Pretrial Release on Conditions

Advice on bail bonds and conditions of release.

by Barry Boss

Excerpted from Federal Criminal Practice

The Bail Reform Act establishes no formal procedure or burdens of proof for determining conditions of pretrial release. 18 U.S.C. §3142(c)(1)(B). The parties normally present relevant information by proffer. A proffer is an oral or written assertion of fact by an attorney for a party, based upon a good faith belief that the fact exists. The magistrate judge also will rely on information contained in the pretrial services officer’s report [see Chapter 2, §§2:31et seq.]. Cf. 18 U.S.C. §3142(f) (parties may present information at detention hearing by proffer or otherwise).

§4:14        When Court Must Consider Imposing Conditions

If release on personal recognizance or an unsecured appearance bond [§4:12] will not reasonably assure the defendant’s appearance or will endanger the safety of another person or the community [§4:5], the magistrate judge must consider whether to release the defendant subject to restrictions or conditions of release. 18 U.S.C. §3142(a)(2),(c). If the court decides to impose restrictions, it must impose the condition of not committing a new crime while on release. 18 U.S.C. §3142(c)(1)(A) [§4:16].

§4:15        Least Restrictive Conditions

The magistrate judge must choose the least restrictive condition or combination of conditions to reasonably assure the defendant’s appearance and the safety of other persons and the community. 18 U.S.C. §3142(c)(1)(B). Conditions of release may include [18 U.S.C. §3142(c)(1)(B)]:

• Third-party custodian

• Maintain employment or actively seek employment
• Maintain or commence an educational program
• Avoid all contact with an alleged victim and potential witnesses
• Curfew
• No firearms or weapons

• No use of alcohol or drugs

• Restrictions on place of residence and travel

• Probation-like regular reporting to a pretrial services officer

• Psychological counseling

• Drug testing and counseling

• Home detention with electronic monitoring

• Residence in a halfway house or detention center with regular outside working or school hours

• Bail bond with solvent sureties

• Deposit of assets, such as money or property, with the court under an agreement to forfeit the assets on defendant’s failure to appear as required

• Agreement to forfeit a specified amount of money, collateralized by real estate owned by the defendant or another, on determination by the court of a violation of any condition of release

The statutory list of conditions of release (§4:15) is not exhaustive. The magistrate judge may impose any other condition “reasonably necessary” to assure the defendant’s appearance or protect the community. 18 U.S.C. §3142 (c)(1)(B)(xiv). However, conditions must be relevant to the goals of assuring appearance and community safety. See, e.g., United States v. Martin-Trigona, 767 F.2d 35, 36 (2d Cir. 1985) (condition allowing psychiatric examination of defendant not related to purposes of Bail Reform Act); United States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir. 1993) (unrestricted warrantless search of defendant’s person and residence to assure safety of community valid); United States v. Scott 450 F.3d 863, 874-75 (9th Cir. 2006) (release condition requiring defendant to submit to drug test or search of his home at any time is valid only when the search is reasonable, regardless of whether defendant consented, court suppressed fruit of search and drug test); United States v. Goossens, 84 F.3d 697, 703 (4th Cir. 1996) (condition prohibiting defendant from cooperating with government invalid).

Caution

Carefully Consider Forfeiture of Money or Property

Conditions of release may be numerous and strict [18 U.S.C. §3142(c)(1)(B)(i-xiv)], and an agreement to forfeit assets for violation of any condition may be strictly enforceable [see United States v. Patriarca, 948 F.2d 789, 793 (1st Cir. 1991) (agreement to forfeit property for violation of any condition of release valid under contract laws)]. Therefore, carefully discuss with your client recommending or agreeing to forfeiture of money or property for a violation of any condition of release. Consider this condition only when your client cannot obtain release without it.

Caution

Do Not Propose Real Estate Bond Without Proof

Do not propose a real estate bond on real estate owned by your client or another person without a title search and appraisal of the property demonstrating equity. The bond without proof of equity does not demonstrate to the court that the proposed property to be pledged would produce money on forfeiture, and the court would likely reject such a bond. In addition, be wary of having a real estate bond executed by a family member, such as a parent, spouse or child, because an investigation into the source of funds used by the family member may prove incriminating either to the family member and/or to your client.

Practice Tip

Release to Responsible Person

Consider suggesting that the court release your client into the custody of a responsible person, possibly with conditions, such as electronic monitoring, agreement to permit unannounced search of the premises, etc. Come prepared with an affidavit from the “responsible person” or with the person himself, and a written commitment to accept responsibility as the person to whom the court will release your client. Present information to the court to justify the court’s confidence in that person. Also, prepare the potential third-party custodian (i) to accept responsibility for doing everything in his power to insure that the defendant complies with his conditions of pretrial release, and (ii) to promise the judge that he will report to pretrial services any violation of the court’s conditions. Prior to appearing in court, arrange for the potential third party to be screened by pretrial services. Discuss with your client various parties that would be willing to accept this responsibility and ensure that they do not have a criminal history and that they are not suspected of being involved in the crime. Many pretrial offices have worksheets that a third party must prepare. Depending on the alleged offense conduct, the requirements of a third party will vary. Coordinate with the pretrial officer as much as possible to facilitate this process to ensure that when you appear in court, the third party that you are presenting is a viable candidate. This will minimize delays in release.

Practice Tip

Be Creative in Proposing Conditions

Be creative in recommending conditions of release for your client. Consult with the pretrial services officer about conditions of release involving programs available through the pretrial services agency to monitor a defendant while on release and assist the defendant in staying drug or alcohol free, or obtaining mental health or psychological counseling. Recommend conditions of release addressing specific circumstances of your case. See, e.g., United States v. Delker, 757 F.2d 1390, 1392 (3d Cir. 1985) (defendant required to take leave of absence from union through which he was indicted for operating pattern of racketeering activity). For example, if flight is a contested issue, recommend electronic home monitoring and regular reporting to a pretrial services officer. See, e.g., United States v. Hammond, 204 F. Supp. 2d 1157, 1166 (E.D. Wis. 2002) (risk of flight overcome by strict conditions of release, including electronic monitoring and restrictions on travel). When both flight and danger to the community are concerns of the court or prosecutor, consider having your client agree to forfeit money or property posted for bail on any violation of a condition of release, not just failure to appear. Be cautious, however, in specifying real or personal property that will be subject to forfeiture, in light of the concerns outlined above. See §4:15, Caution: Carefully Consider Forfeiture of Money or Property.

Practice Tip

Surrender Passport

If your client has a passport, the court will normally require that your client forfeit his or her passport prior to release. Delays in release may occur if your client’s passport was seized by agents, for example in the course of executing a search warrant. As a result, consider contacting both the AUSA and the agents involved in the case regarding the whereabouts of your client’s passport. Prior to the hearing, arrange for the passport to be turned over to pretrial services. If locating the passport will cause delay in release, ask the AUSA to verify that the agents are in possession of the passport and request that he or she make a proffer to the court of that fact.

§4:16        Committing New Crime

In addition to discretionary conditions of release, the magistrate judge must order that the defendant not commit a federal, state or local crime during the period of release. 18 U.S.C. §3142(c)(1)(A). Committing a federal offense while on pretrial release can result in a sentence of up to ten years imprisonment, consecutive to any other sentence. 18 U.S.C. §3147. Committing a state or local offense can result in imprisonment for contempt of court, under 18 U.S.C. §401. 18 U.S.C. §3148(c).

§4:17        Money or Bail Bond

The magistrate judge may impose execution of a cash or property appearance bond or a bail bond with solvent sureties as a condition of release. 18 U.S.C. §3142(c)(1)(B)(xi),(xii). In the former, the defendant agrees to forfeit property or cash in an amount specified by the court on failure to appear as required. 18 U.S.C. §3142(c)(1)(B)(xi). In the latter, a solvent surety agrees to forfeit an amount of money established by the court as necessary to assure the appearance of the defendant, after demonstrating to the court that the surety has sufficient unencumbered assets to pay the agreed amount. 18 U.S.C. §3142(c)(1)(B)(xii).

The magistrate judge may not impose a financial condition that results in pretrial detention. 18 U.S.C. §3142(c)(2). This prohibition is designed to end the practice of imposing a high amount of money or surety bond as an indirect method of achieving pretrial detention of a person the court or government considers dangerous, but whose dangerousness the government cannot prove by clear and convincing evidence, as required by 18 U.S.C. §3142(f). See, e.g., United States v. Batista, 163 F. Supp. 2d 222, 226 (S.D. N.Y. 2001); United States v. Mantecon-Zayas, 949 F.2d 548, 549-50 (1st Cir. 1991); but see United States v. Fidler, 419 F.3d 1026, 1028 (9th Cir. 2005) (defendant’s inability to meet financial condition does not require his release and does not require a detention hearing or the entry of a detention order).

When the court concludes that a monetary condition of release is necessary to assure the defendant’s appearance, and the defendant is unable to meet that condition, the court must satisfy the procedural requirements of a valid detention order [§§4:40 et seq.], including written findings of fact and a statement of reasons for detention [18 U.S.C. §3142(i)]. United States v. Mantecon-Zayas, 949 F.2d at 550-51. The court must explain its underlying calculations of the amount of the bond and why it was the only condition of release reasonably likely to assure appearance. United States v. Mantecon-Zayas, 949 F.2d at 551; but see United States v. Fidler, 419 F.3d 1026, 1028 (9th Cir. 2005) (no detention order or detention hearing is required). See Form 4D (Motion to Amend Conditions of Release (Reduce Amount of Cash Bond)).

Practice Tip

Know Client’s Financial Condition

Although the statute prohibits the court from imposing a financial condition that results in detention, in practice, the court can and often does impose such a condition, at least until a hearing is held. Inform the magistrate judge at the initial appearance when your client cannot provide a cash, property or surety bond in the amount established by the court. Argue that the financial condition effectively results in detention of your client. If the court refuses to modify the financial condition and your client remains in custody, file a written motion requesting modification of conditions of release. The magistrate judge must either lower the amount of the financial condition or conduct a detention hearing [§§4:42 et seq.], and expressly find that a lesser amount will not reasonably assure the defendant’s presence at trial. See, e.g., Batista, 163 F. Supp. 2d at 226 (modifying conditions of release where defendant had been detained because he was unable to obtain five “financially responsible” persons to co-sign the $250,000 personal appearance bond).

Caution

Self-Incriminating Nature of Financial Information

Before providing the court or pretrial services officer with past and current financial information, determine whether the information may incriminate your client or lead government investigators to incriminating information. For example, when your client is charged with a fraud offense [e.g., mail fraud (18 U.S.C. §1341), wire fraud (18 U.S.C. §1343) or bank fraud (18 U.S.C. §1344)], financial information may not only be helpful to the government in proving fraud, but information concerning defendant’s financial transactions allegedly involving fraudulently obtained funds may prove other offenses such as money laundering [18 U.S.C. §§1956, 1957], which may have a greater sentencing guideline offense level than the offense level for the underlying fraud. U.S.S.G. §2B1.1 (fraud); U.S.S.G. §2S1.1 (money laundering). If there is any possibility of this financial information being incriminating, advise your client not to answer any such questions and ask the pretrial services officer not to inquire into this area.

Caution

Money Posted for Bail May Never Be Returned

There is a little-known statute that provides the government with the authority to prevent the court from returning funds or property posted as bail in the event that your client is facing a fine or restitution. Pursuant to 28 U.S.C. §2044, where a defendant posts bail and is later sentenced to a fine or restitution, on motion of the U.S. attorney, “the court shall order any money belonging to and deposited by or on behalf of the defendant with the court for purposes of a criminal appearance bail bond . . . to be held and paid over to the U.S. attorney to be applied to the payment of any assessment, fine, restitution, or penalty imposed upon the defendant.” At the point when bail is initially being set, you can point out that the prosecutor may be trying to increase the funds available for a fine or restitution upon conviction rather than establishing the amount of money truly necessary to assure the defendant’s appearance.

§4:18        Source of Money or Collateral for Bond — Nebbia Hearing

When a defendant seeks to post or deposit specified money or property to be forfeited on the defendant’s failing to appear [18 U.S.C. §3142 (c)(1)(B)(xi)], or a surety agrees to forfeit money secured with specific collateral to assure the defendant’s appearance [18 U.S.C. §3142(c)(1)(B)(xii)], the court may, on its own motion, and must, on the motion of the government, initiate an inquiry into the source of the money or property to be used to secure a bond. 18 U.S.C. §3142(g)(4). At the initial appearance, the prosecutor may request a hearing in the event the defendant, or someone on the defendant’s behalf, seeks to post cash, property or a surety bond with the clerk.

The scope of the inquiry is limited to the source of the money or property designated for potential forfeiture or offered as collateral. The magistrate judge must determine whether, because of the source of the money or property, it will reasonably assure the appearance of the defendant. United States v. Nebbia, 357 F. 2d 303, 304 (2d Cir. 1966).

Examples

The magistrate judge may decline to accept money or property when the government demonstrates that it is derived from unlawful activity and forfeiture would simply be a cost of doing criminal business. United States v. Hammond¸ 204 F. Supp. 2d 1157, 1159-60 (E.D. Wis. 2002) (where defendant was charged with other members of motorcycle club with racketeering and drug-related offenses, individuals who offered to post bond were questioned about their relationship with the defendant and with the motorcycle club, and whether they expected to be reimbursed if defendant fled); United States v. Nebbia, 357 F.2d at 303.

The government may introduce evidence through an investigative agent in an attempt to show the defendant has engaged in unlawful activity. The government also may seek to disprove that defendant’s assets have legitimate sources by introducing income tax returns and social security earnings records. Both sides can subpoena documents and witnesses to this hearing.

Practice Tip

Nature of Bail May Raise Questions

The court will examine the nature of the bail posted to determine its source. Cashier’s checks, for example, raise questions as to the source of funds.

Barry Boss is a member of Cozen O’Connor and the managing partner of the Washington DC office.  He concentrates his practice in complex criminal matters, focusing on white-collar crime.  Mr. Boss served as Assistant Federal Public Defender in Washington DC between 1995 and 2000.  He is the former co-chair of the U.S. Sentencing Commission’s Practitioners Advisory Group.  He is an adjunct professor at the George Washington University Law School, and has been a featured speaker at seminars around the country including the annual federal sentencing guidelines conference co-sponsored by the U.S. Sentencing Commission.  He is the author of Federal Criminal Practice, from which this article is excerpted.