USAM 9:4.000 RELEASE AND DETENTION PENDING JUDICIAL PROCEEDINGS Page 1 of 2 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 http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/6mcnn.htm 4/10/2008 EFTA00191587

USAM 9-6.000 RELEASE AND DETENTION PENDING JUDICIAL PROCEEDINGS Page 2 of 2 . 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 http://www.usdoj.gov/usao/eousa/foia_reading_room/usarn/title9/6mcrm.htm 4/10/2008 EFTA00191588

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Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 1 of 22 USABook Online > Criminal Procedure > Sixth Circuit Desk Book > Chapter 7 next I help I download 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 http://10.173.2.12/usao/eousa/ole/usabook/desk/07desk.htm 4/10/2008 EFTA00191590

Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 2 of 22 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 http://10.173.2.12/usao/eousa/ole/usabook/deskJ07desk.htm 4/10/2008 EFTA00191591

Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 3 of 22 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. http://10.173.2.12/usao/eousa/ole/usabookidesk/07desk.htm 4/10/2008 EFTA00191592

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 Page 4 of 22 http://10.173.2.12/usao/eousa/ole/usabook/desk/O7desk.htm 4/10/2008 EFTA00191593

Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 5 of 22 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 http://10.173.2.12/usao/eousa/ole/usabook/desk/O7desk.htm 4/10/2008 EFTA00191594

Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 6 of 22 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 http://10.173.2.12/usao/eousakle/usabookJdesk/07desk.htm 4/10/2008 EFTA00191595

Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 7 of 22 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. http://10.173.2.12/usao/eousa/ole/usabook/desk/O7desk.htm 4/10/2008 EFTA00191596

Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 8 of 22 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 http://10.173.2.12/usao/eousa/ole/usabook/desk/07desk.htm 4/10/2008 EFTA00191597

Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 9 of 22 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 http://10.173.2.12/usao/eousa/olefusabook/desk/O7desk.htm 4/10/2008 EFTA00191598

Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 10 of 22 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 http://10.173.2.12/usao/eousa/ole/usabook/desk/O7desk.htm 4/10/2008 EFTA00191599

Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 11 of 22 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. http://10.173.2.12/usao/cousa/ole/usabook/desk/O7desk.htm 4/10/2008 EFTA00191600

Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 12 of 22 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 http://10.173.2.12/usao/eousa/ole/usabook/desk/O7desk.htm 4/10/2008 EFTA00191601

Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 13 of 22 • 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 hup://10.173.2.12/usao/eousa/ole/usabook/desk/O7desk.htm 4/10/2008 EFTA00191602

Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 14 of 22 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 http://10.173.2.12/usao/eousa/olc/usabook/desk./07desk.htm 4/10/2008 EFTA00191603

Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 15 of 22 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 http://10.173.2.12/usao/eousa/ole/usabookidesk/O7desk.htm 4/10/2008 EFTA00191604

Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 16 of 22 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 http://10.173.2.12/usao/eousa/ole/usabook/desk/O7desk.htm 4/10/2008 EFTA00191605

Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 17 of 22 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 hup://10.173.2.12/usao/cousa/ole/usabook/desk/07desk.htm 4/10/2008 EFTA00191606

Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 18 of 22 (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 http://10.173.2.12/usao/eousa/ole/usabook/desk/O7desk.htm 4/10/2008 EFTA00191607

Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 19 of 22 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 http://10.173.2.12/usao/eousa/olc/usabook/desk/07dcsklum 4/10/2008 EFTA00191608

Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 20 of 22 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." littp://10.173.2.12/usao/eousa/ole/usabook/desk/07desk.htm 4/10/2008 EFTA00191609

Sixth Circuit Criminal Desk Book Chapter 7. Bail and Detention Page 21 of 22 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 http://10.173.2.12/usao/eousa/ole/usabook/desk/O7desk.htm 4/10/2008 EFTA00191610

Sixth Circuit Criminal Dcsk Book Chapter 7. Bail and Detention Page 22 of 22 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). http://10.173.2.12/usao/eousa/ole/usabook/desk/O7desk.htm 4/10/2008 EFTA00191611

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. Ch. 17 Bail and Detention 543 EFTA00191612

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). 544 Proving Federal Crimes EFTA00191613

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). Ch. 17 Bail and Detention 545 EFTA00191614

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: 546 Proving Federal Crimes EFTA00191615

(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) Ch. 17 Bail aid Detention 547 EFTA00191616

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 548 Proving Federal Crimes EFTA00191617

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 Ch. 17 Bail and Detention 549 EFTA00191618

(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 550 Proving Federal Crimes EFTA00191619

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 551 EFTA00191620

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 552 Proving Federal Crimes EFTA00191621

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 Ch. 17 Bail and Deternion 553 EFTA00191622

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. 554 Proving Federal Crimes EFTA00191623

Federal Narcotics Prosecutions - Chapter 26 Page 1 of 12 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 http://10.173.2.12/usao/cousa/ole/usabook/drug/26drug.htm 4/10/2008 EFTA00191624

Federal Narcotics Prosecutions - Chapter 26 Page 2 of 12 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 http://10.173.2.12/usaoteousaiole/usabook/drug/26drug.htm 4/10/2008 EFTA00191625

Federal Narcotics Prosecutions - Chapter 26 Page 3 of 12 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 http://10.173.2.12/usao/eousa/ole/usabook/drug/26drug.htin 4/10/2008 EFTA00191626

Federal Narcotics Prosecutions - Chapter 26 Page 4 of 12 not required to request detention in district where defendants were arrested and initially appeared, but could do so when defendants first appeared in charging district; "first appearance" for p rposes of § 3142(f) is not necessarily the same as "initial appearance"). Cf. United States Evans, 62 F.3d 1233, 1235-38 (9th Cir. 1995) (while defendant was entitled to detention hearing before magistrate in arresting district, only district court in charging district had authority to review the order). Practice note. At "removal" proceedings, pursuant to Fed. R. Crim. P. Rule 40, or any other similar hearing following an arrest outside the prosecuting district, the prosecutor should make clear on the record that detention will be sought and take any other necessary steps to ensure that the defense has no colorable basis later to claim that there was a failure t eet the " of first appearance" provision of § 3142(f). See generally United States Valenzuela-Verdigo, 815 F.2d 1011, 1013-16 (5th Cir. 1987) (detention hearing, although not held until 18 days after arrest, was not untimely where prosecutor in arresting district had requested pretrial detention and hearing date was set but subsequently delayed with apparent agreement of parties due to transfer of prisoner to charging district and schedule of defendant's counsel). However, failure to comply with the "first i appearance" provision does not necessarily bar the court om detaining the defendant after the detention hearing. See United States Montalvo-Murillo, 495 U.S. 711, 716- 17 (1990) ("Neither the timing requirements nor any other part of the Act can be read to require, or even suggest, that a timing error must result in releai of a person who should otherwise be detained."). See also United States Moncada-Pelaez, 810 F.2d 1008, 1009-10 (11th Cir. 1987) (where defendant was temporarily detained under § 3142(d), hearing could be held at any time within the 10-day temporary detention period). 26.4 Standard of proof westlaw query 18 +S 3142(E) /P SAFETY OR APPEARANCE The judge deciding a pretrial detention motion must order a defendant held without bail if it is shown that no condition or combination of conditions of release will reasonably http://1 0. 173.2.12/usao/eousa/ole/usabook/drug/26druglum 4/10/2008 EFTA00191627

Federal Narcotics Prosecutions - Chapter 26 Page 5 of 12 assure either the defendant's appearance in court or the safety of the community or any individual. 18 U.S.C. § 3142(e). In other words, the key detention issue is whether a defendant's release poses such a danger to the community—or any specific person, such as a witness—or such a risk of flight, that he should be held in jail pending trial. • Safety. Section 3142(f) provides that the government must prove "by clear and convincing evidence" that no conditions of release will assure the safety of the community or any individual. • Appearance. Circuit Courts of Appeals have held the government must prove by a preponderance of the evidence that no conditions of release will assur the defendant's appearance in court as required. See, r., United States Cisneros, 328 F.3d 610, 616 (10th r. i 2003); United States Xulam, 84 F.3d 441, 442 (D.C. Cir. 1996); Ur(1ed States Kirk, 992 F.2d 1218 (6th Cir.1993)(unpublished order); United States Dillon, 938 F.2d 1412, 1416 (1st Cir. 19911 United States v. Araneda, 899 .2d 368, 370 (5th Cir 1990); United States King, 849 F.2d 485, ii 489 (11th Cir. 988); United States! Himler, 797 F.2d 156, 161 (3d Cir. 1986); United States Chimurenga, 760 F. d 400, 405-06 (2d . . 1985); United States I. Portes, 786 F. d 758, 765 (7thtir. 1985); United States Orta, 760 F.2d 887, 891 (8th Cir. 1985); United States Motamedi, 767 F.2d 140 , 1406 (9th Cir. 1985). 26.5 Detention hearing westlaw query 18 +S 3142(F) /P 26.2 OR JENCKS At a detention hearing, "the rules concerning the admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing." 18 U.S.C. § 3142(f). However, the Jencks Act, 18 U.S.C. § 3500, does apply at pretrial detention hearings. See Fed. R. Crim. P. Rule 46(j) (Rule 26.2 generally applies to a detention hearing under § 3142) and Rule 26.2 (production of witnesses' statements). Thus, if a defendant is being prosecuted upon a criminal complaint following an arrest on probable cause, the court commonly will schedule a consolidated preliminary and detention hearing at which the prosecution must make available "Jencks" statements. If a hup://10.173.2.12/usao/cousa/olc/usaboolddrug/26drug.lum 4/10/2008 EFTA00191628

Federal Narcotics Prosecutions - Chapter 26 Page 6 of 12 defendant's detention hearing follows an indictment, the government may proceed solely by proffer without the need to call a witninause the indictment itself establishes probable cause. See, g., United States } 39 Fed.Appx. 278, 278-79 (6th C 2002); United States Smith, 79 F.3d 1208, 1210 (D.C. Cir.1996); United States Trosper, 809 F.2d 110 , 111015th Cir. 1987); United States Vargas, 804 F.2d 1 , 163 st Cir. 1986); United States Suppa, 799 F.2d 115, 117 (3d Cir. 1116); United States Dominguez, 783 F.2d 702, 706 n. 7 (7th Cir 1986); United States Contreras, 76 F.2d 51, i (2d Cir. 1985); United States I Hazime, 762 F.2d 34, 37 (6th Cir. 1985); United States Hurtado, 779 F.2d 1467, 1479 (11th Cir. 1985). Practice notes. 1. In some instances, when proceeding by proffer, it may be tactically adroit to bring to the hearing a government witness, such as the supervising case agent, and make that witness available to the court or defense counsel if either wishes to obtain additional evidence or information. A witness thus being called by the court or defense counsel is not subject to the requirements of the Jencks Act. See Fed. R. Crim. P. Rule 26.2 (a). 2. In hearings at which the government will proffer evidence derived from intercepted communications, for example, from court-authorized "wiretaps," there is a requirement under "Title III,"18 U.S.C. § 2510-2522, more particularly § 2518(9), for ten-days' notice to the defendant. This can conflict with the three-day continuance limit under § 3142(f), which defense counsel may try to employ to preclude the proffer of evidence based upon wiretaps. Section 2518(9) itself provides for a waiver by the court of the ten-day period upon finding that it is not possible to furnish the information ten days before the hearing and that the delay will not be prejudicial. If the defendant insists on ten-days notice, this could constitute "good cause" to extend the tim for a detention hearing beyond the statute's three day limit. See United States Salerno, 794 F.2d 64, 70 (2d Cir. 1986). 26.6 Rebuttable presumptions littp://10.173.2.12/usao/cousa/olc/usabook/drug/26drug.htm 4/10/2008 EFTA00191629

Federal Narcotics Prosecutions - Chapter 26 Page 7 of 12 westlaw query 18 i-S 3142(E) The most important section of the Bail Reform Act in drug prosecutions, after 18 U.S.C. § 3142(f)(1)(C), is 18 U.S.C. § 3142(e). This section provides for a rebuttable presumption that no condition or combination of conditions of release will reasonably assure the safety of the community where there is a showing of probable cause that: (1) the defendant has committed a drug crime for which pretrial detention is authorized; that is, a violation of the Controlled Substances Act with a maximum term in prison of ten or more years, as well as crimes under the other two federal drug laws referred to in § 3142(f)(1)(C); (1) the defendant has committed a violation of 18 U.S.C. § 924(c): using or carrying a firearm during and in relation to, or possessing a firearm in furtherance of, a drug-trafficking crime; and (1) the defendant is a "released" or "recidivist" offender subject to a presumption applying to defendants who have recently committed detainable crimes while on pretrial release. As noted above, an indictment itself constitutes a finding of probable cause. A second rebuttable presumption attaches to defendants accused of crimes identified in (1) and (2) above, that no condition or combination of conditions will reasonably assure the appearance of the person as required. § 3142(e). Note. Although probable cause to believe that a defendant has committed an 18 U.S.C. § 924(c) crime gives rise to the presumptions, it is not obvious that a § 924(c) offense alone allows a § 3142(f) motion for pretrial detention. Given that committing a § 924(c) offense raises presumptions favoring detention, it would be a statutory anomaly if the charge did not authorize pre-trial detention under § 3142(f). Since a § 924(c) crime is not itself a violation of the Controlled Substances Act, if it is "detainable," it either must be (A) as a crime of violence under § 3142(f)(1)(A), or (B) as a crime with a http://10.173.2.12/usao/eousa/ole/usabook/drug/26dnig.htm 4/10/2008 EFTA00191630

Federal Narcotics Prosecutions - Chapter 26 Page 8 of 12 maximum sentence of life imprisonment under § 3142(f)(1)(B). For purposes of bail, crimes of violence are defined in § 3156(a)(4), and it appears that § 924(c) would only qualify under § 3156(a)(4)(B), as a felony 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." Similarly, § 924(c)'s penalty provisions generally speak of mandatory minimum sentences, rather than explicitly authorizing a maximum sentence of life imprisonment. Nevertheless, § 924(c)(1)(C)(ii) does prescribe life imprisonment for a defendant convicted of the offense under certain circumstances. Moreover, Amendment 642 to the U.S. Sentencing Commission Guidelines Manual, which took effect November 1, 2002, reflects a decision to treat a § 924(c) offense as a "life crime" for purposes of the career offender sentencing enhancement. See Amendments to the Guidelines Manual, Supplement to Appendix C, 277-78 (November 1, 2002) amendment 642, "Reason for Amendment"). See also United States Woodruff, 296 F.3d 1041, 1049 (11th Cir. 2002). In the great bulk of situations, this is only of academic concern, but the anomaly can arise when a defendant is charged with a crime involving less than 50 kilograms of marijuana and a § 924(c) offense. As the marijuana charge is not a detainable offense (because the maximum penalty is five years in prison), a pretrial detention motion can only be made if the § 924(c) offense is an independent basis for pretrial detention. This also arises when thetnderlying drug-trafficking crime involves Schedule III, IV, or controlled substances (which are not subject to a maximum punishment of imprisonment for ten years or more). 26.7 Temporary detention westlaw query 18 +5 3142(D)(1)(A) Another key provision of the Bail Reform Act is 18 U.S.C. § 3142(d), which authorizes periods of temporary detention of up to ten working days where the defendant commits an http://10.173.2.12/usao/eousaiole/usabook/drug/26drug.htm 4/10/2008 EFTA00191631

Federal Narcotics Prosecutions - Chapter 26 Page 9 of 12 offense while op some form of judicial supervision, such as parole, probation, release pending sentencing, or pretrial release in a felony case. See § 3142(d)(1)(A)(i)-(iii). Most foreign nationals who do not have a "green card," that is, who are not lawfully admitted for permanent residence, are also subject to a ten-day hold. See § 3142(d)(B). The purpose of the temporary detention is to give supervising authorities—parole board, probation officer, trial judge, or the Bureau of Immigration and Customs Enforcement (formerly INS)—a chance to issue a warrant for the defendant. See § 3142(d). A motion for a ten- day hold imposes a duty on the government to notify the supervising authority of the defendant's new charge. See § 3142(d). Practice notes. • When the government seeks both a detention hearing after a three-day continuance, § 3142(f), and also temporary detention, § 3142(d), the court may effectively combine the two matters and set a consolidated hearing within the ten-day period, but later than the three days permitted for a strictly pretrial detention hearing. Or the court may construe the time limits more narrowly and require a detention hearing in three days, even though the defendant will nevertheless remain jailed after the three days elapse pursuant to the ten-day hold. Under either view, however, ten-day holds do not "tack," and a defendant who satisfies more than one ground for temporary detention under § 3142(d) may only be detained for a total of ten days. • Section 3142(d) requires two findings for temporary detention: (a) that the defendant is on some form of release or not a lawful U.S. resident, and (b) that the defendant may be a danger to the community or a risk of flight. As a result, some judges may conclude that they have discretion to deny a motion for temporary detention, even when it is clearly established that a defendant is on parole, probation, or pretrial release for a felony. Although this question may arise in non-drug cases, it should not be an issue in narcotics prosecutions because of the rebuttable presumptions that the defendant is a danger and risk of flight. • Section 3142(d)(1)(A)(i) authorizes temporary detention only for defendants released before trial in felony cases, not misdemeanors, but under § 3142(d)(1)(A)(ii), any defendant facing sentence or released pending appeal may be held for up to ten days. http://10.173.2.12/usao/eousaJole/usabook/drug/26drug.htm 4/ 10/2008 EFTA00191632

Federal Narcotics Prosecutions - Chapter 26 Page 10 of 12 26.8 Other bases for denying bail Even though a serious narcotics charge itself is sufficient for pretrial detention, employing one or more of the other five bases for denying bail can bolster the government's case for detention. Consequently, sound litigating tactics suggest moving for pretrial detention on every applicable ground available under § 3142(f): 1. Where there is a serious risk that a defendant might try to obstruct justice, § 3142(f) (2)(B), for example, by attempting to influence, intimidate, or harm a witness or juror. This is a valuable additional ground upon which to seek pretrial detention, and is often available in drug cases—it focuses the Court's attention on a threat to a specific, live person, rather than on the more generalized notion of community safety; 2. Where a defendant is also charged with a crime of violence, § 3142(f)(1)(A)), as often is the case in RICO and CCE prosecutions based upon narcotics conspiracies; 3. Where a defendant is a serious risk of flight, § 3142(f)(2)(A), there is no drawback to specifically seeking detention on this ground, in addition to relying on the presumption that drug defendants are a risk of flight; 4. Where a defendant is also charged with an offense for which the maximum sentence is life imprisonment or death, § 3142(f)(1)(B); and 5. Where the "recidivist" provision of § 3142(f)(1)(D) authorizes pretrial detention if a defendant has previously committed two or more "detainable offenses"; that is, crimes which themselves would have permitted a pretrial detention motion under § 3142(f)(1). As fairly few defendants have extensive federal criminal records, this provision also incorporates state and local convictions that would have been detainable had they been subject to federal jurisdiction. 18 U.S.C. § 3142(f)(1)(D). As a result, a defendant with two or more serious state drug felonies or crimes of violence (or one of each) is subject to pretrial detention independent of the maximum sentence of the current federal felony narcotics charge. http://10.173.2.12/usao/eousa/ole/usahook/drug/26drug.ht m 4/10/2008 EFTA00191633

Federal Narcotics Prosecutions - Chapter 26 rage i i kit IL Practice note. When litigating a pretrial detention motion, the legislative history of the 1984 Bail Reform Act is a fertile source of authority. For example, it confirms the argument that the law reflects a congressional intent to detain defendants who commit crimes while on pretrial release or who are recidivist offenders. See S.Rep. No. 98-225, at 307 (1983), reprinted in 1984 U.S.C.C.A.N. 3182. Among its useful language is: The Committee also notes, with respect to the factor of community ties, that it is aware of the growing evidence that the presence of this factor does not necessarily reflect a likelihood of appearance, and has no correlation with the question of the safety of the community. . . . [T]he Committee wishes to make it clear that it does not intend that a court conclude that there is no risk of flight on the basis of community ties alone. . . . Id., 1984 U.S.C.C.A.N. at 3207. Under current law, consideration of a defendant's criminal history is confined to his record of convictions. While a prior arrest should not be accorded the weight of a prior conviction, the Committee believes that it would be inappropriate to require the judge in the context of this kind of hearing to ignore a lengthy record of prior arrests, particularly if there were convictions for similar crimes. . . . In any event, independent information concerning past criminal activities certainly can, and should, be considered by a court. Id. at 3206 n.76 (citations omitted). 26.9 Nebbia hearings If a monetary or property bond is set, the prosecution may request the court to order that—before the release of the defendant—a Nebbia hearing be held to determine whether the collateral for the court (or the collateral provided the bail bondsman) is tainted. See http://10.173.2.12/usao/cousaJole/usabook/drug/26drug.htm 4/10/2008 EFTA00191634

Federal Narcotics Prosecutions - Chapter 26 rage IL 01 IL 1 18 U.S.C. § 3 2(g)(4); United States, Nebbia, 357 F.2d 303 (2d Cir. 1966). See also United States Patel, 1995 WL 55737 (N.D. III. 1995) (unpublished memorandum opinion and or er) (notwithstanding the tax returns and testimony tendered by the defense, the defense failed to convincingly establish that the properties offered as security for the bond "were purchased solely with legitimate funds"). Nebbia-type hearings are particularly important when someone other than the defendant is posting the collateral, as they present an opportunity for the judge to establish on the record that the sureties are bona fide and understand the risks th are undertaking, such as potential loss of their c property. See generally United tates I Noriega-Sarabia, 116 F.3d 417, 420-21 (9th Cir. 1997). See also United States Hammond, 204 F.Supp.2d 1157, 1166-67 (E.D.Wis. 2002) (sufficiency of the secure y offered). 26.10 Resources The main treatise on federal detention and bail law is: Hon. John L. Weinberg, Federal Bail and Detention Handbook (2003), which is updated regularly. Another source collecting decisions on detention cases is: Propriety of denial of pretrial bail under Bail Reform Act, 75 A.L.R. Fed. 806. Links to relevant internal DO) monographs and memoranda appear on the USABook Bail and Release topic page at http://10.173.2.12/usao/eousa/ole/tables/subject/bai I. htm. 26.11 Acknowledgments This Chapter was adapted and updated from material originally written by then Senior Trial Attorney Robert Lipman, NDDS, for the 1999 edition of Federal Narcotics Prosecutions. http://10.173.2.12/usao/cousa/ole/usabook/drug/26drug.htm 4/10/2008 EFTA00191635

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. UNITED STATES OF AMERICA vs. JEFFREY EPSTEIN, Defendant. Notice of Appeal From Magistrate's Order Denying Pre-Trial Detention Comes now the United States of America, by and through its undersigned Assistant United States Attorney, and files this Notice of Appeal from the Order of United States Magistrate Judge , U.S. District Court for the District of , entered on April , 2008, which denied the United States' request for pre-trial detention as to defendant Jeffrey Epstein. United States Magistrate Judge set a $ cash bond, with the following conditions: . The United States gave notice of its intent to appeal the bond order and asked the Magistrate Judge to stay execution of the bond pending the Court's determination of this appeal. The Magistrate Judge granted the motion and the defendant remains in custody. Pursuant to 18 U.S.C. § 3145(a), if "a person is ordered released by a magistrate judge, or by a person other than a judge of a court having original jurisdiction over the offense . . . the attorney for the Government may file, with the court having original jurisdiction over the offense, a motion EFTA00191636

for revocation of the order or amendment of the conditions of release." Accordingly, the United States hereby files this emergency motion with the District Judge assigned to the case for immediate revocation of the Magistrate Judge's Order. THE CHARGES IN THE INDICTMENT On April , 2008, a Grand Jury sitting in the Southern District of Florida returned a twenty-nine-count indictment charging defendant Jeffrey Epstein' with one count of conspiracy to use a means of interstate commerce to persuade, induce, or entice nineteen minors to engage in prostitution, in violation of 18 U.S.C. § 371; eight counts of knowingly, in and affecting commerce, recruiting, enticing, and obtaining eight minors to engage in commercial sex acts, in violation of 18 U.S.C. § 1591(a)(1); twelve substantive counts of using a means of interstate commerce to persuade, induce, or entice twelve minors to engage in prostitution or other criminal sexual activity, in violation of 18 U.S.C. § 2422(b); one count of conspiracy to travel in interstate commerce for the purpose of engaging in illicit sexual conduct, in violation of 18 U.S.C. § 2423(e); and four counts of traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with a person under 18 years of age, in violation of 18 U.S.C. § 2423(b). Jane Does #1 through #19 were all minors at the time of their involvement with defendant Epstein. Jane Doe #11 was a resident of New York; the remaining Jane Does were all residents of Palm Beach County, Florida, at the time of their involvement with defendant Epstein. Count 1 carries a statutory maximum sentence of five years' imprisonment. Counts 2 through 10 each carry a statutory maximum sentence of forty years' imprisonment. Counts 11 through 23 each carry a statutory mandatory minimum sentence of five years' imprisonment up to 'Epstein is named as a defendant in twenty-seven counts. 2 EFTA00191637

a maximum of thirty years' imprisonment. Counts 24 and 26 through 29 each carry a maximum of thirty years' imprisonment. THE FACTS OF THE OFFENSE The investigation of Jeffrey Epstein initially was undertaken by the City of Palm Beach Police Department in response to a complaint received from the parents of a 14-year-old girl, S. G.,2 from Royal Palm Beach. When S. G. and another girl began arguing at school because the other girl accused S. G. of being a prostitute, one of the school principals intervened. The principal searched S. G.'s purse and found $300 cash. The principal asked S. G. where the money came from. initially claimed that she earned the money working at "Chik-Fil-A," which no one believed. then claimed that she made the money selling drugs; no one believed that either. finally admitted that she had been paid $300 to give a massage to a man on Palm Beach Island. parents approached the Palm Beach Police Department ("PBPD") about pressing charges. PBPD began investigating the recipient of the massage, Jeffrey Epstein, and two of his assistants, Sarah Kellen and Nadia Marcinkova. PBPD identified approximately 27 girls who went to Epstein's house to perform "sexual massages" (not including one licensed massage therapist) or who recruited girls to do the same. The girls' ages ranged from 14 years' old to 23 years' old. Some girls saw Epstein only once and some saw him dozens of times. The "sexual massages" performed also varied. Some girls were fully clothed while they massaged Epstein; some wore only their underwear; and some were fully nude. During all of these massages, Epstein masturbated himself and he would touch the girl performing the massage, usually fondling their breasts and touching their 2S.G. currently is not one of the Jane Does referenced in the indictment. f7) rAta are vAL slahLity. rAcxyjmumo, Euro( vttnuenurvt4 c_t- ftAA -New- dinctia achn ol If\Jft &Fria mu) co.yr sCrAjta4Attm ster EFTA00191638

vaginas - either over their clothing or on their bare skin. Epstein often used a vibrator to masturbate the girls and digitally penetrated a number of them. For the girls who saw him more often, Epstein graduated to oral sex and vaginal sex. Epstein sometimes brought his assistant/girlfriend, Nadia Marcinkova, into the sexual activity. On October 18, 2005, PBPD obtained a search warrant with the assistance of the Palm Beach County State Attorney's Office ("PBSAO"). By this time, PBSAO had already been contacted by Epstein's cadre of lawyers. When PBPD arrived at Epstein's home two days later (10/20/05) to execute the search warrant, they found several items conspicuously missing. For example, computer monitors and keyboards were found, but the CPUs were gone. Similarly, surveillance cameras were found, but they were disconnected and the videotapes were gone. Nonetheless, the search did recover some evidence of value, including message pads showing messages from many girls over a two-year span. The messages show girls returning phone calls to confirm appointments to "work." Messages were taken by Sarah Kellen, Nadia Marcinkova, and Adriana Ross. The search also recovered numerous photos of Epstein sitting with naked girls whose ages are undetermined. Photographs taken inside the home show that the girls' descriptions of the layout of the home and master bedroom/bathroom area are accurate. PBPD also found massage tables and oils, the high school transcript of one of the girls, and sex toys. In sum, the PBPD investigation showed that girls from a local high school would be contacted by one of Epstein's assistants to make an appointment to "work." Up to three 4 EFTA00191639

appointments each day would be made. The girls would travel to Epstein's home in Palm Beach where they would meet Epstein's chef and Epstein's assistant—usually Kellen—in the kitchen. The assistant normally would escort the girls upstairs to the master bedroom/bathroom area and set up the massage table and massage oils. The assistant would leave and Epstein would enter the room wearing a robe or a towel. He would remove the clothing and lie face down and nude on the massage table. Epstein would then instruct the girl on what to do and would ask her to remove her clothing. After some time, Epstein would turn over, so that he was lying face up. Epstein would masturbate himself and fondle the girl performing the massage. When Epstein climaxed, the massage was over. The girl was instructed to get dressed and to go downstairs to the kitchen while Epstein showered. Epstein would pay the girl—usually $200—and if it was a "new" girl, would ask for the girl's phone number to contact her in the future. Girls were encouraged to find other girls to bring with them. If a girl brought another girl to perform a "massage," each girl would receive $200. The PBPD investigation consists primarily of swom taped statements from the girls. When PBPD began having problems with PBSAO, they approached the FBI. The investigation was formally presented to FBI and to me after PBSAO "presented" the case to a state grand jury and that grand jury returned an indictment charging Epstein with three counts of solicitation of prostitution. The State of Florida has since dismissed its charges after the United States initiated prosecution. ARGUMENT The defendant was arrested in the Northern District of Texas and, today, had a bond hearing. The United States sought to have the defendant detained pending trial based upon the presumption 5 EFTA00191640

of detention as well as the defendant's risk of flight and danger to the community. This is a case where detention is presumed, both as to risk of flight and as a danger to the community. The law regarding this presumption is as follows: Where the Court finds probable cause to believe that the defendant committed one of the offenses listed in 18 U.S.C. § 3142(e), [which includes the violations of 18 USC 2242 and 2243 as charged by the grand jury]' a statutory rebuttable presumption arises that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community. Assuring a criminal defendant's appearance at trial is a legitimate government objective. Detaining adults who prey on children for the adult's sexual gratification or for the production of child pornography is also a legitimate government objective. One of the fundamental duties of government is public safety, including protecting children from sexual predators. . . . Once it is determined that the presumption applies, the defendant bears a limited burden of production to rebut that presumption by coming forward with evidence he does not pose a danger to the community or a risk of flight. Once a defendant has met his burden of production relating to these two factors, the presumption favoring detention does not disappear entirely, but remains a factor to be considered among those weighed by the district court. United States,. Abaci, 350 F.3d 793, 797 (8th Cir. 2003) (internal citations omitted). ht determining how much weight to accord the presumption after the defendant has come forward to meet his burden of production, the Second Circuit explains: A judicial officer conducting a detention hearing should, even after a defendant has come forward with rebuttal evidence, continue to give the presumption of flight some weight by keeping in mind that Congress has found that these offenders [who fall within the presumption] pose special risks of flight, and that "a strong probability arises" that no form of conditional release will be adequate to secure their appearance. The judge of magistrate thus should consider those legislative findings among the other factors to be weighed in deciding whether a defendant should be detained. United States'. Martir, 782 F.2d 1141, 1144 (2d Cir. 1986) (internal citations omitted) (discussing 'A grand jury indic nt provides the probable cause required by the statute to *gger the presumption. United States . Hurtado 779 F.2d 1467 (11th Cir. 1985); Ouartermaine, 913 F.2d 910 (11th Cir. 1990). 6 EFTA00191641

narcotics defendants). In United States'. Sciacca one of the district judges in the Southern District of Florida summarized the Eleventh Circuit's approach to the analysis of the presumption as follows. Once it is determined that the statutory presumption applies based upon the crime charged, then "the defendant carries the burden of production to come forward with evidence to rebut the presumption." United State v. Ouartermaine, 913 F.2d 910, 916 (11th Cir. 1990). Although the statutory presumption places a burden of production on a defendant, the burden of persuasion concerniig the dangerousness [or risk of flight) remains on the government. United States King, 849 F.2d 485, 488 (11th Cir. 1988). .. . The kind of evidence which a defendant must produce to satisfy his burden 1 of production must "suggest that he . . . is] either not dangerous or not likely to flee if turned loose on bail." United States . Hurtado, 779 F.2d 1467, 1479 (11th Cir. 1985). If the defendant produces such evidence, the presumption does not disappear but "remains in the case as an evidentiary finding militating against release, to be weigh[ed] alor with other evidence relative to factors listed in section 3142 (g). United States . King, 849 F.2d 485, 488 (11th Cir. 1988). Sciacca (unpublished opinion), Court File No. 03-80164-Cr-Hurley, at pp. 4-5 (S.D. Fl. Feb. 25, 2004). Here, the defendant's blatant disregard of the order of the Florida court regarding his contact with the victim shows his continued dangerousness. In addition, there is evidence that he is having "romantic" chats with other minors, including one located in Texas. Furthermore, in considering a defendant's risk of flight, the Court must consider the defendant's ties to the community where the prosecution occurs, not merely his ties to the United States at large or the district in which he is arrested. See, e.g., United States'. Adipietro, 773 F. Supp. 1270 (W.D. Mo. 1991). The only tie that the defendant has to the Southern District of Florida is the victim in this case. He is not employed here, does not live here, and does not attend school here. The defendant's lack of ties to the Southern District of Florida and the amount of time that he 7 EFTA00191642

will be facing on federal charges also are evidence of an incentive to flee. Count 1 of the indictment carries a five year mandatory minimum sentence, up to a maximum of 30 years, and Count 2 carries a maximum of 30 years. Both also carry a recommended supervised release term of life. The United States Magistrate Judge in the Northern District of Texas considered these factors and determined that a 512,000 cash bond was sufficient to secure the safety of the community in the Southern District of Florida and to secure the defendant's appearance at trial. For the foregoing reasons, the United States respectfully requests that the Court revoke the order of the Magistrate Judge and order the defendant detained pending his intial appearance in the Southern District of Florida. Respectfully submitted, R. ALEXANDER ACOSTA UNITED STATES ATTORNEY By: A. MARIE VILLAFARA ASSISTANT U.S. ATTORNEY Florida Bar # 0018255 500 Australian Avenue, Suite 400 West Palm Beach, FL 33401 (561) 820-8711/561 820-8777 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served by facsimile this 21st day of April, 2006, to Heidi Perlett, Esq. Counsel for Defendant. A. MARIE VILLAFARA 8 EFTA00191643

ASSISTANT UNITED STATES ATTORNEY 9 EFTA00191644

Memorandum Subjai Third Supplement to Prosecution Memorandum: Operation Leap Year: United States'. Jeffrey Epstein. et al. Dale 2/19/08 To: Robert Senior, Chief, Criminal Division Rolando Garcia, Deputy Chief, Criminal Division Karen Atkinson, Chief, Northern Region From: cc: A. Marie Villafafia Drew Oosterbaan Myesha Braden INTRODUCTION This third supplement summarizes the changes to the indictment and prosecution memo since the first presentation in May 2007. The most significant changes are the exclusion of some victims and the inclusion of newly discovered victims. The order of the indictment also has been changed. For the reasons set forth below, a number of girls who were originally considered for the indictment are being excluded at this time. Some may be re-added, but, for strategic reasons, I believe that this indictment should focus on victims who are unknown to Epstein's counsel. Of the nineteen victims listed in this indictment, eleven were not part of the State investigation. Only one of the girls who testified in the state grand jury is included in our list. We believe that approximately eight of these girls are unknown to the defense. I. VICTIMS DELETED FROM THIS INDICTMENT A. Persons Recruited b R. — G. P. L. Myesha Braden and I have discussed the possibility of removing R. and her recruits entirely from the indictment because of the amount of press coy that has received over her statement to police that she was "like Heidi Fleiss." has been very i unwilling to speak to us and, even after assurances that she wo treated as a victim, she insisted on full immunity before she would meet. Excluding also removes the ammunition about Detective Recarey and alleged misrepresentations of EFTA00191645

statements to Recarey. also was the person who instructed the girls to say they were 18. The evidence related to girls outside her group about knowledge of age is stronger and will weaken their defense that Epstein had a rule that all of the girls had to be over 18. By removing and treating her nindicted co-conspirator, we also make it easier to introduce discussions between and the other defendants and statements to others under the co-conspirator exception to the hearsay rule. Applying this approach would result in the potential removal of seven victims ( plus six others). I have removed six for the following reasons: First, I have L-111 • ved G. was 14 years' old when she was brought to M in's home by R., one of the Epstein's main recruiters. At instruction, lied to Epstein about her age—telling him that she was an eighteen-year-old senior at Wellington High I. In her statements to the Palm Beach Police Department and the state grand jury, admitted that pain masturbated in her presence and placed a massager/vibrator on her vagina. In M statement to hurtled& after leaving Epstein's home, and in her statement to the FBI and AUSA Villafafta, admitted that Epstein digitally penetrated her. Epstein's criminal activity came to light when stepmother learned of a fight between and a friend at school over $300 cash found in purse. cooperated with the Palm Beach Police and made recorded telephone calls with to set up a second "massage" with Epstein. Handwritten notes were found in Epstein's trash confirming this second meeting. Despite all of this corroborating evidence, is not being included (for now, at least) because her father, and ste mother have filed a civil suit against Epstein seeking "in excess of 50 million dollars." father is represented by Jeff Herman. father also has been in frequent contact with the journalist at "Vanity Fair" magazine, and, as mentioned in the original pros memo, he has a prior federal fraud conviction. After the suit was filed, mother filed a motion to intervene and to stay the proceedings until turns 18. In her affidavit, other avers that and her father have been estranged for several months, and that neither knew nor a proved of the filing of the lawsuit. If mother is correct, we may decide to add into a superseding indictment, but for now the safer course is to exclude allegations related to her.' ' We are monitoring the status of the litigation and intend to subpoena transcripts of relevant depositions. There also is a possibility that Epstein's attorneys have violated federal law by distributing to the press identifying information about a child sex abuse victim and by harassing that 2 EFTA00191646

and were brought by and their aerSrnents were made between Kellen and performed one massage and performed two. For both girls, Epstein masturbated and tried to touch them but they refused. With S., Epstein became upset that she wouldn't engage in more sexual activity and he told not to bring her back. Because of the highly probatiuS of this testimony related to Epstein's intent (i.e., no sex/no money), I believe that testimony will be admitted under Rule 404(b). IM L. has been identified as the plaintiff in the second civil lawsuit filed against Epstein by Jeff H She was 16 aid when she first went to Epstein's home and wasrecruited by L., one of friends. L. only went to Epstein's home once, never told Epstein her age, and was never contacted directly by any of the defendants. contribution to the indictment is outweighed by the presence of the civil suit, so she has been removed. is another girl whom Epstein's home. She has admitted to pr g massages and that Epstein touched her reas and attempted to touch her vagina. denies any additional sexual activity. recruited one other girl, Shasdy I., when Shasdy was 17. Shas in Venezuela and has not responded to efforts to contact her. The concern with is that she will never completely admit to the sexual activity that occurred. Phone records show that spoke with Sarah Kellen and Nadia Marcinkova more than 60 times. Yet insists that she never provided massages fully nude and Epstein never digitally penetrated her, touched her vagina, or used the massager/vibrator on her. From all of the evidence, it is highly unlikely that Epstein would have allowed to return so frequently without increasing the level of sexual activity. As one of the other girls reported, reputation at school was that she "was a virgin the day she graduated." I believe that it will be too difficult for her to give up that persona and admit to everything that happened. recruited. was 16 when she first went to will still remain as a witness, because she can corroborate many of the statements made by Vanessa Zara often drove Mi to Epstein's home and she knew that Epstein gave a vibrator to and that Epstein offered to take to New York and to his island. knew of other gifts given to , including Secret lingerie, birthday flowers, and a rental car. victim. A motion may be filed before Judge Marra on the issue of inappropriate contact with and harassment of M. 3 EFTA00191647

The one recruit whom I have kept in the indictment is Z. She is currently attending Lynn University on a soccer scholarship. The documentary evidence related to is strong — numerous message pads, including one saying that will be lat of soccer practice, car rental records, 156 calls with Sarah Kelle with Adrian Ross, 13 calls to Epstein's house, and 20 calls to Epstein's Palm Beach property manager. Epstein also gave a vibrator and lingerie for her 18th birthday. Although I never intended to use M. as a witness, I did refer to her as one of the Jane Does in the indictment in connection with a massage that she gave together with L. ( can testify as an eyewitness.) In light of the outcry from Epstein's attorneys that does not consider herself a victim, I have used her initials instead. II. VICTIMS ADDED TO THIS INDICTMENT A. a l H. (Jane Doe #41. C. (Jane Doe #5), and P. (Jane Doe #61 Jane Does #4 and #5 traveled to Epstein's home together while they were students at Wellington High School. Both had heard at the school that you could get money for massaging Epstein. When they arrived at Epstein's home, they were met by Kellen, who took them on a tour of the house before leading them to Epstein's bedroom. Both sat on the couch until Epstein arrived. He arrived shortly thereafter and took a shower. Before he stepped into the shower, Epstein told the girls to get undressed. Jane Doe #4 removed her top and pants; Jane Doe #5 only removed her top. After the girls massaged his back and legs, Epstein turned over and began masturbating. Epstein tried to reach down Jane Doe #5's pants, and she backed away. Epstein then instructed Jane Doe #4 to play with his nipples while he masturbated. After he ejaculated, Epstein told the girls to get dressed. He paid each girl $200. Afterwards, Kellen attempted to contact Jane Doe #5 multiple times to set up appointments, but she refused. Jane Doe #4 returned, and on her second visit she massaged Epstein alone while wearing only her panties. When he began masturbating, Epstein placed Jane Doe #4 on the massage table, pushed her underwear to one side, and stroked her vagina. He also fondled her breasts. Jane Doe #4 received another $200. At some point during her visits, Epstein asked Jane Doe #4 how old she was, and she told him her true age (17). 4 EFTA00191648

Jane Doe #4 recruited Jane Doe #6. On one occasion in the Spring of Jane Doe #6's junior year, when Jane Doe #6 was 16 years old, she and Jane Doe #4 went to Epstein's house together. Epstein asked Jane Doe #6 what high school she went to and Jane Doe #6 answered Palm Beach Central High School. Jane Doe #4 took Jane Doe #6 upstairs and told her to remove her clothing. Both girls were wearing only their panties when Epstein entered. Epstein laid down and both girls began massaging him. Epstein then asked Jane Doe #4 to leave. After she left, Epstein began masturbating and grabbing Jane Doe #6, touching her all over. When Jane Doe #6 pulled away, Epstein would grab her and pull her closer. Epstein both digitally penetrated Jane Doe #6 and placed the vibrator/massager on her vagina. Jane Doe #6 was paid $200, but cannot remember who handed the money to her. Jane Doe #6 never returned, but Jane Doe #4 went a few more times. Jane Doe #4 explained that Kellen would always call to set up the appointments. Jane Does #4, #5, and #6 are all referenced in the overt acts section of the indictment. The only telephone contact initiated by Epstein's group that resulted in sexual conduct was between Jane Doe #4 and Kellen, so Jane Doe #4 is the subject of one of the substantive enticement counts. Also, because Jane Doe #4 told Epstein her true age, I have added a substantive sex trafficking charge related to Jane Doe #4. B. ad. ) Ja e Doe ii8 Jass.pae #8 was recruited by in approximately July 2004, when Jane Doe #8 was 17. told Jane Doe #8 that she knew a "filthy rich guy" who would pay girls $200 to $300 for giving a massage. took Jane Doe #8 to Epstein's home in a taxi. Epstein took a shower before starting the massage and instructed Jane Doe #8 to remove her shirt. Epstein began masturbating and rubbed Jane Doe #8's vagina over her panties before pushing the underwear aside to stroke her vagina. Epstein told Jane Doe #8, "this is normal nothing's wrong." Epstein paid Jane Doe #8 $200 to $300. During the ride home, told Jane Doe #8 that she had been paid and said, "if you bring someone, you'll get $200." Kellen called about a week later inviting Jane Doe #8 to return and telling her that Epstein would pay if she brought a friend. Kellen called Jane Doe #8 eight or nine times. Jane Doe #8 finally told Kellen that she moved out of state to stop her from calling. According to Kellen's phone records, Kellen called Jane Doe #8 four times in one day when Epstein was in town. Jane Doe #8 is referenced in the overt acts section of the indictment and in one of the 5 EFTA00191649

• substantive counts of travel in interstate commerce to engage in illicit sexual activity. C. B. (Jane Doe #11l Jane Doe #11 is the first fully-identified New York high school girl. She only provided one massage, but became a recruiter for Epstein. Jane Doe #11 first went to Epstein's home towards the end of her junior year, when she was seventeen years old. After that first massage, Epstein told Jane Doe #11 that he would pay her to bring more girls. Jane Doe #11 implicates two other Epstein assistants — Lesley Groff and Cecilia Steen. We had anticipated that Groff would be a witness, not a target. When the agents went to Groff's house to interview her, she went upstairs, claiming she needed to change her baby's diaper. While upstairs, she called Epstein, causing Epstein to re-route his flight to take Kellen and Marcinkova back to his island. (They were scheduled to fly to New Jersey, where the agents had planned to serve Kellen and Marcinkova with target letters.) After this meeting with Groff, Epstein's team began negotiating in earnest to end this investigation. FBI New York agents are interviewing several girls identified by Jane Doe #11. At this time, we do not have Lesley Groff's phone records, so we do not have sufficient evidence to charge her. She is referred to by her initials in the indictment, and we will hopefully be ready to charge her when we supersede the indictment. Jane Doe #11 is referenced in the overt acts but is not part of any substantive counts. D. M A. (Jane Doe #18) and H. (Jane Doe #19) Jane Doe #18 was recruited by her brother's friend, Tony (referred to in indictment as "A.F."). Figueroa also was the former boyfriend (Jane Doe #1). Figueroa recruited several girls to Epstein's home includin R. Jane Doe #18 attended R2 al Palm Beach High School with =and recruits. Jane Doe #18 knew that = and the other girls were going to Epstein's house, but they did not know about Jane Doe #18. Figueroa told Jane Doe #18 that she would receive $200 for providing a massage and that she should tell Epstein that she was 18, if he asked. (Epstein never asked.) Figueroa drove Jane Doe #18 to Epstein's house. Jane Doe #18 describes a similar pattern of activity as that faced by the other victims, with Epstein pushing for more clothes to be removed and more sexual activity with each visit. On her second-to-last visit, Epstein walked Jane Doe 6 EFTA00191650

#18 over to a couch, forcibly pushed her panties aside, and digitally penetrated her, without her consent. Jane Doe #18 is still traumatized by this event. She reports that she went through a period of using drugs, but now she is clean and is studying to be a nurse. Jane Doe #18 is only about five feet tall and looks barely eighteen now. She is very concerned about her family finding out about what happened to her, but she is strongly committed to Epstein's prosecution. What seems most devastating to Jane Doe #18 is that she returned to Epstein's house after the forcible digital penetration and brought her friend, Jane Doe #19. Jane Doe #19 massaged Epstein's back and legs. When he turned over, Epstein asked Jane Doe #19 to remove her shirt. She refused and he became upset and ended the massage. Epstein then sent for Jane Doe #18 and reprimanded her for not telling Jane Doe #19 that she would have to perform the massage topless. When Jane Does #18 and #19 left, they called the Royal Palm Beach Police Department, who referred them to the Palm Beach Police. Jane Does #18 and #19 spoke with someone there and reported what happened. After much searching, the Palm Beach Police Department was able to locate a report of this call. The report contains Epstein's name and address and the names of both girls and describes Epstein as paying $200 for a massage. The girls complained that Epstein insisted that they take off their tops and pants, even though he knew that they were 17. The date of the report is March 5, 2004, less than two weeks after Jane Doe #18's eighteenth birthday, and when Jane Doe #19 was seventeen years old. [NB: The police report describes a pattern of activity, including dates when Jane Doe #18 was seventeen years old.] Neither Jane Doe #18 nor #19 ever returned to Epstein's home. Although we have not yet obtained Jane Doe #18's telephone records, we were able to identify her telephone number, and there are twenty telephone calls that appear on Sarah Kellen's phone records. All of those calls were outgoing (meaning Kellen called Jane Doe #18.) The telephone calls range in date from August 27, 2003 through March 3, 2004. The phone number is the same one that Jane Doe #18 provided to the Palm Beach Police Department when she made the report against Epstein. Kellen never again called Jane Doe #18 after JD#18 made the report to the Palm Beach Police Department. Both Jane Doe #18 and Jane Doe #19 appear in the overt acts portion of the Indictment. In addition, a count of use of the telephone to entice Jane Doe #18 to engage in prostitution has been added. There was no direct telephone contact between Kellen and Jane Doe #19, so a substantive count has not been added related to her. 7 EFTA00191651

III. OTHER CHANGES TO INDICTMENT The overt acts are now organized by victim, or if a group of victims are related, then by group, followed by a separate listing of Epstein's travel to Palm Beach. This should make the indictment much easier to follow. I also have selected telephone calls that are more closely linked to the dates of the sexual activity rather than focusing exclusively on calls near flights. The number of overt acts has not significantly decreased for the following reason. First, as an initial filing, the included overt acts provide a complete picture of Epstein's behavior. The Grand Jury's determination that there is probable cause to believe that all of the acts were committed should help persuade the Magistrate Judge and the District Judge that Epstein is a danger to the community and that the evidence against Epstein is strong. Second, there are cases that suggest that, when a certain number of overt acts are charged in a conspiracy count, but the Government seeks to introduce a large number of uncharged overt acts, those uncharged acts can serve as a variance from/amendment to the Indictment. One of those cases was argued by Gerald Lefcourt — one of Epstein's attorneys. For those reasons, I have kept most of the overt acts from the original indictment (excluding those related to the Jane Does who have been dropped from the indictment) and have added acts related to the new Jane Does. I still plan to supersede the indictment with information about additional Jane Does from New York or elsewhere and with potential money laundering counts and computer-related counts when those phases of the investigation are completed. At the time I supersede, the overt acts can be reduced. The counts have been reorganized based upon discussions with Myesha Braden from the Child Exploitation Section. She believes that our strongest counts are the child sex trafficking violations (18 U.S.C. § 1591). I have moved those counts forward in the indictment. 8 EFTA00191652

Page 1 of 14 wesflaw. 602 F.Supp. 1029 602 F.Supp. 1029 (Cite as: 602 F.Supp. 1029) C U.S. it DiVarco D.C. .,1985. United States District Court, N.D. Illinois, Eastern Division. UNITED STATES of America, Plaintiff, Joseph DiVARCO, et al., Defendants. No. 84 CR 507. Feb. 6, 1985. After conviction by jury on all counts in which each defendant was named in indict- ment, Government moved for detention of each of them pursuant to Bail Reform Act, claiming each of them was likely to pose danger to safety of other persons or com- munity if released. Defendants moved for release from detention, launching number of constitutional attacks on statute. The District Court, Shadur, J., held that: (1) Bail Reform Act did not violate Eighth Amendment's proscription on excessive bail; (2) Act did not violate due process on ground it was vague or lacked standards; (3) Act did not violate equal protection; (4) detention pending sentencing did not viol- ate defendants' right to counsel; and (5) ap- plication of law to defendants did not con- stitute ex post facto violation. Motions for release on bail denied. West Headnotes [II Bail 49 E 52 49 Bail 49II In Criminal Prosecutions 49k50 Amount of Bail 49k52 k. Excessive Bail. Most Cited Cases Provision of Bail Reform Act which im- Page 1 poses upon defendant burden of showing by clear and convincing evidence that he is not likely to pose danger to safety of other persons or community if released on bail does not violate Eighth Amendment pro- hibition on excessive bail. U.S.C.A. Const.Amend. 8; 18 U.S.C.A. § 3143(a). [2] Bail 49 ec.39 49 Bail 49II In Criminal Prosecutions 49k39 k. Nature and Scope of Rem- edy. Most Cited Cases Although statute requiring that presentence convicted defendant establish by clear and convincing evidence that he is not likely to pose danger to safety of other persons or community if released under Bail Reform Act did not specify procedures to be fol- lowed, it was not invalid on ground it was vague or lacked standards, where require- ment of judicial officer's finding by clear and convincing evidence necessarily con- noted hearing, and clear implication of stat- ute was that neighboring provisions dealing with hearings for presentence detention and specifying factors to be considered in such hearings, including safety or danger of others and community applied to presen- tence defendant as well. 18 U.S.C.A. §§ 3142(b, c, f, g), 3143(a). 13] Statutes 361 C=.47 361 Statutes 361I Enactment, Requisites, and Valid- ity in General 361k45 Validity and Sufficiency of Provisions 361k47 k. Certainty and Definite- ness. Most Cited Cases Congress is not required to substitute par- ticular for generic or to give term more C 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?utid=%76FEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191653

602 F.Supp. 1029 602 F.Supp. 1029 (Cite as: 602 F.Supp. 1029) precise content by giving examples or by establishing laundry list. HI Constitutional Law 92 €=)889 92 Constitutional Law 92VI Enforcement of Constitutional Provisions 92VI(A) Persons Entitled to Raise Constitutional Questions; Standing 92VI(A)10 Due Process 92k888 Criminal Law 92k889 k. In General. Most Cited Cases (Formerly 92k42.1(3)) Defendants challenging provision of Bail Reform Act requiring that presentence con- victed defendant establish by clear and convincing evidence that he is not likely to pose danger to safety of other persons or community if released on bail could not challenge constitutionality of statute on ground that term "danger' lacked meaning as to them, where defendants were tied by testimony to gangland-type assassinations and with potential for retaliation against witnesses. 18 U.S.C.A. §§ 3142(b, c), 3143(a). [5] Bail 49 E=49(4) 49 Bail 49II In Criminal Prosecutions 49k49 Proceedings to Admit to Bail 49k49(3) Evidence 49k49(4) k. Presumptions and Burden of Proof. Most Cited Cases Bail 49 €=.49(5) 49 Bail 49II In Criminal Prosecutions 49k49 Proceedings to Admit to Bail 49k49(5) k. Hearing and Determ- ination. Most Cited Cases Court assured both adequate notice of al- Page 2 of 14 Page 2 legations against defendants and ample op- portunity for meaningful defense to Gov- ernment's motion for detention of defend- ants on ground defendants were likely to pose danger to safety of other persons or community if released, where court im- posed burden of going forward at hearing on Government and accorded each defend- ant and his counsel as much time as they found necessary to deal with Government's charges. 18 U.S.C.A. §§ 3142(b, c), 3143(a). [6] Bail 49 C=49(3.1) 49 Bail 49II In Criminal Prosecutions 49k49 Proceedings to Admit to Bail 49k49(3) Evidence 49k49(3.1) k. In General. Most Cited Cases (Formerly 49k49(3)) Rules of evidence do not limit conduct of bail hearings, even those resulting in de- tention; thus, hearsay may be considered, with judge applying his or her experience as fact finder to decide extent to which it is to be credited or discredited because of in- sufficient reliability. [7] Constitutional Law 92 €=.4653 92 Constitutional Law 92XXVII Due Process 92XXVII(H) Criminal Law 92XXVII(H)5 Evidence and Wit- nesses 92k4653 k. Presumptions, In- ferences, and Burden of Proof. Most Cited Cases (Formerly 92k266(7)) Burden of proof allocations in criminal cases do not necessarily implicate due pro- cess requirements. U.S.C.A. Const.Amend. 5. @ 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191654

602 F.Supp. 1029 602 F.Supp. 1029 (Cite as: 602 F.Supp. 1029) 181 Constitutional Law 92 41:=3797 92 Constitutional Law 92XXVI Equal Protection 92XXVI(F) Criminal Law 92k3797 k. Bail. Most Cited Cases (Formerly 92k250.2(1)) Bail 49 €=,42 49 Bail 4911 In Criminal Prosecutions 49k41 Right to Release on Bail 49k42 k. In General. Most Cited Cases (Formerly 92k250.2(1)) Where occasion for court's present determ- ination was not offense leading to convic- tion but postconviction threat to safety posed by defendants, and class defined by Congress as all convicted defendants who represented such societal threat bore most direct imaginable nexus to remedy of de- tention pending sentencing, Bail Reform Act's failure to distinguish between those who pled guilty and those convicted after trial, between those convicted of misde- meanors and those convicted of felonies, and between those convicted of nonviolent and those convicted of violent offenses raised no equal protection problems. U.S.C.A. Const.Amend. 5; 18 U.S.C.A. § 3143. 19] Bail 49 E:=039 49 Bail 4911 In Criminal Prosecutions 49k39 k. Nature and Scope of Rem- edy. Most Cited Cases Court may structure conditions of .presen- tence detention so as to preserve rights of defendant to appeal and to present mean- ingful defense; thus, statute which provides for detention of defendant who is con- Page 3 of 14 Page 3 victed but not yet sentenced unless he es- tablishes by clear and convincing evidence he is not likely to pose danger to society or others does not implicate defendant's Sixth Amendment right to counsel. U.S.C.A. Const.Amend. 6; 18 U.S.C.A. §§ 3142(b, c), 3143(a). [101 Constitutional Law 92 C=2790 92 Constitutional Law 92XXIII Ex Post Facto Prohibitions 92XXIII(A) Constitutional Prohibi- tions in General 92k2790 k. Punishment in Gener- al. Most Cited Cases (Formerly 92k203) Absent "punishment," there is no ex st facto problem. U.S.C.A. Const. Art. 1, § po9, cl. 3. [111 Constitutional Law 92 C=2810 92 Constitutional Law 92XXIII Ex Post Facto Prohibitions 92XXIII(B) Particular Issues and Applications 92k2809 Criminal Proceedings 92k2810 k. In General. Most Cited Cases (Formerly 92k199) Bail 4941:=412 49 Bail 4911 In Criminal Prosecutions 49k41 Right to Release on Bail 49k42 k. In General. Most Cited Cases (Formerly 92k199) Section of Bail Reform Act providing for detention of presentence convicted defend- ant unless defendant shows by clear and convincing evidence he is not likely to pose danger to society or others if released on bail is aimed not at punishing past con- O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191655

Page 4 of 14 602 F.Supp. 1029 602 F.Supp. 1029 (Cite as: 602 F.Supp. 1029) duct but at protecting society generally, and its individual members particularly, from reasonably predictable future con- duct; thus, where jury had already found beyond reasonable doubt that defendants had committed crimes, application of stat- ute to them did not constitute impermiss- ible ex post facto law. U.S.C.A. Const. Art. 1, § 9, cl. 3; 18 U.S.C.A. § 3143. *1031 Judith Dobkin, John Scully, Sp. At- tys., U.S. Dept. of Justice, Chicago, Ill., for plaintiff. Elliot Samuels, I. P. Lynch, Chicago, Ill., Joseph M. rata, Wheaton, Ill., for defendants. MEMORANDUM OPINION AND OR- DER SHADUR, District Judge. On January 9, 1985 each of Joseph Di- Varco ("DiVarco") and Ronald Ignoffo ("Ignoffo") was convicted by a jury on all counts in which he was named in the in- dictment in this case. On January 10 the government moved for the detention of each of them pursuant to the Bail Reform Act of 1984 (the "Act"), 18 U.S.C. § 3143(a) ("Section 3143(a)"),Fm claiming each of them (though not any of their four convicted codefendants) was likely to pose a danger to the safety of other persons or the community if released pursuant to Sec- tions 3142(b) or (c). FN1. All other citations to Title 18 (as amended by the Act) will also simply take the form "Section-." Citations to the Act's internal num- bering will take the form "Act §-." *1032 This Court immediately conducted a detention hearing (the "Hearing") on Janu- ary 10 and 11. At the conclusion of the Hearing as to Ignoffo, this Court found he Page 4 had not shown by clear and convincing evidence that he was not likely to pose such a danger. Accordingly Ignoffo was ordered detained in accordance with Sec- tion 3143(a) P4 DiVarco's hearing was not concluded because his doctors recom- mended he be hospitalized.no However, given the testimony to this point (iimplicating DiVarco not only in the gang- land-type assassination tied to Ignoffo, see Ex. 1 Finding 1, but also to the botched as- sassination of Ken Eto, a witness in the tri- al of this case), this Court ordered DiVarco committed to the custody of the Attorney General for confinement at Bethany Meth- odist Hospital pending imposition of sen- tence (subject, of course, to a possibly dif- ferent resolution if the Hearing were com- pleted before that time).na FN2. Exhibit 1 to this memorandum opinion and order is this Court's or- der of detention as to Ignoffo. FN3. At that time DiVarco's doctors considered him an imminent pneu- monia risk, in addition to his having an irregular heartbeat pattern and other problems. After his hospitaliz- ation they recommended installation of a pacemaker, which has since been done. DiVarco is now recuper- ating from that operation and should be capable of discharge from the hospital shortly, though a later hearing on that subject has dis- closed further complications in his physical condition. FN4. Exhibit 2 to this memorandum opinion and order is this Court's or- der of detention as to DiVarco. Both DiVarco and Ignoffo have now moved for release from detention, launch- ing a number of constitutional attacks on O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191656

602 F.Supp. 1029 602 F.Supp. 1029 (Cite as: 602 F.Supp. 1029) Section 3143(a). For the reasons stated in this memorandum opinion and order, their motions are denied. Changed Standards Under the Act Two of this Court's colleagues have re- cently dealt with the constitutionality of other bail provisiox of the Act: Judge Hart in United States Hazzard, 598 F.Supp. 1442 (N.D.Ill.19 ) (pretrial detentio and Judge Getzendanner in United States Cirrincione, 600 F.Supp. 1436, (ND.I 1985) (detention after sentencing and pending appeal, based on the likelihood of reversal on appeal). Though the constitu- tional considerations in those situations are obviously related to the considerations ap- plicable to the present question, the distinc- tions among the several situations make neither of the earlier analyses controlling here. Here we deal with already-convicted but not-yet-sentenced defendants, as to each of whom the decision of detention or release is based on whether he "is not likely to ... pose a danger to the safety of any other person or the community if released" (Sec- tion 3143(a)). Just such a likelihood of danger was an established basis for deny- ing bail under former law, 18 U.S.C. § 3148 (repealed by Act § 203(a)): A person ... who has been convicted of an offense and is either awaiting sentence or sentence review under section 3576 of this title or has filed an appeal or a petition for a writ of certiorari, shall be treated in ac- cordance with the provisions of section 3146 [establishing conditions of release] unless the court or judge has reason to be- lieve that no one or more conditions of re- lease will reasonably assure that the person will not flee or pose a danger to any other Page 5 of 14 Page 5 person or to the community. If such a risk of flight or danger is believed to exist ... the person may be ordered detained. Pre-Act law also imposed the burden of es- tablishing the absence of such danger on the convicted defendant-at least one who has already been sentenced. Although early case law under 18 U.S.C. § 3148 had treated its language as continuing to create the historial presumption rinstdeten- tion *1033 (United States Provenzano, 605 F.2d 85, 94 (3d Cir.1 9)), in 1972 Fed.R.App. ("Rule 9(c) was adopted ex- pressly (1972 Advisory Committee Notes to that Rule): to allocate to the defendant the burden of establishing that he will not flee and that he poses no danger to any other person or to the community. The burden is placed upon the defendant in the view that the fact of his conviction justifies retention in custody in situations where doubt exists as to whether he can be safely released pending disposition of his appeal. See discussion in Provenzano, 605 F.2d at 93-95. Thus the allocation of proof as to the dan- gerous post -sentence defendant is clear. But this Court has not located any case, either under prior law or under the Act, dealing with the burden-of-proof question in the post-conviction pre -sentence situ- ation such as DiVarco's or Ignoffo's. It would surely seem, however, that Congress might reasonably have viewed the single fact of conviction (as opposed to the pre- cise timing of a detention decision-wheth- er pre-sentence or post-sentence) as de- terminative, so as to equate the burden of proof in any post-conviction situation to that defined in Rule 9(c) (see the later dis- cussion of this subject). In any event, the C 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. hups://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191657

Page 6 of 14 602 F.Supp. 1029 602 F.Supp. 1029 (Cite as: 602 F.Supp. 1029) Act has now changed the burden on the convicted defendant (both pre-sentence and post-sentence) to one of "clear and convin- cing evidence." FM FNS. Thus the shift from old 18 U.S.C. § 3148 and Rule 9(c) to Sec- tion 3143(a) involves two changes: 1. from "the judge has reason to believe that no ... conditions of re- lease will reasonably assure that the person will not ... pose a danger...." to "the judicial officer finds ... that the person is not likely to ... pose a danger...."; and 2. from "the burden of establish- ing ... rests with the defendant" to "the judicial officer finds by clear and convincing evidence...." It is always difficult to convert the semantics of such differently stated standards into a quantified comparison. Here the "reason to believe" test in the first pairing might arguably be viewed as harder for a defendant to over- come than its "finds not likely" counterpart. Conversely "clear and convincing" is plainly a more difficult burden for the defendant than a mere preponderance. Thus (with factors that might be per- ceived as pointing in different dir- ections) the overall effect of the changes is not as obvious as it might seem at first blush. For pur- poses of this opinion, however, it will be assumed a defendant is worse off under the Act than un- der the old law. Constitutional Considerations "a Page 6 FN6. All the detention provisions of the Act have been drawn from the corresponding provisions of the District of Columbia Code (Sections 23-1321 to 23-1327), where they have been in effect since enactment of the District of Columbia Court Reform and Crim- inal Procedure Act of 1970. Section 3143(a) is a counter-pan of D.C.CT § 23-1325(b). In United States Edwards, 430 A.2d 1321 C.1 1) (en bane) the District of Columbia Court of Appeals dealt with the constitutionality of various of those provisions in an extended opinion (with some dissents on dif- ferent issues). 1. Eighth Amendment At the outset it should be made clear the "right to bail" here-at least in terms of a lit- eral constitutional right-is plainly a mis- nomer. What the Eighth Amendment says on the subject is simply this: Excessiv bail shall not be required.... In Carlson Landon, 342 U.S. 524, 72 S.Ct. 525, 96 .Ed. 547 (1952) the Supreme Court rejected (albeit in dictum) the notion that because excessive bail cannot be set, the outright denial of bail must a fortiori be foreclosed. Instead the Eighth Amendment was there taken to mean that if an individu- al is found entitled to bail at all, the right created by that determination cannot be subverted by an unreasonably high bail set- ting (id. at 545, 72 S.Ct. at 536): The [Eighth Amendment's] bail clause was lifted with slight changes from the English Bill of Rights Act. In England *1034 that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.cotn/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191658

602 F.Supp. 1029 602 F.Supp. 1029 (Cite as: 602 F.Supp. 1029) those cases where it is proper to grant bail. When this clause was earned over into our Bill of Rights, nothing was said that indic- ated any different concept. The Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country. There is room for debate on that score in L the pre-conviction co ext, fueled in part by a dictum in Stack Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 L. . 1 (1951) (decided the same term as Carlson ) (emphasis in original): From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the present Federal Rules of Criminal Procedure, Rule 46(a)(1), federal law has unequivocally provided that a person arrested for a non- capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered prepar- ation of a defense, and serves to prevent i m the infliction of puni ent prior to con- viction. See Hudson Parker, 156 U.S. 277, 285 [15 S.Ct. 45 , 453, 39 L.Ed. 424] (1895). Unless this right to bail before trial is preserved, the presumption of inno- cence, secured only after centuries of struggle, would lose its meaning. 1 For an extended discussion of e issues in this area, see United States Edwards, 430 A.2d 1321, 1325-31 (D. .1981) (en banc). But even the Stack dictum addresses the pre -conviction, not post -conviction, de- fendant. As for the latter category of of- fender Justice Douglas, scarcely a foe of civil liberties, spoke to the issue ' his ca- pacity as Circuit Justice in Carboi United States, 82 S.Ct. 662, 666, 7 L. .2d 769 (1962): Page 7 of 14 Page 7 If, for example, the safety of the com- munity would be jeopardized, it would be irresponsible judicial action to grant bail. Accord, Harris k United States, 404 U.S. 1232, 1235-36, 2 S.Ct. 10, 13-14, 30 L.Ed.2d 25 (1971) (Dol las, J., Circuit Justice); and see Russell United States, 402 F.2d 185, 187 (D.C.Cir. 968): Appellants will remain in custody not be- cause they lack the means to make bail, but for the reason that their release would present danger to the community. But see Sellers' United States, 89 S.Ct. 36, 38, 21 L.Ed d d 64 (1968) (Black, J., Circuit Justice) (questioning whether a de- fendant's dangerousness can ever justify denial of bail). [1] This Court therefore rejects, as to con- victed defendants DiVarco and Ignoffo, the unconstitutionality of Section 3143(a) on Eighth Amendment grounds.m If de- fendants are to find relief, it must be else- where in the Constitution. FN7. There are cases that express dir some bt on this score; see, e.g., Hunt Roth, 648 F.2d 1148, 1158-6 (8th Cir.1981). But they do so on the theory that a wholly arbit- rary denial of bail is the functional equivalent of "excessive bail," thus violating the Eighth Amendment. Even on that view, Congress' de- cision that a defendant's danger to society should foreclose his release can hardly be viewed as establish- ing a wholly arbitrary classification. Thus the conclusion reached in the text would not be altered by a dif- ferent perception of the Eighth Amendment. 2. Due Process Clause @ 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191659

Page 8 of 14 602 F.Supp. 1029 • 602 F.Supp. 1029 (Cite as: 602 F.Supp. 1029) Both DiVarco and Ignoffo advance a pot- pourri of challenges to the procedure under the Act. None is persuasive, and none calls for more than brief discussion." FN8. True enough, just last year tj Supreme Court said in Scholl Marlin, 467 U.S. 253, 104 S. 2403, 2410, 81 L.Ed.2d 207 (1984): In Bell i Wolfish, 441 U.S. [520], at 534 15, 99 S.Ct. [1861], at 1871 n. 15 [60 L.Ed.2d 447 (1979) ], we left open the question whether any governmental object- ive other than ensuring a detain- ee's presence at trial may constitu- tionally justify pretrial detention. But Scholl itself upheld in due process terms (at least as to juven- iles) a system of pretrial deten- tion predicated on "the combined interest in protecting both the community and the juvenile him- self from the consequences of fu- ture criminal conduct...." When the detained person has already been tried and found guilty of an- other crime (as have DiVarco and Ignoffo), the powerful considera- tion of the presumption of inno- cence (which undergirds all our concerns about pretrial detention, viewed as punishment, see Stack, 342 U.S. at 4, 72 S.Ct. at 3) loses its force. It would be a mistake to carry over to the present situation, in undiluted form, the troubled ju- dicial soul-searching about pretri- al detention-a soul-searching that has expressed itself in a continu- ing due process dialogue (contrast, for example, the major- ity and dissenting opinions in both Scholl and Bell ). Page 8 *1035 [2][3][4][5][6][7] Though they call on such pejorative rubrics as vagueness and lack of standards, DiVarco and Ignoffo attack Section 3143 in both procedural and substantive due process terms. It is true the statute does not specifically prescribe the procedures to be followed. But its require- ment of a judicial officer's "find[ing] by clear and convincing evidence" necessarily connotes a hearing, and the clear implica- tion of the statute is that the neighboring provisions of Sections 3142(f) (dealing i with hearings for resentence detention) and 3142(g) (speci ing the factors to be considered in suc hearings, including safety or danger to other persons and the community) apply to Section 3143(a) as well." This Court in fact conducted just such a hearing. In that light the DiVarco-Ig- noffo arguments evanesce: FN9. Among other things, Section 3143(a) says a finding of no danger results in a release order under Sec- tion 3142(b) or (c). Section 3142(f) provides for the "detention hear- ing" to see which if any conditions under one of those very sections-Section 3142(c)-should ap- ply. Section 3142(g) speaks of the factors to be considered at such a hearing. That statutory structure of course creates a common-sense link between the Section 3143(a) re- quirement of a finding, on the one hand, and the Section 3142(f) hear- ing procedures and the Section 3142(g) factors, on the other. 1. Any claim that it is not clear to whom the statute applies is absurd: It is poten- tially applicable to any convicted defend- ant, and it is actually applied against any such person about whom the government has information that he or she poses a po- C 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. hups://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191660

602 F.Supp. 1029 • 602 F.Supp. 1029 (Cite as: 602 F.Supp. 1029) tential danger to other persons or the com- munity. That triggers the need for a judicial determination of the issue, and hence a hearing. 2. By its very nature, such "danger" can take a number of forms. Nothing requires Congress to substitute the particular for the generic-to give the term more precise con- tent by giving examples or by establishing a laundry list. Certainly DiVarco and Ig- noffo, tied by testimony to gangland-type assassinations (and with their potential for retaliation against witnesses here), cannot claim the concept of danger to others or the community is devoid of content in their cases. That would follow a fortiori from such cases as Provenzano, 605 F.2d at 95-96. And as to what constitutes a "sufficient showing" of the likelihood of such danger, that is no different from any other factual determination courts are regu- larly called upon to make. 3. By imposing the burden of going for- ward at the Hearing on the government and by according to each defendant and his counsel as much time as they found neces- sary to deal with the government's charges, this Court assured both adequate notice of the allegations against the defendants and ample opportunity for a meaningful de- fense. Edwards, 430 A.2d at 1339-41. 4. Even in full-blown criminal trials, the Sixth Amendments Confrontation Clause poses the only constitutional objection to hearsay evidence. And it has always been true of bail hearings, including those res- ulting in detention, that the rules of evid- ence do not limit the conduct *1036 of the hearing. Hearsay may be considered, with the judge applying his or her experience as a factfmder to decide the extent to which it is to be credited or discredited because of insufficient reliability. In fact the catchall Page 9 of 14 Page 9 provision of Fed.R.Evid. 803(24) and 804(bX5) (which some thoughtful academ- icians and courts have suggested ought to supplant entirely the particularized excep- tions to the hearsay rule) permit essentially that result even in the more formal environ- ment of a trial. On this issue generally, see Edwards, 430 A.2d at 1337-38. 5. Burden of proof allocations do not ne- cessarily implicate due process require- ments. This opinion has already pointed out that prior law imposed on the defendant the burden of proof (at least in the post- conviction, post-sentencing situation) of negating his or her likely danger to other persons or the community where that was placed in issue. And so long as the issue is one of likelihood of danger, it appears ra- tional for Congress to have equated the convicted felon before sentencing with the same convicted felon after sentencing for the purpose of protecting society against the dangers he or she presents. In turn, that equal need for protection carries with it the rationality of the congressional decision that the burden of proof in the two situ- ations should be exactly the same. Once that determination is made, the use of a "clear and convincing" rather than a pre- ponderance test does not appear to cross the borderline into a due process no-man's land.Fmo FN10. Candor compels the disclos- ure that this Court has found no case law (nor have the parties cited any) on this subject. 3. Equal Protection Clause Ipoffo suggests Section 3143's failure to distinguish between those who plead guilty and those convicted after trial, between those convicted of misdemeanors and those O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191661

Page 10 of 14 • 602 F.Supp. 1029 ' 602 F.Supp. 1029 (Cite as: 602 F.Supp. 1029) convicted of felonies, and between those convicted of nonviolent and those con- victed of violent offenses raises equal pro- tection problems. DiVarco puts related is- sues in a different way: Section 3143's pre- sumption against all convicted defendants- regardless of their offenses or back- grounds-bears no rational relationship to legitimate governmental interests of pro- tecting the community (including other persons). [8] Of course the distinctions between of- fenders made by Ignoffo cut against rather than for him, except the comparison based on the nonviolent nature of the offenses of which he has been convicted. That fact-that he is on the wrong side of two of the three comparisons-creates standing questions as to his ability to raise such other claims. But even apart from that, what both Ignoffo and DiVarco gloss over is that the occasion for this Courts present determination is not the offense leading to the conviction but the post-conviction threat to safety posed by the defendant.iNii That is the class Congress has defined-all convicted defend- ants who represent such a societal threat- and that class bears the most direct imagin- able nexus to the remedy: detention pending sentencing. There can be no quar- rel with the rationality of that classification for Equal Protection Clause purposes."4,2 FN11. This distinction is touched on more fully in the ex post facto discussion later in this opinion. FN12. That rational distinction also demolishes DiVarco's suggestion of discriminatory enforcement based on the government's having sought detention of DiVarco and Ignoffo but not of their four codefendants (as to whom the government said it had no information indicating Page 10 danger to other persons or to the community). 4. Effective Assistance of Counsel [9] DiVarco says detention pending sen- tencing effectively negates his right to ap- peal, and both DiVarco and Ignoffo assert *1037 Section 3143's alleged procedural flaws preclude any meaningful defense. Both those arguments are essentially Sixth Amendment right-to-counsel claims, and simply to state them is to disclose their total lack of merit. It is clearly possible for a court to structure the conditions of presentence detention so as to preserve those rights to a defendant. 5. Ex Post Facto Clause Up to this point DiVarco and Ignoffo have struck out on all the grounds they assert. That leaves for consideration only the ex post facto question-a question that (given Judge Getzendanner's opinion invalidating a related provision of the Act on that score) bears careful scrutiny. Because this Court is not called upon to de- cide the same issues as Judge Getzendan- ner or Judge Hart, and because orderly jur- isprudence dictates the non-decision of constitutional questions until they must be resolved in the crucible, f a live contro- versy (see Ashwander TVA, 297 U.S. 288, 346-47, 56 S.Ct. 466, 482-83, 80 L.Ed. 688 (1936) (Brandeis, J., concur- ring)), nothing in this opinion should be construed as either subscribing to or dis- avowing either Cirrincione or Hazzard. But as both the extended analysis in Cirrin- cione and the shorter treatment in Hazzard reflect, the key to ex post facto vulnerabil- ity vel non in this case is whether, in the words of the most recent Supreme Court O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191662

Page 11 of 14 602 F.Supp. 1029 • 602 F.Supp. 1029 (Cite as: 602 F.Supp. 1029) pronouncement on the clause, Weaver Graham, 450 U.S. 24, 30, 101 S.Ct. 96 , 965, 67 L.Ed.2d 17 (1981), a defendants punishment has been increased by the new law: The presence or absence of an affirmative, enforceable right is not relevant, however, to the ex post facto prohibition, which for- bids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consum- mated.FNI3 FN13. Other facets of Ex Post Facto Clause coverage, such as its prohib- ition of (1) retrospective changes in conduct giving rise to criminal pen- alties and (2) the elimination of de- fenses available when the crime was committed, are plainly not in issue here. It is true Weaver, id. at 29, 101 S.Ct. at 964 also speaks in terms of the challenged law "disadvantag[ing] the offender affected by it." But that characterization alone is over- simplistic, for the Supreme Court itself has consistently taught not every "disadvantage" is vulnerable under the Clause, and the core inquiry remains the / retro ive increase in punishment. As De- Veau Braisted, 363 U.S. 144, 160, 80 S.Ct. 46, 1155, 4 L.Ed.2d 1109 (1960) put it: The mark of an ex post facto law is the im- position of what can fairly be designated punishment for past acts. The question in Page 11 each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incid- ent to a regulation of a present situation.... Just last Term the Supreme Court held pre- trial detention to protect society from the potential consequences of predictable cri final acts was not punishment. Schalll Martin, 104 S.Ct. at 2412-13 (1984). i• *1038 Though that decision was rendered in the context of juveniles (with their spe- cial right and disabilities), the same pun- ishment non-punishment analysis was announc as to adult p r al detainees five years earlier in Bell Wolfish, 441 U.S. 520, 535, 537, 538, X19 S.Ct. 1861, 1871, 1873, 1874, 60 L.Ed.2d 447 (1979) (citations omitted): FN14. Schein and a number of the other cases discussed in the text dis- cuss the concept of "punishment" for due process (rather than ex post facto) purposes. Because there seems no logical reason the "punishment" concept should be given any different content in con- struing the two constitutional provi- sions, this Court has felt free to draw on the due process cases in this Ex Post Facto Clause discus- sion. In evaluating the constitutionality of condi- tions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process oilaw, we think that the proper inquiry is whether those conditions amount to pun- ishment of the detainee. For under the Due Process Clause, a detainee may not be pun- ished prior to an adjudication of guilt in ac- 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?utid=%71)FEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191663

Page 12 of 14 602 F.Supp. 1029 602 F.Supp. 1029 (Cite as: 602 F.Supp. 1029) cordance with due process of law. Not every disability imposed during pretri- al detention amounts to "punishment" in the constitutional sense, however. Once the Government has exercised its conceded au- thority to detain a person pending trial, it obviously is entitled to employ devices that are calculated to effectuate this detention. Traditionally, this has meant confinement in a facility which, no matter how modem or how antiquated, results in restricting the movement of a detainee in a manner in which he would not be restricted if he simply were free to walk the streets pending trial. Whether it be called a jail, a prison, or a custodial center, the purpose of the facility is to detain. Loss of freedom of choice and privacy are inherent incidents of confinement in such a facility. And the fact that such detention interferes with the detainee's understandable desire to live as comfortably as possible and with as little restraint as possible during confinement does not convert the conditions or restric- tions of detention into "punishment." This Court has recognized a distinction between punitive measures that may not constitutionally be imposed prior to a de- termination of guilt and regulatory re- straints that may. A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.... Absent a showing of an expressed intent to punish on the part of detention facility of- ficials, that determination generally will turn on "whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the al- Page 12 temative purpose assigned [to it]." What is at work under Section 3143 is not punishment for past conduct but the pro- tection of society generally, and its indi- vidual members particularly, from reason- ably predictable future conduct. Scholl, 104 S.Ct. at 2417-18 (citations omitted) said: Our cases indicate, however, that from a legal point of view there is nothing inher- ently unattainable about a prediction of fu- ture criminal conduct. Such a judgment forms an important element in many de- cisions, and we have specifically rejected the contention, based on the same sort of sociological data relied upon by appellees and the district court, "that it is impossible to predict future behavior *1039 and that the question is so vague as to be meaning- less. That calls into play the concept our Court of Appeals applied to the Ex Post Facto r Clause (albeit in a different con t from the present one) in United States Sutton, 521 F.2d 1385, 1390- (7th ir.1975) (quoting United States Karnes, 437 F.2d 284, 289-90 (9th Cir. , cert. denied,402 U.S. 1008, 91 S.Ct. 2189, 29 L.Ed.2d 430 (1971)): It is well established "that where Congress has rationally concluded that persons who have demonstrated a tendency in the past to engage in conduct that Congress has the power to proscribe, Congress may restrict such future activities without violating the Ex Post Facto prohibition." [10][11] Again the result here is foreor- dained by the like conclusions as to pretrial detention. In the pretrial situation the mere probable cause to believe commission of a crime, coupled with a perceived threat of the defendant to the safety of others, has rendered the detention order something @ 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191664

Page 13 of 14 • 602 F.Supp. 1029 602 F.Supp. 1029 (Cite as: 602 F.Supp. 1029) other than "punishment." Absent punish- ment there is no ex post facto problem. Here, by comparison, a Jury has already found beyond a reasonable doubt that Di- Varco and Ignoffo have committed crimes. Surely society cannot be less entitled to protect itself and its members against what this Court has found the likelihood of real dangers-dangers that would be posed by the continued enlargement of convicted de- fendants Ignoffo and DiVarco MIS pending their sentencing. FN15. This does not of course im- ply an ultimate finding as to Di- Varco. Because the statute places the burden on him, and because the evidence during the Hearing to this point demonstrates a real probabil- ity of his posing a danger to the safety of others, his release pending completion of the Hearing would be improper. Conclusion Section 3143 is not vulnerable to constitu- tional onslaught, either on its face or as ap- plied to DiVarco and Ignoffo.m, Both their motions for release on bail pending sentencing are denied. FN16. After this opinion was com- pleted (and indeed signed and ready for issuance), this Court learned of the very recent decisions by three Courts of Appeal reaching a result opposite to that of Judge Get- zendanner's Cirrincione opinion in the post-appeal situation covered 3143(b). United States)! n e States and other 753 F. Powell 19, (3d Cir. 198 consolidated c es (8th Cir.) (order issued; opinion to follow); United States' Affleck, No. 84-2630 (10th Page 13 Cir.) (same). In addition, on January 26 our own Court of Appeals entered an unpublished order (non-citeable and non-precedential under Circuit Rule 35) affirming Judge Kanne's decision rejecting post facto attack in United States Molte, HCR 83-36-33 Jan. 9, 1985). In accordance with the Ashwander principles referred to earlier in the text, this Court of course continues to express no opinion on the substantive issue posed by those cases. It has however obtained a—. of the one available opinion- -to determ- ine how if at all thiMnion may be useful here. As to that: 1. Miller, at 21 gives very short shrift to the ex post facto issue, simply declaring the "availability vel non of bail pending appeal, al- beit extremely important to the in- dividual involved, is a procedural issue rather than a type of punish- ment to which the Ex Post Facto Clauses apply." 2. None of the other constitutional issues raised by DiVarcodig- noffo here was discussed in Suffice it to say that (not surpris- ingly, given the CIO Appeals' ruling) nothing in points to a different result in is case. Nor does it appear any more likely that any of the other cases cited in this footnote would do so. Exhibit 1 *1040 Exhibit 2 (1) 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. hups://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191665

Page 14 of 14 • 602 F.Supp. 1029 ' 602 F.Supp. 1029 (Cite as: 602 F.Supp. 1029) UNITED STATES OF AMERICA, Plaintiff, 1 JOSEPH DiVARCO, et al., Defendants. NO. 84 CR 507 DETENTION ORDER On January 9, 1985 following a jury trial, Joseph DiVarco ("DiVarco') was con- victed on all counts in the indictment in which he was named in this case. On Janu- ary 10 the government moved for Di- Varco's detention pursuant to 18 U.S.C. § 3143(a). This Court immediately com- menced a detention hearing (see 18 U.S.C. § [3142] (1)), found that the government had presented credible evidence that estab- lished prima facie (though this Court has not at this time definitively found) that Di- Varco was likely to pose a danger to the safety of other persons or the community if released pursuant to 18 U.S.C. §§ 3142(b) or (c) and that DiVarco had not yet estab- lished by clear and convincing evidence that he was not likely to pose such danger, and therefore ordered DiVarco detained pending completion of the hearing. Such completion of the hearing was not feasible at that time, in part because DiVarco's counsel advised that DiVarco's doctors had directed his hospitalization to avoid the possibility of his contracting pneumonia. In accordance with 18 U.S.C. § 3143(a) this Court hereby orders that DiVarco be committed to the custody of the Attorney General for confinement at Bethany Meth- odist Hospital pending imposition of sen- tence, upon the following conditions: Page 14 1. DiVarco shall be allowed monitored vis- its from his immediate family (his wife, their children and their children's spouses). All such visits are to be prearranged through the United States Marshal's Ser- vice. 2. DiVarco's attorneys (ium Lynch, Joseph Laraia and Jacqueli er) and his doctors shall have unlimited, unmon- itored access to him. 3. United States Probation Officer Rhoda Michaels shall have unmonitored access to DiVarco by prearranged appointment. 4. DiVarco shall be provided telephone ac- cess to his immediate family (see Para- graph 1) if such access can be secured ough the United States Marshal's Ser- vice. Such access shall not include a direct dial telephone. 5. No access shall be provided the United States Marshal's Service to DiVarco's med- ical records, nor shall any Marshal discuss DiVarco's medical condition with hospital personnel. 1s/ Milton I. Shadur Milton I. Shadur United States District Judge Date: January 11, 1985 D.C. .,1985. U.S. . DiVarco 602 .Supp. 1029 END OF DOCUMENT 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191666

I Page 1 of 6 Westlaw. 611 F.Supp. 860 611 F.Supp. 860 (Cite as: 611 F.Supp. 860) H U.S., Rourke D.C. a.,1985. United States District Court,E.D. Nortfolk Division.. UNITED STATES of America, Plaintiff, v. John ROURKE, et al., Defendants. Crim. No. 84-94-N. June 21, 1985. On defendant's motion for bail pending ap- peal, the District Court, Doumar, J., held that: (1) defendant was not entitled to bail pending appeal; (2) Bail Reform Act of 1984 is not an ex post facto law; and (3) no manifest injustice resulted in ordering de- fendant to begin serving his sentence pending appeal. Motion denied. West Headnotes 111 Bail 49 O=>44(1) 49 Bail 491I In Criminal Prosecutions 49k41 Right to Release on Bail 49k44 Pending Appeal or Other Proceeding for Review 49k44(1) k. In General; Con- ditions. Most Cited Cases Absent showing by clear and convincing evidence that defendant was not likely to flee, defendant was not entitled to bail pending appeal. 18 U.S.C.A. § 3143(b). [2] Bail 49 C=39 49 Bail 49II In Criminal Prosecutions 49k39 k. Nature and Scope of Rem- Page 1 edy. Most Cited Cases Constitutional Law 92 c€7 .2810 92 Constitutional Law 92MII Ex Post Facto Prohibitions 92XXIII(B) Particular Issues and Applications 92k2809 Criminal Proceedings 92k2810 k. In General. Most Cited Cases (Formerly 92k199) Bail Reform Act of 1984 [18 U.S.C.A. § 3143] is not an ex post facto law. U.S.C.A. Const. Art. 1, § 9, cl. 3. [3] Bail 49 €=,44(1) 49 Bail 49II In Criminal Prosecutions 49k41 Right to Release on Bail 49k44 Pending Appeal or Other Proceeding for Review 49k44(1) k. In General; Con- ditions. Most Cited Cases No manifest injustice resulted in ordering defendant, who had been admitted to bail before effective date of Bail Reform Act of 1984 [18 U.S.C.A. § 3143], to begin serving his sentence pending appeal, under rationale that even under Bail -Reform Act of 1966 release on bail was modifiable and never a vested right, or under interpretation that 1984 Act was prospective law effectu- ating procedural change which fully ap- plied to defendant upon his resentencing. *860 Tommy E. Robert E. Braden- ham, H, Office o e S. Atty., E.D. Va., Walter E. Hoffman, U.S. Courthouse, Nor- folk, Va., for plaintiff. Paul D. Brunton, Tulsa, Okl., Lloyd J. Parker, Jr., Portsmouth, Va., for defendant John Rourke. O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?utid=Vo7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191667

611 F.Supp. 860 611 F.Supp. 860 (Cite as: 611 F.Supp. 860) MEMORANDUM ORDER DOUMAR, District Judge. On March 14, 1985, the defendant, John Rourke, was convicted of 21 U.S.C. § 963 (conspiracy to import cocaine) and 21 U.S.C. § 952(a) (importation of about 691 pounds of cocaine). Following the jury ver- dict of guilty and an evidentiary hearing, the Court ordered that Rourke, an accom- plished pilot and the aviation consultant to a drug nng, be detained. ending sentencing under 18 U.S.C. § 3143 a) of the Bail *861 Reform Act of 1984. e Court now de- clines to modify that judgment for the reas- ons which follow. Following the preparation of a pre-sentence report, the Court sentenced Rourke on May 3, 1985 to concurrent imprisonment terms of fourteen (14) years on both counts. Rourke now moves for bail pending appeal under 18 U.S.C. § 3143(b) as he remains incarcerated under the sentence imposed on May 3, 1985. Rourke argues that (1) the Bail Reform Act of 1984 is an ex post facto law as applied to him and (2) that the stat- ute does not apply retroactively to a de- fendant like Rourke admitted to bail prior to the Act's passage. I. Laying aside constitutional analysis and questions of retroactivity, the relevant subsections of the Bail Reform Act of 1984 read as follows: § 3143. Release or detention of a defend- ant pending sentence or appeal. (a) RELEASE OR DETENTION PENDING SENTENCE.-The judicial of- ficer shall order that a person who has been found guilty of an offense and who is wait- ing imposition or execution of sentence, be Page 2 of 6 Page 2 detained, unless the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any person or the com- munity if released pursuant to section 3142(b) or (c). If the judicial officer makes such a finding, he shall order the release of the person in accordance with the provi- sions of section 3142(b) or (c). (b) RELEASE OR DETENTION PENDING APPEAL BY THE DEFEND- ANT.-The judicial officer shall order that a person who has been found guilty of an of- fense and sentenced to a term of imprison- ment, and who has filed an appeal or a pe- tition for a writ of certiorari, be detained, unless the judicial officer finds- (1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released pursuant to sec- tion 3142(6) or (c); and (2) that the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial. If the judicial officer makes such findings, he shall order the release of the person in accordance with the provisions of section 3142(b) or (c). 18 U.S.C. § 3143. This new Act created significant revisions in standards and pro- r ures governing bail. See United States Williams, 753 F.2d 329, 332 (4th r.1985). Upon Rourke's conviction on March 14, 1985, the Court ruled that Rourke would be detained under Section 3143 Subsection (a), the section relevant to defendants pending sentencing. The evidence adduced C 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/prinVprintstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191668

611 F.Supp. 860 611 F.Supp. 860 (Cite as: 611 F.Supp. 860) at trial and at a post-verdict evidentiary hearing led the Court to find that clear and convincing evidence of Mr. Rourke's return for sentencing was wholly lacking. Actu- ally, much evidence to the contrary was re- vealed. Rourke himself is a pilot who has maneuvered planes in and out of the United States at will and his family continues to own an aviation business. He was in poor financial condition. Rourke testified that he had received communications and threats of an undisclosed nature, from other fugit- ive co-defendants involved in the smug- gling venture. These continuing commu- nications particularly troubled the Court. On April 17, 1985, the Fourth Circuit ruled that Rourke's appeal of his post-verdict but pre-sentence detention was "premature since the appellant has not yet be sen- tenced." United States of America I gp John Rourke, No. 85-5101 (4th Cir. April 17, 1985). Following his sentencing on May 3, 1985, Rourke renewed his motion in this Court for bail pending appeal to allow his release from detention at least until the Fourth Circuit acted. The motion is now brought under 18 U.S.C. § 3143(6) (Release or De- tention Pending Appeal), whereas prior to *862 sentencing the relevant subsection was 3143(a) (Release or Detention Pending Sentencing). Subsection (a) requires the Court to detain the defendant unless clear and convincing evidence shows that the defendant will not flee or pose a danger to safety of any other person or the community. The Court found such evidence lacking on March 14, 1985. Subsection (b), relevant after sentencing, places a greater burden upon the convicted and sentenced defendant. The defendant is detained unless the Court finds that both § Page 3 of 6 Page 3 3143(bX1) and (b)(2) are met. Clearly, if the burden of proof of either subsection is not met, the defendant is detained. [11 There have been numerous recent cir- cuit courts of appeal decisions interpreting the appeal dale in § 3143(b)(2). See e.g., k United States ■ Molt, 75 F.2d 1198 (7th Cir.1985); Um ed States Crabtree, 754 F.2d 1200 ith Cir.198 (one judge); United States( Handy, 1 F.2d 1279 (9th Or.1985); United States Giancola, 754 F.2d 8 Allitir.19 ); and United States 753 F.2d 19 (3rd Cir.198 . these decisions inter- pret this subsection in a new and important way, these cases are irrelevant to the in- stant determination. Here, the Court stands pat on its findings at the post-conviction, presentence heanng that there was no showing by clear and convincing evidence that the defendant was not likely to flee. The operative language of subsection 3143(a) is identical to the language of sub- section 3143(b)(1) regarding risk of flight. Hence, the Court need not further evaluate subsection 3143(b)(2) as Rourke desires, because he must meet the burdens of both subsections, not just one or the other. II. [2] Rourke claims that the Bail Reform Act of 1984 is an ex post facto law under Art- icle I, sec. 9 of the Constitution. Until Oc- tober 12, 1984, the relevant statutory rules regarding bail pending appeal were as fol- lows: A person ... who has been convicted of an offense and is either awaiting sentence or sentence review under section 3576 of this title [18 USCS § 3576] or has filed an ap- peal or a petition for a writ of certiorari, shall be treated in accordance with the pro- @ 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191669

Page 4 of 6 611 F.Supp. 860 611 F.Supp. 860 (Cite as: 611 F.Supp. 860) visions of section 3146 [18 USCS § 3146] unless the court or judge has reason to be- lieve that no one or more conditions of re- lease will reasonably assure that the person will not flee or pose a danger to any other person or to the community. If such a risk of flight or danger is believed to exist, or if it appears that an appeal is frivolous or taken for delay, the person may be ordered detained.... 18 U.S.C. § 3148 (repealed). As the Sev- Ic th Circuit stated recently in United States Molt, 758 F.2d 1198 (1985) (Posner, J.): T]he change in the standard for bail pending appeal is not an ex post facto law. Even though it may work to the disadvant- age p f of a defendant, a procedural clinge is not ex ostacto ',"citing Dobbert Flor- ida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977); g e e.g., United States ex rel Massarella Elrod, 682 F.2d 688, 689 (7th rr.1982) (extending the statute of limitations); Dunn v. Maggio, 712 F.2d 998, 1001-02 (5th Cir.1983) (per curiam) (repealing pardon statute). It appears that the recent circuit decisions construing the Bail Reform Act of 1984 are in acc with the view, see, e.g. United States Crabtree, 754 F.2d 1200, 1201-02 45 • 1985) (one judge); United States I 753 F.2d 19, 21 (3rd Cir.1985). ecourt follows these cases and rejects the ex post facto claim. Rourke also claims that the Bail Reform Act of 1984 is a prospective law, inapplic- able to those admitted to bail prior to its ef- fective date on October 12, 1984. The Supreme Court has ruled that federal courts must apply the law in effect at the time it renders a decision, unless such a de- Page 4 cision would result in manifest injustice or where legislative history or statutory *8 direction is to the contrary. Bradley Richmond School Board, 416 U.S. 69 , 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 4 (1974); See National Posters, Inc. N. L. R. B., 720 F.2d 1358, 1363 (4 Cir.1983). The Court here addresses the Congressional intent and the issue of "manifest injustice". Rourke was admitted to bail in the amount of Twenty-Five Thousand Dollars ($25,000.00) in the Northern District of Oklahoma on July 30, 1984. The Bail Re- form Act of 1966 was then in effect. He was free on bail at the effective date of the Bail Reform Act of 1984, yet the govern- ment made no attempt to seek his deten- tion under the new statute's standards. However, after the jury returned a guilty verdict at his third trial, the government moved for his immediate detention. Under the new Act, 18 U.S.C. § 3143(b), the Court ordered Rourke's detention for the many reasons revealed in the transcript of the post-verdict detention hearing held on March 14, 1985. This Court reads 18 U.S.C. § 3143(b) as speaking in terms of conviction as the trig- gering event, i.e., "a person ... found guilty ... and sentenced to a term of imprisonment ... who has filed an appeal ... [isj detained, unless...." Rourke's conviction occurred on March 14, 1985 and his sentencing was on May 3, 1985. Upon sentencing, the Court must review the defendant's status under the criteria of 3143(b). A defendant's con- viction and a finding of guilty by a jury is a markedly different status from presumed innocence and release on bail prior thereto. The statute recognizes the different status. The defendant in United States' Zannino, 761 F.2d 52 (1st Cir.1985), was admitted C 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191670

611 F.Supp. 860 611 F.Supp. 860 (Cite as: 611 F.Supp. 860) to bail before the Act's effective date. However, after its effective date, and be- fore trial, the government moved for his detention under the "dangerous" defendant provisions of the new Act. See18 U.S.C. § 3143(a). The district Court affirmed the U.S. Magistrate, who refused to revoke bail under the Bail Reform Act of 1984, and the First Circuit reversed. [3] The First Circuit in Zannino noted that even under the prior Bail Reform Act of 1966, bail terms were "subject to review when changed circumstances require that the release be reappraised." Zannino, supra, at 55. The Court cited 18 U.S.C. § 3146(e), repealed by18 U.S.C. § 3142(c), which reads in part: A judicial officer ordering the release of a person on any condition specified in this section may at any time amend his order to impose additional or different conditions of release. Id. Although Rourke is a sentenced and convicted defendant unlike Zannino, who was a pre-trial defendant, Rourke was equally subject to the repealed subsection above by virtue of repealed § 3148, which states that those "awaiting ... sentence re- view ... shall be treated in accordance with the provisions of section 3146 unless [there exists] a risk of flight or danger is believed to exist, or if it appears that an appeal is frivolous or taken for delay...." The Zan- nino court went on to state: Thus the release on bail allowed under the 1966 Act was not an absolute grant; de- fendants were given notice that a change in conditions or terms could bring about the revocation of the release. That statute, fur- thermore, created no expectation that con- ditions would not change. What has actually occurred with the pas- Page 5 of 6 Page 5 sage of the pretrial detention provision may be considered a statutorily mandated change in those conditions.... We hold that defendants released under the 1966 Bail Act must show their continued eligibility for bail by meeting the newly imposed con- ditions if this issue is affirmatively raised by the Government. Zannino, supra, at 55-56. It is plain that even under the prior Bail Reform Act of 1966 release on bail was modifiable and never a vested right; hence, Rourke would not profit from its applicability. *864 Under the rationale of Zannino, or under an interpretation that the Bail Re- form Act of 1984 is a prospective law ef- fectuating a procedural change which fully applied to Rourke upon his sentencing, the Court holds that no manifest injustice res- ults in ordering Rourke to begin serving his sentence pending appeal. There is no indic- ation of any kind in the legislative history of the Bail Reform Act of 1984 that Con- gress intended it to apply to certain classes of defendants and not to others, nor of the Act's retroactivity or prospectivity. Fur- thermore, since the Act had an obvious im- pact on pretrial detainees and post- conviction defendants, any limitation on its applicability would have been expressed by Congress. See generally Zannino, supra, at 56-57 l e Court recognizes that in United States Mitchell, 600 F.Supp. 164 .D.Ca1.1985) Judge Patel held that the Bail Reform Act of 1984 was inapplicable to defendants admitted to bail under the prior, repealed Bail Reform Act of 1966. an This Court is unable to discover other reported decision to date flowing Mitchell. Indeed, in United States Allen, 605 F.Supp. 864 (W.D.Pa.1985), Judge Diamond rejected an "ex post facto law" O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191671

• 611 F.Supp. 860 , • 611 F.Supp. 860 (Cite as: 611 F.Supp. 860) challenge and a "retroactivity" attack on the Bail Reform Act of 1984, by pre-trial detainees alleged to have committed crimes prior to the Act's passage. In another case, the First Circuit Court of Appeals rejected the "retroactivity" argument with respect to one charged before the new Act was ef- fective and who tought pre-trial release. See United States Angiulo, 755 F.2d 969, 973-74 (1st Cir.19 ). The Court therefore holds that the Bail Re- form Act of 1984 is not an ex post facto law as applied to Rourke; that the Act is in- tended to apply to pending criminal matters such as the mstant case and that a convic- tion by a jury is a substantial change in status of the defendant. Rourke shall re- main incarcerated pending appeal. IT IS SO ORDERED. D.C. 1 .,1985. U.S. Rourke 611 .Supp. 860 END OF DOCUMENT O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. Page 6 of 6 Page 6 https://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-41774-8619-... 4/10/2008 EFTA00191672

U.S. v. GAVIRIA 667 Chou1123 Fad 667 (11th Cir. 1987) sarial role has long been well established. We agree with the district court that peti- tioner's present claim is merely a variation of law that was well established at the time of the 1983 proceedings. The ends of jus- tice can provide no exception in this case to the application of the abuse of the writ doctrine. The trial attorney could not pre- vent Ritter from testifying. Ritter's testi- mony—which admitted all of the relevant facts, evidenced no remorse, affirmatively sought the death penalty, and threatened harm to the jurors should they fail to re- turn a death sentence—would have under- mined any defense which the attorney might have presented. Under these cir- cumstances, we are confident that the "ends of justice" concept does not warrant an exception to the abuse doctrine. III. Conclusion Although we GRANT the petition to pro- ceed in forma pauperis, since both claims raised by petitioner are barred by the abuse of the writ doctrine, and since this issue would not be debatable among jurists of reason, we conclude the petitioner's ap- plication for a certificate of probable cause should be DENIED. Accordingly, petitioner's emergency mo- tion for a stay of execution is DENIED. UNITED STATES of America, Plaintiff-Appellee, v. Jorge Enrique GAVIRIA and Jose Elkin Echeverry, Defendants-Appellants. No. 87-6517. United States Court of Appeals, Eleventh Circuit. Sept. 3, 1987. United States District Court for the South- ern District of Florida, No. 87-303-CR- LCN, Lenore Carrero Nesbitt, J., affirmed, and defendants took further appeal. The Court of Appeals, Hatchett, Circuit Judge, held that (1) Government could proceed at pretrial detention hearing by way of prof- fer of evidence; (2) defendants' right to call adverse witnesses was conditional; and (3) defendants were not entitled to de novo hearing before district court. Affirmed. 1. Criminal Law 4=D1158(1) Court of Appeals applies plenary stan- dard of review in considering appeals under Bail Reform Act, but purely factual find- ings of district court remain subject to clearly erroneous review standard. 18 U.S. C.A. § 3141 et seq. 2. Bail O249(3) At pretrial detention hearing, Govern- ment as well as defense may proceed by proffering evidence, subject to discretion of judicial officer presiding at detention hear- ing. 18 U.S.C.A. § 1341 et seq. 3. Bail 4:242, 49(5) Defendant in pretrial detention hearing has only conditional right to call adverse witnesses; judicial officer presiding at de- tention hearing is vested with discretion whether to allow defense counsel to call adverse witness with or without initial proffer of expected benefit of witness' tes- timony. 18 U.S.C.A. § 1341 et seq. 4. Bail a=049(5) Narcotics defendants were not entitled to de novo hearing to fully review magis- trate's pretrial detention order which was based on proffers of evidence, where order was affirmed after reviewing Govern- ment's and defendants' memoranda of law and transcript of proceedings before magis- trate. 18 U.S.C.A. § 1342(e). Milton Hirsch, Miami, Fla., for Gaviria. Narcotics defendants appealed magic- Samuel J. Rabin, Jr., Miami, Fla., for trace's order of pretrial detention. The Echeverry. EFTA00191673

668 828 FEDERAL REPORTER, 2d SERIES Leon B. Kellner, U.S. Atty., Miami, Fla., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of Florida. Before RONEY, Chief Judge, FAY and HATCHET?, Circuit Judges. HATCHET?, Circuit Judge: Jorge Enrique Gaviria and Jose Elkin Echeverry appeal the decision of the dis- trict court imposing pretrial detention pur- suant to 18 U.S.C. § 3142(e). We affirm.' FACTS On April 30, 1987, Jorge Enrique Gaviria and Jose Elkin Echeverry were arrested and charged with several Title 21 narcotics offenses. The government requested tem- porary detention of Gaviria and Echeverry pursuant to 18 U.S.C. § 3142(d) after deter- mining that they were in the United States illegally. On May 6, 1987, a United States Magis- trate conducted a pretrial detention hearing pursuant to 18 U.S.C. § 3142(f) and ordered pretrial detention of Gaviria and Echever- ry' The magistrate based the pretrial de- tention order on risk of flight and dangers posed to the community as authorized by 18 U.S.C. § 9142(e). Gaviria and Echever- ry requested a review of the magistrate's order and a de novo hearing before the district court, alleging that (1) the magis- trate erroneously permitted the govern- I. This matter came to the court as a "Motion for Bail Pending Trial." We noted that 18 U.S.C. § 3145 provides for an appeal from a pretrial detention order. Under our rules and operating procedures. a single judge may determine a mo. tion for bail pending appeal, but a panel must determine an appeal pursuant to 18 US.C. § 3145. 2. Title 18 US.C. § 3142(f) provides, in pertinent part, that: The judicial officer shall hold a hearing to determine whether any condition or combina- tion of conditions set forth in subsection (c) of this section will reasonably assure the ap- pearance of the person as required and the safety of any other person and the communi. ment to proceed by proffering evidence at the pretrial detention hearing; (2) defense counsel were not permitted to call as a witness the government's case agent, who was present at the detention hearing; and (3) Gaviria and Echeverry were interviewed by immigration agents while in custody without notice to their defense counsel. The district court, without a de novo hearing, affirmed the magistrate's order of pretrial detention noting that the govern- ment had met its burden under the Bail Reform Act. Gaviria and Echeverry urge this court to reverse the district court's order affirming their pretrial detention. They allege that (1) the magistrate erred in allowing the government to proceed by proffer, (2) de- fense counsel were erroneously prevented from calling the government's case agent as a witness; and (3) the district court erred in failing to conduct a de now review of the pretrial detention proceedings' DISCUSSION (1) We note that this circuit has adopted the plenary standard of review in considering appeals under the Bail Reform Act. United States v. Hurled°, 779 F.2d 1467, 1470-73 (11th Cir.1986). Neverthe- less, the purely factual findings of the dis- trict court remain subject to the clearly erroneous standard. Surfed°, 779 F.2d at 1472. At the hearing, the person has the right to be represented by counsel and, if financially unable to obtain adequate representation, to have counsel appointed. The person shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who ap- pear at the hearing, and to present informs• don by proffer or otherwise. The facts the judicial officer uses to support a finding pursuant to subsection (e) that no condition or combination of conditions will reasonably assure the safety of any other per. son 3. Gaviria and Echeverry have not raised before this court their contention that various state- menu made to agents of the US. Border Patrol were improperly introduced at the detention hearing. EFTA00191674

U.S. v. GAVIRIA 669 Cite am US F.2d 667 111th Clr. 1987) I. Gaviria and Echeverry contend that the magistrate committed error by allowing the government to proceed by proffer at the pretrial detention hearing and by improper• ly precluding defense counsel from calling as a witness the government's case agent who was present at the detention hearing. The district court, citing a decision of the Third Circuit, United States v. Delker, 757 F.2d 1390 (3d Cir.I985), stated that "the magistrate did not err in allowing the government to proceed by proffer during the pretrial detention hearing. Nor did the magistrate err in the defendants' request to call the case agent as a witness on their clients' behalf under section 3142(gX2) of the Bail Reform Act." We agree. Although this circuit has not expressly addressed the issue of whether the govern- ment at a pretrial detention hearing may proceed solely by proffer, the court in Delker stated that the 'procedural requirements for the pre- trial detention hearing set forth in sec- tion 3142(0 are based on those of the District of Columbia statute which were held to meet constitutional due process requirements in United States v. Ed- wards,' 430 A.2d 1321 (D.C.App.1981) (en bane), cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 141 (1982). S.Rep. No. 225, 98th Cong. at 1st Sees. at 22 (1983), reprinted in 1984 U.S. Code Cong. & Adm.News at 25 (Supp. 9A). Delker, 757 F.2d at 1396. In Edwards, the District of Columbia Court of Appeals held that "the information presented to the judi- cial officer by either the government or the defense may be by proffer. . . ." Ed- wards, 430 A.2d at 1334. In Edwards, the court continued by stating that The legislative history of the statute confirms Congress' intent that the infor- mation upon which the judicial officer makes his findings need not be sworn testimony, and that the hearing is not designed to afford defendants a dis- covery device. Thus, in providing that the finding of substantial probability is to be based upon information presented 'by proffer or otherwise,' the House re- port anticipates 'that, as is the present practice under the Bail Reform Act, . . . the use of sworn testimony will be the exception and not the rule. . ..' [Bjail hearings under the Bail Reform Act, which frequently result in detention of the accused, proceed primarily by way of proffers. They are not formal trials re- quiring strict adherence to technical rules of evidence. If the court is dissat- isfied with the nature of the proffer, it can always, within its discretion, insist on direct testimony. But discretion should be left to the court without impos- ing on it the burden of limiting admissi- bility to that it would permit a jury to hear. Edwards, 430 A.2d at 1334 (citation omit- ted) (original emphasis). Additionally, the United States Supreme Court recently held, in United States v. Salerno and Cafaro, — U.S. -, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), that under the Bail Reform Act of 1984, "Congress hoped to 'give the i courts adequate thority to make release decisions that gi appropriate recognition to the danger a rson may pose to others if released.'" Salerno, 107 S.Ct. at 2098 (citing S.Rep. No. 98-225 at 3). (2] In light of the legislative history and the relevant case law relating to the Bail Reform Act of 1984, we reject Gavi- ria's and Echeverry's contention that the magistrate erred in allowing the govern- ment to proceed at the pretrial detention hearing by way of proffer. We hold that the government as well as the defense may proceed by proffering evidence subject to the discretion of the judicial officer presid- ing at the detention hearing. DJ Gaviria and Echeverry also allege error because the magistrate refused de- fense counsels' request to call the govern- ment case agent, who was present at the hearing, as a witness. We note that 18 U.S.C. § 3142(f) specifically provides that a defendant may testify, present witnesses, and cross-examine witnesses who appear at the detention hearing. The court in Ed- wards held, however, that: The legislative history does not discuss the scope of cross-examination permitted EFTA00191675

670 828 FEDERAL REPORTER, 2d SERIES of witnesses who are called by the government. Section 1322(0(4) gives the accused the right 'to present witnesses in his own behalf,' but the House report states that the accused has only a condi- tional right to call adverse witnesses: He may not, of course, call witnesses who ordinarily would be expected to tes- tify for the government at trial, unless he can proffer to the court in reason- able detail how he expects their testimo- ny to negate substantial probability. Edwards, 430 A.2d at 1884 (original empha- sis). We agree that the defendant in a pretrial detention hearing has only a condi- tional right to call adverse witnesses. We, however, do not adopt the procedural guideline under Edwards requiring the de- fendant to initially proffer to the court in detail how an adverse witness's testimony is expected to negate substantial probabili- ty as a prerequisite to calling such witness. The legislative history compels a finding that the judicial officer presiding at the detention hearing is vested with the discre- tion whether to allow defense counsel to call an adverse witness with or without an initial proffer of the expected benefit of the witness's testimony. Moreover, as the court in Edwards noted, "[t]he related trial right of compulsory process, as provided by the sixth amendment, guarantees that the defendant may compel the attendance of witnesses in his favor." Edwards, 430 A.2d at 1338 (emphasis added). H. (41 Gaviria and Echeverry next contend that the district court erred in failing to conduct a de novo hearing to fully review the magistrate's detention order which was based merely on proffers of evidence. The district court's order, however, expressly states that it affirmed the magistrate's or- der after reviewing "the Government's and Defendants' Memorandum of Law and the transcript of the proceedings before the Magistrate, in accordance with U.S. v. Hur- tado, 779 F.2d 1467 (11th Cir.1985)." In Hurtado, we held that de novo review re- quires the court to exercise independent consideration of all facts properly before it and to include written findings of fact and a written statement of the reasons for the detention. Hurtado, 779 F.2d at 1480-81. We find that the district court's order in this case complies with the requirements under Hurtado, and we affirm the district court's denial of Gaviria's and Echeverry's request for a de novo hearing because the district court properly afforded de novo review of the magistrate's detention order. Gaviria and Echeverry also contend that the pretrial detention statute was unconsti- tutionally applied in this case. This claim is not persuasive. For the above-stated reasons, we hold that the application of section 3142 at the pretrial detention hear ing in this case was wholly constitutional and procedurally correct. Accordingly, we affirm the decision of the district court. AFFIRMED David W. TROEDEL, Petitioner-Appellee, Cross-Appellant, U Richard DI:GOER, Secretary, Florida Department of Corrections, Respondent-Appellant, Cross-Appellee. No. 86-6880. United States Court of Appeals, Eleventh Circuit. Sept 4, 1987. Richard E. Doran, Asst. Atty. Gen., Dept. of Legal Affairs, Miami, Fla., Peggy A. Quince, Dept. of Legal Affairs, Tampa, Fla., for respondent-appellant, cross-appel- lee. Capital Collateral Representative, Mark Evan Olive, Tallahassee, Fla., Steven H. Malone, Sp. Appointed Asst. Represents- EFTA00191676

Page 1 of 13 westjaw. 755 F.2d 969 755 F.2d 969 (Cite as: 755 F.2d 969) C U.S. A Angiulo C.A. ass.,1985. United States Court of Appeals,First Cir- cuit. UNITED STATES of America, Appellee, v. Gennaro J. ANGIULO, Defendant, Appel- lant. No. 84-1745. Heard Jan. 10, 1985. Decided Feb. 25, 1985. An accused sought release from pretrial detention. The United States District Court for the District of Massachusetts, David S. Nelson, J., applying the Bail Reform Act of 1984, ordered that accused remain in cus- tody. Accused appealed on ground that the Bail Reform Act did not apply to one like him whom Government had charged before Act took effect. The Court of Appeals, Breyer, Circuit Judge, held that standards of the Bail Reform Act were applicable to one who was incarcerated and seeking re- lease when Act became law. Affirmed. West Headnotes (11 Bail 49 C=39 49 Bail 49II In Criminal Prosecutions 49k39 k. Nature and Scope of Rem- edy. Most Cited Cases Standards of the Bail Reform Act were ap- plicable to one who was incarcerated and seeking release when Act became law. 18 U.S.C.A. § 3141 et seq. [2J Bail 49 0=49(3.1) Page 1 49 Bail 4911 In Criminal Prosecutions 49k49 Proceedings to Admit to Bail 49k49(3) Evidence 49k49(3.1) k. In General. Most Cited Cases (Formerly 49k49(3)) District court could rely on evidence ob- tained by electronic surveillance, legality of which accused challenged, in consider- ing whether to grant bail under Bail Re- form Act. 18 U.S.C.A. § 3141 et seq. 131 Bail 49 €=49(3.1) 49 Bail 49II In Criminal Prosecutions 49k49 Proceedings to Admit to Bail 49k49(3) Evidence 49k49(3.1) k. In General. Most Cited Cases (Formerly 49k49(3)) Materials under seal offered legally suffi- cient basis for district court to conclude un- der the Bail Reform Act that no condition or combination of conditions imposed on release of accused would reasonably assure safety of any other person and the com- munity. 18 U.S.C.A. §§ 3141 et seq., 3142(e). *969 James L. Sultan, Boston, Mass., with whom Joseph T. Travaline, Burlington, Mass., was on brief, for defendant, appel- lant. Diane M. Kottmyer, Boston, Mass., with whom Ernest S. Dinisco, Jane E. Serene, Sp. Attys., William F. Weld, U.S. Atty. and Jeremiah T. O'Sullivan, Sp. Atty., Boston, Mass., were on brief, for appellee. Before BREYER, ALDRICH and TOR- RUELLA, Circuit Judges. CC/ 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191677

Page 2 of 13 755 F.2d 969 755 F.2d 969 (Cite as: 755 F.2d 969) BREYER, Circuit Judge. The district court, applying the Bail Re- form Act of 1984, found that the release of Gennaro Anguilo from pretrial detention would put at risk the "safety" of the com- munity, and it ordered that he remain in custody. Anguilo appeals, on the ground that the new Bail Reform Act does not ap- ply to one like him whom the government had charged before the new Act took ef- fect. Since we do not agree with this claim, since Anguilo makes no significant consti- tutional challenge to the new statute on this appeal, and since we find that the district court's order has sufficient evidentiary sup- port, we affirm the district court's decision. I The basic procedural facts are the follow- ing. On September 19, 1983, a grand jury charged appellant with several serious fed- eral crimes. On September 20, the govern- ment brought appellant before a magistrate, who ordered him held without bail lest he flee the jurisdiction-a decision that the dis- trict court affirmed. In early January, 1984, this court upheld the lawfulness of appel- lant's pretnal confinement, finding the evidence of risk of flight sufficient to make this a "rare case of extreme and unusual l e circumstances that justifies pretrial ten- tion without bail." United States An- guilo, No. 83-1965 (1st ir. Jan. 5, 984), quoting United States Abrahams, 575 F.2d 3, 8 (1st Cir.), cer. *970 denied,439 U.S. 821, 99 S.Ct. 85, 58 L.Ed.2d 112 (1978). During 1984 appellant first asked the ma- gistrate and then twice asked the district court to reconsider his circumstances. See Bail Reform Act of 1966, 18 U.S.C. former §§ 3146(d) and 3147(a). On October 9, 1984, the district court wrote that it was Page 2 "prepared to order" that appellant be re- leased under conditions "tantamount to house arrest"; and, it asked the government to suggest appropriate safeguards. In re- Tonse, the government noted that the new Bail Reform Act had just become law (on October 12, 1984); it asked the court to continue appellant's detention under the new Act's "dangerousness" provisions. On October 19, the court ordered appellant's continued detention. Subsequently, in a memorandum of October 23, the court wrote that its stated intention in its prior decision to re- lease the defendant on bail is withdrawn, and the government's motion that the de- fendant be detained pending trial as re- quired by the Bail Reform Act of 1984 is allowed. Anguilo appeals from the district court's decision. II [1] The basic legal issue in this case is whether the standards of the new Bail Re- form Act, 18 U.S.C. § 3141et seq., apply to one who, like appellant, was incarcerated (and seeking release) on October 12, 1984, when the new Act became law. The Act it- self does not say. It speaks of an "effective date" of "October 12, 1984," but it is silent as to whether, or to what extent, it applies to those charged before that date. Its lan- guage neither precludes nor mandates such application. Similarly, the parties have not been able to point to anything in the legis- lative history of the Act that suggests Con- gress explicitly considered the question. We have found, however, two sources of authority that point towards a proper legal answer. O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?utid=%76FEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191678

Page 3 of 13 755 F.2d 969 755 F.2d 969 (ate as: 755 F.2d 969) First, courts often turn to various "canons" of construction to interpret statutes that are silent or ambiguous. See generally, e.g., C. Sands, Statutes and Statutory Construction (4th ed. 1984); R. Dickerson, The Inter- pretation and Application of Statutes (1975). One such canon, relevant here, in- terprets new statutes and other new law to reflect an intent to apply to cases in the process of being decided at the time the new law takes effect. This canon, or prin- ciple, is reflected in Chief Justice Mar- shall's well known statement that, if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed.... United States t Schooner Peggy, 5 U.S. (1 Cranch) 102, 9, 2 L.Ed. 49 (1801). This principle is embodied in the Supreme Courts holding that a new law applies to a case in progress unless applying it "would result in manifest injustice or there is stat- utory direction or illative history to the contrary." Bradley Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2 476 (1974); New Eng- land Power Co. United States, 693 F.2d 239, 244 (1st Cir.982). The case before us is one that was pending on October 12. The district court had not reached a final de- cision about appellant's application for re- lease. Since nothing in the new Bail Re- form Act or its legislative history says that the Act does not apply, Bradley requires us to look to the "justice" or "injustice" of the new Act's application. We do not believe it "unjust" to apply the new Act to those, like appellant, who were in custody on October 12, 1984, because those then in custody are unlikely to have relied to their detriment upon the continued Page 3 application of prior law. In this respect there is an important difference between persons in custody on October 12 and those free on bail. The latter might claim that they have relied upon continued freedom in making plans for their trial defense, or in making other important plans; and the threat of incarceration might disrupt those plans. The former, however, could not have reasonably relied *971 upon the freedom promised them under prior law, for they were committed to custody under that law. At best theirs was a hope for freedom that changing circumstances might, or might not, have let them realize. Without a showing of likely significant and justified reliance those in custody fall out- side both Bradley 's exception and the scope of other canons that disfavor "retro- active" application new statutes. See, e.g., United States Security Industrial Bank, 459 U.S. 70, 103 S.Ct. 7, 412, 74 L.Ed.2d 235 (1982); Greene United States, 376 U.S. 149, 160, 84 . 615, F 1, 11 L.Ed.2d 576 (1964); United States Heth, 7 U.S. (3 Cranch) 399, 413, 2 .Ed. 479 (1806). These canons basically seek to protect the interests of those who have reasonably relied upon the legal status quo. See 2 C. Sands, Statutes and Statutory Construction §§ 41.04, 41.05 (4th ed. 1973). An inability to find such likely reli- ance by those incarcerated indicates that application of the new law is not unjust, and that Congress therefore likely intended the new law to apply, at least to pending proceedings involving incarcerated per- sons. Applying a canon like Bradley 's to discern congressional intent is not simply to in- dulge in a legal fiction. The Bradley rule (reflecting the Schooner Peggy principle) is well established. Legislative draftsmen and (O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. hlips://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191679

Page 4 of 13 755 F.2d 969 755 F.2d 969 (Cite as: 755 F.2d 969) their legal advisors often refer to well es- tablished interpretive principles when pre- paring statutory language. A court decision consistent with such a principle is more likely. than its opposite to reflect what con- gressional staffs, advisors, witnesses, in- terest groups, and legislators themselves believe will occur despite a legislative his- tory that is silent. (In fact, silence may re- flect an absence of controversy, not con- gressional indifference to the result.) At the same time consistent judicial adherence to interpretive principles eases the task of drafting legislation by pointing to likely fu- ture interpretive results without requiring statutory language on every point. These practical institutional considerations as well as legal theory recommend adherence to Bradley's interpretive rule here. Second, a consideration of the new Act's basic purposes suggests that legislators, with those purposes in mind, would likely favor the Act's application to those in cus- tody. CI Mayburg I Secretary of Health and Human Services, 740 F.2d 100, 104-07 (1st Cir.1984). The Act has at least two ob- jectives. On the one hand, it seeks to pre- vent the "arbitrary use of high money bail as a way to assure a defendant's incarcera- tion." S.Re(i. No. 225, 98th Cong., 1st Sess. 9-10 1983) U.S.Code Cong. & Ad- min.News 184 pp. 1, 11, 12 ("It has been suggested that pretrial detention under" the former Bail Act "is often the result of intentional imposition of excessively strin- gent release conditions, and in particular high money bonds"). See Hearings before the Subcommittee on the Constitution of the Senate Comm. on the Judiciary, 97th Cong., 1st Sess. 100, 181, 216-17 (1982). It therefore states explicitly what the prior statute said implicitly, that a "judicial of- ficer may not impose a financial condition that results in the pretrial detention of any Page 4 person." 18 U.S.C. § 3142(c). (See Ap- pendix, infra, for text of relevant portions of the Act.) On the other hand, the new Act broadens the courts' authority to detain "dangerous" persons prior to trial. It re- quires magistrates and judges to focus on the question of danger directly, and allows them, after a hearing, to keep in custody not only defendants who pose a serious risk of flight, but also those who seriously threaten the "safety" of others or of "the community." 18 U.S.C. § 3142(e). Thus the statute seeks to assure release of the de- fendant who is "safe but poor" while al- lowing detention of a dangerous defendant financially capable of posting a bond. Given these purposes, it is difficult to see why Congress would not want the new law to apply to those incarcerated at the time it was enacted. To apply the new Act's spe- cific language to the "safe but poor" de- fendant furthers Congress's statutory ob- jective, benefits the defendant, and de- prives the government of nothing to which it was entitled under the old law, cf. former *972 18 U.S.C. § 3146(a), or the new. To apply it (in what must be an unusual situ- ation) to a "dangerous" person previously held as a "flight risk" also furthers Con- gress's statutory objectives by keeping those persons in custody. Although applic- ation of the new statute works to the disad- vantage of any such defendant who other- wise would be released, nothing in the new Act or its history suggests congressional solicitude for this category of defendant. Indeed, the only possible offsetting consid- eration to repeated congressional declara- tions that such defendants should be kept in custody, see S.Rep., supra, at 10-12, would be some special consideration of "fairness." But, as we have already said, we can find nothing unfair about applying the new Act to one already in custody and O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191680

Page 5 of 13 ' 755 F.2d 969 755 F.2d 969 (Cite as: 755 F.2d 969) to a judicial proceeding already in pro- gress. In sum, principles of statutory construction resting upon fairness and consideration of the statute's purposes both suggest that Congress intended the statute to apply in cases like the one before us. We next consider four arguments to the contrary. First, Anguilo points to § 3142(0 of the new Act. That section says that the magistrate or judge will decide whether to detain or to release a defendant after a "detention hearing" which shall be held immediately upon the per- son's first appearance before the judicial officer unless that person or the attorney for the government seeks a continuance [for a maximum of five days and two days respectively]. Anguilo points out that this detention hearing could not have been held "immediately" in the case of a person first detained before the provision became law (October 12, 1984). He concludes from this fact that the new law was not meant to ap- ply to such a person. This conclusion, however, rests too much upon too little. The object of § 3142(0's quoted language is to guarantee a speedy bail determination, to prevent the magis- trate or judge from ordering the defendant temporarily detained (seel 8 U.S.C. § 3142(d)), and then holding the key "deten- tion" hearing at some much later time. S.Rep., supra, at 21-22. The language does not say that if, for some special reason, one cannot hold the key hearing "immediately," the entire Act no longer applies. Nor does it forbid application of the Act's standards at other hearings, say those at which a ma- gistrate reconsiders previously ordered in- Page 5 carceration. We concede that the way in which § 3142(c) is to be applied seems slightly con- fusing because of an odd procedural omis- sion in the new Act. Congress apparently has not enacted an explicit procedural counterpart to § 3146(d) of the former 1966 Act, which provided for magistrate or district court reconsideration of a deten- tion order. As far as we can tell, § 3142(0 of the new Act governs the magistrate's (or judge's) initial decision whether to detain or to release a defendant on conditions. The last sentence of § 3142(c) then allows the magistrate or judge "at any time" to "amend a release order. But, the Act nowhere says how one detained can seek a new determination in light of changed cir- cumstances. (Section 3145, at first blush, may seem to provide for such review; but in fact it does not, for it governs only what are in essence appeals, from magistrate to district court and from district court to court of appeals). After reviewing the le- gislative history, we have concluded that this procedural omission was inadvertent, for Congress nowhere expresses any intent to deny a person in custody the right to ask for reconsideration. In the absence of an express statutory reconsideration provision, the magistrate and district court nonethe- less possess inherent power to reconsider previous detention orders-an inherent power to modify (or revoke) previous bail orders that the 1966 Act's statutory provi- sions "merely embodied." C. Wright, Fed- eral Practice and rocedure: Criminal 2d § 769. See Stack Boyle, 342 U.S. 1, I1, 72 S.Ct. 1, 6, 96 L. . 1 ( 51) (opinion of Jackson, J.); Fernandez United States, 81 S.Ct. 642, 5 L. .2d 683 (1961) (opinion of Circuit Justice Harlan) ("District courts have authority as an incid- ent*973 of their inherent powers ... to re- ID 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191681

755 F.2d 969 755 F.2d 969 (Cite as: 755 F.2d 969) yoke bail'); United States !Black 543 F.2d 35, 37 (7th Cir.1976) IT]he same statute which explicitly empowers the dis- trict court to impose conditions upon re- lease pending appeal, implicitly empowers the court to make such adjustments in those conditions as circumstances may necessit- ate."). We conclude that the proceeding un- der review is properly characterized from a procedural perspective as such a reconsid- eration by the district court of its prior de- tention order. Regardless, this procedural problem does not help appellant, for the question remains what standards Congress intended a magistrate or court to apply at a reconsideration hearing. And for the reas- ons previously stated, we believe that Con- gress wanted (or would have wanted) the new Act's standards applied to one then be- ing held in custody. Second, the parties point to three recent cases deciding similar issues. T govern- ment notes that in United States Payden, 598 F.Supp. 1388 (S.D.N.Y.198 , the dis- trict court upheld application o the new law to a defendant arraigned before Octo- ber 12. Appellant notes that in two other cases the courts denied application of the new Act to persons arraigned before its en- acting. In the first of these, however, the Eleventh Circuit refused per curiam to ap- ply the new law to persons whose "release was ordered by the district court before the F w law became effective." United States Fernandez-Toledo, 749 F.2d 703 (11th ir.1985) (per curiam). The court ruled the new statute inapplicable because, in its view, defendants "right to bail had already vested." It treated the appellants as if they were persons free on bail before October 12. In doing so, it treated them as outside the rationale of this opinion. See pp. 970-971, supra. And, we therefore do not consider it as conflicting. Page 6 of 13 Page 6 In United States )1 Mitchell, 600 F.Supp. 164 (D.Ca1.1985 , a California district court held the new Act inapplicable in cir- cumstances much like this one. The Cali- fornia court, however, based its decision upon the reliance interests of those re- leased on bail before October 12. The court did not distinguish between the class of re- leased persons and the class of persons in custody. It seems to us, however, that the fact of custody (and the consequent small likelihood of significant reliance) makes an important and meaningful difference. Moreover, the "in custody/at liberty" t dis- tinction is simple a easy to administer. Cf United States Mitchell, supra, at 168-169. Thus, we lieve we can best ef- fectuate likely congressional intent by ap- plying the new Act's standards to those de- tained at the time of its enactment. Third, appellant claims that the district court is applying new law "retroactively," and he invokes a series of cases that, he says, rbid "retroactivity." See United ( States Security Industrial Bank 459 U.S. 70, 79, 03 S.Ct 07, 412, 74 L.Ed.2d 235 (1982); Greene United States, 376 U.S. 576 (1964); United States Heth, 7 U.S. 149, 160, 84 S. t. 615, 61 , 11 L.Ed.2d Addison Bulk Food Carriers, Inc., 489 (3 Cramp 399, 413, 2 L. . 479 (1806); F.2d 104 , 104243 (1st Cir.1974). "Retro- activity," however, is a relative, not an ab- solute, notion. The law before us is not ret- roactive in the sense of punishing or re- warding conduct reviously carried out, see, e.g., Weaver Graham, 450 U.S. 24, 28, 101 S.Ct. 963, 67 L.Ed.2d 17 (1981); Calder Bull, 3 U.S. (3 Dall.) 385, 390, 1 L. . 648 (1978). On the other hand, it is retroactive in the sense that it applies to one already charged when the law was enacted. In these circumstances, the word "retroactive" does not itself an- 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191682

' 755 F.2d 969 755 F.2d 969 (Cite as: 755 F.2d 969) swer the applicability question. Rather, one must look beneath the word to the func- tional considerations that it embodies. And, doing so, for reasons stated at pp. 970-971, leads us to conclude that the new Act ap- plies here. Fourth, appellant argues that his case ought to be considered like that of a person re- leased, not a person in custody, for, he says, the district court had ordered him re- leased before October 12. As a practical matter, however, appellant had not been re- leased. As a formal matter, the court had made no final decision to release him. Rather, the new Act became law and was *974 brought to the attention of the district court while it was in the midst of deciding what to do with appellant's motion for re- lease. The court had not ordered appellant's release. On October 9, the court said it was "prepared" to do so; it later characterized its decision as "tentative"; and it spoke in its October 23 memorandum of its previous "intention." On January 9, 1985, the court characterized its decision as one made in ongoin motion for modific- ation. i response to an United States Zannino, Cr. No. i 83-235-N, slip op. at n. 1 (D.Mass. Jan. 9, 1985). Moreover, a release order by the district court would have been appealable under § 3145, and therefore not "final" in this additional sense. Thus, both formal and practical considerations require us to treat this case as one involving the applica- tion of the new Bail Act's standards to one presently in custody. And for the reasons stated, the Act's new standards apply. III [2] Appellant argues that, even if the new Act applies, the government has not proved by the "clear and convincing" evidence that the Act requires that he poses a danger Page 7 of 13 Page 7 to "the safety of any other person and the community." 18 U.S.C. § 3142(£). He first claims that the district court could not rely on the evidence obtained by electronic sur- veillance, the legality of which he chal- lenges. We previously wrote, however, in In re Globe Newspaper, 729 F.2d 47, 54 (1st Cir.1984), a case in which both de- fendant and the government were parties, that the provisions of federal law "allow the disclosure of [information obtained through electronic surveillance] to the court conducting ... bail hearings," at least until a court has decided that the material was not obtained legally. Otherwise, the challenge of a defendant to lawfully ob- tained materials might prove sufficient to keep .highly relevant information from the judicial officer or to delay the initial bail hearing, contrary to the "immediacy" re- quirement of § 3142(f). [3] Appellant also argues that the materials on which the district court relied (including those obtained from electronic surveil- lance) are stale or irrelevant or conclusory and, in any event, even when taken togeth- er are insufficient for the district court's conclusion. Those materials are under seal. We have examined them, and we conclude that they offer a legally sufficient basis for the district court to conclude that "no con- dition or combination of conditions [imposed on release] will reasonably assure ... the safety of any other person and the community." 18 U.S.C. § 3142(e). Finally, appellant argues that the district court held that he was as dangerous inside b ail as outside; hence there is no rational asis for holding him. Given the fact that common sense strongly suggests that de- tention must have some effect on "danger," we do not believe the district court meant with absolute literalness that O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.c.om/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191683

Page 8 of 13 • 755 F.2d 969 755 F.2d 969 (ate as: 755 F.2d 969) the risks appellant poses to others in the community are precisely the same whether or not he is detained. In any event, we are unwilling to assume it meant this in the ab- sence of a showing in the record that the court focused directly on the issue that ap- pellant's counsel now raises. Again we note that appellant does not now challenge the basic constitutionality of the new Act's "dangerousness" provisions. On the basis of our resolution of the issues he has presented to us on this appeal, we be- lieve the district court's decision is legally correct, and that decision is Affirmed. APPENDIX 18 U.S.C. §§ 3142 , 3145 "§ 3142 . Release or detention of a de- fendant pending trial "(a) In General.-Upon the appearance be- fore a judicial officer of a person charged with an offense, the judicial officer shall is- sue an order that, pending trial, the person be- "(1) released on his personal recogni- zance or upon execution of an unsecured *975 appearance bond, pursuant to the provisions of subsection (b); "(2) released on a condition or combin- ation of conditions pursuant to the provi- sions of subsection (c); "(3) temporarily detained to permit re- vocation of conditional release, deporta- tion, or exclusion pursuant to the provi- sions of subsection (d); or Page 8 "(4) detained pursuant to the provisions of subsection (e). "(b) Release on Personal Recognizance or Unsecured Appearance Bond.-The judicial officer shall order the pretrial release of the person on his personal recognizance, or upon execution of an unsecured appearance bond in an amount specified by the court, subject to the condition that the person not commit a Federal, State, or local crime dur- ing the period of his release, unless the ju- dicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the com- munity. "(c) Release on Conditions.-If the judicial officer determines that the release de- scribed in subsection (b) will not reason- ably assure the appearance of the person as required or will endanger the safety of any other person or the community, he shall or- der the pretrial release of the person- "(1) subject to the condition that the person not commit a Federal, State, or local crime during the period of release, and "(2) subject to the least restrictive fur- ther condition, or combination of condi- tions, that he determines will reasonably assure the appearance of the person as re- quired and the safety of any other person and the community, which may include the condition that the person- "(A) remain in the custody of a desig- nated person, who agrees to supervise him and to report any violation of a re- lease condition to the court, if the des- ignated person is able reasonably to as- sure the judicial officer that the person will appear as required and will not O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstreain.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191684

• 755 F.2d 969 755 F.2d 969 (Cite as: 755 F.2d 969) pose a danger to the safety of any other person or the community; "(B) maintain employment, or, if un- employed, actively seek employment; "(C) maintain or commence an educa- tional program; "(D) abide by specified restrictions on his personal associations, place of abode, or travel; "(E) avoid all contact with an alleged victim of the crime and with a potential witness who may testify concerning the offense; "(F) report on a regular basis to a des- ignated law enforcement agency, pretri- al services agency, or other agency; "(G) comply with a specified curfew; "(H) refrain from possessing a fire- arm, destructive device, or other dan- gerous weapon; "(I) refrain from excessive use of al- cohol, or any use of a narcotic drug or other controlled substance, as defined in section 102 of the Controlled Sub- stances Act (21 U.S.C. 802), without a prescription by a licensed medical prac- titioner; "(J) undergo available medical or psychiatric treatment including treat- ment for drug or alcohol dependency, and remain in a specified institution if required for that purpose; "(K) execute an agreement to forfeit upon failing to appear as required, such designated property, including money, as is reasonably necessary to assure the appearance of the person as required, Page 9 of 13 Page 9 and post with the court such indicia of ownership of the property or such per- centage of the money as the judicial of- ficer may specify; "(L) execute a bail bond with solvent sureties in such amount as is reasonably necessary to assure the appearance of the person as required; "(M) return to custody for specified hours following release for employ- ment, schooling, or other limited pur- poses; and *976 "(N) satisfy any other condition that is reasonably necessary to assure the appearance of the person as re- quired and to assure the safety of any other person and the community. The judicial officer may not impose a fin- ancial condition that results in the pretrial detention of the person. The judicial of- ficer may at any time amend his order to impose additional or different conditions of release. "(d) Temporary Detention To Permit Re- vocation of Conditional Release, Deporta- tion, or Exclusion.-If the judicial officer determines that- "(1) the person- "(A) is, and was at the time the of- fense 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 sen- tence or conviction, or completion of sentence, for any offense under Federal, State, or local law; or O 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?utid=%7bf EDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191685

Page 10 01'13 • 755 F.2d 969 755 F.2d 969 (Cite as: 755 F.2d 969) "(iii) probation or parole for any of- fense under Federal, State, or local law; or "(B) is not a citizen of the United States or lawfully admitted for perman- ent residence, as defined in section 101(0(20) of the Immigration and Na- tionality Act (8 U.S.C. 1101(a)(20)); and "(2) the person may flee or pose a danger to any other person or the com- munity; he shall order the detention of the person, for a period of not more than ten days, ex- cluding Saturdays, Sundays, and holidays, and direct the attorney for the Government to notify the appropriate court, probation or parole official, or State or local law en- forcement official, or the appropriate offi- cial of the Immigration and Naturalization Service. If the official fails or declines to take the person into custody during that period, the person shall be treated in ac- cordance with the other provisions of this section, notwithstanding the applicability of other provisions of law governing re- lease pending trial or deportation or exclu- sion proceedings. If temporary detention is sought under paragraph (1)(B), the person has the burden of proving to the court that he is a citizen of the United States or is lawfully admitted for permanent residence. "(e) Detention.-If, after a hearing pursuant to the provisions of subsection (0, the judi- cial officer finds that no condition or com- bination of conditions will reasonably as- sure the appearance of the person as re- quired and the safety of any other person and the community, he shall order the de- tention of the person prior to trial. In a case described in (f)(1), a rebuttable pre- sumption arises that no condition or coin- Page 10 bination of conditions will reasonably as- sure the safety of any other person and the community if the judge finds that- "(1) the person has been convicted of a Federal offense that is described in sub- section (0(1), or of a State or local of- fense that would have been an offense described in section (0(1) if a circum- stance giving rise to Federal jurisdiction had existed; "(2) the offense described in paragraph (1) 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 con- viction, or the release of the person from imprisonment, for the offense described in paragraph (1), whichever is later. Subject to rebuttal by the person, it shall be presumed that no condition or combina- tion of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judi- cial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is pre- scnbed in the Controlled Substances Act (21 U.S.C. 801 et sea)., the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), section 1 of the Act of September 15, 1980 (21 U.S.C. 955a), or an offense under section 924(c) title 18 of the United States Code. *977 "(0 Detention Hearing.-The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in subsection (c) will reasonably assure the appearance of the person as required and the safety of any 0 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?utid=%7bFEDF5709-3AEA-4F74-8619-... 4/10/2008 EFTA00191686