A Primer On Pre-Trial Detention Hearings In Federal Criminal Cases

New Jersey Criminal Lawyers Schwartz Posnock

A Federal Criminal Law Article

By NJ Criminal lawyer, David A. Schwartz

In federal criminal proceedings, release and detention determinations of individuals charged with a federal offense are governed by the Bail Reform Act of 1984 (“the Act”). The full text of the Act can be found at 18 U.S.C. section 3141, et seq.

18 U.S.C. Section 3141(a) gives judicial officers the authority to make determinations regarding bail in all stages of a criminal case, up to and including the trial stage. Detention determinations are typically made by United States Magistrate Judges.

United States Pre-Trail Services will conduct a background investigation of your client for the purpose of preparing a report and recommendation to Court for the determination of the conditions of an individual’s release. The US Pretrial Service’s report is a valuable source of information relating to the background and community ties of your client. It is important to make sure that all of the positive information about your client is provided to US Pretrial Services and that you make every effort to provide verification of all such information. Be sure to provide Pretrial Services with information relating to your client’s community contacts, work history, property ownership, bank information, asset information, and relevant health information.

18 U.S.C. Section 3142 defines the categories of “release and detention” a defendant may be subject to and contains the rules under which the court and parties must proceed relating to bail matters. In that regard, section 3142(a) states “that upon the appearance before a judicial officer of a person charged with an offense, the judicial officer shall make a determination regarding bail status of the defendant, and shall enter an order designating a defendant’s custodial status” under one of four categories:

1. Released on personal recognizance or upon execution of an unsecured appearance bond;

2. Released on a condition or combination of conditions as defined by Section 31429(c);

3. Temporarily detained to permit revocation of conditional release, deportation, or exclusion under Section 3142(d); or

4. Detained pursuant to the provisions of Section 3142(e).

Release on Personal Recognizance/Unsecured Appearance Bond:

18 U.S.C. Section 3142(b) requires a judicial officer to order the pretrial release of a defendant on “personal recognizance” or upon the defendant’s execution of an “unsecured appearance bond” in an amount specified by the court. A Section 3142(b) release order must be conditioned on a defendant’s agreement to “not commit a Federal, State, or local crime during the period of release.” If, however, the judicial officer determines that the release of a defendant on “personal recognizance” or “unsecured appearance bond” would not “reasonably assure” the defendant’s appearance at court proceedings, or will “endanger the safety of any other person or the community”, then there is no obligation to order release. In this event, the judicial officer must follow the provisions of 18U.S.C. Section 3142(c).

Release On Conditions:

Once a judicial officer has made the determination that a defendant does not qualify for release under Section 3142(b), then the judicial officer must follow Section 3142(c). When structuring the release of a defendant under Section 3142(c), the judicial officer must order that the defendant “not commit a Federal, State, or Local crime during the period of release. In addition, the judicial officer must impose the least restrictive condition or combination of conditions necessary to “reasonably assure” the defendant’s appearance as required and to “reasonably assure” the safety of any person and the community”. An illustrative list of conditions is set forth in § 3142(c)(1)(B)(i through xiv) which gives the judicial officer authority to impose conditions not specifically enumerated so long as they serve the same purposes set out in § 3142(c)(1)(B).

It is important to note that “Section 3142 speaks only of conditions that will “reasonably” assure appearance, not guarantee it”. A judicial officer is not permitted to impose any financial conditions of release which result in the pretrial detention of a defendant. The conditions of release imposed on a defendant under a Section 3142(c) order may be amended at any time to impose additional or different conditions of release. 18 U.S.C. § 3142(c)(3).

Factors Judicial Officer Must Take Into Consideration Regarding A Defendant’s Eligibility For Release:

When making a determination regarding the eligibility of a defendant for pretrial release (whether personal recognizance , unsecured appearance bond, or release on conditions), the judicial officer must consider the factors listed in Section 3142(g), including:
the nature and circumstances of the offense (in particular whether it is an offense which is violent or nonviolent in nature, or involves narcotics); the weight of the evidence against the person;
the history and characteristics of the person, including their physical and mental condition, family ties, employment, financial resources, length of time in the community, community ties, past conduct history relating to drug or alcohol abuse, criminal history, record of court appearances; and whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and the nature and seriousness of the danger to any person or to the community that would be posed by the person’s release.

In addition to considering evidence of the factors set forth above, the court may upon its own motion, or upon the motion of the government attorney, conduct an inquiry into the source of any property to be designated for potential forfeiture or offered as collateral to secure any bond. 18 U.S.C. § 3142(g)(4). If the court determines that any such collateral or property, because of its source, will not reasonably assure the appearance of the defendant as required, the designation or use of the collateral or property as security for a bond shall be refused. 18 U.S.C. § 3142(g)(4).

Considerations Regarding Temporary Detention Orders:

18 USC Section 3142(d) requires a judicial officer to enter an order of temporary detention in cases where a factual determination is made that: the defendant: is, and was at the time the offense was committed, on release pending trial for a felony under Federal, State, or local law; release pending imposition or execution of sentence, appeal of sentence or conviction, or completion of sentence, for any offense under Federal, State, or local law; or probation or parole for any offense under Federal, State, or local law; OR is not a citizen of the United States or lawfully admitted for permanent residence, as defined in section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(2); AND the defendant may flee or pose a danger to any other person or the community.
18 U.S.C. § 3142(d).

At the time the 10 day order is entered, the judicial officer must direct the attorney for the government to notify the appropriate “authorities” of the defendant’s status. In the event that the “notified authority” declines to take the defendant into custody, then the judicial officer must make an independent determination regarding bail under the provisions of Sections 3142(b), 3142(c), and 3142(e)(if the government moves for detention).

Pretrial Motions for Detention: The Bail Reform Act requires the pretrial detention of a defendant only if a judicial officer determines that no conditions or combination of conditions exist which will “reasonably assure the appearance of the person.”

Cases Which Qualify For Detention Hearings: 18 USC Section 3142(f) defines specific situations under which a judicial officer may hold a detention hearing. Those situations are as follows:

Upon the motion of the government attorney, in a case that involves:

1. a crime of violence; an offense with a maximum sentence of life imprisonment or death;
2. an offense for which the maximum term of imprisonment is 10 or more years as prescribed by the Controlled Substances Act;
3. or any felony if the person has been convicted of two or more offenses described in paragraphs (1) through (3) or comparable state offenses.

Upon the motion of the government attorney or on the court’s own motion, in a case that involves: (i) a serious risk of flight; (ii) or a serious risk that the defendant will obstruct justice or (iii) threaten a witness.

18 U.S.C. Section 3142(f) “does not authorize a detention hearing in the absence of one of the six situations set forth above.” Thus, the government may not request a detention hearing only on the allegations of danger to the community or another person. The “government is required to demonstrate that there are grounds for a hearing under the specific provisions of either 3142(f)(1) or (f)(2).” “When there exists one or more grounds for holding a hearing under those provisions, the government may proceed on the theory of risk of flight and/or danger to the community or any other person.” Section 3142(f) may fairly be interpreted as authorizing pretrial detention “only upon proof of a likelihood of flight, a threatened obstruction of justice or a danger of recidivism in one or more of the crimes actually specified by the bail statute.”

When the court has determined that a detention hearing is warranted, it may consider evidence relating to a defendant’s danger to the community. Detention considerations are then guided by the factors set forth in 18 U.S.C. § 3142(g), and the specific consideration of “the nature and seriousness of the danger to any person or the community that would be posed by the person’s release.” 18 U.S.C. § 3142(g)(4). Accordingly, the government must first prove one or more of the grounds listed in 3142(f)(1) or (2) as a prerequisite to the court considering the factor of danger to the community whether there exist appropriate conditions of release in the case.

Timing Of Detention Hearing: 18USC Section 3142(f)(2) contains specific guidelines regarding the timing of detention hearings. Ideally, the hearing is supposed to take place immediately upon the defendant’s first appearance before the judicial officer. However, given the fact that a defendant may lack representation at this initial appearance, the detention hearing is not likely to go forward unless the court has made other arrangements for the defendant to be represented by counsel. Section 3142(f)(2) also permits a 3 day delay of the detention hearing upon the motion of the government attorney. A defendant may request a continuance of up to 5 days under this section, for good cause shown.

Detention Hearings May Proceed By Way of Proffer; Rules of Evidence Do Not Apply: Detention hearings are an informal proceeding, and the evidence presented is not governed by the Federal Rules of Evidence.

Application of the Rebuttable Presumption: 18 USC Section 3142(e) contains three categories of criminal offenses that give rise to a rebuttable presumption that “no condition or combination of conditions” will (1) “reasonably assure” the safety of any other person and the community if the defendant is released; or (2) “reasonably assure” the appearance of the defendant as required and “reasonably assure” the safety of any other person and the community if the defendant is released.

These three categories are:

I. A judicial officer finds that: the person has been convicted of a Federal offense that is described in subsection (f)(1) , or of a State or local offense that would have been an offense described in subsection (f)(1) if a circumstance giving rise to Federal jurisdiction had existed; the offense described in paragraph one was committed while the person was on release pending trial for a Federal, State, or local offense; and a period of not more than five years has elapsed since the date of conviction, or the release of the person from imprisonment, for the offense described in paragraph (1) , whichever is later.
18 U.S.C. § 3142(e)(1)-(3).

II. A judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of 10 years or more is prescribed.
III. A judicial officer finds that there is probable cause to believe that the person committed an offense under 18 U.S.C. § 924(c). 18 U.S.C. § 3142(e).

The rebuttable presumption relating only to the safety of any other person and the community pertains to those cases meeting the criteria of Section 3142(e)(1)-(3). It is important to note, that all 3 of these conditions must be met for the proper application of the rebuttable presumption of “danger to the community.”

The rebuttable presumption relating to both “risk of flight” and “danger to the community” pertains to those cases where the judicial officer finds there is probable cause to believe that the defendant committed: (1) a drug offense (as defined under Title 21) when the maximum term of imprisonment is 10 years or more; or (2) an offense under 18 USC Section 924(c). 18 U.S.C. § 3142(e).

The indictment alone is sufficient to raise the rebuttable presumption that no condition (or combination of conditions) will ensure the defendant’s reappearance for trial and that no conditions of release will ensure the safety of the community

Burden of Proof At Detention Hearing: In a pretrial detention hearing, the government’s burden is to establish by clear and convincing evidence that no conditions of release will reasonably assure the safety of the community.

The standard is different when the issue is whether any conditions of release will reasonably assure the defendant’s attendance at trial (risk of flight); the government need only prove that there are no such conditions by a “preponderance of the evidence.” It is not necessary that the government prove both flight risk and danger to the community to warrant detention.

Bail Application Following Pretrial Detention: When a defendant moves for release on bail following pretrial detention, the court must consider three factors: “(1) the length of the pretrial detention; (2) the extent to which the prosecution is responsible for the delay of the trial; and (3) the strength of the evidence upon which the pretrial detention was based.

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