Within 24-hours of being arrested by the federal law enforcement agents, a defendant is scheduled for an initial appearance hearing. At the initial hearing presided over by a U.S. magistrate, pretrial release decisions are made.
First Appearance Hearings
Before defendants appear in "mag" (short for magistrate) court for their first appearance hearing they meet with a United States Pretrial Services Officer who conducts pretrial services interview. The interview usually takes place before the bail initial appearance hearing and is usually done in the Marshal's lockup. The Pretrial Services Officer prepares a short life background and criminal history for the court.
RELEASE ON PERSONAL RECOGNIZANCE
Federal statutes mandate pretrial release on personal recognizance or an unsecured appearance bond unless the judge determines that "such release will not reasonably assure" the person's appearance or "will endanger the safety of any other person or the community."
RELEASE ON CONDITIONS
If the magistrate judge determines that releasing a person on their own recognizance or unsecured release will not reasonably assure appearance or will endanger any other person or the community, the law still mandates release ("shall order the pretrial release") subject to certain specified conditions. It seems sort of obvious, but the conditions of release, naturally must include that the person not violate any federal, state or local law, must be the least restrictive conditions necessary to reasonably assure the judge of the defendant's appearance and the community's safety.
Posting Bail and Securing Release
While a federal judge has fairly broad discretion in tailoring release conditions to each case, the conditions of release must be related to either assuring appearance or the safety of the community. The applicable law states: "[t]he judicial officer may not impose a financial condition that results in the pretrial detention of the person." In other words, financial conditions of release should be imposed only when non-financial conditions are not enough to secure appearance.
The court is allowed to ask about the source of the property that is being put up for potential forfeiture or that is being offered as collateral. The inquiry into the legitimacy of the property (i.e., the source of the funds used to purchase the property) is referred to as a "Nebbia hearing" named after the Nebbia case. If the court finds that the money or property being pledged to secure bond is from an illegitimate source, the court will rule that property or cash will not reasonably assure the appearance and will require other collateral to be pledged before the defendant can post bond and be released. The goal of satisfying the Nebbia requirement is to prevent defendants who are prepared to post and then forfeit a high money bond as a cost of doing business. Once the court is satisfied with the legitimacy of the collateral that is to be posted, the hearing should end unless the prosecutor can demonstrate a good faith basis for more questioning.
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