How Federal Bail and Detention Hearings Work.

How Federal Bail and Detention Hearings Work

Under the Bail Reform Act of 1984, pretrial release is governed by 18 U.S.C. § 3142. This statute mandates release unless the court determines there are no conditions of release that “reasonably assure” that neither (i) the defendant will flee, nor (ii) the defendant will present a danger to any person or the community. In other words, the federal court conducts a determination of whether the defendant is not a flight risk or danger; and, in the absence of a showing to the contrary, it should grant pretrial release. The statute goes on to establish a rebuttable presumption of detention in certain circumstances, and it sets forth several non-exhaustive examples of conditions of release.

When Does the Detention Hearing Take Place?

Unless a defendant makes a request for a continuance, the detention hearing usually takes place at the defendant’s first appearance in federal court. The Bail Reform Act of 1984 also contains a temporary-detention provision, 18 U.S.C. § 3142(d), that applies when the defendant was already on release pending trial, sentence, or appeal, or on probation or parole for another offense, or is not a United States citizen or lawful permanent resident, and may flee or pose a danger. In these circumstances, the court may order the defendant detained for a period of not more than ten days, excluding Saturdays, Sundays, and holidays, so that the relevant authority can take custody.

How Does Pretrial Detention Affect the Final Outcome?

Roughly three-quarters of federal defendants will be detained pending resolution of their cases. Before the passage of the Bail Reform Act of 1984, this figure was much lower. Under the previously applicable Bail Reform Act of 1966, federal judges were prohibited from weighing dangerousness when deciding on the issues of bail and detention in noncapital cases. Research has established a connection between pretrial detention and higher conviction rates and longer sentences, as well as an increase in the rate of guilty pleas. For example, a study conducted by the New York University School of Law found that defendants who were detained prior to trial pleaded guilty and received more severe sentences than defendants who were released.

When Can Federal Prosecutors Ask for a Detention Hearing?

Federal prosecutors can request a detention hearing in many (but not all) criminal cases. Under 18 U.S.C. § 3142(f)(1), prosecutors can request a detention hearing if the defendant stands charged with a crime listed under the following federal categories:

• A crime of violence.
• Terrorism.
• An offense for which the maximum sentence is life imprisonment or death, or an offense under the Controlled Substances Act carrying a maximum term of imprisonment of ten years or more.
• An offense involving child molestation, sexual abuse of a minor, or sexual abuse of a protected person.
• An offense involving a use, attempted use, or possession of a firearm, destructive device, or narcotic or the intent to use, attempt to use, or possess a firearm, destructive device, or narcotic.
• A drug-related offense.
• Any felony charged against a defendant who has two or more prior convictions for offenses in the categories listed above.

While being charged with a crime of violence allows the prosecutor to file a motion for detention under § 3142(f)(1), that classification alone does not create a presumption of detention. It requires the judge to make a finding of dangerousness. Under § 3142(f)(1), the court only holds a detention hearing after the prosecutor makes a written or oral motion.

What Grounds Can Justify a Detention Hearing?

Even if the charged offense does not fall into any of the categories listed under § 3142(f)(1), 18 U.S.C. § 3142(f)(2) permits a detention hearing when there is a serious risk that the defendant will flee or will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to do so, to a prospective witness or juror. Obstruction of justice can include (but is not limited to):

• Threatening to intimidate a victim or potential witness by any means.
• Physically harming or intimidating a victim or potential witness by any means.
• Threatening or attempting to injure a prospective or actual juror.
• Intimidating or interfering with a victim or witness, or a potential juror, in such a manner that prevents that person from playing an important role in the legal process.
• Interfering with a victim, witness, or juror who is available for the purpose of providing information and testimony at the hearing.

Obstruction of justice is a serious offense that can be proven to justify detention, and, even if it is not proven, there must be a demonstration that the defendant poses a risk to the administration of justice.

Why Are Detention Requests Common in White-Collar Cases?

Although offenses like mail fraud, wire fraud, securities fraud, and tax evasion are not usually prosecuted as crimes of violence or otherwise dangerous to the public, it is not uncommon to see detention requests in white-collar cases. In these cases, prosecutors typically rely on the risk of flight rather than the danger to the community to justify their requests. With this in mind, it is imperative to engage a capable lawyer.

Do Certain Federal Charges Automatically Presume Detention?

Under 18 U.S.C. § 3142(e)(3), certain charges automatically presume detention. Specifically, “there is a rebuttable presumption that no condition or combination of conditions will reasonably assure the appearance of a person in court, nor the safety of any other person or the community, if the person is arrested or detained pursuant to:

• A warrant or subpoena in an offense subject to 18 U.S.C. § 3143 or section 2251, 2252, or 1591 as amended;
• Or for an offense that carries a maximum penalty of 10 years or more that is related to a controlled substance as defined in section 802 of the Controlled Substances Act (21 U.S.C. § 802);
• Or for an offense charged under 18 U.S.C. § 924(c).”

There are many charges that do not establish a presumption of detention under 18 U.S.C. § 3142(e). For example, a charge involving any type of fraud will not establish this presumption. Charges such as possession of a firearm are not charges carrying mandatory minimums and will not establish this presumption. The federal immigration charge for illegal entry or re-entry after removal from the United States also will not establish this presumption.

What Effect Does Presuming Detention Have?

If a charge carries a presumption of detention, what effect does that have? The United States Court of Appeals for the Fifth Circuit has explained, “As clearly indicated by the language of subsection (e)(3) of Section 3142, the presumption of detention provided by Section 3142(e)(3) operates merely to shift the burden of production, not the burden of persuasion, to the defendant.” The court explains, “The defendant must rebut the presumption by showing that there are conditions under which he will not be a flight risk and not a danger to the community. Even after the defendant produces rebutting evidence, the presumption remains in the case as a factor the court weighs; but the burden of persuasion never shifts, so the government must still prove dangerousness by clear and convincing evidence or risk of flight by a preponderance of the evidence.”

If the defendant rebuts the presumption of detention, that means that there is some reason for the defendant to be released under a condition that ensures his appearance in court and makes the community safer. However, the presumption is merely a presumption. It does not remove the burden on the judge to come to a determination based on the evidence provided. If the defendant rebuts the presumption of detention, the judge will still consider the defendant’s prior history.

How Often Does the Presumption of Detention lead to Mandatory Incarceration?

The presumption of detention does not lead to mandatory incarceration. Defendants who are charged with federal crimes that establish this presumption of detention can be released prior to trial and can be released after trial. Ultimately, the judge’s discretion governs on the matter of pretrial release, and judges in every federal district have the authority to release defendants under no conditions or under conditions such as house confinement and electronic monitoring.

What Must a Judge Find Before Ordering Federal Pretrial Detention?

To order pretrial detention, federal judges must make a specific finding on either the defendant’s perceived dangerousness or flight risk. If the judge considers the defendant’s perceived dangerousness, the government must provide clear and convincing evidence that the defendant possesses a characteristic or takes an action indicating a risk to community safety. If the judge considers the defendant’s perceived flight risk, the government must provide a preponderance of evidence to justify a denial of pretrial release. In either case, the government carries the burden of persuasion, and, in no circumstance, does the burden of persuasion shift to the defendant.

Does a Federal Indictment Provide Sufficient Grounds for Pretrial Detention?

While it is common for prosecutors to argue that an indictment itself is sufficient grounds for pretrial detention, this is not the case. In order for a grand jury to return an indictment, there only needs to be a finding of probable cause. This is a significantly lower standard of evidence than that which is required to justify pretrial detention.

What Factors Can a Federal Judge Weigh When Deciding to Deny Pretrial Release?

When deciding whether to grant pretrial release or order detention, judges must weigh the factors listed under 18 U.S.C. § 3142(g): - “(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1591, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device;

• (2) the weight of the evidence against the person;
• (3) the history and characteristics of the person, including character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
• (4) the nature and seriousness of the danger to any person or the community that would be posed by the person’s release.”

While the statutory language makes them seem equally important, some courts, including the Ninth Circuit, have described the weight of the evidence as the least important factor; other courts have rejected a hierarchy among the four factors.

What Requirements Are There for an Order of Federal Pretrial Detention?

Along with the government’s burden of proof, the procedure for granting a motion for detention imposes additional requirements on federal judges. The statute explicitly states that the court must find the reasons for its decision. In this regard, judges who order pretrial detention must write their decision to include “written findings of fact and a written statement of the reasons for the detention” and an explanation of “why the court believes that there is no condition or combination of conditions reasonably assured of that person’s appearance in court and the safety of any other person or the community.” If you are facing this situation, Spodek Law Group handles federal criminal defense matters nationwide, from offices in New York and Los Angeles.

What Actually Happens at a Federal Detention Hearing?

A federal defendant’s first appearance in district court typically includes consideration of detention or release, although the detention hearing may be continued or otherwise separately conducted. This takes place following his or her arrest. Under Federal Rule of Criminal Procedure 5, the hearing takes place without “unnecessary delay” after an arrest warrant is issued. Federal prosecutors can continue the hearing up to three days, while the defense can continue it up to five days.

There are no rules governing the types of evidence that can be admitted at a federal detention hearing. The Federal Rules of Evidence do not apply, and the judge has the discretion to admit any evidence that the defendant or the government offers.

The prosecutor often makes the case for detention by calling no witnesses, just explaining what will be presented in a later-stage hearing. The prosecutor will frequently refer to a case agent’s summary of a case investigation, and the case agent’s testimony, if the case agent is called as a witness, often consists of summaries of hearsay evidence.

The detention hearing is often conducted as if it were a summary hearing. In fact, it is only the prosecutor’s motion that often trigger the hearing; and, in many cases, the prosecutor’s request for a detention hearing is denied. In many cases, the request for a detention hearing is not based on dangerousness, as is common in violent crime cases, but on the defendant’s perceived flight risk, as is common in white-collar cases.

The law grants the defendant various rights during this hearing:

• The right to have an attorney present, and to appointed counsel if financially unable to retain one (statutory right under 18 U.S.C. § 3142(f))
• The right to cross-examine government witnesses (U.S. Const. amendments 5 & 6)
• The right to present testimony and call witnesses (U.S. Const. amendment 6)
• The right to testify and the privilege against self-incrimination (U.S. Const. amendments 5 & 6)

During the hearing, the defendant does not have to testify. If the defendant chooses to testify, his or her testimony does not imply waiver of the Fifth Amendment privilege against self-incrimination.

What are the Differences Between Pretrial Detention and Jail Time?

The term “jail time” is used broadly in the media and law enforcement, but it means very different things depending on when the person is in jail. Pretrial detention or detention before trial means the person is in jail waiting for their day in court. It does not mean that the person has already been found guilty of their crime. A jail sentence means a person has already been found guilty at trial and will serve time in jail pending a conviction sentence. In the white-collar case, pretrial detention is a possibility but does not mean the person will ultimately serve time in jail. In a civil case, jail time doesn’t exist.

How Does Federal Bond Work if There Is No Cash Bail?

In the federal justice system, the statute that deals with bail is 18 U.S.C. § 3142. In this statute, bail is not referred to as “bail,” but as a “bond.” Section 3142(c) mandates that a judge, when authorizing the pretrial release of a defendant, impose conditions that “reasonably assure” the defendant’s appearance in court, and not a person more restrictive than necessary. The statutory default is for defendants to be released on their own personal recognizance. If the judge decides that this is not possible, he or she then decides whether the defendant should be released on an unsecured or a secured bond.

Under an unsecured appearance bond, the defendant does not put up money. But, this bond establishes an enforceable liability to the federal government; and, if the defendant fails to appear in court, he or she can be ordered to pay the amount set by the bond. For the defendant, that means the bond is just a piece of paper without the obligation to put up money. For the government, it is a contractual obligation that it can enforce if the defendant fails to appear.

Under a secured appearance bond, the defendant must put up a certain amount of cash or collateral. Once this cash or collateral is posted, the defendant is then released. In a secured bond, the defendant’s liability is secured by the cash or collateral in the bond.

Who Can Provide Federal Surety Bonds?

Under a surety bond, a surety, a third party often a family member, pledges the surety’s own assets. This also functions as a security for the bond. If the defendant fails to appear in court, the surety will be held responsible. A bond company or an insurance company can also serve as a surety in federal court; however, commercial bail bonds companies are uncommon.

Can Federal Judges Jail Defendants Who Can’t Afford Bonds?

No. Under 18 U.S.C. § 3142(c)(2), judges are expressly prohibited from imposing financial conditions that result in detention. He or she must release the defendant on either an unsecured or a secured appearance bond, or deny bond and order detention on that basis. Instead of choosing between bond and detention, the court can impose a combination of financial and nonfinancial conditions. For example, a defendant could be released under house arrest and electronic monitoring for a nominal appearance bond. However, a combination of bonds will not allow pretrial detention, nor will denying a request for a bond permit pretrial detention, without an additional finding of risk to flight or dangerousness.

Can You Get Another Chance at Bail After Detention Is Ordered?

Under 18 U.S.C. § 3145, if a federal magistrate judge has ordered the pretrial detention of a defendant, the defendant can ask a federal district judge to review the detention decision.

The review is de novo and, as a result, the district judge owes the magistrate’s detention decision no deference. In other words, the judge has the opportunity to make a fresh decision. If the federal judge believes it is warranted, he or she can also hold a new hearing. The federal judge can also order the government to bring additional evidence and witnesses. This means that a defendant who gets a “no” answer to his or her request for bond from the magistrate judge may still be able to get a “yes” from the federal district judge.

What is the Difference Between a Review under § 3145 and a Request to Reopen a Detention Hearing under § 3142(f)?

Under 18 U.S.C. § 3142(f) and the Federal Rules of Criminal Procedure, a federal judge can also reopen a detention hearing on the grounds of “materially new information.” With this in mind, the distinction between a § 3145 review and a motion to reopen a detention hearing based on “materially new information” are as follows:

• Materially New Information: “A defendant can reopen a detention hearing to reconsider a decision based on materially new information if “the fact that such information was not previously known to the party requesting the hearing at the time of the hearing does not affect the reasonableness of the request.” In other words, the party asking to reopen has to demonstrate that the information he or she wants to use was previously unknown to them.
• The Right to Review: A review under § 3145 addresses whether a judge made a correct decision based on the record already in place. A request to reopen is based on new, undisclosed, or unavailable information that was not present in the record.

Ultimately, the judge will consider the defendant’s prior history in both instances, but the judge will also take a new or corrected hearing record into account when determining whether to grant the defendant’s request for a new hearing.

Does Filing a Request for Review Mean that Your Detention Hearing was Unjustified?

No. Filing a request for review of a detention order does not mean your detention was unjustified, and it does not prove that you should have been released. This means that you should not tell the federal judge that the prosecutor and federal prosecutor obtained your detention based on misleading or false information. Instead, your lawyer should focus on trying to convince the federal judge to reverse the magistrate’s decision by demonstrating your lack of dangerousness or flight risk.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.