USAM 9:4.000 RELEASE AND DETENTION PENDING JUDICIAL PROCEEDINGS Page 1 of 2

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 liidence." 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) ,