Handling a New Federal Case: Initial Appearance, Preliminary Examination, Detention Hearing Brook_Antonio@fd.org Michael_Lehmann@fd.org

The Complaint

Fed. R. Crim. P. Rule 5 - Initial Appearance (a)(1)(A) A person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge…

The Client Interview Pretrial services report Donnie Defendant Clara Client

Indictment v. Complaint Probable Cause v. No Probable Cause Fed. R. Crim. P. Rule 5.1 - Preliminary Hearings

Pretrial Release and Detention 18 U.S.C. § 3142

When the government can move for detention? 9 Types of Cases Read: Almost Every Case!

Detention Hearings Timing Shall be held immediately upon the person’s first appearance before the court unless that person or the government seeks a continuance. Government – up to 3 days, except for good cause. Defense – up to 5 days, except for good cause.

Defendant’s Rights Right to Counsel Right to Testify (Bad idea) Right to Cross Examine Right to Present Witnesses Proffer Note: Rules of evidence do not apply. Hearsay and Proffered evidence are admissible

Detention Factors § 3142(g) Nature and circumstances of the offense charged. Weight of the evidence. History and Characteristics of the person. Nature and seriousness of the danger posed to any person or community by person’s release. On a property or surety bond, the court can make an inquiry into the source of the funds/property.

Nature & Circumstances of Offense Charged

Weight of the Evidence

History and Characteristics of Person Physical & Mental Condition Length of Residence in the Community Financial Resources Record of Court Appearances History of Drugs & Alcohol Criminal History Employment Record on Release Character Community Ties Family Ties Past Conduct

Danger Posed to Person or Community PRIORS GANGS

Pretrial Services Report: Who is my client? From Dallas, longtime resident 30-year school teacher Same residence for decades Briefly married No mental health, drugs 1 DWI prior (20 years ago, successful discharge) No holds Church Donnie Defendant

Pretrial Services Report: Who is my client? On probation for misdemeanor possession of marijuana (1 bond forfeiture) Ties outside the country Only employed one year at job History of MJ use; rehab history Dallas for 20 years History of Depression 2 kids, married 20+ years No holds Clara Client

Before the Magistrate Enters the Court Are you going to waive your detention hearing?

Presumption Cases § 3142(e)

Presumption Cases § 3142(e) Controlled Substance Offense, 10 + years Gun + Felony, 18 U.S.C. § 924(c) Felony w/ minor victim, 18 U.S.C. § 3142(e) Felony involving failure to register, 18 U.S.C. § 2250

Presumption & Burdens Defendant – burden of production of “some credible evidence.” Government – burden of persuasion. No condition or combination of conditions will: (1) reasonably assure the safety of another person and the community by clear and convincing evidence. § 3142(f) or (2) Substantial risk that defendant may flee by a preponderance of the evidence. United States v. Fortna, 769 F.2d 243 (5th Cir. 1985).

Ways to rebut the presumption

Detention Witnesses

Conditions of Release § 3142(c)

Revocation of Release § 3148

Review of Detention Order § 3145

Detention Pending Sentence § 3143 Pending Sentencing: court must find by clear and convincing evidence that a person is not likely to flee or pose a danger to community. If COV, max punishment life/death, drug offense with 10+ max Good luck.

Detention Pending Appeal § 3143