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US Attorneys > USAM > Title 9
prey I next I Criminal Resource Manual 
9-6.000 
RELEASE AND DETENTION 
PENDING JUDICIAL PROCEEDINGS -
18 U.S.C. §§ 3141 ET SEQ. 
9-6.190 Introduction 
9-6.200 Pretrial Disclosure of Witness Identity 
9-6.100 Introduction 
The release and detention of defendants pending judicial proceedings is governed by the Due 
Process Clause of the Fifth Amendment, the Excessive Bail Clause of the Eighth Amendment, and the 
Bail Reform Act of 1984. The Bail Reform Act of 1984 provides procedures to detain a dangerous 
offender, as well as an offender who is likely to flee pending trial or appeal. See United States v. 
Salerno, 481 U.S. 739 (1987). 
For a discussion of the provisions of the Bail Reform Act of 1984 (18 U.S.0 §§ 3141 et seq.) and 
related case law see the Criminal Resourceiganutl at 26. 
9-6.200 Pretrial Disclosure of Witness Identity 
Insuring the safety and cooperativeness of prospective witnesses, and safeguarding the judicial 
process from undue influence, are among the highest priorities of federal prosecutors. See the Victim 
and Witness Protection Act of 1982, P.L. 97-291, § 2, 96 Stat. 1248-9. The Attorney General Guidelines 
for Victim Witness Assistance 2000 provide that prosecutors should keep in mind that the names, 
addresses, and phone numbers of victims and witnesses are private and should reveal such information 
to the defense only pursuant to Federal Rule of Procedure 16, any local rules, customs or court orders, or 
special prosecutorial need. 
Therefore, it is the Department's position that pretrial disclosure of a witness' identity or statement 
should not be made if there is, in the judgment of the prosecutor, any reason to believe that such 
disclosure would endanger the safety of the witness or any other person, or lead to efforts to obstruct 
justice. Factors relevant to the possibility of witness intimidation or obstruction of justice include, but 
are not limited to, the types of charges pending against the defendant, any record or information about 
the propensity of the defendant or the defendant's confederates to engage in witness intimidation or 
obstruction of justice, and any threats directed by the defendant or others against the witness. In 
addition, pretrial disclosure of a witness' identity or statements should not ordinarily be made against the 
known wishes of any witness. 
However, pretrial disclosure of the identity or statements of a government witness may often 
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USAM 9-6.000 RELEASE AND DETENTION PENDING JUDICIAL PROCEEDINGS 
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. 
promote the prompt and just resolution of the case. Such disclosure may enhance the prospects that the 
defendant will plead guilty or lead to the initiation of plea negotiations; in the event the defendant goes 
to trial, such disclosure may expedite the conduct of the trial by eliminating the need for a continuance. 
Accordingly, with respect to prosecutions in federal court, a prosecutor should give careful 
consideration, as to each prospective witness, whether absent any indication of potential adverse 
consequences of the kind mentioned above reason exists to disclose such witness' identity prior to trial. 
It should be borne in mind that a decision by the prosecutor to disclose pretrial the identity of potential 
government witnesses may be conditioned upon the defendant's making reciprocal disclosure as to the 
identity of the potential defense witnesses. Similarly, when appropriate in light of the facts and 
circumstances of the case, a prosecutor may determine to disclose only the identity, but not the current 
address or whereabouts of a witness. 
Prosecutors should be aware that they have the option of applying for a protective order if 
discovery of the private information may create a risk of harm to the victim or witness and the 
prosecutor may seek a temporary restraining order under 18 U.S.C. § 1514 prohibiting harassment of a 
victim or witness. 
In sum, whether or not to disclose the identity of a witness prior to trial is committed to the 
discretion of the federal prosecutor, and that discretion should be exercised on a case-by-case, and 
witness-by-witness basis. Considerations of witness safety and willingness to cooperate, and the 
integrity of the judicial process are paramount. 
November 2000 
USAM Chapter 9-6 
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Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention 
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USABook Online > Criminal Procedure > Sixth Circuit Desk Book > Chapter 7 
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Chapter 7 
Bail and Detention Issues 
1. 
The Bail Reform.Act of 19,84 
H. 
Release or Detention Pending Trial 
ILA. 
Generally 
II.B. 
Release on Personal Recognizance or Unsecured Appearance Bond 
II.C. 
Release on Conditions 
II.C.I. sera* 
II.C.2. Release on Secured Appearance Bond 
II.C.3. gelease,_on Bail Bond with a Solyent Surety 
LLD. 
The Defendant's Failure tst  Appear 
ILE. 
Temporary Detention for Revocation of  Conditional Release or Deportation 
II.F. 
Detention 
II.F.1. Generally 
II.F.2. Risk of Flight
ILF.3. Dangerousness 
II.G. 
The Detention Hearing 
II.G.I. Hearing Procedures 
ILG.2. Criteria for Pretrial Release or_Detention 
11.G.3. Content  of Release or Detention Order 
II.G.4. Reopening the Detention Hearing 
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II.H. 
Review of Release/Detention Order by District Judge, Court of Appeals 
Ill. 
Release or Detention Pending Imposition or Execution of Sentence 
IV. 
Release or Detention Pending Appeal 
V. 
Release or Detention of Arrestees Other than Ordinary Defendants 
V.A. 
Probationers and Supervised Releasees 
V.B. 
Material Witnesses 
V.C. 
Aliens 
VI. 
Additional Resources 
I. The Bail Reform Act of 1984 
All things relating to bail in fede ral prosecutions are governed by the 
Bail Reform Act of 1984 (Act or 1984 Act) . In Reno v. Koray, 515 U.S. 50 
(1995), the Supreme Court explained: 
The Bail Reform Act of 1984 pr ovides a federal court with two 
choices when dealing with a crimina 1 defendant who has been "charged with 
an offense" and is awaiting trial, 18 U.S.C. § 3142(a), or who "has 
been found guilty of an offense and 
. . . is awaiting imposition or 
execution of sentence," 18 U.S.C. § 3143(a)(1) (1988 ed., Supp. V). 
The court may either (1) "release" the defendant on bail or (2) order him 
"detained" without bail. A court m ay "release" a defendant subject to a 
variety of restrictive conditions, including residence in a community 
treatment center. See SS 3142(c)(1)(2)(i), (x), and 
(xiv). If, however, the court "fin ds that no condition or combination of 
conditions will reasonably assure t he appearance of the person as required 
and the safety of any other person and the community," § 3142(e), the 
court "shall order the detention of the person," ibid., by issuing 
a "detention order" "direct(ing) th at the person be committed to the 
custody of the Attorney General for confinement in a corrections 
facility," S 3142(i)(2). Thus, under the language of t he Bail Reform 
Act of 1984, a defendant suffers "d etention" only when committed (by the 
district court) to the custody of t he Attorney General; a defendant 
admitted to bail on restrictive con ditions, as respondent was, is 
"released." 
515 U.S. at 57 (citations omitted); see also 18 U.S.0 § 3141(a) ("A 
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judicial officer [i.e., federal magistrate judge or district judge] . . 
before whom an arrested person is brought shall order that such person be 
released or detained, pending [further) j udicial proceedings, under this 
[Act]."). 
The 1984 Act completely superseded the Bail Reform Act of 1966 and funda -
mentally changed the law. "It transforme d preexisting practice in very 
significant ways, providing among other t hings for the pretrial detention of 
persons charged with certain serious felo nies on the ground of dangerousness 
--
a ground theretofore not cognizable." 
United States v. Tortora , 922 F.2d 
880, 884 (1st Cir. 1990).[9111] As a technical matter, the 1984 Act ad ded 
sections 3062 and 3141-3150 to Title 18 of the U.S. Code, and it repealed then 
existing sections 3043 and 3141 -3151. The 1984 Act also amended 18 U.S.0 . 
9S 3041, 3042, 3154, 3156, 3731, 3772, and 4 282; 28 U.S.C. § 636; 
Fed. R. Crim. P. 5, 15, 40, 46, and 54; a nd Fed. R. App. P. 9. 
II. Release or Detention Pending Trial 
A. Generally 
A person arrested for a federal off 
unnecessary delay before the nearest avai 
initial appearance. Fed. R. Crim. P. 5(a 
magistrate judge "shall," among other thi 
the defendant as provided by statute or i 
Rule 46, captioned "Release from Custody, 
release prior to trial shall be in accord 
and 3144." Fed. R. Crim. P. 46(a). Sect 
Bail Reform Act of 1984 (1984 Act). 
ense must be brought "without 
lable federal magistrate judge" for his 
), 9(c)(1). At this proceeding, the 
ngs, "detain or conditionally release 
n these rules." Fed. R. Crim. P. 5(c). 
" provides that "felligibility for 
ante with 18 U.S.C. S9 3142 
ions 3142 and 3144 are a part of the 
Under the 1984 Act, the magistrate judge "shall" 
charged with an offense" be 
(1) released on personal recogniza 
appearance bond, under subsect 
(2) released on a condition or com 
subsection (c) of this section 
(3) temporarily detained to permit 
deportation, or exclusion unde 
(4) 
order that a "person 
nce or upon execution of an unsecured 
ion (b) of this section; 
bination of conditions under 
revocation of conditional release, 
r subsection (d) of this section; or 
detained under subsection (e) of this section. 
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Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention 
U.S.C. § 3142(a). 
In figuring out which option to pic k, the magistrate judge relies 
-- at 
least in part -- on the recommendation of the U.S. Pretria 1 Services Agency. 
See 18 U.S.C. 55 3152-3154 (establishing Pretrial Services 
Agency in every judicial district and pre scribing duties); E.D. Mich. Local Crim. 
R. 5.1(b), 10.1(b). This recommendation is the result of a Pretrial Services 
Officer's (1) interview of the defendant, (2) receipt of information from the 
government and defense counsel, and (3) i ndependent (though brief and necessarily 
cursory) investigation of the defendant's residential, familial, and employment 
situations. The recommendation is usuall 
longer than 4 pages with a radioactive o 
uncommon for the recommendation to be mad 
insufficient time for the Pretrial Servic 
These recommendations typically carry som 
are not controlling. Remember that the P 
not know anything about the specifics of 
defendant unless those facts are made pla 
provide this information to the officer. 
government is seeking detention or restri 
should contact the Pretrial Services Offi 
that she has all of the available informa 
the defendant's (1) criminal record, (2) 
drug or alcohol abuse, (3) employment sit 
domestic situation and recent residential 
relevant. 
B. Release on Personal Recognizance or an 
"Release on personal recognizance," 
means release on the following conditions 
appear at all subsequent judicial proceed 
a Federal, State, or local crime," id. 
y made in writing (in a report rarely 
range cover sheet), but it is not 
e orally in open court because there was 
es Officer to prepare a written report. 
e weight with the magistrate judges, but 
retrial Services Officer will usually 
the offense or the dangerousness of the 
in in the charging document or you 
Thus, in any case in which the 
ctive conditions of release, the AUSA 
cer early in the process to make sure 
tion about both the crimes alleged and 
history of violence, jumping bail, and 
uation and history, (4) assets, (5) 
history, and (6) anything else that is 
Unsecured Appearance Bond 
18 U.S.C. § 3142(b) (caption), 
(1) that the defendant promise to 
ings(FN2J and (2) that he "not commit 
"Release on . . . (an] unsecured appearance bond," id. (caption), 
means release on the following conditions : (1) that the defendant promise to 
appear at all subsequent judicial proceed ings; (2) that he not commit another 
crime, id.; and (3) that he execute "an unsecured a ppearance bond in an 
amount specified by the court," id. A bond is a promise, see 
Black's Law Dictionary 
(Bryan A. Garn er ed., 7th ed. 1999), and an unsecured 
appearance bond is "(a) bond that holds a defendant liable for a breach of the 
bond's conditions (such as failure to app ear in court), but that is not secured 
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by a deposit of or lien on property," id. 
released on an unsecured bond, the defend 
signing an unsecured appearance bond in t 
that he agrees to forfeit $10,000 to the 
judicial proceeding. 
C. Release on Conditions 
at 170. 
Thus, if ordered 
ant need not put up any money. His 
he amount of, say, $10,000, simply means 
court if he fails to appear for a 
1. General ly 
If the court believes that release on personal recognizance or an unsecured 
appearance bond is inadequate to the task , it may order the defendant's release 
on certain additional conditions. 
See 18 U.S.C. § 3142(c)(1)(8). 
"Release on conditions," id. § 3142(c) (caption), means release on 
the following conditions: (1) that he pro mise to appear at all subsequent 
judicial proceedings; (2) that he not com mit another crime; and (3) that he be 
"subject to the least restrictive further condition, or combination of 
conditions, that such judicial officer de termines will reasonably assure the 
appearance of the person as required and( /or) the safety of any other person and 
the community(.]" 18 U.S.C. § 3142(c). Section 3142(c)(1)(8) lists the 
additional conditions of pretrial release that the court may impose, including 
a catch-all for "any other condition that is reas onably necessary to assure the 
appearance of the person as required and to assure the safety of any other person 
and the community." 18 U.S.C. § 3142(c)(1)(B)(xiv). Some of the more 
commonly used conditions require that def endants report as directed to their 
Pretrial Services Officers, stay within a specific geographical area (e.g., the 
State of Michigan, metropolitan Detroit ( specifying certain counties), surrender 
their passports, reside in specific house s or apartments, be electronically 
tethered to their houses ("home detention "), remain in the "custody" of a third 
party (e.g., uncle Sam, granny), seek or maintain employment, or submit to drug 
testing and treatment. 
With respect to financial condition s of release, the court may decide that 
an unsecured appearance bond is not enoug 
of the person as required and(/or) the sa 
community(,)" and that the defendant shou 
commitment to the court. The COURT may o 
financial conditions: first, the court ma 
secured appearance bond and put up some p 
court may order the defendant to execute 
If the defendant violates any condi 
be "subject to a revocation of release, a 
h to "reasonably assure the appearance 
fety of any other person and the 
ld also have to make a firmer financial 
rder either one of two additional 
y order the defendant to execute a 
roperty as the security; second, the 
a bail bond with a solvent surety. 
tion of his pretrial release, he could 
n order of detention, and a prosecution 
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for contempt of court." 18 U.S.C. § 3148(a). 
2. Release on Secured A ppearance Bond 
A secured appearance bond, see 18 V.S.C. § 3142(c)(1)(B)(xi), 
is an unsecured appearance bond that requ ires security in the form of personal 
or real property that is specified by the court. If the collateral for a secured 
appearance bond is cash, often referred t o as a "cash bond," the defendant must 
deposit the "cash" with the clerk's offic e. In this district, "cash" may take 
the form of "cash, [a] money order, or [a ] cashier's check made payable to 
'Clerk, United States District Court.'" E .D. Local Crim. R. 46.1(b)(1). A "VISA 
or MasterCard credit card is [also] accep table for a cash bond." 
Id. 
If the collateral for a secured app earance bond is property other than 
cash, the magistrate judge must obtain th e prior approval of a district judge. 
See E.D. Local Crim. R. 46.1(b)(2) ("Unless approved in writing by a 
District Judge, property [other than cash ] shall not be accepted as collateral 
for a bond."). A defendant seeking relea se on an appearance bond secured by non 
cash property "shall provide the court wi th proof of ownership and the value of 
the property along with information regar ding existing encumbrances as the 
judicial office may require." 18 U.S.C. § 3142(c)(1)(B)(xi). This office 
ordinarily opposes the use of non -cash property to collateralize an appeara nce 
bond.[FN3) 
To prevent property constituting or derived from criminal proceeds from 
serving as collateral for an appearance b ond, the 1984 Act provides: 
In considering the conditions of re 
(c)(1)(B)(xi) or (c)(1)(B)(xii) of 
upon his own motion, or shall upon 
an inquiry into the source of the p 
forfeiture or offered as collateral 
accept the designation, or the use 
because of its source, will not rea 
person as required. 
lease described in subsection 
this section, the judicial officer may 
the motion of the Government, conduct 
roperty to be designated for potential 
to secure a bond, and shall decline to 
as collateral, of property that, 
sonably assure the appearance of the 
18 U.S.C. § 3142(g). This section codifies the rule of United States v. 
Nebbia, 357 F.2d 303 (2d Cir. 1966), in which t he Second Circuit held that 
a district court has the authority to in quire into the source of a large cash 
bond (a 8100,000 cashier's check). The Nebbia court noted that "the mere 
deposit of cash bail is not sufficient to deprive the court of the right to 
inquire into other factors which might be ar on the question of the adequacy of 
the bail . . . ." 
Id. at 304. Of course, cash and non-cash property 
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representing or derived from criminal pro ceeds are not likely to assure the 
appearance of the defendant, who will oft en be all too happy to abandon such 
property as the cost of doing business. 
Thus, if indicated, the AUSA should request the court to examine whether 
the proposed collateral for an appearance bond is derived from criminal proceeds. 
Depending on the evidence produced at the hearing, called a "Nebbia 
hearing," the court could refuse to accep t the defendant's proposed collateral 
or the proposed surety. And whatever the court's decision turns out to be, if the 
AUSA believes that the collateral is "dir ty," she should consult with the Asset 
Forfeiture Unit of this office's Civil Di vision to assess the likelihood that the 
collateral (whether cash or non -cash property) could be subject to crimin al or 
civil forfeiture under 18 U.S.C. SS 981, 982 or 21 U.S.C. 9$ 
853, 881. 
3. Release on Bail Bond wit h a Solvent Surety 
A "bail bond with solvent sureties, " Is U.S.C. S 3142(c)(1)(3)(xii), 
is the other harsher financial alternativ e to an unsecured appearance bond. A 
bail bond with a solvent surety, also cal led a "surety bond," is basically a 
three-party agreement involving, naturally, a t hird party, the surety.[FN41 The 
defendant "executers) a bail bond with [a ] solvent suret[y]," and the solvent 
surety "executers) an agreement [with the court) to forfeit [to the court) such 
amount as is reasonably necessary to assu re appearance of the person as 
required." id.[FN5) Thus, if the court sets a surety bond in the amount 
of $100,000, and if the defendant thereaf ter fails to appear at a judicial 
proceeding, the surety must pay the court $100,000. 
Most sureties are corporations esta 
bailing people out. Corporate sureties, 
their customers a fee. Defendants in thi 
sureties that have been approved by the d 
For the court to approve of the use 
blished to engage in the business of 
like most service providers, charge 
s district may use only those corporate 
istrict court. 
of a non-corporate surety, it must be 
satisfied of the surety's solvency. Rule 46 provides in relevant part: 
(d) Justification of Sureties. 
Every surety, except a corporate 
surety which is approved as provide d by law, shall justify by affidavit 
and may be required to describe in the affidavit the property by which the 
surety proposes to justify and the encumbrances thereon, the number and 
amount of other bonds and undertaki ngs for bail entered into by the surety 
and remaining undischarged and all the other liabilities of the surety. No 
bond shall be approved unless the s urety thereon appears to be qualified. 
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Fdd. R. Crim. P. 46(d). Similarly, the 1 984 Act directs that a surety 
shall provide the court with inform 
and liabilities of the surety if of 
nature and extent of encumbrances a 
surety shall have a net worth which 
value to pay the amount of the bail 
18 U.S.C. S 3142(c)(1)(8)(xii). 
ation regarding the value of the assets 
her than an approved surety and the 
gainst the surety's property; such 
shall have sufficient unencumbered 
bond; 
In United States v. Nebbia , 357 F.2d 303 (2d Cir. 1966), the Second 
Circuit observed that a district court ma y reject a surety "'Ulf the court lacks 
confidence in the surety's purpose or abi lity to secure the appearance of a 
bailed defendant.'" Id. at 304. Thus, if indicated, the AUSA sh ould 
request the court to examine whether the defendant's proposed surety is 
sufficiently reliable and solvent. Depen ding on the evidence produced at the 
Nebbia hearing, the court could reject the prop osed surety. 
D. The Defendant's Failure to Appear 
If the court releases the defendant pending trial on an unsecured 
appearance bond, a secured appearance bon d, or a surety bond, and the defendant 
thereafter fails to appear for a judicial proceeding, the government should move 
for and "the district court shall declare a forfeiture of the bail." Fed. 
R. Crim. P. 46(e)(1); see also 18 U.S.C. 5 3146(d) ("judicial officer 
may 
. . declare any property designate d [as bail] to be forfeited 
to the United States"). To be useful, th e declaration of forfeiture must be 
followed by the entry of a civil judgment in favor of the government. But if the 
defendant surrenders himself or is arrest ed and dragged in by his surety(( FN6J] 
before entry of the judgment, "(t]he court may direct that [the] forfeiture be 
set aside in whole or in part, upon such conditions as the court may impose." 
Fed. R. Crim. P. 46(e)(2). If the defend ant does not reappear, "the court shall 
on motion [of the government] enter a jud gment of default and execution may issue 
thereon." Fed. R. Crim. P. 46(e)(31. 
A judgment for the government is en forced by the Financial Litigation Unit 
under the Federal Debt Collection Procedu res Act of 1990. See 28 U.S.C. 
S 3201-3206 (relating to government's "postjudgm ent remedies"). If the 
defendant reappears "(a)fter entry of suc h judgment, the court may remit it in 
whole or in part." Fed. R. Crim. P. 46(e )14). "When the condition of the bond 
has been satisfied or the forfeiture ther eof has been set aside or remitted, the 
court shall exonerate the obligors and re lease any bail. A surety may be 
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Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention 
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exonerated by a deposit of cash in the am ount of the bond or by a timely 
surrender of the defendant into custody." 
Fed. R. Crim. P. 46(f). 
The defendant's failure to appear h as serious nonfinancial consequences as 
well. Once the defendant is apprehended, he could be made "subject to a 
revocation of release, an order of detent ion, and a prosecution for contempt of 
court." 18 U.S.C. § 3148(a). In addition, he could be prosec uted for the 
separate offense of bondjumping. 
See id. § 3146. 
R. Temporary Detention for Revocation of Conditional Release or Deportation 
Temporary detention is a limited pe riod 
business days -- that can be ordered only in 
Temporary detention "shall" be ordered if 
* the defendant is on release pending 
or federal) that involves a felony; 
execution of sentence or pending ap 
probation or released on parole in 
of detention -- 
no more than 10 
certain limit ed circumstances. 
trial in another criminal case (state 
on release pending imposition or 
peal in another criminal case; on 
another criminal case, and 
* "the person may flee or pose a dang er to 
community." 18 U.S.C. SS 3142(d)(1)(A), 
Temporary detention "shall" also be order ed if 
any other person or the 
(2). 
* the defendant is neither a U.S. cit izen nor a permanent resident alien 
(i.e. someone with a "green card"), and 
* "the person may flee or pose a dang er to any other person or the 
community." 18 U.S.C. SS 3142(d)(1)(B), (2). 
During the period of temporary detention, the AUSA must 
notify the appropriate court, proba 
local law enforcement official, or 
Immigration and Naturalization Sery 
to take such person into custody du 
treated in accordance with the othe 
notwithstanding the applicability o 
release pending trial or deportatio 
tion or parole official, or State or 
the appropriate official of the 
ice. If the official fails or declines 
ring that period, such person shall be 
 provisions of this section, 
f other provisions of law governing 
n or exclusion proceedings. 
18 U.S.C. § 3142(d). "Such person shall be treated i n accordance with the 
other provisions of this section" simply means that the magistrate judge must 
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order that the defendant 
pending further judicial 
defendants. 
F. Detention 
be released (wit h or without conditions) or detained 
proceeding based on the criteria applicable to ordinary 
1. General ly 
Although there is a general presump tion in favor of pretrial release, the 
1984 Act provides that the magistrate jud ge "shall" order that the defendant be 
detained pending trial 
[i]f, after a hearing pursuant to t 
[magistrate judge] finds that no co 
will reasonably assure the appearan 
safety of any other person and the 
he provisions of [section 3142(f)1, the 
ndition or combination of conditions 
ce of the person as required and the 
community. 
18 U.S.C. 5 3142(e). Thus, a defendant may be detain ed because he 
represents an unacceptable risk of flight or an unacceptable danger to 
specific individuals or to the community at large. The AUSA should make clear 
to the court which basis for detention th e government is relying on, or that it 
is relying on both. 
2. Risk of Fl ight 
The 1984 Act authorizes the court t o order pretrial detention if there is 
"a serious risk that the [defendant] will flee." 18 U.S.C. 5 3142(f)(2)(A). 
The government must estab sh risk of fli ght by a preponderance of the evidence. 
See, e.g., United States 
Mercedes , 
F.3d 
, 
(2d Cir. 
It
2001) ("The government re ins the ultima to burden of persuasion by the lesser 
standard of a preponderance 
the eviden ce that the defendant presents a risk 
of flight."); United States 
Gebro , 948 F.2d 1118, 1121 (9th Cir. 1991) 
(per curiam) ("On a motion f r pretrial d etention, the government bears the 
burden of showing by a preponderance of t he evidence that the defendant poses a 
flight risk, and by clear and convincing evidence tir 
t the defendant poses a 
danger to the community."); see also United States 
Hazime, 762 
F.2d 34, 37 (6th Cir. 1985) ("Nor has the government distinguished between flight 
and dangerousness, although as we read se ction 3142(f), the clear and convincing 
standard applies only to the latter."). 
The 1984 Act creates a rebuttable p resumption in favor of detention based 
on risk of flight 
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if the judicial officer finds that 
the person committed an offense for 
of ten years or more is prescribed 
U.S.C. 801 et seq.), the Controlled 
U.S.C. 951 et seq.), the Maritime D 
1901 et seq.), or an offense under 
firearm in relation to crime of vio 
956(a) (conspiracy to kill, kidnap, 
[terrorism across international bou 
States Code. 
18 U.S.C. 5 3142(e). 
there is probable cause to believe that 
which a maximum term of imprisonment 
in the Controlled Substances Act (21 
Substances Import and Export Act (21 
rug Law Enforcement Act (46 U.S.C. App. 
section 924(c) (using or carrying 
lence or drug trafficking crime), 
etc. in a foreign country), or 2332b 
ndaries) of title 18 of the United 
The principal risk -of-flight considerations are whether the def endant (1) 
has substantial ties to the local communi ty (employment, spouse, children, 
ownership of business, real estate, or of her nonportable assets, etc.); (2) has 
failed to appear in court in another crim inal case; (3) has a genuine incentive 
to flee (high likelihood of conviction, e xposure to long prison term, likelihood 
of bad collateral consequences in other c riminal cases, fear of retribution from 
victims, etc.), and (4) has a mental dise ase or defect (too drunk, drug -addled, 
paranoid, schizoid, etc. to control own b ehavior). See 18 U.S.C. 5 
3142(g). 
3. Dangerous ness 
The 1984 Act authorizes the court t o order pretrial detention on the basis 
of dangerousness if (1) the defendant is charged with a "crime of violence,"( EN7) 
a capital offense, or a drug offense carr ying a maximum term of imprisonment of 
10 years or more, and (2) "no condition or combination of 
conditions or [pretrial release] will rea sonably assure . . . the safety of any 
other person and the community." 18 U.S. C. SS 3142(e), (f). The 
government must establish the defendant's dangerousness "by clear and convincing 
li
idence." Id. 5 3142(f); see also, e.g., United States 
Hazime, 762 F.2d 34, 37 (6th Cir. 1985) ("Nor h as the government 
istinguished between flight and dangerou sness, although as we read section 
3142(f), the clear and convincing standard applies only to the latter."). 
The 1984 Act also authorizes the co 
any case if there is "a serious risk that 
attempt to obstruct justice, or threaten, 
threaten, injure, or intimidate, a prospe 
§ 3142(f)(2)(B). 
urt to order pretrial detention in 
su ch person will obstruct or 
injure, or intimidate, or attempt to 
ctive witness or juror." 18 U.S.C. 
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The Act creates a rebuttable presum 
on dangerousness in two situations. The 
finds that there is probable cause to bel 
the charged offense and the charged 
maximum term of imprisonment of ten 
Controlled Substances Act (21 U.S.0 
Substances Import and Export Act (2 
Drug Law Enforcement Act (46 U.S.C. 
under section 924(c) [using or carr 
of violence or drug trafficking cri 
kidnap, etc. in a foreign country], 
international boundaries] of title 
18 V.S.C. S 3142(e). 
The second situation giving rise t 
dangerousness, also described in Section 
when it is determined that a person 
offense has in the past been convic 
while on pretrial release [i.e., a 
capital offense, or drug offense ca 
of 10 years or more). Such a histo 
mitigating information, a rational 
poses a significant threat to commu 
trusted to conform to the requireme 
ption in favor of detention based 
first is when the judicial officer 
ieve that the person committed 
offense is an offense for which a 
years or more is prescribed in the 
. 801 et seq.), the Controlled 
1 U.S.C. 951 et seq.), the Maritime 
App. 1901 et seq.), or an offense 
ying firearm in relation to crime 
me], 956(a) [conspiracy to kill, 
or 2332b [terrorism across 
18 of the United States Code. 
o a rebuttable presumption of 
3142(e), is 
charged with a seriously dangerous 
ted of committing another serious crime 
federal or state "crime of violence," 
rrying a maximum term of imprisonment 
ry of pre-trial criminality is, absent 
basis for concluding that a defendant 
nity safety and that he cannot be 
nts of the law while on release. 
S. Rep. No. 98-225, at 4 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 
3202. See 18 U.S.C. S 3142(e). This rebuttable presumption doe s not 
arise, however, if the period beginning w ith the date of defendant's prior 
conviction or the date of his release fro m imprisonment for that conviction, 
whichever is later, and the date of the d etention hearing exceeds five years 
Id. 5 3142(8)(3). 
G. The Detention Hearing 
Before issuing an order of pretrial detention, the magistrate judge must 
conduct a detention hearing. 
See 18 U.S.C. SS 3142(e), (f). 
1. Hearing Proc edures 
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• 
The 1984 Act requires that the dete ntion hearing be held "immediately upon 
the person's first appearance before the judicial officer," id. § 
3142(f), but it also entitles the governm ent to a continuance of the hearing for 
at least one but no more than three busin ess days, and entitles the defendant to 
a continuance of at least one but no more than five business days, id. 
§ 3142(f)(2). "(Nor good cause," the magi strate judge may grant either 
party a longer continuance. 
Id. "During (the] continuance, (the 
defendant) shall be detained . . . ." 
Id. CFN8l 
However, once the 
detention hearing begins, the defendant " may be detained pending 
completion of the hearing." 
Id. 
In practice, the magistrate judges 
continuances to the government only if th 
establishing a basis for detention author 
continuances that are granted are usually 
government fails to make an adequate prof 
the detention hearing immediately and rel 
of the hearing. 
in our district usually grant 
e AUSA makes a factual proffer 
ized by the 1984 Act, and the 
for only one or two days. If the 
fer, the magistrate judge may well start 
ease the defendant pending completion 
"The rules concerning admissibility of evidence in criminal trials do not 
apply to the presentation and considerati on of information at la detention) 
hearing." 18 U.S.C. § 3142(f). Thus, hearsay is admissible. 
See 
also Fed. R. Evid. 1101(6)(3) (FRE do not app ly to "proceedings with respect 
to release on bail or otherwise"). 
With respect to due process, the 19 84 Act provides: 
At the hearing, such person has the 
and, if financially unable to obtai 
counsel appointed. The person shal 
testify, to present witnesses, to c 
the hearing, and to present informa 
18 U.S.C. § 3142(f). 
The government's presentation of ev 
testimony of the case agent (who is the g 
and/or a proffer of evidence made by the 
automatically include the report of the P 
right to be represented by counsel, 
n adequate representation, to have 
1 be afforded an opportunity to 
ross-examine witnesses who appear at 
tion by proffer or otherwise. 
idence typically consists of the 
overnment's sole or principal witness), 
AUSA. The evidence will also 
retrial Services Officer. 
The Jencks Act, now codified at Fed . R. Crim. P. 26.2, applies to detention 
hearings. See Fed. R. Crim. P. 26.2(9)(3), 46(i). Thi s means that each 
party must disclose to the other party th e prior statements of its witnesses, if 
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any. Although a witness's prior statemen is are not required to be 
disclosed until after the witness testifi es on direct examination, see 
Fed. R. Crim. P. 26.2(a), the magistrate judge will likely be irritated if the 
government fails to disclose witness stat ements before the hearing begins. 
2. 
Criteria for Pretrial Rel ease or Detention 
The Act sets forth the criteria by which the court (usually the magistrate 
judge) must decide the question of pretri al release or detention. Section 
3142(g) provides that the court 
shall . . . take into account t he available information concerning 
(1) The nature and circumstances 
the o ffense charged, including 
If 
whether the offense is a crime of 
iolence or involves a narcotic drug; 
(2) 
(3) 
the weight of the evidence aga inst the person; 
the history and characteristic s of the person, including 
(A) the person's character, physical and m ental condition, family 
ties, employment, financial re sources, length of residence in the 
community, community ties, pas t conduct, history relating to drug or 
alcohol abuse, criminal histor y, and record concerning appearance at 
court proceedings; and 
(B) whether, at the time of th 
person was on probation, on pa 
trial, sentencing, appeal, or 
under Federal, State, or local 
e current offense or arrest, the 
role, or on other release pending 
completion of sentence for an offense 
law; and 
(4) the nature and seriousness of the danger to any person or the com - 
munity that would be posed by the person' s release. 
18 U.S.C. S 3142(g). 
3. Content of Release or 
If at the conclusion of the hearing 
released pending trial, the order "shall 
that sets forth all the conditions to whi 
Detention Order 
the court orders 
. . . include 
ch the release is 
that the defendant be 
a written statement 
subject, in a manner 
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sufficiently clear and specific to serve as a guide for the person's conduct." 
18.U.S.C. S 3142(h)(1). 
If, instead, the court orders that the defendant be detained pending trial, 
the order "shall . . . include writte n findings of fact and a written 
statement of the reasons for the detentio n." Id. S 3142(i)(1); 
see also Fed. R. App. P. 9(a)(1) ("The district c ourt must state in 
writing, or orally on the record, the rea sons for an order regarding the release 
or detention of a defendant in a criminal case."). 
4. Reopening the Dete ntion Hearing 
A detention 
hearing may 
officer, at 
information 
hearing and 
be reopened before or a (ter a determination by the judicial 
any time before trial i f the judicial officer finds that 
exists that was not kno wn to the movant at the time of the 
that has a material bea ring on the issue whether there are 
conditions of release that will rea sonably assure the appearance of such 
person as required and the safety o f any other person and the community. 
18 U.S.C. 5 3142(f). "The judicial officer may at an y time amend the order 
(of release on conditions] to impose addi tional or different conditions." 
Id. S 3142(c)(3). 
H. Review of Release/Detention Order by District Judge, Court of Appeals 
Detention hearings in this district are invariably conducted by magistrate 
judges. See Fed. R. Crim. P. 5(c) (at in itial appearance, "magistrate judge 
shall detain or conditionally release the defendant"); 28 U.S.C. S 
636(a)(2) (conferring on magistrate judge s "power to . 
. issue orders 
pursuant to section 3142 of title 18 conc erning release or detention of 
persons pending trial"). A magistrate ju dge's order of pretrial release or 
detention must be reviewed by a district judge if eithe r party moves 
for such review. See 18 U.S.C. SS 3145(a), (b). If the 
magistrate judge enters an order of relea se, "(1) the attorney for the 
Government may file . . . a motion for revocation of the order or 
amendment of the conditions of release; a nd (2) the (defendant] may file 
a motion for amendment of the conditions of release." 18 U.S.C. 
S 3145(a). If the magistrate judge enters an order of detention, "the 
(defendant) may file a motion for revocat ion or amendment of the order" Id. 
S 3145(b). A motion filed by the government or the defendant "shall be 
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determined promptly." 
Id. 
If the AUSA believes that a magistr 
should be reviewed by a district judge, s 
appropriate district judge immediately to 
charging instrument is a complaint, the r 
See E.D. Mich. Local Crim. R. 57.2, Local 
instrument is an indictment, the reviewer 
was assigned, or if that judge is unavail 
see E.D. Mich. Local R. 77.2(b). 
ate judge's order of pretrial release 
he should contact the court clerk of the 
schedule the review hearing. If the 
eviewer is the presiding district judge. 
R. 77.2(a). If the charging 
is the district judge to whom the case 
able, the presiding district judge, 
The fact that under the 1984 Act th e government has the right to 
have a magistrate judge's order of releas e reviewed by a district judge, 
see 18 U.S.C. § 3145(a), implies that the magistrate judg e's order 
li 
of release sho d be stayed pending revie w of the order by a district judge. In 
United States 
Huckabay, 707 F. Supp. 35 (E.D. Pa. 1989), the ma gistrate 
judge ordered pretrial release but detain ed the defendant pending review by a 
district judge, explaining that "'an appe 
after a motion for detention has been fil 
statutory implication, authorizes the jud 
judge] to stay the release order to allow 
(i.e., the district judge] to pass upon t 
The district judge agreed, observing that 
the district court could frustrate the ve 
37. If the magistrate judge refuses to s 
should request a stay from the district j 
The AUSA should make sure that the 
tape from the hearing before the magistra 
judge's order of release, and a copy of t 
Agency. The government's motion for revi 
"shall be determined promptly" by the dis 
Some district judges will conduct the hea 
for another day or two. The AUSA should 
hearing before the magistrate judge (afte 
Chief). Some judges will not conduct the 
available. 
al of the magistrate's release order 
ed at the initial appearance, by 
icial officer (i.e., the magistrate 
the court having original jurisdiction 
he detention issue.'" Id. at 36. 
"(dequiring release pending review by 
ry purpose of review." 
Id. at 
tay her order of release, the AUSA 
udge. 
district judge has a copy of the audio 
to judge, a copy of the magistrate 
he report of the Pretrial Services 
ew of the magistrate judge's order 
trict judge. 18 U.S.C. § 3145(a). 
ring on the same day; others will wait 
order an expedited transcript of the 
r obtaining the approval of the Criminal 
it review until a transcript is 
The district judge's review of a ma gistrate judge's decision is de 
novo.[FN9] The district judge, therefore, may rel y entirely on the record 
that was before the magistrate judge, or he may expand the record by conducting 
a limited or full-blown hearing. The AUSA should be prepar ed to present live 
witnesses at such a hearing. At the conc lusion of his review, the district judge 
will enter an order of pretrial detention or release, and he "must state in 
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writing, or orally on the record, the rea sons for (that] order." Fed. R. App. 
P..9(a)(1); see also 18 U.S.C. § 3142(i)(1). 
If the district judge issues an or der of pretrial release, the government 
may appeal the order to the U.S. Court of Appeals for the Sixth Circuit. 
See 18 U.S.C. § 3145(c); Fed. R. App. P. 9(a). The AUSA should 
contact her supervisor and the Appellate Chief immediately to discuss this 
option. A government appeal of an order of release, like its appeal of any other 
order or judgment of the district court, must be approved by the Appellate Chief, 
the United States Attorney, and the Solic itor General of the United States. "The 
appeal should be determined promptly." 1 8 U.S.C. § 3145(c); see also 
Fed. R. App. P. 9(a)(2). 
III. Release or Detention Pending :wool tion or Execution of Sentence 
Once a defendant has been convicted , the 1984 Act 
toward detention. It provides: 
The judicial officer shall order th 
detained, unless the judicial offic 
evidence that the person is not lik 
safety of any other person or the c 
3142(b) or (c). If the judicial off 
judicial officer shall order the re 
section 3142(b) or (c). 
tilts the playing field 
at (a convicted defendant] . . 
be 
er finds by clear and convincing 
ely to flee or pose a danger to the 
ommunity if released under section 
icer makes such a finding, such 
lease of the person in accordance with 
18 U.S.C. § 3143(a)(1). In practice, the government, at least in this 
district, often permits a convicted defen dant to remain free pending the 
imposition of sentence or the execution o f sentence following its 
imposition.(FN10] This generally occurs in cases where a defendant on pretrial 
release pleads guilty, or where a defenda nt on pretrial release is convicted at 
trial and the AUSA is not really concerne d about the risk of flight or danger to 
others posed by the defendant. Of course , the AUSA should insist that the court 
comply with Section 3143(a) when circumst antes indicate that detention pending 
sentencing or service of sentence would b e prudent. 
If a defendant is convicted of a sp 
of detention is even stronger. The speci 
violence," capital offenses, and drug off 
imprisonment of 10 years or more. 18 U.S 
"shall" 
be detained unless 
--
ecified serious offense, the presumption 
fied offenses are "crime(s1 of 
enses carrying a maximum term of 
.C. § 3143(a) (2). Such a defendant 
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