BAIL [PTS Recommends Detention?] # Presumption 18 U.S.C. § 3142(c) & (f) Rebuttable Presumption for detention: [i] drug crimes; [ii] § 924(c) violations; and [iii] previously convicted of a crime of violence # Strength of Case confession, taped recordings, statements pre-conviction: § 3142(g) post-conviction: § 3143 ## $$\text{§ 3142(g) Factors}$$ 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 "preponderance" - use of alias - lack of ties to community - citizenship - SSNs / DOBs - bench warrants -- check returns - mandatory minimums if applicable / rough guidelines calculation Danger to Community "clear and convincing" - prior convictions - violence / drugs - use of weapons - instant offense - economic danger to community - vulnerable victim -- child, elderly, handicap 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 appointed/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 il Arguments §3142(g)(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 necessarily entitled to hearing; but prob could argue both flight & danger
outtable presump:Drug Crimes; §924(c) violation; Prev crime of violence conv
r detention:
standard of proof: Safety burden is "clear and convincing" Flight burden is "preponderance" imately, det. is: Guns, Drugs, Prior convictions showing little regard for court instructions; Aliens subject to deportation; Can't identify D; D on probation. Deal: If bail ordered, gov’t disagrees, 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. ) Case: If arrested in different district and gets bail (but you want detention), go to Part I Judge here; ask other AUSA to get a stay. Or get a stay from Part I Judge here pending removal to this district nged circs: Can’t appeal DCT’s decision, but can re-open issue if new evidence, or D lost suppression motion, 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 crime, or clear & convincing evidence that D viol’d term or condition. Judge must determine that D unlikely to abide by cond’s or no reas’ble cond. will assure D’s presence. Rebuttable presumption for detention where committed crime. post-plea: Burden shifts as to both flight & danger. §3145: if exceptional reasons D kept out on bail for drug or violence case which otherwise would 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 witness, don't approve; Can ask ?'s about crime b/c can't co-sign & be a witness or doesn't have moral suasion