DOJ manual chapter on bail and detention in federal narcotics prosecutions

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Chapter 26¶

Bail and Detention¶

Barry Wiegand¶

Assistant United States Attorney¶

District of District of Columbia¶

26. 1 Introduction

27. 2 Detention for serious drug crimes

28. 3 First appearance

29. 4 Standard of proof

30. 5 Detention hearing

31. 6 Rebuttable presumptions

32. 7 Temporary detention

33. 8 Other bases for denying bail

34. 9 Nebbia hearings

35. 10 Resources

36. 11 Acknowledgments

26.1 Introduction¶

Whether a defendant is detained without bail pending trial often profoundly affects the course of a drug prosecution. For example, pretrial detention or release influences whether a defendant decides to co-operate with the government, as well as the calculation of whether to plead guilty or go to trial. Moreover, Congress has paid special attention to serious drug offenders in the law of pretrial detention, placing much stricter limitations on¶

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their right to bail, and presuming that most should be detained pending trial.¶

Federal law of pretrial detention, release, and bail is set forth in the Bail Reform Act of 1984, as amended, 18 U.S.C. §§ 3141-3156. The most important provisions, which govern when a defendant may be held without bail pending trial, are set forth in § 3142(e) (detention), § 3142(f) (detention hearing), and § 3142(g) (factors to be considered in determining whether there are conditions of release that will reasonably assure the appearance of the defendant and the safety of the community).¶

26.2 Detention for serious drug crimes¶

westlaw query 18 +S 3142(F)(1)(C)¶

Nearly all defendants charged with serious drug crimes may be detained pending trial under 18 U.S.C. § 3142(f)(1)(C), which permits the government to move for the pretrial detention of any defendant charged with a federal drug crime for which the maximum penalty is more than ten years in prison. In practice, this means that any defendant is subject to pretrial detention if charged with the manufacture, distribution, or possession with intent to distribute of heroin, cocaine powder, crack cocaine base, methamphetamine, phencyclidine, or any other drug classified as a Schedule I or Schedule II controlled substance, as these crimes all have maximum penalties of 20 years in prison under 21 U.S.C. § 841(b)(1)(C) and § 960(b)(3). Defendants conspiring or attempting to commit these offenses are punishable to the same extent under 21 U.S.C. § 846 and § 963, and similarly may be held without bail pending trial under § 3142(f).¶

• Maximum penalty. Section 3142(f)(1)(C) specifically refers to violations of “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.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. $ \§1901 $ et seq.).” Under this section, it is the maximum penalty that must be ten years or more, not whether the charged offense has a mandatory-minimum penalty of ten years or more.

• Marijuana. Defendants charged with distribution or possession with intent to

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distribute marijuana are not subject to pretrial detention unless the amount involved is greater than 50 kilograms, see 21 U.S.C. § 841(b)(1)(D) (less than 50 kilograms of marijuana subject to sentence of not more than five years), or the defendant is charged with a “schoolhouse,” “playground,” or “public housing” offense, in violation of 21 U.S.C. § 860, under which such violations are subject to twice the maximum punishment authorized under § 841(b).¶

• PCP. Most statute books list phencyclidine (PCP) under Schedule III of the Controlled Substances Act, where it originally was classified. However, PCP has been reclassified as a Schedule II drug, subject to maximum penalties of 20 years in prison under 21 U.S.C. $ \§841(b)(1)(C) $ and $ \§960(b)(3) $ , so that almost any felony federal offense involving PCP would be a “detainable” crime. See 43 Fed. Reg. 3359-60 (January 23, 1978) (Final rule transferring phencyclidine to Schedule II from Schedule III, effective February 24, 1978).

26.3 First appearance¶

A motion for pretrial detention is to be made at a defendant’s first appearance, which normally is presentment on a complaint in a case founded upon an arrest on probable cause, or an arraignment on a grand jury original indictment. Although the statute contemplates an immediate hearing on the detention motion, see 18 U.S.C. § 3142(f), in common practice, the government is accorded up to three working days after the first appearance for the hearing to be held under the continuance provision of § 3142(f). During this period, the defendant must be held without bond. The “shall” language of the § 3142(f) indicates that the court must grant a motion for a hearing on the motion for pretrial detention, and lacks discretion to deny it outright.¶

Normally, when a defendant is arrested in a district other than where the prosecution will occur, the first appearance is deemed to take place when the defendant first appears in the prosecuting district. However, this question is not free from doubt. See United States . Melendez-Carrion, 790 F.2d 984, 990 (2d Cir. 1986) (detention hearing may be held in first appearance in charging district where defendant is arrested in another district); United States . Dominguez, 783 F.2d 702, 704 (7th Cir. 1986) (government was¶

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not required to request detention in district where defendants were arrested and initially appeared, but could do so when defendants first appeared in charging district; “first appearance” for purposes of § 3142(f) is not necessarily the same as “initial appearance”).¶

Cf. United States Evans, 62 F.3d 1233, 1235-38 (9th Cir. 1995) (while defendant was entitled to detention hearing before magistrate in arresting district, only district court in charging district had authority to review the order).¶

Practice note. At “removal” proceedings, pursuant to Fed. R. Crim. P. Rule 40, or any other similar hearing following an arrest outside the prosecuting district, the prosecutor should make clear on the record that detention will be sought and take any other necessary steps to ensure that the defense has no colorable basis later to claim that there was a failure to meet the “first appearance” provision of § 3142(f). See generally United States Valenzuela-Verdigo, 815 F.2d 1011, 1013-16 (5th Cir. 1987) (detention hearing, although not held until 18 days after arrest, was not untimely where prosecutor in arresting district had requested pretrial detention and hearing date was set but subsequently delayed with apparent agreement of parties due to transfer of prisoner to charging district and schedule of defendant’s counsel). However, failure to comply with the “first appearance” provision does not necessarily bar the court from detaining the defendant after the detention hearing. See United States Montalvo-Murillo, 495 U.S. 711, 716-17 (1990) (“Neither the timing requirements nor any other part of the Act can be read to require, or even suggest, that a timing error must result in release of a person who should otherwise be detained.”). See also United States Moncada-Pelaez, 810 F.2d 1008, 1009-10 (11th Cir. 1987) (where defendant was temporarily detained under § 3142(d), hearing could be held at any time within the 10-day temporary detention period).¶

26.4 Standard of proof¶

westlaw query 18 +S 3142(E) /P SAFETY OR APPEARANCE¶

The judge deciding a pretrial detention motion must order a defendant held without bail if it is shown that no condition or combination of conditions of release will reasonably¶

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assure either the defendant’s appearance in court or the safety of the community or any individual. 18 U.S.C. § 3142(e). In other words, the key detention issue is whether a defendant’s release poses such a danger to the community—or any specific person, such as a witness—or such a risk of flight, that he should be held in jail pending trial.¶

• Safety. Section 3142(f) provides that the government must prove “by clear and convincing evidence” that no conditions of release will assure the safety of the community or any individual.

• Appearance. Circuit Courts of Appeals have held the government must prove by a preponderance of the evidence that no conditions of release will assure the defendant’s appearance in court as required. See, e.g., United States Cisneros, 328 F.3d 610, 616 (10th Cir. 2003); United States Xulam, 84 F.3d 441, 442 (D.C. Cir. 1996); United States Kirk, 992 F.2d 1218 (6th Cir.1993)(unpublished order); United States Dillon, 938 F.2d 1412, 1416 (1st Cir. 1991); United States v. Araneda, 899 F.2d 368, 370 (5th Cir. 1990); United States King, 849 F.2d 485, 489 (11th Cir. 1988); United States Himler, 797 F.2d 156, 161 (3d Cir. 1986); United States Chimurenga, 760 F.2d 400, 405-06 (2d Cir. 1985); United States Portes, 786 F.2d 758, 765 (7th Cir. 1985); United States Orta, 760 F.2d 887, 891 (8th Cir. 1985); United States Motamedi, 767 F.2d 1403, 1406 (9th Cir. 1985).

26.5 Detention hearing¶

westlaw query 18 +S 3142(F) /P 26.2 OR JENCKS¶

At a detention hearing, “the rules concerning the admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing.” 18 U.S.C. § 3142(f). However, the Jencks Act, 18 U.S.C. § 3500, does apply at pretrial detention hearings. See Fed. R. Crim. P. Rule 46(j) (Rule 26.2 generally applies to a detention hearing under § 3142) and Rule 26.2 (production of witnesses’ statements). Thus, if a defendant is being prosecuted upon a criminal complaint following an arrest on probable cause, the court commonly will schedule a consolidated preliminary and detention hearing at which the prosecution must make available “Jencks” statements. If a¶

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defendant’s detention hearing follows an indictment, the government may proceed solely by proffer without the need to call a witness because the indictment itself establishes probable cause. See, e.g., United States 39 Fed.Appx. 278, 278-79 (6th Cir. 2002); United States Smith, 79 F.3d 1208, 1210 (D.C. Cir. 1996); United States Trosper, 809 F.2d 1107, 1110 (5th Cir. 1987); United States Vargas, 804 F.2d 157, 163 (1st Cir. 1986); United States Suppa, 799 F.2d 115, 117 (3d Cir. 1986); United States Dominguez, 783 F.2d 702, 706 n. 7 (7th Cir. 1986); United States Contreras, 776 F.2d 51, 52 (2d Cir. 1985); United States Hazime, 762 F.2d 34, 37 (6th Cir. 1985); United States Hurtado, 779 F.2d 1467, 1479 (11th Cir. 1985).¶

Practice notes.¶

1. In some instances, when proceeding by proffer, it may be tactically adroit to bring to the hearing a government witness, such as the supervising case agent, and make that witness available to the court or defense counsel if either wishes to obtain additional evidence or information. A witness thus being called by the court or defense counsel is not subject to the requirements of the Jencks Act. See Fed. R. Crim. P. Rule 26.2 (a).

2. In hearings at which the government will proffer evidence derived from intercepted communications, for example, from court-authorized “wiretaps,” there is a requirement under “Title III,“18 U.S.C. § 2510-2522, more particularly § 2518(9), for ten-days’ notice to the defendant. This can conflict with the three-day continuance limit under § 3142(f), which defense counsel may try to employ to preclude the proffer of evidence based upon wiretaps. Section 2518(9) itself provides for a waiver by the court of the ten-day period upon finding that it is not possible to furnish the information ten days before the hearing and that the delay will not be prejudicial. If the defendant insists on ten-days notice, this could constitute “good cause” to extend the time for a detention hearing beyond the statute’s three day limit. See United States Salerno, 794 F.2d 64, 70 (2d Cir. 1986).

26.6 Rebuttable presumptions¶

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westlaw query 18 +S 3142(E)¶

The most important section of the Bail Reform Act in drug prosecutions, after 18 U.S.C. § 3142(f)(1)(C), is 18 U.S.C. § 3142(e). This section provides for a rebuttable presumption that no condition or combination of conditions of release will reasonably assure the safety of the community where there is a showing of probable cause that:¶

(1) the defendant has committed a drug crime for which pretrial detention is authorized; that is, a violation of the Controlled Substances Act with a maximum term in prison of ten or more years, as well as crimes under the other two federal drug laws referred to in § 3142(f)(1)(C);¶

(1) the defendant has committed a violation of 18 U.S.C. § 924(c): using or carrying a firearm during and in relation to, or possessing a firearm in furtherance of, a drug-trafficking crime; and¶

(1) the defendant is a “released” or “recidivist” offender subject to a presumption applying to defendants who have recently committed detainable crimes while on pretrial release.¶

As noted above, an indictment itself constitutes a finding of probable cause. A second rebuttable presumption attaches to defendants accused of crimes identified in (1) and (2) above, that no condition or combination of conditions will reasonably assure the appearance of the person as required. $ \§ 3142(e). $¶

Note. Although probable cause to believe that a defendant has committed an 18 U.S.C. § 924(c) crime gives rise to the presumptions, it is not obvious that a § 924(c) offense alone allows a § 3142(f) motion for pretrial detention. Given that committing a § 924(c) offense raises presumptions favoring detention, it would be a statutory anomaly if the charge did not authorize pre-trial detention under § 3142(f). Since a § 924(c) crime is not itself a violation of the Controlled Substances Act, if it is “detainable,” it either must be (A) as a crime of violence under § 3142(f)(1)(A), or (B) as a crime with a¶

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maximum sentence of life imprisonment under § 3142(f)(1)(B). For purposes of bail, crimes of violence are defined in § 3156(a)(4), and it appears that § 924(c) would only qualify under § 3156(a)(4)(B), as a felony that, “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Similarly, § 924(c)‘s penalty provisions generally speak of mandatory minimum sentences, rather than explicitly authorizing a maximum sentence of life imprisonment. Nevertheless, § 924(c)(1)(C)(ii) does prescribe life imprisonment for a defendant convicted of the offense under certain circumstances. Moreover, Amendment 642 to the U.S. Sentencing Commission Guidelines Manual, which took effect November 1, 2002, reflects a decision to treat a § 924(c) offense as a “life crime” for purposes of the career offender sentencing enhancement. See Amendments to the Guidelines Manual, Supplement to Appendix C, 277-78 (November 1, 2002) (Amendment 642, “Reason for Amendment”). See also United States Woodruff, 296 F.3d 1041, 1049 (11th Cir. 2002). In the great bulk of situations, this is only of academic concern, but the anomaly can arise when a defendant is charged with a crime involving less than 50 kilograms of marijuana and a § 924(c) offense. As the marijuana charge is not a detainable offense (because the maximum penalty is five years in prison), a pretrial detention motion can only be made if the § 924(c) offense is an independent basis for pretrial detention. This also arises when the underlying drug-trafficking crime involves Schedule III, IV, or controlled substances (which are not subject to a maximum punishment of imprisonment for ten years or more).¶

26.7 Temporary detention¶

westlaw query 18 +S 3142(D)(1)(A)¶

Another key provision of the Bail Reform Act is 18 U.S.C. § 3142(d), which authorizes periods of temporary detention of up to ten working days where the defendant commits an¶

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offense while on some form of judicial supervision, such as parole, probation, release pending sentencing, or pretrial release in a felony case. See § 3142(d)(1)(A)(i)-(iii). Most foreign nationals who do not have a “green card,” that is, who are not lawfully admitted for permanent residence, are also subject to a ten-day hold. See § 3142(d)(B). The purpose of the temporary detention is to give supervising authorities—parole board, probation officer, trial judge, or the Bureau of Immigration and Customs Enforcement (formerly INS)—a chance to issue a warrant for the defendant. See § 3142(d). A motion for a ten-day hold imposes a duty on the government to notify the supervising authority of the defendant’s new charge. See § 3142(d).¶

Practice notes.¶

• When the government seeks both a detention hearing after a three-day continuance, $ \§ 3142(f) $ , and also temporary detention, $ \§ 3142(d) $ , the court may effectively combine the two matters and set a consolidated hearing within the ten-day period, but later than the three days permitted for a strictly pretrial detention hearing. Or the court may construe the time limits more narrowly and require a detention hearing in three days, even though the defendant will nevertheless remain jailed after the three days elapse pursuant to the ten-day hold. Under either view, however, ten-day holds do not “tack,” and a defendant who satisfies more than one ground for temporary detention under $ \§ 3142(d) $ may only be detained for a total of ten days.

• Section 3142(d) requires two findings for temporary detention: (a) that the defendant is on some form of release or not a lawful U.S. resident, and (b) that the defendant may be a danger to the community or a risk of flight. As a result, some judges may conclude that they have discretion to deny a motion for temporary detention, even when it is clearly established that a defendant is on parole, probation, or pretrial release for a felony. Although this question may arise in non-drug cases, it should not be an issue in narcotics prosecutions because of the rebuttable presumptions that the defendant is a danger and risk of flight.

• Section 3142(d)(1)(A)(i) authorizes temporary detention only for defendants released before trial in felony cases, not misdemeanors, but under § 3142(d)(1)(A)(ii), any defendant facing sentence or released pending appeal may be held for up to ten days.

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26.8 Other bases for denying bail¶

Even though a serious narcotics charge itself is sufficient for pretrial detention, employing one or more of the other five bases for denying bail can bolster the government’s case for detention. Consequently, sound litigating tactics suggest moving for pretrial detention on every applicable ground available under § 3142(f):¶

1. Where there is a serious risk that a defendant might try to obstruct justice, § 3142(f) (2)(B), for example, by attempting to influence, intimidate, or harm a witness or juror. This is a valuable additional ground upon which to seek pretrial detention, and is often available in drug cases—it focuses the Court’s attention on a threat to a specific, live person, rather than on the more generalized notion of community safety;

2. Where a defendant is also charged with a crime of violence, § 3142(f)(1)(A)), as often is the case in RICO and CCE prosecutions based upon narcotics conspiracies;

3. Where a defendant is a serious risk of flight, § 3142(f)(2)(A), there is no drawback to specifically seeking detention on this ground, in addition to relying on the presumption that drug defendants are a risk of flight;

4. Where a defendant is also charged with an offense for which the maximum sentence is life imprisonment or death, $ \§3142(f)(1)(B); $ and

5. Where the “recidivist” provision of § 3142(f)(1)(D) authorizes pretrial detention if a defendant has previously committed two or more “detainable offenses”; that is, crimes which themselves would have permitted a pretrial detention motion under § 3142(f)(1). As fairly few defendants have extensive federal criminal records, this provision also incorporates state and local convictions that would have been detainable had they been subject to federal jurisdiction. 18 U.S.C. § 3142(f)(1)(D). As a result, a defendant with two or more serious state drug felonies or crimes of violence (or one of each) is subject to pretrial detention independent of the maximum sentence of the current federal felony narcotics charge.

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Practice note. When litigating a pretrial detention motion, the legislative history of the 1984 Bail Reform Act is a fertile source of authority. For example, it confirms the argument that the law reflects a congressional intent to detain defendants who commit crimes while on pretrial release or who are recidivist offenders. See S.Rep. No. 98-225, at 307 (1983), reprinted in 1984 U.S.C.C.A.N. 3182. Among its useful language is:¶

The Committee also notes, with respect to the factor of community ties, that it is aware of the growing evidence that the presence of this factor does not necessarily reflect a likelihood of appearance, and has no correlation with the question of the safety of the community… . [T]he Committee wishes to make it clear that it does not intend that a court conclude that there is no risk of flight on the basis of community ties alone …¶

Id., 1984 U.S.C.C.A.N. at 3207.¶

Under current law, consideration of a defendant’s criminal history is confined to his record of convictions. While a prior arrest should not be accorded the weight of a prior conviction, the Committee believes that it would be inappropriate to require the judge in the context of this kind of hearing to ignore a lengthy record of prior arrests, particularly if there were convictions for similar crimes… . In any event, independent information concerning past criminal activities certainly can, and should, be considered by a court.¶

Id. at 3206 n.76 (citations omitted).¶

26.9 Nebbia hearings¶

If a monetary or property bond is set, the prosecution may request the court to order that—before the release of the defendant—a Nebbia hearing be held to determine whether the collateral for the court (or the collateral provided the bail bondsman) is tainted. See¶

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18 U.S.C. § 3142(g)(4); United States . Nebbia, 357 F.2d 303 (2d Cir. 1966). See also United States . Patel, 1995 WL 557379 (N.D. Ill. 1995) (unpublished memorandum opinion and order) (notwithstanding the tax returns and testimony tendered by the defense, the defense failed to convincingly establish that the properties offered as security for the bond “were purchased solely with legitimate funds”). Nebbia-type hearings are particularly important when someone other than the defendant is posting the collateral, as they present an opportunity for the judge to establish on the record that the sureties are bona fide and understand the risks they are undertaking, such as potential loss of their property. See generally United States . Noriega-Sarabia, 116 F.3d 417, 420-21 (9th Cir. 1997). See also United States . Hammond, 204 F.Supp.2d 1157, 1166-67 (E.D.Wis. 2002) (sufficiency of the security offered).¶

26.10 Resources¶

The main treatise on federal detention and bail law is: Hon. John L. Weinberg, Federal Bail and Detention Handbook (2003), which is updated regularly. Another source collecting decisions on detention cases is: Propriety of denial of pretrial bail under Bail Reform Act, 75 A.L.R. Fed. 806. Links to relevant internal DOJ monographs and memoranda appear on the USABook Bail and Release topic page at http://10.173.2.12/usao/eousa/ole/tables/subject/bail.htm.¶

26.11 Acknowledgments¶

This Chapter was adapted and updated from material originally written by then Senior Trial Attorney Robert Lipman, NDDS, for the 1999 edition of Federal Narcotics Prosecutions.¶

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