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Handling Your First Federal Bail Application

By Elliot J. Blumenthal

When a defendant is charged with a crime, the first issue defense counsel will have to address is bail. The attorney must understand the purposes of pretrial detention and bail. First, pretrial detention removes dangerous people from society and keeps flight risks from fleeing. In certain cases where there is strong evidence that a defendant has committed violent crimes, the prosecutor will argue that he or she needs to be held in custody pending trial so as to safeguard the public from this dangerous individual. Similarly, if there is reason to believe that the defendant is ready, willing, and able to flee, the prosecutor will ask for detention. Second, the purpose of bail is to ensure the defendant’s presence in court while the case is pending. If the defendant fails to appear for his or her case, the government receives the amount of money (whether in the form of cash, a bond, or property) that was pledged. The people who pledge property are called sureties. The theory is that when the defendant, or his or her family or others who are close to him or her, has put up significant amounts of money or property, the defendant will not want them to lose that money or that house and will appear in court to make sure that the money is kept by the sureties at the end of the case.

The magistrate or district judge has four options pursuant to 18 U.S.C. § 3142(a): (1) release the defendant either on personal recognizance or on an unsecured bond; (2) release the defendant on conditions; (3) temporarily detain the defendant; or (4) detain the defendant pending trial. Let’s analyze each possibility.

Personal Recognizance/Unsecured Bond Release
Release on personal recognizance or on an unsecured bond as provided for in 18 U.S.C § 1842(b) is the least restrictive of the conditions. A judge will grant this type of release when the judge believes that the defendant is not a danger to society and the judge is confident that the defendant will not flee and will appear in court when required to do so. Obviously, this is the condition we as defense attorneys should aim for.

Conditional Release
However, there are cases for which the least restrictive conditions will not be granted. The next level is a release on conditions. The conditions will vary from case to case. In some recent high-profile cases, we have seen very creative and unusual release conditions imposed with wealthy defendants paying for electronic monitoring and private security guards. Those types of conditions will not always be options for our clients. In 18 U.S.C § 3142(c)(B), the statute explains that once the court determines that the least restrictive conditions are not appropriate for the case, the judge is to release the defendant “subject to the least restrictive further condition, or combination of conditions, that such judicial officer determines will reasonably assure the appearance of the person as required and the safety of any other person and the community.”

The statute goes on to list what some of those conditions might be. For example, the defendant can be required to remain in the custody of a designated person who agrees to assume supervision and to report any violation of a release condition to the court. The defendant can be required to maintain employment or an educational program. The court can impose restrictions on personal associations, contact with alleged victims or potential witnesses, and places of residence or travel. The defendant will most likely be required to report on a regular basis to a designated law enforcement agency such as the pretrial-services agency, and to refrain from possessing a firearm, destructive device, or other dangerous weapon. Additionally, the court may require that the defendant refrain from excessive use of alcohol, or any use of a narcotic drug or other controlled substance, and undergo available medical, psychological, or psychiatric treatment.

The most common conditions will be the financial conditions requiring the defendant to have a certain number of financially responsible sureties sign a bond in the amount determined by the court. The bond will usually be secured by either cash, other assets approved by the government and the court, or real property. When real property is used to secure the defendant’s appearance, there is additional paperwork that must be done to give the government a lien on the property. Defense counsel must act quickly in getting the ball rolling with the defendant’s family and the sureties. To use real property, you will need a copy of the deed showing that the surety owns the property. At times that will suffice, but a better practice is to obtain a title report on the property to further substantiate the surety’s ownership of the property in question.

You will also need an appraisal of the property. There are different levels of formality involved in appraisal. If a prosecutor will be satisfied with a letter from a real-estate broker in the area opining as to the value of the property based upon recent comparable sales in that neighborhood, that is the quickest and least expensive way to appraise the property. However, that will not always be sufficient. A formal appraisal is more expensive and could take longer but might be required. An appraiser should be contacted as soon as possible to start the process. To complete the determination of the value of the property for purposes of bail, the attorney must find out if there are any mortgages on the property. That information will also appear in the title report. The owner must provide the most recent mortgage statement showing how much is owed to the lender. The surety’s equity in the property, not the total appraised value, is what can be used for bail.

Temporary Detainer
The next option in the statute is when a defendant is temporarily detained. 18 U.S.C. § 3142(d). This type of detention is imposed when the defendant has another case pending or an immigration detainer. This is often a situation beyond the attorney’s control, whereby the court must detain the defendant until the issues in the other matter are resolved.

Detainer Pending Trial
Finally, under 18 U.S.C. § 3142(e), if “after a hearing pursuant to the provisions of subsection (f) of this section, the judicial officer finds 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, such judicial officer shall order the detention of the person before trial.” Note that the defendant is entitled to a hearing pursuant to 18 U.S.C. § 3142(f). At the hearing, the defendant has a right to be represented by counsel, present evidence, cross-examine the government’s witnesses, and call his or her own witnesses.

The court’s determination 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, must be supported by clear and convincing evidence. Even if detained, the defendant can renew his bail application until trial and reopen the hearing if there is new information to present. The factors the court is to consider at the hearing are listed in 18 U.S.C. § 3142(g). Among them are the nature of the alleged offense, including whether it is a crime of violence, the weight of the evidence against the defendant, and the history and characteristics of the defendant, including his or her criminal history, community ties, and family situation.

At the arraignment, counsel must be prepared with copies of the paperwork concerning the real property that may need to be pledged. It is best to have the sureties as well as other family members and friends in the courtroom. A strong show of support by the presence of people in the courtroom will buttress your argument that the defendant has family and community ties and will not flee. If applicable, you must stress that the defendant has a stable family life, stable employment, and has lived in the same home or community for a period of time.

Having a client out on bail while the case is pending is obviously better for the client. It also makes things much easier for the attorney in defending the case. The client will be able to assist in the defense much more easily than if the attorney has to go to the prison to meet with the defendant and discuss the case. It is important that defense counsel make all available arguments and try every way possible to get bail. Ultimately, it will help the client and the attorney.

Keywords: Criminal litigation, federal bail application

Elliot J. Blumenthal is counsel in the New York, New York, office of Buchanan Ingersoll & Rooney PC.

This article appears in the Spring 2010 issue of Criminal Litigation from the Criminal Litigation Committee.


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