The Bail Reform Act of 1984

Third Edition

David N. Adair, Jr.

Federal Judicial Center 2006

This Federal Judicial Center publication was undertaken in furtherance

of the Center’s statutory mission to develop and conduct education

programs for the judicial branch. The views expressed are those of the

author and not necessarily those of the Federal Judicial Center.
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iii

Contents

Preface vii

I. Pretrial Release 1

A. Release on Personal Recognizance 1

B. Conditional Release 1

C. Written Findings 4

D. Advising Defendant of Penalty 4

II. Pretrial Detention 5

A. Statutory Grounds 5

B. Constitutionality 5

C. Factors To Be Considered 6

D. Standard of Proof 8

E. Definition of Dangerousness 8

F. Detention Hearing 9

1. Statutory Requirements 9

2. Timing of Detention Motion and Hearing 11

a. Statutory requirement; remedy for a violation 11

b. Continuances 13

c. Waiver by defendant 15

G. Rebuttable Presumptions 16

1. The Two Presumptions 16

2. Application of “Drug-and-Firearm-Offender Presumption” 16

a. Ten-year maximum charge required 16

b. Probable cause and grand jury indictments 17

c. Formal charge required 17

d. Effect of presumption 18

e. Constitutionality 19

H. Temporary Detention 20

I. Detention Upon Review of a Release Order 21

J. Evidence and Right to Counsel 22

1. Right to Counsel 22

2. Hearsay Evidence 22
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3. Proffer Evidence 23

4. Cross-Examination 23

5. Ex Parte Evidence 24

6. Challenged Evidence 25

7. Electronic Surveillance 25

8. Psychiatric Examination 25

K. Hearings Involving Multiple Defendants 26

L. Written Findings 26

III. The Crime Victims’ Rights Act of 2004 27

IV. Modification of Detention Order 28

A. Changed Circumstances 28

B. Length of Detention 28

V. Revocation and Modification of Release 31

A. Revocation for Violation of Release Conditions 31

B. Modification or Revocation Where Defendant Has Not Violated

Release Conditions 32

VI. Review by the District Judge 33

VII. Review by the Court of Appeals 34

VIII. Release or Detention Pending Sentence 36

IX. Release or Detention Pending Appeal 38

A. Release Requirements 38

B. Definitions of “Substantial Question” and “Likely” 41

C. “Exceptional Reasons” 42

X. Release or Detention of a Material Witness 43

XI. Release or Detention Pending Revocation of Probation or

Supervised Release 44

XII. Offense Committed While on Bail 44

XIII. Sanctions 47

A. Failure to Appear 47

B. Contempt 48

XIV. Credit Toward Detention 48
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v

For Further Reference 51

Appendix A: The Bail Reform Act of 1984, 18 U.S.C. §§ 3141–3150,

3156 53

Appendix B: The Sentencing Reform Act of 1984, Selected Provision:

18 U.S.C. § 3585 69

Table of Cases 71
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vii

Preface

The first edition of this monograph, published in 1987, was written by

Deirdre Golash of the Federal Judicial Center. It was updated in a 1993

second edition by Alan Hirsch and Diane Sheehey of the Center. Much

of the case law since then follows the principles established in the cases

referenced in the second edition and often simply cites to those cases.

In this third edition, David N. Adair, Jr., former associate general

counsel of the Administrative Office of the United States Courts, primarily addresses areas that have been changed by statute or case law

since the second edition, and elsewhere cites more recent cases that

discuss the substantive issues. This edition includes case law through

June 1, 2006.

The Bail Reform Act of 1984 (18 U.S.C. §§ 3141–3150) authorizes

and sets forth the procedures for a judicial officer to order the release

or detention of an arrested person pending trial, sentence, and appeal.

The Bail Reform Act of 1984 has been amended several times.

References in this monograph to the “Bail Reform Act” or the “Act”

are to the amended version in effect as of October 30, 2005, and all

cites to the U.S. Code are to the most current version in effect at the

time of this printing.

Appendix A reproduces the Bail Reform Act of 1984, as amended,

as of October 30, 2005. Appendix B sets forth a selected provision of

the Sentencing Reform Act of 1984.
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1

I. Pretrial Release

A. Release on Personal Recognizance

Under 18 U.S.C. § 3142(b), the defendant must be released on personal

recognizance or unsecured personal bond unless the judicial officer

1

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 community.” Release is always subject to the mandatory

condition “that the person not commit a Federal, State, or local crime

during the period of release.”2

B. Conditional Release

Under section 3142(c), if the judicial officer determines that release of

a defendant on personal recognizance or unsecured bond presents a

risk of the defendant’s nonappearance or a danger to any person or to

the community, the judicial officer may impose additional conditions

of release. The judicial officer must choose “the least restrictive . . . condition, or combination of conditions, that . . . will reasonably assure the appearance of the person as required and the safety of

any other person and the community.”3

The statute includes a list of thirteen possible conditions of release

that courts may impose in appropriate cases; it also empowers courts

to impose “any other condition that is reasonably necessary” to ensure

appearance and protect the community.

4 Release conditions must be

relevant to the purposes of ensuring appearance and safety.

5 Various

1. Unless otherwise noted in a specific provision of the Act, a “judicial officer” may be a

federal appellate, district, or magistrate judge; a state judge, justice, magistrate, or justice of the

peace; or a city mayor. 18 U.S.C. §§ 3156(a), 3041; Fed. R. Crim. P. 1(b)(3).

2. 18 U.S.C. § 3142(b), (c)(1)(A).

3. Id. § 3142(c)(1)(B).

4. Id. § 3142(c)(1)(B)(xiv).

5. United States v. Goosens, 84 F.3d 697, 702 (4th Cir. 1996) (it was error to impose a

condition prohibiting cooperation with law enforcement officers without a finding that such a
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2

conditions that district courts have imposed under the catchall provision of the statute include drug testing, house arrest, submission to

warrantless searches,

6 telephone monitoring, residence in a halfway

house, electronic bracelet monitoring, freezing of defendant’s assets,

7

limiting access to the Internet and computers,

8 and submission to random, unannounced visits by pretrial services officers.

Several courts have stated that conditions of release vary with the

circumstances of each case and should be based on an individual

evaluation of the defendant; the treatment of other defendants is generally not relevant.

9

condition was necessary for the particular defendant); United States v. Vargas, 925 F.2d 1260,

1265 (10th Cir. 1991) (same); United States v. French, 900 F.2d 1300, 1302 (8th Cir. 1990)

(same); United States v. Brown, 870 F.2d 1354, 1358 n.5 (7th Cir. 1989) (it was error to require

defendant either to accept court-appointed counsel or to remain in forum district; although it

might be permissible to require retention of counsel as a condition of release if necessary to

ensure safety of the community or appearance at trial, the magistrate judge did it “in order to

ensure a fair and orderly trial. Although laudable in spirit, such concerns do not have . . . roots

in the Bail Reform Act.”); United States v. Rose, 791 F.2d 1477, 1480 (11th Cir. 1986) (condition that bail bond be retained by the clerk to pay any fine imposed on defendant was irrelevant to purpose of ensuring appearance and thus violated Eighth Amendment prohibition on

excessive bail). Note that 28 U.S.C. § 2044 authorizes the court to require a bond to be applied

toward payment of a criminal financial penalty, United States v. Frazier, 772 F.2d 1451, 1452–

53 (9th Cir. 1985) (per curiam) (condition that property securing bond be unencumbered held

improper because it was geared more toward protecting government’s property interest than

ensuring defendant’s appearance).

6. United States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir. 1993), cert. denied, 510 U.S.

1138 (1994) (search of defendant awaiting sentencing valid pursuant to warrantless search

condition). Cf. United States v. Scott, 450 F.3d 863 (9th Cir. 2006) (drug test pursuant to warrantless search condition must be supported by probable cause, though court cautioned that it

does not intend to establish categorical prohibition on drug-testing bail conditions).

7. See United States v. Welsand, 993 F.2d 1366 (8th Cir. 1993).

8. Cf. United States v. Johnson, 446 F.3d 272 (2d Cir. 2006) (upholding supervised release

condition restricting computer use). Though the imposition of restrictions on computer use

and access to computers in supervised release and probation contexts may involve different

considerations than in the pretrial release context, the opinion in Johnson may be helpful to

judges considering these kinds of conditions in appropriate pretrial situations.

9. See United States v. Patriarca, 948 F.2d 789, 794 (1st Cir. 1991) (noting “error of lumping defendants together” and rejecting government’s argument that because defendant is a

member of the same organized crime family as another detainee he should be “painted with the

same brush and merit[s] the same treatment”); United States v. Tortora, 922 F.2d 880, 888 (1st

Cir. 1990) (rejecting defendant’s contention that he should be treated the same as his confederates: “Detention determinations . . . must be based on the evidence which is before the court

regarding the particular defendant. . . . The inquiry is factbound. No two defendants are likely
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3

Section 3142(c)(2) precludes a judicial officer from “impos[ing] a

financial condition that results in the pretrial detention of the person.”

This provision does not require bail to be set at a figure that the defendant can readily post: “a court must be able to induce a defendant to

go to great lengths to raise the funds without violating the condition in

§ 3142(c).”10 Even if the defendant cannot afford the bail amount, the

condition may not run afoul of the statute.

11 Courts have held that section 3142(c)(2) prevents only the “‘sub rosa use of money bond’ to detain defendants whom the court considers dangerous.”12 Thus, although a court cannot intentionally detain the defendant by setting bail

at an unaffordable level, it may set bail at whatever level it finds reasonably necessary to secure appearance; if the defendant cannot afford

that amount, the defendant is detained not because he or she “cannot

raise the money, but because without the money, the risk of flight is

too great.”13 However, courts of appeals have held that if the defendant

informs the trial court that he or she cannot make bail, the trial court

“must explain its reasons for determining that the particular requirement is an indispensable component of the conditions for release.”14

If the defendant does post bail, but there are grounds to suspect

that the source of funds offered is illegitimate, the court may hold a

hearing to inquire into the matter.

15

to have the same pedigree or to occupy the same position.”); United States v. Spilotro, 786 F.2d

808, 816 (8th Cir. 1986) (applying same condition of release to all defendants in district was

abuse of discretion).

10. United States v. Szott, 768 F.2d 159, 160 (7th Cir. 1985) (per curiam) ($1 million bail

upheld).

11. United States v. Mantecon-Zayas, 949 F.2d 548, 550 (1st Cir. 1991); United States v.

McConnell, 842 F.2d 105, 108–10 (5th Cir. 1988) (en banc); United States v. Wong-Alvarez,

779 F.2d 583, 584 (11th Cir. 1985) (per curiam); United States v. Jessup, 757 F.2d 378, 388–89

(1st Cir. 1985).

12. Mantecon-Zayas, 949 F.2d at 551 (quoting S. Rep. No. 98-225, at 16 (1983)), reprinted

in 1984 U.S.C.C.A.N. 3182, 3199.

13. Jessup, 757 F.2d at 389.

14. Mantecon-Zayas, 949 F.2d at 551. Accord McConnell, 842 F.2d at 110. Cf. Szott, 768

F.2d at 160 (defendant’s bare assertion that he could not post $1 million bail did not rebut

government’s assertion that the defendant may be able to raise the money).

15. See, e.g., United States v. O’Brien, 895 F.2d 810, 817 (1st Cir. 1990) (district court

erred in finding that “it was precluded from conducting a hearing once the set condition had

been met”); United States v. Nebbia, 357 F.2d 303, 304 (2d Cir. 1966) (seminal case suggesting

a hearing).
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4

C. Written Findings

Federal Rule of Appellate Procedure 9(a) requires that a written statement of reasons accompany a release order.

16 In several circuits, a failure to comply with this requirement in contested cases results in a remand.

17 Section 3142(h)(1) specifies that a release order must set forth 

the conditions of release in a “clear and specific” manner. Some courts

have, in the context of an order of detention, permitted transcribed

oral findings and reasons to satisfy the similar requirements of 18

U.S.C. § 3142(i).

18

The statement of reasons should not be perfunctory. For example,

where a district court stated that listed conditions of release “will reasonably assure the safety of the community,” the First Circuit remanded because this “conclusory language accomplished very little in

the way of finding subsidiary facts or furnishing needed enlightenment

to an appellate tribunal. The judge gave no explanation of why he believed the proposed conditions would prove adequate.”19

D. Advising Defendant of Penalty

At the time of the defendant’s release, the judicial officer must also advise the person of the penalty and consequences of violating a term of

release.

20 The Fifth Circuit held that it is not sufficient to inform the

defendant that a violation of release conditions will result in arrest; the

judicial officer must advise the defendant of the penalty for the violation: a term of imprisonment under section 3147.

21

16. Fed. R. App. P. 9(a) (“Upon an entry of an order refusing or imposing conditions of

release, the district court shall state in writing the reasons for the action taken.”).

17. United States v. Blasini-Lluberas, 144 F.3d 881 (1st Cir. 1998); United States v. Swanquist, 125 F.3d 573, 575 (7th Cir. 1997) (per curiam), cert. denied, 526 U.S. 1160 (1999); United

States v. Cantu, 935 F.2d 950, 951 (8th Cir. 1991); United States v. Tortora, 922 F.2d 880, 883

(1st Cir. 1990); United States v. Wheeler, 795 F.2d 839, 841 (9th Cir. 1986); United States v.

Hurtado, 779 F.2d 1467, 1480 (11th Cir. 1985); United States v. Coleman, 777 F.2d 888, 892

(3d Cir. 1985).

18. United States v. Peralta, 849 F.2d 625, 626 (D.C. Cir. 1988); United States v. Davis,

845 F.2d 412, 415 (2d Cir. 1988).

19. Tortora, 922 F.2d at 883.

20. 18 U.S.C. § 3142(h)(2).

21. United States v. Onick, 889 F.2d 1425, 1433–34 (5th Cir. 1989).
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5

II. Pretrial Detention

A. Statutory Grounds

The judicial officer must order the defendant detained if no condition

will reasonably ensure the appearance of the defendant and the safety

of the community.

22 Thus, it appears that a showing of either the defendant’s likelihood to flee or dangerousness to others requires detention. Courts have operated on this assumption, and a number have

made it explicit.

23

The court must consider all reasonable, less-restrictive alternatives

to detention.

24 The First Circuit cautions that the Act “does not require

release of a dangerous defendant if the only combination of conditions

that would reasonably assure societal safety consists of heroic measures

beyond those which can fairly be said to have been within Congress’s

contemplation.”25 At the same time, courts have recognized that

“[p]retrial detention is still an exceptional step,”26 and the Eighth Circuit has noted that “reasonably assure” does not mean “guarantee.”27

B. Constitutionality

Even before the Bail Reform Act of 1984 was enacted, the Supreme

Court had upheld the constitutionality of detention based on likelihood of flight.

28 In United States v. Salerno,29 the Court upheld the Act

22. 18 U.S.C. § 3142(e).

23. United States v. King, 849 F.2d 485, 488 (11th Cir. 1988); United States v. Ramirez,

843 F.2d 256, 257 (7th Cir. 1988); United States v. Sazenski, 806 F.2d 846, 848 (8th Cir. 1986)

(per curiam); United States v. Fortna, 769 F.2d 243, 249 (5th Cir. 1985).

24. 18 U.S.C. § 3142(e). See United States v. Infelise, 934 F.2d 103, 105 (7th Cir. 1991)

(remanding because defendants proposed electronic surveillance anklets rather than detention,

and trial court failed to consider whether it was a reasonable alternative).

25. United States v. Tortora, 922 F.2d 880, 887 (1st Cir. 1990) (rejecting claim that house

arrest with twenty-four-hour surveillance was in order).

26. United States v. Torres, 929 F.2d 291, 292 (7th Cir. 1991) (citing United States v.

Salerno, 481 U.S. 739, 749 (1987)). Accord United States v. Townsend, 897 F.2d 989, 994 (9th

Cir. 1990) (“Only in rare cases should release be denied.”).

27. United States v. Orta, 760 F.2d 887, 891–92 (8th Cir. 1985) (en banc).

28. Bell v. Wolfish, 441 U.S. 520, 533–34 (1979).

29. 481 U.S. 739 (1987).
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6

itself against the claim that detention based on the defendant’s

dangerousness violates due process. The Court, however, “intimate[d]

no view as to the point at which detention in a particular case might

become excessively prolonged”30 and thus constitute a violation of due

process. Appellate courts since Salerno have held that due process

challenges to pretrial detention must be decided on a case-by-case basis. The relevant cases are discussed in Part III, infra.

C. Factors To Be Considered

Section 3142(g) sets forth the factors for the judicial officer to consider

in determining whether to release the defendant. These factors must be

considered whenever release is sought, whether under section 3142

(pending trial), section 3143 (pending appeal or sentence), section 3144

(material witness), or section 3148(b) (violation of release condition).

31

The factors are

(1) the nature and circumstances of the offense charged, including

whether the offense is a crime of violence or involves a narcotic

drug;

(2) the weight of the evidence against the person;

(3) the history and characteristics of the person, including—

(A) the person’s character, physical and mental condition, family

ties, employment, financial resources, length of residence in

the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record

concerning appearance at court proceedings; and

(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending

trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and

(4) the nature and seriousness of the danger to any person or the community that would be posed by the person’s release.

32

30. Id. at 747 n.4. The Court also rejected the claim that the Act violates the prohibition

against excessive bail.

31. See S. Rep. No. 98-225, at 23 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3206.

32. 18 U.S.C. § 3142(g).
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7

The Seventh Circuit has warned that the trial court may not disregard any of these factors.

33 The Ninth Circuit has said that, of the four

factors, the weight of the evidence against the defendant is least important.

34

Several courts have held that the probable length of pretrial detention is not a proper consideration in the judicial officer’s determination of whether to release the defendant, because it has no bearing on

the two concerns addressed by the Act: likelihood to flee and

dangerousness.

35 The Second Circuit found error where the district

court relied primarily on the demeanor of the defendant, since demeanor is not one of the factors listed in the statute.

36 The First Circuit

held that the court may consider prior arrests as part of criminal history even though the defendant was not convicted on the charges.

37

The D.C. and Third Circuits stated that findings should be based on

evidence presented at the detention hearing, not on extraneous information.

38

33. United States v. Torres, 929 F.2d 291 (7th Cir. 1991). The district judge explicitly

discounted the defendant’s “family ties,” a factor listed in section 3142(g)(3)(A) as relevant to

likelihood of flight, on the ground that defendant’s love for his family “does not increase the

likelihood of his appearance because prison, his alternative to flight, also would sever those

bonds.” Id. The Seventh Circuit criticized this approach, stating that “[i]f, as the statute provides, family ties are relevant to the probability of flight, a judge may not rebuff all evidence

about the subject.” Id. at 292.

34. United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991); United States v. Winsor,

785 F.2d 755, 757 (9th Cir. 1986); United States v. Motamedi, 767 F.2d 1403, 1408 (9th Cir.

1985).

35. United States v. Quartermaine, 913 F.2d 910, 917 (11th Cir. 1990); United States v.

Hare, 873 F.2d 796, 799 (5th Cir. 1989); United States v. Colombo, 777 F.2d 96, 100 (2d Cir.

1985). However, where detention has in fact been prolonged, reconsideration of the detention

order may be required. See infra Part IV.B.

36. United States v. Shakur, 817 F.2d 189, 200 (2d Cir.) (“[An] assessment of demeanor

often may be a helpful aid to the court. . . . [H]owever, where the factors enunciated by Congress compel the conclusion that the defendant should be detained, the court may not second

guess Congress by relying almost exclusively on an extrastatutory inquiry.”), cert. denied, 484

U.S. 840 (1987).

37. United States v. Acevedo-Ramos, 755 F.2d 203, 209 (1st Cir. 1985).

38. United States v. Vortis, 785 F.2d 327, 329 (D.C. Cir.) (per curiam) (determination of

likely flight should not be based on previous pretrial proceedings), cert. denied, 479 U.S. 841

(1986); United States v. Accetturo, 783 F.2d 382, 392 (3d Cir. 1986) (determination should not

be based on evidence produced at codefendant’s hearing).
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8

D. Standard of Proof

The statute specifies that a finding that no conditions will reasonably

ensure the safety of any other person or the community must be supported by clear and convincing evidence.

39 It fails to specify the standard of proof for a finding that no conditions will reasonably ensure

the defendant’s appearance. The courts have held that such a finding

must be supported only by a preponderance of the evidence.

40

E. Definition of Dangerousness

Defendants may be detained because of the risk of danger to the community even where there is no showing that they are likely to engage in

physical violence. The legislative history of the statute indicates that

Congress regards drug trafficking as a danger to the community.

41 The

Ninth Circuit recognizes economic danger to the community as requiring detention.

42

The Third Circuit interprets the statute as authorizing pretrial

detention based on danger to the community only upon a finding that

the defendant is likely to commit one of the offenses specified in

39. 18 U.S.C. § 3142(f).

40. United States v. Patriarca, 948 F.2d 789, 793 (1st Cir. 1991); United States v. Aitken,

898 F.2d 104, 107 (9th Cir. 1990); United States v. King, 849 F.2d 485, 489 (11th Cir. 1988);

United States v. McConnell, 842 F.2d 105, 110 (5th Cir. 1988) (en banc); United States v. Jackson, 823 F.2d 4, 5 (2d Cir. 1987); United States v. Vortis, 785 F.2d 327, 328–29 (D.C. Cir.) (per

curiam), cert. denied, 479 U.S. 841 (1986); United States v. Portes, 786 F.2d 758, 765 (7th Cir.

1985); United States v. Orta, 760 F.2d 887, 891 n.20 (8th Cir. 1985). See also United States v.

Xulam, 84 F.3d 441, 443 (D.C. Cir. 1996) (per curiam) (revoking order of detention because

government failed to sustain burden that there was no condition or combination of conditions

that would reasonably ensure the presence of the defendant at future proceedings). The courts

have reasoned that, in light of Congress’s specification that a finding of dangerousness requires

a high level of proof, its silence regarding risk of flight suggests that it did not intend to require

a high level of proof for risk of flight.

41. S. Rep. No. 98-225, at 12–13 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3195–96.

See United States v. Williams, 753 F.2d 329, 335 (4th Cir. 1985) (district court erred in failing

to take into account drug dealing as a danger to the community); United States v. Perry, 788

F.2d 100, 113 (3d Cir.), cert. denied, 479 U.S. 864 (1986); United States v. Leon, 766 F.2d 77, 81

(2d Cir. 1985).

42. United States v. Reynolds, 956 F.2d 192 (9th Cir. 1992) (defendant convicted of mail

fraud under 18 U.S.C. § 1341 (frauds and swindles) posed an economic or pecuniary danger to

the community).
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9

section 3142(f).

43 The Second Circuit appears to agree,44 although it

seems to reject the contention that evidence of dangerousness must

involve the likelihood of conduct related to the offense the defendant is

charged with.

45

F. Detention Hearing

1. Statutory Requirements

Section 3142(f)(1) provides that a detention hearing shall be held on

the government’s motion46 in a case involving (1) a crime of violence;

(2) an offense carrying a penalty of life imprisonment or death; (3) a

federal drug offense carrying a penalty of ten years or more; or (4) any

felony following convictions for two or more of the above three offenses, two or more comparable state or local offenses, or a combination of such offenses. The court may hold a hearing on its own motion

or the government’s motion in a case that involves serious risk of flight

or serious risk that the person will attempt to obstruct justice.

47

Although some courts have detained defendants in circumstances

other than those listed in section 3142(f), the First, Third, and Fifth

Circuits, the only circuits to address the question directly, held that

defendants may not be detained unless they fit into one of the four

categories described above.

48 However, the Fifth Circuit made clear

43. United States v. Himler, 797 F.2d 156, 160 (3d Cir. 1986) (likelihood that defendant

would commit another crime involving false identification was insufficient basis for pretrial

detention). The grounds specified in section 3142 are discussed in Part II.F.

44. United States v. Friedman, 837 F.2d 48, 49 (2d Cir. 1988).

45. United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir. 1991) (district court erred in

holding that evidence of defendant’s violence was irrelevant because it was unconnected to his

charged drug offense). The court cited for support United States v. Quartermaine, 913 F.2d 910,

917 (11th Cir. 1990), where defendant was charged with drug possession, yet the Eleventh

Circuit considered his unrelated acts of domestic violence evidence of dangerousness (albeit

without discussing the fact that the acts were unrelated to the charged crime).

46. The motion need not be in writing. United States v. Volksen, 766 F.2d 190, 192 (5th

Cir. 1985).

47. 18 U.S.C. § 3142(f)(2).

48. United States v. Byrd, 969 F.2d 106, 110 (5th Cir. 1992) (detention order vacated

because government did not establish that to knowingly receive child pornography through the

mail was covered by section 3142(f)); United States v. Ploof, 851 F.2d 7, 11 (1st Cir. 1988)

(evidence of defendant’s plans to kill someone did not justify detention when charged offenses
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10

that section 3142(f) applies if the case against the defendant “involves”

a crime of violence, that is, if the offense with which the defendant was

charged is “reasonably connected” to acts of violence, even if the offense is not itself a crime of violence.

49

A “crime of violence” is

(A) an offense that has as an element of the offense the use, attempted

use, or threatened use of physical force against the person or

property of another; [or]

(B) any other offense that is a felony and 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.

50

The Second Circuit has held that conspiracy to commit armed robbery

is a crime of violence under section 3142(f).

51 That circuit has also held

that a defendant charged with a RICO conspiracy can be considered to

be charged with a crime of violence under this section even if he is not

involved white-collar crimes not covered by section 3142(f); case remanded to see if the person

whom defendant allegedly intended to harm was a witness, in which case detention would be

proper pursuant to section 3142(f)(2)(B)’s obstruction of justice provision); United States v.

Friedman, 837 F.2d 48, 49 (2d Cir. 1988) (detention order vacated because district court finding regarding risk of flight was clearly erroneous and the defendant had not been charged with

any of the crimes enumerated in section 3142(f)(1)); United States v. Himler, 797 F.2d 156, 160

(3d Cir. 1986) (defendant charged with false identification could not be detained absent proof

of risk of flight). As noted supra note 45 and accompanying text, United States v. Rodriguez, 950

F.2d 85, 88 (2d Cir. 1991), and United States v. Quartermaine, 913 F.2d 910, 917 (11th Cir.

1990), suggest that there need not be a nexus between the charged offense and the evidence of

dangerousness. This is not inconsistent with the First, Third, and Fifth Circuits’ holdings that

defendants may be detained only if one of the circumstances listed in section 3142(f) is present.

In Rodriguez and Quartermaine, defendants were charged with offenses listed in section 3142(f).

Thus, the two lines of cases may be reconciled as follows: a detention hearing is authorized only

if it involves one of the circumstances listed in section 3142(f), but when such a circumstance is

present, dangers posed by the defendant unrelated to that circumstance may be considered by

the judicial officer pursuant to section 3142(g)(4), which permits consideration generally of

danger to any person or the community.

49. Byrd, 969 F.2d at 110. The government adduced evidence that defendant, charged

with knowingly receiving child pornography through the mail, was a danger to the community

because he was a child molester. The Fifth Circuit held, however, that because the government

did not establish that the charged crime “involve[d]” an act of violence, defendant could not be

detained.

50. 18 U.S.C. § 3156(a)(4).

51. United States v. Chimurenga, 760 F.2d 400, 403–04 (2d Cir. 1985).
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named in the indictment in a predicate act that constitutes a crime of

violence.

52

The circuits are split on the question of whether a violation of 18

U.S.C. § 922(g)(1), which prohibits possession of a firearm by a felon,

constitutes a crime of violence within the meaning of section

3156(a)(4). The Second and Tenth hold that it does.

53 The Third, Seventh, Eleventh, and D.C. Circuits hold that a felon-in-possession

charge does not meet the definition of section 3156(a)(4).

54

The determination of whether firearm offenses or other types of

offenses meet the definition of a “crime of violence” in section

3156(a)(4) is based on an examination of the nature of the charged offense and not the specific facts and circumstances of the offense. In

other words, the proper analytical approach is a “categorical” rather

than a “case-by-case” approach.

55

2. Timing of Detention Motion and Hearing

a. Statutory requirement; remedy for a violation

A detention hearing must be held immediately upon the defendant’s

first appearance before a judicial officer unless the defendant or the

government seeks a continuance.

56 Generally, “first appearance” means

just that.

57 However, the Eighth Circuit suggested that this requirement

is not violated when a detention hearing is held upon discovery of new

evidence relevant to the likelihood of flight or obstruction of justice

52. United States v. Ciccone, 312 F.3d 535, 541 (2d Cir. 2002).

53. United States v. Dillard, 214 F.3d 88 (2d Cir. 2000), cert. denied, 532 U.S. 907 (2001);

United States v. Rogers, 371 F.3d 1225 (10th Cir. 2004). The Tenth Circuit also held that possession of a firearm by a person convicted of a misdemeanor domestic violence offense is, contrary to 18 U.S.C. § 922(g)(9), a crime of violence for purposes of the Bail Reform Act. Rogers,

371 F.3d at 1232.

54. United States v. Bowers, 432 F.3d 518 (3d Cir. 2005); United States v. Johnson, 399

F.3d 1297, 1298 (11th Cir. 2005); United States v. Lane, 252 F.3d 905 (7th Cir. 2001); United

States v. Singleton, 182 F.3d 7, 12 (D.C. Cir. 1999).

55. Bowers, 432 F.3d at 520–21; Rogers, 371 F.3d at 1229 n.5; Singleton, 182 F.3d at 10–12.

56. 18 U.S.C. § 3142(f).

57. See, e.g., United States v. Payden, 759 F.2d 202, 204–05 (2d Cir. 1985) (construing

statute strictly).
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even if the defendant has already appeared before a judicial officer.

58

The Fifth Circuit disagreed.

59 The Third and Eighth Circuits have held

that the first-appearance requirement is not violated when a detention

hearing is held at the defendant’s first appearance before the district

judge even if the defendant has already appeared before a magistrate

judge who did not hold a hearing.

60 A hearing may be reopened, either

before or after a determination by the judicial officer, if the movant

proffers material evidence that was previously unavailable.

61

In United States v. Montalvo-Murillo,

62 the Supreme Court held that

the failure to comply with the time requirements of section 3142(f)

need not result in a defendant’s release.

63 The defendant had made

several court appearances at proceedings that were not detention hearings. Eventually, a magistrate judge held a detention hearing and,

finding that the defendant was neither a flight risk nor dangerous, ordered him released. On review of the order, the district court found

that the defendant did, in fact, pose a danger to the community, but

nevertheless ordered the defendant released because of noncompliance

with section 3142(f)’s time requirements.

64 The Tenth Circuit

affirmed.

65

The Supreme Court reversed: “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 release of a person who should otherwise be detained.”66 Thus, “once the Government discovers that the

58. United States v. Holloway, 781 F.2d 124, 126 (8th Cir. 1984).

59. United States v. O’Shaughnessy, 764 F.2d 1035, 1037–39 (5th Cir.), vacated on reh’g as

moot, 772 F.2d 112 (5th Cir. 1985). Cf. United States v. Fortna, 769 F.2d 243, 248–49 (5th Cir.

1985) (any error was harmless where magistrate judge ordered detention hearing held five days

after defendant first appeared and expressed a desire to hire counsel).

60. United States v. Maull, 773 F.2d 1479, 1482–85 (8th Cir. 1985) (en banc); United

States v. Delker, 757 F.2d 1390, 1394 (3d Cir. 1985).

61. 18 U.S.C. § 3142(f).

62. 495 U.S. 711 (1990).

63. Prior to Montalvo-Murillo, untimely detention hearings had resulted in release in

several cases. See, e.g., United States v. Molinaro, 876 F.2d 1432, 1433 (9th Cir. 1989) (per curiam); United States v. Al-Azzawy, 768 F.2d 1141, 1145–46 (9th Cir. 1985); United States v.

Payden, 759 F.2d 202, 203 (2d Cir. 1985); O’Shaughnessy, 764 F.2d at 1036–37.

64. United States v. Montalvo-Murillo, 713 F. Supp. 1407 (D.N.M. 1989).

65. United States v. Montalvo-Murillo, 876 F.2d 826 (10th Cir. 1989).

66. United States v. Montalvo-Murillo, 495 U.S. 711, 716–17 (1990).
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time limits have expired, it may ask for a prompt detention hearing.”67

The Court implied that such a hearing should be granted and that the

timing error should ordinarily not result in release, but acknowledged

that “[i]t is conceivable that some combination of procedural irregularities could render a detention hearing so flawed that it would not

constitute ‘a hearing pursuant to [section 3142] subsection (f).’”68 The

Court also left open the possibility of some remedy—other than release

of the defendant—for a violation of the timing requirements of section

3142(f).

69 Thus, the Court made clear that, although a violation of section 3142(f) need not result in release, the timing requirements are

nevertheless binding on the judicial officer.

70

Courts have interpreted the requirement flexibly in one common

circumstance, holding that where the defendant is arrested outside the

charging district, the detention hearing may be held at the first appearance following removal.

71

b. Continuances

The detention hearing must be held immediately, unless the defendant

or the government moves for a continuance. The statute sharply limits

the length of continuances. Except for good cause, continuances are

limited to three days for the government and five days for the defendant.

72 The Ninth and Eleventh Circuits have said that convenience of

counsel or the court does not satisfy the good-cause requirement.

73

The Eleventh Circuit held that a magistrate judge erred in granting a

continuance of more than five days to permit other defendants to ob67. Id. at 721.

68. Id. at 717.

69. Id. at 721 (“Whatever other remedies may exist for detention without a timely hearing

[is] . . . a matter not before us here.”).

70. Id.

71. United States v. Valenzuela-Verdigo, 815 F.2d 1011, 1016 (5th Cir. 1987); United

States v. Melendez-Carrion, 790 F.2d 984, 990 (2d Cir. 1986); United States v. Dominguez, 783

F.2d 702, 704–05 (7th Cir. 1986).

72. 18 U.S.C. § 3142(f). This section was amended in 1996 to resolve a split in the circuits,

and to clarify that the five- and three-day limitations on the length of continuances of detention hearings do not include intermediate Saturdays, Sundays, and legal holidays.

73. United States v. Al-Azzawy, 768 F.2d 1141, 1146 (9th Cir. 1985); United States v. Hurtado, 779 F.2d 1467, 1476 (11th Cir. 1985).
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tain counsel.

74 The Second Circuit held the good-cause requirement to

be satisfied by “substantial reasons pertinent to protection of the rights

of the defendants”75—the need to obtain witnesses and affidavits from

abroad and the need for defense counsel to obtain interpreters to help

interview non–English-speaking clients.

The First and Fifth Circuits deem defendants to have acquiesced in

a continuance if they do not make a timely objection to a proposed

continuance.

76

The statute provides for a continuance on motion of defense counsel or the government, but makes no explicit provision for a continuance on the court’s own motion. The Ninth and Eleventh Circuits have

held that detention hearings may not be continued on the court’s own

motion.

77 The D.C. and Fifth Circuits have permitted such continuances in special circumstances.

78 During a continuance, the defendant

shall be detained. Further, on its own motion or the government’s, the

court may order a medical examination of a person who appears to be

a narcotics addict to determine whether he or she is one.

74. Hurtado, 779 F.2d at 1474 n.7 (eight-day delay).

75. United States v. Melendez-Carrion, 790 F.2d 984, 991–92 (2d Cir. 1986).

76. United States v. Araneda, 899 F.2d 368, 370 (5th Cir. 1990) (it was error for court to

grant continuance for all codefendants when only some requested it; court of appeals nevertheless affirmed because counsel were advised of the continuance and did not object); United

States v. King, 818 F.2d 112, 115 n.3 (1st Cir. 1987) (failure to hold formal detention hearing

prior to initial detention order not reversible error where defendant did not request such a

hearing and was in state custody). See also United States v. Madruga, 810 F.2d 1010, 1014 (11th

Cir. 1987) (“Unless a defendant objects to the proposed hearing date on the stated ground that

the assigned date exceeds the three-day maximum, he is deemed to acquiesce in up to a fiveday continuance.”); United States v. Coonan, 826 F.2d 1180, 1184 (2d Cir. 1987) (defense

counsel told the government that “bail was not an issue,” thereby implicitly waiving defendant’s right to a hearing within five days).

77. United States v. Al-Azzawy, 768 F.2d 1141, 1146 (9th Cir. 1985); Hurtado, 779 F.2d at

1475–76.

78. United States v. Alatishe, 768 F.2d 364, 369 (D.C. Cir. 1985) (seven-day continuance

on motion of the court upheld; delay caused in part by confusion over requirements of the new

statute, and neither party objected to continuance; court of appeals noted that “in future cases,

except in the most compelling situations, the judicial officer should not act sua sponte to delay

the detention hearing”). See also United States v. Fortna, 769 F.2d 243, 249 (5th Cir. 1985)

(magistrate judge permitted to set detention hearing for five days later to enable defendant to

obtain counsel).
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c. Waiver by defendant

The only circuits to consider the question have held that defendants

may waive the right to a detention hearing (or a hearing within the

statutorily prescribed time frame). In a Fourth Circuit case, the defendants told the magistrate judge that they wanted to remain in custody

for their own protection. As a result, the magistrate judge did not conduct an evidentiary hearing or make written findings. Later, however,

the defendants moved for their immediate release on the ground that

they had an unwaivable right to a detention hearing. The original panel

agreed, but the en banc court held that defendants may waive both the

time requirements and the detention hearing itself.

79 The Second Circuit reached the same conclusion.

80

The timing provisions present special problems when a defendant

is in state custody at the time that the detention hearing should be

held. Any determination of release or detention in the federal case is

moot if the defendant will be returned to custody in the other jurisdiction. If the defendant’s status in the other jurisdiction changes, however, a detention hearing becomes meaningful. The First Circuit has

suggested that in these situations the judge should either hold a provisional detention hearing, which would be effective upon any change in

status, or postpone the detention hearing if the government and the

defendant agree. If the defendant objects to any postponement of the

hearing, the judge should assess whether the hearing should be continued for good cause pursuant to section 3142(f).

81 It should be noted

that the Interstate Agreement on Detainers Act may be implicated upon

the transfer of a defendant in custody from one jurisdiction to another.

82

79. United States v. Clark, 865 F.2d 1433, 1436 (4th Cir. 1989) (en banc).

80. United States v. Coonan, 826 F.2d 1180, 1184 (2d Cir. 1987) (to hold that hearing or

time limit cannot be waived “would convert the time requirements of the act into a potential

trap, available to defendants, that would undermine the functioning of the act, and would also

require meaningless, ritualistic hearings in situations where no one wants them”).

81. United States v. King, 818 F.2d 112, 115 n.3 (1st Cir. 1987). See also Coonan, 826 F.2d

at 1185.

82. 18 U.S.C. App. 2.
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G. Rebuttable Presumptions

1. The Two Presumptions

The statute creates two rebuttable presumptions: the “previous-violator

presumption” and the “drug-and-firearm-offender presumption.” The

previous-violator presumption is that no conditions of release will reasonably ensure the safety of the community where the defendant is accused of one of numerous specified crimes, such as crimes of violence,

and has previously been convicted of committing one of the specified

crimes while free on bail.

The drug-and-firearm-offender presumption is that no conditions

of release will reasonably ensure the defendant’s appearance and the

safety of the community where a judicial officer finds probable cause

to believe that the defendant has committed certain enumerated offenses. The provision is often referred to as the drug-and-firearmoffender provision because it originally included only federal drug offenses carrying a maximum prison term of ten years or more and offenses in which the defendant is alleged to have used a firearm to

commit the offense. Congress has since added, however, certain terrorism-related offenses and certain sex offenses involving minor victims.

83

As of this writing, no published case law specifically addresses the

previous-violator presumption. However, the First Circuit has suggested that an analysis of the drug-and-firearm-offender presumption,

discussed below, would also apply to the previous-violator presumption.

84

2. Application of “Drug-and-Firearm-Offender Presumption”

a. Ten-year maximum charge required

The Eleventh Circuit held that for drug charges to trigger the drug-andfirearm-offender presumption, the defendant must be charged with at

least one offense separately carrying a ten-year (or longer) maximum

83. 18 U.S.C. § 3142(e).

84. United States v. Jessup, 757 F.2d 378, 381 (1st Cir. 1985).
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17

sentence. The presumption does not arise simply because the combined maximum sentences on all drug charges exceed ten years.

85

The First and Fifth Circuits held that the presumption applies

whenever the offense carries a penalty of ten years or more, even if the

defendant is unlikely to receive a ten-year sentence under the Sentencing Guidelines.

86 However, the sentence that the defendant is likely to

receive can affect the weight given to the presumption.

87

b. Probable cause and grand jury indictments

Most courts have held that where a grand jury has indicted a defendant

on one of the predicate offenses, a judicial officer need not make an

independent finding of probable cause to invoke the drug-and-firearmoffender presumption.

88 Rather, the indictment itself establishes probable cause that the defendant committed the offense and triggers the

presumption that the defendant poses a danger to the community and

is a flight risk.

c. Formal charge required

The Second Circuit held that the drug-and-firearm-offender presumption cannot arise if the defendant has not yet been charged with the

firearm offense by a “valid complaint or indictment,” even if there may

be probable cause to believe that the defendant appearing at a detention hearing on other charges has also committed a firearm violation.

89

85. United States v. Hinote, 789 F.2d 1490, 1491 (11th Cir. 1986).

86. United States v. Carr, 947 F.2d 1239, 1240 (5th Cir. 1992) (per curiam); United States

v. Moss, 887 F.2d 333, 336–37 (1st Cir. 1989).

87. Moss, 887 F.2d at 337.

88. United States v. Stricklin, 932 F.2d 1353, 1355 (10th Cir. 1991); United States v. King,

849 F.2d 485, 488 (11th Cir. 1988); United States v. Jackson, 845 F.2d 1262, 1265 (5th Cir.

1988); United States v. Vargas, 804 F.2d 157, 161 (1st Cir. 1986); United States v. Suppa, 799

F.2d 115, 118–19 (3d Cir. 1986); United States v. Dominguez, 783 F.2d 702, 706 n.7 (7th Cir.

1986); United States v. Contreras, 776 F.2d 51, 54–55 (2d Cir. 1985); United States v. Hazime,

762 F.2d 34, 37 (6th Cir. 1985); United States v. Hurtado, 779 F.2d 1467, 1477–79 (11th Cir.

1985).

89. United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985).
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d. Effect of presumption

The drug-and-firearm-offender presumption imposes on defendants

only a burden of production; the burden of persuasion concerning the

risk of flight and dangerousness remains with the government.

90 However, courts have held that when a defendant comes forward with no

evidence, the presumption alone supports the conclusion that no conditions of release could reasonably ensure the appearance of the defendant and the safety of the community.

91

To meet its burden, the defense must produce only “some [relevant] evidence.”92 The introduction of such evidence, however, does

not eliminate the presumption entirely.

93 Rather, the presumption “remains in the case as one of the elements to be considered” by the

judicial officer.

94 This ensures that the court takes note of the congressional findings that drug traffickers pose special flight risks.

95

The Seventh Circuit held that to rebut the presumption, defendants

need not produce evidence that they are innocent of the charged

crime.

96 Rather, they may show that “the specific nature of the crimes

90. United States v. Moss, 887 F.2d 333, 338 (1st Cir. 1989); United States v. Hare, 873

F.2d 796, 798 (5th Cir. 1989); United States v. Martir, 782 F.2d 1141, 1144 (2d Cir. 1986);

United States v. Perry, 788 F.2d 100, 115 (3d Cir.), cert. denied, 479 U.S. 864 (1986); United

States v. Dominguez, 783 F.2d 702, 707 (7th Cir. 1986); United States v. Portes, 786 F.2d 758,

764 (7th Cir. 1985); United States v. Alatishe, 768 F.2d 364, 371 n.14 (D.C. Cir. 1985); United

States v. Jessup, 757 F.2d 378, 381–84, 389 (1st Cir. 1985); Chimurenga, 760 F.2d at 405; United

States v. Fortna, 769 F.2d 243, 253 n.11 (5th Cir. 1985); United States v. Diaz, 777 F.2d 1236,

1237 (7th Cir. 1985); United States v. Hurtado, 779 F.2d 1467, 1470 n.4 (11th Cir. 1985);

United States v. Orta, 760 F.2d 887, 891 n.17 (8th Cir. 1985).

91. Perry, 788 F.2d at 107; Alatishe, 768 F.2d at 371; United States v. Daniels, 772 F.2d 382,

383 (7th Cir. 1985).

92. Jessup, 757 F.2d at 381.

93. United States v. Dillon, 938 F.2d 1412, 1416 (1st Cir. 1991) (“rebutted presumption

retains evidentiary weight”); Hare, 873 F.2d at 798 (“presumption is not a mere ‘bursting bubble’ that totally disappears from the judge’s consideration after the defendant comes forward

with evidence”); Dominguez, 783 F.2d at 707; Martir, 782 F.2d at 1144.

94. Montgomery County Fire Bd. v. Fisher, 454 A.2d 394, 400 (1983), quoted with approval in Jessup, 757 F.2d at 383.

95. The First Circuit has stated that the remaining weight of the presumption “depend[s]

on how closely defendant’s case resembles the congressional paradigm.” United States v.

Palmer-Contreras, 835 F.2d 15, 18 (1st Cir. 1987).

96. United States v. Dominguez, 783 F.2d 702, 707 (7th Cir. 1986). But cf. United States v.

Rueben, 974 F.2d 580, 587 (5th Cir. 1992), cert. denied, 507 U.S. 940 (1993) (presumption

unrebutted because defendants presented no evidence that they would not continue to engage
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19

charged, or . . . something about their individual circumstances” suggests that they are not dangerous or likely to flee.

97

The Fifth Circuit held that circumstances are relevant only if germane to the likelihood of flight or a presumption of dangerousness; it

therefore dismissed as irrelevant a defendant’s contention that detention imposed a severe financial hardship.

98

The Fifth Circuit stated that, where there has been a full evidentiary

hearing in which both sides have presented evidence, “the shifting of

and the descriptions of evidentiary burdens become largely irrelevant

and the question becomes whether the evidence as a whole supports

the conclusions” reached by the trial court.

99

e. Constitutionality

The First Circuit held that the presumption, when construed not to

shift the burden of persuasion, does not violate the Due Process Clause

of the Fifth Amendment.

100 The Third Circuit held that because the

presumption of dangerousness may place the defendant in the position

of risking self-incrimination or submitting to pretrial detention, the

judicial officer should grant use immunity to a defendant who seeks to

rebut the presumption through his or her own testimony.

101 In an unpublished opinion, the Sixth Circuit appeared to reject this approach.

102 In a case where the presumption did not apply, the Fifth 

in drug trafficking if released on bail); United States v. Hare, 873 F.2d 796, 799 (5th Cir. 1989)

(same).

97. Dominguez, 783 F.2d at 707. Defendants must rebut the presumption of both

dangerousness and likelihood of flight. United States v. Daniels, 772 F.2d 382, 383 (7th Cir.

1985) (assuming defendant showed he was unlikely to flee, he could still be detained on unrebutted presumption of dangerousness). Cf. United States v. Carbone, 793 F.2d 559, 561 (3d

Cir. 1986) (per curiam) (under the circumstances, evidence normally adduced to rebut presumption of flight also rebutted presumption of dangerousness).

98. Fassler v. United States, 858 F.2d 1016, 1018 n.5 (5th Cir. 1988) (per curiam), cert.

denied, 490 U.S. 1099 (1989).

99. United States v. Trosper, 809 F.2d 1107, 1111 (5th Cir. 1987).

100. United States v. Jessup, 757 F.2d 378, 384–87 (1st Cir. 1985).

101. United States v. Perry, 788 F.2d 100, 115–16 (3d Cir.), cert. denied, 479 U.S. 864

(1986).

102. United States v. Dean, 927 F.2d 605 (6th Cir.) (table), cert. denied, 502 U.S. 838

(1991) (rejecting claim that use of defendant’s testimony at detention hearing in subsequent

trial violated his right against self-incrimination).
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20

Circuit rejected a facial challenge to the statute based on its alleged

violation of the self-incrimination clause.

103 The Second Circuit held

that it is not error to prohibit the government from cross-examining

the detainee in order to prevent self-incrimination problems.

104

H. Temporary Detention

Section 3142(d) authorizes a judicial officer to order an arrestee temporarily detained for up to ten days if the person is arrested while on

pretrial or post-trial release, probation, or parole, or is an alien not

admitted to permanent residence, and the judicial officer finds that the

arrestee “may flee or pose a danger to any other person or the community.”105 The court must direct the government to notify the appropriate authorities so that they can take the person into custody. If these

authorities do not take the defendant into custody within the ten-day

period, a section 3142(f) hearing may be held on the more recent offense. This hearing is separate from the section 3142(d) hearing, and

the judicial officer cannot rely on facts previously found to support a

section 3142(d) detention.

106

All the courts that have considered the question have interpreted

section 3142(d) as permitting the government to move under section

3142(f) for a detention hearing at any time during the ten-day period,

rather than at the defendant’s first appearance as normally required by

section 3142(f).

107 (However, the Fifth and D.C. Circuits have indicated

that the better practice is for the government to move under both section 3142(d) and section 3142(f) at the defendant’s initial appear103. United States v. Parker, 848 F.2d 61, 62 (5th Cir. 1988) (per curiam), cert. denied, 493

U.S. 871 (1989). The court left open the possibility that use immunity might be required where

the rebuttable presumption applies. Id. at n.1. See also United States v. Ingraham, 832 F.2d 229,

237–38 (1st Cir. 1987) (rejecting the claim that use immunity should be granted in a case

where the presumption did not apply; leaving open the possibility that it is required when the

presumption applies), cert. denied, 486 U.S. 1009 (1988).

104. United States v. Shakur, 817 F.2d 189, 200 (2d Cir.), cert. denied, 484 U.S. 840 (1987).

105. 18 U.S.C. § 3142(d)(2).

106. United States v. Alatishe, 768 F.2d 364, 370 (D.C. Cir. 1985).

107. United States v. Moncada-Pelaez, 810 F.2d 1008, 1010 (11th Cir. 1987); United States

v. Vargas, 804 F.2d 157, 161 (1st Cir. 1986); United States v. Becerra-Cobo, 790 F.2d 427, 430

(5th Cir. 1986); United States v. Lee, 783 F.2d 92, 94 (7th Cir. 1986); Alatishe, 768 F.2d at 368.
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ance.

108

) The Fifth, D.C., and Ninth Circuits have indicated that continuances under section 3142(f) cannot extend the detention period

beyond ten days.

109 The Seventh Circuit held otherwise.110

The First Circuit has emphasized that it is important for the judicial officer to make clear under which provision detention is being

considered. In United States v. Vargas,

111 defendants, already detained

under section 3142(d), appeared before a magistrate judge for arraignment on another offense. The government indicated that it would “seek

to detain” the defendants. The magistrate judge, apparently believing

that defense counsel had waived argument on the detention issue, ordered the defendants detained. One of the defendants subsequently

moved for release upon expiration of the ten-day period under section

3142(d), arguing that no timely motion for detention under section

3142(f) had been made. Although it upheld the magistrate judge’s detention order,

112 the First Circuit suggested that in order to avoid the

type of confusion that led to the appeal, it is important that magistrate

judges and district judges closely adhere to the requirements of sections 3142(e) and 3142(f) and to clearly state that they are proceeding

under those sections when they are in situations involving the possibility of pretrial detention under section 3142(e).

113

I. Detention Upon Review of a Release Order

Section 3145(a) permits either the government or the defendant to seek

review of release conditions imposed by a magistrate judge or by a judicial officer other than the district court with original jurisdiction or

an appellate court. Several circuits interpret this subsection as author108. Becerra-Cobo, 790 F.2d at 430; Alatishe, 768 F.2d at 368.

109. Becerra-Cobo, 790 F.2d at 430; Alatishe, 768 F.2d at 368; United States v. Al-Azzawy,

768 F.2d 1141, 1146 (9th Cir. 1985).

110. Lee, 783 F.2d at 94.

111. 804 F.2d 157, 162 (1st Cir. 1986).

112. The court of appeals noted that the magistrate judge had offered the defendants an

opportunity for additional, individual hearings; that the magistrate judge held a second hearing

six days later, immediately upon expiration of the section 3142(d) detention period; and that

the district judge also held a de novo hearing upon review of the magistrate judge’s detention

order. Id. at 160–62.

113. Id. at 162.
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izing a trial court to impose detention at the time of such review.

114

The Eighth and Ninth Circuits have gone further, holding that district

judges can review a magistrate judge’s detention order sua sponte and

impose detention at that time.

115

J. Evidence and Right to Counsel

1. Right to Counsel

At the detention hearing, defendants have the right to an attorney and

the right to appointed counsel if they cannot afford one.

116 The rules

governing admissibility and presentation of evidence in criminal trials

do not apply at the detention hearing, and the court has broad discretion to limit the presentation of evidence.

117

2. Hearsay Evidence

Hearsay evidence is generally admissible at a detention hearing.

118

However, trial courts “should be sensitive to the fact that Congress’

authorization of hearsay evidence does not represent a determination

that such evidence is always appropriate.”119 The First and Third Circuits advise courts to assess the reliability of hearsay evidence and require corroboration when necessary.

120

114. United States v. Delker, 757 F.2d 1390, 1393–95 (3d Cir. 1985); United States v.

Medina, 775 F.2d 1398, 1400–02 (11th Cir. 1985). These courts observed that section 3145(a)

authorizes the district judge to conduct de novo review of a magistrate judge’s release order,

and reasoned that the district judge should therefore have open all the options available to the

magistrate judge.

115. United States v. Gebro, 948 F.2d 1118, 1120 (9th Cir. 1991); United States v. Maull,

773 F.2d 1479, 1486 (8th Cir. 1985) (en banc).

116. 18 U.S.C. § 3142(f).

117. Id.

118. United States v. Cardenas, 784 F.2d 937, 938 (9th Cir.) (per curiam), vacated as moot,

792 F.2d 906 (9th Cir. 1986); United States v. Acevedo-Ramos, 755 F.2d 203, 208 (1st Cir.

1985); United States v. Delker, 757 F.2d 1390, 1397 (3d Cir. 1985); United States v. Fortna, 769

F.2d 243, 250 (5th Cir. 1985).

119. United States v. Accetturo, 783 F.2d 382, 389 (3d Cir. 1986).

120. Id.; Acevedo-Ramos, 755 F.2d at 207–08.
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3. Proffer Evidence

Section 3142(f) states that defendants may “present information by

proffer or otherwise.” The Third Circuit held that the judicial officer

may require the defendant to proffer evidence rather than to present

live testimony.

121 The Seventh Circuit held to the contrary.122 Several

circuits have held that the government may also proceed by way of

proffer.

123 The Third Circuit, however, questioned the validity of relying on a proffer by the government to establish probable cause that the

accused committed one of the offenses giving rise to the drug-andfirearm-offender presumption under section 3142(e).

124

4. Cross-Examination

Section 3142(f) affords defendants an opportunity to cross-examine

witnesses appearing at the hearing, but it makes no explicit provision

for nonappearing witnesses. Several courts have held that, at least

where the defendant makes no specific proffer of how crossexamination will counter the government’s proffered evidence, the

court is not required to subpoena the government witnesses.

125 The

Third Circuit noted a few circumstances that militate in favor of subpoenaing a requested witness: the defendant’s offer of specific evidence

showing unreliability, the lack of a need to protect confidentiality, and

121. Delker, 757 F.2d at 1395–96.

122. United States v. Torres, 929 F.2d 291, 292 (7th Cir. 1991).

123. United States v. Gaviria, 828 F.2d 667, 669 (11th Cir. 1987); United States v. Martir,

782 F.2d 1141, 1147 (2d Cir. 1986); United States v. Cardenas, 784 F.2d 937, 938 (9th Cir.) (per

curiam), vacated as moot, 792 F.2d 906 (9th Cir. 1986).

124. United States v. Suppa, 799 F.2d 115, 118 (3d Cir. 1986).

125. United States v. Accetturo, 783 F.2d 382, 388 (3d Cir. 1986) (there was no error in

failing to compel appearance of government witness for cross-examination where there was no

reason to believe witness would have testified favorably to defendants); United States v. Winsor, 785 F.2d 755, 756–57 (9th Cir. 1986) (where defendant did not make proffer to show that

government’s proffer was incorrect, defendant did not have right to cross-examine investigators); Delker, 757 F.2d at 1397–98 n.4 (there was no error in declining to subpoena witnesses;

the question whether there is a right to cross-examine where defendant makes specific proffer

negating government’s case was left open). See also Cardenas, 784 F.2d at 938 (there was no

error in refusing to subpoena witnesses where government withdrew proffered evidence challenged by defendant).
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the prospect of lengthy detention.

126 The Eleventh Circuit indicated

that if a finding of dangerousness or likelihood of flight rests on the

weight of the evidence against the defendant with respect to the

charged crime, it would be reversible error not to give the defendant

the opportunity to cross-examine witnesses.

127

5. Ex Parte Evidence

The Bail Reform Act does not specifically address the use of evidence

presented ex parte. The Second Circuit, in a post-conviction release

hearing, held that the right to a fair hearing implicit in section

3143(a)(1) requires some notice to the defendant of the reasons for detention advanced by the government. Receipt of ex parte evidence

should satisfy three criteria: (1) satisfaction of the factors outlined in

Waller v. Georgia128 to exclude the public from certain criminal proceedings; (2) disclosure to the defendant of the gist or substance of the

government’s ex parte submission; and (3) careful scrutiny by the district court of the reliability of the ex parte evidence.

129

The Third Circuit has held that reliance on ex parte evidence presented is generally inconsistent with the Act’s procedural protections.

130

The Third Circuit has also suggested that use of such testimony may

run afoul of the confrontation clause.

131 In a brief opinion later vacated

126. Accetturo, 783 F.2d at 388.

127. United States v. Hurtado, 779 F.2d 1467, 1479–80 (11th Cir. 1985) (it was harmless

error for district court to quash subpoenas of Drug Enforcement Agency agents where a

finding that defendant was likely to flee was based on nature of the offense and history and

characteristics of defendants rather than on weight of the evidence).

128. 467 U.S. 39, 48 (1984) (the four factors for closure of a hearing are (1) “the party

seeking to close the hearing must advance an overriding interest that is likely to be prejudiced,”

(2) “the closure must be no broader than necessary to protect that interest,” (3) “the trial court

must consider reasonable alternatives to closing the proceeding,” and (4) “it must make findings adequate to support the closure”). For a case setting forth the factors relevant to restricting

public access to pretrial records, including tapes played at the pretrial hearing that were not

entered into evidence, see United States v. Graham, 257 F.3d 143, 149–56 (2d Cir. 2001).

129. United States v. Abuhamra, 389 F.3d 309, 329 (2d Cir. 2004).

130. Accetturo, 783 F.2d at 391 (presentation in camera appropriate only when there is a

compelling need and no alternative means of meeting that need).

131. United States v. Perry, 788 F.2d 100, 117 (3d Cir.), cert. denied, 479 U.S. 864 (1986).
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as moot, the Ninth Circuit rejected a due process challenge to the use

of in camera evidence.

132

6. Challenged Evidence 

The First and Eighth Circuits held that a district court may rely on evidence whose legality the accused has challenged, at least until a court

rules that the material was not legally obtained.

133

7. Electronic Surveillance

Both the First and Second Circuits upheld the use of evidence obtained

by electronic surveillance.

134 The Second Circuit noted that such material is governed by the ten-day notice requirement of 18 U.S.C.

§ 2518(9).

135 Acknowledging the potential conflict between the ten-day

notice requirement and the requirement of a prompt detention hearing, the Second Circuit pointed out that if prejudice to the defendant

would result from waiver of the ten-day notice period, the detention

hearing may be continued for good cause under section 3142(f).

136

8. Psychiatric Examination

The Second Circuit held that judicial officers may not order a psychiatric examination to determine the dangerousness of a defendant; they

must base such a determination on evidence adduced at the detention

hearing.

137

132. United States v. Cardenas, 784 F.2d 937, 938 (9th Cir.) (per curiam), vacated as moot,

792 F.2d 906 (9th Cir. 1986). See also United States v. Acevedo-Ramos, 755 F.2d 203, 207–09

(1st Cir. 1985) (magistrate judges may test veracity of hearsay by inspection of evidence in

camera where confidentiality of sources is necessary).

133. United States v. Apker, 964 F.2d 742, 744 (8th Cir. 1992) (wiretap challenged);

United States v. Angiulo, 755 F.2d 969, 974 (1st Cir. 1985) (electronic surveillance challenged).

134. United States v. Berrios-Berrios, 791 F.2d 246, 253 (2d Cir.), cert. dismissed, 479 U.S.

978 (1986); Angiulo, 755 F.2d at 974.

135. Berrios-Berrios, 791 F.2d at 253.

136. United States v. Salerno, 794 F.2d 64, 70 (2d Cir. 1986), rev’d on other grounds, 481

U.S. 739 (1987).

137. United States v. Martin-Trigona, 767 F.2d 35, 38 (2d Cir. 1985).
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K. Hearings Involving Multiple Defendants

Cases involving multiple defendants can pose problems. The Eleventh

Circuit recommends that the court make individual determinations on

continuances rather than automatically schedule all hearings for the

same date.

138 The Third Circuit held that evidence offered at hearings

of codefendants may not be considered unless the defendant is given a

confrontation opportunity at the defendant’s own hearing.

139

Where detention hearings are required for a large number of codefendants, the Second Circuit suggests that the court consider alternatives to individual hearings before the same judicial officer: a joint

hearing; consolidation to receive testimony of government witnesses

common to all the defendants, followed by individual hearings to receive evidence peculiar to each defendant; and assignment of more

than one judicial officer to the hearings.

140

L. Written Findings

Written findings of fact and a written statement of reasons are required

when detention is ordered.

141 The Second Circuit requires that these

findings include a statement of the alternatives considered and the reasons for rejecting them.

142

138. United States v. Hurtado, 779 F.2d 1467, 1476 (11th Cir. 1985).

139. United States v. Accetturo, 783 F.2d 382, 392 (3d Cir. 1986).

140. United States v. Melendez-Carrion, 790 F.2d 984, 992–93 (2d Cir. 1986).

141. Fed. R. App. P. 9(a); 18 U.S.C. § 3142(i)(1); United States v. Vortis, 785 F.2d 327,

329 (D.C. Cir.) (per curiam) (remanding for written findings to support detention order), cert.

denied, 479 U.S. 841 (1986); United States v. Westbrook, 780 F.2d 1185, 1190 (5th Cir. 1986)

(same); Hurtado, 779 F.2d at 1480–81 (same); United States v. Quinnones, 610 F. Supp. 74, 76

(S.D.N.Y. 1985) (defendant released).

142. United States v. Berrios-Berrios, 791 F.2d 246, 253–54 (2d Cir.) (remanding for

statement of reasons), cert. dismissed, 479 U.S. 978 (1986).
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III. The Crime Victims’ Rights Act of 2004

The Crime Victims’ Rights Act of 2004 (CVRA) was enacted October

30, 2004, and will affect a number of proceedings under the Bail Reform Act.

143 The CVRA provides crime victims certain specific rights in

18 U.S.C. § 3771(a), requires that judges ensure that the crime victim is

afforded those rights in section 3771(b), and provides means by which

the rights may be enforced by the victim or the government in section

3771(d). A “crime victim” is defined as a person “directly and proximately harmed as a result of the commission of a Federal offense or an

offense in the District of Columbia.”144

Among the rights provided is the right to “reasonable, accurate,

and timely notice of any public court proceeding . . . involving the

crime or of any release . . . of the accused.”145 This right clearly attaches at the pretrial stage, including the initial appearance and hearings involving release or detention. While the government may be in

the best position to identify victims and to provide notice of proceedings to those victims, section 3771(b) could be read to give the judge

some responsibility to verify that such notice has been given.

146

Victims also have the right not to be excluded from public court

proceedings except in certain circumstances.

147 Courts must make

every effort to permit the fullest possible attendance by victims, and if

victims are excluded, courts must clearly state the reasons on the record.

148 Victims also have the right to be “reasonably heard” at any

public proceeding in the district court that involves the release, plea,

or sentence of the defendant.

149 The Ninth Circuit has held that the

right to be reasonably heard requires that victims be given the right to

143. Justice for All Act of 2004, Pub. L. No. 108-405, Title I, § 102(a), 118 Stat. 2261 (Oct.

30, 2004).

144. 18 U.S.C. § 3771(e).

145. Id. § 3771(a)(2).

146. See United States v. Turner, 367 F. Supp. 2d 319, 323–24 (E.D.N.Y. 2005).

147. 18 U.S.C. § 3771(a)(3).

148. Id. § 3771(b).

149. Id. § 3771(a)(4).
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28

speak at the hearing.

150 Victims have the right to proceedings free from

unreasonable delay.

151 Victims also have the right to be reasonably

protected from the accused,

152 and to be treated with fairness and with

respect to their dignity and privacy.

153

IV. Modification of Detention Order

A. Changed Circumstances

Section 3142(f) expressly authorizes reopening the detention hearing

when material information “that was not known to the movant at the

time of the hearing” comes to light. Thus, the D.C. Circuit upheld the

reopening of a detention hearing when the government sought to put

in evidence a ruling on a suppression motion made after the original

hearing.

154 However, courts have interpreted this provision strictly,

holding that hearings should not be reopened if the evidence was

available at the time of the hearing.

155

B. Length of Detention

Speedy Trial Act deadlines limit the length of pretrial detention. As a

result of excludable-time provisions, however, defendants in complex

cases may be detained far beyond the theoretical ninety-day maximum

under the Speedy Trial Act, thus giving rise to due process concerns.

150. Kenna v. United States Dist. Ct. for the C. Dist. of Cal., 435 F.3d 1011, 1016, 1018

(9th Cir. 2006). Accord United States v. Degenhardt, 405 F. Supp. 2d 1341, 1345–51 (D. Utah

2005). But see United States v. Marcello, 370 F. Supp. 2d 745, 748 (N.D. Ill. 2005); United

States v. Turner, 367 F. Supp. 2d 319, 333 (E.D.N.Y. 2005).

151. 18 U.S.C. § 3771(a)(7).

152. Id. § 3771(a)(1).

153. Id. § 3771(a)(8).

154. United States v. Peralta, 849 F.2d 625, 626–27 (D.C. Cir. 1988) (per curiam).

155. See United States v. Dillon, 938 F.2d 1412, 1415 (1st Cir. 1991) (holding district

court’s refusal to reopen detention hearing not in error where information in affidavits and

letters appellant sought to present was available to him at time of hearing) (relying on United

States v. Hare, 873 F.2d 796, 799 (5th Cir. 1989) (affirming refusal to reopen hearing because

“testimony of Hare’s family and friends is not new evidence”)).
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As noted in Part II, the Supreme Court has left open the possibility

that detention could become so long that it would violate the defendant’s substantive due process rights.

156 A number of circuit courts acknowledge that lengthy periods of detention may implicate due process

concerns.

157 They appear to agree that there is no bright-line time limit

for determining if the defendant has been denied due process, and that

courts must decide on a case-by-case basis in light of all the circumstances.

158 The Supreme Court, in United States v. Salerno, indicated

that the point at which the length of detention becomes constitutionally

excessive is the point at which the length of detention exceeds the regulatory goals set by Congress.

159 This inquiry requires that courts balance those regulatory goals, and how the detention at issue furthers

those goals, against the length of detention. However, no one analytical

process or processes appear to have been established by the courts of

appeals to aid courts in conducting this balancing in individual cases.

The factors to be considered in such a balancing, however, have

been discussed by the courts of appeals. They include some of the factors relevant in the original detention decision—the seriousness of the

charges, the strength of the government’s case, the risk of flight or

dangerousness to the community—as well as others unique to the due

process inquiry. The first of these is the length of time the defendant

has been in custody as well as the length of time he or she is expected

to remain in custody before trial. This factor, while important, is rarely

dispositive.

160 Another very important factor is the extent to which the

prosecution bears responsibility for the delay.

161 The strength of the

evidence upon which the detention is based is the third additional fac156. See United States v. Salerno, 481 U.S. 739 (1987).

157. United States v. El-Hage, 213 F.3d 74 (2d Cir. 2000); United States v. Infelise, 934

F.2d 103, 104 (7th Cir. 1991); United States v. Tortora, 922 F.2d 880, 889 (1st Cir. 1990);

United States v. Hare, 873 F.2d 796, 799 (5th Cir. 1989); United States v. Gelfuso, 838 F.2d 358,

359 (9th Cir. 1988); United States v. Accetturo, 783 F.2d 382, 388 (3d Cir. 1986); United States

v. Ojeda Rios, 846 F.2d 167, 169 (2d Cir. 1986).

158. See, e.g., Ojeda Rios, 846 F.2d at 169.

159. 481 U.S. 739, 747 n.4 (1987).

160. United States v. Millan, 4 F.3d 1038, 1044 (2d Cir. 1993), cert. denied, 511 U.S. 1011

(1994).

161. United States v. Gonzales Claudio, 806 F.2d 334, 341 (2d Cir.), cert. dismissed, 479

U.S. 978 (1986).
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30

tor. Though it is a factor in the initial decision to detain, the gravity of

the charges can be a particularly important factor in the determination

of the constitutionality of a lengthy detention. In United States v. ElHage, for example, the court found that the defendant, who was

charged with offenses in connection with terrorist activity, was a “substantial threat to national security interests.”162

A few circuits are more specific regarding how these factors are

considered. The Seventh Circuit has suggested that the defendant cannot make a case that his or her detention is unconstitutional unless he

or she can show that the prosecution, or the court, is unnecessarily

delaying the trial regardless of the length of delay.

163 The Ninth Circuit

does not go this far, but it does focus the due process inquiry on “the

length of confinement in conjunction with the extent to which the

prosecution bears responsibility for the delay.”164 The Fifth Circuit requires that the judicial officer determining a due process challenge

consider the length of detention, the nonspeculative nature of future

detention, the complexity of the case, and whether the strategy of one

side or the other occasions the delay.

165

The Seventh Circuit has noted that the remedy for an excessively

long period of pretrial detention is not dismissal on due process or

double jeopardy grounds. The proper remedy is review of the detention order.

166 After a defendant’s conviction, the claim that pretrial detention violated due process is moot.

167 Of course, a defendant is free

to argue that unlawful pretrial detention prejudiced his or her ability to

defend himself or herself.

168

162. 213 F.3d 74, 80 (2d Cir. 2000). See also United States v. El-Gabrowny, 35 F.3d 63, 64

(2d Cir. 1994) (per curiam); United States v. Orena, 986 F.2d 628 (2d Cir. 1993).

163. United States v. Infelise, 934 F.2d 103, 104 (7th Cir. 1991). “If judge and prosecutor

are doing all they reasonably can be expected to do to move the case along, and the statutory

criteria for pretrial detention are satisfied, then we do not think a defendant should be allowed

to maintain a constitutional challenge to that detention.” Id. at 104.

164. United States v. Gelfuso, 838 F.2d 358, 359 (9th Cir. 1988).

165. United States v. Hare, 873 F.2d 796, 801 (5th Cir. 1989) (remanding because magistrate judge “failed to consider several of these factors”).

166. United States v. Warneke, 199 F.3d 906, 908 (7th Cir. 1999).

167. Murphy v. Hunt, 455 U.S. 478, 481 (1982).

168. United States v. Vachon, 869 F.2d 653, 656 (1st Cir. 1989) (rejecting the argument on

the facts of that case).
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V. Revocation and Modification of Release

A. Revocation for Violation of Release Conditions

If a condition of release is violated, the government may move for a

revocation of the release order.

169 After a hearing, a court may revoke

release if it finds

(1) . . .

(A) probable cause to believe that the person has committed

a . . . crime while on release; or

(B) clear and convincing evidence that the person has violated any

other condition of release; and

(2) . . .

(A) based on the factors set forth in section 3142(g) of this title,

there is no condition or combination of conditions of release

that will assure that the person will not flee or pose a danger to

the safety of any other person or the community; or

(B) the person is unlikely to abide by any condition or combination

of conditions of release.

170

A finding of probable cause171 that the person committed a felony

while on release gives rise to a rebuttable presumption that no release

conditions can ensure the safety of others.

172 Release will be revoked

unless the defendant comes forward with evidence to overcome the

presumption.

173

If the judicial officer finds that some condition or conditions of

release will ensure the defendant’s appearance and the community’s

safety, he or she may amend the conditions in accordance with section

169. 18 U.S.C. § 3148(b).

170. Id.

171. “Probable cause” under section 3148(b)(1)(A) means “that the facts available to the

judicial officer ‘warrant a man of reasonable caution in the belief’ that the defendant has committed a crime while on bail.” United States v. Gotti, 794 F.2d 773, 777 (2d Cir. 1986). Accord

United States v. Aron, 904 F.2d 221, 224 (5th Cir. 1990); United States v. Cook, 880 F.2d 1158,

1160 (10th Cir. 1989).

172. 18 U.S.C. § 3148(b).

173. See United States v. Cook, 880 F.2d 1158, 1160 (10th Cir. 1989) (reversing decision

not to revoke where district court found the rebuttable presumption of dangerousness established and defendant offered no evidence to rebut it).
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32

3142. Where the revocation hearing is precipitated by the defendant’s

arrest on a new charge, and the new charge is itself grounds for a detention hearing, the revocation determination is separate from the detention decision on the new charge.

174

The Second and Fifth Circuits held that section 3148(b)(2) findings

must be supported by a preponderance of the evidence.

175

The Act does not address the nature of a section 3148 hearing or

whether specific findings must be made. However, the Second Circuit

has held that a section 3148 hearing and a section 3142 hearing offer

the same protections.

176 As in section 3142 hearings, the government

may proceed by proffer.

177 The section 3142 protections are discussed

in Part II.

The authorization of sanctions under section 3148 does not preclude sanctions under Federal Rule of Criminal Procedure 46(f). That

provision authorizes the court to order the forfeiture of a bail bond

upon the breach of a condition of release.

178

B. Modification or Revocation Where Defendant Has Not

Violated Release Conditions

Under section 3142(c)(3), a judicial officer “may at any time amend the

order to impose additional or different conditions of release.” This

provision recognizes “the possibility that a changed situation or new

information” may come to the attention of the court.

179

174. See United States v. McKethan, 602 F. Supp. 719, 721–22 (D.D.C. 1985).

175. Aron, 904 F.2d at 224; Gotti, 794 F.2d at 778.

176. United States v. Davis, 845 F.2d 412, 414 (2d Cir. 1988) (remanding a detention

order where defendant had not been permitted to testify and present evidence and the trial

court had not made explicit findings or given its reasons for revocation and detention).

177. United States v. LaFontaine, 210 F.3d 125, 130 (2d Cir. 2000).

178. United States v. Gigante, 85 F.3d 83 (2d Cir. 1996); United States v. Vaccaro, 51 F.3d

189, 191 (9th Cir. 1995).

179. S. Rep. No. 98-225, at 16 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3199.
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33

VI. Review by the District Judge

The district judge may review a magistrate judge’s release order on

motion by the government or the defendant,

180 but only a detainee may

move the district judge to revoke or amend a magistrate judge’s detention order.

181 Only the district court in the prosecuting district may reverse a release or detention order of a magistrate judge in the district of

arrest.

182 Review in the prosecuting district must be before the district

judge, not the magistrate judge.

183

The review is de novo,

184 and the district judge need not defer to

the magistrate judge’s findings or give specific reasons for rejecting

them.

185 The district judge may take additional evidence or conduct a

new evidentiary hearing when appropriate.

186 Following the hearing,

the district judge should explain, on the record, the reasons for his or

her decision.

187

180. 18 U.S.C. § 3145(a)(1), (2).

181. Id. § 3145(b).

182. United States v. Cisneros, 328 F.3d 610, 615 (10th Cir. 2003); United States v. ElEdwy, 272 F.3d 149 (2d Cir. 2001); United States v. Torres, 86 F.3d 1029 (11th Cir. 1996);

United States v. Evans, 62 F.3d 1233 (9th Cir. 1995).

183. See United States v. Vega, 438 F.3d 801, 802 (7th Cir. 2006); Cisneros, 328 F.3d at

615; Evans, 62 F.3d at 1239.

184. United States v. Rueben, 974 F.2d 580, 585 (5th Cir. 1992), cert. denied, 507 U.S. 940

(1993); United States v. Tortora, 922 F.2d 880, 883 n.4 (1st Cir. 1990); United States v. Koenig,

912 F.2d 1190, 1191 (9th Cir. 1990); United States v. Clark, 865 F.2d 1433, 1436 (4th Cir. 1989)

(en banc); United States v. King, 849 F.2d 485, 489–90 (11th Cir. 1988); United States v. Leon,

766 F.2d 77, 80 (2d Cir. 1985); United States v. Delker, 757 F.2d 1390, 1394–95 (3d Cir. 1985);

United States v. Maull, 773 F.2d 1479, 1482 (8th Cir. 1985) (en banc).

185. Koenig, 912 F.2d at 1191–92; Leon, 766 F.2d at 80; Delker, 757 F.2d at 1394–95;

United States v. Medina, 775 F.2d 1398, 1402 (11th Cir. 1985).

186. Koenig, 912 F.2d at 1193; Delker, 757 F.2d at 1393–94; United States v. Fortna, 769

F.2d 243, 250 (5th Cir. 1985) (district judge should consider record plus additional evidence).

The Third Circuit advises district judges to consider whether a transcript of the proceedings

before the magistrate judge will help determine if more evidence is needed. Delker, 757 F.2d at

1395 n.3. The Eighth Circuit has held that the district judge should have a full de novo evidentiary hearing if either side requests one. United States v. Maull, 773 F.2d 1479, 1481–82 (8th

Cir. 1985) (en banc).

187. The Eleventh Circuit’s rule is that the district judge may, after independent review,

adopt the magistrate judge’s pretrial detention order. The explicit adoption of that order eliminates the need for the district judge to prepare separate written findings of fact and a statement

of reasons. United States v. King, 849 F.2d 485, 490 (11th Cir. 1988).
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34

Review of a detention or release order shall “be determined

promptly.”188 The statute does not define “promptly” or set forth a

remedy for review that is not prompt. The Supreme Court has said that

release is generally not the appropriate remedy for an untimely initial

hearing.

189 The First Circuit held that, where the district judge “was

attentive to the need for promptness, but unable to accommodate [the

review] because of judicial travel commitments,” delay was excusable.

190 The Ninth Circuit held that a thirty-day delay violates the requirement and that conditional release is an appropriate remedy.

191

However, in a subsequent case, the Ninth Circuit limited this holding

to cases where detention is based on risk of flight. The court held that

where the detention is based on danger to the community, release is

not a proper remedy.

192 The Fifth Circuit agrees.193 The Fourth Circuit

has said that automatic release is not an appropriate remedy for any

violation of the Act.

194

VII. Review by the Court of Appeals

The defendant and the government may directly appeal a trial court’s

release order, and the defendant may appeal a detention order, without

188. 18 U.S.C. § 3145(a), (b).

189. United States v. Montalvo-Murillo, 495 U.S. 711, 716–17 (1990), discussed supra text

accompanying notes 66–70.

190. United States v. Palmer-Contreras, 835 F.2d 15, 19 (1st Cir. 1987) (stating further,

“in the unique circumstances of this case, . . . the judge’s attendance at the judicial conference

constituted good cause for delay”).

191. United States v. Fernandez-Alfonso, 813 F.2d 1571, 1572 (9th Cir. 1987).

192. United States v. Gonzales, 852 F.2d 1214, 1215 (9th Cir. 1988). Because defendant

sought only conditional release, the court left open the question “whether there are other

remedies for a district court’s failure to determine promptly a motion for revocation of a detention order when the defendant poses a danger to the community.”

193. United States v. Barker, 876 F.2d 475, 476 (5th Cir. 1989).

194. United States v. Clark, 865 F.2d 1433, 1436 (4th Cir. 1989) (en banc) (“in cases

where the requirements of the Bail Reform Act are not properly met, automatic release is not

the appropriate remedy”).
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35

first seeking reconsideration in the trial court. Such appeals are to be

determined promptly.

195

The courts of appeals differ on the standard for reviewing trial

court determinations under the Bail Reform Act. Though the articulation of the standards varies from circuit to circuit, the various statements of those standards may be summarized into three approaches.

The Second, Fourth, and Fifth Circuits are the most deferential to the

determinations of the district courts. The Second Circuit has indicated

that it will examine the district courts’ determinations for “clear error.”196 This deference is applicable to the courts’ overall determination as well as specific factual determinations.

197 The Fourth Circuit’s

“clearly erroneous” standard is similar.

198 The Fifth Circuit will affirm

the district court’s determination “if it is supported by the proceedings

below.”199

The First and Third Circuits take an intermediate approach. The

First undertakes an independent review, but with some deference to the

determinations made by the district court. This level of scrutiny is

“more rigorous than the abuse-of-discretion or clear-error standards,

but stopping short of plenary or de novo review.”200 The First Circuit

emphasizes that the scope of review is less deferential if the district

court does not provide detailed reasons for its decision.

201 The court of

appeals is free to consider material not presented in the district

195. 18 U.S.C. § 3145(c). Section 3145(c) incorporates by reference the provisions of 18

U.S.C. § 3731 (“Appeal by the United States:” government may appeal a decision granting the

release of a defendant or denying a motion for revocation or modification of release) and 28

U.S.C. § 1291. Such appeals are governed by Rule 9 of the Federal Rules of Appellate Procedure.

196. United States v. Ferranti, 66 F.3d 540, 542 (2d Cir. 1995). See also United States v.

Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985). If a district court’s findings raise constitutional

issues, they are reviewed de novo. United States v. Millan, 4 F.3d 1038, 1043 (2d Cir. 1993).

197. United States v. Berrios-Berrios, 791 F.2d 246, 247 (2d Cir. 1986).

198. United States v. Clark, 865 F.2d 1433, 1437 (4th Cir. 1989) (en banc).

199. United States v. Aron, 904 F.2d 221, 223 (5th Cir. 1990) (quoting United States v.

Barker, 876 F.2d 475, 476 (5th Cir. 1989)). The Fifth Circuit has also equated its “narrow standard of review . . . to the abuse of discretion standard.” United States v. Araneda, 899 F.2d 368,

370 (5th Cir. 1990) (quoting United States v. Jackson, 845 F.2d 1262, 1263 (5th Cir. 1988)).

200. United States v. Tortora, 922 F.2d 880, 883 (1st Cir. 1990).

201. Id.
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36

court.

202 Similarly, the Third Circuit undertakes an independent review

while giving “respectful consideration” to the lower court’s determination.

203

The Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits are

the least deferential to the district courts’ determinations. They review

de novo the district court’s ultimate determination (although they defer

to particular findings of fact).

204

VIII. Release or Detention Pending Sentence

Section 3143(a) governs the release or detention of defendants “found

guilty” and awaiting imposition or execution of a sentence of imprisonment. Neither section 3143(a) nor any other provision covers situations in which the Sentencing Guidelines do not recommend a term of

imprisonment.

205 All convicted defendants, except those convicted of

crimes of violence, offenses with a maximum sentence of life imprisonment or death, or certain drug-related offenses carrying a maximum

term of ten years or more, must be 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 other person or the community if released.

206 For release to be in order, then, the judicial officer

must find both nonlikelihood of flight and nondangerousness.

207 Release is made in accordance with section 3142.

202. Fed. R. App. P. 9(a); United States v. Patriarca, 948 F.2d 789, 795 n.6 (1st Cir. 1991);

Tortora, 922 F.2d at 883; United States v. O’Brien, 895 F.2d 810, 814 (1st Cir. 1990).

203. See United States v. Delker, 757 F.2d 1390, 1399 (3d Cir. 1985); United States v.

Traitz, 807 F.2d 322, 325 (3d Cir. 1986).

204. See, e.g., United States v. Cantu, 935 F.2d 950, 951 (8th Cir. 1991); United States v.

Townsend, 897 F.2d 989, 994 (9th Cir. 1990); United States v. Montalvo-Murillo, 876 F.2d 826,

830 (10th Cir. 1989), rev’d on other grounds, 495 U.S. 711 (1990); United States v. Portes, 786

F.2d 758, 762 (7th Cir. 1985); United States v. Hurtado, 779 F.2d 1467, 1472 (11th Cir. 1985);

United States v. Hazime, 762 F.2d 34, 37 (6th Cir. 1985).

205. In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the

Sentencing Guidelines are advisory. Judges must therefore consult the Guidelines, but are not

bound by them.

206. 18 U.S.C. § 3143(a)(1).

207. See United States v. Manso-Portes, 838 F.2d 889, 889–90 (7th Cir. 1987).
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37

Generally, defendants convicted of crimes of violence, offenses

with a maximum sentence of life imprisonment or death, or drugrelated offenses carrying a maximum term of ten or more years—

crimes listed in sections 3142(f)(1)(A), (B), and (C)—must be detained

unless the judicial officer finds (1) “a substantial likelihood that a motion for acquittal or new trial will be granted,” or the government recommends that imprisonment not be imposed; and (2) “by clear and

convincing evidence that the person is not likely to flee or pose a danger to any other person or the community.”208

The Fifth and Tenth Circuits held that defendants detained under

section 3143(a)(2) may be released if the findings of section 3143(a)(1)

on flight and danger are met; and there are “exceptional reasons,” under the provision of section 3145(c), as to why the defendant should be

released.

209

The Sixth Circuit found it error to release a convicted defendant

without holding a hearing simply because the court believed that he

was not dangerous; the government was entitled to an opportunity to

respond to the defendant’s evidence and offer its own.

210 The Seventh

Circuit has gone further and interpreted section 3143 as establishing a

rebuttable presumption of dangerousness, maintaining that the “clear

and convincing” standard cannot be met if the defendant offers no evidence, even if the court does not believe the defendant is dangerous.

211

The Second and Sixth Circuits have criticized district courts that

relied too much on a defendant’s demeanor or the opinions of family

members concerning risk of flight or dangerousness.

212

As with pretrial detention, dangerousness under section 3143 is not

limited to physical danger.

213

208. 18 U.S.C. § 3143(a)(2).

209. United States v. Jones, 979 F.2d 804, 806 (10th Cir. 1992) (per curiam); United States

v. Carr, 947 F.2d 1239, 1240 (5th Cir. 1992) (per curiam) (holding 18 U.S.C. § 3145(c) applies).

210. United States v. Vance, 851 F.2d 166, 168 (6th Cir.), cert. denied, 488 U.S. 893 (1988).

211. Manso-Portes, 838 F.2d at 890.

212. United States v. London-Villa, 898 F.2d 328, 330 (2d Cir. 1990); Vance, 851 F.2d at

168. See supra note 36, concerning same point in connection with initial detention decision.

213. The legislative history specifically mentions drug trafficking as a danger to the community. See S. Rep. No. 98-225, at 12–13 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3195–

96. See also Manso-Portes, 838 F.2d at 890 (holding section 3143 applies to drug offenders).
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38

The Second Circuit held that, for the purposes of section 3143(a), a

defendant is “found guilty” the moment a jury returns a guilty verdict,

even before the court has entered judgment.

214 Once the defendant has

filed an appeal, release under this section is no longer appropriate and

section 3143(b) applies.

Legislative history suggests that section 3143(a) covers those awaiting “execution” of a sentence in order to make clear that a person may

be released for a short period after sentencing “for such matters as getting his affairs in order prior to surrendering for service of sentence.”215

The Seventh Circuit held that release pursuant to section 3143(a) is

improper if the defendant awaits resentencing not because of an

infirmity in the original sentence, but because the vacation of a concurrent sentence might lead the sentencing judge to reconsider a sentence not vacated.

216

IX. Release or Detention Pending Appeal

A. Release Requirements

A defendant who has been sentenced for a crime not listed in section

3142(f)(1)(A), (B), or (C)—crimes of violence, offenses carrying a

maximum sentence of life imprisonment or death, or drug offenses

carrying a maximum sentence of ten years or more—and who is pursuing an appeal or a petition for certiorari

217 must be detained unless the

judicial officer finds that the defendant is not likely to flee or pose a

danger to the community and “that the appeal is not for the purpose of

delay and raises a substantial question of law or fact likely to result in”

214. United States v. Bloomer, 967 F.2d 761, 763 (2d Cir. 1992).

215. S. Rep. No. 98-225, at 26 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3209.

216. United States v. Holzer, 848 F.2d 822, 824 (7th Cir.), cert. denied, 488 U.S. 928

(1988).

217. In United States v. Snyder, 946 F.2d 1125, 1126 (5th Cir. 1991), the Fifth Circuit held

that the district court, court of appeals, and Supreme Court have concurrent jurisdiction to

decide whether to release a defendant on bail while a petition for certiorari is pending.
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39

reversal, a new trial, or a sentence of no imprisonment or imprisonment less than the time already served.

218

If a defendant is appealing conviction for a crime that is listed in

subsection (A), (B), or (C), detention is mandatory219 unless the judicial officer finds no risk of flight or danger and a “substantial question”

and finds that “there are exceptional reasons why such person’s detention would not be appropriate.”220

If the government is appealing a sentence of imprisonment, but the

defendant is not, the defendant shall be detained during the appeal.

221

If release is based on a likelihood of reversal, the court must find a

likelihood of reversal on all counts for which imprisonment was imposed.

222

The burden is on the defendant to show that the criteria for release

are met.

223 Section 3143(b)(1)(A) explicitly states that nonlikelihood of

fleeing and nondangerousness must be established by clear and convincing evidence.

224 It does not address the standards for determining

that the appeal is not for the purpose of delay and that the appeal

raises a substantial question pursuant to section 3143(b)(1)(B). The

218. 18 U.S.C. § 3143(b)(1)(B).

219. Id. § 3143(b)(2).

220. Id. § 3145(c). See also United States v. Herrera-Soto, 961 F.2d 645, 646 (7th Cir.

1992) (section 3145(c) not limited to appeals of detention orders); United States v. DiSomma,

951 F.2d 494, 496 (2d Cir. 1991) (same).

221. 18 U.S.C. § 3143(c).

222. Morison v. United States, 486 U.S. 1306 (1987) (denying application for release because, although defendant raised substantial question with respect to his conviction on one

count, he did not do so with respect to all counts for which imprisonment was imposed).

223. United States v. Montoya, 908 F.2d 450, 451 (9th Cir. 1990); United States v. Smith,

793 F.2d 85, 87–88 (3d Cir. 1986), cert. denied, 479 U.S. 1031 (1987); United States v. Randell,

761 F.2d 122, 125 (2d Cir.), cert. denied, 474 U.S. 1008 (1985); United States v. Miller, 753 F.2d

19, 24 (3d Cir. 1985); United States v. Crabtree, 754 F.2d 1200, 1201 (5th Cir.), cert. denied, 473

U.S. 905 (1985); United States v. Valera-Elizondo, 761 F.2d 1020, 1025 (5th Cir. 1985); United

States v. Bilanzich, 771 F.2d 292, 298 (7th Cir. 1985); United States v. Powell, 761 F.2d 1227,

1232 (8th Cir. 1985) (en banc) (burden of showing merit of appeal); United States v. Handy,

761 F.2d 1279, 1283 (9th Cir. 1985); United States v. Affleck, 765 F.2d 944, 953 (10th Cir. 1985)

(en banc); United States v. Giancola, 754 F.2d 898, 900–01 (11th Cir. 1985) (per curiam).

224. 18 U.S.C. § 3143(b)(1)(A).
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40

Tenth Circuit, the only circuit to address this question, held that the

“preponderance of evidence” standard applies.

225

The district court must state on the record its reasons for denying

release pending appeal.

226 The statement of reasons may be made either through written findings or through a transcript of an oral statement.

227 Noting the injustice of a defendant’s prevailing on appeal only

after serving most of a sentence, the Seventh Circuit urges district

courts to “stat[e] in detail their reasons for denying a petition for release pending appeal, especially in a case . . . in which the defendants

posed no danger to the community and apparently negligible threat of

flight.”228

Section 3143(b) applies only to a defendant “who has filed an appeal or a petition for a writ of certiorari.”229 It does not apply to defendants seeking post-conviction relief.

230 Thus, the D.C. Circuit held that

release is not available pending appeal of the denial of a motion for a

new trial made pursuant to Federal Rule of Criminal Procedure 33.

231

When a defendant is awaiting resentencing after an original sentence has been vacated, and the defendant has filed a petition for certiorari, the Seventh Circuit has held that section 3143(b) and not

3143(a) controls release. The court cautioned that “[a]n imprisoned

person is not to be released pending further proceedings if it is a cer225. Affleck, 765 F.2d at 953 n.15. See also United States v. Galanis, 695 F. Supp. 1565,

1566 (S.D.N.Y. 1988) (stating “defendant must show by a preponderance of the evidence, that

his ‘appeal is not for purpose of delay and it raises a substantial question of law or fact likely to

result in reversal or an order for a new trial’”) (quoting 18 U.S.C. § 3143(b)(2), which has since

been renumbered as section 3143(b)(1)(B) pursuant to amendment in 1990); United States v.

Delanoy, 867 F. Supp. 114, 116 (N.D.N.Y. 1994) (stating section 3143(b)(1)(B) “must be analyzed under a preponderance of the evidence standard”).

226. Fed. R. App. P. 9(b); United States v. Wheeler, 795 F.2d 839, 840–41 (9th Cir. 1986)

(remanding for statement of reasons).

227. Wheeler, 795 F.2d at 841.

228. United States v. Harris, 942 F.2d 1125, 1135 n.7 (7th Cir. 1991). The court also urged

counsel who believe their clients’ petition for release should have been granted to renew the

petition in their appellate briefs.

229. 18 U.S.C. § 3143(b).

230. Cherek v. United States, 767 F.2d 335, 337 (7th Cir. 1985).

231. United States v. Kelly, 790 F.2d 130, 139 (D.C. Cir. 1986).
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41

tainty that however those proceedings are resolved, he will have to be

returned to prison.”232

B. Definitions of “Substantial Question” and “Likely”233

The definition of “substantial question of law or fact” varies slightly

among the circuits. Most circuits define it as “a ‘close’ question or one

that very well could be decided the other way.”234 The Ninth Circuit

declined to endorse the “close” question standard, holding instead that

the question must be “fairly debatable.”235 The Third Circuit has indicated its preference for the “fairly debatable” criterion.

236

The requirement that the substantial question be “likely” to result

in reversal, a new trial, or a sentence without imprisonment is not as

straightforward as it may seem. The Third Circuit rejected the literal

232. United States v. Krilich, 178 F.3d 859, 926 (7th Cir. 1999). See also United States v.

Lagiglio, 384 F.3d 925 (7th Cir. 2004), where, in a decision after the Seventh Circuit decision in

United States v. Booker, 375 F.3d 508 (7th Cir. 2004), but before that decision was affirmed, 543

U.S. 220 (2005), the court remanded the issue of resentencing to the district court to determine, under section 3143(b), whether it was likely that a new sentence would already be served

by the time the appeal was resolved.

233. Although the likelihood of prevailing on appeal is, by the terms of the statute, applicable only to determinations of release pending appeal, not determinations of release pending

sentencing, the First Circuit has held that in the latter context it may be relevant to the issue of

likelihood of flight. United States v. Castiello, 878 F.2d 554, 555 (1st Cir. 1989) (per curiam).

234. United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985) (per curiam); United

States v. Eaken, 995 F.2d 740, 741 (7th Cir. 1993); United States v. Steinhorn, 927 F.2d 195, 196

(4th Cir. 1991); United States v. Perholtz, 836 F.2d 554, 555 (D.C. Cir. 1987) (per curiam), cert.

denied, 488 U.S. 923 (1988); United States v. Bayko, 774 F.2d 516, 523 (1st Cir. 1985); United

States v. Affleck, 765 F.2d 944, 952 (10th Cir. 1985) (en banc); United States v. Randell, 761

F.2d 122, 125 (2d Cir.), cert. denied, 474 U.S. 1008 (1985); United States v. Valera-Elizondo,

761 F.2d 1020, 1024 (5th Cir. 1985); United States v. Pollard, 778 F.2d 1177, 1182 (6th Cir.

1985); United States v. Powell, 761 F.2d 1227, 1231 (8th Cir. 1985) (en banc).

235. United States v. Handy, 761 F.2d 1279, 1281–83 (9th Cir. 1985). In a subsequent

case, the Ninth Circuit held that the defendant must do more than identify the argument he or

she intends to make in support of an appeal; the defendant must explain the basis for that argument and give at least some indication of why the argument is likely to prevail. United States

v. Montoya, 908 F.2d 450, 450–51 (9th Cir. 1990).

236. United States v. Smith, 793 F.2d 85, 89–90 (3d Cir. 1986), cert. denied, 479 U.S. 1031

(1987). An earlier Third Circuit case, United States v. Miller, 753 F.2d 19, 23 (3d Cir. 1985),

defined a “substantial question” as “one which is . . . novel, which has not been decided by

controlling precedent, or which is fairly doubtful.” In Smith, 793 F.2d at 87–89, the court

stressed that the question must also be “significant.”
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42

interpretation, which implies that a court should grant bail pending

appeal only if it finds its own rulings likely to be reversed,

237 and held

that the “likely” requirement is met as long as the substantial “question

is so integral to the merits of the conviction on which defendant is to

be imprisoned that a contrary appellate holding is likely to require reversal of the conviction.”238 If the alleged error would be deemed

harmless error, or was not adequately preserved for appeal, it does not

meet this requirement.

239 Several courts have adopted the Third Circuit’s approach.

240 Other courts have held that a determination that the

defendant’s appeal is “likely” to result in reversal, a new trial, or a sentence without imprisonment means this result is “more probable than

not.”241 The Seventh Circuit specifies that “§ 3143(b) ‘requires an

affirmative finding that the chance for reversal is substantial. . . . [A]

conviction is presumed to be correct.’”242

C. “Exceptional Reasons”

Defendants convicted of certain crimes, or crimes carrying certain sentences, must be detained absent “exceptional reasons” why their detention is inappropriate.

243 The Second Circuit has noted that because the

“legislative history on the issue [of what constitutes exceptional reasons] is sparse and uninformative,” a “case by case evaluation is essential” with broad discretion given to the trial judge.

244 The court defined

237. Miller, 753 F.2d at 23.

238. Id.

239. Id.

240. United States v. Bayko, 774 F.2d 516, 522 (1st Cir. 1985); United States v. Randell,

761 F.2d 122, 125 (2d Cir.), cert. denied, 474 U.S. 1008 (1985); United States v. Affleck, 765

F.2d 944, 953 (10th Cir. 1985) (en banc); United States v. Giancola, 754 F.2d 898, 900 (11th

Cir. 1985) (per curiam).

241. United States v. Valera-Elizondo, 761 F.2d 1020, 1025 (5th Cir. 1985); United States

v. Pollard, 778 F.2d 1177, 1182 (6th Cir. 1985); United States v. Bilanzich, 771 F.2d 292, 299

(7th Cir. 1985); United States v. Powell, 761 F.2d 1227, 1233 (8th Cir. 1985) (en banc).

242. United States v. Ashman, 964 F.2d 596, 599 (7th Cir. 1992), cert. denied sub nom.

Barcal v. United States, 510 U.S. 814 (1993) (quoting United States v. Bilanzich, 771 F.2d 292,

298 (7th Cir. 1985)).

243. 18 U.S.C. § 3145(c).

244. United States v. DiSomma, 951 F.2d 494, 497 (2d Cir. 1991). Accord United States v.

Herrera-Soto, 961 F.2d 645, 647 (7th Cir. 1992).
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43

exceptional circumstances as a “unique combination of circumstances

giving rise to situations that are out of the ordinary.”245 The court upheld a district court’s determination that exceptional circumstances

were present where the defendant’s appeal challenged the very element

of the crime that entailed the “violence” justifying detention. In another case, the Second Circuit reversed a district court’s finding that

exceptional circumstances existed because the defendant was employed

full time and was a college student with no prior convictions. The

court found that such circumstances were not exceptional and, citing a

district court case that had collected and discussed a great many of the

cases in this area, noted that “circumstances that are ‘purely personal’

do not typically rise to the level of ‘exceptional’ warranting release.”246

X. Release or Detention of a Material Witness

A material witness is subject to detention if certain conditions, including the inadequacy of preserving the witness’s testimony through deposition, are met.

247 Section 3144 provides that a material witness be

treated in accordance with the provisions of section 3142. According to

one district court, that directive includes a right to appointed counsel if

the witness is unable to retain counsel.

248 The Second Circuit has held

that section 3144 applies to grand jury proceedings.

249

245. DiSomma, 951 F.2d at 497.

246. United States v. Lea, 360 F.3d 401, 403 (2d Cir. 2004) (quoting with approval United

States v. Lippold, 175 F. Supp. 2d 537, 540 (S.D.N.Y. 2001)). See also United States v. Mostrom,

11 F.3d 93 (2d Cir. 1993).

247. 18 U.S.C. § 3144.

248. See In re Class Action Application for Habeas Corpus on Behalf of All Material Witnesses in the W. Dist. of Tex., 612 F. Supp. 940, 942–43 (W.D. Tex. 1985).

249. United States v. Awadallah, 349 F.3d 42, 49 (2d Cir. 2003).
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44

XI. Release or Detention Pending Revocation of

Probation or Supervised Release

The Bail Reform Act does not specifically address the issue of bail

pending hearings on violations of probation and supervised release.

The provisions of section 3143, however, are incorporated by reference. Rule 32.1(a)(1) of the Federal Rules of Criminal Procedure provides that a defendant may be released pursuant to Rule 46(c) pending

a revocation hearing. Rule 46(c), in turn, provides that section 3143

governs eligibility of release pending sentence or pending notice of

appeal. Read together, these provisions stipulate that the standards applicable to release pending sentence are applicable to defendants facing revocation of probation or supervised release.

250

XII. Offense Committed While on Bail

Under 18 U.S.C. § 3147, a person convicted of another offense while

released under the Bail Reform Act shall receive up to a ten-year term

of imprisonment if the offense is a felony and up to one year if a misdemeanor, to run consecutively with the sentence imposed for the

original offense.

251 In a Ninth Circuit case,252 the defendant pled guilty

to several offenses committed while on release and one that was not

committed while on release. The latter carried the longest sentence,

fifty-one months. The sentences were imposed concurrently, totaling

fifty-one months, with a section 3147 enhancement of fourteen months

to run consecutively. The defendant argued that section 3147 enhancements should run consecutively only to sentences for offenses

committed during release on bail. The court disagreed: “The plain

250. United States v. Loya, 23 F.3d 1529 (9th Cir. 1994).

251. In Rodriguez v. United States, 480 U.S. 522 (1987) (per curiam), the Supreme Court

held that this term of imprisonment may be suspended and probation imposed under 18

U.S.C. § 3651. However, the Sentencing Reform Act of 1984 repealed section 3651, and the

Supreme Court decision applies only to offenses committed before Nov. 1, 1987.

252. United States v. Galliano, 977 F.2d 1350 (9th Cir. 1992), cert. denied, 507 U.S. 966

(1993).
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45

language of section 3147(1) requires the enhancement term to run consecutively to any other sentence of imprisonment regardless of when

the underlying offense was committed.”253

The Fifth Circuit clarified that a section 3147 enhancement applies

to the sentence for the new crime committed while on release, not to

the original crime for which the defendant was on release.

254 The Fifth

Circuit also noted that section 3147 applies only to federal offenses

committed while the defendant is on release, not to state offenses.

255

The Fourth and Sixth Circuits have held that a defendant who fails

to appear in violation of the provisions of 18 U.S.C. § 3146 is subject to

an enhancement under section 3147.

256 The Sixth Circuit rejected the

defendant’s argument that such an interpretation of section 3147

amounted to a violation of the Double Jeopardy Clause.

257

Noting section 3142(h)(2)(A)’s requirement that a releasing judge

notify a person of “the penalties for violating a condition of release,

including the penalties for committing an offense while on pretrial release,” the Fourth, Fifth, and Seventh Circuits held that imposition of

an additional sentence pursuant to section 3147 is improper if the defendant was not notified of the possibility of such a penalty when released on bail.

258 The Third, Sixth, and Ninth Circuits disagree, and

have held that section 3147 does not incorporate the notice requirements of section 3142.

259

253. Id. at 1351.

254. United States v. Pace, 955 F.2d 270, 278–79 (5th Cir. 1992).

255. Id.

256. United States v. Fitzgerald, 435 F.3d 484 (4th Cir. 2006); United States v. Benson, 134

F.3d 787 (6th Cir. 1998).

257. Fitzgerald, 435 F.3d at 487.

258. United States v. Onick, 889 F.2d 1425, 1433–34 (5th Cir. 1989); United States v.

DiCaro, 852 F.2d 259, 264–65 (7th Cir. 1988); United States v. Cooper, 827 F.2d 991, 994–95

(4th Cir. 1987).

259. United States v. Kentz, 251 F.3d 835, 840 (9th Cir.), cert. denied, 535 U.S. 933 (2001);

United States v. Lewis, 991 F.2d 322, 323 (6th Cir. 1993); United States v. DiPasquale, 864 F.2d

271, 280–81 (3d Cir. 1988), cert. denied sub nom. Cohen v. United States, 492 U.S. 906 (1989).

The Second Circuit suggested that it would be inclined to agree with the Third and Sixth Circuits but did not have to reach the issue because the defendant had received notice. United

States v. Vasquez, 113 F.3d 383, 390 (2d Cir.), cert. denied sub nom. Peralta v. United States, 522

U.S. 900 (1997).
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46

A number of defendants have protested their enhanced sentences,

arguing that section 3147 establishes an independent offense for which

they cannot be punished absent separate indictment and trial. The

courts have rejected that contention, holding that section 3147 is a sentence-enhancement provision; it does not establish a separate offense.

260

This issue arose anew after the Supreme Court’s decision in Apprendi v. New Jersey.

261 The defendants argued that the pre-Apprendi

characterizations of sentencing factors and elements of the offense were

no longer controlling and that section 3147 establishes a sentencing

enhancement that requires the charging and proof of facts that increase

the sentence above the otherwise applicable maximum. Courts that

have considered this issue, however, have held that the Sentencing

Commission has essentially mooted the argument.

262 Section 2J1.7 of

the Sentencing Guidelines encourages judges to sentence within the

guideline range for the base offense of conviction (accordingly, within

the statutory maximum for the new offense) and to use the section 3147

enhancement only to determine where a sentence should be imposed

within that range. Sentencing in accordance with the Guidelines has

not, therefore, been found to have resulted in an enhancement that

falls within the concerns of Apprendi. Given the reliance courts have

placed on section 2J1.7 of the Guidelines as authority for the enhancement, it may be anticipated that new challenges will arise as a

result of United States v. Booker,

263 which held that the Guidelines are

not binding on the court.

260. United States v. Jackson, 891 F.2d 1151, 1152–53 (5th Cir. 1989), cert. denied, 496

U.S. 939 (1990); DiPasquale, 864 F.2d at 279–80; United States v. Feldhacker, 849 F.2d 293,

298–99 (8th Cir. 1988); United States v. Patterson, 820 F.2d 1524, 1526–27 (9th Cir. 1987).

261. 530 U.S. 466 (2000).

262. United States v. Samuel, 296 F.3d 1169 (D.C. Cir.), cert denied, 537 U.S. 1078 (2002);

United States v. Randall, 287 F.3d 27, 30 (1st Cir.), cert. denied, 537 U.S. 916 (2002). Several

courts have also refused to reverse sentences under section 3147 because the complete sentence

did not exceed the maximum statutory sentence for the base offense. See United States v. Gillon, 348 F.3d 755, 758 (8th Cir. 2003); Kentz, 251 F.3d at 844; United States v. Ellis, 241 F.3d

1096, 1103 (9th Cir. 2001); United States v. Parolin, 239 F.3d 922, 929 (7th Cir.), cert. denied,

533 U.S. 923 (2001).

263. 543 U.S. 220 (2005).
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47

XIII. Sanctions

A. Failure to Appear

Section 3146 specifies the sanctions, including fines, imprisonment,

and forfeiture, for failure to appear in court and failure to surrender

for service of sentence.

264 Under section 3146(c), “uncontrollable circumstances” not caused by the defendant is an affirmative defense,

provided the person appeared or surrendered as soon as the circumstances ceased to exist.

Courts require the failure to appear to be “willful” or “knowing.”265

However, the Tenth Circuit has twice sustained convictions where defendants lacked actual notice of the court proceeding in question.

266 In

one case, the defendant, a fugitive for an extended period, claimed he

did not knowingly fail to appear on the date in question because he

only subsequently learned the date. Finding that failure to appear is a

continuing offense, the court held that the government need not prove

an exact date for the completed offense and that the defendant should

have contacted the court.

267 The Tenth Circuit rejected another defendant’s contention that his failure to appear could not be willful because

he never received notice of the proceeding: the defendant “was a fugitive as soon as he failed to comply with the terms of the supervised release and absented himself. . . . [He] made no attempt to contact his

attorney or the court. . . . Under these circumstances no actual notice

to the defendant was necessary. The notice to his attorney was

sufficient.”268 In a somewhat analogous situation, the Ninth Circuit

held that failure to appear on the date set for trial was a violation even

though the defendant had been given conflicting information about

264. See 18 U.S.C. § 3146(b), (d).

265. See, e.g., United States v. Simmons, 912 F.2d 1215, 1217 (10th Cir. 1990); United

States v. Martinez, 890 F.2d 1088, 1091 (10th Cir. 1989), cert. denied, 494 U.S. 1059 (1990). See

also 18 U.S.C. § 3146(c) (affirmative defenses listed).

266. Simmons, 912 F.2d at 1217; Martinez, 890 F.2d at 1091.

267. Martinez, 890 F.2d at 1091–93.

268. Simmons, 912 F.2d at 1217.
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48

that date because he “engage[d] in a course of conduct designed to

avoid notice of his trial date.”269

The Sixth, Seventh, Eighth, and Eleventh Circuits have rejected the

claim that double jeopardy prohibits prosecution under section 3146

where the failure to appear was already the basis for an enhancement

of the sentence for the original offense.

270

The Sixth and Seventh Circuits held that when a court in one district orders a defendant to appear before a court in another district,

either court has jurisdiction over a prosecution for failure to appear.

271

B. Contempt

In addition to revocation of release, discussed in Part I, contempt proceedings may be initiated against a person who violates a release condition.

272

XIV. Credit Toward Detention

Section 3585(b) of the Sentencing Reform Act gives a defendant credit

toward the term of imprisonment for time spent in official detention

before the commencement of the sentence (1) for the offense for which

the sentence was imposed, or (2) for any other charge for which the

defendant was arrested after he or she committed the offense for which

the sentence was imposed, provided it has not been credited toward

another sentence.

In United States v. Wilson,

273 the Supreme Court resolved a circuit

split, holding that the authority to compute credit belongs to the U.S.

Attorney General, who has delegated that authority to the Bureau of

269. Weaver v. United States, 37 F.3d 1411, 1413 (9th Cir. 1994).

270. United States v. Bolding, 972 F.2d 184, 185 (8th Cir. 1992); United States v. Carey,

943 F.2d 44, 46 (11th Cir. 1991), cert. denied, 112 S. Ct. 1676 (1992); United States v. Mack, 938

F.2d 678, 679–81 (6th Cir. 1991); United States v. Troxell, 887 F.2d 830, 836 (7th Cir. 1989).

271. United States v. Chappell, 854 F.2d 190, 191–93 (7th Cir. 1988), cert. denied, 504 U.S.

927 (1992); United States v. Williams, 788 F.2d 1213, 1214 (6th Cir. 1986).

272. 18 U.S.C. § 3148(a), (c).

273. 503 U.S. 329 (1992).
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49

Prisons.

274 Prisoners may seek administrative review of the computation

of credit and, after exhausting administrative remedies, may pursue

judicial review.

275

Another circuit split was resolved by the Supreme Court in Reno v.

Koray.

276 There, resolving the split in favor of the majority view, the

Court upheld the Bureau of Prison’s policy of not crediting as “official

detention” time spent in community confinement as a condition of

pretrial release. “Official detention” within the meaning of section

3585(b) refers to a court’s order that a defendant be detained and

committed to the custody of the Attorney General for confinement.

Although that case specifically involved halfway house confinement,

the holding clearly covers other restrictive conditions.

In her concurring opinion in Reno, Justice Ginsburg suggested that

due process might require a warning to a defendant that time in a halfway house, or some other restrictive condition, would not result in

credit against an eventual sentence.

277 The Second Circuit, however,

rejected any due process right to such a warning.

278 Nonetheless, the

court noted that judicial officers might wish to volunteer such a warning.

279

Despite the rulings placing credit decisions within the authority of

the Attorney General, a few of the earlier courts of appeals decisions

are worth noting. The Eleventh Circuit, in United States v. Harris,

280

held, in a somewhat unusual factual situation, that time spent in a state

prison can be credited if the defendants can establish that federal law

enforcement officials took the initiative in getting the state to take the

defendants into custody. In that case, a Drug Enforcement Agency

agent asked local officers to obtain and execute a search warrant after

274. Before the Sentencing Reform Act of 1984, the governing statute, 18 U.S.C. § 3568,

explicitly gave the Attorney General this authority. The amended statute deleted this provision

but did not substitute another authority to make that determination. 18 U.S.C. § 3585. In

United States v. Wilson, 503 U.S. 329, 335 (1992), the Supreme Court held that Congress did

not intend to take the initial determination away from the Attorney General.

275. Wilson, 503 U.S. at 335.

276. 515 U.S. 50 (1995).

277. Id. at 65.

278. Cucciniello v. Keller, 137 F.3d 721, 724 (2d Cir. 1998).

279. Id. at 725.

280. 876 F.2d 1502 (11th Cir.), cert. denied, 493 U.S. 969 (1989).
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50

he was unable to find an available federal judicial officer.

281 State officers arrested the defendants after they found contraband during the

search of defendants’ room, and the defendants remained in state custody. Because the time spent in state custody was exclusively the result

of the federal agent’s action, the defendants were entitled to credit

against their eventual federal sentence for the time spent in pretrial detention.

The Fifth and Tenth Circuits have held that any credit for official

detention is applied only to a term of imprisonment, not to a term of

probation.

282

The Second Circuit held that incarceration in civil contempt is not

credited to the defendant’s subsequent term for criminal contempt.

283

281. Id. at 1507.

282. United States v. Dowling, 962 F.2d 390, 393 (5th Cir. 1992); United States v. Temple,

918 F.2d 134, 136 (10th Cir. 1990).

283. Ochoa v. United States, 819 F.2d 366, 369–72 (2d Cir. 1987).
51

For Further Reference

Bruce D. Pringle, Bail and Detention in Federal Criminal Proceedings, 22

Colo. Law. 913 (May 1993)

Jack L. Weinberg, Federal Bail and Detention Handbook (Practising

Law Institute 1998)

11 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal

Practice and Procedure §§ 761–779 (3d ed. 1998)

Jonathan W. Feldman, The Fundamentals of Criminal Pretrial in the

Federal Courts (2006) (forthcoming) (videotape and outline available at http://cwn.fjc.dcn/library/fjc_catalog.nsf)

The Crime Victims’ Rights Act of 2004 and the Federal Courts (Federal

Judicial Center, Oct. 24, 2005) (available at http://www.fjc.gov/

library/fjc_catalog.nsf and http://cwn.fjc.gov)
Blank pages inserted to preserve pagination when printing double-sided copies.
53

Appendix A

The Bail Reform Act of 1984, 18 U.S.C. §§ 3141–3150,

3156

§ 3141. Release and detention authority generally

(a) Pending trial.—A judicial officer authorized to order the arrest of a

person under section 3041 of this title before whom an arrested person

is brought shall order that such person be released or detained, pending judicial proceedings, under this chapter.

(b) Pending sentence or appeal.—A judicial officer of a court of original jurisdiction over an offense, or a judicial officer of a Federal appellate court, shall order that, pending imposition or execution of sentence, or pending appeal of conviction or sentence, a person be released or detained under this chapter.

§ 3142. Release or detention of a defendant pending trial

(a) In general.—Upon the appearance before a judicial officer of a

person charged with an offense, the judicial officer shall issue an order

that, pending trial, the person be—

(1) released on personal recognizance or upon execution of an unsecured appearance bond, under subsection (b) of this section;

(2) released on a condition or combination of conditions under

subsection (c) of this section;

(3) temporarily detained to permit revocation of conditional release, deportation, or exclusion under subsection (d) of this section;

or

(4) detained under subsection (e) of this section.

(b) Release on personal recognizance or unsecured appearance

bond.—The judicial officer shall order the pretrial release of the person on personal recognizance, or upon execution of an unsecured appearance bond in an amount specified by the court, subject to the
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54

condition that the person not commit a Federal, State, or local crime

during the period of release, unless the judicial 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 community.

(c) Release on conditions.—(1) If the judicial officer determines that

the release described in subsection (b) of this section will not reasonably assure the appearance of the person as required or will endanger

the safety of any other person or the community, such judicial officer

shall order the pretrial release of the person—

(A) subject to the condition that the person not commit a Federal, State, or local crime during the period of release; and

(B) subject to the least restrictive further condition, or combination of conditions, that such judicial officer determines will reasonably assure the appearance of the person as required and the

safety of any other person and the community, which may include the condition that the person—

(i) remain in the custody of a designated person, who agrees

to assume supervision and to report any violation of a release

condition to the court, if the designated person is able reasonably to assure the judicial officer that the person will appear

as required and will not pose a danger to the safety of any

other person or the community;

(ii) maintain employment, or, if unemployed, actively seek

employment;

(iii) maintain or commence an educational program;

(iv) abide by specified restrictions on personal associations,

place of abode, or travel;

(v) avoid all contact with an alleged victim of the crime and

with a potential witness who may testify concerning the offense;

(vi) report on a regular basis to a designated law enforcement

agency, pretrial services agency, or other agency;

(vii) comply with a specified curfew;

(viii) refrain from possessing a firearm, destructive device, or

other dangerous weapon;
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55

(ix) refrain from excessive use of alcohol, or any use of a narcotic drug or other controlled substance, as defined in section

102 of the Controlled Substances Act (21 U.S.C. § 802), without

a prescription by a licensed medical practitioner;

(x) undergo available medical, psychological, or psychiatric

treatment, including treatment for drug or alcohol dependency, and remain in a specified institution if required for that

purpose;

(xi) execute an agreement to forfeit upon failing to appear as

required, property of a sufficient unencumbered value, including money, as is reasonably necessary to assure the appearance

of the person as required, and shall provide the court with 

proof of ownership and the value of the property along with information regarding existing encumbrances as the judicial

officer may require;

(xii) execute a bail bond with solvent sureties; who will execute

an agreement to forfeit in such amount as is reasonably necessary to assure appearance of the person as required and shall

provide the court with information regarding the value of the

assets and liabilities of the surety if other than an approved

surety and the nature and extent of encumbrances against the

surety’s property; such surety shall have a net worth which

shall have sufficient unencumbered value to pay the amount of

the bail bond;

(xiii) return to custody for specified hours following release for

employment, schooling, or other limited purposes; and

(xiv) satisfy any other condition that is reasonably necessary to

assure the appearance of the person as required and to assure

the safety of any other person and the community.

(2) The judicial officer may not impose a financial condition that

results in the pretrial detention of the person.

(3) The judicial officer may at any time amend the order to impose

additional or different conditions of release.

(d) Temporary detention to permit revocation of conditional release,

deportation, or exclusion.—If the judicial officer determines that—

(1) such person—
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56

(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; or

(iii) probation or parole for any offense under Federal, State,

or local law; or

(B) 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. § 1101(a)(20)); and

(2) the person may flee or pose a danger to any other person or the

community; such judicial officer shall order the detention of the

person, for a period of not more than ten days, excluding 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 enforcement official, or the appropriate official 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 accordance with the other provisions of this section, notwithstanding the applicability of other provisions of law

governing release pending trial or deportation or exclusion proceedings. If temporary detention is sought under paragraph (1)(B)

of this subsection, the person has the burden of proving to the court

such person’s United States citizenship or lawful admission for permanent residence.

(e) Detention.—If, after a hearing pursuant to the provisions of subsection (f) of this section, the judicial officer finds that no condition or

combination of conditions will reasonably assure the appearance of the

person as required and the safety of any other person and the community, such judicial officer shall order the detention of the person before

trial. In a case described in subsection (f)(1) of this section, a rebuttable presumption arises that no condition or combination of conditions

will reasonably assure the safety of any other person and the community if such judicial officer finds that—
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57

(1) the person has been convicted of a Federal offense that is described in subsection (f)(1) of this section, or of a State or local offense that would have been an offense described in subsection (f)(1)

of this section if a circumstance giving rise to Federal jurisdiction

had existed;

(2) the offense described in paragraph (1) 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.

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 of 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.), or an offense under section

924(c), 956(a), or 2332b of this title, or an offense listed in section

2332b(g)(5)(B) of title 18, the United States Code, for which the maximum term of imprisonment of ten years or more is prescribed or an

offense involving a minor victim under section 1201, 1591, 2241, 2242,

2244(a)(1), 2245, 2251, 2251A, 2252(a)(1), 2252(a)(2), 2252(a)(3),

2252A(a)(1), 2252A(a)(2), 2252A(a)(3), 2252A(a)(4), 2260, 2421, 2422,

2423, or 2425 of this title.

(f) Detention hearing.—The judicial officer shall hold a hearing to

determine whether any condition or combination of conditions set

forth in subsection (c) of this section will reasonably assure the appearance of the person as required and the safety of any other person

and the community—

(1) upon motion of the attorney for the Government, in a case that

involves—
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58

(A) a crime of violence, or an offense listed in section

2332b(g)(5)(B) for which the maximum term of imprisonment of

ten years or more is prescribed;

(B) an offense for which the maximum sentence is life imprisonment or death;

(C) an offense for which a maximum term of 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.), or the Maritime Drug Law

Enforcement Act (46 U.S.C. App. 1901 et seq.); or

(D) any felony if the person has been convicted of two or more

offenses described in subparagraphs (A) through (C) of this paragraph, or two or more State or local offenses that would have

been offenses described in subparagraphs (A) through (C) of this

paragraph if a circumstance giving rise to Federal jurisdiction had

existed, or a combination of such offenses; or

(2) upon motion of the attorney for the Government or upon the

judicial officer’s own motion, in a case that involves—

(A) a serious risk that the person will flee; or

(B) a serious risk that the person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to

threaten, injure, or intimidate, a prospective witness or juror.

The hearing shall be held immediately upon the person’s first appearance before the judicial officer unless that person, or the attorney for

the Government, seeks a continuance. Except for good cause, a continuance on motion of the person may not exceed five days (not including any intermediate Saturday, Sunday, or legal holiday), and a

continuance on motion of the attorney for the Government may not

exceed three days (not including any intermediate Saturday, Sunday, or

legal holiday). During a continuance, the person shall be detained, and

the judicial officer, on motion of the attorney for the Government or

sua sponte, may order that, while in custody, a person who appears to

be a narcotics addict receive a medical examination to determine

whether such person is an addict. At the hearing, such person has the

right to be represented by counsel, and, if financially unable to obtain

adequate representation, to have counsel appointed. The person shall
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59

be afforded an opportunity to testify, to present witnesses, to crossexamine witnesses who appear at the hearing, and to present information by proffer or otherwise. The rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing. 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 person and the community shall be supported by clear and convincing evidence. The person may be detained pending completion of

the hearing. The hearing may be reopened before or after a determination by the judicial officer, at any time before trial if the judicial officer

finds that information exists that was not known to the movant at the

time of the hearing and that has a material bearing on the issue

whether there are conditions of release that will reasonably assure the

appearance of the person as required and the safety of any other person and the community.

(g) Factors to be considered.—The judicial officer shall, in determining whether there are conditions of release that will reasonably assure

the appearance of the person as required and the safety of any other

person and the community, take into account the available information

concerning—

(1) the nature and circumstances of the offense charged, including

whether the offense is a crime of violence, or an offense listed in

section 2332b(g)(5)(B) for which a maximum term of imprisonment

of nineteen years or more is prescribed or involves a narcotic drug;

(2) the weight of the evidence against the person;

(3) the history and characteristics of the person, including—

(A) the person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in

the community, community ties, past conduct, history relating to

drug or alcohol abuse, criminal history, and record concerning

appearance at court proceedings; and

(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending

trial, sentencing, appeal, or completion of sentence for an offense

under Federal, State, or local law; and
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60

(4) the nature and seriousness of the danger to any person or the

community that would be posed by the person’s release. In considering the conditions of release described in subsection (c)(1)(B)(xi)

or (c)(1)(B)(xii) of this section, the judicial officer may upon his

own motion, or shall upon the motion of the Government, conduct

an inquiry into the source of the property to be designated for potential forfeiture or offered as collateral to secure a bond, and shall

decline to accept the designation, or the use as collateral, of property that, because of its source, will not reasonably assure the appearance of the person as required.

(h) Contents of release order.—In a release order issued under subsection (b) or (c) of this section, the judicial officer shall—

(1) include a written statement that sets forth all the conditions to

which the release is subject, in a manner sufficiently clear and

specific to serve as a guide for the person’s conduct; and

(2) advise the person of—

(A) the penalties for violating a condition of release, including

the penalties for committing an offense while on pretrial release;

(B) the consequences of violating a condition of release, including the immediate issuance of a warrant for the person’s arrest;

and

(C) sections 1503 of this title (relating to intimidation of witnesses, jurors, and officers of the court), 1510 (relating to obstruction of criminal investigations), 1512 (tampering with a witness,

victim, or an informant), and 1513 (retaliating against a witness,

victim, or an informant).

(i) Contents of detention order.—In a detention order issued under

subsection (e) of this section, the judicial officer shall—

(1) include written findings of fact and a written statement of the

reasons for the detention;

(2) direct that the person be committed to the custody of the Attorney General for confinement in a corrections facility separate, to the

extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal;

(3) direct that the person be afforded reasonable opportunity for

private consultation with counsel; and
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61

(4) direct that, on order of a court of the United States or on request

of an attorney for the Government, the person in charge of the corrections facility in which the person is confined deliver the person

to a United States marshal for the purpose of an appearance in connection with a court proceeding.

The judicial officer may, by subsequent order, permit the temporary

release of the person, in the custody of a United States marshal or another appropriate person, to the extent that the judicial officer determines such release to be necessary for preparation of the person’s defense or for another compelling reason.

(j) Presumption of innocence.—Nothing in this section shall be construed as modifying or limiting the presumption of innocence.

§ 3143. Release or detention of a defendant pending sentence or appeal

(a) Release or detention pending sentence.—(1) Except as provided in

paragraph (2), the judicial officer shall order that a person who has

been found guilty of an offense and who is awaiting imposition or execution of sentence, other than a person for whom the applicable guideline promulgated pursuant to 28 U.S.C. § 994 does not recommend a

term of imprisonment, be 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 other person or the community if

released under section 3142(b) or (c). If the judicial officer makes such

a finding, such judicial officer shall order the release of the person in

accordance with section 3142(b) or (c).

(2) The judicial officer shall order that a person who has been

found guilty of an offense in a case described in subparagraph (A),

(B), or (C) of subsection (f)(1) of section 3142 and is awaiting imposition or execution of sentence be detained unless—

(A)(i) the judicial officer finds there is a substantial likelihood

that a motion for acquittal or new trial will be granted; or

(ii) an attorney for the Government has recommended that no

sentence of imprisonment be imposed on the person; and

(B) the judicial officer finds by clear and convincing evidence

that the person is not likely to flee or pose a danger to any other

person or the community.
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62

(b) Release or detention pending appeal by the defendant.—(1) Except

as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of

imprisonment, and who has filed an appeal or a petition for a writ of

certiorari, be detained, unless the judicial officer finds—

(A) 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 under section 3142(b) or (c) of this title; and

(B) that the appeal is not for the purpose of delay and raises a

substantial question of law or fact likely to result in—

(i) reversal,

(ii) an order for a new trial,

(iii) a sentence that does not include a term of imprisonment,

or

(iv) a reduced sentence to a term of imprisonment less than

the total of the time already served plus the expected duration

of the appeal process.

If the judicial officer makes such findings, such judicial officer shall

order the release of the person in accordance with section 3142(b) or

(c) of this title, except that in the circumstance described in subparagraph (b)(iv) of this paragraph, the judicial officer shall order the detention terminated at the expiration of the likely reduced sentence.

(2) The judicial officer shall order that a person who has been

found guilty of an offense in a case described in subparagraph (A),

(B), or (C) of subsection (f)(1) of section 3142 and sentenced to a

term of imprisonment, and who has filed an appeal or a petition for

a writ of certiorari, be detained.

(c) Release or detention pending appeal by the government.—The

judicial officer shall treat a defendant in a case in which an appeal has

been taken by the United States under section 3731 of this title, in accordance with section 3142 of this title, unless the defendant is otherwise subject to a release or detention order. Except as provided in subsection (b) of this section, the judicial officer, in a case in which an

appeal has been taken by the United States under section 3742, shall—
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63

(1) if the person has been sentenced to a term of imprisonment, order that person detained; and

(2) in any other circumstance, release or detain the person under

section 3142.

§ 3144. Release or detention of a material witness

If it appears from an affidavit filed by a party that the testimony of a

person is material in a criminal proceeding, and if it is shown that it

may become impracticable to secure the presence of the person by

subpoena, a judicial officer may order the arrest of the person and

treat the person in accordance with the provisions of section 3142 of

this title. No material witness may be detained because of inability to

comply with any condition of release if the testimony of such witness

can adequately be secured by deposition, and if further detention is

not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of

Criminal Procedure.

§ 3145. Review and appeal of a release or detention order

(a) Review of a release order.—If a person is ordered released by a

magistrate, or by a person other than a judge of a court having original

jurisdiction over the offense and other than a Federal appellate court—

(1) the attorney for the Government may file, with the court having

original jurisdiction over the offense, a motion for revocation of the

order or amendment of the conditions of release; and

(2) the person may file, with the court having original jurisdiction

over the offense, a motion for amendment of the conditions of release.

The motion shall be determined promptly.

(b) Review of a detention order.—If a person is ordered detained by a

magistrate, or by a person other than a judge of a court having original

jurisdiction over the offense and other than a Federal appellate court,

the person may file, with the court having original jurisdiction over the

offense, a motion for revocation or amendment of the order. The motion shall be determined promptly.
The Bail Reform Act of 1984

64

(c) Appeal from a release or detention order.—An appeal from a release or detention order, or from a decision denying revocation or

amendment of such an order, is governed by the provisions of section

1291 of title 28 and section 3731 of this title. The appeal shall be determined promptly. A person subject to detention pursuant to section

3143(a)(2) or (b)(2), and who meets the conditions of release set forth 

in section 3143(a)(1) or (b)(1), may be ordered released, under appropriate conditions, by the judicial officer, if it is clearly shown that there

are exceptional reasons why such person’s detention would not be appropriate.

§ 3146. Penalty for failure to appear

(a) Offense.—Whoever, having been released under this chapter

knowingly—

(1) fails to appear before a court as required by the conditions of

release; or

(2) fails to surrender for service of sentence pursuant to a court order; shall be punished as provided in subsection (b) of this section.

(b) Punishment.—(1) The punishment for an offense under this section is—

(A) if the person was released in connection with a charge of, or

while awaiting sentence, surrender for service of sentence, or appeal or certiorari after conviction for—

(i) an offense punishable by death, life imprisonment, or imprisonment for a term of 15 years or more, a fine under this title or imprisonment for not more than ten years, or both;

(ii) an offense punishable by imprisonment for a term of five

years or more, a fine under this title or imprisonment for not

more than five years, or both;

(iii) any other felony, a fine under this title or imprisonment

for not more than two years, or both; or

(iv) a misdemeanor, a fine under this title or imprisonment for

not more than one year, or both; and

(B) if the person was released for appearance as a material witness, a fine under this chapter or imprisonment for not more than

one year, or both.
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65

(2) A term of imprisonment imposed under this section shall be

consecutive to the sentence of imprisonment for any other offense.

(c) Affirmative defense.—It is an affirmative defense to a prosecution

under this section that uncontrollable circumstances prevented the

person from appearing or surrendering, and that the person did not

contribute to the creation of such circumstances in reckless disregard

of the requirement to appear or surrender, and that the person appeared or surrendered as soon as such circumstances ceased to exist.

(d) Declaration of forfeiture.—If a person fails to appear before a

court as required, and the person executed an appearance bond pursuant to section 3142(b) of this title or is subject to the release condition set forth in clause (xi) or (xii) of section 3142(c)(1)(B) of this title,

the judicial officer may, regardless of whether the person has been

charged with an offense under this section, declare any property designated pursuant to that section to be forfeited to the United States.

§ 3147. Penalty for an offense committed while on release

A person convicted of an offense committed while released under this

chapter shall be sentenced, in addition to the sentence prescribed for

the offense to—

(1) a term of imprisonment of not more than ten years if the offense

is a felony; or

(2) a term of imprisonment of not more than one year if the offense

is a misdemeanor.

A term of imprisonment imposed under this section shall be consecutive to any other sentence of imprisonment.

Section applicable to offenses committed prior to November 1, 

1987

This section as in effect prior to amendment by Pub. L. No. 98-473,

read as follows:
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66

§ 3147. Penalty for an offense committed while on release

A person convicted of an offense committed while released under this

chapter shall be sentenced, in addition to the sentence prescribed for

the offense, to—

(1) a term of imprisonment of not less than two years and not more

than ten years if the offense is a felony; or

(2) a term of imprisonment of not less than ninety days and not

more than one year if the offense is a misdemeanor.

A term of imprisonment imposed under this section shall be consecutive to any other sentence of imprisonment.

For applicability of sentencing provisions to offenses, see Effective Date

and Savings Provisions, etc., note, section 235 of Pub. L. No. 98-473, as

amended, set out under section 3551 of this title.

§ 3148. Sanctions for violation of a release condition

(a) Available sanctions.—A person who has been released under section 3142 of this title, and who has violated a condition of his release, is

subject to a revocation of release, an order of detention, and a prosecution for contempt of court.

(b) Revocation of release.—The attorney for the Government may initiate a proceeding for revocation of an order of release by filing a motion with the district court. A judicial officer may issue a warrant for

the arrest of a person charged with violating a condition of release, and

the person shall be brought before a judicial officer in the district in

which such person’s arrest was ordered for a proceeding in accordance

with this section. To the extent practicable, a person charged with violating the condition of release that such person not commit a Federal,

State, or local crime during the period of release, shall be brought before the judicial officer who ordered the release and whose order is

alleged to have been violated. The judicial officer shall enter an order

of revocation and detention if, after a hearing, the judicial officer—

(1) finds that there is—

(A) probable cause to believe that the person has committed a

Federal, State, or local crime while on release; or
The Bail Reform Act of 1984

67

(B) clear and convincing evidence that the person has violated

any other condition of release; and

(2) finds that—

(A) based on the factors set forth in section 3142(g) of this title,

there is no condition or combination of conditions of release that

will assure that the person will not flee or pose a danger to the

safety of any other person or the community; or

(B) the person is unlikely to abide by any condition or combination of conditions of release.

If there is probable cause to believe that, while on release, the person

committed a Federal, State, or local felony, a rebuttable presumption

arises that no condition or combination of conditions will assure that

the person will not pose a danger to the safety of any other person or

the community. If the judicial officer finds that there are conditions of

release that will assure that the person will not flee or pose a danger to

the safety of any other person or the community, and that the person

will abide by such conditions, the judicial officer shall treat the person

in accordance with the provisions of section 3142 of this title and may

amend the conditions of release accordingly.

(c) Prosecution for contempt.—The judicial officer may commence a

prosecution for contempt, under section 401 of this title, if the person

has violated a condition of release.

§ 3149. Surrender of an offender by a surety

A person charged with an offense, who is released upon the execution

of an appearance bond with a surety, may be arrested by the surety,

and if so arrested, shall be delivered promptly to a United States marshal and brought before a judicial officer. The judicial officer shall determine in accordance with the provisions of section 3148(b) whether

to revoke the release of the person, and may absolve the surety of responsibility to pay all or part of the bond in accordance with the provisions of Rule 46 of the Federal Rules of Criminal Procedure. The person so committed shall be held in official detention until released pursuant to this chapter or another provision of law.
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§ 3150. Applicability to a case removed from a State court

The provisions of this chapter apply to a criminal case removed to a

Federal court from a State court.

§ 3156. Definitions

(a) As used in sections 3141–3150 of this chapter—

(1) the term “judicial officer” means, unless otherwise indicated,

any person or court authorized pursuant to section 3041 of this title,

or the Federal Rules of Criminal Procedure, to detain or release a

person before trial or sentencing or pending appeal in a court of the

United States, and any judge of the Superior Court of the District of

Columbia;

(2) the term “offense” means any criminal offense, other than an offense triable by court-martial, military commission, provost court,

or other military tribunal, which is in violation of an Act of Congress and is triable in any court established by Act of Congress;

(3) the term “felony” means an offense punishable by a maximum

term of imprisonment of more than one year; and

(4) the term “crime of violence” means—

(A) an offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another; or

(B) any other offense that is a felony and 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.
69

Appendix B

The Sentencing Reform Act of 1984

Selected Provision: 18 U.S.C. § 3585

§ 3585. Calculation of a term of imprisonment

(a) Commencement of sentence.—A sentence to a term of imprisonment commences on the date the defendant is received in custody

awaiting transportation to, or arrives voluntarily to commence service

of sentence at, the official detention facility at which the sentence is to

be served.

(b) Credit for prior custody.—A defendant shall be given credit toward

the service of a term of imprisonment for any time he has spent in

official detention prior to the date the sentence commences—

(1) as a result of the offense for which the sentence was imposed; or

(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence

was imposed; that has not been credited against another sentence.
Blank pages inserted to preserve pagination when printing double-sided copies.
71

Table of Cases

Apprendi v. New Jersey, 530 U.S. 466 (2000), n.261

Barcal v. United States, 510 F.2d 814 (1993), n.242

Bell v. Wolfish, 441 U.S. 520 (1979), n.28

Cherek v. United States, 767 F.2d 335 (7th Cir. 1985), n.230

Class Action Application for Habeas Corpus on Behalf of All Material Witnesses

in the Western District of Texas, In re, 612 F. Supp. 940 (W.D.Tex. 1985),

n.248

Cohen v. United States, 492 U.S. 906 (1989), nn.259

Cucciniello v. Keller, 137 F.3d 721 (2d Cir. 1998), nn.278–79

Fassler v. United States, 858 F.2d 1016 (5th Cir. 1988), n.98

Kenna v. United States District Court for the Central District of California, 435

F.3d 1011 (9th Cir. 2006), n.150

Montgomery County Fire Board v. Fisher, 454 A.2d 394 (1983), n.94

Morison v. United States, 486 U.S. 1306 (1987), n.222

Murphy v. Hunt, 455 U.S. 478 (1982), n.167

Ochoa v. United States, 819 F.2d 366 (2d Cir. 1987), n.283

Peralta v. United States, 522 U.S. 900 (1997), n.259

Reno v. Koray, 515 U.S. 50 (1995), nn.276–77

Rodriguez v. United States, 480 U.S. 522 (1987), n.251

United States v. Abuhamra, 389 F.3d 309 (2d Cir. 2004), n.129

United States v. Accetturo, 783 F.2d 382 (3d Cir. 1986), nn.38, 119, 120, 125, 126,

130, 139, 157

United States v. Acevedo-Ramos, 755 F.2d 203 (1st Cir. 1985), nn.37, 118, 120,

132

United States v. Affleck, 765 F.2d 944 (10th Cir. 1985), nn.223, 225, 234, 240

United States v. Aitken, 898 F.2d 104 (9th Cir. 1990), n.40

United States v. Al-Azzawy, 768 F.2d 1141 (9th Cir. 1985), nn.63, 73, 77, 109

United States v. Alatishe, 768 F.2d 364 (D.C. Cir. 1985), nn.78, 90, 91, 106–09

United States v. Angiulo, 755 F.2d 969 (1st Cir. 1985), nn.133, 134

United States v. Apker, 964 F.2d 742 (8th Cir. 1992), n.133

United States v. Araneda, 899 F.2d 368 (5th Cir. 1990), nn.76, 199

United States v. Aron, 904 F.2d 221 (5th Cir. 1990), nn.171, 175, 199
The Bail Reform Act of 1984

72

United States v. Ashman, 964 F.2d 596 (7th Cir. 1992), n.242

United States v. Awadallah, 349 F.3d 42 (2d Cir. 2003), n.249

United States v. Barker, 876 F.2d 475 (5th Cir. 1989), nn.193, 199

United States v. Bayko, 774 F.2d 516 (1st Cir. 1985), nn.234, 240

United States v. Becerra-Cobo, 790 F.2d 427 (5th Cir. 1986), nn.107, 108, 109

United States v. Benson, 134 F.3d 787 (6th Cir. 1998), n.256

United States v. Berrios-Berrios, 791 F.2d 246 (2d Cir. 1986), nn.134, 135, 142,

197

United States v. Bilanzich, 771 F.2d 292 (7th Cir. 1985), nn.223, 241, 242

United States v. Blasini-Lluberas, 144 F.3d 881 (1st Cir. 1998), n.17

United States v. Bloomer, 967 F.2d 761 (2d Cir. 1992), n.214

United States v. Bolding, 972 F.2d 184 (8th Cir. 1992), n.270

United States v. Booker, 543 U.S. 220 (2005), nn.205, 232, 263

United States v. Booker, 375 F.3d 508 (7th Cir. 2004), n.232

United States v. Bowers, 432 F.3d 518 (3d Cir. 2005), nn.54, 55

United States v. Brown, 870 F.2d 1354 (7th Cir. 1989), n.5

United States v. Byrd, 969 F.2d 106 (5th Cir. 1992), nn.48, 49

United States v. Cantu, 935 F.2d 950 (8th Cir. 1991), nn.17, 204

United States v. Carbone, 793 F.2d 559 (3d Cir. 1986), n.97

United States v. Cardenas, 784 F.2d 937 (9th Cir. 1986), nn.118, 123, 125, 132

United States v. Carey, 943 F.2d 44 (11th Cir. 1991), n.270

United States v. Carr, 947 F.2d 1239 (5th Cir. 1992), nn.86, 209

United States v. Castiello, 878 F.2d 554 (1st Cir. 1989), n.233

United States v. Chappell, 854 F.2d 190 (7th Cir. 1988), n.271

United States v. Chimurenga, 760 F.2d 400 (2d Cir. 1985), nn.51, 89, 90, 196

United States v. Ciccone, 312 F.3d 535 (2d Cir. 2002), n.52

United States v. Cisneros, 328 F.3d 610 (10th Cir. 2003), nn.182, 183

United States v. Clark, 865 F.2d 1433 (4th Cir. 1989), nn.79, 184, 194, 198

United States v. Coleman, 777 F.2d 888 (3d Cir. 1985), n.17

United States v. Colombo, 777 F.2d 96 (2d Cir. 1985), n.35

United States v. Contreras, 776 F.2d 51 (2d Cir. 1985), n.88

United States v. Cook, 880 F.2d 1158 (10th Cir. 1989), nn.171, 173

United States v. Coonan, 826 F.2d 1180 (2d Cir. 1987), nn.76, 80, 81

United States v. Cooper, 827 F.2d 991 (4th Cir. 1987), n.258

United States v. Crabtree, 754 F.2d 1200 (5th Cir. 1985), n.223

United States v. Daniels, 772 F.2d 382 (7th Cir. 1985), nn.91, 97
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73

United States v. Davis, 845 F.2d 412 (2d Cir. 1988), nn.18, 176

United States v. Dean, 927 F.2d 605 (6th Cir. 1991), n.102

United States v. Degenhardt, 405 F. Supp.2d 1341 (D. Utah 2005), n.150

United States v. Delanoy, 867 F. Supp. 114 (N.D.N.Y. 1994), n.225

United States v. Delker, 757 F.2d 1390 (3d Cir. 1985), nn.60, 114, 118, 121, 125,

184, 185, 186, 203

United States v. Diaz, 777 F.2d 1236 (7th Cir. 1985), n.90

United States v. DiCaro, 852 F.2d 259 (7th Cir. 1988), n.258

United States v. Dillard, 214 F.3d 88 (2d Cir. 2000), n.53

United States v. Dillon, 938 F.2d 1412 (1st Cir. 1991), nn.93, 155

United States v. DiPasquale, 864 F.2d 271 (3d Cir. 1988), nn.259, 260

United States v. DiSomma, 951 F.2d 494 (2d Cir. 1991), nn.220, 244, 245

United States v. Dominguez, 783 F.2d 702 (7th Cir. 1986), nn.71, 88, 90, 93, 96, 97

United States v. Dowling, 962 F.2d 390 (5th Cir. 1992), n.282

United States v. Eaken, 995 F.2d 740 (7th Cir. 1993), n.234

United States v. El-Edwy, 272 F.3d 149 (2d Cir. 2001), n.182

United States v. El-Gabrowny, 35 F.3d 63 (2d Cir. 1994), n.162

United States v. El-Hage, 213 F.3d 74 (2d Cir. 2000), nn.157, 162

United States v. Ellis, 241 F.3d 1096 (9th Cir. 2001), n.262

United States v. Evans, 62 F.3d 1233 (9th Cir. 1995), nn.182, 183

United States v. Feldhacker, 849 F.2d 293 (8th Cir. 1988), n.260

United States v. Fernandez-Alfonso, 813 F.2d 1571 (9th Cir. 1987), n.191

United States v. Ferranti, 66 F.3d 540 (2d Cir. 1995), n.196

United States v. Fitzgerald, 435 F.3d 484 (4th Cir. 2006), nn.256, 257

United States v. Fortna, 769 F.2d 243 (5th Cir. 1985), nn.23, 59, 78, 90, 118, 186

United States v. Frazier, 772 F.2d 1451 (9th Cir. 1985), n.5

United States v. French, 900 F.2d 1300 (8th Cir. 1990), n.5

United States v. Friedman, 837 F.2d 48 (2d Cir. 1988), nn.44, 48

United States v. Galanis, 695 F. Supp. 1565 (S.D.N.Y. 1988), n.225

United States v. Galliano, 977 F.2d 1350 (9th Cir. 1992), nn.252–53

United States v. Gaviria, 828 F.2d 667 (11th Cir. 1987), n.123

United States v. Gebro, 948 F.2d 1118 (9th Cir. 1991), nn.34, 115

United States v. Gelfuso, 838 F.2d 358 (9th Cir. 1988), nn.157, 164

United States v. Giancola, 754 F.2d 898 (11th Cir. 1985), nn.223, 234, 240

United States v. Gigante, 85 F.3d 83 (2d Cir. 1996), n.178

United States v. Gillon, 348 F.3d 755 (8th Cir. 2003), n.262
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74

United States v. Gonzales, 852 F.2d 1214 (9th Cir. 1988), n.192

United States v. Gonzales Claudio, 806 F.2d 334 (2d Cir. 1986), n.161

United States v. Goosens, 84 F.3d 697 (4th Cir. 1996), n.5

United States v. Gotti, 794 F.2d 773 (2d Cir. 1986), nn.171, 175

United States v. Graham, 257 F.3d. 143 (2d Cir. 2001), n.128

United States v. Handy, 761 F.2d 1279 (9th Cir. 1985), nn.223, 235

United States v. Hare, 873 F.2d 796 (5th Cir. 1989), nn.35, 90, 93, 96, 155, 157,

165

United States v. Harris, 942 F.2d 1125 (7th Cir. 1991), n.228

United States v. Harris, 876 F.2d 1502 (11th Cir. 1989), nn.280–81

United States v. Hazime, 762 F.2d 34 (6th Cir. 1985), nn.88, 204

United States v. Herrera-Soto, 961 F.2d 645 (7th Cir. 1992), nn.220, 244

United States v. Himler, 797 F.2d 156 (3d Cir. 1986), nn.43, 48

United States v. Hinote, 789 F.2d 1490 (11th Cir. 1986), n.85

United States v. Holloway, 781 F.2d 124 (8th Cir. 1984), n.58

United States v. Holzer, 848 F.2d 822 (7th Cir. 1988), n.216

United States v. Hurtado, 779 F.2d 1467 (11th Cir. 1985), nn.17, 73, 74, 77, 88, 90,

127, 138, 141, 204

United States v. Infelise, 934 F.2d 103 (7th Cir. 1991), nn.24, 157, 163

United States v. Ingraham, 832 F.2d 229 (1st Cir. 1987), n.103

United States v. Jackson, 845 F.2d 1262 (5th Cir. 1988), nn.88, 199

United States v. Jackson, 823 F.2d 4 (2d Cir. 1987), n.40

United States v. Jackson, 891 F.2d 1151 (5th Cir. 1989), n.260

United States v. Jessup, 757 F.2d 378 (1st Cir. 1985), nn.11, 13, 84, 90, 92, 94, 100

United States v. Johnson, 446 F.3d 272 (2d Cir. 2006), n.8

United States v. Johnson, 399 F.3d 1297 (11th Cir. 2005), n.54

United States v. Jones, 979 F.2d 804, 806 (10th Cir. 1992), n.209

United States v. Kelly, 790 F.2d 130 (D.C. Cir. 1986), n.231

United States v. Kentz, 251 F.3d 835 (9th Cir. 2001), nn.259, 262

United States v. Kills Enemy, 3 F.3d 1201 (8th Cir. 1993), n.6

United States v. King, 849 F.2d 485 (11th Cir. 1988), nn.23, 40, 88, 184, 187

United States v. King, 818 F.2d 112 (1st Cir. 1987), nn.76, 81

United States v. Koenig, 912 F.2d 1190 (9th Cir. 1990), nn.184, 185, 186

United States v. Krilich, 178 F.3d 859 (7th Cir. 1999), n.232

United States v. LaFontaine, 210 F.3d 125 (2d Cir. 2000), n.177

United States v. Lagiglio, 384 F.3d 925 (7th Cir. 2004), n.232

United States v. Lane, 252 F.3d 905 (7th Cir. 2001), n.54
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75

United States v. Lea, 360 F.3d 401 (2d Cir. 2004), n.246

United States v. Lee, 783 F.2d 92 (7th Cir. 1986), nn.107, 110

United States v. Leon, 766 F.2d 77 (2d Cir. 1985), nn.41, 184, 185

United States v. Lewis, 991 F.2d 322 (6th Cir. 1993), n.259

United States v. Lippold, 175 F. Supp. 2d 537 (S.D.N.Y. 2001), n.246

United States v. London-Villa, 898 F.2d 328 (2d Cir. 1990), n.212

United States v. Loya, 23 F.3d 1529 (9th Cir. 1994), n.250

United States v. Mack, 938 F.2d 678 (6th Cir. 1991), n.270

United States v. Madruga, 810 F.2d 1010 (11th Cir. 1987), n.76

United States v. Manso-Portes, 838 F.2d 889 (7th Cir. 1987), nn.207, 211, 213

United States v. Mantecon-Zayas, 949 F.2d 548 (1st Cir. 1991), nn.11, 12, 14

United States v. Marcello, 370 F. Supp. 2d 745 (N.D. Ill. 2005), n.150

United States v. Martin-Trigona, 767 F.2d 35 (2d Cir. 1985), n.137

United States v. Martinez, 890 F.2d 1088 (10th Cir. 1989), nn.265–67

United States v. Martir, 782 F.2d 1141 (2d Cir. 1986), nn.90, 93, 123

United States v. Maull, 773 F.2d 1479 (8th Cir. 1985), nn.60, 115, 184, 186

United States v. McConnell, 842 F.2d 105 (5th Cir. 1988), nn.11, 14, 40

United States v. McKethan, 602 F. Supp. 719 (D.D.C. 1985), n.174

United States v. Medina, 775 F.2d 1398 (11th Cir. 1985), nn.114, 185

United States v. Melendez-Carrion, 790 F.2d 984 (2d Cir. 1986), nn.71, 75, 140

United States v. Millan, 4 F.3d 1038 (2d Cir. 1993), nn.160, 196

United States v. Miller, 753 F.2d 19 (3d Cir. 1985), nn.223, 236–39

United States v. Molinaro, 876 F.2d 1432 (9th Cir. 1989), n.63

United States v. Moncada-Pelaez, 810 F.2d 1008 (11th Cir. 1987), n.107

United States v. Montalvo-Murillo, 495 U.S. 711 (1990), nn.62, 63, 66–70, 189,

204

United States v. Montalvo-Murillo, 713 F. Supp. 1407 (D.N.M. 1989), n.64

United States v. Montalvo-Murillo, 876 F.2d 826 (10th Cir. 1989), nn.65, 204

United States v. Montoya, 908 F.2d 450 (9th Cir. 1990), nn.223, 235

United States v. Moss, 887 F.2d 333 (1st Cir. 1989), nn.86, 87, 90

United States v. Mostrom, 11 F.3d 93 (2d Cir. 1993), n.246

United States v. Motamedi, 767 F.2d 1403 (9th Cir. 1985), n.34

United States v. Nebbia, 357 F.2d 303 (2d Cir. 1966), n.15

United States v. O’Brien, 895 F.2d 810 (1st Cir. 1990), nn.15, 202

United States v. O’Shaughnessy, 764 F.2d 1035 (5th Cir. 1985), nn.59, 63

United States v. Ojeda Rios, 846 F.2d 167 (2d Cir. 1986), nn.157, 158
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United States v. Onick, 889 F.2d 1425 (5th Cir. 1989), nn.21, 258

United States v. Orena, 986 F.2d 628 (2d Cir. 1993), n.162

United States v. Orta, 760 F.2d 887 (8th Cir. 1985), nn.27, 40, 90

United States v. Pace, 955 F.2d 270 (5th Cir. 1992), nn.254–55

United States v. Palmer-Contreras, 835 F.2d 15 (1st Cir. 1987), nn.95, 190

United States v. Parker, 848 F.2d 61 (5th Cir. 1988), n.103

United States v. Parolin, 239 F.3d 922 (7th Cir. 2001), n.262

United States v. Patriarca, 948 F.2d 789 (1st Cir. 1991), nn.9, 40, 202

United States v. Patterson, 820 F.2d 1524 (9th Cir. 1987), n.260

United States v. Payden, 759 F.2d 202 (2d Cir. 1985), nn.57, 63

United States v. Peralta, 849 F.2d 625 (D.C. Cir. 1988), nn.18, 154

United States v. Perholtz, 836 F.2d 554 (D.C. Cir. 1987), n.234

United States v. Perry, 788 F.2d 100 (3d Cir. 1986), nn.41, 90, 91, 101, 131

United States v. Ploof, 851 F.2d 7 (1st Cir. 1988), n.48

United States v. Pollard, 778 F.2d 1177 (6th Cir. 1985), nn.234, 241

United States v. Portes, 786 F.2d 758 (7th Cir. 1985), nn.40, 90, 204

United States v. Powell, 761 F.2d 1227 (8th Cir. 1985), nn.223, 234, 241

United States v. Quartermaine, 913 F.2d 910 (11th Cir. 1990), nn.35, 45, 48

United States v. Quinnones, 610 F. Supp. 74 (S.D.N.Y. 1985), n.141

United States v. Ramirez, 843 F.2d 256 (7th Cir. 1988), n.23

United States v. Randall, 287 F.3d 27 (1st Cir. 2002), n.262

United States v. Randell, 761 F.2d 122 (2d Cir. 1985), nn.223, 234, 240

United States v. Reynolds, 956 F.2d 192 (9th Cir. 1992), n.42

United States v. Rodriguez, 950 F.2d 85 (2d Cir. 1991), nn.45, 48

United States v. Rogers, 371 F.3d 1225 (10th Cir. 2004), nn.53, 55

United States v. Rose, 791 F.2d 1477 (11th Cir. 1986), n.5

United States v. Rueben, 974 F.2d 580 (5th Cir. 1992), nn.96, 184

United States v. Salerno, 481 U.S. 739 (1987), nn.26, 29, 30, 156, 159

United States v. Salerno, 794 F.2d 64 (2d Cir. 1986), n.136

United States v. Samuel, 296 F.3d 1169 (D.C. Cir. 2002), n.262

United States v. Sazenski, 806 F.2d 846 (8th Cir. 1986), n.23

United States v. Scott, 450 F.3d 863 (9th Cir. 2006), n.6

United States v. Shakur, 817 F.2d 189 (2d Cir. 1987), nn.36, 104

United States v. Simmons, 912 F.2d 1215 (10th Cir. 1990), nn.265–66, 268

United States v. Singleton, 182 F.3d 7 (D.C. Cir. 1999), nn.54, 55

United States v. Smith, 793 F.2d 85 (3d Cir. 1986), nn.223, 236
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United States v. Snyder, 946 F.2d 1125 (5th Cir. 1991), n.217

United States v. Spilotro, 786 F.2d 808 (8th Cir. 1986), n.9

United States v. Steinhorn, 927 F.2d 195 (4th Cir. 1991), n.234

United States v. Stricklin, 932 F.2d 1353 (10th Cir. 1991), n.88

United States v. Suppa, 799 F.2d 115 (3d Cir. 1986), nn.88, 124

United States v. Swanquist, 125 F.3d 573 (7th Cir. 1997), n.17

United States v. Szott, 768 F.2d 159 (7th Cir. 1985), nn.10, 14

United States v. Temple, 918 F.2d 134 (10th Cir. 1990), n.282

United States v. Torres, 86 F.3d 1029 (11th Cir. 1996), n.182

United States v. Torres, 929 F.2d 291 (7th Cir. 1991), nn.26, 33, 122

United States v. Tortora, 922 F.2d 880 (1st Cir. 1990), nn.9, 17, 19, 25, 157, 184,

200, 201, 202

United States v. Townsend, 897 F.2d 989 (9th Cir. 1990), nn.26, 204

United States v. Traitz, 807 F.2d 322 (3d Cir. 1986), n.203

United States v. Trosper, 809 F.2d 1107 (5th Cir. 1987), n.99

United States v. Troxell, 887 F.2d 830 (7th Cir. 1989), n.270

United States v. Turner, 367 F. Supp. 2d 319 (E.D.N.Y. 2005), nn.146, 150

United States v. Vaccaro, 51 F.3d 189 (9th Cir. 1995), n.178

United States v. Vachon, 869 F.2d 653 (1st Cir. 1989), n.168

United States v. Valenzuela-Verdigo, 815 F.2d 1011 (5th Cir. 1987), n.71

United States v. Valera-Elizondo, 761 F.2d 1020 (5th Cir. 1985), nn.223, 234, 241

United States v. Vance, 851 F.2d 166 (6th Cir. 1988), nn.210, 212

United States v. Vargas, 925 F.2d 1260 (10th Cir. 1991), n.5

United States v. Vargas, 804 F.2d 157 (1st Cir. 1986), nn.88, 107, 111–13

United States v. Vasquez, 113 F.3d 383 (2d Cir. 1977), n.259

United States v. Vega, 483 F.3d. 801 (7th Cir. 2006), n.183

United States v. Volksen, 766 F.2d 190 (5th Cir. 1985), n.46

United States v. Vortis, 785 F.2d 327 (D.C. Cir. 1986), nn.38, 40, 141

United States v. Warneke, 199 F.3d 906 (7th Cir. 1999), n.166

United States v. Welsand, 993 F.2d 1366 (8th Cir. 1993), n.7

United States v. Westbrook, 780 F.2d 1185 (5th Cir. 1986), n.141

United States v. Wheeler, 795 F.2d 839 (9th Cir. 1986), nn.17, 226, 227

United States v. Williams, 788 F.2d 1213 (6th Cir. 1986), n.271

United States v. Williams, 753 F.2d 329 (4th Cir. 1985), n.41

United States v. Wilson, 503 U.S. 329 (1992), nn.273–75

United States v. Winsor, 785 F.2d 755 (9th Cir. 1986), nn.34, 125
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United States v. Wong-Alvarez, 779 F.2d 583 (11th Cir. 1985), n.11

United States v. Xulam, 84 F.3d 441 (D.C. Cir. 1996), n.40

Waller v. Georgia, 467 U.S. 39 (1984), n.128

Weaver v. United States, 37 F.3d 1411 (9th Cir. 1994), n.269
The Federal Judicial Center

Board

The Chief Justice of the United States, Chair

Judge Bernice B. Donald, U.S. District Court for the Western District of Tennessee

Judge Terence T. Evans, U.S. Court of Appeals for the Seventh Circuit

Magistrate Judge Karen Klein, U.S. District Court for the District of North Dakota

Judge James A. Parker, U.S. District Court for the District of New Mexico

Judge Stephen Raslavich, U.S. Bankruptcy Court for the Eastern District of Pennsylvania

Judge Sarah S. Vance, U.S. District Court for the Eastern District of Louisiana

Judge Karen J. Williams, U.S. Court of Appeals for the Fourth Circuit

James C. Duff, Director of the Administrative Office of the U.S. Courts

Director

Judge Barbara J. Rothstein

Deputy Director

John S. Cooke

About the Federal Judicial Center

The Federal Judicial Center is the research and education agency of the federal judicial

system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the Judicial Conference of the United States.

By statute, the Chief Justice of the United States chairs the Center’s Board, which also

includes the director of the Administrative Office of the U.S. Courts and seven judges

elected by the Judicial Conference.

The organization of the Center reflects its primary statutory mandates. The Education

Division plans and produces education and training programs for judges and court staff,

including satellite broadcasts, video programs, publications, curriculum packages for incourt training, and Web-based programs and resources. The Research Division examines

and evaluates current and alternative federal court practices and policies. This research

assists Judicial Conference committees, who request most Center research, in developing

policy recommendations. The Center’s research also contributes substantially to its educational programs. The two divisions work closely with two units of the Director’s Office—the Systems Innovations & Development Office and Communications Policy &

Design Office—in using print, broadcast, and on-line media to deliver education and

training and to disseminate the results of Center research. The Federal Judicial History

Office helps courts and others study and preserve federal judicial history. The International Judicial Relations Office provides information to judicial and legal officials from

foreign countries and assesses how to inform federal judicial personnel of developments

in international law and other court systems that may affect their work.