For the Defense - Vol. 5, Issue 1 - 34

* any felony if the person has been convicted
of two or more offenses just described or
comparable state offenses.
b) the foregoing offense was committed while the
person was on release pending trial for a
federal, state, or local offense; and
c) 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
immediately described, whichever is later.16
2. A judicial officer finds that there is probable cause
to believe that the defendant committed one of the
following crimes:
a) a drug offense that has a maximum term of
imprisonment of 10 years or more;
b) an offense involving a possession of a firearm
in furtherance of a crime of violence or
serious drug offense;
c) a federal crime of terrorism that has a
maximum term of imprisonment of 10 years
or more;
d) a human trafficking offense that has a
maximum term of imprisonment of 20 years
or more; or
e) a designated sex offense involving a minor.17
While the defendant must present some rebuttal
evidence in order to overcome the presumption, the
burden remains on the government to establish that a
defendant should be detained prior to trial. Defense
counsel may introduce family members and suggest
other ties to the community as support that the
defendant is not a flight risk; counsel may propose a
third-party custodian with a weapons-free residence;
and, counsel can recommend conditions that will
minimize the chance of danger to others and of flight.
The goal is to ultimately show the court that the
government's concerns are unsupported.

Presumption of Release
Even if the criminal charges against a federal
defendant fail to trigger the rebuttable statutory
presumption that no conditions of release can
adequately assure defendant's attendance at trial,
the burden remains with the government to prove,
by clear and convincing evidence, that the defendant
is a danger to the community or, by a preponderance
of the evidence, that the defendant poses a flight risk
pending trial.18
In making a determination of whether a defendant
is a flight risk or a danger to the community, the court
must take into account the available information
concerning: the nature and circumstances of the
offense charged, including whether the offense is
a crime of violence or involves a narcotic drug; the
34

For The Defense l Vol. 5, Issue 1

weight of the evidence against the defendant; and,
the history and characteristics of the defendant.19
In determining the latter factor, the court should
consider the defendant's character, physical and
mental condition, family ties, employment, financial
resources, length of residence in the community,
community ties, past conduct, history relating of
drug or alcohol abuse, criminal history, and record
concerning appearance at court proceedings;
whether at the time of the current offense or arrest,
the defendant was on 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, the nature and seriousness
of the danger to any person in the community that
would be posed by the defendant's release.20
During a pretrial detention hearing, the government
bears the burden of demonstrating dangerousness by
clear and convincing evidence. "As much as it may be
desirable to eliminate even this slight possibility of
danger to the community, the law does not permit the
court to require guarantees of safety before granting
pretrial release. All that is allowed is a 'reasonable
assurance' of the safety of any person and the
community."21 In assessing a defendant's danger to
the community, courts typically look at the nature and
circumstances of the crime, in addition to considering
a defendant's prior criminal record, pending criminal
charges, and a defendant's demeanor in court.
With regard to risk of flight, the BRA does not
require that there is absolutely no risk, but rather that
conditions imposed "reasonably assure" appearance.22
Mere opportunity for flight is not sufficient grounds
for pretrial detention.23 The government and courts
typically look at a defendant's prior criminal record;
prior history of failure to appear in court; prior failure
to abide court supervision; the strength of ties to the
community (length of time living in the area, family,
children, etc.); employment history; the financial
means to flee; whether the defendant has a passport,
has a history significant travel, or has lived overseas;
and, any other religious or community ties that would
demonstrate the likelihood of flight.24
Practice tip: "Remember to use the burden of
proof at a detention hearing to your advantage.
If the government is seeking detention based on
dangerousness, the government must adduce 'clear
and convincing' evidence; if detention is sought
based on flight, the government must only adduce
evidence at a 'preponderance' threshold. Either
way, put the government to its burden, argue
around the burden - and the prosecutor's potential
failure to meet that burden. Of course, ensure that
you make your record either way, in the event you
later seek to challenge the magistrate's order of
detention with the assigned district judge." James
Petkun, Klehr Harrison Harvey Branzburg, LLP



For the Defense - Vol. 5, Issue 1

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

Contents
For the Defense - Vol. 5, Issue 1 - 1
For the Defense - Vol. 5, Issue 1 - 2
For the Defense - Vol. 5, Issue 1 - Contents
For the Defense - Vol. 5, Issue 1 - 4
For the Defense - Vol. 5, Issue 1 - 5
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https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue4_2020
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https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue3_2017
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https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue1_2017
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue4_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue3_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue2_2016
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