Author: Marcus J. Berghahn

Obtaining pretrial release for a new client is the first and best step toward achieving a good result for your client in federal court, regardless of whether the ultimate disposition is a sentence at the low end of the guideline range (or, perhaps, a downward departure) or acquittal.

Pretrial release is a trial issue.

Pretrial release is critical to permit a client to effectively assist in his defense (locate witnesses, review documents, prepare to testify, avoid jail house pallor). Studies have demonstrated a correlation between pretrial release and acquittal at trial. Pretrial release also permits the client to put his/her financial, personal and family affairs in order prior to serving a sentence.

Pretrial release is a sentencing issue.

Pretrial release (and release pending sentencing) affect the Bureau of Prison’s risk assessment, thereby affecting the type of institution a client may be designated to.

Pretrial release requires a number of steps, all of which should be carefully considered with an eye toward the Federal Sentencing Guidelines and disposition, since the vast majority of cases in federal court result in an adjudication of guilt (the overwhelming majority of which are resolved by guilty plea).

Pretrial release can be broken down into four steps:

1. Bail interview
2. Bail Report
3. Release Plan
4. Detention Hearing.

1. Bail Interview

Upon appointment of a new client, call U.S. Probation and Pretrial Services (“USPO”) to establish a time-line for a bail interview. Then call the assistant U.S. Attorney assigned to the case in order to obtain as much information as possible about the offense and whether or not the prosecutor will seek pretrial detention.

• Prepare client:

(1) For the interview with USPO

Be sure explore criminal history and any history of missed court appearances. You must find out about every conviction. Be assured that the USPO will find out any convictions that your client did not tell you about. If that happens, at best your client will not be trusted. At worst the client could be charged with another offense or have a potential sentence enhanced.

Understand potential cultural barriers.

(2) For all aspects of the relationship with the USPO

The need for truthful answers, the nature and timing of regular weekly contacts.

(3) For the hearing, and provide a quick sketch of federal sentencing guidelines

• Always be present with your client for the interview with USPO.

USPO in this district will respect your request to always be present for client interviews; in fact, the U.S. District Court has ordered that the USPO shall not contact the accused without the consent of counsel.

Caveat, if counsel does not contact USPO to arrange the bail interview, the Court will be informed of this fact and counsel’s standing in the eyes of the Court will suffer (i.e., breaks may not fall your way).

• Emphasize to the client that there are only two choices when providing information to USPO:

(1) a truthful answer; or

(2) no answer.

• “Spinning” an answer or providing a deceptive answer both may have perilous results.

See 18 U.S. Code § 1001 and U.S.S.G. § 3C1.1 (obstruction or impeding the administration of justice).

• Attitude: the first meeting is more important than meeting future in-laws for the first time.

• “Promote” the client to the USPO: emphasize the client’s ties to the community, employment, residence and good deeds.

Be aware of cultural barriers between you, your client and the USPO, which may cause problems in the relationship. Identify difficult areas so that you, the client and the USPO all have the same expectations.

• Prepare a release plan that you can verbalize to the USPO, even if you have not been able to finalize the plan; get the USPO thinking in terms of release.

• Know the applicable U.S.S.G. guidelines; explain the sentencing guidelines to client. Always keep an eye on sentencing issues: especially the enhancements for acceptance of responsibility and obstruction of justice. You need to persuade the USPO to give your client the benefit of the doubt on all issues at the outset. It’s never too early to talk about sentencing issues; once the USPO’s opinion is set in writing (i.e., once the PSR is drafted), it’s too late.

• Know whether or not to discuss AODA issues at this time, or ever.

Nota Bene: After the initial appearance the client will be required to provide an urinalysis to the USPO: know whether or not it will be “dirty” or not.

Explore whether client would be eligible for BOP AODA Treatment programs resulting in cut in time served. This needs to be established at the time of the bail interview in order to be successful at the time of sentencing. Beware, however, that this approach may result in more strict supervision or treatment programing pending trial or sentencing.

• Explore whether AODA treatment pending trial is a good thing (keep client out of trouble, USPO pays, effect on sentencing).

• Do not set client up for failure.

See 18 U.S. Code § 3147

(penalty for an offense committed while on release)

See 18 U.S. Code § 3148

(sanctions for violation of a release condition);

Violation of Rules of Pretrial Release = Revocation of Pretrial Release

Revocation of Pretrial Release = Detention

Detention = Dane County Jail

• Know everything the client will say (or is tempted to say) in advance.
• If possible, obtain statements from parents, friends, employers which you can provide to the USPO at the bail interview and which will form part of release plan (and later will contribute to sentencing strategy).
• Two issues which may arise and which need to be addressed at this early stage as well are:

(1) Competency of client (health and mental health); and

(2) Foundation for mental disease/defect defense.

Absent contrary evidence, the court presumes a defendant to be competent. Once the issue is raised, however, the government bears the burden of proof. See United States v. Teague, 956 F.2d 1427 (7th Cir. 1992).

• Explore travel restrictions and their necessity, especially if the client resides outside of this district. Make sure the client understands these restrictions.
• Make sure the client understands all restrictions.

In the case of a negotiated plea, reached prior to the bail interview, have sentencing materials prepared to provide to USPO.

These materials include: written statement of offense, statement on relevant conduct (if appropriate), biographical statement, list of family members’ addresses, financial information, and letters on client’s behalf.

This is your chance to do the PSR author’s work. Provide the PSR writer with information in a manner that he/she can easily access the information. Keep in mind that in many cases, the information you provide the USPO will also be provided to the Court as an attachment to the PSR.

Home Visit

In certain cases, especially those which are scheduled pursuant to a negotiated plea, the USPO may conduct a home visit of the accused prior to the writing of the bail report. Other times the home visit will occur after the accused is release according to the release plan.

This visit presents an opportunity to subtly affect the post-adjudication process and permits the accused to be “observed” by the USPO in a more relaxed environment.

Counsel should be present for the home visit and the client should counseled about appropriate behavior and the purpose of the visit (appropriateness of home, assure that no illegal activity is going on in home, identify issues such as AODA or potentially relevant conduct).

The findings of the home visit will show up on the bail report and in the PSR. The USPO’s impressions have the potential of coloring future reports and how issues arising during pretrial release will be handled.

2. Bail Report

After the bail interview and checks with collateral sources (e.g., employers, family, etc.) the USPO will draft a bail report to the Court. Call the USPO prior to the initial appearance to obtain the report. Normally counsel is provided with a copy of the report at the time of the initial appearance.

Note all factual mistakes, especially those with respect to criminal records and ties to the community.

3. Release Plan

The release plan should address the statutory concerns of public safety and flight as well as the standard conditions of release. The release plan is also an opportunity to present the court with favorable character evidence and to humanize your client.

Considerations important for counsel and USPO to keep in mind when arriving at a release plan:

rural/urban residence
employment
dependents
ability to flee
treatment needs.

Provide the USPO with information that can be verified. If possible provide him with the names and addresses of individuals who will be included in the release plan at the first meeting. Where you can do the work for the USPO, do so.

Provide specifics: where will accused reside; with whom; how will the accused be supervised; are there AODA or other treatment concerns (if so, what are you doing about it).

For the USPO, the Court and yourself, include a section on the applicable standards/presumptions (the record will be self contained).

Modalities for Supervising Release

Electronic monitoring
Home confinement
“Sobrietor” (alcohol monitoring at home)
Random urinalysis
Drug patch
Daily check-in with either USPO or local law enforcement
AODA treatment (in-patient and/or out-patient treatment)
Travel restrictions (file passport with Clerk of Court)
Standard conditions

4. Detention Hearing

A detention hearing is required upon the accused’s first appearance, unless the government or the accused requests a continuance. 18 U.S. Code § 3142(e).

18 U.S. Code § 3142(a) provides that an individual accused of a criminal offense may be, [as interpreted by this District Court, in the eyes of the author]:

18 U.S. Code § 3142(a) provides that an individual accused of a criminal offense may be, [as interpreted by this District Court, in the eyes of the author]:

• released on personal recognizance; [and]

• released on conditions (copies of the standard conditions have been provided by Magistrate Judge Crocker); [or]

• temporarily detained to permit revocation of conditional release, deportation or some other exclusion pursuant to 18 U.S. Code § 3142(e) [or pending the evaluation of the adequacy of the release plan].

Continuances are automatic but limited to five days at the request of the accused and three days if the requested by the government.

Good cause may require the court to extend the continuance. United States v. Lee, 783 F.2d 92, 93 (7th Cir. 1986).

This district’s Magistrate Judge is very gracious in interpreting what constitutes “good cause” for a continuance.

This time period does not commence until the accused makes an initial appearance before a judge where the options concerning bail are at issue. Id.

Use the time to do your homework! Do not go into hearing unprepared – the court will grant you a continuance, request it if you need it; Magistrate Crocker is flexible on this point.

You need a release plan to demonstrate to the USPO and Court that there exist conditions of release or a combination of conditions which will reasonably assure the appearance of the person as required and the safety of any other person and the community. 18 U.S. Code § 3142(e).

• Discuss with your client the pros/cons of seeking a continuance.

The considerations brought to bear with respect to pretrial release include: nature of the offense, weight of the evidence, character, family ties, employment and criminal history of the accused. 18 U.S. Code § 3142(g).

• Know whether or not there is a presumption against release.

If the accused is charged under certain sections of the U.S. Code, including drug and firearms offenses that carry a maximum sentence of 10 years or more, then there exists a rebuttable presumption that no conditions or combination of conditions permitting release exists. See 18 U.S. Code § 924(c).

Be aware of “crimes of violence” that may require exceptional reasons for release (e.g., pending appeal). Conviction for being a felon in possession (18 U.S. Code § 922(g)(1)) is not a crime of violence that does not permit one to draw the conclusion that the risk of violence posed by the defendant is substantial. United States v. Lane, 252 F.3d 905 (7th Cir. 2001).

This presumption “shifts the burden of production, but not the burden of persuasion” to the accused. United States v. Portes, 786 F.2d 758, 764 (7th Cir. 1985).

Importantly, the government does not have to satisfy both prongs. Concerns over either flight or safety may justify pretrial detention. Id.

• Notwithstanding the fact that the law does not provide for it, even presumptions against release can be overcome if you prepare a short term release plan (USPOs and Judges, just like you, have a heartstrings that can be pulled).

e.g., need for child care for one or two day, death in family, court date for children’s guardianship is one or two days away, etc. You need to package the argument in terms of (1) no additional risk of flight; (2) impact upon others, especially children, is lessened as a result of release; and (3) inability of accused to control scheduling of event for which you seek to keep client out of custody.

Nota Bene: Be aware that in drug and weapons offenses, once the client enters a plea, pretrial release will be revoked and the client will be incarcerated through the sentencing hearing (until the sentence is discharged).

The presumption, upon the entry of a plea, becomes irrefutable. This may appear obvious to counsel, but is a point that is usually lost on a client who is unfamiliar with the federal sentencing process. There is no worse surprise for a client and his/her family after a plea hearing than being taken into custody without prior warning (i.e., hugs and goodbyes should be said prior to the hearing). See 18 U.S. Code § 3143.

5. Other issues related to pretrial detention

Once detained, how long is too long before an accused’s Sixth and Eighth Amendment rights are affected?

In United States v. Infelise, 934 F.2d 103(7th Cir. 1991)(one year when motion was brought and trial was scheduled seven months in the future), the Seventh Circuit held that if the judge and prosecutor are doing all they can to move the case forward, the statutory criteria for detention are met, no constitutional problems arise. Infelise, 934 F.2d at 104.

In order to bring a claim for release, or in the language of the Infelise court, “to get to first base,” the accused must show “that the prosecution or the court unnecessarily delayed in bringing the case to trial.” Id.; but see United States v. Warneke, 1999 WL 1128714 (7th Cir. 1999)(defendants detained for nearly three years; due process concerns raised in dicta).

6. Appeal of Detention Order

The accused (or the government) may seek review of the detention/release order at any time. “The motion shall be determined promptly.” See U.S. Code § 3145.

Appeal process is two tier: with court of original jurisdiction and with court of appeals.

While providing for appellate review, the statute does not indicate the standard which the court must employ. Three alternatives have been articulated. The Second and Fourth Circuits apply the “clearly erroneous” standard. United States v. Chimurenga, 760 F.2d 400, 405 (2nd Cir. 1985); United States v. Williams, 753 F.2d 329, 333 (4th Cir. 1985). The Third, Sixth, Eighth, Ninth, and Eleventh Circuits require an independent review of the entire record to determine if the detention decision was correct. United States v. Delker, 757 F.2d 1390, 1399 1400 (3rd Cir. 1985); United States v. Hazime, 762 F.2d 34, 36 37 (6th Cir. 1985); United States v. Maull, 773 F.2d 1479, 1487 (8th Cir. 1985); United States v. Montamedi, 767 F.2d 1403, 1406 (9th Cir. 1985); United States v. Hurtado, 779 F.2d 1467, 1472 (11th Cir. 1985). Finally, the First and Fifth Circuits, without extended discussion, looked to the 1966 version of the Act and adopted the “supported by the proceedings below” standard contained in that act. United States v. Jessup, 757 F.2d 378, 387 88 (1st Cir. 1985); United States v. Fortna, 769 F.2d 243, 250 (5th Cir. 1985).

The Seventh Circuit has joined the majority of the circuits in adopting the so called “independent review” standard. United States v. Portes, 786 F.2d 758, 764 (7th Cir. 1985).

  Practice pointer: The magistrate judge applies the conditions of release most liberally. Consequently, appeal of the detention order to the District Court will result in affirmance of the Magistrate’s order. Consequently, you need to win before the Magistrate Judge.

Keep in mind that one of the District Court judges has not let the Magistrate Judge forget that he once authorized a foreign national’s pretrial release (with the concurrence of the USPO) in a case where the accused had resided in the area for 20 years, owned a home, etc. As with all such stories, the foreign national defendant fled to his home country and has never been heard from again.

7. Pretrial Restraint of Assets

It is worth mentioning, though generally not a concern for defendants appointed under the CJA, that the government may move (either by Indictment or separate proceeding) to restrain an accused’s assets that might be subject to forfeiture upon conviction. See, e.g., 21 U.S. Code § 853(e)(concerning controlled substance offenses) and 18 U.S. Code § 982 (numerous other offenses); United States v. Kirschenbaum, 156 F.3d 784, 792 (7th Cir. 1998)(indictment provides notice of the government’s ability to restrain defendant’s assets); United States v. Moya-Gomez, 860 F.2d 706 (7th Cir. 1988)(person whose assets are restrained and who cannot obtain counsel of choice without access to the restrained assets has a due process right to an adversary proceeding to determine whether probable cause exists for forfeiture); and United States v. Michelle’s Lounge, 39 F.3d 684 (7th Cir. 1994)(extending Moya-Gomez to require a hearing where only assets available to pay criminal defense lawyer have been seized pursuant to parallel civil forfeiture proceedings).