EFTA00066343.pdf

BAIL IPTS Recommends Detention?] Presumption 18 U.S.C. § 3142(c) S (f) Rebuttable Presumption for detention: pi drug crimes; (ii] § 9244c) violations; and (iii] previously convicted of a crime of violence Strength of Case confession, taped recordings, statements pre-conviction: § 3142(g) post-conviction: S 3143 5 3142(q) Factors 1. Nature and circumstances of offense charge:. crime of violence / drugs / mandatory minimums 2. Weight of evidence 3. .History and characteristics of defendant (A) character; physical/mental condition; family/community ties; employment; financial resources; substance abuse; criminal history; past court appearances (B) at time of offense/arrest, defendant connected to criminal justice system -- parole/SR, trial, sentencing 4. Nature/seriousness of danger to. person or community Risk of Flight Danger to Community "preponderance" "clear and convincing" use of alias • prior convictions lack of ties to community • violence / drugs- citizenship • use of weapons SSNs /. DOBs • instant offense bench warrants.-- check • economic danger to returns community mandatory minimums if • vulnerable victim -- child, applicable / rough elderly, handicap guidelines calculation EFTA00066343  PRESENTMENT' / BAIL / DETENTION Rule 5, Rule 9, Rule 32.1(VOSR) esented w/in 24 hours (on 3-day wkend, ask supervisor); Booked by Marshals, terviewed by Pre-Trial, Lawyer appointe d/retained tions: Release on personal recognizance ; Bond (if no reasonable condition) 3143 Conditions:. Travel restrictions, drug testing, live w/mom,etc; Can't set financial conditions that result in pre-trial detention it Arguments 53142(9)(1)(4) factors t. hearing §3142(a)(1) "Danger to Community" - on Gov't's motion; career offender, crime of violence (e.g. gun possession, escape, sex crimes involving minors). "Risk of Flight" - Gov't not necess'l y entitled to hearing; but prob could argue both flig ht 4 danger Duttable presump: Drug Crimes; §924(c) violation; Prey crime of violence cony c detention: indard of proof: Safety burden is "clear and convinci ng" Flight burden is "preponderance" :imately, det. is: Guns, Drugs, Prior convictions show ing little regard for appropriate for court instructions; Aliens subject to deportation; Can't identify D; D on probation. peal If bail ordered, gov't disagree s, go to Part I Judge; request a stay at hearing pending Part I Judge. If not same day, get tape of hearing transcribed (Joel Blum). Part.I Judge reviews de novo. Make bail argument again. 1 case: If arrested in different district and gets bail (but you want detention), go to Part I Judg e here; ask other AUSA to get a stay. Or get a stay from Part I Judge here pending removal to this district nged circa: Can't appeal DCT's decision, but can re-open issue if new evidence, or D lost suppression moti on, etc. Changed circs can be proximity to trial. lation of bail: §3148. Seek bench warrant. Hearing held to determine if probable cause that D committed crim e, or clear 4 convincing evidence that D viol'd term or cond ition. Judge must determine that D unlikely to abid e by cond's or no reas'ble cond. will assure D's presence. Rebu ttable presumption for detention where committed crim e. post-plea: Burden shifts as to both flight & dang er. §3145: if exceptional reasons D kept out on bail for drug or violence case which otherwise woul d require remand- Cooperation may be exceptional reason; D's personal probs not exceptional reason post-appeal: Should be remanded after sent unless potential for reversal ignor questions: Don't let counsel or rep be there; co-signors knowledge of D's involvement in crime relevant to moral suasion & finan responsibility; If signor may become witn ess, don't approve; Can ask ?'s about crime b/c can't co-s ign 4 be a witness or doesn't have moral suasion EFTA00066344  BAIL: 18 U.S.C. § 3142(g) In light of the 3142(g) factors, the Government submits that [the presumption is overcome / the defendant cannot overcome the presumption], and accordingly that detention is warranted. In particular, we submit that [a preponderance of the evidence demonstrates that the defendant is a flight risk / that clear and convincing evidence demonstrates that the defendant is a danger to the community]. (1): NATURE & CIRCUMSTANCES OF CHARGED OFFENSE (Violence; Terrorism; Minor Victim; Controlled Substance; Firearm; Explosive) (2): WEIGHT OF EVIDENCE (3): HISTORY AND CHARACTERISTICS OF THE DEFENDANT (A): Character; Physical/Mental Condition; Family Ties; Financial Condition; Length of Residence; Community Ties; Past Conduct; Drug/Alcohol History; Criminal History; History of Appearances at Court. (B): At time of offense, under federal or state supervision (pre- or post-trial) (4):DANGER TO ANY PERSON OR THE COMMUNITY EFTA00066345  ARGUMENTS Standard under 18 U.S.C. & 3142(O: If no condition or combination of conditions will reasonably assure appearance of defendant as required and safety of any other person or the community, defendant should be detained before trial. Rebuttable nresumntion uner 18 U.S.C. & 3142(4 in drug cases with 10 yr. max., or 924(c) cases, certain cases involving minors — it's presumed that no condition or combo of conditions will assure appearance and safety; it's up to defense counsel to rebut A. Risk of Flight 1. Strength of case (likelihood of conviction) — confession, tapes, wiretaps, undercover deals 2. Potential penalties: a. emphasize mandatory minimums, high guidelines b. collateral consequences of arrest/conviction (e.g. deportation 3. Outstanding bench warrants or prior bench warrants 4. False info to PTS (or info not corroborated) 5. Conflict of PTS info w/ info to arresting agents, marshals 6. Aliases, multiple DOBs, SSNs, addresses from rap sheet (emphasize ability to bide identity and location) 7. Lack of community ties ▪ family intact? ▪ short period of residence in city ▪ lack of employment/brief employment 8. Ties to other communities ▪ alien status • ▪ relatives/associates elsewhere • regular travel 9. Assets giving ability to flee 10. Ability to make/obtain documents to flee (e.g. passport) 11. Other EFTA00066346 • • •1 • B. • atinangis 1. Nature of Offense (e.g., violence, threats, drug dealing) 2. Criminal History ▪ crimes of violence ▪ past drug dealing ▪ crimes while on bail crimes while on probation 3. Currently under supervision (or on bail) 4. Tested positive for drugs by PTS 5. Drug use or addiction w/o employment (reflects need to commit crimes to support habit) 6. Threats to witnesses 7. Other: B. DEFENDANT'S RESPONSE: REPLY: EFTA00066347