Statutory Factors Under (f)(2): the case must involve either of the following two criteria:

1. a serious risk of flight: 3142(f)(2)(A)
2. a serious risk that the defendant will
• obstruct or attempt to obstruct justice, OR
• threaten, injure, intimidate (or attempt to) a prospective witness or juror.
[3142(f)(2)(B)]

KEY POINTS UNDER SECTION 3142(f):

• The government does not get a DH unless at least one of the SIX CIRCUMSTANCES set forth in (f)(1) and (f)(2) is shown
• U.S. v. Singleton, 182 F.3d 7, 9 (D.C. Cir. 1999): "Absent one of these circumstances, detention is not an option."
• The government must make a motion for a DH. The hearing does not happen by operation of law.
• Merely making the motion does not automatically entitle the government to a DH. The statute entitles government to DH "in a case that involves" one of the six criteria. government has burden of proving that the case at hand involves one of those six criteria."
• U.S. v. Friedman, 837 F.2d 48, 49 (2d Cir. 1988)[court "must first determine by a preponderance of the evidence that the defendant either has been charged with one of the crimes enumerated in Section 3142(f)(1) or that the defendant presents a risk of flight or obstruction of justice."].
• Thus, if you are served in the magistrate's courtroom with a motion by government seeking detention, don't assume the government is entitled to have a detention hearing.
• At the first appearance, ask the magistrate to make a determination as to whether the case at hand involves one of these six criteria.
• If government is not entitled to a DH, then the Court cannot order detention.
• U.S. v. Himler, 797 F.2d 156, 160 (3d Cir. 1986) ["...detention may be ordered only after a hearing pursuant to the provisions of subsection (f)."], cited with approval by Ninth Circuit in U.S. v. Twine, 344 F.3d 987 (9th Cir. 2003).
• Pointers re Criterion #1: Crime of Violence:
• Crime of violence is defined in 18 USC 3156, and this definitional statute is part of Chapter 207 of Title 18, entitled, "Release And Detention Pending Judicial Proceedings."
• If the case at hand charges your client with being a felon-in-possession of a firearm under 18 USC 922(g), some federal courts have held that this charge does not constitute a crime of violence. Thus, the government would not be entitled to a DH on the ground that the case involves a crime of violence for bail / detention purposes.
• Cases: U.S. v. Twine, 344 F.3d. 987 (9th Cir. 2003) (not a crime of violence); U.S. v Singleton, 182 F.3d 7 (D.C. Cir. 1999)(not crime of violence); U.S.v Lane, 252 F.3d 905 (7th Cir. 2001) (Posner, J.)(not crime of violence). But see, U.S. v Dillard, 214 F.3d 88 (2d Cir. 2000)(crime of violence).
• Child pornography offenses constitute crimes of violence. U.S. v. Riccardi, 2002 U.S. Dist. LEXIS 11919 (D. Kan. 2002)
• If your circuit does not have a case that construes the term, "crime of violence", within the bail statute (section 3156), try finding a case that applies the term favorably to the defense in another context, such as the Sentencing Guidelines, where a prior conviction for being a felon-in-possession does not constitute a predicate for Career Offender under Chapter 4. E.g., U.S. v Sahakian, 965 F.2d 740 (9th Cir. 1992)
• Pointers re Criterion #3: Drug Offenses With A Maximum of 10+ Years
• The 10+ year max is set forth in 21 USC 841(b)(1)(A), eg, 1 kilo or more of substance containing heroin; 5 kilos or more of substance containing cocaine powder; 50 grams or more of substance containing cocaine base.
• If your client is charged under 21 USC 841(b)(1)(B), the statutory max is only five (5) years.
• Thus, government cannot get a DH on the basis of the statutory max of the offense charged unless the quantities alleged fall under section (b)(1)(A).
• KEY POINTER: let's not concede that the government is entitled to a DH just because our client is charged with a drug offense under 21 USC 841. Sometimes the government will blind-side us by simply moving for detention without advising us or the court that this particular drug charge does NOT carry a 10+ - year statutory max.
• Pointers re Criterion #4: Prior Convictions
• If gov's motion for detention is based on 3142(f)(1)(D), i.e., the defendant is charged with any felony but has been previously convicted of two or more offenses that fall under 3142(f)(1)(A),(B), or (C), it is important to challenge the gov's premise that the prior convictions do in fact fall under (f)(1)(A),(B), or (C).
• example: if the two prior convictions were drug offenses, but the maximum term of imprisonment for those drug offenses was not 10+ years because the quantities were high enough, then the government is not entitled to a DH. It's not enough that the priors were drug offenses; they have to specifically involve drug offenses carrying a maxumum term of 10+ years. We have to be very precise in picking apart the premise on which government relies in seeking a DH.
• If the case at hand meets one of the six criteria, then the Court "shall hold a hearing"(DH).
• "The hearing shall be held immediately upon the (defendant's) first appearance" unless the defendant or government request continuance. (continuance is discussed a bit later in this presentation).
• Thus, government must make motion for detention at the initial appearance. If government does not do so and bail is set, government cannot file motion for a detention hearing at a later date under section 3142 (note that defendant can be detained by district court if bond is later revoked).

If the Government is entitled to a DH, is this a presumption case?

Introductory remarks

• The presumption language is in 18 U.S.C. 3142(e)
• There are two groups of criteria under section 3142(e) by which a presumption can apply at a DH. I'll call them Group One and Group Two. These are my own terms, as the word "group" does not appear in the statute.
• The criteria for both groups, as I call them, are set forth within 3142(e).

The Three Criteria That Give Rise To A Presumption: Group One

• Criterion #1: Defendant has been previously convicted of a federal offense described in (f)(1), or of a state/local offense that would have fallen within (f)(1) if federal jurisdiction existed;
• Criterion #2: That prior offense was committed while defendant was on pretrial release
• Criterion #3: Not more than five years have passed since defendant was convicted of that prior offense, or released from prison, whichever is later.

Practice Pointers re: Group One

• KEY POINT: ALL three criteria must exist in order for Group One to create a presumption. If all three criteria are met under Group One, then there is a presumption at the detention hearing.
• Statutory language: "In a case described in [section 3142] (f)(1). . . a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the safety of any other person and the community if such judicial officer finds that" [see factors discussed below]
• Presumption applies only if the case at hand is of the type described in section 3142(f)(1)
• Thus, the criteria in this group don't create a presumption if the government moves for DH (or the court on its own motion) under section 3142(f)(2)

The Four Criteria That Give Rise To A Presumption: Group Two

• Criterion #1: Probable Cause (PC) exists re: Defendant's involvement in a drug offense carrying a statutory max of 10+ years
• Criterion #2: PC exists re: Def's involvement in a firearm violation under 18 USC 924(c)
• Criterion #3: PC exists re: Def's involvement in terrorism or conspiracy to commit violence overseas per 18 USC 956, 2332(b).
• Criterion #4: [Added per Feeney Amendment in April 2003]: PC exists re: Def's involvement in an offense involving a victim who is a minor, including a child pornography charge [long list of statute re: crimes against minors is listed in section 3142(e) in regard to this criterion].

Practice Pointers re: Group Two

• These criteria apply to the case at hand; whereas, the criteria of Group One pertain to a prior conviction
• These criteria operate disjunctively. Any one of them can cause a presumption to arise.
• This group applies regardless whether the motion for the detention hearing is being made under the four criteria of (f)(1) or the two criteria of (f)(2); whereas Group One only allows a presumption if the motion for DH is made under (f)(1).
• Statutory language: "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" the criteria discussed below.
• Any of the following criteria can exist in order to trigger a presumption. Disjunctive, not conjunctive. Thus, the opposite of Group One.

Key Legal Pointers On Presumptions At Detention Hearings

• U.S. v. Hammond, 204 F.Supp.2d 1157, 1162 (E.D.WI.): "[a]ny evidence favorable to a defendant that comes within a category listed in 3142(g) can suffice" to rebut the presumption re: detention.
• If the presumption does apply, it generally has been interpreted as meaning only that the burden of production shifts to the defendant, but the ultimate burden of persuasion still rests with the government. U.S. v. Rueben, 974 F.2d 580, 586 (5th Cir. 1992), cert. denied, 504 U.S. 940 (1993); U.S. v. Clark, 791 F. Supp. 259, 260 (E.D.Wash 1992)
• The defendant only needs to produce some evidence that he is not a flight risk or a danger to the community to rebut the presumption. Doubts about the sufficiency of the evidence are to be resolved in the defendant's favor. Rueben, supra; Clark, supra; U.S. v. Motamedi, 767 F.2d 1403, 1405 (9th Cir. 1985); U.S. v. Gebro, 948 F.2d 1118 (9th Cir. 1991)

If the Government Moves For A Detention Hearing, How Should I Deal With Continuances?

Statutory Reference to Continuance: Section 3142(f)

• directs Court to hold the DH "immediately upon the person's first appearance" unless defendant or government request continuance.
• Defense can get continuance of up to five days ("not including any intermediate Saturday, Sunday or legal holiday").
• government can get continuance of up to three days ("not including any intermediate Saturday, Sunday or legal holiday").
• A longer continuance can be granted upon "good cause"
• Although statute does not expressly state that defense is automatically entitled to a continuance of up to five days, defense counsel should make the request as if it's a matter of right up to 5 days and discretionary based on good cause beyond that.

Practice Pointers Re: Continuances:

Should I ask for a continuance of the DH?

• Don't request a continuance of the DH until the court has first made a finding by a preponderance of the evidence that one of the four criteria has been met under 3142(f)(1), or two criteria under (f)(2), so that the government is in fact entitled to a DH.
• Common mistake: defense counsel receive the gov's motion for a DH; assume the government has a right to a hearing and thus focus only on whether defense is prepared and conclude that the defense is not ready and so request a continuance. This is premature.
• If there is a possibility that you'll be able to produce one or more sureties to sign for defendant's release and that they could appear at DH, but are not present at the first appearance, move for a continuance.
• If you have sureties to produce, arrange to bring them to PSA office to meet w/officer who is preparing the report during the continuance period. Bring documents to support bond: surety's bank statements, proof of residency, deed to residence, pay stubs to show employment.
• KEY POINTER: we want a supplemental PSA report that reflects input from proposed sureties, particularly substantiation of the sureties' capacity to pay a bond, their professional / financial status, and their commitment to the defendant. Thus, request a continuance that reasonably reflects the time needed to coordinate the sureties, have them interviewed by Pretrial, and get a supplemental PSA report.
• Consider asking the Court to have PSA produce certain evidence at the DH to substantiate certain representations contained in the report that you received at the initial hearing, such as claims that the client has used aliases in the past (there is always a risk of error on attributing aliases to defendants); the rap sheet to confirm history of arrests / convictions; immigration documents to confirm client's status (especially if PSA reports there is a hold/detainer on the client).
• Supplemental PSA report can also provide verification of information that initial report could not verify because there wasn't enough time (the initial reports are hurriedly prepared the same afternoon as the initial court appearance). Example: PSA's attempts to contact spouse / family member that afternoon were unsuccessful, and so initial report says PSA could not verify family / job information provided by defendant. This can hopefully be resolved with a continuance and supplemental PSA report.

What if the government asks for a continuance of the DH?

• The statute only gives the government the right to a continuance of the DH itself, but does not give the government the right to a continuance to determine whether the government in fact has a right to a DH.
• Thus, don't stipulate to a continuance when the government requests one. Litigate the issue of whether the government has established its right to a DH per the six criteria under 3142(f) and ask court to make a determination first as to whether government has a right to a DH.
• U.S. v. Riccardi, 2002 U.S. Dist. LEXIS 11919 (D. Kan. 2002)(court grants gov's request for 3-day continuance but decline to agree to continuance until government first established that charge against defendant was "crime of violence" which entitled government to a DH).

What Is The Burden Of Proof At The Hearing In Regard To Flight Risk And Danger To The Community?

Section 3142(f): "The facts the judicial officer uses to support a finding pursuant to [3142(e)] that no condition or combination of conditions will reasonably assure the safety of any other person and the community shall be supported by clear and convincing evidence."

U.S. v. Motamedi, 767 F.2d 1403, 1405 (9th Cir. 1985): The "Government's burden of proof" obligates the government to "establish risk of flight by a clear preponderance of the evidence" and "danger to the community must be supported by clear and convincing evidence."

At The DH, Should I Accept The Government's Proffer?

Introductory Points:

• 18 U.S.C. 3142(f): "At the (detention) hearing, such person (i.e., the defendant) has the right . . . to present information by proffer or otherwise." The government is afforded the same opportunity. Thus, proceeding by proffer at a detention hearing is not simply a custom; it's built into the statute.
• Accepting a proffer from the government may be a routine matter at a DH, depending on the nature of the case. Typically, at the outset of the DH, the government proffers the PSA report and the affidavit to the criminal complaint (or indictment if there is one).
• The Magistrate will then ask defense counsel if s/he accepts the gov's proffer. It may be perfectly appropriate to say Yes. But it is also worth considering circumstances where No to the proffer could create a window of opportunity to develop evidence by cross-examining the case agent which supports not only your bail application, but also allows an early understanding of the gov's case that will aid in developing a defense theory and/or a plea strategy.

Circumstances That May Warrant A "No" To The Gov's Proffer And A Request To Cross-Examine The Agent

• client's role may be an issue to clarify by crossing the agent. Make this relevant to bail by focusing on the minor participation which highlights the argument that a small player does not deserve to be detained; is not a danger to community as other members of conspiracy might be deemed; has incentive to stay and address case, since the ultimate sentencing outcome could be favorable (limited Relevant Conduct as to your client; minor role reduction / safety valve, etc, assuming the guidelines survive)
• facts negating flight risk of which the agent would have specific knowledge, such as:
• defendant became aware of the pending investigation against him, yet did not flee the district.
• during the course of the investigation, defendant was aware that law enforcement knew where he lived and worked, and he did not make any attempt to change his residence or place of employment or otherwise conceal / disguise his whereabouts.
• defendant met voluntarily w/agents during investigation
• defendant self-surrendered to authorities upon being informed that law enforcement was looking for him
• defendant gave detailed post-arrest statement
• defendant expressed willingness to cooperate at time of arrest
• defense counsel has already had cooperation-related discussions w/agent and AUSA prior to this bail/detention hearing
• prejudicial remarks in the affidavit to the criminal complaint can complicate bail eligibility and should be addressed on cross, in an effort to put a benign spin on the issue. Examples:
• affidavit claims that drugs were taken from the client's person or from residence at time of arrest, without specifying amount. Could be personal use quantity. Or field test was done, but nothing confirmatory that it was in fact narcotics that was seized. You may need the agent on the stand to highlight these points.
• affidavit claims that a gun was seized at the time of the search of the residence. government wants to use this as evidence that the defendant is a danger to the community. Cross-exam might soften this problem by establishing that gun was in a remote section of the home (or in a back house on the lot), or otherwise in a location that undermines the gov's contention that a firearm was "used during and in furtherance of" the charged offense. Also try to disconnect defendant from gun on cross-exam by showing that agent does not know whose gun it is. Possibly not loaded; not operable. From a bail standpoint, these details help to reduce the bad impact of the gun allegation.
• affidavit claims that defendant tried to flee at the time of arrest. This would play directly into gov's hands in arguing flight risk. Cross-exam which elicits more specific details about the so-called flight might reduce impact by helping judge recognize that it was all a case of nerves and fright on the part of a first-time offender who was scared at the sight of police coming after him; but that this has no bearing on defendant's commitment to make court appearances and honor conditions of release.
• client's access to large amounts of funds, such as overseas accounts, or ownership of out-of-state property, can raise serious flight-risk issues. Cross-exam of the agent might show that defendant does not have the degree of access or control the government is suggesting in affidavit.

PRACTICE POINTERS On Cross-Examining The Agent At The Detention Hearing:

• cross-examining the agent may show that certain allegations which are prejudical in regard to bail are based more on speculation / assumptions than on objectively verifiable facts; that this is not readily apparent from reading the affidavit to the complaint, and which the government has failed to substantiate. Important to assess whether it's early in the gov's investigation and thus likely that the government is being a bit too conclusory in the way it characterizes the client's conduct (e.g., he engaged in counter-surveillance driving and is thus a flight risk), or characterizes his relationship to other defendants (e.g., business partners; close friends); or characterizes his ownership of items (e.g., it was the client's van, or it was his gun that was found in the residence at the time of arrest). These characterizations can make a world of difference in the bail / detention analysis and can only be resolved favorably to the defense through cross-examining the agent.


• the government will certainly object during your cross-exam on the ground that your questions are irrelevant and intended to simply obtain early discovery -- i.e., fishing expedition for discovery before the defense is entitled to receive pretrial discovery. Responses to the Court:
• the questions focus on matters that are directly relevant to the issues of flight risk and/or danger to the community.
• cross-examining the agent may show that certain allegations which are prejudical in regard to bail are actually based more on speculation / assumptions than on objectively verifiable facts, and this distinction is not apparent from reading the affidavit to the complaint; thus, cross-exam is needed.

What Key Factors Should I Emphasize In Arguing For Bail At The Detention Hearing (or at the bail hearing if the gov's request for a DH is denied)?

KEY POINTER: whether we're at a DH or at a regular bail hearing, we argue for bail citing the same factors (discussed below).

Statutory Language re: Factors Considered By Court In Deciding Whether To Grant Bail At The Detention Hearing: 18 U.S.C. 3142(g)

1. nature and circumstances of the offense
2. weight of the evidence
3. history and characteristics of defendant, including
• physical and mental health
• substance abuse
• community and family ties
• past conduct
• criminal history
• record of making past court appearances
• whether defendant is on parole/probation at time of current offense
4. any danger to community that would be posed by defendant's release

Key Legal Points On Flight Risk Analysis At A Detention Hearing

• As noted above, government has burden of proving by a preponderance that no combination of conditions will reasonably assure the defendant's appearance.
• An opportunity for the defendant to flee is not a sufficient basis to detain a defendant. U.S. v. Chen, 820 F.Supp. 1205, 1208 (N.D.Cal 1992), citing U.S. v. Himler, 797 F.2d 156, 162 (3d Cir. 1986).
• The type of offense charged will not necessarily demonstrate a risk of flight. Himler, 797 F.2d at 162 (defendant charged with production of false ID docs not a flight risk)
• The government typically fails to meet its burden where the defendant has ties to a specific community, whether it's the community in which the charges are brought or any other community within the U.S. U.S. v. Townsend, 897 F.2d 989, 995 (9th Cir. 1990).
• A defendant's need for medical supervision may reduce the risk of flight. U.S. v. Clark, 791 F. Supp. 259, 261 (E.D.Wash 1992)
• The fact that the defendant did not leave the community even though he was aware of the pending investigation may reduce the risk of flight. U.S. v. Motamedi, 767 F.2d 1403, 1408 (9th Cir. 1985); U.S. v. Miller, 625 F.Supp. 513, 525 (D. Kan. 1985)
• A defendant who has limited financial means may pose less of a flight risk than one who is wealthier. U.S. v. Taitz, 130 F.R.D. 442, 443 (S.D. Calif. 1990)(extradition matter)

Checklist Of Factual Points To Use In Arguing That The Client Is Not A Flight Risk

KEY POINTER: The term, "flight risk", tends to imply travel, i.e., that the defendant runs to another state. This is a misnomer in that the statute uses the phrase, "...conditions of release that will reasonably assure the appearance of the person as required..." Thus, if there is reason to believe that the defendant may hide out in his own neighborhood and thus "go underground" in his own local area, that is relevant to the flight risk analysis. This problem arises in gang cases where there is a local network of cohorts who are willing to help the defendant avoid detection once released on bond.

1. The Power of Chronology: Defendant Has Long-Term Community Ties
• defendant is a U.S. citizen by birth
• defendant is a naturalized U.S. citizen or green card holder
• defendant owns his residence
• hopefully, he has owned the residence for many years: the more equity he has in the house, the less likely to flee, particularly if it means a foreclosure and losing many years of investment)
• defendant has resided his entire life within the federal district in which the prosecution has been filed: "born and raised right here, your Honor; went to local schools and has always resided a short distance from the neighborhood where he spent his childhood" [this is often a key argument for low-income clients who are not flight risks and whose local ties to the federal district must be strongly emphasized at the hearing]
• defendant has many family members in this district
• defendant has no family members residing outside this district ("they're all here, your Honor; the entire family.")
• defendant's spouse is from the district in which the prosecution has been filed, and they have lived together within this district since getting married.
• one or more sureties who are willing to sign for defendant are also from this federal district, and have known defendant in the local community for many years
• for many years, defendant has been very active in his local church (or other community organization, including his childrens' school; local school board; local political advocacy group)
2. Defendant Has Strong Professional or Business Ties To The Community
• a particular business the defendant operates that is anchored to the community and which would fall apart if s/he were not here to run the business (does not have to be large; could even be a small market or retail shop)
• note that this point not only rebuts the flight risk issue but also strongly supports granting bail because you're telling the court that the client's capacity to earn a living / his livelihood is seriously threatened if he is in custody during the pendency of this criminal action.
• defendant is an established professional with a company or firm which is based here in this district, or which has an office in this district where defendant works.
• consider having a company representative represent to the court at the bail / detention hearing that the company is aware of the bail conditions that include travel restrictions and that the company will not do anything that would require defendant to travel until / unless prior approval is obtained through court by way of a stipulated modification of the bond
• one or more sureties have personal knowledge of defendant's strong business / professional connection to this community, and his need to remain here in order to remain professional active and to continue earning a living.
3. Defendant Has Dependents Who Rely On Him Financially And Who Would Incur Serious Financial Hardship If Defendant Were Detained
• minor children depend on their father
• elderly family members receive financial assistance from defendant which is crucial
• spouse does not work because defendant is the bread-winner
• defendant's income is essential to pay the rent / mortgage. Foreclosure / eviction are serious possibilities.
• defendant cares for a sick child / family member
• adult family member who is not necessarily a senior citizen but is physically / mentally incapable of holding a job and depends on defendant financially
4. Defendant Would Suffer Serious Financial And Professional Harm If He Were Detained
• focus: loss of his job or personally-owned business.
• If applicable, emphasize (as noted above): people depend on defendant financially, e.g., children, adult family members who are elderly or unable to work
5. Defendant Does Not Have Any Incentive Or The Capacity To Leave This District
• family members are sureties: defendant would not want to put them in financial jeopardy by fleeing and having them pay the amount of the bond
• this is a particularly important argument to make if defendant's rap sheet shows traffic warrants or failures to appear in prior cases. Argue that the circumstances are far different now because no family member was placed in financial jeopardy in the prior case, so defendant's failure to appear did not subject a family member to financial loss, or loss of property. Under the proposed conditions release here, however, family members are at risk, so there is a strong deterrent against failing to appear. Thus, we cannot judge future behavior by past behavior.
• defendant's spouse has established professional / business ties to this community and thus is not type of person who would get up and leave with defendant if he wanted to flee. This is incentive for defendant to stay and deal with case. Argument even stronger if spouse also has long-term family ties to the community.
• defendant does not have a passport or has one and will surrender it as a condition of release.
• defendant does not own any real estate in other states / districts, or overseas.
• defendant does not have family members in other states / districts or overseas.
• defendant does not speak any foreign languages
• defendant has never traveled outside the U.S., or if he has, it has been for vacation to well-known tourist spots; or his foreign travel has been for specific business purposes coordinated through his employer.
• defendant has no offshore bank accounts, or accounts maintained at banks / branches in other states / districts.
• if defendant does have family in other states/districts or overseas, he does not have a close relationship with them (explain to court how infrequently client has seen them), and thus it would not be appropriate to leap to the conclusion that these people would harbor a fugitive.
• defendant suffers from a medical condition that requires him to see a specific physician / hospital that is located here in this district. Moreover, his medical condition makes it extremely difficult for him to travel, due to [fill in blank]
• there is a reasonable probability that this case will plead out. Thus, defendant has a strong incentive to see this case through to completion, working together with defense counsel.
• there is a reasonable probability that defendant may cooperate w/the government. Thus, strong incentive to see this case through, particularly with sentencing benefits down the road.
• [if the charges in the complaint / indictment do not carry a high sentencing exposure]: the sentencing exposure resulting from bail jumping is as high as, or greater than, the sentencing exposure that the defendant is facing on the charges currently filed against him
• Bureau of Prisons consideration: the heightened Bureau of Prisons security classification that results from bail jumping is something I (defense counsel) have discussed with my client, who is a professional / first-time offender. As we appear here today on the current charge, defendant has a reasonably good chance of serving time in a federal camp if convicted; and he knows that bail jumping not only adds years to the sentence but wipes out his camp eligibility and causes him to be placed in a lock-down facility.
6. Defendant's Conduct In Regard To Prior Arrests Supports Pretrial Release
• ironically, the defendant who has been arrested in the past may have a beneficial track record of having made court appearances. This is a very valuable asset for defense counsel: "Your Honor, while it is true that my client has been arrested for X,Y,Z, the Pretrial Services report indicates that he had no failures to appear and no warrants in connection with those cases, which means that he fully honored his bail commitments and thus comes before this Court with an excellent performance record on bond."
• defendant's priors are for minor offenses, e.g., traffic offenses / misdemeanors in general.
7. The Government's Allegations Against Defendant And/Or Potentially Good Sentencing Opportunities Can Negate Concerns About Flight Risk And Thus Support Pretrial Release
• from a facial reading of complaint / indictment, it appears that defendant is facing a relatively low sentencing range -- i.e., something that would give him an incentive to stay and see this case to completion (see points below)
• defendant is alleged to have a minor role, e.g, a courier in a drug case, or a conduit in a money laundering case who merely processed wire transfers or made bank deposits.
• in a large indictment / complaint, look for the argument that the defendant appears in only a small number of paragraphs (hopefully just one or two) out of the entire pleading.
• in the large, multi-defendant cases, drawing distinctions between the allegations made against other defendants and the allegations against your client is important, if we happen to have a client who seems low on the totem pole. Otherwise, the Court's perceptions about the client are driven by an EN MASSE perception of the conspiracy as a whole.
• distinctions may highlight the likelihood that your client is facing a much lower sentence than other members of the conspiracy, even based on a facial reading of the indictment.
  • the way the allegations are made against your client in the indictment / complaint may invite the argument that it seems apparent the government charged him / her with expectation of getting a cooperator and thus expects that defense counsel will be amenable to a proffer session and ultimately a plea deal.
  • when our instincts interpret the pleading this way, it's worth going up to the AUSA in the courtroom and broaching the subject of the government's interest in a proffer / cooperation deal, and if the AUSA seems open to it, bingo, that's the hook for arguing for pretrial release. The government is essentially acknowledging that they are not concerned about flight risk and in fact, have brought the client into the case with the opposite expectation: that s/he will be available through defense counsel to the government as a possible cooperator.
  • if the client is not facing a mandatory minimum sentence based on the allegations in the complaint, this is a key factor to raise.
  • if the client is facing a mandatory minimum sentence but is a first-time offender and thus safety valve eligible, this negates flight risk as it suggests a good reason to see the case through to completion
8. Defendant's Behavior In Connection With This Case Prior To This Bail/Detention Hearing Negates Flight Risk
• defendant became aware of the pending investigation against him, yet did not flee the district.
• during the course of the investigation, defendant was aware that law enforcement knew where he lived and worked, and he did not make any attempt to change his residence or place of employment or otherwise conceal / disguise his whereabouts.
• defendant met voluntarily w/agents during investigation
• defendant self-surrendered to authorities upon being informed that law enforcement was looking for him
• defendant gave detailed post-arrest statement
• defendant expressed willingness to cooperate at time of arrest
• defense counsel has already had cooperation-related discussions w/AUSA prior to this bail/detention hearing

What If There Are Legitimate Flight Risk Concerns? How Should I Direct The Court's Analysis?

KEY POINTER: Even if there are indications of a flight risk, that does not end the bail analysis. The statutory inquiry, as stated in the opening paragraph of 3142(g), is "whether there are conditions of release that will reasonably assure the appearance of the person as required . . ." Thus, emphasize that there is indeed a condition or combination of conditions that will properly resolve the flight risk concerns at issue. Thus, defense counsel can consider acknowledging the flight risk concerns, rather than dismissing or trivializing them, and directing the focus of the court to the types of conditions of release that make sense in terms of containing the defendant's behavior so that flight is no longer a concern -- e.g., specific residency requirement; identifying specific individuals who are required to be sureties; having defendant remain in the custody of a designated individual who will agree on the record at the hearing to assume supervision and to report any violation of a release condition to the Court [see 3142(c)(1)(B)(i)].

Checklist Of Factual Points To Use In Arguing That That The Client Is Not A Danger To The Community

1. defendant has no history of violence
2. if defendant has a criminal record: none of his prior arrests or convictions are for violent offenses
3. the current charge against the defendant that brings him before the Court today is not a crime of violence.
4. if defendant's rap sheet does show an arrest / conviction for a violent offense, focus on date: possibly remote in time. Thus, no recent charge of violence.
5. the concept of a "crime of violence" has many gradations, from a residential burglary all the way to being a serial killer. If defendant has any history of violence, see if it can be argued that the violence in his past is relatively low-level and can be controlled through proper conditions of release, such as home confinement; residing with a particular person; mandatory psychological counseling.
6. if defendant has a criminal record and has complied with all bail conditions in the past: emphasize that while on bond in connection with other cases, defendant never acted violently and met all conditions of release.
7. if defendant has a psychiatric history, look closely at the specific diagnosis and see if you can argue that the particular mental condition affecting the defendant does not incline him to be violent. Examples: depressive, anxiety, mood disorders; many of the personality disorders; cognitive disorders; alcoholism / heroin and other forms of substance abuse that are not stimulants.
• KEY POINTER: a history of mental health disorders may actually support the defense argument that the defendant is not a danger to the community, depending entirely on the specific nature of the disorder.
• a common misperception is that a psychotic disorder necessarily means a person is violent. Not so. Mental health professionals can testify that even if the client has been diagnosed as being psychotic, this in itself is not an indication of dangerousness to society, unless the psychosis is coupled with another diagnosis, such as anti-social personality disorder, or extreme paranoid disorder.
8. the proposed sureties are prepared to address the Court directly to attest to the fact that they have known the defendant for X number of years and have no concerns about him being violent
9. defendant's spouse is prepared to address the Court to confirm that there is no history of domestic violence towards her or the kids and that it is therefore appropriate for the defendant to reside with wife and kids while on bond.

Key Legal Points On Dangerousness

Certain circuits have held that a detention order cannot be based solely on a finding of dangerousness. Case cites:

• U.S. v. Twine, 344 F.3d 987 (9th Cir. 2003)
• U.S. v. Byrd, 969 F.2d 106 (5th Cir. 1992)
• U.S. v. Ploof, 851 F.2d 7 (1st Cir. 1988)
• U.S. v. Himler, 797 F.2d 156 (3d Cir. 1986)

White Collar Cases: What If The Government Argues That The Defendant Is An Economic Danger To The Community?

Several circuits have held that to detain a defendant solely because he poses an "economic danger" to the community is improper

• U.S. v. Twine (expressly rejects concept of detention solely on basis of dangerousness)

What If There Are Legitimate Dangerousness Concerns? How Should I Direct The Court's Analysis?

As with the flight risk issue above, focus on the statutory inquiry [see opening paragraph of 3142(g)], which is "whether there are conditions of release that will reasonably assure . . . the safety of any other person and the community(.)"

Key Legal Point on Both Flight Risk and Dangerousness:

Focus on the term, "reasonably assure". This is not the same as a guarantee. The AUSA may contend that the conditions of release proposed by the defense are no guarantee the defendant won't flee or of safety. These conditions do, we argue, provide precisely the reasonable assurances called for under the statute.

• U.S. v. Xulam, 84 F.3d 441, 444 (D.C. Cir. 1996)
• U.S. v. Chen, 820 F.Supp. 1205, 1208 (N.D. Cal. 1992)
(the requirement under section 3142 that the conditions of release "reasonably assure" a defendant's appearance cannot be read to require guarantees against flight).

What Can The Sureties Do At The Original Bail / Detention Hearing To Strengthen Our Argument For Bail?

• Getting the sureties to speak with, and preferably meet with, Pretrial Services prior to the bail hearing, and having them present in court at the detention / bail hearing is key.
• Ask judge if s/he wishes to address one or more sureties directly, and if there is any hesitation on the part of the Court to accept your proposed bail, try to get the judge to agree to have the surety come up to the lecturn and address the judge directly. This puts a "human face" on the bail process and also humanizes the defendant by showing that he is liked / respected / supported by people who feel strongly in his favor and are truly willing to take a financial risk on his behalf. This helps overcome the tendency of hearings to be overly clinical is the consideration of release.
• Coaching the sureties in the courthouse hallway prior to the hearing to prepare them to speak to the Court is a good idea, so they know in advance that they may be called upon to speak.

If The Court Decides To Set Bail, What Are The Types Of Bail That The Court Can Impose?

KEY POINTER: federal bail is very different from state bail in that the system does not favor a bondsman (corporate surety bond is rarely used), and there is no pre-established bail amounts for specific offenses, as many states impose. The bail determination is individualized on a case-by-case basis.

The Four Categories Of Bail In Federal Court: 18 U.S.C. 3142(a):

1. The client is released on a personal recognizance bond or unsecured appearance bond ("UAB"), under 3142(b)
• Click Here To Access The District Court Form for the UAB: Affidavit of Surety (No Justification)
• The UAB is typically what we focus on in seeking bail for the client. Requires third party sureties for whom we can establish good standing in the community, commitment to defendant and capacity to pay the bond amount being proposed by defense.
• The UAB is a one-page contract signed by a responsible third party in a specific amount of bail, obligating that person to pay the specified amount to the government in the event bond is revoked and the bail is forfeited.
• I tell the surety that the UAB is simply a signature on paper, and nothing more than that, so long as the client meets all his conditions of release. But I also am confrontive w/the surety before signing, about the risks, since the one-page form can be viewed by laypeople as no big deal and thus is deceptively risky.
• Personal recognizance bonds are rarely used when a defendant has been arrested and is appearing before the duty magistrate. We see personal recognizance bonds frequently when a defendant has been summoned to the post-indictment arraignment and the government stipulates to this bond, knowing that the defendant is not a flight risk. In this situation, there is no bail hearing. The duty magistrate at the post-indictment arraignment accepts the stipulated bond at the time the defendant is arraigned.


2. The client is released on a condition or combination of conditions, under 3142(c)
• 3142(c)(1)(B): "subject to the least restrictive further condition, or combination of conditions, that (the Court) determines will reasonably assure the appearance of the person as required and the safety of any other person and the community..."
• "least restrictive" is key. We must tailor our advocacy around this phrase. Courts sometimes pile on the conditions under 3142(c) -- such as employment, residency with family member, drug testing educational, intensive PSA supervision -- as a way of keeping the defendant on a "tight leash", especially in cases where the government had moved for detention and the court denied it. Defense counsel may be so grateful the court did not detain the client that little attention is being paid to the laundry list of conditions of pretrial release. It's important to remind court about "least restrictive" language and argue that these conditions are not necessary, that they exceed the "least restrictive" standard even though these conditions are enumerated in 3142(c)
• note that if magistrate piles on the conditions, you can always take an appeal to the district court, or wait until after the case has been assigned to a district court judge at the post-indictment arraignment and set a bail review hearing. Sometimes it's better to let the magistrate impose all these non-financial conditions at the initial hearing, just to get bail, without making an issue. Focus on posting the financial condition just to get the client out, and plan on addressing the logistics of how unmanageable the non-financial conditions are, when you appear at the bail review hearing before the district judge (ie, no longer the magistrate).
• "reasonably assure" is key. This is not the same as guarantee. Don't let the AUSA get away with a remark like, "the bond proposed by defendant is no guarantee this defendant won't flee."


3. the client is temporarily detained (this is rarely used and tends to apply to immigration matters), under 3142(d)


4. the client is permanently detained pursuant to the detention hearing procedures discussed above, under 3142(e),(f)

Appearance bonds under "other conditions" in 3142(c)(1): justification / deeding of property

1. appearance bond with justification (no deeding of property)
• statutory reference: section 3142(c)(1)(B)(xi)
• Click here to access the standard court form: Affidavit of Surety (Property)
• This is used in situations where the Court isn't comfortable with just a UAB, and wants more definitive proof that the surety / sureties can pay the amount of the bond, specifically by demonstrating equity ownership in real estate. On the form, the surety lists the fair market value of the property and all encumbrances so that the surety's equity interest can be calculated. The form takes into consideration situations where property is owned by more than one person (e.g., defendant and his wife).
• IMPORTANT: this form only requires that the surety demonstrate the capacity to pay. There is no requirement that property itself be deeded to the government. The form does require that the surety agree not to further encumber the property while serving as a surety, but the government does not take a lien on the property. This is very important for defense counsel in situations where the Court will not accept a UAB alone, and defense counsel wants to avoid the onerous process of having to deed property to the government.
2. appearance bond with full justification and deeding of property
• statutory reference: section 3142(c)(1)(B)(xii)
• This is the situation that defense counsel dreads because the Court not only wants a surety to demonstrate equity ownership in real estate, but also give the government a lien on the property.
• In addition to the court form above re: Affidavit of Surety (Property), the surety must also execute a deed of trust to the clerk of the court (form below) and follow the procedures outlined below
• Click here to access the standard court form: Short Form Deed of Trust

Steps to Follow in Deeding Property to the Government in Posting the Appearance Bond with Full Justification / Deeding of Property

• get a licensed appraisal of the property that is going to be deeded (if the owner has an appraisal that was done within the past year, that can suffice, unless the property is located in an area that has had significant price fluctuations)
• execute the deed of trust (form above) to the clerk of the court in the amount of the bond, and go to the County Recorder and record the deed. This will require the notarized signature of the property owner on the deed form
• obtain a preliminary title report showing the recordation of the deed to the government, along with all other encumbrances on the property. Watch out for "curve ball liens", such as tax liens and unpaid civil judgments. These will have to be cleared up before the U.S. Attorney and/or the court will accept the property for bail purposes.
• obtain from property owner the most recent statement from the bank showing the unpaid balance on each lien as to which monthly installments are due (e.g., the loan taken out on the house at the time of purchase)
• have the owner complete / sign the Affidavit of Surety (Property) form (see link above) which will show the fair market value per the appraisal, the total encumbrances, and thus the amount of equity.
• make several sets of copies of the above documents and schedule an appointment with the AUSA (or representative in US Atty Office who reviews / approves secured bonds).
• note that the form, Affidavit of Surety (Property), has a section in the upper left-hand corner of the face page for the US Atty to approve or disapprove the bond. If the government approves the bond, you take the original package, bearing the government's signature and check-mark in the "Recommend Approval" box, to the Criminal Filing Window in the clerk's office. The clerk will process the paperwork and send it to the clerk to the magistrate for final approval by the Court, and once that's done, the Release Order will be issued directing the Marshals to release the client from the federal detention facility.
• if the government declines to accept the bond after reviewing all the paperwork, the government checks the "Recommend Disapproval" box and also completes the section at the bottom of the second page of the form, stating reasons for disapproval. They include: lack of adequate equity; excessive liens; insufficient documentation.

What If The Court Grants Bail, But In An Amount That The Client Cannot Afford?

Important to emphasize the following language from 18 U.S.C. 3142(c)(2):

• "The judicial officer may not impose a financial condition that results in the pretrial detention of the person."

What If I Want To Use A Bail Bondsman And Avoid Having To Go Through All The Tedious Paperwork Of Posting An Appearance Bond With Full Justification / Deeding of Property?

If the Court imposes bail which includes the posting of an appearance bond with full justification and deeding of property, ask the Court to allow a Corporate Surety bond as an alternative. The standard bond form used by the court which sets forth all the conditions of release will have a box that the judge's clerk can check authorizing the posting of a Corporate Surety bond as an alternative.

However, defense counsel cannot simply post a Corporate Surety bond as an alternative to the appearance bond unless the court has authorized it at the bail hearing.

How Do I Appeal A Detention Order Or The Conditions of Release (To Get Bail Amount Reduced or Certain Conditions Modified / Removed)?

There are two types of appeal, and here are the court forms we should always have handy:

Court Forms For Appeal

1. Appealing the magistrate's order directly to the criminal duty judge prior to the post-indictment arraignment
• Click here to access the standard court form: APPLICATION TO THE CRIMINAL DUTY JUDGE FOR REVIEW OF MAGISTRATE JUDGE’S BAIL ORDER; ORDER THEREON
• This form is used when you have appeared for a detention hearing or bail hearing at the defendant's first appearance before a duty magistrate, and the client has either been detained or a bail has been set in an amount that the defendant cannot meet, thus keeping him in custody. You want immediate review prior to the post-indictment arraignment, and that's why you have to go to the criminal duty judge, since the post-indictment arraignment is the point in time when the case gets assigned a permanent district court judge.
2. Appealing the magistrate's order to the district court after post-indictment arraignment, or appealing again to the same district court judge
• Click here to access the standard court form: APPLICATION FOR REVIEW OF ORDER SETTING CONDITIONS OF RELEASE/DETENTION, PENDING TRIAL, (18 U.S.C. §3142) AND ORDER
• This is the general bail review form. Use it to appeal to your district court judge to whom your case is permanently assigned at the post-indictment arraignment. Also, you can use it again to seek review by that same district court at a later stage in the case if new circumstances arise warranting release.

Practice Pointers On Taking An Immediate Appeal To The Criminal Duty Judge (pre-indictment)

1. KEY POINT RE FOCUS OF APPEAL: the argument here in making the immediate appeal is that the duty magistrate was wrong in reaching his/her conclusions. You are challenging the analysis by the magistrate. Not the same approach with the general appeal process (see below).
• 1. spell out in detail at the bail / detention hearing all of the facts that you want to have in your record on appeal to the district court. Articulate specifically into the record what statements in the PSA report and what allegations in the criminal complaint are specifically at issue, as opposed to simply arguing for bail with the assumption that the magistrate is familiar with the contents of the PSA report and complaint. Being overly inclusive will augment the factual content of the record on appeal to the district court.
• 2. order an immediate duplication of the audio cassette tape that the magistrate's clerk prepares, so that you can make a copy of it right away and give it to the clerk to the criminal duty judge. Chances are the duty judge won't be able to hear you for a day or two, so there will be a small window of time in which to get the audio tape. The hope is that the duty judge will listen to the tape of the hearing before hearing your appeal and if s/he does, then the duty judge will be well-informed as to your position because you took great pains to articulate everything needed to make your record on appeal.
• To get on calendar with the criminal duty judge, you ask the magistrate's clerk who the duty judge is for the week, or go to the clerk's office and ask; and then you contact that judge's clerk to get a date/time for the hearing.
• It's generally better to wait until after post-indictment arraignment to seek review of bond by the district court because then you will have a permanent district court judge assigned to the case who takes a direct interest in the case. Chances are slim that duty judge will reverse magistrate's order in favor of defendant. Also, once you have had a district court judge review magistrate, and if you lose, then it's much harder to convince the district court judge to whom you are assigned at post-indictment arraignment to reverse the magistrate because the duty judge -- who is also district court judge -- has already affirmed the magistrate.
• Caution: This immediate appeal procedure is more often successful when used by the government when the magistrate orders denies a detention motion and orders a defendant released on conditions that the defendant is likely to meet quickly and thus get released; the government wants the duty judge to quickly stop it by reversing the magistrate.
• Anticipating The Immediate Appeal: foresight is a good asset in bail / detention proceedings. If you go into the proceeding with a good hunch that you're likely to lose before the duty magistrate and intend to take an immediate appeal to the criminal duty judge, consider doing the following:

Practice Pointers On Taking An Appeal To The Permanently-Assigned District Court Judge (post-indictment)

1. unlike the immediate appeal, this appeal does not require you to challenge the analysis of the magistrate. Rather, the focus can be on new evidence / circumstances that have come to light since the date of the original detention / bail hearing, which now change the client's bail eligibility and thus warrant reconsideration. Note the space on the court form to lay out these new facts not previously known to the court.
2. Pretrial Services will submit a new PSA report to the district court judge with a current recommendation on bond (i.e., either keep the current bail / detention, or modify with specific conditions).
3. Thus, our appeal should be coordinated with Pretrial Services, since they may be our best advocate for getting what we want. This is very different from the original bail / detention hearing, where Pretrial cranked out a report as fast as possible for the court calendar on the date of the client's original appearance, which left little or no time for defense counsel to work in coordination with Pretrial. Counsel simply received the PSA report in the courtroom and worked from there. On appeal, however, the strategy is to coordinate directly with Pretrial so as to seek their endorsement of our position on appeal.
4. Pretrial Services will not officially get involved in our appeal until the bail review application form has been signed by all parties and filed with the Court. At that point, the Court orders Pretrial to generate a PSA report, and this has to happen fast because the hearing date on the appeal will be within a couple of days.
5. It is desirable, therefore, to hold off filing the appeal until we have first lined up our sureties, together with all their documentation to support their role as sureties (ie, bank statements showing available funds; deeds to property showing property ownership; payroll stubs showing employment and salary). Let's have our financial evidence supporting our proposed bail, together with our sureties, all ready to go when we file the appeal form. Within a day, Pretrial Services will be ready to interview the sureties, and we call them downtown to meet with Pretrial in person, together with the documentary proof; and that presentation is reflected in the updated PSA report that is submitted to the court a day later at the hearing.
6. Meeting with the sureties and reviewing their documentation in depth; interviewing them about their willingness to take financial risks and the extent / depth of their knowledge of the client and their confidence that he will honor all conditions of release, should all be done prior to filing the form requesting the review hearing.



Procedure for getting your bail /detention review hearing on calendar:

• first, contact the district court judge's courtroom deputy to get a date / time for the hearing. We typically need to do this in person, as the clerk has to stamp and sign the original court form. Be sure to have copies in hand to get conformed by the clerk so that you have the original and several duplicate originals all bearing the date/time of the hearing and the clerk's signature.
• second, go to the U.S. Attorney Office and have either the AUSA assigned to the case, or a representative of the office (does not have to be a lawyer), sign and date the original form and each of your copies on the line that is designated for the U.S. Attorney..
• third, go to the Pretrial Services Office and have the receptionist sign and date the original form and each of your copies on the line designated for Pretrial Services.
• fourth (and last), go to the criminal filing window in the clerk's office to file the original, and get each of your copies conformed. Ideally, walk a conformed copy to the courtroom deputy for the district judge so that s/he knows the form was properly signed and filed, thus meaning that everything is a go for the date/time that the clerk had provided to you earlier.

What is the standard of review appeal?

Answer: de novo review

• U.S. v. Koenig, 912 F.2d 1190, 1191-92 (9th Cir. 1990)(while court need not start from scratch, it may determine whether bail should be set without deference to the earlier ruling.)

THAT COMPLETES OUR PRESENTATION OF KEY POINTERS IN FEDERAL BAIL AND DETENTION PROCEEDINGS

Thank you all for attending

[closing remarks omitted]

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Gregory Nicolaysen

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