How to Defeat a Federal Motion for Pretrial Detention
If your client is charged with a federal crime, the United States Attorney's Office may seek pretrial detention or, put another way, oppose your client's release on bond. The magistrate court will set a detention hearing quickly. It is important to be prepared to defeat the government's motion.
IntroductionIn any criminal case, of whatever severity - be it a municipal ordinance violation, a state charge, or a federal case - the issue of release on bond is the first, and one of the most important issues to address for many reasons. The client cannot continue to work and support his family, obviously, if he is locked up pre trial. In addition, however, studies have shown that the probability of a not-guilty verdict is severely reduced when the client is not free to participate in his own defense while on bond. Therefore, it is essential for defense counsel to be prepared to make a compelling legal and factual argument to the federal magistrate judge assigned the case for pretrial release on bond if the United States Attorney's Office is seeking detention prior to trial. With a relatively small amount of preparation, counsel can mount a persuasive argument to the court in favor of her client's release.
Legal AuthorityIn federal court, The Bail Reform Act of 1984 "continues to favor release over pretrial detention." United States v. Orta, 760 F.2d 887, 890 (8th Cir. 1985). Passage of the Bail Reform Act essentially eliminated the previous practice of courts' setting high bail simply to keep defendants considered dangerous locked up. Now, the Act provides a procedure allowing the trial judge to openly consider whether evidence supports a finding that a defendant poses a threat. Id. Nevertheless, the Orta court goes on to stress that the "passage of the pretrial detention provision of the 1984 Act did not ... signal a congressional intent to incarcerate wholesale ... [all] accused persons awaiting trial. Rather, Congress was demonstrating its concern about 'a small but identifiable group of particularly dangerous defendants as to whom neither the imposition of stringent release conditions nor the prospect of revocation of release can reasonably assure the safety of the community or other persons.' The legislative history stresses that '[t]he decision to provide for pretrial detention is in no way a derogation of the importance of the defendant's interest in remaining at liberty prior to trial. * * * It is anticipated that [pretrial release] will continue to be appropriate for the majority of Federal defendants." Id., at 7, 12. The statute, after presuming that a defendant should be released on his own recognizance, requires the trial court to consider progressively more restrictive options, including release subject to conditions such as electronic monitoring, drug testing, third party custodians, or residence in a halfway house, for example. Only when the court determines, after a hearing, that there is no condition or combination of conditions that will reasonably assure the defendant's appearance as required in court and the safety of the community is it appropriate for the court to order pretrial detention. "The wide range of [conditions] available ensures, as congress intended, that very few defendants will be subject to pretrial detention." Orta, 760 F.2d at 891. Hearsay is admissible at federal detention hearings. 18 U.S.C. Sec. 3142(f). Accordingly, the Assistant United States Attorney seeking pretrial detention is permitted to rest his case upon the report of the United States Pretrial Services office regarding bond. However, the trial court may also consider the "weight of the evidence against the person." 18 U.S.C. Sec. 3142(g)(2), as well as the client's ties to the community, education, prior criminal record (or lack thereof), mental and physical health, and employment history, among other factors. It is the Government's burden to prove by "a preponderance of the evidence" that no condition or combination of conditions would reasonably assure the client's appearance in court, or, by "clear and convincing evidence," that no condition or combination of conditions would reasonably assure the community's safety. Although in some cases, most notably serious drug trafficking offenses where the maximum sentence is more than ten years; in crimes of violence; and in cases with a child victim (most frequently, child pornography cases); there arises a presumption that no condition or combination of conditions will reasonably assure the client's appearance and lack of danger to the community, that presumption can be rebutted,or overcome, by the mere presentation of some evidence. The Pretrial Services Report is considered to be some evidence, and, therefore, in cases where the United States Attorney's Office seeks to keep the client locked up, and the Pretrial Services Office recommends bond, that recommendation is compelling evidence to emphasize in court. Also, in federal court, when the United States Attorney's Office asks that the court deny bond, the court must set a hearing within three (3) days of the client's initial appearance. The client can request a brief continuance, but in most cases, the court will want to move forward with the hearing as quickly as possible. Although the judge will likely not rule from the bench, but rather, will take the case "under submission," the judge will nevertheless rule within a few days.
Practical ConcernsIn federal court, when facing a situation where the United States Attorney's Office seeks to keep the client locked up prior to trial, defense counsel should be mindful of the factors the trial court must consider in determining whether there are conditions of release that will reasonably assure the appearance of the defendant and the safety of the community, as set forth at 18 U.S.C. Sec. 3142(g). Among other things, the court must consider the history and characteristics of the defendant, including his or her character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings. See 18 U.S.C. Sec. 3142(g)(A). Information concerning all of these factors will be contained in the United States Pretrial Services report. Defense counsel should go to the Pretrial Services office, therefore, as soon as possible to review that report, and take notes on sources of favorable evidence for the client. If feasible, counsel might consider consulting in person or by telephone with family members about real property which could be posted as security, or any available cash to post as ten percent, as well as their support of your client. It is important to keep in mind that you are always better off posting the cash with the Clerk of the Court, rather than a bail bondsman. At the conclusion of the case, the Clerk's office will return the money posted; a bailbonds man will keep it as his fee. Therefore, the client can even assign any cash posted with the Clerk's Office to the attorney to cover some of her fee, if necessary, thereby getting "double duty" out of that bail. If the client is comfortable with your speaking to his or her employer, and that employer is supportive, evidence of a secure job can be extremely persuasive to a trial court in considering bond. Clearly, if the client has never been in trouble before, or has only minor prior involvement with the law, such evidence is compelling. Finally, if counsel is able to review discovery and interview witnesses, the issue of the strength of the Government's case may also provide impetus to the court in considering bond. Certainly, courts are never enthusiastic about lengthy (or even brief) hearings. However, because the Federal Rules of Evidence do not apply at bond hearings, and hearsay is admissible, there is no reason that defense counsel cannot synopsize the witnesses' testimony, especially if those witnesses are available and willing to be in the courtroom and physically show not only that they support the client, but also that they silently affirm counsel's synopsis, and thereby make a moving argument in favor of bond, without the need for an overly lengthy presentation. Although such a presentation may require significant preparation time, it will certainly be time well spent in the client's eyes, especially if counsel succeeds in obtaining his release. In addition, it will be time well spent because it allows the client to continue to work and to assist more meaningfully in his or her own defense. finally, at the end of the day, it is time well spent for counsel's own purposes in preparing the case for trial and/or successful plea negotiations down the road. Bond is typically the first big hurdle in any new case and can prove frustrating without a plan of attack and the proper legal and evidentiary support. The Bail Reform Act and Eighth Circuit case law both offer solid legal authority for a bond that is not set so high that it prevents the client's pretrial release. Often, the client can offer equally solid evidentiary and factual support for that legal argument.
ConclusionFrom the initial client interview, therefore, make sure to gather facts tracking the factors set forth in 18 U.S.C. Sec. 3142(g). Question your client about his family and community involvement and support, his employment, his prior convictions (or lack thereof), and his or her health, education. Review the United States Pretrial Services report and make a note of the information about prior convictions and family contacts. In addition, make sure to try to interview witnesses and test the Government's case. These efforts can be time-consuming at the outset of a new case, but can also pay huge dividends down the road.