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(A)(i) 
(B) 
the judicial officer finds ther e is a substantial likelihood 
that a motion for acquit tal or new trial will be granted; or 
(ii) 
an attorney for the Gove rnment has recommended that no 
sentence of imprisonment be imposed on the person; and 
the judicial officer finds by clear and convincing evidence that the 
person is not likely to flee o r pose a danger to any other person or 
the community. 
18 U.S.C. S 3143(a)(2). 
IV. Release or Detention Pending Appeal 
The 1984 Act sets forth a presumpti on of detention when a defendant who has 
been sentenced to a term of imprisonment files an appeal. See 18 U.S.C. 
S 3143(b). Ordinarily, the presumption is rebuttable, and the burden is on 
the defendant to establish by clear and c onvincing evidence that he should be 
released pending appeal. 
See id. S 3143(b)(1) (defendant must show 
that he is not likely to flee or pose a d anger to any other person or the 
community, and that the appeal will likel y result in the reversal of his 
conviction or the vacation of his prison term). 
If, however, the defendant has 
been convicted of and sentenced for a "c rime of violence," a capital offense, 
or a drug offense carrying a maximum term of imprisonment of 10 years or more, 
the presumption of detention is irrebutta ble. See id. 5 3143(b)(2). 
I. Release or Detention of Arrestees Oth er than Ordinary Defendants 
A. Probationers and Supervised Rel 
A defendant arrested for a violatio 
"may be released pursuant to Rule 46(c) p 
R. Crim. P. 32.1(a)(1). Rule 46(c) says 
accordance with 18 U.S.C. S 3143." Fed. 
governs the release or detention of convi 
or execution of sentence. 
See supra pp. 
B. Material Witnesses 
n of probation or supervised release 
ending the revocation hearing." Fed. 
that release or detention "shall be in 
R. Crim. P. 46(c). Section 3143(a) 
cted defendants awaiting the imposition 
17-18. 
A provision of the 1984 Act deals w ith material witnesses, see 18 
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U.S.C. S 3144, who are individuals whose presence at trial "may become 
impracticable to secure . . . by subpoena ." Many material witnesses are aliens 
whose whereabouts at the time of trial wi 11 be a foreign country or unknown. 
Basically, a material witness may be acre sted on a material witness complaint and 
warrant issued by the court, and then det ained until his testimony can be secured 
by deposition. Std. ; Fed. R. trim. p. 15(a); see also, 
e.g., Torres-Ruiz 
United States District Court , 120 F.3d 933 934 -
36 (9th Cir. 1997) (per curiam). 
C. Aliens 
Aliens may be subject to "temporary detention" for up to 10 days to allow 
for the notification of INS and the defen dant's transfer to INS for 
administrative deportation proceedings. 
See 18 U.S.C. SS 
3142(d)(1)(B), (2); supra p. 9. 
VI. Additional Resources 
• 
Annual Review of Criminal Procedure (Part II: Preliminary 
Proceedings (Bail) , Georgetown Law Journal. 
• 
27 Moore's Federal Practice ch 
646 (3d ed., looseleaf service 
updated annually). 
3A Charles Alan Wright, Federa 1 Practice and Procedure SS 
761-778 (2d ed. Supp. 2001). 
• 
David Marshall Nissman, Proving Federal Crimes ch. 17 (2001). 
• 
3 Wayne R. LaFave et al., Crim inal Procedure ch. 12 (2d ed. 1999). 
FN 1. Still, under the 1966 Act district tour is effectively ordered pretrial 
detention based on dangerousness by order ing pretrial release with bail set 
in an amount clearly beyond the defendant 's means (e.g., $ 500,000), a 
practice specifically prohibited by the 1 984 Act. See 18 U.S.C. 
3142(c)(2) ("The judicial officer may not impose a financial 
condition that results in the pretrial de tention of the person."). 
FN 2. "personal recognizance. 
The release of a defendant in a 
criminal case in which the court takes th e defendant's word that he or she 
will appear for a scheduled matter or whe n told to appear." Black's Law 
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Dictionary 1278 (Bryan A. Garner ed., 7th ed. 1999). "release on 
recognizance. The pretrial release of an arrested per son who promises, 
usu. in writing but without supplying a a urety or posting bond, to appear 
for trial at a later date. 
-- Also termed release on own 
recognizance." Id. at 1292. 
FN 3. If real property is offered as collater al, the AUSA must be satisfied 
based on a review of deeds, mortgages, li ens, and appraisals that the owner 
(whether the defendant or someone else) h as sufficient equity in the 
property to back the amount of the bond. 
The office's Asset Forfeiture Unit 
can assist the AUSA in making this inquir y. The AUSA should also thoroughly 
examine or cross-examine anyone with an ownership interest in the property 
about several matters, including her will ingness to lose her interest in the 
property if the defendant fails to appear ; her knowledge of the defendant's 
criminal activity; her involvement with t he defendant in criminal activity, 
if any, and her own criminal record and a ctivity, if any; and her knowledge 
of the existence of assets owned by the d efendant from which she might 
expect repayment in the event of forfeitu re of collateral. Such questioning 
may lead to surprising and helpful inform ation, especially when defense 
counsel fails to thoroughly prepare the w itness. 
In the rare case where the real pro 
valuable and "clean" to serve as collater 
defense counsel to jointly seek the appro 
the charges are contained in a complaint, 
to whom the case was assigned if the char 
perty in question is sufficiently 
al, the AUSA should simply agree with 
val of the presiding district judge if 
or the approval of the district judge 
ges are contained in an indictment. 
FN 4. "surety (shuur( -1)1-tee). 1. A person who is primarily liab le for the 
payment of another's debt or the performa nce of another's obligation. . . ." 
Black's Law Dictionary 1278 (Bryan A. Gar ner ed., 7th ed. 1999). A surety 
can be an individual or a corporation. I n this context, a surety is often 
referred to as a "bail bondsman," and the formal legal term is "bailer." 
See id. at 136. Another term used is "bail bond ing agency." 
See E.D. Local Crim. R. 46.1(b)(3) ("Court p ersonnel shall not 
recommend specific bail bonding agencies. "). 
FN 5. "bail bond. A bond given to a court by a criminal d efendant's 
surety, guaranteeing that the defendant w ill duly appear in court in the 
future; a bond given to obtain a prisoner 's release and to secure the 
prisoner's appearance to answer legal pro cess. • The effect of the release 
on bail bond is to transfer custody of th e prisoner from the officers of the 
law to the custody of the surety on the b ail bond, whose undertaking is to 
redeliver the defendant to legal custody at the time and place appointed in 
the bond." 
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BLick's Law Dictionary 169 (Bryan A. Garn er ed., 7th ed. 1999). 
FN 6. The 1984 Act empowers sureties to arres t a fugitive defendant. 
See 18 U.S.C. 5 3149 ("A person charged with an offense, who is 
released upon the execution of an appeara nce bond with a surety, may be 
arrested by the surety, and if so arreste d, shall be delivered promptly to a 
United States marshal and brought before a judicial officer."). 
FN 7. "Crime of violence" is defined at 18 U. S.C. S 3156(a)(4). The 
circuits are split as to whether the crim e of being a felon in possession of 
a firearm, id. S 922(9)(1), is a 
rime of violence" under the 
1984 Act. Compare United States 
Dillard , 214 F.3d 88 (2d 
Cir. 2000) (FIP "crime of violence ) with United States . 
li
Lane, 252 F.3d 05 (7th Cir. 2001) (FIP not " crime of violence"), and 
United States 
Singleton, 182 F.3d 7 (D.C. Cir. 1999) (same). The 
Sixth Circuit as not yet addressed the i ssue in a published opinion. 
FN 8. This brief detention is often referred to as "temporary detention," 
which is a term of art in the 1984 Act, see 18 U.S.C. S 3142(d) 
(caption), that actually refers to an ent irely different kind of detention. 
See id. (providing for detention of up to 10 day s of either a 
defendant who is on release in connection with another criminal case or a 
defendant who is an alien, and who "may f lee or pose a danger to any other 
person or the community"). 
FN 9. Although 1(tihe Sixth Circuit has not a ddressed this question," 
United States 
Yamini , 91 F. Supp. 2d 1125, 1127 (S.D. Ohio 20 00), 
the great weig I t of authority holds that the district judge's standard of 
review of a magistrate ju e's order of p retrial release or detention is de 
novo.. See United Sta s 
Leon , 766 F.2d 77, 80 (2d Cir. 
1985); United fates 
Be ker, 757 F.2d 1390, 1394 (3d Cir.1985); 
Ir
United 
ates 
Clar , 865 F.2d 1433, 1436 (4th Cir.1989); United 
States 
Fortna, 769 F.2d 243, 251 (5th Cir. 1985); United States 
Mann, 
3 F.2d 1479, 1481 -82 (8th Cir. 1985) (en banc); United 
States 
Hurtado, 779 F.2d 1467, 1481 (11th Cir.1985). I n 
Yamini, a Sixth Circuit district judge canvasse d the case law and 
concluded: 
The district court . . . should 
ultimate conclusion, even if "the w 
. does not] start from scratch, a 
magistrate had never occurred." Ra 
court is to make its own 'de novo' 
I. 
not defer to the magistrate judge's 
hole process (in the district court] . 
s if the proceedings before the 
ther, "(title point is that the district 
determination of facts, whether 
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different from or an adoption of th e findings of the magistrate." Thus, 
while the district courts are not r equired to engage in a plenary 
procedure pursuant to 5 3145(b), the circuit courts that have 
addressed the standard of review ag ree that some independent review is 
required. 
91 F. Supp. 2d at 1128 (citations omitted , brackets in original). 
FN 10. The imposition of sentence occurs at th e sentencing hearing. The 
execution of sentence, by contrast, "comm ences on the date the defendant is 
received in custody awaiting transportati on to, or arrives voluntarily to 
commence service of sentence at, the offi cial detention (read penal or 
correctional] facility at which the sente nce is to be served." 18 U.S.C. 
3585(a). 
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Chapter 17 
Bail and Detention 
17.01 General provisions 
17.02 Bail Reform Act 
17.03 Categories 
17.04 Personal recognizance 
17.05 Conditional release 
17.06 Eligibility for release - factors 
17.07 Temporary detention orders 
17.08 Detention 
17.09 Bail application following detention 
17.10 Breach of condition of bond 
17.11 Defendant's appeal of detention order 
17.12 Miscellaneous sections 
17.01 
General provisions 
The Eighth Amendment to the United States Constitution 
provides that le)xtessive bail shall not be required . . ." U.S. COMET. 
AMEND. VIII. The United States Supreme Court has interpreted this 
amendment to prohibit the imposition of excessLve bail without creating 
a right to bail in criminal cases. See United States' Salerno. 481 U.S. 739, 
754.55 (1987)("Eighth Amendment does not grant absolute right to 
bail"). The subject of bail and detention also implicates the Fourteenth 
Amendment's Due Process Clause, and requires that laws imposing 
pretrial detention "servea compelling governmental interest', Salerno, 481 
U.S. at 752, and "the Due Process Clause of the Fifth Amendment". 
The principal source of this chapter is the Criminal Resource 
Manual of the United States Attorney's Manual § 26. 
17.02 
Bail Reform Act 
In federal criminal proceedings, release and detention 
determinations are governed by the Bail Reform Act of 1984. 18 U.S.C. 
§§ 3141.3156 (1990). These sections contain specific guidelines that 
'judicial officers" must follow in considering whether a defendant should 
be detained or released pending federal criminal proceedings. 
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Title 18, United States Code, Section 3141(a) gives 'judicial 
officers' authority to make determinations regarding bail in all stages of 
a criminal case, up to and including the trial stage. The term 'judicial 
officers' is defined in Tide 18, United States Code, Section 3156, along 
with other terms relevant to the matter of bail in criminal cases. Once a 
defendant has been convicted of the federal charges, Title 18, United 
States Code, Section 3141(b) vests authority with district judges and the 
appellate courts to make bail determinations pending the imposition or 
execution of sentence, or pending appeal of the same. 
Title 18, United States Code, Sections 3152 through 3154 
pertain to the administration and the supervision authority of pretrial 
services officers in the federal criminal system. Section 3154 specifically 
empowers pretrial services officers with the authority to collect 
information from defendants and other sources relative to the matter of 
bail. Pretrial services officers are authorized to make recommendations 
as to whether a defendant should be detained or released, including 
specific recommendations regarding conditions of release. 18 U.S.C. § 
3154(1). Pretrial services officers are also authorized to establish facilities 
for and conduct the supervision of defendants released under the 
provisions of Section 3142. 
17.03 
Categories 
Tide 18, United States Code, Section 3142 defines the categories 
of "release and detention" a defendant may be subject to and contains the 
rules under which the court and parties must proceed relating to bail 
matters. In that regard, Section 3142(a) states "that upon the appearance 
before a judicial officer of a person charged with an offense, the judicial 
officer shall make a determination regarding bail status of the defendant, 
and shall enter an order designating a defendant's custodial status' under 
one of four categories: 
(1) 
released on personal recognizance or upon execution of 
an unsecured appearance bond (following the provisions 
of Section 3142(b)); 
(2) 
released on a condition or combination of conditions as 
defined by Section 3142(c); 
(3) 
temporarily detained to permit revocation of conditional 
release, deportation, or exclusion under Section 3142(d); 
or 
(4) 
detained pursuant to the provisions of Section 3142(e). 
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17.04 
Personal recognizance 
Title 18, United States Code, Section 3142(b) requires a judicial 
officer to order the pretrial release of a defendant on "personal 
recognizance" or upon the defendant's execution of an "unsecured 
appearance bond" in an amount specified by the court. A Section 
3142(b) release order must be conditioned on a defendant's agreement to 
"not commit a Federal, State, or local crime during the period of release." 
If, however, the judicial officer determines that the release of a defendant 
on "personal recognizance" or "unsecured appearance bond" could not 
"reasonably assure" the defendantt appearance at court proceedings, or 
will "endanger the safety of any other person or the community", then 
there is no obligation to order release. 18 U.S.C. §§ 3142(b) and 
3142(c). In this event, the judicial officer must follow the provisions of 
Title 18, United States Code, Section 3142(c). 
17.05 
Conditional release 
Once a judicial officer has made the determination that a 
defendant does not qualify for release under Section 3142(6), then the 
judicial officer must follow Section 3142(c). When structuring the 
release of a defendant under Section 3142(c), the judicial officer must 
order that the defendant 'hot commit a Federal, State, a Local crime 
during the period of release. 18 U.S.C. § 3 I 42(c)( I )(A). In addition, the 
judicial officer must impose the least restrictive condition or combination 
of conditions necessary to "reasonably assure" the defendant's appearance 
as required and to "reasonably assure" the safety of any person and the 
community". 
18 U.S.C. § 3142(c)(1)(B). 
An illustrative list of 
conditions is set forth in § 3142(c)( I )(B)(i)-(x iv) which gives the judicial 
officer authority to impose conditions not specifically enumerated so long 
as the same serve the purposes set out in § 3 I 42(c)(1)(B). It is important 
to note that "Section 3142 speaks only of conditions that will 
"reasonably" assure appearance, not guarantee it". United States' Xuluni, 
84 F.3d 441, 443 (D.C. Cir. 1996)(per curiam). A judicial officer is not 
permitted to impose any financial conditions of release which result in the 
pretrial detention of a defendant. 
18 U.S.C. § 3142(c)(2). The 
conditions of release imposed on a defendant under a Section 3142(c) 
order may be amended at any time to impose additional or different 
conditions of release. 18 U.S.C. § 3142(c)(3). 
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17.06 
Eligibility for release - factors 
When making a determination regarding the eligibility of a 
defendant for pretrial release (whether personal recognizance unsecured 
appearance bond, or release on conditions), the judicial officer must 
consider the factors listed in Section 3142(g), including: 
(1) 
the nature and circumstances of the offense (in particular 
whether it is an offense which is violent or nonviolent in 
nature, or involves narcotics); 
(2) 
the weight of the evidence against the person; 
(3) 
the history and characteristics of the person --
(A) 
character -- including physical and mental 
condition), family ties, employment, finandal 
resources, length of time in the community, 
community ties, past conduct history relating to 
drug or alcohol abuse, criminal history, record of 
court appearances; and 
(B) 
whether, at the time of the current offense or 
arrest, the person wason probation, on parole,or 
on other release pending trial, sentencing, appeal, 
or completion of sentence for an offense under 
Federal, State, or local law; and 
(4) 
the nature and seriousness of the danger to any person or 
to the community that would be posed by the person's 
release. 
18 U.S.C. § 3142(g) 
In addition to considering evidence of the factors set forth above, 
the court may upon its own motion, or upon the motion of the 
government attorney, conduct an inquiry into the source of any property 
to be designated for potential forfeiture or offered as collateral to secure 
any bond. 18 U.S.C. § 3I42(g)(4). If the court determines that any such 
collateral or property, because of its source, will not reasonably assure the 
appearance of the defendant as required, the designation or use of the 
collateral or property as security for a bond shall be refused. 18 U.S.C. 
§ 3 I 42(g)(4). 
17.07 
Temporary detention orders 
Title 18, United States Code, Section 3142(d) requires a judicial 
officer to enter an order of temporary detention in cases where a factual 
determination is made that: 
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(1) 
the defendant: 
(A) 
is, and was at the time the offense was 
committed, on 
(i) release pending trial for a felony under Federal. 
State, or local law; 
(ii) release pending imposition or execution of 
sentence, appeal of sentence or conviction, or 
completion of sentence, for any offense under 
Federal, State, or local law; a 
(iii) 
probation or parole for any offense under 
Federal, State, or local law; OR 
(8) 
is not a citizen of the United States or lawfully 
admitted for permanent residence, as defined in 
section 101(a)(20) of the Immigration and 
Nationality Act (8 U.S.C. 110I(a) (2); and 
(2) 
the defendant may flee or pose a danger to any other 
person or the community. 
18 U.S.C. § 3142(d) 
The formula for calculating the 10 day temporary detention 
period is set forth in Section 3142(d). At the time the 10 day order is 
entered, the judicial officer must direct the attorney for the government 
to notify the appropriate "authorities" of the defendant's status. In the 
event that the "notified authority declines to take the defendant into 
custody. then the judicial officer must make an independent 
determination regarding bail under the provisions of Sections 3142(b), 
3142(c), and 3142(e)(if the government moves for detention). 
17.08 
Detention 
The Bail Reform Act requires the pretrial detention of a defendant 
only if a judicial officer determines that no conditions or combination of 
conditions exist whi 
will 
I
"reasonably assure the appearance of the 
person", United States 
Xidam , 84 F.3d 441, 442 (D.C. Cir. 1996)(per 
curiam , and "the safety of any other person and the community." United 
States I Rodriguez. 897 F. Supp. 1461, 1463 (S.D. Fla. 1995); IS U.S.C. 
§ 3142(c). 
Cases Which Qualify For Detention Hearings: Section 
3142(f) defines specific situations under which a judicial officer may hold 
a detention hearing. Those situations are as follows: 
( I) 
Upon the motion of the government attorney, in a case 
that involves: (a) a crime of violence; (b) an offensewith 
a maximum sentence of life imprisonment or death; (c) 
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an offense for which the maximum term of imprisonment 
is 10 or more years as prescribed by the Controlled 
Substances Act; or (d) any felony if the person has been 
convicted of two or more offenses described in 
paragraphs (a) through (c) or comparable state offenses. 
(2) 
Upon the motion of the government attorney or on the 
court's own motion, in a case that involves: (a) a serious 
risk of flight; or (b) a serious risk that the defendant will 
obstruct justice or threaten a witness. 
18 U.S.C. § 3142(0 
Section 3142(f) "does not authorize a detention hearing in t 
absence of one of the six situations set forth above." United States. 
Butler, 165 F.R.D. 68, 71 (N.D. Ohio 1996). Thus, the government may 
not request a detention hearing only on the allegations of danger to the 
community or another person. 
The "government is required to 
demonstrate that there are grounds for a hearing under the specific 
provisions of either 3142(f)(1) or (f)(2)." Butler, 165 F.R.D. at 71. 
"When there exists one or more grounds for holding a hearing under those 
provisions, the government may proceed on the theory of risk of flight 
and/or danger to the community or any other person." Id. Section 
3142(f) may fairly be interpreted as authorizing pretrial detention "only 
upon proof of a likelihood of flight, a threatened obstruction of justice or 
a danger of recidivism in one or more of the crimes actually s 
ified by 
the bail statute." Butler, 165 F.R.D. at 71 (quoting United Sta
 r 
Hinder, 
p 
797 F.2d 156, 160 (3d Cir. 1986) and eirg United States I yrd, 969 
F.2d 106 (5th Cir. 1992); United States 
Plinf, 851 F.2d 7 (1st Cir. 
1988)). 
When the court has determined that a detention hearing is 
warranted, it may consider evidence relating to a defendant's danger to 
the community. Detention considerations are then guided by the factors 
set forth in 18 U.S.C. § 3142(g), and the specific consideration of "the 
nature and seriousness of the danger to any person or the community that 
would be posed by the person's release." Butler, 165 F.R.D. at 71; 18 
U.S.C. § 3142 (g)(4 ). Accordingly, the government must first prove one 
or more of the grounds listed in 3142(f)(1) or (2) as a prerequisite to the 
court considering the factor of danger to the community whether there 
exist appropriate conditions of release in the case. In the Butler decision, 
the court evaluated the government's motion to detain a defendant 
charged with firearms offenses. In reaching a decision in favor of pretrial 
detention, the Butler court stated: 
there is danger inherent to the community in the unlawful 
possession of firearms, both a rifle and a pipe bomb. This is 
particularly true where the possessor has a lengthy criminal 
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history, has not been deterred from the commission of crime by 
prior convictions and appears to be involved in ongoing drug 
offenses. 
165 F.R.D. at 72. 
Timing Of Detention Hearing: Title 18, United States Code, 
Section 3 I 42(f)(2) contains specific guidelines regarding the timing of 
detention hearings. Ideally, the hearing is supposed to take place 
immediately upon the defendant's first appearance before the judicial 
officer. However, given the fact that a defendant may lack representation 
at this initial appearance, the detention hearing is not Ikely to go forward 
unless the court has made other arrangements for the defendant to be 
represented by counsel. Section 3142(f)(2) also permits a 3 day delay of 
the detention hearing upon the motion of the government attorney. A 
defendant may request a continuance of up to 5 days under this section. 
for good cause shown. Between the time the detention motion is filed 
and the actual detention hearing (up through the court's ruling on the 
motion for detention), the defendant will remain in the custody of the 
United States Marshals Office. 18 U.S.C. § 3142(0(2). A hearing may 
be reopened before or after the court's ruling on a detention motion, at 
any time before trial if the judicial officer makes a factual finding that 
information exists that was not previously known at the time of the 
hearing and that the information is material on the issue of whether there 
are conditions of release that will reasonably assure the appearance of the 
defendant and the safety of any other person and the community. 
Detention Hearings May Proceed By Way of Proffer; Rules 
of Evidence Do Not Apply: "Detention hearings are an informal 
proceeding, and the evidence presented is not governed by the Federal 
Rules of Evidence." United States I Duncan, 897 F. Supp. 688, 690 
(N.D.N.Y. 1988); 18 U.S.C. § 3142(0 (2) . The governmeitsa proceed 
in a detention hearing by way of proffer. United States I 
39 Fed. 
Appx. 278, 278-78 (6th Cir. 2002); UniteiStatesl. Smith, 79 F.3d 1208, 
1209-10 (DC Cir. 1996); Unit States 
Gaviria, 828 F.2d 667, 669 
(11th Cir. 1987); United States 
Martir, 782 F.2d 1141, 1145 (2d Cir. 
1986)E/rata/States' Winsor, 785 F.2d 755, 756 (9th Cir. 1986); United 
States 
Acevedo-Ramos, 755 F.2d 203, 206-07 (1st Cir. 1985). The 
rationale for permitting detention hearings to proceed by way of proffer 
is that such hearings are "neither a discovery device for the defense nor a 
trial on the merits." Smith, 79 F.3d at 1210. "The process that is due is 
only that which is required by and proportionate to the purpose of the 
proceeding." Id. 'That purpose includes neither a reprise of all the 
evidence presented before the grand jury, United States I Suppa, 799 F.2d 
115, 119 (3d Cir. 1986), nor the right to confront non-testifying 
government witnesses, United States I Aceetturo, 783 F.2d 382, 388-89 
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(3d Cir. 1986)." Smith, 79 F.3d at 1210 also citing United States 
Hurtado, 779 F.2d 1467, 1479 (11th Cir. 1985)( purpose of pretrial 
detention hearing is not to "rehash . . . probable cause" but to provide 
opportunity for detainee ir show no risk of flight or danger to 
community); United States 
Williams, 798 F. Supp. 34, 36 (D.D.C. 
1992). "A right to require the government to produce its witnesses 
against [a defendant] would complicate the hearing to a degree out of 
proportion to the liberty interest at stake - viz. the interest in remaining 
free until trial, for what is by statute a period of limited duration." Smith, 
79 F.3d at 1210: see also Speedy Trial Act, 18 U.S.C. § 3161, a seq. 
Application of the Rebuttable Presumption: Title 18, United 
States Code, Section 3142(e) contains three categories of criminal 
offenses that give rise to a rebuttable presumption that "no condition or 
combination of conditions" will (I) "reasonably assure" the safety of any 
other person and the community if the defendant is released; or (2) 
"reasonably assure" the appearance of the defendant as required and 
"reasonably assure" the safety of any other person and the community if 
the defendant is released. These three categories are: 
(e) 
... a judicial officer finds that: 
(1) 
the person has been convicted of a Federal offense that is 
described in subsection (f)(1) of t his section, or of a State 
or local offense that would have been an offense 
described in subsection (0(1) of this section if a 
circumstance giving rise to Federal jurisdiction had 
existed; 
(2) 
the offense described in paragraph one of this subsection 
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, or the release of the person from 
imprisonment, for the offense described in paragraph (1) 
of this subsection, whichever is later. 
18 U.S.C. § 3142(e)(1)-(3). 
Subject to rebuttal by the person, it shall be presumed that no 
condition or combination of conditions will reasonably assure the 
appearance of the person as required and the safety of the community if 
the judicial officer finds that there is probable cause to believe that the 
person committed an offense for which a maximum term o f imprisonment 
of ten years or more is prescribed in the Controlled Substances Act (21 
U.S.C. 801 et seq.), the Controlled Substances Import and Export Act 
(21 U.S.C. 951 et seq.), the Maritime Drug Law Enforcement Act (46 
U.S.C. App. 1901 et seq.), an offense under section 924(c), 956(a), or 
23321> of this title, or an offense involving a minor victim under section 
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1201, 1591, 2241, 2242, 2244(a)(1), 2245, 2251, 2251A, 2252(a)(I ), 
2252(a)(2), 2252(a)(3), 2252A(a)( I ), 2252A(a)(2), 2252A(a)(3), 
2252A(a)(4), 2260, 2421, 2422, 2423, or 2425 of this title. 
18 U.S.C. § 3142(e). 
The rebuttable presumption relating only to the safety of any 
other person and the community pertains to those cases meeting the 
criteria of Section 3142(e)(1)-(3). It is important to rote, that all 3 of 
these conditions must be met for the proper application of the rebuttable 
presumption of "danger to the community." 
The rebuttable presumption relating to both "risk of flight' and 
"danger to the community" pertains to those cases where the judicial 
officer fords there is probable cause to believe that the defendant 
committed: (1) a drug offense (as defined under Title 21) when the 
maximum term of imprisonment is 10 years or more; or (2) an offense 
under Title 18, United States Code, Section 924(c). 18 U.S.C. § 
3142(e). 
The indictment alone is sufficient to raise the rebuttable 
presumption that no cond ition (or combination of conditions) will ensure 
the defendant's reappearance for trial and that no conditions of release 
i
will ensure the safety of the 
mmunity. See, e.g., Smith, 79 F.3d at 
1210-1211 citing United StatesDillon, 938 F.2d 1412 (1st Cir. 1991); 
Suppa, 799 F.2d at 119; United taus, Dominguez, 783 F.2d 702, 706 n.7 
(7th Cir. 1986); Hurtado, 779 F.2d at 147i-79; United States `Contreras, 
776 F.2d 51 (2d Cir. 1985). nited Stata Hazime, 762 F.2d 34, 37 (6th 
Cir. 1985); United States 
Mauro, 648 F. Supp. 316, 318 (D.D.C. 
1986); see also United States 
Tedder, 903 F. Supp. 344, 345 (N.D.N.Y. 
1995). 
Burden of Proof At Detention Hearing: In a pretrialdetendon 
hearing, the government's burden is to establish by clear and convincing 
evidence that no conditions of release will reasonably assure the safety iaf 
the community. Rodriguez, 897 F. Supp. at 1463 citing United States 
Orta, 760 F.2d 887 (8th Cir. 1985); see also United States 
894 F. 
Supp. 580, 585-86 (N.D.N.Y. 1995) citing United States 
Chimurenga, 
760 F.2d 400, 405 (2d Cir. 1985). 'The issue in such a hearing is 
whether releasing a defendant would pose a danger to the community 
that would not exist were [the de ndant) detained? Rodriguez, 897 F. 
Supp. at 1463 citing United States I Phillips, 732 F. Supp. 255, 267 (D. 
i
Mass. 990), &rig denied, 952 F.2d 591 (1st Cir. 1992); see also United 
States 
Smith, 79 F.3d 1208, 1209 (D.C.Cir.1996) (per cur(im); United 
States 
Porus, 786 F.2d 758 (7th Cir. 1985); United States I Orta, 760 
F.2d 887 (8th Cir. 1985). The standard is different when the issue is 
whether any conditions of release will reasonably assure the defendant's 
attendance at trial (risk of flight); the government need only prove that 
Ch. 17 Bail and Detention 
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there are no such conditions by a "preponderance of the evidence." See 
United States I Tedder, 903 F. Supp. 344, 345 (N.D.N.Y. 1995)citing 
United States v. Martin 782 F.2d 1141, 1146 (2d Cir. 1986); 18 U.S.C. 
§ 3I42(c). It is not necessary that the government prove both flight risk 
and danger to the community to warrant detention. See United States'. 
Flora, 856 F. Supp. 1400, 1401 (ED. Cal. 1994). 
Requirements For The Contents Of Release and Detention 
Orders: Title 18, United States Code, Section 3142(h) lists the 
requirements for the contents of a "release order." Title 18, United States 
Code, Section 3142(g) lists the requirements for the contents of a 
"detention order," including the requirement of "written findings of fact 
and a written statement of the masons for detention." 
17.09 
Bail application following 
detention 
When a defendant moves for release on bail following pretrial 
detention, the court must consider three factors: "(1) the length of the 
pretrial detention; (2) the extent to which the prosecution is responsible 
i
for the delay of the trial; and (3) the strength of t e evidence upon which 
the pretrial detention was based." tired States 
Milian, 4 F.3d 1038, 
1043 (2d Cir. 1993); United States 
O'Neill, 52 F. Supp. 2d 954, 960 
(ED. Wis. 1999)(to get to first base on this issue, the defendant must 
show that either the prosecution or the court has unnecessarily delayed 
in bringing the case to trial—maybe the prosecutor is stalling because he 
realizes his case is so weak that pretrial detention is the only punishment 
in fact he can impose on the dekndant). 
Regarding the length of pretrial detention, there is no doubt that 
the longer the pretrial detention the more lately the denial of due process. 
Typically, this f or weighs in favor of the moving dekndant. See, e.g., 
United States I 
Gonzales-Claudio, 806 F.2d 334, 341 (2d Cir. 
1986)("detention that has lasted for fourteen months and, without 
speculation, is scheduled to last considerably longer, points strongly to a 
denial of due process"). 
This factor by itself, however, is not 
determinative of a defendant's bail application. See Milian, 4 F.3d at 
1044 (pretrial detention period of 30-31 months a factor in defendant's 
favor but not dispositive); see also United States' Melemlez-Carrion, 820 
F.2d 56 (2d Cir. 1987)(pretrial detention period of 19 month did not 
violate defendants due process rights). 
Regarding the reason or "responsibility" for delay factor, the court 
will consider information relating to pretrial events such as motions for 
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continuance, discovery disputes, complexity of the case, plea discussions, 
and other matters relating to the progress (or lack thereof) of the case. 
Regarding the reasons for the pretrial detention, the court will 
examine the findings from the detention hearing. 
17.10 
Breach of condition of bond 
Title 18, United States Code, Sections 3146 through 3148 
describe the penalties a defendant may be subject to for: (I) failure to 
appear at any proceeding as required (Section 3146); (2) committing an 
offense while on pretrial release (Section 3147); and (3) violating any 
condition of pretrial release (which includes the sanction of bond 
revocation)(Section 3148). In addition, Title 18, United States Code, 
Section 3149 empowers a surety with arrest authority over offenders, and 
requires that the surety promptly deliver the offender to the custody of 
the United States Marshal for proceedings under Section 3148. In this 
instance, judicial officers are also bound by Federal Rule of Criminal 
Procedure 46. 
Federal Rule of Criminal Procedure 46(e) provides that "[t]he 
court must declare the bail forfeited if a condition of the bond is 
breached." FED. R. CRIM. P. 46(f)( 1 ). This la 
age is broad, and 
reaches any condition of release. See United States' Ggante, 166 F.R.D. 
3, 4 (E.D.N.Y. 1996). The Bail Reform Act of 1984 
I  
does ot supersede 
Rule 46(f). Gigante, 166 F.R.D. at 4 (ling United States 
Vaccaro, 51 
F.3d 189 (9th Cir. 1995); United States 
Dunn, 781 F.2d 447 (5th Cir. 
1986); and by way of implication Unit States' Dudley, 62 F.3d 1275, 
1278 (10th Cir. 1995); Oiled States 
Patriarca, 948 F.2d 789, 793 (1st 
Cir. 1991); United States 
Santiago, 826 F.2d 499 (7th Cir. 1987). 
"[There is no conflict between Rule 46(f) and the Bail Reform Act; the 
Rule and the Act are complementary and form a unified system dealing 
with pretrial release.'" Giganu, 166 F.R.D. at 6 quoting Vaccaro, 51 F.3d 
at 192. 
17.11 
Defendant's appeal of detention 
order 
When a defendant seeks review of a magistrate judge's order of 
detention, the district court is bound to review the matter de novo, and 
undertake a complete review of the matter for the pu ose of arriving at 
f
its own "independent conclusion." See United States I 
uncan. 897 F. 
Supp. 688, 689-90 (N.D.N.Y. 1995) citing United States Lam, 766 F.2d 
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77, 80 (2d Cir. 1985); see also U ted States ' King, 849 F.2d 485, 489-91 
(11th Cir. 1988); United States 
Williams, 753 F.2d 329, 331 (4th Cir. 
1985). 18 U.S.C. § 3145(a)-(c). 
17.12 
Miscellaneous sections 
Other provisions of Title 18 are relevant to matters concerning 
release and detention in criminal cases. For example, Section 3143 
contains the framework for release or detention of a defendant pending 
sentence or appeal. Likewise, Section 3144 pertains to the release or 
detention of a material witness. Finally, Sections 3150 and 3151 discuss 
the applicability of the Bail Reform Act to those State cases which are 
removed to Federal Court, and the issue of forfeited bail. 
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USABOok :> Crimes > Narcotics > Federal Narcotics Prosecutions > Chapter 26 
prey I next I help I download 
Chapter 26 
Bail and Detention 
Barry Wiegand 
Assistant United States Attorney 
District of District of Columbia 
26.1 
Introduction 
26.2 
Detention for serious drug crimes 
26.3 
First appearance 
26.4 
Standard of proof 
26.5 
Detention hearing 
26.6 
Rebuttable presumptions 
26.7 
Temporary detention 
26.8 
Other bases for denying bail 
26.9 
Nebbia hearings 
26.10 Resources 
26.11 Acknowledgments 
26.1 Introduction 
Whether a defendant is detained without bail pending trial often profoundly affects 
the course of a drug prosecution. For example, pretrial detention or release influences 
whether a defendant decides to co-operate with the government, as well as the calculation 
of whether to plead guilty or go to trial. Moreover, Congress has paid special attention to 
serious drug offenders in the law of pretrial detention, placing much stricter limitations on 
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their right to bad, and presuming that most should be detained pending trial. 
Federal law of pretrial detention, release, and bail is set forth in the Bail Reform Act of 
1984, as amended, 18 U.S.C. §§ 3141-3156. The most important provisions, which govern 
when a defendant may be held without bail pending trial, are set forth in § 3142(e) 
(detention), § 3142(f) (detention hearing), and § 3142(g) (factors to be considered in 
determining whether there are conditions of release that will reasonably assure the 
appearance of the defendant and the safety of the community). 
26.2 Detention for serious drug crimes 
westlaw query 18 +S 3142(F)(1)(C) 
Nearly all defendants charged with serious drug crimes may be detained pending trial 
under 18 U.S.C. § 3142(f)(1)(C), which permits the government to move for the pretrial 
detention of any defendant charged with a federal drug crime for which the maximum 
penalty is more than ten years in prison. In practice, this means that any defendant is 
subject to pretrial detention if charged with the manufacture, distribution, or possession 
with intent to distribute of heroin, cocaine powder, crack cocaine base, methamphetamine, 
phencyclidine, or any other drug classified as a Schedule I or Schedule II controlled 
substance, as these crimes all have maximum penalties of 20 years in prison under 
21 U.S.C. § 841(b)(1)(C) and § 960(b)(3). Defendants conspiring or attempting to commit 
these offenses are punishable to the same extent under 21 U.S.C. § 846 and § 963, and 
similarly may be held without bail pending trial under § 3142(f). 
• Maximum penalty. Section 3142(f)(1)(C) specifically refers to violations of "the 
Controlled Substances Act (21 U.S.C. § 801 et seq.), the Controlled Substances 
Import and Export Act (21 U.S.C. § 951 et seq.), or the Maritime Drug Law 
Enforcement Act (46 U.S.C. App. § 1901 et seq.)." Under this section, it is the 
maximum penalty that must be ten years or more, not whether the charged offense 
has a mandatory-minimum penalty of ten years or more. 
• Marijuana. Defendants charged with distribution or possession with intent to 
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distribute marijuana are not subject to pretrial detention unless the amount involved 
is greater than 50 kilograms, see 21 U.S.C. § 841(b)(1)(D) (less than 50 kilograms of 
marijuana subject to sentence of not more than five years), or the defendant is 
charged with a "schoolhouse," "playground," or "public housing" offense, in violation 
of 21 U.S.C. § 860, under which such violations are subject to twice the maximum 
punishment authorized under § 841(b). 
• PCP. Most statute books list phencyclidine (PCP) under Schedule III of the Controlled 
Substances Act, where it originally was classified. However, PCP has been reclassified 
as a Schedule II drug, subject to maximum penalties of 20 years in prison under 21 
U.S.C. § 841(b)(1)(C) and § 960(b)(3), so that almost any felony federal offense 
involving PCP would be a "detainable" crime. See 43 Fed. Reg. 3359-60 (January 23, 
1978) (Final rule transferring phencyclidine to Schedule II from Schedule III, effective 
February 24, 1978). 
26.3 First appearance 
A motion for pretrial detention is to be made at a defendant's first appearance, which 
normally is presentment on a complaint in a case founded upon an arrest on probable 
cause, or an arraignment on a grand jury original indictment. Although the statute 
contemplates an immediate hearing on the detention motion, see 18 U.S.C. § 3142(f), in 
common practice, the government is accorded up to three working days after the first 
appearance for the hearing to be held under the continuance provision of § 3142(f). 
During this period, the defendant must be held without bond. The "shall" language of the 
§ 3142(f) indicates that the court must grant a motion for a hearing on the motion for 
pretrial detention, and lacks discretion to deny it outright. 
Normally, when a defendant is arrested in a district other than where the prosecution 
will occur, the first appearance is deemed to take place when the defendant first appears 
in 
in the 
osecuting district. However, this question is not free from doubt. See United 
States 
Me/endez-Carrion, 790 F.2d 984, 990 (2d Cir. 1986) (detention hearing may be 
held in first appearance n charging district where defendant is arrested in another 
district); United States 
Dominguez, 783 F.2d 702, 704 (7th Cir. 1986) (government was 
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