Defending a Federal Criminal Case: Detention & Release Lunchtime CLE April 3, 2015 Laine Cardarella Federal Defender, WDMO
18 USC 3142 u The default position is release on personal recognizance or unsecured bond unless the magistrate finds “that such release will not reasonably assure the appearance of the person as required or will not ensure the safety of any other person or the community.” 18 USC 3142(b) u Must not commit any new crimes u Must submit to collection of DNA if collection is authorized by 42 USC 14135(a) u Must advise the Court, counsel, and US Attorney’s office in writing before any change of address or phone number. u Really? My clients will NOT be communicating in writing with the U.S. Attorney’s Office u Must appear in court as directed and surrender to serve any sentence imposed
Conditional Release u If the judge believes conditions are needed to assure the person’s appearance as required or the safety of any person or the community, then conditional release can be ordered. 18 USC 3142(c)(1)(B) u There are 14 suggested conditions in the statute and the catch-all “any other condition that is reasonably necessary.” u Conditions must be the least restrictive condition or combination of conditions that will reasonably assure the appearance of the person as required and the safety of any other person or the community. u Conditions only have to REASONABLY ASSURE compliance, not GUARANTEE it. United States v. Orta , 760 F2d 887 (8 th Cir. 1985) u Conditions must be related to the goals of assuring appearance and safety of the community. u If charged with certain crimes with minor victims, conditions must include electronic monitoring.
Financial Conditions You Can’t Give Poor People the Shaft u Court should not set a financial condition which the client cannot meet, or which will result in pretrial detention. u But it’s probably ok to set a financial condition that the client will have to work at in order to meet. (It’s ok to make him have some “skin in the game.”)
So why aren’t all our clients out on bond? Because there are so many more subsections to 18 USC 3142.
Detention Hearings on the Government’s Motion (3142(f)(1)) u Government can move to detain if case “involves” u a crime of violence, a violation of section 1591, or an offense listed in section 2332b(g)(5)(B) for which a maximum term of imprisonment of 10 years or more is prescribed; u an offense for which the maximum sentence is life imprisonment or death; u an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46; u any felony if such person has been convicted of two or more offenses described in subparagraphs (A) through (C) of this paragraph, or two or more State or local offenses that would have been offenses described in subparagraphs (A) through (C) of this paragraph if a circumstance giving rise to Federal jurisdiction had existed, or a combination of such offenses; or u any felony that is not otherwise a crime of violence that involves a minor victim or that involves the possession or use of a firearm or destructive device (as those terms are defined in section 921, or any other dangerous weapon, or involves a failure to register under section 2250 of title 18 United States Code
That includes… u Cases in which the person is not charged with a crime of violence, but the case is related to a crime of violence probably count. u Crime of violence crime is an offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another; or (B) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. (18 USC 3156(a)(4)) u 1591 = sex trafficking of children u 2232b = terrorism u 3142(f)(1)(E) covers all the 922(g) cases (felon in possession, user in possession, misdemeanor DV in possession…) u When counting up those two or more prior convictions ((f)(1)(D)), at least one District Court says it’s the counts not the cases that matter. US v. Delgado , 985 F .Supp.2d 895 (ND Iowa, 2013)
Detention Hearings on the Government’s OR the Court’s Motion (3142(f)(2)) u Any case that involves either u A serious flight risk, or u A serious risk that the person will obstruct justice, or threaten, injure or intimidate a witness or juror u How does the Court know if someone presents a serious flight risk or a serious risk that the person will obstruct justice? u Could object to a sua sponte detention hearing to find out….
Timing of a Detention Hearing u First appearance (18 USC 3142(f)) u Government can seek up to three days continuance u Client can seek up to five days continuance u If you are feeling rushed ask for a continuance to get your witnesses interviewed or into the courtroom for the hearing, or to find a place for your client to live, etc. u Either side, or the Court, can get more time for good cause. u If the person appears to be a drug addict (???) the Court can order a medical exam during the waiting period to see if he is an addict. u Don’t get too excited about timing issues. Timing errors/delays are not necessarily grounds for release. US v. Montalvo-Murillo , 495 U.S. 711 (1990)
Unique problem: the client in on a writ Do you have a hearing? u If a client appears on a writ from state custody, Court has two options u Can postpone the detention hearing under the “good cause” grounds until the person is no longer in state custody. u Court may try to obtain consent from government and client, but probably doesn’t need consent to continue the hearing for “good cause.” u Can hold a provisional detention hearing. Any order would become effective if the person’s status as a state inmate changes. u Be aware that if the client appears because of a request under the Interstate Agreement on Detainers Act, returning him to state custody without his consent may be grounds for dismissal of the federal case.
Rebuttable Presumptions or the Art of Burden Shifting u The previous violator assumption (18 USC 3142(e)(2)) u Case falls in the 3142(f)(1) list AND u Client has been previously convicted of an (f)(1) offense or a state offense that would be an (f)(1) offense if federal AND u that prior conviction was committed while the client was on pretrial release for a state, federal or local offense AND u that prior conviction was within the last 5 years OR the client has been released from prison for that conviction within the last 5 years u Rebuttable presumption that no condition or combination of conditions can reasonably assure the safety of any other person and the community.
Rebuttable Presumptions or The Art of Burden Shifting u The drug and firearm offender presumption (3142(e)(3)) u Misnomer because used to generally only cover drug and firearm cases but now broader u Client is charged with, and Court finds probable cause that he committed drug charge with maximum punishment of at least 10 years; Title 18 Section 924(c); 956(a) (conspiracy to kidnap, kill or maim in a foreign country); 2332b (terrorism); 2332b(g)(5)(B) if max punishment is at least 10 years (more terrorism); 1581-1597 if max punishment is at least 20 years (slavery, trafficking in persons, etc); OR any of a laundry list of offenses where minor is a victim (see 18 USC 3142(e)(3)(E) u Rebuttable presumption that no condition or combination of conditions will reasonably assure the appearance of the client or the safety of any person and the community.
Caselaw suggests the drug and firearm presumption gives the defendant the burden of production, it does not shift the burden of persuasion. US v. Orta, 760 F2d 887, fn 17 (8 th Cir. 1985) Whatever.
The Pretrial Report u Clients are interviewed by a pretrial (probation) officer after the initial appearance. u Report is prepared for the Court, copies available to the parties u Includes brief summary of client’s family history, employment history, medical history, and substance abuse history. u Includes criminal history BUT not always accurate. u If your client says something is inaccurate in a way that is harmful, proffer the client’s version to the Court - - especially if something triggers the previous violator presumption. u Reminder: don’t just rely on the pretrial report when you are calculating criminal history down the road. It may not be the whole picture. u Pretrial officer makes a confidential recommendation to the Court regarding whether the client should be released or detained.
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