Requirements and procedures.

By Barry Boss

Excerpted from Federal Criminal Practice

The Bail Reform Act of 1984 establishes procedures for holding a defendant in detention prior to trial. The magistrate judge must go through a series of steps designed to (i) determine whether the defendant can be released under conditions of release and, at the same time, (ii) reasonably ensure the appearance of the defendant in court, as required, and the safety of any other person and the community. [For a procedural overview, see §4:4.]. The magistrate judge must order detention only if, after a detention hearing pursuant to 18 U.S.C. §3142(f), the magistrate judge finds that no conditions of release will reasonably assure the appearance of the defendant, as required, and the safety of any other person or the community. 18 U.S.C. §3142(e).

The magistrate judge may hold a detention hearing only if one of the six circumstances listed in §3142(f)(1), (2) is present, not whenever the government thinks detention would be desirable. United States v. Singleton, 182 F.3d 7, 9 (D.C. Cir. 1999). For detention hearing requirements, see §§4:42 et seq.

§4:41        Obtain Access to Detained Client

In ordering pretrial detention, the magistrate judge must direct that you be afforded reasonable opportunity to consult with your client in private. 18 U.S.C. §3142(i)(3). The district court also has general supervision over detained defendants awaiting trial. FRCrP 46(h)(1). When your judicial district does not have a federal detention facility near the court, the United States Marshal may detain your client in a jail located a substantial distance away. When you believe your client will be detained, make an oral motion at the detention hearing that your client be held in a jail easily accessible to you, with facilities for private consultation. Consider filing a similar written motion with the district court if the magistrate judge refuses to order your client held, or the Marshal fails to hold your client, in a facility reasonably accessible to you. 18 U.S.C. §3142(i)(3); FRCrP 46(h)(1).

B.  Hearing Requirements

§4:42        Cases in Which Court Will Hold Hearing

The magistrate judge must hold a detention hearing on the prosecutor’s motion in cases that involve certain enumerated offenses [18 U.S.C. §3142(f)(1)], or that involve a defendant who poses a “serious” risk of flight or obstruction of justice [18 U.S.C. §3142(f)(2)]. Where the case does not involve an enumerated offense or the serious risk of flight or obstruction of justice, there is no statutory basis to hold a detention hearing, and the defendant must be released pursuant to §§3142(b-c). United States v. Singleton, 182 F.3d at 9.

§4:42.1 Crimes of Violence

The eligibility factor that engenders the most litigation is the question of whether a particular charge is a “crime of violence” for purposes of the Bail Reform Act. The phrase is defined in §3156(a)(4) to include (i) any offense that has an element “the use, attempted use, or threatened use of physical force,” 18 U.S.C. §3156(a)(4)(A); (ii) any other felony offense 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,” 18 U.S.C. §3156(a)(4)(B); or (iii) any felony involving sexual abuse [18 U.S.C. §2241-2248] or the sexual exploitation or other abuse of children [18 U.S.C. §§2251-2260], 18 U.S.C. §3156(a)(4)(C).

The question of whether an offense is a crime of violence is generally considered categorically, rather than on a case-by-case basis. See United States v. Singleton, 182 F.3d at 10-12 (adopting a categorical approach to determining whether an offense is a crime of violence). The categorical analysis focuses on the “intrinsic nature of the offense,” rather than on the particular circumstances of a case. Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir. 2001).

Example

Possession of Firearm

There is a split in the circuits regarding whether the offense of “felon-in-possession of a firearm or ammunition” [18 U.S.C. §922(g)], constitutes a crime of violence for purposes of the Bail Reform Act. Compare United States v. Singleton, 182 F.3d at 16 (holding that the offense is not a crime of violence); United States v. Bowers, 432 F.3d 518, 524 (3d Cir. 2005) (same), with United Statesv. Dillard, 214 F.3d 88, 103 (2d Cir. 2000) (holding that the offense involves a substantial risk of violence, and therefore, is a crime of violence). In United Statesv. Say, a district court held that the offenses of conspiracy to possess and possession of stolen firearms were not crimes of violence because the defendant is not accused of having previously committed a serious crime. United States v. Say, 233 F. Supp. 2d 221, 226 (D. Mass.2002)

Example

RICO/Conspiracy Cases

In RICO and conspiracy cases, the charges may constitute a crime of violence even when the defendant is not personally accused of engaging in any violent act. E.g., United States v. Ciccone, 312 F.3d 535, 542 (2d Cir. 2002) (in determining whether the RICO charge is a crime of violence, court should consider not merely the predicate acts ascribed to defendant, but objectives and means of RICO enterprise as whole).

§4:42.2     Other Offenses Rendering Defendant Eligible for Pretrial Detention

The other offenses that render a defendant eligible for pretrial detention [18 U.S.C. §3142(f)(1)] are:

  • Offenses for which the maximum penalty is life imprisonment or death
  • Federal drug offenses carrying a maximum penalty of ten years or more
  • Any felony if the defendant has:
    • Two or more federal convictions for any of the above offenses
    • Two or more similar state convictions
    • A combination of those convictions

§4:42.3     Personal Characteristics Rendering Defendant Eligible for Pretrial Detention

The magistrate judge must hold a hearing, on motion of the prosecutor or on the court’s own motion, in a case that involves [18 U.S.C. §3142(f)(2)]:

  • Serious risk of flight, even though the government has charged the defendant with an offense other than those listed in 18 U.S.C. §3142(f)(1). 18 U.S.C. §3142(f)(2)(A) (emphasis added) [see §§4:42.1, 4:42.2]
  • Serious risk that the defendant will obstruct or attempt to obstruct, or threaten, injure, or intimidate, or attempt to threaten, injury or intimidate, a prospective witness or juror, even if the defendant is charged with an offense other than in §3142(f)(1). 18 U.S.C. §3142(f)(2)(B) (emphasis added)

Practice Tip

In Close Cases, Argue Government Has Not Met Its Threshold Burden of Proof

In many cases, the government’s right to a detention hearing is clear, particularly where the offense involves controlled substances or carries life imprisonment. In other cases, however, the right to a hearing is not so clear, particularly where the basis for detention is that the defendant is a serious risk of flight or obstruction of justice. In these cases, argue that the government has not met its threshold burden of establishing its right to a detention hearing. See, e.g., United Statesv. Goba, 240 F. Supp. 2d 242, 244 (W.D.N.Y. 2003) (noting that government must prove by preponderance of evidence that defendant falls in to one of the six categories qualifying him for detention).

§4:43        Timing

The magistrate judge must hold the hearing at the defendant’s initial appearance, unless the defendant or the government seeks a continuance. 18 U.S.C. §3142(f); §4:44. In most cases, at least one side will orally seek a continuance at the initial appearance in order to prepare for the hearing.

The government’s failure to move for detention in compliance with the prompt hearing requirement does not preclude the prosecutor from asking for a hearing at a later time. United States v. Montalvo-Murillo, 495 U.S.711, 717 (1990).

Practice Tip

Oppose Government’s Later Request for Hearing

If the government fails to move for detention at the initial appearance, oppose the government’s assertion of a right to a detention hearing at a later time if:

  • The delay is lengthy

  • The government continued to delay after discovering the time limits for a hearing had expired

  • You can show substantial adverse effect on the outcome of the proceeding as a result of the delay, such as a loss of witnesses or affidavits [United States v. Montalvo-Murillo, 495 U.S.at 722 (noncompliance with timing requirements of §3142(f) had no substantial influence on outcome of proceeding)] or

  • The government cannot show a change in circumstances to justify its new position [United States v. Montalvo-Murillo, 495 U.S. at 717 (some combination of procedural irregularities could render hearing so flawed that it would not constitute hearing for purposes of §3142(e))]

Appellate Review

Government’s Failure to Timely Request Hearing

The Supreme Court has applied a harmless error test to the government’s failure to request a detention hearing at the initial appearance. United States v. Montalvo-Murillo, 495 U.S. 711, 722 (1990). The case is broad enough to reach other time requirements of §3142(f) where a violation does not substantially influence the outcome of the proceeding. United States v. Montalvo-Murillo, 495 U.S. at 720 (“it is inevitable that, despite the most diligent efforts of the Government and the courts, some errors in application of the time requirements of §3142(f) will occur”).

 

§4:44        Continuances

The defendant may seek a continuance of the detention hearing for up to five days, and the government may seek a continuance of up to three days. 18 U.S.C. §3142(f). The Ninth Circuit has held that the statute only authorizes a continuance at the request of the government or the defense, not on the court’s own motion. United States v. Al-Azzawy, 768 F.2d 1141, 1143 (9th Cir. 1985).

The party seeking a continuance will make a request orally, at the initial appearance. The request normally is made and granted to allow counsel an opportunity to prepare for the hearing. In fact, in many jurisdictions, the three day continuance is virtually automatic, even without a request for delay by the government. Under the terms of §3142(f), the defendant can argue that without a showing of good cause, the government must proceed with the detention hearing at the time of the initial appearance. When the government moves for a continuance because the prosecutor is not prepared to go forward at the initial appearance, and you object, the court will consider whether the government can show that there was insufficient time between the defendant’s arrest and initial appearance to go forward. United States v. Al-Azzawy, 768 F.2d at 1144.

Practice Tip

Argue Your Client Will Be Held in Custody

Whenever you oppose the government’s motion for a continuance, argue that your client will be held in custody during a continuance. 18 U.S.C. §3142(f).

The courts are split on whether holidays and weekends are excluded from the calculation of the 3- and 5-day time periods. Compare United States v. Aitken, 898 F.2d 104, 106 (9th Cir. 1990) (Rule 45(a), which authorizes exclusion of weekends and holidays, applies to this calculation), with United States v. Hurtado, 779 F.2d 1467, 1474 n.8 (11th Cir. 1985) (Rule 45(a) does not apply).

Either party may seek a longer continuance for good cause. 18 U.S.C. §3142(f). Convenience of the court or counsel is not good cause. United States v. Hurtado, 779 F.2d at 1475-76. To obtain a continuance longer than five days, counsel for the defendant must show a reason related to protection of the defendant’s rights, such as the unavailability of another lawyer to handle the hearing sooner or the need for time to prepare for the hearing. United States v. Melendez-Carrion, 790 F.2d 984, 991 (2d Cir. 1986) (good cause to allow defense counsel to obtain witnesses and affidavits).

 

The defense waives its right to challenge a government continuance of greater than three days if it fails to specifically object that the delay was longer than §3142 permits. See United States v. Aranada, 899 F2d 368, 370 (5th Cir. 1990) (by not objecting to government continuance in excess of three days, defense will be considered to have acquiesced in up to five-day continuance).

§4:45        Waiving Hearing

When the government moves for pretrial detention, the defendant may waive the hearing. United States v. Clark, 865 F.2d 1433 (4th Cir. 1989) (en banc); see generally United States v. Mezzanutto, 513 U.S. 196, 201 (1995) (statutory provisions are presumed waivable).

Practice Tip

Consider Waiver Carefully

Even when you are sure the magistrate judge will order your client detained, hesitate before waiving the hearing. The hearing is often combined with a preliminary examination [Chapter 6] and can provide valuable discovery about the government’s case, as well as information helpful in calculating application of the sentencing guidelines in the event of a conviction. The only time it may make sense to waive the hearing is in a high profile case where the crime is serious, the client is definitely going to be detained, and the hearing would result in press coverage that might further prejudice the client’s ability to obtain a fair trial.

§4:46        Object to Lengthy Detention

Under the Bail Reform Act, the government may detain a defendant prior to trial under a valid detention order. However, excessively long detention may violate due process when it constitutes “punishment” of the detainee. United States v. Salerno, 481 U.S. 739, 747 n.4 (1987); see also United States v. El-Hage, 213 F.3d 74, 79 (2d Cir. 2000) (noting that as long as pretrial detention is administrative, rather than punitive, it does not violate due process principles). When the court determines that pretrial detention violates due process, the court will order the defendant released, with conditions of release. United States v. Archambault, 240 F. Supp. 2d 1082, 1088 (D.S.D. 2002) (20 months in pretrial detention and trial not scheduled for an undetermined number of months violated due process); United States v. Ojeda Rios, 846 F.2d 167, 169 (2d Cir. 1988) (32 months pretrial detention and trial not scheduled to commence for several more months violated due process). For conditions of release, see §§4:13 et seq.

Length of detention alone will not establish a due process violation. The courts make a case-by-case determination, in light of all the circumstances.Courts will look to [United States v. El-Hage, 213 F.3d at 79-80]:

  • Length of detention, including the likely length of future detention [United States v. El-Hage, 213 F.3d at 80 (30-33 months of pretrial detention served or contemplated to be served “weighs heavily” in defendant’s favor in his argument that his due process rights have been violated); United States v. Archambault, 240 F. Supp. 2d. 1082, 1086 (D.S.D. 2002) (20-month detention clearly weighs in favor of release); United States v. Katona, 204 F. Supp. 2d 410, 412 (E.D.N.Y. 2002) (defendant’s challenge denied as premature where he had only been confined for two and one-half months)]
  • Extent of the prosecution’s responsibility for delay of the trial [United States v. El-Hage, 213 F.3d at 80 (in case involving alleged al-Queda bombing of United States embassies in Africa, delay was not attributable to prosecution because of “exceptional complexity” of case)]
  • Gravity of the charges [United States v. El-Hage, 213 F.3d at 80 (defendant’s alleged role as a worldwide terrorist responsible for several violent attacks weighed heavily in government’s favor)]
  • Strength of the evidence upon which detention is based, i.e., evidence concerning risk of flight and danger to community [United States v. El-Hage, 213 F.3d at 80 (finding high risk of dangerousness and flight factors mitigating against due process violation)]

C.  Burden of Proof and Presumptions

§4:47 Procedure

If the government establishes one of the six factors authorizing a detention hearing for the defendant [see §§4:42.1, 4:42.2], the court will then examine the factors set forth in 18 U.S.C. §3142(g) [see §4:53] to determine whether any of the conditions set forth in §3142(c) [see §§4:13 et seq.] will reasonably assure the safety of the community or ensure the appearance of the defendant at trial. See United States v. Goba, 240 F. Supp. 2d 242 (W.D.N.Y. 2003) (setting forth the procedure to be followed).

§4:48        Clear and Convincing Evidence — No Conditions Will Assure Safety

Only on clear and convincing evidence may the magistrate judge find that no condition or combination of conditions will reasonably assure the safety of others and the community. 18 U.S.C. §3142(f). While the existence of a criminal history or record of violence supports a finding of dangerousness, the absence of these factors does not preclude such a finding. See United States v. LaFontaine, 210 F.3d 125, 134 (2d Cir. 2000).

§4:49        Preponderance of Evidence — No Conditions Will Assure Appearance

A finding that no conditions of release will reasonably assure the appearance of the defendant may be based on a preponderance of the evidence. See, e.g., United States v. Mercedes, 254 F.3d 433, 436 (2d Cir. 2001) (government must prove risk of flight by preponderance of evidence).

§4:50        Government Need Not Prove Both

The magistrate judge need not find a risk of flight and danger to another person or the community to order detention. Proof of flight or danger is sufficient. See, e.g., United States v. Mercedes, 254 F.3d at 436-7 (holding that conditions that would assure appearance would not reasonably assure safety of community).

§4:51        Rebuttable Presumptions

Two rebuttable presumptions greatly aid the government in sustaining its burden of proof:

  • No conditions of release will reasonably assure the safety of any other person and the community [§4:51.1]
  • No conditions of release will reasonably assure the appearance of the defendant and the safety of the community [§4:51.2]

§4:51.1     Presumption #1: No Release Conditions Will Assure Safety

The government may invoke this presumption only against persons charged with crimes of violence, offenses punishable by life imprisonment or death, or ten-year drug felonies; who have been previously convicted of one of these offenses while on pretrial release; and if not more than five years have elapsed since the previous conviction. 18 U.S.C. §3142(e).

§4:51.2     Presumption #2: No Release Conditions Will Assure Appearance and Safety

This presumption applies if the magistrate judge finds probable cause to believe the defendant has committed a currently charged federal drug felony with a maximum prison sentence of ten years or more; a firearms offense in violation of 18 U.S.C. §924(c), i.e., using or carrying a firearm during a crime of violence or drug trafficking that may be prosecuted in federal court; conspiracy to kill, kidnap or injure persons in a foreign country in violation of 18 U.S.C. §956(a); or acts of terrorism transcending national boundries, in violation of 18 U.S.C. §2332(b). 18 U.S.C. §3142(e). It comes into play more often than the other presumption [§4:48].

Practice Tip

Rebutting the Presumption

When the presumption applies and the government establishes probable cause, the defendant must present evidence sufficient to rebut or overcome the flight and danger presumption. The evidence may include the fact and length of the defendant’s family and community ties, his record of employment, lack of prior criminal record and minor role in the offense charged.

§4:52        Proof of Probable Cause

When the defendant is charged by complaint, the government will seek to establish probable cause that the defendant committed the offense in the customary manner, i.e., through witness testimony at the preliminary examination [see Chapter 6]. When the grand jury has returned an indictment against the defendant for one of the offenses triggering the drug or firearms offender presumption [§4:51.2], the government may offer the indictment itself as probable cause that the defendant committed the offense. The indictment is sufficient to invoke the presumption. See, e.g., United States v. Smith, 79 F.3d 1208, 1210 (D.C. Cir. 1996) (indictment alone alleging drug offense sufficient to trigger presumption); United States v. Hilario-Reyes, 218 F. Supp. 2d 185, 187 (D.P.R. 2002) (same).

§4:53        Defendant’s Burden to Produce Credible Evidence to Rebut Presumptions

When the government is able to trigger a rebuttable presumption of danger and/or flight, the defendant must produce some credible evidence that will rebut either or both of these presumptions. Types of evidence relevant to this inquiry are [18 U.S.C. §3142(g)(2), (3)]:

  • Lack of strong evidence of guilt of the offense charged that would be admissible at trial
  • Lengthy community and strong family ties
  • Stable employment history
  • Lack of prior criminal record
  • Minor role in the offense charged
  • History relating to drug and alcohol abuse
  • History of appearing at court proceedings
  • Whether, at the time of the offense, the person was on probation, parole, or other court supervision

Consider enlisting testimony or affidavits of co-workers, neighbors, friends, the family physician, or other associates concerning the defendant’s character, health or family situation.

With regard to dangerousness, most of the §3142(g) factors are not particularly probative. See United Statesv. McDonald, 238 F. Supp. 2d 182, 188 (D.D.C. 2002) (noting there was probable cause to believe that defendants, who were employed and had substantial community roots, nevertheless were engaged in drug dealing).

Practice Tip

Argue Inadmissibility or Weakness of Government Evidence

The court must consider the strength or weakness of the government’s evidence that the defendant committed the charged offense. 18 U.S.C. §3142(g)(2). When the preliminary examination [Chapter 6], or detention hearing testimony, or other proceeding or source raises a significant question concerning the admissibility at trial of key government evidence, or shows the overall lack of probative evidence of your client’s guilt, argue that the court should consider those factors in not ordering detention.

§4:54        Government’s Burden of Persuasion

The burden of persuasion remains on the government to show (i) by a preponderance of evidence that the defendant is a flight risk or (ii) by clear and convincing evidence that the defendant will endanger the safety of others or the community if released, and (iii) that no conditions of release will reasonably assure appearance and safety. United States v. Mercedes, 254 F.3d 433, 436 (2d Cir. 2001) (noting in “presumption cases,” burden of persuasion remains with government; defendant “bears a limited burden of production . . . to rebut that presumption”). The defendant’s burden of production is “not a heavy one to meet”; rather, any evidence “favorable to a defendant that comes within a category listed in §3142(g) can suffice.” United States v. Hammond, 204 F. Supp. 2d 1157, 1162 (E.D. Wis. 2002) (quotations and citations omitted).

 If the defendant does not come forward with any evidence, the second presumption [§4:51.2] alone will support a finding that no conditions of release will reasonably assure defendant’s appearance and the safety of others. However, when you present evidence to rebut a presumption, the magistrate judge may still consider the presumption as only one factor in the detention decision. United States v. Mercedes, 254 F.3d at 436; Hammond, 204 F. Supp. 2d at 1162 (even after it is rebutted, the presumption “remains in the case as an evidentiary finding militating against release”).

Practice Tip

Argue for Conditions of Release

When you present evidence sufficient to rebut the second presumption, argue that, while the magistrate judge may consider that drug traffickers generally pose special risks of flight, consistent with the presumption created by Congress [§4:51.2], in the particular case before the court, a combination of conditions of release will reasonably assure appearance and safety.

§4:55 – 4:59            [Reserved]

D.  Hearing Procedure

§4:60        Evidence Rules Do Not Apply

Except for the rules governing privilege, the Federal Rules of Evidence, including the hearsay rules, do not apply at a pretrial detention hearing. 18 U.S.C. §3142(f); FRE 1101(d)(3).

§4:61        Government’s Presentation

The magistrate judge has broad discretion to allow the government to present information on detention issues by proffer. United States v. LaFontaine, 210 F.3d 125, 131 (2d Cir. 2000). The defendant generally does not have a right to call as witnesses the individuals serving as the basis for the government’s proffer.United States v. Cabrera-Ortigoza, 196 F.R.D. 571, 574 (S.D. Cal. 2000). In addition, the victim has a right to be heard at the hearing and any other public hearing in the district court. 18 U.S.C.A. §3771(a)(4). See §§4:4 and 4:8. The right to be reasonably heard can mean a written statement rather than an oral presentation before the judge. See United States v. Marcello, 370 F.Supp.2d at 746.

Practice Tip

Object to Government Proffer

When the government moves for detention at the initial appearance, object to the government proceeding by proffer. Argue that the court should require testimony because proceeding by proffer deprives defendant of the opportunity to cross-examine witnesses and thereby confront the evidence against him. Courts have recognized that pretrial detention is an “exceptional step,” and the magistrate judge should provide the defendant with procedural safeguards to further the accuracy of the determinations made at the detention hearing. United Statesv. Salerno, 481 U.S. 739, 752 (1987) (in upholding constitutionality of pretrial detention based on dangerousness, Court stressed procedural safeguards in Bail Reform Act); see 18 U.S.C. §3142(f) (right of defendant to counsel and to cross-examine adverse witnesses who appear at hearing). Even if the magistrate judge allows the government to proceed by proffer, the court retains the discretion to insist upon production of the underlying evidence or sources where their accuracy is in question. LaFontaine, 210 F.3d at 131-32.

 

§4:62        Defendant’s Presentation

The defendant has the right to present witnesses, cross-examine witnesses presented by the government and present information by proffer or otherwise. 18 U.S.C. §3142(f). The court may not limit defendant to presentation of information by proffer. United States v. Torres, 929 F.2d 291, 292 (7th Cir. 1991) (“[o]ffers of proof are but the shadow of testimony”).

§4:63        Subpoenaing Witnesses

The Justice Department has taken the position that the Bail Reform Act does not give a defendant the right to call or subpoena adverse witnesses or documents.

In support of the Justice Department’s position, some courts have stated that a defendant has no right to cross-examine adverse witnesses who have not been called to testify by the government, and that a pretrial detention hearing is not intended to be a discovery vehicle. United States v. Cabrera-Ortigoza, 185 F.R.D. 571, 574 (S.D. Cal. 2000) (defendant cannot call government witnesses unless justified by a detailed proffer); United States v. Williams, 798 F. Supp. 34, 36 (D.D.C. 1992) (no right to cross-examine adverse witnesses not called by government).

Practice Tip

Cite Opposing Cases and FRCrP 46(j)

Counter the government’s position by citing cases supporting a contrary position. One court has held that a defendant has a conditional right to call adverse witnesses on a demonstration, either by proffer prior to calling the witness or through the witness’ testimony, that the evidence tends to negate a determination that no release conditions will reasonably assure appearance or safety. United States v. Gaviria, 828 F.2d 667, 670 (11th Cir. 1987) (judicial officer at detention hearing retains discretion to allow defendant to call adverse witness with or without initial proffer); see also United States v. Lewis, 769 F. Supp. 1189 (D. Kan. 1991) (magistrate judge has discretion to reject government’s proffer and require testimony of live witnesses); United States v. Gatto, 729 F. Supp. 1478 (1989) (after in camera review of third-party police agency documents subpoenaed by defendant for exculpatory material, court released some documents to defendant for use at detention hearing).

Also cite FRCrP 46(j), providing for production of witness statements at a detention hearing, as clear recognition by Congress that the liberty interests at stake at a detention hearing require a measure of discovery. Advi­sory Committee Note, 1993 Amend­ment to Rule 46. For rules enactment process, see Chapter 1, §1:9.

Practice Tip

Requesting Subpoena

In requesting a subpoena under FRCrP 17(c) for a detention hearing, demonstrate in your written motion that the appearance of the witness or production of the documents will tend to negate the government’s evidence on probable cause, flight or dangerousness. For Rule 17(c) subpoenas, see Chapter 10, §§10:135 et seq.

§4:64        Produce and Obtain Witness Statements

After a witness called by either side has testified on direct examination at the hearing, on motion of the other party, the side that called the witness must produce prior relevant statements to opposing counsel. FRCrP 46(j)(1) (referring to FRCrP 26.2 (a) – (d) & (f)).

A “proffer” does not trigger the obligation to produce witness statements. Cabrera-Ortigozo, 196 F.R.D. at 575-76. For production of witness statements generally, see Chapter 10, §§10:82 et seq.

Often the magistrate judge consolidates the detention hearing with a preliminary examination [see Chapter 6]. For the preliminary examination, the government will call law enforcement officers to establish probable cause that the defendant committed the charged offense. The probable cause showing may also trigger a rebuttable presumption on flight and safety for the detention hearing. See §4:51. The government may also call witnesses to provide direct evidence on flight, safety or both. After direct examination, the government must produce relevant investigative reports written or adopted by testifying law enforcement officers. FRCrP 26.2(g), 46(j)(1). If a party fails to produce a witness’s statement, the court “must not consider that witness’s testimony.” FRCrP 46(j)(2). However, where the court finds “good cause,” the government may be excused from the requirement to produce witness statements at this early point in the process. See FRCrP 46(j)(1).

Practice Tip

Request Witness Statements Before the Hearing

The prosecutor may refuse to produce witness statements on the ground that the hearing is early in the prosecution and the statements are not available. You can minimize the potential for nonproduction by notifying the prosecutor, at the earliest opportunity, that you are requesting the statements under FRCrP 46(j) and asking that the statements be brought to the detention hearing. When you intend to object at the initial appearance to a continuance by the government, notify the prosecutor prior to the initial appearance that you will request witness statements. Send the request by fax to create a written record in case the statements are not available for the detention hearing and the prosecutor seeks to invoke the “good cause” exception to production, based on a lack of notice or a sufficient opportunity to obtain statements from the investigative agency. FRCrP 46(j)(1). However, balance the value of the request against the risk that the prosecutor will choose to rely on witnesses who have not made statements.

§4:65        Obtain Written Findings and Reasons

A detention order rendered under §3142(e) must include written findings of fact and a statement of reasons for detention. 18 U.S.C. §3142(i)(1); FRAppP 9(a). Failure of the court to adhere to this requirement may result in remand by the district court to the magistrate judge or by the court of appeals to the district court. United States v. Moss, 887 F.2d 333, 338 (1st Cir. 1989).


Barry Boss is a member of Cozen O’Connor and the managing partner of the Washington DCoffice.  He concentrates his practice in complex criminal matters, focusing on white-collar crime.  Mr. Boss served as Assistant Federal Public Defender in Washington DC between 1995 and 2000.  He is the former co-chair of the U.S. Sentencing Commission’s Practitioners Advisory Group.  He is an adjunct professor at the George WashingtonUniversity LawSchool, and has been a featured speaker at seminars around the country including the annual federal sentencing guidelines conference co-sponsored by the U.S. Sentencing Commission.  He is the author of Federal Criminal Practice, from which this article is excerpted.