There is still hope for bond in a Federal Case

Pretrial detention in federal criminal cases is complex, and the rules can be complicated for experienced criminal defense attorneys to grasp unless they specialize in criminal defense law. A defendant should be released on bond in federal court in most cases.

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Pretrial Bond on a Federal Case

The Bail Reform Act of 1984 carefully limits the circumstances under which the United States Attorney’s Office may seek pre-trial detention. Pretrial detention, with certain exceptions, is limited to the most serious 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 while the case is pending, such as not leaving Michigan, not using drugs, or wearing a GPS tether. In the Eastern District of Michigan, judges and magistrates are often open to a compelling argument in favor of pretrial bond on a federal case.

The general standard when a judge considers pretrial bail on a federal case, otherwise known as pretrial release, is whether there are conditions or a combination of conditions of bond that would ensure the community’s safety 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 federal magistrate should grant the defendant pre-trial release. The law limits the circumstances under which the government may seek pre-trial detention. The defendant is entitled to a detention hearing if the federal government seeks pretrial detention instead of release on bond. 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, significant drug cases, and cases with defendants with two prior serious felony convictions require the court to presume that no combination of conditions will reasonably assure the defendant’s appearance or the safety of any other person or the community. This presumption against pretrial bond in a federal case is rebuttable. If the defendant can present some evidence to show that they are not a danger and can be relied upon to return to court, the presumption is nullified. If the defendant rebuts the presumption, the government must prove that detention is appropriate with clear and convincing evidence.

Factors Determining Eligibility For Pre-Trial Release

When determining the defendant’s pretrial release eligibility and the type of bond appropriate in a federal case, the judge must consider the factors listed in § 3142(g).

  • the nature and circumstances of the offense (in particular, whether it is an offense that 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 the community posed by the person’s release.

If granted pre-trial release, the defendant may be released on personal recognizance, on an unsecured appearance bond, or released with conditions.

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Factors Considered for Serious Flight Risk

In cases where the federal government claims there is a serious risk of flight, it must present some evidence to substantiate its concern and a request for pretrial detention. The charge alone or the potential sentence (other than life) is insufficient to justify a finding that a person is a serious risk of flight and a denial of bond. 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. Strong foreign family ties or business interests can increase the odds of pre-trial detention or a high monetary bond. Even in the most challenging circumstances, a prepared, experienced attorney has a good chance of obtaining a pretrial bond on a federal case.

Types of Pre-Trial Release and Detention

Upon consideration of the relevant factors, the federal 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 a pretrial release bond 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 Pretrial Release 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;
  • curfew;
  • refrain from possessing a firearm or other weapons;
  • prohibited use of alcohol or drugs; and
  • medical, psychological, or psychiatric treatment, including drug or alcohol dependency treatment.

When Can the Defendant Get a Detention Hearing?

The detention hearing should occur 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 judge or magistrate will extend the time for the detention hearing 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 holding the actual detention hearing, 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 to reconsider a pretrial bond on a federal case. When a defendant seeks a review of an order of detention, the district judge must 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 circumstances have changed. 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 “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.

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Federal Criminal Defense Team in Michigan

You need an attorney with a proven success record if you face federal criminal allegations or a pre-trial detention issue relative to federal criminal charges. 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 an online Request for Assistance Form. We will contact you promptly and find a way to help you.

We will find a way to help you and, most importantly,
we are not afraid to win!

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