I KNOW WHY THE CAGED BIRD IS CAGED PRETRIAL RELEASE AND DETENTION - - PDF document

I KNOW WHY THE CAGED BIRD IS CAGED

PRETRIAL RELEASE AND DETENTION STEVEN M. STATSINGER

SUMMARY OF CONTENTS

• I. Introduction and Fundamental Issues
• A. Eighth Amendment
• B. Due Process
• C. Preventative Detention
• D. Ethical Considerations
• E. Presumption of Innocence
• F. Right to Be Present
• II. Old-Law Bail Practices in Federal Court
• III. The Bail Reform Act of 1984, 18 U.S.C. § 3142, et seq.
• A. Overview
• B. The Court’s Bail Options - § 3142(a)
• C. Factors the Court Must Consider - § 3142(g)
• D. Source-of-Funds Hearings - § 3142(g)(3)
• E. ROR or Release on Unsecured Appearance Bond - § 3142(b)
• F. Release on Conditions - § 3142(c)
• 1. Ordinary Cases
• 2. Additional Conditions for Certain Cases Involving a “Minor Victim”
• 3. Court Cannot Impose a Financial Condition that Results in Pretrial Detention
• 4. Court Can Amend Conditions
• G. Temporary Detention Pending Revocation of Conditional Liberty - § 3142(d)
• H. Detention - § 3142(e)
• 1. Presumptive Detention
• A. Nature of Charged Offense(s) - § 3143(e)(3)
• B. Recidivists - § 3142(e)(2)
• 2. Detention Permissible Under § 3142(f)(1)
• 3. Detention Permissible Under § 3142(f)(2)
• 4. The Detention Hearing
• I. Appealing the Bail Determination - § 3145
• 1. Appeal to District Judge
• 2. Appeal to Circuit
• IV. Sanctions for Violating Conditions of Release - § 3148
• A. Revocation of Release and Detention

i

• B. Contempt of Court
• V. Bail Pending Sentence - § 3143(a)
• A. Detention Pending Sentence Presumptive Unless
• 1. Guidelines Do Not Recommend Imprisonment, or
• 2. “Clear and Convincing” Evidence that Defendant Not a Flight Risk or a Danger
• B. Detention is Even More Presumptive in § 3142(f)(1)(A),(B) and (C) Cases
• 1. Overcoming the Presumption
• 2. “Exceptional Reasons”: § 3145(c)
• VI. Bail Pending Defendant’s Appeal or Certiorari - § 3143(b)
• VII. Release Pending Government’s Appeal - § 3143(c)
• A. Detention Mandatory if Defendant Sentenced to a Term of Imprisonment
• B. In Any Other Case, Court Is to Apply § 3142
• VIII. Detention of Material Witness - § 3144
• A. Arrest Warrant
• B. Party Must Show that the Person’s Testimony Is “Material” and
• C. That Securing his Presence by Subpoena “May Become Impracticable”
• D. Person Is then Subject § 3142.
• IX. Penalties for Failure to Appear - § 3146
• A. Statutory Directives
• B. Sentencing Guidelines
• C. Affirmative Defense
• D. Forfeiture of Property
• I. Penalties for Committing Crime While on Release - § 3147
• A. Statutory Directives
• B. Sentencing Guidelines

ii

PRETRIAL RELEASE AND DETENTION

• I. INTRODUCTION AND FUNDAMENTAL ISSUES
• A. Eighth Amendment

“Excessive bail shall not be required.” This does not mean that there is a constitutional right to bail, such that pretrial detention is unconstitutional. United States v. Edwards, 430 A.2d 1321 (D.C. Ct. App. 1981) (case includes a fascinating and thorough history of early English and Colonial bail statutes) Supreme Court has not decided whether Eighth Amendment’s “excessive bail” clause applies to the states. Martin v. Diguglielmo, 644 F. Supp. 2d 612, 618 (W.D.Pa 2008).

• B. Due Process

Government’s “regulatory interest in community safety” can in appropriate cases “outweigh an individual’s liberty interest.” United States v. Salerno, 481 U.S. 739, 748- 49 (1987). But there must be a “heightened “heightened, substantive due process scrutiny” and a “sufficiently compelling” governmental need. Demore v. Kim, 538 U.S. 510, 549 (2003). Pretrial detention is only constitutional if it is “regulatory.” When pretrial detention is disproportionately long relative to the reasons for the delay, it becomes “punitive” and is a due process violation. Cf. United States v. Briggs, 697 F.2d 98, 101, 104 (2012) (court “disturbed” by twenty-six month pretrial detention, and, although it was a “close call,” affirmed and ordered district court to either try defendant or set “reasonable bail” within 120 days).

• C. Preventive Detention

Does not violate due process. Salerno, 481 U.S. at 750-51. Class of persons is narrowly tailored to those that threaten an “overwhelming” governmental interest. There is a “full-blown adversary hearing,” a neutral decision-maker, and a requirement of clear and convincing evidence of dangerousness.

• D. Ethical Considerations

Right to bail is personal to the defendant, although tactical decisions guide whether and when to make the application, and what arguments to make. Defense counsel should not waive bail application entirely without defendant’s consent. 1

• E. Presumption of Innocence

“Nothing in this section shall be construed as modifying or limiting the presumption of innocence.” 18 U.S.C. § 3142(j). Justices Brennan and Marshall in dissent in Salerno: “But the very pith and purpose of this statute is an abhorrent limitation of the presumption of innocence.” 481 U.S. at 762-63. Second Circuit in United States v. Sabhnani, 493 F.3d 63, 76 & n17 (2d Cir. 2007) (noting in text that evidence against defendants “appears strong” and in a footnote that defendants “will, of course, enjoy a presumption of innocence at trial.”) Second Circuit in United States v. Dillard, 214 F.3d 88, 103 (2d Cir. 2000): “We do not agree ... that the presumption of innocence requires courts to construe the [Bail Reform] Act narrowly.”

• F. Right to Be Present
• 1. Ordinary cases

Defendant has right to be present arraignment, where bail hearing usually takes

• place. Fed.R.Crim.P. 5(d)(3). Can be waived by defense for adjourned hearing.

No right to be present under Fed.R.Crim.P. 43 at hearing where bail conditions are modified. United Staets v. Zuccaro, 645 F.2d 104, 106 (2d Cir. 1981) (per curiam).

• 2. Rule 5(c)(3) cases

Bad law: United States v. El Edwy, 272 F.3d 149 (2d Cir. 2001) (under § 3145, court in wanting jurisdiction could detain defendant after local judge set bail).

• II. Old-Law Bail Practices in Federal Court

Relied primarily on money bonds Less flexibility for judges in fixing conditions Practice was to set high bail for defendants perceived to be dangerous 2

• III. The Bail Reform Act of 1984, 18 U.S.C. § 3142 et. seq.
• A. Overview
• B. The Court’s Bail Options - § 3142(a)

“Upon appearance” before a judicial officer, the officer has 4 options:

• 1. Release on recognizance or unsecured appearance bond under § 3142(b)
• 2. Release on condition or combination of conditions under § 3142(c)
• 3. Temporary detention to permit revocation of conditional release or removal

from the United States under § 3142(d)

• 4. Detention under § 3142(e).

Note that detention is only available in cases that are subject to § 3142(e).

• C. Factors the Court Must Consider

Section 3142(g) provides that in making the bail decision the court must consider:

• 1. The nature and circumstances of the offense charged
• 2. The weight of the evidence
• 3. The defendant’s “history and characteristics,” including whether he was

conditional release, pretrial release or release pending sentence or appeal

• 4. The “nature and seriousness of the danger to any person or the community

that would be posed by the person's release.”

• D. Source-of-Funds Hearings

Section 3142(g)(4): Court can, and must, if the Government asks, conduct a hearing into the source of any collateral and “shall” reject it if “because of its source” it will not “reasonably assure” the defendant’s appearance. United States v. Nebbia, 357 F.2d 303, 304 (2d Cir. 1966) (“[T]he mere deposit of cash bail is not sufficient to deprive the court of the right to inquire into other factors which might bear on the question of the adequacy of the bail and stress the importance placed upon the ability of the surety to produce the defendant.”) United States v. Huckabay, 707 F. Supp. 35, 43 (D. Me. 1989) (court, on its own motion, rejected source of funds in a drug trafficking case and ordered defendant detained). 3

• E. ROR and Release on Unsecured Bond - § 3142(b)

ROR or unsecured bond is presumptive unless court finds flight risk or danger. United States v. Giordano, 370 F. Supp. 2d 1256, 1263-65 (S.D. Fla. 2005) (containing a particularly detailed discussion factors that create risk of flight). For ROR or unsecured bond, the only mandated conditions are that defendant commit no new crimes and cooperate in collection of DNA when required by 42 U.S.C. § 14125a.

• F. Release on Conditions - § 3142(c)
• 1. Ordinary Cases

Release on conditions: only where court finds that ROR or release on unsecured bond will not secure defendant’s appearance or will “endanger the safety of any

• ther person or the community.” Then the court “shall” order defendant’s release

subject to:

• a. An order that defendant commit no new crimes and cooperate in collection of

DNA when required by 42 U.S.C. § 14125a, and

• b. The least restrictive condition or combination of conditions that will assure

defendant’s appearance and address any dangerousness concerns. There is a non-exhaustive list of such conditions in § 3142(c)(1)(B)

• 1. remain in custody of a designated person, who assumes the responsibility of

assuring defendant’s appearance in court and the safety of the community;

• 2. work or look for work;
• 3. stay in or go to school;
• 4. travel, residence or association restrictions;
• 5. avoid contact with victim or witnesses;
• 6. report regularly to pretrial services or other agency;
• 7. curfew;
• 8. refrain from possessing weapons or other destructive devices;
• 9. refrain from drugs and excessive use of alcohol;
• 10. undergo treatment;
• 11. post property;
• 12. execute a bond with sureties;
• 13. remain in custody except for work, school, or “other limited purposes”; and
• 14. a catch-all - “any other condition reasonably necessary”

4

Note that Second Circuit has held that a bail package sufficient to secure defendant’s appearance will not necessarily assure the safety of the community. United States v. Mercedes, 254 F.3d 433, 436-37 (2d Cir. 2001) (in very serious case, home detention and electronic monitoring were not enough).

• 2. Additional Conditions for Certain Cases Involving a “Minor Victim”

Section 3142(c)(1)(B)(xiv): In “any case that involves a minor victim” under specific statutes, including some, but not all, child pornography statutes, and failure to register as a sex offender, the court must order electronic monitoring and numbers 4 through 8 above. Note that this provision requires electronic monitoring, but not home detention and does not apply where defendant is charged with 18 U.S.C. § 2252(a)(4) or § 2252A(5), (6) or (7). Some courts have held these “Adam Walsh” requirements to be unconstitutional. E.g., United States v. Karper, 847 F. Supp. 2d 350, 360-61 (N.D.N.Y. 2011); United States v. Polouizzi, 697 F. Supp. 2d 381, 391 (E.D.N.Y. 2010); United States v. Arzberger, 592 F. Supp. 2d 590, (S.D.N.Y. 2008) (Francis, J.)

• 3. Court May Not Impose a Financial Condition that Results in Pretrial Detention

Per § 3142(c)(2), the court “may not impose a financial condition that results in the pretrial detention of the person.” § 3142(c)(2). But the court can still impose a higher bail than the defendant can make.“Several

• ther circuits have addressed the apparent violation of § 3142(c)(2) that arises

when, as in Fidler's case, a defendant is granted pretrial bail, but is unable to comply with a financial condition, resulting in his detention. It may appear that detention in such circumstances always contravenes the statute. We agree, however, with our sister circuits that have concluded that this is not so.” United States v. Fidler, 419 F.3d 1026 (9th Cir. 2005)(joining First, Fifth, Seventh and Eleventh Circuits). Second Circuit has not ruled.

• 4. Court Can Amend Conditions

Per § 3412(c)(3), “at any time.”

• G. Temporary Detention Pending Revocation of Conditional Liberty § 3142(d)

If defendant is now and was at the time of the offense on pretrial release in any jurisdiction, on release pending sentence or appeal in any jurisdiction, on probation or parole in any jurisdiction, or is not a citizen or a legal permanent 5

resident, and the person is a flight risk or a danger, then court “shall” order his detention for “not more than ten days” excluding weekends and holidays, and “shall” direct the Government to notify the appropriate agency. Note that in immigration situations, defendant bears the burden of proving citizenship or permanent residency. § 3142(d)(2). Also note that Government often invokes temporary detention under this section for time to “investigate” defendant’s immigration status. There is a strong argument that this is not permitted (although they can always invoke their right to three-day postponement of the hearing, which they are entitled to in every case). See United States v. Xulam, 84 F.3d 441, 444 (D.C. Cir. 1996) (the ten-day hold is for Government to notify immigration officials “so that they may act against the [d] if they choose.”)

• H. Detention - § 3142(e)

Detention is AUTHORIZED in cases described in 3142(f)(1) and (f)(2). It is PRESUMPTIVE only in cases described in §§ 3142(e)(2) and (e)(3).

• 1. Presumptive Detention
• a. Nature of Charged Offense(s) - § 3143(e)(3)

There is a rebuttable presumption that “no condition or combination of conditions will reasonably assure” the defendant’s appearance and the safety of the community if the court finds “finds that there is probable cause to believe that the person committed”:

• 1. An offense under 21 U.S.C. 801, et seq., 21 U.S.C. 951, et seq., or 46 U.S.C.

§ 70501, et seq., for which there is a maximum term of imprisonment of ten years or more.

• 2. An offense under 18 U.S.C. §§ 924(c), 956(a) or 2332b
• 3. An offense in 18 U.S.C. § 2332b(g)(5)(B) with a statutory maximum or ten

years or more

• 4. An offense under 18 U.S.C. §§ 1581, et seq. (peonage and slavery generally,

including under § 1591, sex trafficking), with a maximum sentence of twenty years or more

• 5. An offense involving a “minor victim” under certain enumerated statutes

6

• b. Recidivists - § 3142(e)(3)

In a case that “involves” a federal offense listed in § 3142(f)(1), see infra, there is a “rebuttable presumption that no condition or combination of conditions will reasonably assure the safety of any other person and the community” where the court finds that:

• 1. Defendant “has been convicted of” a § 3142(f)(1) offense or a state or local
• ffense that “would have been” a § (f)(1) offense if there were federal

jurisdiction, and

• 2. The prior offense “was committed while the person was on release pending

trial for a Federal, State, or local offense,” and

• 3. A “period of not more than five years has elapsed since the date of conviction,
• r the release of the person from imprisonment, for the” above offense,

“whichever is later.”

• 2. Detention Permissible Under § 3142(f)(1)

Government may ask for detention in a case that “involves”:

• a. § 3142(f)(1)(A): A “crime of violence,” using the definitions in 18 U.S.C. §

3156(4): (A) an offense that has an element of the offense the use, attempted use,

• r threatened use of physical force against the person or property of

another; (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; or (C) any felony under chapter 109A (sexual abuse, 18 U.S.C. §§ 2241 through 2248), 110 (sexual exploitation and other abuse of children, 18 U.S.C. §§ 2251 through 2260A), or 117 (transportation for illegal sexual activity and related crimes, 18 U.S.C. §§ 2421 through 2426). Note about Felon-in-possession: Applying the categorical approach, § 922(g)(1) is a crime of violence in the Second Circuit. United States v. Dillard, 214 F.3d 88 (2d Cir 2000). But it is not a crime of violence in the D.C., Third, Seventh, Ninth and Eleventh Circuits. See United States v. Allen, 409 F. Supp. 2d 622, 624-25, 631 (D.Md 2006) (collecting cases and following Dillard). District courts in other 7

circuits are likewise split. Id.

• b. § 3142(f)(1)(A): A violation of 18 U.S.C. § 1591.
• c. § 3142(f)(1)(A): An offense contained in 18 U.S.C. 2332b(g)(5)(B) with a

maximum sentence of ten years or more.

• d. § 3142(f)(1)(B): An offense for which the maximum sentence is life

imprisonment or death.

• e. § 3142(f)(1)(C): An offense under 21 U.S.C. 801, et seq., 21 U.S.C. 951, et

seq., or 46 U.S.C. § 70501, et seq., for which there is a maximum term of imprisonment of ten years or more.

• f. § 3142(f)(1)(D): Any felony if defendant has been convicted of two or more of

the five categories of offenses described above, or two or more state or local

• ffenses in those categories if a circumstance giving rise to federal jurisdiction

had existed, or a combination of such offenses.

• g. § 3142(f)(1)(E): 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 (defined in 18 U.S.C. § 921), or any other dangerous weapon,

• r involves a failure to register as a sex offender (18 U.S.C. § 2250).
• 3. Detention Permissible Under Section 3142(f)(2)

Detention hearing takes place on the Government’s motion or on court’s own motion in a case that involves:

• a. A “serious” flight risk, or
• b. A “serious” risk that defendant will “obstruct or attempt to obstruct justice, or

threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror.”

• 4. The Detention Hearing

If, after a hearing pursuant to § 3142(f), the court concludes that “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community,” the court “shall

• rder ... detention.” Safety of community can be jeopardized by financial crimes.

See, e.g., United States v. Mustachio, 254 F. App’x 853, 854 (2d Cir. 2007). 8

The purpose of the hearing is to determine whether “any condition or combination of conditions” in 3142(c) will reasonably assure the appearance of such person as required and the safety of any other person and the community.”

• a. Burdens and Presumptions

Government must prove flight risk by a preponderance of the evidence. United States v. English, 629 F.3d 311, 319 (2d Cir. 2011). Government must prove dangerousness by clear and convincing evidence, which is between a preponderance and beyond a reasonable doubt. “Clear and convincing evidence” is a “demanding but not insatiable” standard, requiring “proof that a claim is highly probable.” Bishop v. Warden, 726 F3d 1243, 1259 (11 th Cir. 2013) In cases where there is a presumption of dangerousness or risk of flight, the defendant “bears a limited burden of production - not a burden of persuasion - to rebut that presumption by coming forward with evidence that he does not pose a danger to the community or a risk of flight.” Mercedes, 254 F.3d at 436. Moreover, even in a presumption case, the government retains the ultimate burden of persuasion by clear and convincing evidence that the defendant presents a danger to the community or by a preponderance of the evidence that the defendant presents a risk of flight. English, 629 F.3d at 319. Government need not prove both.

• b. Hearing Procedures
• 1. Shall be held “immediately” upon the defendant’s appearance before a judicial
• fficer, unless Government or defendant seeks a continuance. Defendant is

supposed to get no more than five days (excluding Saturday, Sunday and any legal holiday), except on good cause and Government is supposed to get no more than three days with the same exclusions. However, a violation of the “prompt hearing” requirement does not require defendant’s release. United States v. Montalvo-Murillo, 495 U.S. 711, 721 (1990).

• 2. Defendant is to be detained pending the hearing.
• 3. Defendant is entitled to appointed counsel, if he needs it.
• 4. The rules of evidence do not apply.

9

• 5. Government must establish dangerousness by “clear and convincing

evidence.”

• 6. Hearing may be reopened “at any time before trial” if new facts emerge that

are “material” on the questions of risk of flight or dangerousness. Under Fed.R.Crim.P. 46(j), the provisions of Rule 26.2(a) through (d) and (f) requiring production of witness statements apply at a detention hearing.

• I. Appealing the Bail Determination - § 3145

All bail appeals are to be “determined promptly.”

• 1. Appeal to District Judge

If defendant is released, Government may appeal to the “court having original jurisdiction over the offense.” Defendant may appeal to same and seek modification of conditions or release if detained. § 3145(a). District court’s review is de novo. United States v. Dominguez, 509 F. App’x 28, 30 (2d Cir. 2013). In Rule 5(c)(3) cases, “court having original jurisdiction over the offense” is the wanting district. El Edwy, 272 F.3d at 149. Arguably, then, Government or defendant can only appeal to that district and not the Part I judge.

• 2. Appeal to Circuit

From the district court, bail can be appealed to the court of appeals, but only the district court’s determination. Magistrate’s determination is not “final.” United States v. Harrison, 396 F.3d 1280, 1281 (2d Cir. 2005). Circuit reviews findings on flight and dangerousness for clear error. English, 629 F.3d at 319. “Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.” Id. (citation

• mitted). Court reviews rulings of law de novo, and the “ultimate finding may be

subject to plenary review if it rests on a predicate finding which reflects a misperception of a legal rule applicable to the particular factor involved.” Id. at 319-20.

• IV. Sanctions for Violating Conditions of Release - § 3148
• A. Revocation of Release and Detention

10

Initiated by Government motion; court may issue warrant for defendant’s arrest. Where revocation is based on allegation that defendant committed a crime while on release, “[t]o the extent practicable,” he “shall be brought before the judicial officer who ordered the release and whose order is alleged to have been violated.” Requires finding of

• 1. “Probable cause” to believe that defendant has committed another crime. §

3148(b)(1) and a finding either that no condition or combination of conditions will assure defendant’s appearance or the safety of the community, or, that defendant is “unlikely to abide by any condition or combination of conditions of release.” However, in this situation there is a “rebuttable presumption” that no condition or combination of conditions will assure defendant’s appearance and the safety of the community. See, e.g., Mustachio, 254 F. App’x at 254 (“conclusory denials” of intent to jeopardize the safety of others did not overcome presumption). Probable cause can be established by proffer and requires only a “practical probability that the evidence supports a finding that the defendant has committed a crime while on bail.” United States v. LaFontaine, 210 F.3d 125, 133 (2d Cir. 2000) (alteration, internal quotation marks and citation omitted). Fact of indictment is probable cause. United States v. Contreras, 776 F.2d 51, 55 (2d Cir. 1985). But, nevertheless, the court’s findings must be sufficient to meet this standard. Thus, in United States v. Begleiter, 1999 WL 753150 (2d. Cir. 1999) (unpublished

• rder), a statement to the effect that the defendant “gets two strikes and he’s
• ut,” improperly treated the presumption as “irrebuttable,” and the circuit vacated

and remanded.

• 2. Or, “clear and convincing evidence” of a violation of any other condition of

release and a finding either that no condition or combination of conditions will assure defendant’s appearance or the safety of the community, or, that defendant is “unlikely to abide by any condition or combination of conditions of release.”

• B. Contempt of Court

Court may also initiate criminal contempt proceedings under 18 U.S.C. § 401. Circuit has not commented on this

• V. Bail Pending Sentence - § 3143(a)
• A. Detention Pending Sentence Presumptive Unless

11

• 1. Guidelines Do Not Recommend Imprisonment, or
• 2. “Clear and Convincing” Evidence that Defendant Not a Flight Risk or a Danger
• B. Detention is Even More Presumptive in § 3142(f)(1)(A),(B) and (C) Cases

But not § 3142(f)(1)(D) and (E) cases For these cases, court must find “a substantial likelihood that a motion for acquittal or new trial will be granted,” or the Government has recommended that no sentence of imprisonment be imposed, and there is “ clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community.” However, defendant who does not meet these criteria can still be released if he establishes “exceptional reasons” why his detention “would not be appropriate.” § 3145(c)

• a. Defendant’s Health
• b. Substantial Assistance
• c. Exceptional Pretrial Performance/Rehabilitation
• d. Family or Business Obligations

For each of these factors, there are decisions going both ways. Best cases are those where defendant can establish a combination of two or more factors. The Second Circuit has construed the phrase to mean, “a unique combination of circumstances giving rise to situations that are out of the ordinary.” United States v. Lea, 360 F.3d 401, 403 (2d Cir. 2004). Courts in the Second Circuit have found that a combination of unique facts that includes personal factors may be so exceptional as to warrant release. United States v. DiMattina, 885 F. Supp. 2d 572, 589 (E.D.N.Y. 2012). See also States v. Lipold,175 F. Supp. 2d 537, 540 (SDNY 2001) (Sweet, J.)(“[I]n combination with other factors, family circumstances may warrant release pending sentencing pursuant to § 3145(c).”). Use the following non-exclusive factors, established by the Ninth Circuit, in United States

• v. Garcia, 340 F.3d 1013, 1019-21 (9th Cir. 2003), for determining whether exceptional

reasons exist: whether the defendant's criminal conduct was aberrational; whether the defendant led an exemplary life prior to his offense and would be likely to continue to contribute to society significantly if allowed to remain free on bail; the nature of the

• ffense of conviction; the length of the likely prison sentence; whether prison would

impose unusual hardships on a defendant due to illness or injury; whether the defendant is exceptionally unlikely to flee or to constitute a danger to the community; and, whether the defendant was unusually cooperative with the government. See also United 12

States v. Reboux, No. 5:06–CR–451, 2007 WL 4409801 at *2 (N.D.N.Y. Dec. 14, 2007). See also United States v. Sabhnani, 529 F. Supp. 2d 377, 382 (E.D.N.Y.2007) (citing Garcia). Case law is all over the place; very much a “we know it when we see it” approach. United States v. DiSomma, 951 F.2d 494, 497 (2d Cir. 1991), cites a Justice Department letter to a Senator giving two situations where exceptional reasons might exist: “In the first, an elderly man with lifelong community ties, convicted under the federal murder statute of the mercy killing of his wife, challenges the applicability of that statute to mercy killings, a question of first impression in the circuit. The second example posited a seriously wounded drug dealer whose appeal raised a novel search and seizure issue which could change the outcome of his trial.”

• VI. Bail Pending Defendant’s Appeal or Certiorari - § 3143(b)

Detention Presumptive in Ordinary Cases Unless Clear and Convincing Evidence that:

• A. Defendant Not a Flight Risk or a Danger, and
• B. Appeal Not for Purposes of Delay, and
• C. Appeal Raises a “Substantial Question of Law or Fact Likely to Result in” Reversal,

New Trial, a Sentence That Does Not Include Imprisonment, or a Sentence Shorter than the Time Already Served and the Likely Duration of the Appeal Process A substantial question is one that is "fairly debatable," or "fairly doubtful." United States

• v. Handy, 761 F.2d 1279, 1283 (9th Cir.1985) (internal citations omitted). A question of

more substance than would be necessary to a finding that it was not frivolous. Id. (quoting United States v. Giancola, 754 F.2d 898, 901 (11th Cir.1985)). The court need not find that its ruling was wrong, just that it is “fairly debatable.” Handy, 761 F.2d at

• 1283. A question not yet decided by controlling precedent can present a substantial
• question. Id.
• D. Cases Where Detention Is Mandatory Pending Appeal

If defendant is convicted of a § 3142(f)(1)(A) through (C) offense, but not a (D) or (E), detention pending appeal is mandatory subject to “exceptional reasons.” 13

• VII. Release Pending Government’s Appeal - § 3143(c)
• A. Detention Mandatory if Defendant Sentenced to a Term of Imprisonment
• B. In Any Other Case, Court Is to Apply § 3142
• VIII. Detention of Material Witness - § 3144
• A. Arrest Warrant
• B. Party Must Show that the Person’s Testimony Is “Material” and
• C. That Securing his Presence by Subpoena “May Become Impracticable”
• D. Person Is then Subject § 3142.

No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition can be taken. Section 3144 applies to grand jury proceedings. United States v. Awakallah, 436 F.3d 125, 130 (2d Cir. 2006).

• IX. Penalties for Failure to Appear - § 3146
• A. Statutory Directives

Offense occurs where defendant “knowingly fails to appear” in court or “knowingly” fails to surrender for service of a sentence.” Statutory maximum sentence is pegged to the nature of the underlying offense. Applies to material witnesses, too. “A term of imprisonment imposed under this section shall be consecutive to the sentence

• f imprisonment for any other offense.”
• B. Sentencing Guidelines

U.S.S.G. § 2J1.5 - Failure to Appear by Material Witness U.S.S.G. § 2J1.6 - Failure to Appear by Defendant 14

No obstruction of justice enhancement for underlying case; defendant can still get it if he

• bstructs the failure to appear case
• C. Affirmative Defense

“[U]ncontrollable circumstances prevented the person from appearing or surrendering, and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender, and that the person appeared or surrendered as soon as such circumstances ceased to exist.” § 3146(c). This means either “physical prevention” or “mental prevention,” which is “[u]ncontrollable duress ... sufficient to produce an unavoidable fear of serious bodily injury or death. United States v. Veilleux, 40 F.3d 9, 10 (1st Cir. 1994).

• D. Forfeiture of Property

Any property posted to secure release may be forfeited to the United States.

• I. Penalties for Committing Crime While on Release - § 3147
• A. Statutory Directives

Statutory maximum of ten years if underlying offense is a felony and one year if underlying offense is a misdemeanor Statute requires a consecutive sentence

• B. Sentencing Guidelines

A three-level upward adjustment under U.S.S.G. § 3C1.3. But, to comply with the statutory requirement of consecutive sentence, court must “apportion”; that is, “divide the sentence on the judgment form between the sentence attributable to the underlying

• ffense and the sentence attributable to the enhancement.” The

total sentence should be within the range that includes the three-level enhancement. “For example, if the applicable adjusted guideline range is 30-37 months and the court determines a ‘total punishment’ of 36 months is appropriate, a sentence of 30 months for the underlying offense plus 6 months under 18 U.S.C. § 3147 would satisfy this requirement.” 15