Defending a Federal Criminal Case:

Detention & Release Lunchtime CLE

April 3, 2015

Laine Cardarella

Federal Defender, WDMO

18 USC 3142

u  The default position is release on personal recognizance or unsecured bond unless the magistrate finds “that such release will not reasonably assure the appearance of the person as required or will not ensure the safety of any other person or the community.” 18 USC 3142(b)

u  Must not commit any new crimes

u  Must submit to collection of DNA if collection is authorized by 42 USC 14135(a)

u  Must advise the Court, counsel, and US Attorney’s office in writing before any change of address or phone number.

u  Really? My clients will NOT be communicating in writing with the U.S. Attorney’s Office

u  Must appear in court as directed and surrender to serve any sentence imposed

Conditional Release u  If the judge believes conditions are needed to assure the person’s appearance

as required or the safety of any person or the community, then conditional release can be ordered. 18 USC 3142(c)(1)(B)

u  There are 14 suggested conditions in the statute and the catch-all “any other condition that is reasonably necessary.”

u  Conditions must be the least restrictive condition or combination of conditions that will reasonably assure the appearance of the person as required and the safety of any other person or the community.

u  Conditions only have to REASONABLY ASSURE compliance, not GUARANTEE it. United States v. Orta, 760 F2d 887 (8th Cir. 1985)

u  Conditions must be related to the goals of assuring appearance and safety of the community.

u  If charged with certain crimes with minor victims, conditions must include electronic monitoring.

Financial Conditions You Can’t Give Poor People the Shaft

u  Court should not set a financial condition which the client cannot meet, or which will result in pretrial detention.

u  But it’s probably ok to set a financial condition that the client will have to work at in order to meet. (It’s ok to make him have some “skin in the game.”)

So why aren’t all our clients out on bond?

Because there are so many more subsections to 18 USC 3142.

Detention Hearings on the Government’s Motion (3142(f)(1))

u  Government can move to detain if case “involves”

u  a crime of violence, a violation of section 1591, or an offense listed in section 2332b(g)(5)(B) for which a maximum term of imprisonment of 10 years or more is prescribed;

u  an offense for which the maximum sentence is life imprisonment or death;

u  an offense for which a maximum term of 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.), or chapter 705 of title 46;

u  any felony if such person has been convicted of two or more offenses described in subparagraphs (A) through (C) of this paragraph, or two or more State or local offenses that would have been offenses described in subparagraphs (A) through (C) of this paragraph if a circumstance giving rise to Federal jurisdiction had existed, or a combination of such offenses; or

u  any felony that is not otherwise a crime of violence that involves a minor victim or that involves the possession or use of a firearm or destructive device (as those terms are defined in section 921, or any other dangerous weapon, or involves a failure to register under section 2250 of title 18 United States Code

That includes… u  Cases in which the person is not charged with a crime of violence, but the

case is related to a crime of violence probably count.

u  Crime of violence crime is an offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another; or (B) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. (18 USC 3156(a)(4))

u  1591 = sex trafficking of children

u  2232b = terrorism

u  3142(f)(1)(E) covers all the 922(g) cases (felon in possession, user in possession, misdemeanor DV in possession…)

u  When counting up those two or more prior convictions ((f)(1)(D)), at least one District Court says it’s the counts not the cases that matter. US v. Delgado, 985 F.Supp.2d 895 (ND Iowa, 2013)

Detention Hearings on the Government’s OR the Court’s Motion (3142(f)(2))

u  Any case that involves either

u  A serious flight risk, or

u  A serious risk that the person will obstruct justice, or threaten, injure or intimidate a witness or juror

u  How does the Court know if someone presents a serious flight risk or a serious risk that the person will obstruct justice?

u  Could object to a sua sponte detention hearing to find out….

Timing of a Detention Hearing

u  First appearance (18 USC 3142(f))

u  Government can seek up to three days continuance

u  Client can seek up to five days continuance

u  If you are feeling rushed ask for a continuance to get your witnesses interviewed or into the courtroom for the hearing, or to find a place for your client to live, etc.

u  Either side, or the Court, can get more time for good cause.

u  If the person appears to be a drug addict (???) the Court can order a medical exam during the waiting period to see if he is an addict.

u  Don’t get too excited about timing issues. Timing errors/delays are not necessarily grounds for release. US v. Montalvo-Murillo, 495 U.S. 711 (1990)

Unique problem: the client in on a writ Do you have a hearing?

u  If a client appears on a writ from state custody, Court has two options

u  Can postpone the detention hearing under the “good cause” grounds until the person is no longer in state custody.

u  Court may try to obtain consent from government and client, but probably doesn’t need consent to continue the hearing for “good cause.”

u  Can hold a provisional detention hearing. Any order would become effective if the person’s status as a state inmate changes.

u  Be aware that if the client appears because of a request under the Interstate Agreement on Detainers Act, returning him to state custody without his consent may be grounds for dismissal of the federal case.

Rebuttable Presumptions or the Art of Burden Shifting

u  The previous violator assumption (18 USC 3142(e)(2)) u  Case falls in the 3142(f)(1) list AND

u  Client has been previously convicted of an (f)(1) offense or a state offense that would be an (f)(1) offense if federal AND

u  that prior conviction was committed while the client was on pretrial release for a state, federal or local offense AND

u  that prior conviction was within the last 5 years OR the client has been released from prison for that conviction within the last 5 years

u  Rebuttable presumption that no condition or combination of conditions can reasonably assure the safety of any other person and the community.

Rebuttable Presumptions or The Art of Burden Shifting

u  The drug and firearm offender presumption (3142(e)(3)) u Misnomer because used to generally only cover drug and firearm cases

but now broader

u  Client is charged with, and Court finds probable cause that he committed drug charge with maximum punishment of at least 10 years; Title 18 Section 924(c); 956(a) (conspiracy to kidnap, kill or maim in a foreign country); 2332b (terrorism); 2332b(g)(5)(B) if max punishment is at least 10 years (more terrorism); 1581-1597 if max punishment is at least 20 years (slavery, trafficking in persons, etc); OR any of a laundry list of offenses where minor is a victim (see 18 USC 3142(e)(3)(E)

u  Rebuttable presumption that no condition or combination of conditions will reasonably assure the appearance of the client or the safety of any person and the community.

Caselaw suggests the drug and firearm presumption gives the defendant the

burden of production, it does not shift the burden of

persuasion. US v. Orta, 760 F2d 887, fn 17 (8th Cir. 1985)

Whatever.

The Pretrial Report

u  Clients are interviewed by a pretrial (probation) officer after the initial appearance.

u  Report is prepared for the Court, copies available to the parties

u  Includes brief summary of client’s family history, employment history, medical history, and substance abuse history.

u  Includes criminal history BUT not always accurate.

u  If your client says something is inaccurate in a way that is harmful, proffer the client’s version to the Court - - especially if something triggers the previous violator presumption.

u  Reminder: don’t just rely on the pretrial report when you are calculating criminal history down the road. It may not be the whole picture.

u  Pretrial officer makes a confidential recommendation to the Court regarding whether the client should be released or detained.

PTRA Pretrial Risk Assessment u  A risk assessment tool used in many

if not most districts.

u  Used in WDMO, but not always completed before the detention hearing. (Information kept for statistical purposes.)

u  Created with the goal of REDUCING detention rates

u  Uses empirically based information to measure risk and create a score

u  ASK FOR IT. If it isn’t available until after your hearing, ask for it then and if it shows a low score, ask to reopen the hearing.

u  PO’s recommendation may not have been based on PTRA but instead on “experience.”

Version 2.1 1 June 15, 2010

FEDERAL PRETRIAL RISK ASSESSMENT INSTRUMENT (PTRA)

DEFENDANT’S NAME:

DATE OF ASSESSMENT:

PACTS #:

OFFICER: DISTRICT:

1.0 CRIMINAL HISTORY & CURRENT OFFENSE:

1.1. NUMBER OF FELONY CONVICTIONS

0=NONE 1=ONE TO FOUR 2=FIVE OR MORE

1.2. PRIOR FTAS

0=NONE 1=ONE 2=TWO OR MORE

1.3. PENDING FELONIES OR MISDEMEANORS

0= NONE 1=ONE OR MORE

1.4. CURRENT OFFENSE TYPE

0= THEFT/FRAUD, VIOLENT, OTHER 1=DRUG, FIREARMS, OR IMMIGRATION

1.5. OFFENSE CLASS

0=MISDEMEANOR 1=FELONY

1.6. AGE AT INTERVIEW

0= 47 OR ABOVE 1=27 TO 46 2=26 OR YOUNGER

TOTAL CRIMINAL HISTORY

PTRA u  Guide to Judicary Policy, Volume 8, Chapter 3, Section 340

u  In a 2009 research study which examined the effectiveness of alternatives to detention while considering the risk, researchers found that lower risk defendants released with certain alternatives to detention conditions were more likely to experience pretrial release failure than defendants released without these conditions.

u  Moderate to high risk defendants released with certain alternatives to detention conditions were less likely to experience failure than defendants released without these conditions.

u  Risk principle means target high risk offenders, provide intense treatment to high risk offenders, understand that intense treatment increases recidivism for low risk offenders.

u  See Federal Probation, September 2009 (available on uscourts.gov); http://www.counties.org/sites/main/files/file-attachments/latessa_presentation_8-24-11.pdf

Trying to deal with some unique circumstances

Dealing with Immigration: Detainers do NOT mean a client is going to be detained, deported, or removed… So now what?

u  Great article on our website (mow.fd.org) under CJA resources about pretrial release and immigration issues.

u  Arguments for a client with an ICE detainer to be released on bond (all fully fleshed out in the article)

u  ICE detainers are not even a factor consideration at a bail determination hearing

u  The Bail Reform Act fully replaces any authority of ICE detainers for federal pretrial defendants under 3142(d)

u  If ICE doesn’t take custody during the 10 day temporary detention, then they can’t take custody at all

u  If they do take custody, it can only be for purposes of removal in lieu of prosecution, and then only if prosecutor consents. Cannot use civil detention authority to hold client for trial.

u  This is an important and complicated issue. Watch for further CLE programs!

Dealing with warrants

u  State and city warrants are almost as dreaded as ICE warrants. Don’t give up just because there’s a warrant.

u  State and city courts don’t always have the resources to keep people in custody. If your client is released on federal pretrial release, then the state or city warrant may be resolved with a court appearance and release with a new court date.

u  Do you know the state public defender who handles the jurisdiction where any state warrant is pending? Ask for help in getting a warrant set aside, or an assurance that the client will be released on bond once he appears in court.

u  Can you do a pro bono appearance for the client in city court to try to get warrants set aside?

u  Parole warrants are probably the most difficult to deal with, because there’s no judge you can appeal to in order to get the warrant set aside. But, you can call a parole analyst or the client’s parole officer to see if the warrant can be withdrawn or how long the client will likely serve if sent back to MDOC. Maybe it’s worth having him go to MDOC and then writ him out for court.

Dealing with addiction and/or housing issues u  Become familiar with treatment and counseling services available in your area

u  Halfway houses are not our best choice, but Courts may prefer them because of the structured setting. We know there are lots of temptations and bad influences there.

u  Does your client have any insurance or access to treatment/counseling through church? Do you know of programs that will work with your client at a free or reduced rate? (Share that sort of info with your fellow lawyers please!!)

u  Google, google, google. Information is everywhere. Find articles that say document studies showing that treatment OUT OF CUSTODY is more effective than treatment in custody. Let’s not wait to send this guy to RDAP, let’s start getting really effective help NOW!

u  Ask for a continuance of the detention hearing if you need to so that you can present some housing alternatives if there aren’t any in the pretrial report.

u  If you don’t get a continuance, ask to reopen the hearing later after you get the needed info.

u  You’ll have to investigate information from your client, and track down family and friends, but you may be able to find a suitable place for him to live. The pretrial officer probably only had a couple of days to prepare that report. It may take time more time than that for you to find a suitable place or willing family member.

Dealing with the Rebuttable Presumptions

u  Presumably only way to overcome the drug and firearm presumption is to say you aren’t guilty - - - can say there’s something unique about this case that makes it not like regular cases - - -

u  Realistically seem able to overcome presumption if no record to speak of and good prospects while on bond

u  For the previous violator

u  Has there been a long delay between offense and indictment? Has client stayed in the area and avoided arrest in that interim? Sounds like not a flight risk or a danger!

u  How old are those priors? People change. Recidivism risks go down with age, marital status, home ownership… Has client successfully completed drug treatment since prior convictions? (Be aware of when he last tested positive!)

WDMO statistics u  Pretrial release statistics are available at uscourts.gov

u  The H tables

u  Some districts have it pretty good

u  Oh to live in Hawaii: 74.2% release rate (204 clients released)

u  But even better is Guam: 88% release rate (66 clients released)

u  Rounding out our top third: NDWV: 73.4% release rate (243 clients released)

u  Nationally, 73.4% of all defendants were detained and never released. (27,676/99426 were released)

u  56.9% were detained excluding immigration cases (24,252/56253 were released)

u  WDMO: 57.8% detained and never released (326 clients were released)

u  56.9% detained excluding immigration cases (288 clients were released)

With less than a 50-50 chance…. Why do we keep trying so hard?

Keeping your clients out on bond should you be successful in the first place

u  PTRA/risk principle may help

u  If your client is failing because the conditions of release are too restrictive for a low risk offender like your client, try changing the conditions.

u  This looks like rewarding bad behavior. You’ll need to bring in the social science information FROM uscourts.gov about risk principle. Lay that foundation when the conditions are first being set.

u  Give good counsel

u  Warn your client about the perils of violations; encourage cooperation with treatment and/or all conditions of release; maintain contact with your client so you know if he’s struggling; be proactive with the pretrial officer to try to prevent revocation of bond

u  Never give up.

u  But if your client is having lots of problems on bond, and you are confident a sentence is ultimately going to be imposed, good counsel may include recommending surrender on the bond in order to avoid losing acceptance of responsibility at sentencing.

Seeking Review and Revocation of Detention Orders (18 USC 3145)

u  In WDMO, magistrates make detention decisions so can file for review to District Court

u  If your client isn’t indicted yet, the clerk will assign a district court judge for purposes of the review (Motion to Revoke Detention Order)

u  You can start with a motion to reconsider to the magistrate. Best to do this if you are going to be presenting new evidence that wasn’t available at the first hearing

u  Motions “shall be determined promptly.”

Appealing Detention Orders (18 USC 3145; FRAP 9)

u  If you are not successful at the District Court, you can appeal to the Circuit Court.

u  “The appeal shall be determined promptly.” If the clerk doesn’t give you an expedited briefing schedule, call and ask for one. You might think to call ahead when you file your Notice of Appeal.

u  FRAP 9 says no briefs unless the court requires it.

u  Standard of review is clearly erroneous for the factual determinations that have been made.

u  The Court of Appeals independently reviews the ultimate detention decision. US v. Cantu, 935 F2d 950 (8th Cir. 1991)

u  Government can also seek review from District Court or Appeal to 8th Circuit.

u  Sample pleading available on mow.fd.org under CJA Resources

Quick Primer: Arraignment

Arraignment hearings are either scheduled at the same time as detention hearings, or will be one of the next hearings held.

DON’T DO THIS