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Chapter 7¶

Bail and Detention Issues¶

I.	The Bail Reform Act of 1984
II.	Release or Detention Pending Trial
II.A.	Generally
II.B.	Release on Personal Recognizance or Unsecured Appearance Bond
II.C.	Release on Conditions
II.C.1.	Generally
II.C.2.	Release on Secured Appearance Bond
II.C.3.	Release on Bail Bond with a Solvent Surety
II.D.	The Defendant's Failure to Appear
II.E.	Temporary Detention for Revocation of Conditional Release or Deportation
II.F.	Detention
II.F.1.	Generally
II.F.2.	Risk of Flight
II.F.3.	Dangerousness
II.G.	The Detention Hearing
II.G.1.	Hearing Procedures
II.G.2.	Criteria for Pretrial Release or Detention
II.G.3.	Content of Release or Detention Order
II.G.4.	Reopening the Detention Hearing

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II.H. Review of Release/Detention Order by District Judge, Court of Appeals¶

III. 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 criminal l 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 may “release” a defendant subject to a variety of restrictive conditions, including residence in a community treatment center. See §§ 3142(c)(1)(B)(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,” § 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 conditions, as respondent was, is “released.”¶

515 U.S. at 57 (citations omitted); see also 18 U.S.C § 3141(a) (“A¶

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judicial officer [i.e., federal magistrate e judge or district judge] . before whom an arrested person is brought shall order that such person be released or detained, pending [further] judicial proceedings, under this [Act].”) .¶

The 1984 Act completely superseded the Bail Reform Act of 1966 and fundamentally changed the law. “It transforme d preexisting practice in very significant ways, providing among other things 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). [FN1] 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.C. §3041, 3042, 3154, 3156, 3731, 3772, and 4 282; 28 U.S.C. § 636; Fed. R. Crim. P. 5, 15, 40, 46, and 54; and Fed. R. App. P. 9.¶

II. Release or Detention Pending Trial¶

A. Generally¶

A person arrested for a federal offense 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 things, “detain or conditionally release the defendant as provided by statute or in these rules.” Fed. R. Crim. P. 5(c). Rule 46, captioned “Release from Custody,” provides that “[e]ligibility for release prior to trial shall be in accordance with 18 U.S.C. §§ 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 recognition 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 under r subsection (d) of this section; or¶

(4) detained under subsection (e) of this section.¶

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18 U.S.C. § 3142(a).¶

In figuring out which option to pick k, the magistrate judge relies — at least in part — on the recommendation of the U.S. Pretrial l Services Agency. See 18 U.S.C. §§ 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) independent (though brief and necessarily cursory) investigation of the defendant’s residential, familial, and employment situations. The recommendation is usually 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 made e orally in open court because there was insufficient time for the Pretrial Services Officer to prepare a written report. These recommendations typically carry some 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 Officer early in the process to make sure that she has all of the available information 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 situation 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 proceedings [FN2] 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¶

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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)(B).¶

“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 commit 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)(B) 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 defendants 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 enough h to “reasonably assure the appearance of the person as required and[/or] the safety 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 order either one of two additional financial conditions: first, the court may order the defendant to execute a secured appearance bond and put up some property as the security; second, the court may order the defendant to execute a bail bond with a solvent surety.¶

If the defendant violates any condition of his pretrial release, he could be “subject to a revocation of release, a n order of detention, and a prosecution¶

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for contempt of court.” 18 U.S.C. § 3148(a).¶

2. Release on Secured Appearance Bond¶

A secured appearance bond, see 18 U.S.C. § 3142(c)(1)(B)(xi), is an unsecured appearance bond that requires 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 to as a “cash bond,” the defendant must deposit the “cash” with the clerk’s office 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] accept 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 the 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 property 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 inquire into the source of a large cash bond (a $100,000 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¶

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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 accept 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 Division 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. $$981, 982 or 21 U.S.C. $$853, 881.¶

3. Release on Bail Bond with h a Solvent Surety¶

A “bail bond with solvent sureties,” 18 U.S.C. § 3142(c)(1)(B)(xii), is the other harsher financial alternative 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.[FN4] The defendant “execute[s] a bail bond with [a ] solvent suret[y],” and the solvent surety “execute[s] 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 this 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 provided 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 undertakings 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 surety thereon appears to be qualified.¶

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Fed. R. Crim. P. 46(d). Similarly, the 1984 Act directs that a surety¶

shall provide the court with information regarding the value of the assets and liabilities of the surety if ot 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. § 3142(c)(1)(B) (xii).¶

In United States v. Nebbia, 357 F.2d 303 (2d Cir. 1966), the Second Circuit observed that a district court may reject a surety ”[i]f 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 bond 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. § 3146(d) (“judicial officer may … declare any property designate d [as bail] to be forfeited to the United States”). To be useful, the 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 arrested and dragged in by his surety[[FN6]] 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 judgment of default and execution may issue thereon.” Fed. R. Crim. P. 46(e)(3).¶

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. § 3201-3206 (relating to government’s “postjudgm ent remedies”). If the defendant reappears “[a]fter entry of such judgment, the court may remit it in whole or in part.” Fed. R. Crim. P. 46(e)(4). “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¶

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exonerated by a deposit of cash in the amount 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 prosecuted for the separate offense of bondjumping. See id. § 3146.¶

E. 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. $$ 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. $$ 3142(d)(1)(B), (2).

During the period of temporary detention, the AUSA must¶

notify the appropriate court, probation or parole official, or State or local law enforcement official, or the appropriate official of the Immigration and Naturalization Service. If the official fails or declines to take such person into custody during that period, such person shall be treated in accordance with the other provisions of this section, notwithstanding the applicability of other provisions of law governing release pending trial or deportation 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¶

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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. Generally¶

Although there is a general presumption in favor of pretrial release, the 1984 Act provides that the magistrate judge “shall” order that the defendant be detained pending trial¶

[i]f, after a hearing pursuant to t he provisions of [section 3142(f)], the [magistrate judge] finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.¶

18 U.S.C. § 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 the government is relying on, or that it is relying on both.¶

2. Risk of Flight¶

The 1984 Act authorizes the court to order pretrial detention if there is “a serious risk that the [defendant] will flee.” 18 U.S.C. § 3142(f)(2)(A). The government must establish risk of flight by a preponderance of the evidence. See, e.g., United States . Mercedes , __ F.3d __ , __ (2d Cir. 2001) (“The government retains the ultimate burden of persuasion by the lesser standard of a preponderance of 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 for pretrial detention, the government bears the burden of showing by a preponderance of t he evidence that the defendant poses a flight risk, and by clear and convincing evidence that the defendant poses a danger to the community.”); see also United States . Hazime, 762 F.2d 34, 37 (6th Cir. 1985) (“Nor has the government distinguished between flight and dangerousness, although as we read section 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¶

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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 Drug 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 boundaries] of title 18 of the United States Code.¶

18 U.S.C. § 3142(e).¶

The principal risk-of-flight considerations are whether the def endant (1) has substantial ties to the local community (employment, spouse, children, ownership of business, real estate, or ot her nonportable assets, etc.); (2) has failed to appear in court in another criminal 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 criminal 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 behavior). See 18 U.S.C. § 3142(g).¶

3. Dangerous ness¶

The 1984 Act authorizes the court to order pretrial detention on the basis of dangerousness if (1) the defendant is charged with a “crime of violence,” [FN7] 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. §§ 3142(e), (f). The government must establish the defendant’s dangerousness “by clear and convincing evidence.” Id. § 3142(f); see also, e.g., United States. Hazime, 762 F.2d 34, 37 (6th Cir. 1985) (“Nor h as the government distinguished between flight and dangerou sness, although as we read section 3142(f), the clear and convincing standar d applies only to the latter.”).¶

The 1984 Act also authorizes the court to order pretrial detention in any case if there is “a serious risk that such person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prosec tive witness or juror.” 18 U.S.C. § 3142(f)(2)(B).¶

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The Act creates a rebuttable presumption in favor of detention based on dangerousness in two situations. The first is when the judicial officer finds that there is probable cause to believe 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.C . 801 et seq.), the Controlled Substances Import and Export Act (21 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 U.S.C. § 3142(e).¶

The second situation giving rise to 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 convicted of committing another serious crime while on pretrial release [i.e., a federal or state “crime of violence,” capital offense, or drug offense carrying a maximum term of imprisonment of 10 years or more]. Such a history of pre-trial criminality is, absent mitigating information, a rational basis for concluding that a defendant poses a significant threat to community safety and that he cannot be trusted to conform to the requirements 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. § 3142(e). This rebuttable presumption does not arise, however, if the period beginning with the date of defendant’s prior conviction or the date of his release from imprisonment for that conviction, whichever is later, and the date of the detention hearing exceeds five years. Id. § 3142(e)(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. §§ 3142(e), (f).¶

1. Hearing Proc edures¶

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The 1984 Act requires that the detention hearing be held “immediately upon the person’s first appearance before the judicial officer,” id. § 3142(f), but it also entitles the government 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). “[F]or good cause,” the magi strate judge may grant either party a longer continuance. Id. “During [the] continuance, [the defendant] shall be detained …” *Id.[FN8]} 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 the AUSA makes a factual proffer establishing a basis for detention authorized 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 profer, 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 [a detention] hearing.” 18 U.S.C. § 3142(f). Thus, hearsay is admissible. See also Fed. R. Evid. 1101(d)(3) (FRE do not apply to “proceedings with respect to release on bail or otherwise”).¶

With respect to due process, the 1984 Act provides:¶

At the hearing, such person has the right to be represented by counsel, and, if financially unable to obtain adequate representation, to have counsel appointed. The person shall be afforded an opportunity to testify, to present witnesses, to c ross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise.¶

18 U.S.C. § 3142(f).¶

The government’s presentation of evidence 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(g)(3), 46(i). This means that each party must disclose to the other party the prior statements of its witnesses, if¶

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any. Although a witness’s prior statemen ts 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 pretrial release or detention. Section 3142(g) provides that the court¶

shall … take into account t he available information concerning —¶

(1) The nature and circumstances of the offense charged, including whether the offense is a crime of violence 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 the 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. § 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¶

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sufficiently clear and specific to serve as a guide for the person’s conduct.” 18·U.S.C. § 3142(h)(1).¶

If, instead, the court orders that the defendant be detained pending trial, the order “shall … include write n findings of fact and a written statement of the reasons for the detentio n.” Id. § 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 Detection Hearing¶

A detention¶

hearing may be reopened before or after a determination by the judicial officer, at any time before trial if the judicial officer finds that information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue whether there are conditions of release that will reasonably assure the appearance of such person as required and the safety of any other person and the community.¶

18 U.S.C. § 3142(f). “The judicial officer may at an y time amend the order [of release on conditions] to impose additional or different conditions.” Id. § 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. § 636(a)(2) (conferring on magistrate judge s “power to … issue orders pursuant to section 3142 of title 18 concerning release or detention of persons pending trial”). A magistrate judge’s order of pretrial release or detention must be reviewed by a district judge if either r party moves for such review. See 18 U.S.C. §§ 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; and (2) the [defendant] may file … a motion for amendment of the conditions of release.” 18 U.S.C. § 3145(a). If the magistrate judge enters an order of detention, “the [defendant] may file a motion for revocation or amendment of the order” Id. § 3145(b). A motion filed by the government t or the defendant “shall be¶

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determined promptly.” Id.¶

If the AUSA believes that a magistrate 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 reviewer 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 the government has the right to have a magistrate judge’s order of release reviewed by a district judge, see 18 U.S.C. § 3145(a), implies that the magistrate judge’s order of release should be stayed pending review of the order by a district judge. In United States Huckabay, 707 F. Supp. 35 (E.D. Pa. 1989), the magistrate judge ordered pretrial release but detain ed the defendant pending review by a district judge, explaining that “‘an appeal of the magistrate’s release order after a motion for detention has been filed at the initial appearance, by statutory implication, authorizes the judicial 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 “[r]equiring release pending review by the district court could frustrate the very 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 judge.¶

The AUSA should make sure that the district judge has a copy of the audio tape from the hearing before the magistrate judge, a copy of the magistrate judge’s order of release, and a copy of the report of the Pretrial Services Agency. The government’s motion for review of the magistrate judge’s order “shall be determined promptly” by the district judge. 18 U.S.C. § 3145(a). Some district judges will conduct the hearing 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 (after obtaining the approval of the Criminal Chief). Some judges will not conduct the ir 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 rely 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 prepared 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¶

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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 order 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 Solicitor General of the United States. “The appeal should be determined promptly.” 18 U.S.C. § 3145(c); see also Fed. R. App. P. 9(a)(2).¶

III. Release or Detention Pending Imposition 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 officer 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 judicial officer makes such a finding, such judicial officer shall order the re lease of the person in accordance with section 3142(b) or (c).¶

18 U.S.C. § 3143(a)(1). In practice, the government, at least in this district, often permits a convicted defendant to remain free pending the imposition of sentence or the execution of sentence following its imposition.[FN10] This generally occurs in cases where a defendant on pretrial release pleads guilty, or where a defenda nt on pretrial release is convicted at trial and the AUSA is not really concerne d about the risk of flight or danger to others posed by the defendant. Of course , the AUSA should insist that the court comply with Section 3143(a) when circumst ances indicate that detention pending sentencing or service of sentence would be prudent.¶

If a defendant is convicted of a sp ecified serious offense, the presumption of detention is even stronger. The speci fied offenses are “crime[s] of violence,” capital offenses, and drug off enses carrying a maximum term of imprisonment of 10 years or more. 18 U.S .C. § 3143(a)(2). Such a defendant “shall”¶

be detained unless —¶

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• (A)(i) the judicial officer finds ther e is a substantial likelihood that a motion for acquit tal or new trial will be granted; or

(ii) an attorney for the Gove rnment has recommended that no sentence of imprisonment be imposed on the person; and¶

(B) the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community.¶

18 U.S.C. § 3143(a)(2).¶

IV. Release or Detention Pending Appeal¶

The 1984 Act sets forth a presumpti on of detention when a defendant who has been sentenced to a term of imprisonment files an appeal. See 18 U.S.C. § 3143(b). Ordinarily, the presumption is rebuttable, and the burden is on the defendant to establish by clear and c onvincing evidence that he should be released pending appeal. See id. § 3143(b)(1) (defendant must show that he is not likely to flee or pose a danger to any other person or the community, and that the appeal will likely result in the reversal of his conviction or the vacation of his prison term). If, however, the defendant has been convicted of and sentenced for a “c rime of violence,” a capital offense, or a drug offense carrying a maximum term of imprisonment of 10 years or more, the presumption of detention is irrebuttable. See id. § 3143(b)(2).¶

Release or Detention of Arrestees Other than Ordinary Defendants¶

A. Probationers and Supervised Releasees¶

A defendant arrested for a violation of probation or supervised release “may be released pursuant to Rule 46(c) p ending the revocation hearing.” Fed. R. Crim. P. 32.1(a)(1). Rule 46(c) says that release or detention “shall be in accordance with 18 U.S.C. § 3143.” Fed. R. Crim. P. 46(c). Section 3143(a) governs the release or detention of convicted defendants awaiting the imposition or execution of sentence. See supra pp. 17-18.¶

B. Material Witnesses¶

A provision of the 1984 Act deals with material witnesses, see 18¶

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U. S.C. § 3144, who are individuals whose presence at trial “may become impracticable to secure … by subpoena.” Many material witnesses are aliens whose whereabouts at the time of trial will be a foreign country or unknown. Basically, a material witness may be arre sted on a material witness complaint and warrant issued by the court, and then det ained until his testimony can be secured by deposition. See id.; Fed. R. Crim. P. 15(a); see also, e.g., Torres-Ruiz United States District Court , 120 F.3d 933, 934-36 (9th Cir. 1997) (per curiam).¶

C. Aliens¶

Aliens may be subject to “temporary detention” for up to 10 days to allow for the notification of INS and the defen dant’s transfer to INS for administrative deportation proceedings. See 18 U.S.C. §§ 3142(d)(1)(B), (2); supra p. 9.¶

VI. Additional Resources¶

• Annual Review of Criminal Procedure (Part II: Preliminary Proceedings (Bail), Georgetown Law Journal.

• 27 Moore’s Federal Practice ch . 646 (3d ed., looseleaf service updated annually).

• 3A Charles Alan Wright, Federa l Practice and Procedure §§ 761-778 (2d ed. Supp. 2001).

• David Marshall Nissman, Proving Federal Crimes ch. 17 (2001).

• 3 Wayne R. LaFave et al., Criminal Procedure ch. 12 (2d ed. 1999).

FN 1. Still, under the 1966 Act district court its effectively ordered pretrial detention based on dangerousness by order ing pretrial release with bail set in an amount clearly beyond the defendant ‘s means (e.g., $ 500,000), a practice specifically prohibited by the 1 984 Act. See 18 U.S.C. § 3142(c)(2) (“The judicial officer may not impose a financial condition that results in the pretrial de tention of the person.”).¶

FN 2. “personal recognizance. The release of a defendant in a criminal case in which the court takes the defendant’s word that he or she will appear for a scheduled matter or when told to appear.” Black’s Law¶

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Dictionary 1278 (Bryan A. Garner ed., 7th ed. 1999). “release on recognizance. The pretrial release of an arrested per son who promises, usu. in writing but without supplying a s urety or posting bond, to appear for trial at a later date. — Also termed release on own recognizance.” Id. at 1292.¶

FN 3. If real property is offered as collater al, the AUSA must be satisfied based on a review of deeds, mortgages, li ens, and appraisals that the owner (whether the defendant or someone else) h as sufficient equity in the property to back the amount of the bond. The office’s Asset Forfeiture Unit can assist the AUSA in making this inquiry. The AUSA should also thoroughly examine or cross-examine anyone with an ownership interest in the property about several matters, including her will ingness to lose her interest in the property if the defendant fails to appear; her knowledge of the defendant’s criminal activity; her involvement with t he defendant in criminal activity, if any, and her own criminal record and a ctivity, if any; and her knowledge of the existence of assets owned by the defendant from which she might expect repayment in the event of forfeitu re of collateral. Such questioning may lead to surprising and helpful information, especially when defense counsel fails to thoroughly prepare the witness.¶

In the rare case where the real proPERTY in question is sufficiently valuable and “clean” to serve as collater al, the AUSA should simply agree with defense counsel to jointly seek the appro val of the presiding district judge if the charges are contained in a complaint, or the approval of the district judge to whom the case was assigned if the char ges are contained in an indictment.¶

FN 4. “surety (shuur[-p]-tee). 1. A person who is primarily liab le for the payment of another’s debt or the performance of another’s obligation… .” Black’s Law Dictionary 1278 (Bryan A. Gar ner ed., 7th ed. 1999). A surety can be an individual or a corporation. In this context, a surety is often referred to as a “bail bondsman,” and the formal legal term is “bailer.”¶

See id. at 136. Another term used is “bail bond ing agency.”¶

See E.D. Local Crim. R. 46.1(b)(3) (“Court personnel shall not recommend specific bail bonding agencies. ”)¶

FN 5. “bail bond. A bond given to a court by a criminal d efendant’s surety, guaranteeing that the defendant will duly appear in court in the future; a bond given to obtain a prisoner ‘s release and to secure the prisoner’s appearance to answer legal process. * The effect of the release on bail bond is to transfer custody of the prisoner from the officers of the law to the custody of the surety on the bail bond, whose undertaking is to redeliver the defendant to legal custody at the time and place appointed in the bond.”¶

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Black’s Law Dictionary 169 (Bryan A. Garn er ed., 7th ed. 1999).¶

FN 6. The 1984 Act empowers sureties to arres t a fugitive defendant.¶

See 18 U.S.C. § 3149 (“A person charged with an offense, who is released upon the execution of an appearance bond with a surety, may be arrested by the surety, and if so arreste d, shall be delivered promptly to a United States marshal and brought before a judicial officer.”).¶

FN 7. “Crime of violence” is defined at 18 U. S.C. § 3156(a)(4). The circuits are split as to whether the crime of being a felon in possession of a firearm, id. § 922(g)(1), is a “crime of violence” under the 1984 Act. Compare United States Dillard , 214 F.3d 88 (2d Cir. 2000) (FIP “crime of violence”) with United States Lane, 252 F.3d 905 (7th Cir. 2001) (FIP not “crime of violence”), and United States Singleton , 182 F.3d 7 (D.C. Cir. 1999) (same). The Sixth Circuit has not yet addressed the issue in a published opinion.¶

FN 8. This brief detention is often referred to as “temporary detention,” which is a term of art in the 1984 Act, see 18 U.S.C. § 3142(d) (caption), that actually refers to an entirely different kind of detention.¶

See id. (providing for detention of up to 10 day s of either a defendant who is on release in connection with another criminal case or a defendant who is an alien, and who “may f lee or pose a danger to any other person or the community”).¶

FN 9. Although “[t]he Sixth Circuit has not a ddressed this question,” United States . Yamini , 91 F. Supp. 2d 1125, 1127 (S.D. Ohio 20 00), the great weight of authority holds that the district judge’s standard of review of a magistrate judge’s order of p retrial release or detention is de novo.. See United States . Leon , 766 F.2d 77, 80 (2d Cir. 1985); United States . Delker , 757 F.2d 1390, 1394 (3d Cir.1985); United States . Clark , 865 F.2d 1433, 1436 (4th Cir.1989); United States . Fortna, 769 F.2d 243, 251 (5th Cir. 1985); United States . Maull, 773 F.2d 1479, 1481 -82 (8th Cir. 1985) (en banc); United States . Hurtado, 779 F.2d 1467, 1481 (11th Cir.1985). I n Yamini, a Sixth Circuit district judge canvasse d the case law and concluded:¶

The district court … should not defer to the magistrate judge’s ultimate conclusion, even if “the whole process [in the district court] … does not] start from scratch, a s if the proceedings before the magistrate had never occurred.” Ra ther, “[t]he point is that the district court is to make its own ‘de novo’ determination of facts, whether¶

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different from or an adoption of the e findings of the magistrate.” Thus, while the district courts are not r equired to engage in a plenary procedure pursuant to § 3145(b), the circuit courts that have addressed the standard of review ag ree that some independent review is required.¶

91 F. Supp. 2d at 1128 (citations omitted, brackets in original).¶

FN 10. The imposition of sentence occurs at the e sentencing hearing. The execution of sentence, by contrast, “comm ences on the date the defendant is received in custody awaiting transportati on to, or arrives voluntarily to commence service of sentence at, the offi cial detention [read penal or correctional] facility at which the sente nce is to be served.” 18 U.S.C. § 3585(a).¶

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