Release and Detention Pending Judicial
Proceedings (18 U.S.C.
§ § 3141 et seq.)
General Provisions Regarding Bail and Detention in Criminal
The Eighth Amendment to the United States Constitution provides
bail shall not be required . . ." U.S. Const. Amend. VIII. The
Supreme Court has interpreted this amendment to prohibit the
excessive bail without creating a right to bail in criminal cases.
United States v. Salerno, 481 U.S. 739, 754-55
does not grant absolute right to bail"). The subject of bail and
implicates the Fourteenth Amendment's Due Process Clause, and
requires that laws
imposing pretrial detention "serve a compelling governmental
Salerno, 481 U.S. at 752, and "the Due Process Clause of the
Amendment". See United States v. Ailemen, 165 F.R.D.
(N.D.Cal. 1996)(internal citations omitted). In federal criminal
release and detention determinations are governed by the Bail
Reform Act of 1984.
18 U.S.C. §§ 3141-3156 (1990). These sections contain
guidelines that "judicial officers" must follow in considering
defendant should be detained or released pending federal criminal
Title 18, United States Code, Section 3141(a) gives "judicial
authority to make determinations regarding bail in all stages of a
up to and including the trial stage. The term "judicial officers"
is defined in
Title 18, United States Code, Section 3156, along with other terms
the matter of bail in criminal cases. Once a defendant has been
convicted of the
federal charges, Title 18, United States Code, Section 3141(b)
with district judges and the appellate courts to make bail
pending the imposition or execution of sentence, or pending appeal
of the same.
Title 18, United States Code, Sections 3152 through 3154
pertain to the
administration and the supervision authority of pretrial services
officers in the
federal criminal system. Section 3154 specifically empowers
officers with the authority to collect information from defendants
sources relative to the matter of bail. Pretrial services officers
authorized to make recommendations as to whether a defendant should
or released, including specific recommendations regarding
conditions of release.
18 U.S.C. § 3154(1). Pretrial services officers are also
establish facilities for and conduct the supervision of defendants
the provisions of Section 3142.
PRACTICE NOTE: The pretrial service officer's report is
often a good
source of information relating to the background of a defendant.
government attorneys are permitted to view a copy of the pretrial
marked "Attorney's Copy"). It is important to make such a review
practice as information relating to a defendant's community
contacts, pager and
telephone numbers, bank information, asset information, criminal
are all revealed within this report. If your district uses "duty
magistrate court, a review of the pretrial report is essential to
accurate statement regarding the government's position on the
matter of bond.
Remember, however, these reports are not supposed to be seen by
case agents, and
there usually is a statement to that effect somewhere on the front
page of the
For a lengthy discussion regarding the procedures and theories
release and detention, see Ailemen, 165 F.R.D. 571.
Categories Of Pretrial Release and Detention: Title 18,
Code, Section 3142 defines the categories of "release and
detention" a defendant
may be subject to and contains the rules under which the court and
proceed relating to bail matters. In that regard, Section 3142(a)
upon the appearance before a judicial officer of a person charged
offense, the judicial officer shall make a determination regarding
of the defendant, and shall enter an order designating a
status" under one of four categories:
- released on personal recognizance or upon execution
unsecured appearance bond (following the provisions of Section
- released on a condition or combination of conditions as
defined by Section
- temporarily detained to permit revocation of conditional
deportation, or exclusion under Section 3142(d); or
- detained pursuant to the provisions of Section 3142(e).
Release on Personal Recognizance/Unsecured Appearance
Bond: Title 18,
United States Code, Section 3142(b) requires a judicial officer to
pretrial release of a defendant on "personal recognizance" or upon
defendant's execution of an "unsecured appearance bond" in an
by the court. A Section 3142(b) release order must be conditioned
defendant's agreement to "not commit a Federal, State, or local
crime during the
period of release." If, however, the judicial officer determines
release of a defendant on "personal recognizance" or "unsecured
would not "reasonably assure" the defendant's appearance at court
or will "endanger the safety of any other person or the community",
is no obligation to order release. 18 U.S.C. §§ 3142(b)
In this event, the judicial officer must follow the provisions of
United States Code, Section 3142(c).
Release On Conditions: Once a judicial officer has made
determination that a defendant does not qualify for release under
3142(b), then the judicial officer must follow Section 3142(c).
the release of a defendant under Section 3142(c), the judicial
order that the defendant "not commit a Federal, State, or Local
the period of release. 18 U.S.C. § 3142(c)(1)(A). In
addition, the judicial
officer must impose the least restrictive condition or
conditions necessary to "reasonably assure" the defendant's
required and to "reasonably assure" the safety of any person and
18 U.S.C. § 3142(c)(1)(B). An illustrative list of conditions
is set forth
in § 3142(c)(1)(B)(i through xiv) which gives the judicial
to impose conditions not specifically enumerated so long as the
same serve the
purposes set out in § 3142(c)(1)(B). It is important to note
3142 speaks only of conditions that will "reasonably" assure
guarantee it". United States v. Xulum, 84 F.3d 441, 443
1996)(per curiam). A judicial officer is not permitted to impose
conditions of release which result in the pretrial detention of a
U.S.C. § 3142(c)(2). The conditions of release imposed on a
a Section 3142(c) order may be amended at any time to impose
different conditions of release. 18 U.S.C. § 3142(c)(3).
Factors Judicial Officer Must Take Into Consideration
Defendant's Eligibility For Release: When making a
the eligibility of a defendant for pretrial release (whether
recognizance , unsecured appearance bond, or release on
conditions), the judicial
officer must consider the factors listed in Section 3142(g),
- the nature and circumstances of the offense (in particular
is an offense which is violent or nonviolent in nature, or involves
- the weight of the evidence against the person;
- the history and characteristics of the person --
- character -- including physical and mental
ties, employment, financial resources, length of time in the
ties, past conduct history relating to drug or alcohol abuse,
record of court appearances; and
- whether, at the time of the current offense or arrest, the
person was on
probation, on parole, or on other release pending trial,
sentencing, appeal, or
completion of sentence for an offense under Federal, State, or
- the nature and seriousness of the danger to any person or to
that would be posed by the person's release.
18 U.S.C. § 3142(g). In addition to considering evidence
of the factors
set forth above, the court may upon its own motion, or upon the
motion of the
government attorney, conduct an inquiry into the source of any
property to be
designated for potential forfeiture or offered as collateral to
secure any bond.
18 U.S.C. § 3142(g)(4). If the court determines that any such
property, because of its source, will not reasonably assure the
appearance of the
defendant as required, the designation or use of the collateral or
security for a bond shall be refused. 18 U.S.C. § 3142(g)(4).
Considerations Regarding Temporary Detention Orders:
Title 18, United
States Code, Section 3142(d) requires a judicial officer to enter
an order of
temporary detention in cases where a factual determination is made
- the defendant:
- is, and was at the time the offense was
- release pending trial for a felony under Federal,
- release pending imposition or execution of sentence, appeal of
conviction, or completion of sentence, for any offense under
Federal, State, or
local law; or
- probation or parole for any offense under Federal, State, or
- is not a citizen of the United States or lawfully admitted for
residence, as defined in section 101(a)(20) of the Immigration and
Act (8 U.S.C. 1101(a)(2); AND
- the defendant may flee or pose a danger to any other person or
18 U.S.C. § 3142(d). The formula for calculating the 10
detention period is set forth in Section 3142(d). At the time the
10 day order
is entered, the judicial officer must direct the attorney for the
notify the appropriate "authorities" of the defendant's status. In
that the "notified authority" declines to take the defendant into
the judicial officer must make an independent determination
regarding bail under
the provisions of Sections 3142(b), 3142(c), and 3142(e)(if the
PRACTICE NOTE: Consider the use of a form "notification
both the agency involved in the case and the appropriate authority
for the matters listed in Section 3142(d). Also, consider the use
of a form
"notification letter" to the court setting forth communications
government attorney and the appropriate authorities so that the
case file is
properly documented. Of course, the government attorney must
consult the local
rules in the jurisdiction of practice to ensure the court is given
response to a Section 3142(d) inquiry.
Pretrial Motions for Detention: The Bail Reform Act
pretrial detention of a defendant only if a judicial officer
determines that no
conditions or combination of conditions exist which will
"reasonably assure the
appearance of the person", see United States v.
Xulam, 84 F.3d 441,
442 (D.C.Cir. 1996)(per curiam), and "the safety of any other
person and the
community." United States v. Rodriguez, 897 F. Supp. 1461,
1995); 18 U.S.C. § 3142(c).
Cases Which Qualify For Detention Hearings: Section
specific situations under which a judicial officer may hold a
Those situations are as follows:
- Upon the motion of the government attorney, in a case that
- a crime of violence;
- an offense with a maximum sentence of life imprisonment or
- an offense for which the maximum term of imprisonment is 10 or
as prescribed by the Controlled Substances Act; or
- any felony if the person has been convicted of two or more
described in paragraphs (a) through (c) or comparable state
- Upon the motion of the government attorney or on the court's
own motion, in
a case that involves:
- a serious risk of flight; or
- a serious risk that the defendant will obstruct justice or
18 U.S.C. § 3142(f). Section 3142(f) "does not authorize
hearing in the absence of one of the six situations set forth
States v. Butler, 165 F.R.D. 68, 71 (N.D.Ohio 1996). Thus, the
may not request a detention hearing only on the allegations of
danger to the
community or another person. The "government is required to
there are grounds for a hearing under the specific provisions of
3142(f)(1) or (f)(2)." Butler, 165 F.R.D. at 71. "When
there exists one
or more grounds for holding a hearing under those provisions, the
proceed on the theory of risk of flight and/or danger to the
community or any
other person." Id. Section 3142(f) may fairly be
authorizing pretrial detention "only upon proof of a likelihood of
threatened obstruction of justice or a danger of recidivism in one
or more of the
crimes actually specified by the bail statute." Butler, 165
F.R.D. at 71
(quoting United States v. Himler, 797 F.2d 156, 160
(3d Cir. 1986)
and citing United States v. Byrd, 969 F.2d 106 (5th
United States v. Ploof, 851 F.2d 7 (1st Cir. 1988)).
When the court has determined that a detention hearing is
warranted, it may
consider evidence relating to a defendant's danger to the
considerations are then guided by the factors set forth in 18
3142(g), and the specific consideration of "the nature and
seriousness of the
danger to any person or the community that would be posed by the
release." Butler, 165 F.R.D. at 71; 18 U.S.C. §
Accordingly, the government must first prove one or more of the
in 3142(f)(1) or (2) as a prerequisite to the court
considering the factor
of danger to the community whether there exist appropriate
conditions of release
in the case. In the Butler decision, the court evaluated
government's motion to detain a defendant charged with firearms
reaching a decision in favor of pretrial detention, the
there is danger inherent to the community in the
of firearms, both a rifle and a pipe bomb. This is particularly
true where the
possessor has a lengthy criminal history, has not been deterred
commission of crime by prior convictions and appears to be involved
165 F.R.D. at 72.
Timing Of Detention Hearing: Title 18, United States
3142(f)(2) contains specific guidelines regarding the timing of
hearings. Ideally, the hearing is supposed to take place
immediately upon the
defendant's first appearance before the judicial officer. However,
fact that a defendant may lack representation at this initial
detention hearing is not likely to go forward unless the court has
arrangements for the defendant to be represented by counsel.
also permits a 3 day delay of the detention hearing upon the motion
government attorney. A defendant may request a continuance of up
to 5 days under
this section, for good cause shown. Between the time the detention
filed and the actual detention hearing (up through the court's
ruling on the
motion for detention), the defendant will remain in the custody of
States Marshal's Office. 18 U.S.C. § 3142(f)(2). A hearing
may be reopened
before or after the court's ruling on a detention motion, at any
trial if the judicial officer makes a factual finding that
that was not previously known at the time of the hearing and that
is material on the issue of whether there are conditions of release
reasonably assure the appearance of the defendant and the safety of
person and the community.
Detention Hearings May Proceed By Way of Proffer; Rules of
Evidence Do Not
Apply: "Detention hearings are an informal proceeding, and the
presented is not governed by the Federal Rules of Evidence."
v. Duncan, 897 F. Supp. 688, 690 (N.D.N.Y. 1988); 18 U.S.C.
The government may proceed in a detention hearing by way of
Smith, 79 F.3d at 1209-10 (citing United States v.
828 F.2d 667, 669 (11th Cir. 1987); United States v. Martir,
1141, 1145 (2d Cir. 1986); United States v. Winsor, 785 F.2d
755, 756 (9th
Cir. 1986); United States v. Acevedo-Ramos, 755 F.2d 203,
206-07 (1st Cir.
1985)). The rationale for permitting detention hearings to proceed
by way of
proffer is that such hearings are "neither a discovery device for
the defense nor
a trial on the merits." Smith, 79 F.3d at 1210. "The
process that is due
is only that which is required by and proportionate to the purpose
proceeding." Id. "That purpose includes neither a reprise
of all the
evidence presented before the grand jury, United States v.
Suppa, 799 F.2d
115, 119 (3d Cir. 1986), nor the right to confront non-testifying
witnesses, United States v. Accetturo, 783 F.2d 382, 388-89
1986). Smith, 79 F.3d at 1210 (also citing United
Hurtado, 779 F.2d 1467, 1479 (11th Cir. 1985)(purpose of
hearing is not to "rehash . . . probable cause" but to provide
detainee to show no risk of flight or danger to community);
United States v.
Williams, 798 F. Supp. 34, 36 (D.D.C. 1992)). "A right to
government to produce its witnesses against [a defendant] would
hearing to a degree out of proportion to the liberty interest at
stake - viz. the
interest in remaining free until trial, for what is by statute a
limited duration." Smith, 79 F.3d at 1210; see
Trial Act, 18 U.S.C. § 3161, et seq.
Application of the Rebuttable Presumption: Title 18,
Code, Section 3142(e) contains three categories of criminal
offenses that give
rise to a rebuttable presumption that "no condition or combination
will (1) "reasonably assure" the safety of any other person and the
the defendant is released; or (2) "reasonably assure" the
appearance of the
defendant as required and "reasonably assure" the safety of
person and the community if the defendant is released. These three
- A judicial officer finds that:
- the person has been convicted of a Federal offense that is
subsection (f)(1) of this section, or of a State or local offense
that would have
been an offense described in subsection (f)(1) of this section if
giving rise to Federal jurisdiction had existed;
- the offense described in paragraph one of this subsection was
the person was on release pending trial for a Federal, State, or
- a period of not more than five years has elapsed since the date
conviction, or the release of the person from imprisonment, for the
described in paragraph (1) of this subsection, whichever is later.
18 U.S.C. § 3142(e)(1)-(3).
- A judicial officer finds that there is probable cause to
believe that the
person committed an offense for which a maximum term of
imprisonment of 10 years
or more is prescribed.
- A judicial officer finds that there is probable cause to
believe that the
person committed an offense under 18 U.S.C. § 924(c).
18 U.S.C. § 3142(e).
The rebuttable presumption relating only to the safety of any
and the community pertains to those cases meeting the criteria of
3142(e)(1)-(3). It is important to note, that all 3 of these
conditions must be
met for the proper application of the rebuttable presumption of
"danger to the
The rebuttable presumption relating to both "risk of flight"
to the community" pertains to those cases where the judicial
officer finds there
is probable cause to believe that the defendant committed: (1) a
drug offense (as
defined under Title 21) when the maximum term of imprisonment is 10
more; or (2) an offense under Title 18, United States Code, Section
U.S.C. § 3142(e).
The indictment alone is sufficient to raise the rebuttable
no condition (or combination of conditions) will ensure the
reappearance for trial and that no conditions of release will
ensure the safety
of the community, see, e.g., Smith, 79 F.3d at
(citing United States v. Dillon, 938 F.2d 1412 (1st
Suppa, 799 F.2d at 119; United States v. Dominguez,
783 F.2d 702,
706 n.7 (7th Cir. 1986); Hurtado, 779 F.2d at 1477-79;
v. Contreras, 776 F.2d 51 (2d Cir. 1985); United States v.
F.2d 34, 37 (6th Cir. 1985); United States v. Mosuro, 648 F.
318 (D.D.C. 1986)); see also United States v. Tedder,
903 F. Supp.
344, 345 (N.D.N.Y. 1995).
Burden of Proof At Detention Hearing: In a pretrial
hearing, the government's burden is to establish by clear and
that no conditions of release will reasonably assure the safety of
Rodriguez, 897 F. Supp. at 1463 (citing United
Orta, 760 F.2d 887 (8th Cir. 1985); see also United
Arena, 894 F. Supp. 580, 585-86 (N.D.N.Y. 1995)(citing
States v. Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985). "The
issue in such
a hearing is whether releasing a defendant would pose a danger to
that would not exist were [the defendant] detained."
Rodriguez, 897 F.
Supp. at 1463 (citing United States v. Phillips, 732
F. Supp. 255,
267 (D.Mass. 1990), reh'g denied, 952 F.2d 591 (1st Cir.),
denied, 113 S.Ct. 113 (1992); see also United
Smith, 79 F.3d 1208, 1209 (D.C.Cir.1996) (per curiam);
United States v.
Portes, 786 F.2d 758 (7th Cir. 1985); United States v.
Orta, 760 F.2d
887 (8th Cir. 1985).
The standard is different when the issue is whether any
release will reasonably assure the defendant's attendance at trial
flight); the government need only prove that there are no such
conditions by a
"preponderance of the evidence." See United States v.
F. Supp. 344, 345 (N.D.N.Y. 1995)(citing United States v.
782 F.2d 1141, 1146 (2d Cir. 1986)); 18 U.S.C. § 3142(c). It
necessary that the government prove both flight risk and danger to
to warrant detention. See United States v. Flores,
856 F. Supp.
1400, 1401 (E.D.Cal. 1994).
Requirements For The Contents Of Release and Detention
18, United States Code, Section 3142(h) lists the requirements for
of a "release order." Title 18, United States Code, Section
3142(g) lists the
requirements for the contents of a "detention order," including the
of "written findings of fact and a written statement of the reasons
Bail Application Following Pretrial Detention: When a
for release on bail following pretrial detention, the court must
factors: "(1) the length of the pretrial detention; (2) the extent
to which the
prosecution is responsible for the delay of the trial; and (3) the
the evidence upon which the pretrial detention was based."
United States v.
Roseto, 1995 WL 350815 (S.D.N.Y., June 9, 1995)(Memorandum
Decision)(citing United States v. Millan, 4 F.3d
1038, 1043 (2d
Cir. 1993)(citations omitted)).
Regarding the length of pretrial detention, there is no doubt
longer the pretrial detention the more likely the denial of due
Typically, this factor weighs in favor of the moving defendant.
e.g., United States v. Gonzales-Claudio, 806 F.2d 334,
341 (2d Cir.
1986)("detention that has lasted for fourteen months and, without
is scheduled to last considerably longer, points strongly to a
denial of due
process"). This factor by itself, however, is not determinative of
bail application. See Millan, 4 F.3d at 1044
period of 30-31 months a factor in defendant's favor but not
also United States v. Melendez-Carrion, 820 F.2d 56 (2d
1987)(pretrial detention period of 19 months did not violate
Regarding the reason or "responsibility" for delay factor, the
consider information relating to pretrial events such as motions
discovery disputes, complexity of the case, plea discussions, and
relating to the progress (or lack thereof) of the case. See,
Regarding the reasons for the pretrial detention, the court
the findings from the detention hearing.
Considerations Regarding Breach of A Condition of Bond:
United States Code, Sections 3146 through 3148 describe the
penalties a defendant
may be subject to for: (1) failure to appear at any proceeding as
(Section 3146); (2) committing an offense while on pretrial release
3147); and (3) violating any condition of pretrial release (which
sanction of bond revocation)(Section 3148). In addition, Title 18,
Code, Section 3149 empowers a surety with arrest authority over
requires that the surety promptly deliver the offender to the
custody of the
United States Marshal for proceedings under Section 3148. In this
judicial officers are also bound by Federal Rule of Criminal
Federal Rule of Criminal Procedure 46(e) provides that "[i]f
there is a
breach of condition of a bond, the district court shall declare a
the bail." F.R.Crim.P. 46(e). This language is broad, and reaches
of release. See United States v. Gigante, 166 F.R.D.
(E.D.N.Y. 1996). The Bail Reform Act of 1984 does not
46(e). Gigante, 166 F.R.D. at 4 (citing United
Vaccaro, 51 F.3d 189 (9th Cir. 1995); United States v.
Dunn, 781 F.2d
447 (5th Cir. 1986); and by way of implication United
Dudley, 62 F.3d 1275, 1278 (10th Cir. 1995); United States
Patriarca, 948 F.2d 789, 793 (1st Cir. 1991); United States
Santiago, 826 F.2d 499 (7th Cir. 1987). "'[T]here is no
Rule 46(e) and the Bail Reform Act; the Rule and the Act are
form a unified system dealing with pretrial release.'"
F.R.D. at 6 (quoting Vaccaro, 51 F.3d at 192
Dunn, 781 F.2d at 450 n.9.
Considerations Regarding A Defendant's Appeal of Detention
When a defendant seeks review of a magistrate judge's order of
district court is bound to review the matter de novo, and undertake
review of the matter for the purpose of arriving at its own
conclusion." See United States v. Duncan, 897 F.
Supp. 688, 689-90
(N.D.N.Y. 1995)(citing United States v. Leon, 766
F.2d 77, 80 (2d
Cir. 1985)); see also United States v. King, 849 F.2d
(11th Cir. 1988); United States v. Williams, 753 F.2d 329,
331 (4th Cir.
1985). 18 U.S.C. § 3145(a)-(c).
Miscellaneous Sections: Other provisions of Title 18
are relevant to
matters concerning release and detention in criminal cases. For
3143 contains the framework for release or detention of a defendant
sentence or appeal. Likewise, Section 3144 pertains to the release
of a material witness. Finally, Sections 3150 and 3151 discuss the
of the Bail Reform Act to those State cases which are removed to
and the issue of forfeited bail.
[cited in USAM 9-6.100]