For the Defense - Vol. 5, Issue 1 - 33

Overview of the Detention Process

Timing of the Detention Hearing

As discussed in greater detail below, the BRA
provides that at a defendant's initial appearance,
a federal magistrate judge will determine if he/she
should be released, with or without conditions, or be
detained, prior to trial. Before the initial appearance,
pretrial services will conduct a background
investigation of the defendant, prepare a report, and
make a recommendation as to release/detention.
Depending upon the offenses charged, a presumption
of release or a rebuttable presumption of detention
may be applicable pursuant to 18 U.S.C. § 3142. If
the circumstances discussed at Section 3142 are not
applicable and there is no rebuttable presumption,
a defendant may be released without a hearing. The
BRA offers options of release-personal recognizance,
unsecured appearance bond, or various types of
conditions or combination of conditions. On the other
hand, if the circumstances outlined in Section 3142 are
present, a rebuttable presumption of detention may
arise and/or the government may move for pretrial
detention. The court will hold a detention hearing
within the applicable statutory time and during this
time prior to any hearing, a defendant will remain in
custody. Finally, if the court orders detention after a
hearing, a defendant may appeal the decision.

The hearing will be held at the time of the
defendant's first initial appearance, unless the
defendant or the government requests a continuance.
The defendant's requested continuance cannot
exceed five days, and the government's requested
continuance cannot exceed three days, except for
good cause.12 However, it should be noted that a
defendant will be detained until the scheduled
hearing date.13

Pretrial Interview
Prior to the initial appearance, pretrial services
will conduct a brief interview on the day of the
defendant's arrest and prior to the appearance in
court. The pretrial report includes a brief summary
of the defendant's history related to his/her family,
employment, medical issues, and substance abuse as
well as the defendant's criminal history. The pretrial
officer will make a recommendation as to release
or detention, including specific recommendations
regarding conditions of release.10 The report will be
provided to the government and defense counsel at
the time of the initial appearance. While defense
counsel and the government may review the report
and make notes, the report must be returned to the
pretrial officer at the end of the proceeding and may
not be removed from the courtroom.
Practice tip:11 Always review a defendant's criminal
history to determine if it is correct. If incorrect, it
is imperative for defense counsel to bring this to
the court's attention. Also, make sure to provide
supporting documents or information whenever
possible. "In an attempt to assist with the process,
defense counsel should provide verified and
documented information to the pretrial officer
for the pretrial interview." A. Nicole Phillips,
Montgomery McCracken Walker & Rhoades, LLP

Practice tip: "Generally, in the Eastern District
of Pennsylvania, the government asks for and
receives a three-day extension during which it
prepares a detention motion and the pretrial
officer does research and prepares a report and
recommendation. Some magistrate judges will push
back on the government and may only extend the
detention hearing one or two days for an older
case, particularly if the case has been under seal
for an extended period or the case is an older
case where the evidence has been known to the
government for some time. If the defendant has
been out on bail locally or the government has
chosen to keep the case sealed and not arrest the
defendant for some period of time while they
evaluate the evidence, the defense can argue that
the defendant is not a flight risk and does not pose
a danger to the community. If these risks had been
present, then the government should have indicted
more quickly or sought to obtain a complaint and
warrant." Jessica Natali, Greenberg Traurig, LLP

Rebuttable Presumption of Pretrial
Detention
In federal cases, there are two categories of
criminal offenses that give rise to a "rebuttable
presumption" that pretrial detention is required.14
These are the most difficult types of cases in terms of
convincing a court to release a defendant on bail. The
rebuttable presumption means that no condition or
combination of conditions will reasonably assure that
the defendant will appear at future hearings and the
safety of the community if the defendant is released.
The two categories include when:
1. A judicial officer finds that:
a) the person has been convicted of a federal,
state, or local offense, such as:
* a crime of violence;15
* an offense with a maximum sentence of life
imprisonment or death;
* an offense for which the maximum term
of imprisonment is 10 years or more as
prescribed by the Controlled Substances Act; or

Vol. 5, Issue 1 l For The Defense

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For the Defense - Vol. 5, Issue 1

Table of Contents for the Digital Edition of For the Defense - Vol. 5, Issue 1
