There is still hope for bond in a Federal Case
Pre-trial detention in federal criminal cases is complex, and the rules can be difficult for experienced criminal defense attorneys to grasp unless they specialize in criminal defense law. In most cases, a defendant should be released on bond in federal court.
The Bail Reform Act of 1984 carefully limits the circumstances under which pre-trial detention may be sought by the government to the most serious of crimes, including crimes of violence, firearms cases, and major controlled substance crimes. Under the Bail Reform Act, it is presumed that most defendants should be granted pretrial release. When a defendant is released on bond in federal court, the judge or magistrate will set terms and conditions, which are rules the defendant must follow until the case is resolved, such as not leaving Michigan, not using drugs, or wearing a GPS tether.
The general standard used when a court considers bond or pretrial release, is whether there are conditions or a combination of conditions of bond that would ensure the safety of the community and that the defendant returns to court.
Detention Hearings in Federal Court to Determine Pretrial Release
The Bail Reform Act of 1984 creates a presumption in most cases that a defendant should be granted pre-trial release. The law limits the circumstances under which pre-trial detention may be sought by the Government. If the government is seeking pretrial detention, as opposed to release, then the defendant is entitled to a detention hearing. There are only six instances that permit a court to hold a detention hearing:
- Cases involving crimes of violence;
- Cases involving a maximum sentence of life imprisonment or death;
- Cases involving serious drug offenses (those involving maximum sentences of 10 years or more);
- Cases involving recidivist offenders (those with two or more relevant felonies involving violence or drugs);
- Cases involving a serious risk of flight; or
- Cases involving a serious risk that a defendant will obstruct justice.
What Types of Cases are a Danger to the Community?
Crimes of violence, life offenses, serious drug cases, and cases with defendants who have two prior serious felony convictions, require the court to presume that no combination of conditions will reasonably assure either the defendant’s appearance or the safety of any other person or the community. This presumption is rebuttable. If the defendant can present some evidence to show that he or she is not a danger and can be relied upon to return to court, the presumption is nullified, and the government must then prove that detention is appropriate with clear and convincing evidence.
Factors Determining Eligibility For Pre-Trial Release
When determining the defendant’s eligibility for pretrial release and what type of bond is appropriate, the judge must consider the factors listed in § 3142(g).
- the nature and circumstances of the offense (in particular whether it is an offense which is violent or nonviolent, or involves narcotics);
- the strength of the government’s evidence;
- the history and characteristics of the person, including physical and mental condition, family ties, employment history, financial resources, length of time in the local community, family or friends in the area, ties to the community, history of drug or alcohol abuse, criminal history, any history of failing to appear in court;
- whether, at the time of the current offense or arrest, the person was on probation, parole, or released pending trial, sentencing, appeal, or completion of sentence for an offense under federal, state, or local law; and
- the danger to any person or to the community that would be posed by the person’s release.
If granted pre-trial release, the defendant may be released on his or her personal recognizance, on an unsecured appearance bond, or released with conditions.
Factors Considered for Serious Flight Risk
In cases where the government claims there is a serious risk of flight, it must present some evidence to substantiate its concern. The charge alone or the potential sentence (other than life), is not sufficient to justify a finding that a person is a serious risk of flight. Relevant factors that support a serious risk finding include:
- prior use of aliases,
- lack of ties to the community,
- any efforts to avoid or resist arrest,
- evidence that the defendant may be hiding assets, and
- any evidence of an intent to flee the United States.
In economic or financial fraud cases, including conspiracy charges, the government must have more evidence than an allegation that the defendant has access to a large cache of money from legitimate or illegitimate sources. Merely having access to significant funds is not enough to trigger pretrial detention. Having strong foreign family ties or foreign business interests can increase the odds of pre-trial detention or a high monetary bond.
Types of Pre-Trial Release and Detention
Upon consideration of the relevant factors, the judge or magistrate will enter an order designating a defendant’s custodial status under one of four categories:
- Released on personal recognizance or upon execution of an unsecured appearance bond (usually with a variety of terms and conditions);
- Released on a condition or combination of conditions (the judge must impose the least restrictive conditions necessary to “reasonably assure” the defendant’s appearance and the safety of the community);
- Temporarily detained to permit revocation of conditional release, deportation, or exclusion under § 3142(d); or
- Detained according to the provisions of § 3142(e).
Common Terms and Conditions of Bond in Federal Court
- electronic monitoring, such as a GPS tether;
- maintain or actively seek full-time employment or education;
- abide by specified restrictions on residency and travel;
- a no-contact order regarding the alleged victim of the crime or with potential witnesses;
- periodic reporting to pre-trial services;
- refrain from possessing a firearm or other weapons;
- prohibited use of alcohol or drugs; and
- medical, psychological, or psychiatric treatment, including treatment for drug or alcohol dependency.
When Can the Defendant Get a Detention Hearing?
The detention hearing is supposed to take place immediately upon the defendant’s first appearance before a judge or magistrate. Because the defendant may not have a federal criminal defense attorney at the initial appearance, the time for the detention hearing is usually extended to allow the defendant to hire a lawyer. The government may request a three-day delay of the detention hearing. A defendant may request a continuance of up to five days if there is a good reason (called “good cause”). Between the government’s request for detention, and the actual detention hearing is held, the defendant will remain in the custody of the United States Marshal’s Office.
Defendant’s Appeal of a Detention Order
If the magistrate judge enters an order for pre-trial detention, the defendant may appeal to a district court judge for reconsideration. When a defendant seeks review of an order of detention, the district court is bound to undertake a complete review of the matter and arrive at its own “independent conclusion.”
Motion for Bail or to Revoke a Detention Order
Following an order granting the government’s Motion for Detention or prior consent to detention, a defendant may request pre-trial release if there has been a change of circumstances. When a defendant makes such a request, the judge must consider three factors:
- how long the defendant has been in custody,
- the extent to which the prosecution or defense has been responsible for any delays, and
- the strength of the evidence upon which the pretrial detention was based.
Regarding the reason or “responsibility” for delay factor, the court will consider information relating to pretrial events such as motions for continuance, discovery disputes, the complexity of the case, plea discussions, any stipulations for adjournments, any voluntary waiver of a defendant’s speedy trial rights, and other matters relating to the progress (or lack thereof) of the case.
Federal Criminal Defense Team in Michigan
If you are facing federal criminal allegations or a pre-trial detention issue relative to federal criminal charges, you need an attorney with a track record of proven success. The attorneys with LEWIS & DICKSTEIN, P.L.L.C. have the experience, tenacity, and strategic ability to fight to keep you out on bond and provide the highest possible caliber of defense in your case.
Call us today at (248) 263-6800 for a free consultation, or complete a Request for Assistance Form and we will contact you promptly.