http://10.173.2.12/usao/eousa/ole/usabook/drug/26drug.htin 4/10/2008 EFTA00191626 Federal Narcotics Prosecutions - Chapter 26 Page 4 of 12 not required to request detention in district where defendants were arrested and initially appeared, but could do so when defendants first appeared in charging district; "first appearance" for p rposes of § 3142(f) is not necessarily the same as "initial appearance"). Cf. United States Evans, 62 F.3d 1233, 1235-38 (9th Cir. 1995) (while defendant was entitled to detention hearing before magistrate in arresting district, only district court in charging district had authority to review the order). Practice note. At "removal" proceedings, pursuant to Fed. R. Crim. P. Rule 40, or any other similar hearing following an arrest outside the prosecuting district, the prosecutor should make clear on the record that detention will be sought and take any other necessary steps to ensure that the defense has no colorable basis later to claim that there was a failure t eet the " of first appearance" provision of § 3142(f). See generally United States Valenzuela-Verdigo, 815 F.2d 1011, 1013-16 (5th Cir. 1987) (detention hearing, although not held until 18 days after arrest, was not untimely where prosecutor in arresting district had requested pretrial detention and hearing date was set but subsequently delayed with apparent agreement of parties due to transfer of prisoner to charging district and schedule of defendant's counsel). However, failure to comply with the "first i appearance" provision does not necessarily bar the court om detaining the defendant after the detention hearing. See United States Montalvo-Murillo, 495 U.S. 711, 716- 17 (1990) ("Neither the timing requirements nor any other part of the Act can be read to require, or even suggest, that a timing error must result in releai of a person who should otherwise be detained."). See also United States Moncada-Pelaez, 810 F.2d 1008, 1009-10 (11th Cir. 1987) (where defendant was temporarily detained under § 3142(d), hearing could be held at any time within the 10-day temporary detention period). 26.4 Standard of proof westlaw query 18 +S 3142(E) /P SAFETY OR APPEARANCE The judge deciding a pretrial detention motion must order a defendant held without bail if it is shown that no condition or combination of conditions of release will reasonably http://1 0. 173.2.12/usao/eousa/ole/usabook/drug/26druglum 4/10/2008 EFTA00191627 Federal Narcotics Prosecutions - Chapter 26 Page 5 of 12 assure either the defendant's appearance in court or the safety of the community or any individual. 18 U.S.C. § 3142(e). In other words, the key detention issue is whether a defendant's release poses such a danger to the community—or any specific person, such as a witness—or such a risk of flight, that he should be held in jail pending trial. • Safety. Section 3142(f) provides that the government must prove "by clear and convincing evidence" that no conditions of release will assure the safety of the community or any individual. • Appearance. Circuit Courts of Appeals have held the government must prove by a preponderance of the evidence that no conditions of release will assur the defendant's appearance in court as required. See, r., United States Cisneros, 328 F.3d 610, 616 (10th r. i 2003); United States Xulam, 84 F.3d 441, 442 (D.C. Cir. 1996); Ur(1ed States Kirk, 992 F.2d 1218 (6th Cir.1993)(unpublished order); United States Dillon, 938 F.2d 1412, 1416 (1st Cir. 19911 United States v. Araneda, 899 .2d 368, 370 (5th Cir 1990); United States King, 849 F.2d 485, ii 489 (11th Cir. 988); United States! Himler, 797 F.2d 156, 161 (3d Cir. 1986); United States Chimurenga, 760 F. d 400, 405-06 (2d . . 1985); United States I. Portes, 786 F. d 758, 765 (7thtir. 1985); United States Orta, 760 F.2d 887, 891 (8th Cir. 1985); United States Motamedi, 767 F.2d 140 , 1406 (9th Cir. 1985). 26.5 Detention hearing westlaw query 18 +S 3142(F) /P 26.2 OR JENCKS At a detention hearing, "the rules concerning the admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing." 18 U.S.C. § 3142(f). However, the Jencks Act, 18 U.S.C. § 3500, does apply at pretrial detention hearings. See Fed. R. Crim. P. Rule 46(j) (Rule 26.2 generally applies to a detention hearing under § 3142) and Rule 26.2 (production of witnesses' statements). Thus, if a defendant is being prosecuted upon a criminal complaint following an arrest on probable cause, the court commonly will schedule a consolidated preliminary and detention hearing at which the prosecution must make available "Jencks" statements. If a hup://10.173.2.12/usao/cousa/olc/usaboolddrug/26drug.lum 4/10/2008 EFTA00191628 Federal Narcotics Prosecutions - Chapter 26 Page 6 of 12 defendant's detention hearing follows an indictment, the government may proceed solely by proffer without the need to call a witninause the indictment itself establishes probable cause. See, g., United States } 39 Fed.Appx. 278, 278-79 (6th C 2002); United States Smith, 79 F.3d 1208, 1210 (D.C. Cir.1996); United States Trosper, 809 F.2d 110 , 111015th Cir. 1987); United States Vargas, 804 F.2d 1 , 163 st Cir. 1986); United States Suppa, 799 F.2d 115, 117 (3d Cir. 1116); United States Dominguez, 783 F.2d 702, 706 n. 7 (7th Cir 1986); United States Contreras, 76 F.2d 51, i (2d Cir. 1985); United States I Hazime, 762 F.2d 34, 37 (6th Cir. 1985); United States Hurtado, 779 F.2d 1467, 1479 (11th Cir. 1985). Practice notes. 1. In some instances, when proceeding by proffer, it may be tactically adroit to bring to the hearing a government witness, such as the supervising case agent, and make that witness available to the court or defense counsel if either wishes to obtain additional evidence or information. A witness thus being called by the court or defense counsel is not subject to the requirements of the Jencks Act. See Fed. R. Crim. P. Rule 26.2 (a). 2. In hearings at which the government will proffer evidence derived from intercepted communications, for example, from court-authorized "wiretaps," there is a requirement under "Title III,"18 U.S.C. § 2510-2522, more particularly § 2518(9), for ten-days' notice to the defendant. This can conflict with the three-day continuance limit under § 3142(f), which defense counsel may try to employ to preclude the proffer of evidence based upon wiretaps. Section 2518(9) itself provides for a waiver by the court of the ten-day period upon finding that it is not possible to furnish the information ten days before the hearing and that the delay will not be prejudicial. If the defendant insists on ten-days notice, this could constitute "good cause" to extend the tim for a detention hearing beyond the statute's three day limit. See United States Salerno, 794 F.2d 64, 70 (2d Cir. 1986). 26.6 Rebuttable presumptions littp://10.173.2.12/usao/cousa/olc/usabook/drug/26drug.htm 4/10/2008 EFTA00191629 Federal Narcotics Prosecutions - Chapter 26 Page 7 of 12 westlaw query 18 i-S 3142(E) The most important section of the Bail Reform Act in drug prosecutions, after 18 U.S.C. § 3142(f)(1)(C), is 18 U.S.C. § 3142(e). This section provides for a rebuttable presumption that no condition or combination of conditions of release will reasonably assure the safety of the community where there is a showing of probable cause that: (1) the defendant has committed a drug crime for which pretrial detention is authorized; that is, a violation of the Controlled Substances Act with a maximum term in prison of ten or more years, as well as crimes under the other two federal drug laws referred to in § 3142(f)(1)(C); (1) the defendant has committed a violation of 18 U.S.C. § 924(c): using or carrying a firearm during and in relation to, or possessing a firearm in furtherance of, a drug-trafficking crime; and (1) the defendant is a "released" or "recidivist" offender subject to a presumption applying to defendants who have recently committed detainable crimes while on pretrial release. As noted above, an indictment itself constitutes a finding of probable cause. A second rebuttable presumption attaches to defendants accused of crimes identified in (1) and (2) above, that no condition or combination of conditions will reasonably assure the appearance of the person as required. § 3142(e). Note. Although probable cause to believe that a defendant has committed an 18 U.S.C. § 924(c) crim