Fixing Bail: Correcting Reoccurring Misconceptions in Court Lunchtime CLE June 15, 2017 Benjamin Flick Federal Defenders of Eastern Washington & Idaho

Three questions: Can the Court hold a detention hearing? Does a rebuttable presumption apply? Do the factors weigh in favor of detention?

Step 1: Can the court hold a detention hearing? The government can move to detain only if the case “involves”: A crime of violence The death penalty or life imprisonment A drug offense with a penalty of 10+ years Any felony after the defendant has committed two or more crimes of violence or drug offenses A minor victim, sex trafficking, or failure to register as a sex offender A firearm or destructive device A serious risk Defendant will flee A serious risk Defendant will obstruct justice—i.e., threaten witnesses.

§ 3142(f): Can the court hold a detention hearing? If the case does not involve the conditions in § 3142(f), then “a pretrial detention hearing may not be held.” —U.S. v. Tadlock, 399 F. Supp. 2d 747, 750 (S.D. Miss. 2005) (citing U.S. v. Byrd, 969 F.2d 106, 109 (5th Cir. 1992)); U.S. v. Ploof, 851 F.2d 7, 9–10 (1st Cir. 1988) (“3142(f) does not authorize a detention hearing whenever the government thinks detention would be desirable, but rather limits such a hearing to [cases listed in § 3142(f)]”).

Watch out! Watch for the sleight of hand: The government frequently checks the box involving flight risk or obstruction of justice, but then only argues dangerousness. Call this out! If the case does not involve the conditions in § 3142(f), then the Court cannot consider dangerousness. —U.S. Attorney’s Manual, Release and Detention (“Accordingly, the government must first prove one or more of the grounds listed in 3141(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.”)

Flight Risk: Drug use insufficient Government must present empirical evidence to prove that drug use causes flight risk. —U.S. v. Scott, 450 F. 3d 863 (9th Cir. 2006) (finding that the connection between drug use and the risk of non-appearance is “tenuous.” “Whether it is plausible depends on whether drug use is a good predictor of these harms—a case that must be established empirically by the government. . . .”) But it can’t because the empirical evidence points the other way:

Flight Risk: Seriousness of charge insufficient Seriousness of charge: It is not enough for the United States to merely point to serious charges as motive to flee—that is true in every federal case. —U.S. v. Giordano, 370 F. Supp. 2d 1256, 1264 (S.D. Fla. 2005) (“it is generally accepted that more than evidence of the commission of a serious crime and the fact of a potentially long sentence is required to support a finding of serious risk of flight.”); —U.S. v. Carter, 996 F. Supp. 260 (W.D.N.Y. 1998) (Second Circuit has long “required more than evidence of the commission of a serious crime and the fact of a potentially long sentence to support a finding of risk of flight”) (quoting U.S. v. Friedman, 837 F.2d 48, 50 (2d Cir. 1988)).

Flight Risk: Immigration detainer insufficient Immigration detainers are irrelevant to bail hearings: If your client is released, then he is treated like any other Defendant and ICE can’t touch him (legally speaking). Or, if ICE does take custody, it can only be for removal purposes in lieu of prosecution, meaning the prosecutor consented to dismissing the case. —8 CFR § 215.2(a) (No alien can be removed from the U.S. if it would be prejudicial to the United States); 8 CFR § 215.3(g) (The removal of any alien involved in a pending criminal case would be prejudicial to the interests of the United States); 8 CFR 287.7(a) (A detainer advises other law enforcement agencies that ICE seeks custody “for the purpose of arresting and removing the alien.”) —U.S. v. Santos-Flores, 794 F.3d 1088, 1092 (9th Cir. 2015) (“Once the government has elected to deliver an alien to the United States Attorney’s Office for prosecution instead of removing him immediately, it may not use its discretionary power of removal to trump defendant’s right to individualized determination under the [BRA].”); U.S. v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012); § 3142(d) (noting that if ICE doesn’t take custody, “then such person shall be treated in accordance with the other provisions of this section.”)

Quiz: What is wrong with this? Everything!

§ 3142(d): Temporary 10-day detention

Quiz: What is Wrong with this? Everything!

Question 2: Does a rebuttable presumption apply? Yes, in the following cases: Drug offense with a penalty of 10+ years. 18 U.S.C. 924(c) firearm offenses (gun used in felony) Kidnapping Any crime involving minor victim Sexual crimes (there are others but they rarely apply) No, in the following cases: Crimes of violence Felon in possession Most cases

What does that mean? The court is going to presume that there are no conditions that will assure your client’s appearance or the safety to the community. Congressional Paradigm: A court should weight the presumption only as much as a particular defendant “resembles the ‘Congressional Paradigm’ of a flight prone, danger-prone drug dealer—discounting the presumption when a defendant differs from Congress’s likely model.” See U.S. v. Brunette, 839 F. Supp. 2d 449, 452 (D. Mass. 2012) (quoting U.S. v. Palmer-Contreras, 835 F.2d 15, 17 (1st Cir. 1987).

Rebut that Presumption Produce “Some” Evidence: The Bail Reform Act imposes a burden of production, and a “[d]efendant must only produce some evidence that he is not a flight risk and does not pose a danger. U.S. v. Clark, 791 F.Supp. 259 (E.D. Wa. 1992) (Nielsen, J.) (emphasis added) (citing U.S. v. Rodriguez, 950 F.2d 85, 88 (2d. Cir. 1991). Show your client is indigent, and not like Pablo Escobar: Evidence that your client is not a “typical” drug dealer can rebut the presumption. See U.S. v. Giampa, 755 F. Supp. 665 (W.D. Pa. 1990)(finding a man who lived in Pennsylvania his entire life, made approximately $240 per week, and had only $400 in his checking account “hardly fits the mold of the international narcotics trafficker with whom Congress was most concerned.”) Not Heavy: U.S. v. Bustamante-Conchas, 557 Fed. Appx. 803, 806 (10th Cir. 2014) (burden is “not heavy,” but “some evidence must be produced).

Question 3: Do the factors weigh in favor of detention? Detention occurs only if the judge finds that there are no conditions that will reasonably assure: the defendant’s appearance or the community’s safety. Flight risk: Must be proven by preponderance of the evidence, meaning the individual is more likely to flee than not. Dangerousness: Must be proven by clear and convincing evidence, meaning that particular defendant actually poses a danger, not that defendant in theory poses a danger. Remember: Only in “rare circumstances should release be denied,” and any “doubts regarding the propriety of release should be resolved in the defendant’s favor.” — U.S. v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991) (emphasis added).

Factors to be considered Nature and circumstances of the offense Weight of the evidence Defendant’s history and characteristics Nature and seriousness of danger

Factor: Weight of the evidence Weight of the Evidence and Determining Dangerousness, Not Guilt. Weight of the evidence is the “least important of the various factors,” and courts may consider evidence “only in terms of the likelihood that the person will fail to appear or will pose a danger”—not an impermissible “preliminary determination of guilt.” That would transform pre-trial detention into a “matter of punishment.”  — U.S. v. Motamedi, 767 F.2d 1403, 1408 (9th Cir. 1985) (citation omitted) Fact that your client is guilty is irrelevant. What is relevant is if there are no allegations of violence, threats, weapons, or other indicia that your client would constitute a danger, and that there are no allegations that that your client would fail to appear if released.

Factor: History and characteristics Community ties: “Ties to community” means both community of arrest and where defendant normally resides. —U.S. v. Townsend, 897 F.2d 989 (9th Cir. 1990)

Factor: Dangerousness Criminal Record: “The defendant’s prior criminal record is also per se insufficient to maintain a finding of dangerousness. Other than the conviction itself, no other evidence nor facts surrounding the basis thereof was presented by the Government.”   — U.S. v. Cruz, 363 F. Supp. 2d 40, 46 (D.P.R. 2005) Danger should relate to the alleged offense: Concerns regarding danger, unrelated to the offense charged, cannot be used as grounds to detain a defendant.   — U.S. v. Ploof, 851 F.2d 7 (1st Cir. 1988)

Why does this all matter?

18 U.S.C. § 3142 Section 3142(a) lays out four options: release on recognizance, release on conditions, temporary detention to permit deportation, and detention.   Section 3142(b) states that a defendant shall be released on personal recognizance, unless no condition or combination of conditions can secure the defendant’s appearance at trial or the safety of the community. Section 3142(c) lists the conditions that may be applied if the defendant is not released under (b), providing that judges should order the least restrictive conditions necessary. Section 3142(d) is the only section related to non-citizens. This section orders that, if there is a risk that a non-citizen defendant may flee or pose a danger to the community, the non-citizen may be temporarily detained for up to ten days, to permit removal from the United States. In the event that ICE does not take custody of the person, “such person shall be treated in accordance with the other provisions of this section,” which do not distinguish between citizens and non-citizens. Section 3142(e) lists the types of cases that carry a rebuttable presumption that the defendant poses a flight risk or danger. Section 3142(f) lists the six types of cases that are eligible for a bail hearing. Section 3142(g) lists the factors for the court to consider to determine whether there are conditions that could be imposed to ensure the appearance of a defendant. Section 3142(f) notes that nothing should be construed to go against the presumption of innocence.