Prosecutor training notes on bail and detention under 18 U.S.C. § 3142

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¶