What is a Nebbia Hearing?
So you posted your bond, you are ready to be released…ready to go home, but you are told the government will not let you go free until you have a Nebbia hearing. In frustration, you ask “what is a Nebbia hearing?”
Nebbia Hearing in Federal Court
In some cases, collateral must be posted to pay a surety bond. Collateral can be property, real estate, jewelry, or cash. If the government takes a position that the collateral was paid for with proceeds from criminal activity, the court may require a hearing, called a Nebbia hearing. A Nebbia hearing is named after the case of U.S. v. Nebbia, 357 F.2d 303 (C.A.N.Y. 1966), is a hearing in which the court must decide whether or not the money or property posted as bail is the fruit of unlawful or criminal conduct. In other words, did the money or property used to post bond come from legitimate sources? The court may conduct a Nebbia hearing on its own motion. However, the determination to hold a Nebbia hearing is left to the discretion of the court. For example, in U.S. v. O’Brien, 895 F.2d 810 (1st Cir. 1990), the court held that even on motion by the government, the court ultimately retains discretion on whether or not to hold a Nebbia hearing. Consequently, it is not an automatic hearing that the government may invoke. The Federal Defense Lawyer representing the defendant can contest the motion and argue that there is no reason to believe the funds used for a bond were proceeds from a crime. In many cases, the government files a motion for a Nebbia Hearing to make it more difficult for the defendant to get out on bond or to try and make the defense disclose the source of income or supportive family members. If the court rules that the collateral is from criminal activity, the government will be permitted to seize it and start forfeiture proceedings. If the collateral is forfeited, it cannot be used as collateral and it will make it more difficult to post bond.
Who bears the burden of proof?
The burden of proof in a Nebbia hearing is on the Defendant and his/her family to prove that the bail funds or collateral come from legitimate, honest sources. The reasoning behind placing the burden on the Defendant in a Nebbia hearing is the belief that the Defendant is in a better position to prove the legality of the assets. If the State had the burden of proof, the Defendant’s release could be delayed, as the prosecutor would have to gather all relevant and discoverable evidence to investigate the source of the funds.
What kinds of cases involve Nebbia hearings?
Nebbia hearings are particularly common in and fraud cases, as the court is concerned that the bond money or collateral is coming from the very narcotics sales or fraudulent schemes that the Defendant is being charged with. However, Nebbia hearings may come up in any criminal matter to ensure that the bond or conditions imposed will reasonably assure the defendant’s presence at trial. Typically, the government will object to the collateral being used, like real estate or cash, to post a bond if the United States Attorney believes that the collateral is from criminal activity or money resulting from criminal activity. For example, if a house was paid for with cash and the charge in the case is distribution of narcotics or firearms, the government may believe the cash used to purchase the home was proceeds from the sale of the illegal goods or drugs. The person posting the collateral or the defendant will have to come forward with proof that the funds derived from a legal source.
What can I do to get help?
Getting a reasonable bond on a felony in state or federal court is rarely a guarantee and it often takes an experienced lawyer to convince a judge or magistrate to be reasonable. In those cases where the government is fighting for a high bond or attacking the source of collateral, the challenge is even greater. The Defense Team with LEWIS & DICKSTEIN, P.L.L.C. has decades of experience achieving low and personal bonds for clients in state and federal court. We know that having our clients on bond so they can live their life, have the support of family, and participate in their defense is often critical to winning a case.
Government prosecutors are tough and well trained and so are the Michigan Criminal Defense Attorneys with LEWIS & DICKSTEIN, P.L.L.C.
Call us today at (248) 263-6800 for a free consultation, or complete a Request for Assistance Form and we will contact you promptly.