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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 ense must be brought "without unnecessary delay before the nearest avai lable federal magistrate judge" for his initial appearance. Fed. R. Crim. P. 5(a ), 9(c)(1). At this proceeding, the magistrate judge "shall," among other thi ngs, "detain or conditionally release the defendant as provided by statute or i n these rules." Fed. R. Crim. P. 5(c). Rule 46, captioned "Release from Custody, " provides that "felligibility for release prior to trial shall be in accord ante with 18 U.S.C. S9 3142 and 3144." Fed. R. Crim. P. 46(a). Sect ions 3142 and 3144 are a part of the Bail Reform Act of 1984 (1984 Act). Under the 1984 Act, the magistrate judge "shall" order that a "person charged with an offense" be (1) released on personal recogniza nce or upon execution of an unsecured appearance bond, under subsect ion (b) of this section; (2) released on a condition or com bination of conditions under subsection (c) of this section (3) temporarily detained to permit revocation of conditional release, deportation, or exclusion unde r subsection (d) of this section; or (4) 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 Page 4 of 22 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 y made in writing (in a report rarely longer than 4 pages with a radioactive o range cover sheet), but it is not uncommon for the recommendation to be mad e orally in open court because there was insufficient time for the Pretrial Servic es Officer to prepare a written report. These recommendations typically carry som e weight with the magistrate judges, but are not controlling. Remember that the P retrial Services Officer will usually not know anything about the specifics of the offense or the dangerousness of the defendant unless those facts are made pla in in the charging document or you provide this information to the officer. Thus, in any case in which the government is seeking detention or restri ctive conditions of release, the AUSA should contact the Pretrial Services Offi cer early in the process to make sure that she has all of the available informa tion about both the crimes alleged and the defendant's (1) criminal record, (2) history of violence, jumping bail, and drug or alcohol abuse, (3) employment sit uation and history, (4) assets, (5) domestic situation and recent residential history, and (6) anything else that is relevant. B. Release on Personal Recognizance or an Unsecured Appearance Bond "Release on personal recognizance," 18 U.S.C. § 3142(b) (caption), means release on the following conditions (1) that the defendant promise to appear at all subsequent judicial proceed ings(FN2J and (2) that he "not commit a Federal, State, or local crime," id. "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 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. at 170. Thus, if ordered released on an unsecured bond, the defend ant need not put up any money. His signing an unsecured appearance bond in t he amount of, say, $10,000, simply means that he agrees to forfeit $10,000 to the court if he fails to appear for a judicial proceeding. C. Release on Conditions 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 h to "reasonably assure the appearance of the person as required and(/or) the sa fety of any other person and the community(,)" and that the defendant shou ld also have to make a firmer financial commitment to the court. The COURT may o rder either one of two additional financial conditions: first, the court ma y order the defendant to execute a secured appearance bond and put up some p roperty as the security; second, the court may order the defendant to execute a bail bond with a solvent surety. If the defendant violates any condi tion of his pretrial release, he could be "subject to a revocation of release, a 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 lease described in subsection (c)(1)(B)(xi) or (c)(1)(B)(xii) of this section, the judicial officer may upon his own motion, or shall upon the motion of the Government, conduct an inquiry into the source of the p roperty to be designated for potential forfeiture or offered as collateral to secure a bond, and shall decline to accept the designation, or the use as collateral, of property that, because of its source, will not rea sonably assure the appearance of the person as required. 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 blished to engage in the business of bailing people out. Corporate sureties, like most service providers, charge their customers a fee. Defendants in thi s district may use only those corporate sureties that have been approved by the d istrict court. For the court to approve of the use 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 ation regarding the value of the assets and liabilities of the surety if of her than an approved surety and the nature and extent of encumbrances a gainst the surety's property; such surety shall have a net worth which shall have sufficient unencumbered value to pay the amount of the bail bond; 18 U.S.C. S 3142(c)(1)(8)(xii). 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 of detention -- no more than 10 business days -- that can be ordered only in certain limit ed circumstances. Temporary detention "shall" be ordered if * the defendant is on release pending trial in another criminal case (state or federal) that involves a felony; on release pending imposition or execution of sentence or pending ap peal in another criminal case; on probation or released on parole in another criminal case, 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)(A), (2). Temporary detention "shall" also be order ed if * 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 tion or parole official, or State or local law enforcement official, or the appropriate official of the Immigration and Naturalization Sery ice. If the official fails or declines to take such person into custody du ring that period, such person shall be treated in accordance with the othe ✓ provisions of this section, notwithstanding the applicability o f other provisions of law governing release pending trial or deportatio 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 be released (wit h or without conditions) or detained pending further judicial proceeding based on the criteria applicable to ordinary defendants. F. Detention 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 he provisions of [section 3142(f)1, the [magistrate judge] finds that no co ndition or combination of conditions will reasonably assure the appearan ce of the person as required and the safety of any other person 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. 2001) ("The government reItins 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 danger to the community."); see also United States ir burden of showing by a preponderance of t he evidence that the defendant poses a flight risk, and by clear and convincing evidence t t the defendant poses a 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 there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), the Maritime D rug Law Enforcement Act (46 U.S.C. App. 1901 et seq.), or an offense under section 924(c) (using or carrying firearm in relation to crime of vio lence or drug trafficking crime), 956(a) (conspiracy to kill, kidnap, etc. in a foreign country), or 2332b [terrorism across international bou ndaries) of title 18 of the United States Code. 18 U.S.C. 5 3142(e). 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 idence." Id. 5 3142(f); see also, e.g., United States li 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 urt to order pretrial detention in any case if there is "a serious risk that su ch person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospe ctive witness or juror." 18 U.S.C. § 3142(f)(2)(B). 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 ption in favor of detention based on dangerousness in two situations. The first is when the judicial officer finds that there is probable cause to bel ieve that the person committed the charged offense and the charged offense is an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.0 . 801 et seq.), the Controlled Substances Import and Export Act (2 1 U.S.C. 951 et seq.), the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.), or an offense under section 924(c) [using or carr ying firearm in relation to crime of violence or drug trafficking cri me], 956(a) [conspiracy to kill, kidnap, etc. in a foreign country], or 2332b [terrorism across international boundaries] of title 18 of the United States Code. 18 V.S.C. S 3142(e). The second situation giving rise t o a rebuttable presumption of dangerousness, also described in Section 3142(e), is when it is determined that a person charged with a seriously dangerous offense has in the past been convic ted of committing another serious crime while on pretrial release [i.e., a federal or state "crime of violence," capital offense, or drug offense ca rrying a maximum term of imprisonment of 10 years or more). Such a histo ry of pre-trial criminality is, absent mitigating information, a rational basis for concluding that a defendant poses a significant threat to commu nity safety and that he cannot be trusted to conform to the requireme 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 in our district usually grant continuances to the government only if th e AUSA makes a factual proffer establishing a basis for detention author ized by the 1984 Act, and the continuances that are granted are usually for only one or two days. If the government fails to make an adequate prof fer, the magistrate judge may well start the detention hearing immediately and rel ease the defendant pending completion of the hearing. "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 right to be represented by counsel, and, if financially unable to obtai n adequate representation, to have counsel appointed. The person shal 1 be afforded an opportunity to testify, to present witnesses, to c ross-examine witnesses who appear at the hearing, and to present informa tion by proffer or otherwise. 18 U.S.C. § 3142(f). The government's presentation of ev idence typically consists of the testimony of the case agent (who is the g overnment's sole or principal witness), and/or a proffer of evidence made by the AUSA. The evidence will also automatically include the report of the P 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 whether the offense is a crime of Ifiolence or involves a narcotic drug; (2) the weight of the evidence aga inst the person; (3) 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 e current offense or arrest, the person was on probation, on pa role, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and (4) the nature and seriousness of the danger to any person or the com - munity that would be posed by the person' s release. 18 U.S.C. S 3142(g). 3. Content of Release or Detention Order If at the conclusion of the hearing the court orders that the defendant be released pending trial, the order "shall . . . include a written statement that sets forth all the conditions to whi ch the release is 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 be reopened before or a (ter a determination by the judicial officer, at any time before trial i f the judicial officer finds that information exists that was not kno wn to the movant at the time of the hearing and 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 ate judge's order of pretrial release should be reviewed by a district judge, s he should contact the court clerk of the appropriate district judge immediately to schedule the review hearing. If the charging instrument is a complaint, the r eviewer is the presiding district judge. See E.D. Mich. Local Crim. R. 57.2, Local R. 77.2(a). If the charging instrument is an indictment, the reviewer is the district judge to whom the case was assigned, or if that judge is unavail able, the presiding district judge, see E.D. Mich. Local R. 77.2(b). 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 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 li judge ordered pretrial release but detain ed the defendant pending review by a district judge, explaining that "'an appe al of the magistrate's release order after a motion for detention has been fil ed at the initial appearance, by statutory implication, authorizes the jud icial officer (i.e., the magistrate judge] to stay the release order to allow the court having original jurisdiction (i.e., the district judge] to pass upon t he detention issue.'" Id. at 36. The district judge agreed, observing that "(dequiring release pending review by the district court could frustrate the ve ry purpose of review." Id. at 37. If the magistrate judge refuses to s tay her order of release, the AUSA should request a stay from the district j udge. The AUSA should make sure that the district judge has a copy of the audio tape from the hearing before the magistra to judge, a copy of the magistrate judge's order of release, and a copy of t he report of the Pretrial Services Agency. The government's motion for revi ew of the magistrate judge's order "shall be determined promptly" by the dis trict judge. 18 U.S.C. § 3145(a). Some district judges will conduct the hea ring on the same day; others will wait for another day or two. The AUSA should order an expedited transcript of the hearing before the magistrate judge (afte r obtaining the approval of the Criminal Chief). Some judges will not conduct the it review until a transcript is available. 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 tilts the playing field toward detention. It provides: The judicial officer shall order th at (a convicted defendant] . . be detained, unless the judicial offic er finds by clear and convincing evidence that the person is not lik ely to flee or pose a danger to the safety of any other person or the c ommunity if released under section 3142(b) or (c). If the judi