1 Handling a New Federal Case: - PowerPoint Presentation

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

The Complaint 2

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 4InterviewPretrial services report Donnie Defendant Clara Client

Indictment v. Complaint Probable Cause v. No Probable CauseFed. 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 CasesRead: Almost Every Case!

Detention Hearings 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. Timing

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

Danger Posed to Person or Community PRIORS GANGS

Pretrial Services Report: Who is my client? From Dallas, longtime resident30-year school teacherSame residence for decadesBriefly marriedNo mental health, drugs 1 DWI prior (20 years ago, successful discharge) No holds Church 15 Donnie Defendant

Pretrial Services Report: Who is my client? 16 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 17 Are you going to waive your detention hearing?

Presumption Cases § 3142(e)

Presumption Cases § 3142(e) Controlled Substance Offense, 10 + yearsGun + 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 (5 th 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