Bail and Pretrial Release in a Federal Criminal Case
This article explores some of the features of bail in federal criminal cases, the procedures for initially setting bail, modifying bail after it is initially set, and conditions of pretrial release. The goal is to give readers an idea of what to expect if they or a loved one is taken into custody in connection with a federal criminal case.
Bail is the release of an individual following an arrest upon their promise to appear in at subsequent judicial criminal court proceedings. A defendant could be denied bail if they are unable to satisfy the conditions set for their release.
Someone could also be denied bail if the judge or magistrate concludes that no amount of security or a set of conditions is sufficient to ensure public safety or defendant’s later appearance in court. When an individual is arrested after being charged with a federal crime, the first appearance is before a federal magistrate judge.
At this “initial appearance” the arrestee will be presented with the complaint or indictment, which lays out the charges against the defendant and against any co-defendants, if applicable.
If the arrestee does not already have a private attorney representing them, they will be appointed a federal public defender at this time. The attorney will review with the arrestee the constitutional and statutory rights which the arrestee enjoys and address a number of threshold issues.
At this initial appearance, often called a “detention hearing,” issues of identity and extradition, if applicable, can be raised. In rare cases, the defendant will successfully assert that the government has arrested the wrong person. Of course, if a mistaken identity has led to the arrest of the wrong individual, the arrestee should be released.
In other cases, the defendant may be arrested in one jurisdiction when in fact the pending case is in federal court in another jurisdiction in the state or in another state.
The defendant has a right to contest extradition, though outside of the case of a mistaken identity, extradition will be ordered.
Defendants who the Government believes are neither a danger nor a flight risk are given the opportunity to appear voluntarily at the initial appearance. These defendants appear via summons, which is a letter notification to appear voluntarily in court.
The defendant must sign and return the summons, which is the court’s proof that the notice has been properly received by the defendant. Persons who receive such a summons should promptly seek counsel to coordinate their best opportunity to remain out of custody during the pendency of the case.
The attorney will promptly notify the pretrial department and take the proper steps to insure defendant can remain out of custody. Our federal criminal defense attorneys are providing a review below.
Pretrial Services Department
The pretrial services department conducts an initial investigation for all defendants who appear before a magistrate judge for a bond determination.
The pretrial services department makes the recommendation to the Judge whether the defendant should be detained or released, including specific recommendations regarding conditions of release 18 USC § 3154(1).
This report, which carries great weight with the court and with federal prosecutors, will detail the defendant’s history and characteristics, including ties to the community, financial situation, prior criminal history if any, employment history, and other important factors.
It is essential that the attorney and defendant’s family contact the pretrial department to explain the defendant’s ties to the community, any property that may be available to be posted for the bond, and any responsible sureties who are willing to sign third party signature bonds in support of defendant’s release.
The main thrust of the pretrial services report is to advise the court on the two most important factors which the court must weigh when setting bond: the danger to the community posed by the defendant and the risk of flight should the defendant be released.
If the government shows that the defendant is either a danger or a flight risk, or both, then the burden shifts to the defendant to show that there are factors that mitigate those risks, so that release with conditions are appropriate.
Types of Federal Bonds
The bond can take several forms. In less serious cases, the defendant may be permitted to sign a “signature bond,” which is essentially just a promise to return to court and obey all laws while on pretrial release. Provided that the defendant complies with the court’s orders, there is no need to post money or collateral.
In other cases, the court may require sureties to post collateral in support of the defendant’s request for release.
This typically takes the form or family members or other individuals close to the defendant offering up property of significant value, usually a home, which can be forfeited to the government in the event that the defendant absconds or commits a violation of pretrial release.
It is important for the attorney to negotiate an unsecured bond for defendant, so that a third party can simply sign a promise insuring defendant’s return to court.
It is also important to advise such a third party surety to be present in court for the bail hearing, as this sends a strong message to the judge that the family and support system of the defendant will insure his or her appearance in court.
While out on bond, a federal defendant awaiting trial is monitored by the pretrial services department.
A series of conditions designed to protect the public and ensure the defendant does not flee are often imposed including a requirement for regular check-ins with a pretrial services officer. Defendants may be ordered to submit to electronic GPS monitoring while out on pretrial release or even home detention.
There are many potential consequences if someone fails to appear or honor the conditions imposed upon their release. They could be prosecuted for contempt of court, prosecuted separately for failure to appear, release order revoked or amended, and the security pledged for compliance may be forfeited, and more.
Eisner Gorin LLP Can Help You Obtain a Pretrial Release
Pretrial release is an important consideration in our law practice. In many federal criminal cases, such as white collar crimes and fraud offenses, the time between arrest and trial may be many months, if not years.
When circumstances change during the pendency of the case, defendants can bring a motion to revisit the conditions of bond with the district court judge. In this way, even a not-favorable bond determination at the first appearance can later be changed based on effective defense advocacy.
If you or a family member is charged with a federal crime and is interested in the bail process in federal court, contact our experienced federal criminal defense attorneys for an initial consultation. We can provide you with important information relating to pretrial release.
Eisner Gorin LLP is a top-ranked criminal defense law firm with a long history of success. We are located at 1875 Century Park E #705, Los Angeles, CA 90067. Contact our office to review the details of your case at (877) 781-1570.