ISSUES RELATING TO INITIAL

PART III: DETENTION HEARINGS AND PRETRIAL RELEASE

(18U.S.C. § 3142; Fed. R. Crim. P. 46)

I. Natureof Right

A. The Bail Reform Act (the"Act"), 18 U.S.C. § 3141, et seq., was enacted as partof the sweeping Comprehensive Crime Control Act of 1984. The constitutionality of the Act andits novel provision for detention upon a finding of prospective danger to thecommunity was upheld by the Supreme Court in United States v. Salerno,481 U.S. 739 (1987).

B. The primary purpose of the Actwas to de-emphasize use of money bonds and to provide for pretrial detention ofpotentially dangerous defendants.

C. The Act provides that a person shallbe released on his recognizance unless no condition or combination ofconditions will reasonably assure the appearance of the person as required andthe safety of any other person and the community. See 18 U.S.C. § 3142(b).

D. Indeed, Congress retained thepreference for the release of most defendants prior to trial. See United States v. Byrd,969 F.2d 106, 109 (5th Cir. 1992) ("There can be no doubt that this Actclearly favors non-detention."); United States v. Orta, 760 F.2d887, 891 (8th Cir. 1985) (en banc) ("The wide range of restrictionsavailable [under the Act] ensures, as Congress intended, that very fewdefendants will be subject to pretrial detention.").

E. Nevertheless, the Act was furtherintended to eliminate the practice of detaining dangerous defendants by thesetting of high bail and to allow such defendants to be detained without bail. 18 U.S.C. § 3142(c)(2). See United States v. Orta,760 F.2d 887, 880 (8th Cir. 1985) (en banc) (Act prohibits usinghigh financial conditions to detain defendants).

1. The purpose of bail is toreasonably assure a defendant's appearance. If a defendant is dangerous and no conditions can be set toreasonably assure the safety of the community, the Act allows a defendant to bedetained without bail.

a.Nevertheless, a defendant’s bond can be forfeited for violations of pretrialrelease conditions not involving flight. See United States v. Gigante, 85 F.3d 83, 85(2d. Cir. 1996); United States v. Dunn, 781 F.2d 447, 449-50 n. 9 (5thCir. 1986).

F. It appears that Congress intendedthat if a court believes a monetary amount to be necessary to reasonably assurea defendant's appearance and the defendant cannot meet that amount, the courtmay detain the defendant. UnitedStates v. Mantecon-Zayas, 949 F.2d 548, 550 (1st Cir. 1991). The Fifth Circuit, as well as othercourts, have also held that a court need not set bail in an amount a defendantcan easily make. Nevertheless,financial conditions can only be imposed if no other conditionswill reasonably assure a defendant's presence. See UnitedStates v. Westbrook, 780 F.2d 1185, 1188 (5th Cir. 1986); United Statesv. McConnell, 842 F.2d 105, 107 (5th Cir. 1988).

1. A magistrate judge may not imposea financial condition that results in the pretrial detention of adefendant. See 18 U.S.C. §3142(c)(2). Therefore, if adefendant is unable to post a required bond and a magistrate judge believesthat such a condition is necessary to reasonably assure the defendant'sappearance, the magistrate judge will enter a detention order. The detention order should set forth whythe magistrate judge believes the financial condition is indispensable theleast restrictive means necessary to reasonably assure the defendant'sappearance. See UnitedStates v. Mantecon- Zayas 949 F.2d 548, 551 (1st Cir. 1991); UnitedStates v. McConnell, 842 F.2d 105, 110 (5th Cir. 1988). That detention order can then bechallenged before the district court judge.
II. MagistrateJudges Options Under the Act (18 U.S.C. § 3142(a))

A. A magistrate judge has fouroptions under the Act.

1. A defendant may be released onher personal recognizance or an unsecured appearance bond subject to thecondition that she not commit a federal, state or local crime during the periodof release. See 18 U.S.C. §3142(b).

2. A defendant may be released oncertain other conditions that may or may not include the posting of abond. Id. at § 3142(c).

3. A defendant may be temporarilydetained based upon a finding that she was on a) release pending trial for afelony under Federal, State, or local law; b) release pending imposition orexecution of sentence, appeal of sentence or conviction, or completion ofsentence, for any offense under Federal, State, or local law; or c) probationor parole for any offense under Federal, State, or local law; or d) is not acitizen of the United States or lawfully admitted for permanent residence. Id. at § 3142(d).

a. If temporary detention is soughton the ground that the defendant is not a citizen, the defendant has the burdenof proving that she is a citizen or lawfully admitted to the United States inorder to avoid temporary detention. Id.

4. A defendant may be detained untiltrial but only following a detention hearing. Id. at § 3142(e).

III. Release onPersonal Recognizance or Unsecured Appearance Bond (18 U.S.C. § 3142(b))

A. "The judicial officer shallorder the pretrial release of the [defendant] on personal recognizance, or uponexecution of an unsecured appearance bond in an amount specified by the court,subject to the condition that the person not commit a Federal, State, or localcrime during the period of release, unless the judicial officer determines thatsuch release will not reasonably assure the appearance of the [defendant] asrequired or will endanger the safety of any other person or thecommunity." Id. at §3142(b).

1. Note that an unsecured bond doesnot require the defendant to post any money but simply provides that if adefendant violates the conditions of her release that she agrees that she will beliable to pay the amount of the unsecured bond to the court.

B. A defendant cannot be detainedmerely if it is determined that a PR release will not reasonably assure thedefendant's appearance or the safety of the community; the court must considerother conditions that could reasonably assure those things. See United States v. Orta,760 F.2d 887, 890 (8th Cir. 1985) (en banc).

IV. Release onCertain Other Conditions (18U.S.C. § 3142(c))

A. If a magistrate judge determines,either before or after a detention hearing, that a defendant should be releasedbut also determines that other conditions are necessary to reasonably assurethe defendant's appearance and/or the safety of the community, the magistratejudge shall order the release of the defendant.

B. Possible conditions of releaseare set forth at 18 U.S.C. § 3142(c) and include:

1. subject to the condition that theperson not commit a Federal, State, or local crime during the period ofrelease; and

2. subject to the least restrictivefurther condition, or combination of conditions, that such judicial officerdetermines will reasonably assure the appearance of the person as required andthe safety of any other person and the community, which may include thecondition that the person:

a. remain in the custody of adesignated person, who agrees to assume supervision and to report any violationof a release condition to the court, if the designated person is ablereasonably to assure the judicial officer that the person will appear asrequired and will not pose a danger to the safety of any other person or thecommunity;

b. maintain employment, or, ifunemployed, actively seek employment;

c. maintain or commence aneducational program;

d. abide by specified restrictionson personal associations, place of abode, or travel;

e. avoid all contact with an allegedvictim of the crime and with a potential witness who may testify concerning theoffense;

f. report on a regular basis to adesignated law enforcement agency, pretrial services agency, or other agency;

g. comply with a specified curfew;

h. refrain from possessing afirearm, destructive device, or other dangerous weapon;

i. refrain from excessive use ofalcohol, or any use of a narcotic drug or other controlled substance, asdefined in section 102 of the Controlled Substances Act (21 U.S.C. § 802),without a prescription by a licensed medical practitioner;

j. undergo available medical,psychological, or psychiatric treatment, including treatment for drug oralcohol dependency, and remain in a specified institution if required for thatpurpose;

i. Magistrate judges routinelyrequire periodic drug testing of defendants released pretrial even where thecharges against the defendant have no relation to drugs and the defendant hasno history of drug use. At leastone court has found this practice unconstitutional and it should be challengedin appropriate cases. See Portillov. United States District Court for the District of Arizona, 15 F.3d 819(9th Cir. 1994). See alsoBerry v. District of Columbia, 833 F.2d 1031 (D.C. Cir. 1987).

k. execute an agreement to forfeitupon failing to appear as required, property of a sufficient unencumberedvalue, including money, as is reasonably necessary to assure the appearance ofthe person as required, and shall provide the court with proof of ownership andthe value of the property along with information regarding existingencumbrances as the judicial office may require;

l. execute a bail bond with solventsureties; who will execute an agreement to forfeit in such amount as isreasonably necessary to assure appearance of the person as required and shallprovide the court with information regarding the value of the assets andliabilities of the surety if other than an approved surety and the nature andextent of encumbrances against the surety's property; such surety shall have anet worth which shall have sufficient unencumbered value to pay the amount ofthe bail bond;

i. The court may upon its own motionand shall upon the government's motion conduct an inquiry into the source ofany property designated for forfeiture. See 18 U.S.C. § 3142(g).

m. return to custody for specifiedhours following release for employment, schooling, or other limited purposes;and

n. satisfy any other condition thatis reasonably necessary to assure the appearance of the person as required andto assure the safety of any other person and the community.

C. For certain charged offenses involvingminor victims (including any type of distribution of child pornography), if adefendant is released, he must be put onelectronic monitoring

D. This list is non exhaustive sodon't hesitate to be creative by suggesting additional conditions, based uponthe facts and circumstances of your client and/or your case, to persuade thecourt to release your client pending trial.

1. In United States v. Minns,863 F. Supp. 360 (N.D. Tex. 1994), the Court ordered a defendant detaineddespite the defendant's willingness to fund elaborate security measures such asvideo, electronic and telephone monitoring. The Court noted that such conditions would "elaboratelyreplicate a detention facility without the confidence of security such afacility instills" and that it would be "inimical to our system ofjustice to permit a defendant to ‘buy' his release pending trial." Id. at 364 (citations omitted).

E. Note that any bail belonging toand/or deposited by or on behalf of a defendant can, on motion of thegovernment, later be taken and applied to any assessment, fine, restitution orpenalty imposed upon the defendant. See 28 U.S.C. § 2044.

1. This rule does not apply where moneyoriginally belonged to a third party. United States v. Equere, 916 F.Supp. 450, 452-54 (E.D. Pa. 1996); UnitedStates v. Sparger 79 F. Supp.2d 714 (W.D. Tex. 1999) (Defendant’s attorney).

F. The conditions of release can beamended or added to at any time. See18 U.S.C. § 3142(c)(3).

V. TemporaryDetention (18U.S.C. § 3142(d)

A. Magistrate judges will often enter atemporary detention order without deciding whether a defendant subject totemporary detention will be released if the other authorities fail to lodge adetainer against the defendant. Ifthe other authorities do not lodge a detainer against the defendant, themagistrate judges will then either release the defendant from custody pendingtrial or hold a detention hearing. If, on the other hand, the other authorities do lodge a detaineragainst the defendant with the United States Marshal, the magistrate judgeswill often not hold a detention/release hearing and the defendant will stay infederal custody pending trial.

1. Obviously you want to keep yourclient in federal custody as opposed to state custody or INS custody. Nevertheless, if another authority doeslodge a detainer against your client during the period of temporary detentionand you are confident that the other authority will not act on the detainer orthat the other authority will allow your client to post a bond, you shouldrequest a federal detention/release hearing and argue for your client's releasefrom federal custody. SeeAttachment A

B. Under the temporary detentionprovisions of the Act, a defendant can be temporarily detained for not morethan ten days, excluding weekends and holidays. See 18 U.S.C. § 3142(d).

C. During the period of temporarydetention, the prosecutor will be directed to notify the appropriateauthorities or agency to determine if they will lodge a detainer against thedefendant.

VI. Detention Hearing(18 U.S.C. § 3142(e) and (f))

A. Procedure - Timing

1. The government must request thedefendant's detention at his initial appearance. See 18 U.S.C. § 3142(f). If a defendant is temporarily detained pursuant to 18U.S.C.§ 3142(d), the government can move for detention during the temporarydetention period. See UnitedStates v. Becerra-Cobo, 790 F.2d 427, 429 (5th Cir. 1986).

a. Unfortunately, there is no remedyfor a violation of this requirement. United States v. Montalvo-Murillo, 110 S.Ct. 2072, 2079-80(1990).

b. A written motion is notrequired. See UnitedStates v. Volkson, 766 F.2d 190, 192 (5th Cir. 1985).

2. The detention hearing shall beheld immediately upon the defendant's initial appearance unless the defendantor the government requests a continuance. See 18 U.S.C. § 3142(f).

a. Except for "goodcause," a continuance request by the government may not exceed three daysand a continuance request by a defendant may not exceed five days. Id.

i. It is unclear whether a three daycontinuance request by the government requires some justification.

ii. Weekend days are not be includedwhen computing time periods allowed for continuances (i.e. if defendantmakes his initial appearance on a Friday, a three day continuance is untilWednesday). 18 U.S.C. §3142(f).

iii. A defendant still has a right toa prompt detention hearing even if his co-defendants move for a continuance oftheir detention hearings. SeeUnited States v. Araneda, 899 F.2d 368, 370 (5th Cir. 1990).

iv. If a defendant is not representedat his initial appearance, the magistrate judge may order a hearing held withinfive days if there is no objection. United States v. Fortna, 769 F.2d 243, 248-49 (5th Cir. 1985).

b. The Court shall order thedefendant be detained until the detention hearing is held. See 18 U.S.C. § 3142(f). Once a hearing begins, however, thecourt may release the defendant pending the conclusion of thehearing. Id.

B. Procedure - Grounds

1. 18 U.S.C. § 3142(f) limits detentionhearings to the following instances:

a. upon motion of the governmentin a case involving a crime of violence, § 3142(f)(1)(A);

i. A crime of "violence"is defined by 18 U.S.C. § 3156(a)(4) as a) an offense that has as an element ofthe use, attempted use, or threatened use of physical force against the personor property of another; b) anyother offense that is a felony and that, by its nature, involves a substantialrisk that physical force against the person or property of another may be usedin the course of committing the offense; or c) certain offenses involvingsexual abuse or sexual exploitation.

ii. For this instance to apply, thedefendant must actually be charged with an offense that "involves"violence. See UnitedStates v. Byrd, 969 F.2d 106, 109-10 (5th Cir. 1992) (Child molester's actof receiving pornographic videotape through the mail was neither crime ofviolence nor case involving crime of violence; detention order vacated. Not this occurred prior to theexpansion of the definition of “crime of violence” to include such an offense);United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985). Therefore, ironically, while adefendant can be held without bond if a court determines, by clear andconvincing evidence, that he is a danger to the community, this is insufficientto trigger a motion for detention in the first instance.

a. Note that the Byrd courtheld that "it is not necessary that the charged offense be a crime ofviolence; only that the case involve a crime of violence...." Id. at 110. It did, however, make clear that"the proof of a nexus between the non violent offense charged and one ormore of the six § 3142(f) factors is crucial." Id.

b.See Attachment B

b. upon motion of the governmentin an offense where the maximum sentence is life imprisonment or death, §3142(f)(1)(B);

c. upon motion of the governmentin certain drug offenses, including a penalty of ten years or more, §3142(f)(1)(C);

d. upon motion of the governmentin circumstances presented in § 3142(f)(1)(D).

i. § 3142(f)(1)(D) applies if thedefendant has two previous convictions for offenses set forth in (a), (b) or(c) above;

e. upon motion of the governmentif the defendant is charged with possession or use of a firearm or destructivedevice. § 3142(f)(1)(E).

f. upon motion of the governmentor the court's own motion in a case that involves a serious risk of flight,§ 3142(f)(2)(A) or

g. upon motion of the governmentor the court's own motion in a case that involves a serious risk that thedefendant will obstruct or attempt to obstruct justice or intimidate or attemptto intimidate a witness or juror, § 3142(f)(2)(B).

C. Procedure - Hearing

1. The defendant has the right tocounsel at a detention hearing. See18 U.S.C. § 3142(f); Fed. R. Crim. P. 44.

2. The defendant may testify,present information, present witnesses and cross-examine witnesses who appearat a detention hearing. See18 U.S.C. § 3142(f); United States v. O'Shaughnessy, 764 F.2d 1035, 1037-38(5th Cir. 1985). Cf. UnitedStates v. Davis, 845 F.2d 412, 414-15 (2d Cir. 1988) (Defendant is entitledto a hearing and to testify. Detention cannot be ordered on the government's allegations alone).

3. The ability of the defendant toreceive discovery under Fed. R. Crim. P. 16, Brady material, and toissue subpoenas for use at the detention hearing is subject to the discretionof the court. See UnitedStates v. Lewis, 769 F. Supp. 1189 (D. Kan. 1991).

4. The defendant has the right tocall government agents if they will testify about the "weight ofevidence" - one of the considerations set forth in the Act. See United States v. Hurtado,779 F.2d 1467, 1479-80 (11th Cir. 1985). But see United States v. Gaviria, 828 F.2d 667,669-70 (11th Cir. 1987) (Defendant has only a conditional right to call adversewitnesses); United States v. Sanchez, 457 F.Supp. 2d 90 (D. Mass. 2006) (“In conclusion, in urging the Courtto allow her to subpoena witnesses, Sanchez' counsel must give the Court somebasis for believing that the witness would produce testimony favorable to herclient or that there is some reason to question the reliability of hearsayevidence proffered by the Government. In the instant case, counsel has providedno such basis, and the Court sees none. Rather, defense counsel's purposeappears to be to have the ability to examine the Government's witness beforetrial. While this may be a laudable motive, the desire for discovery is simplynot a sufficient basis under the law *94 for allowing defense counsel to subpoena prospective governmentwitnesses into court to testify at a detention hearing.”)

5. Either the government or thedefendant can present information by proffer or through hearsay. See United States v. Parker,848 F.2d 61, 63 (5th Cir. 1988) (Defendants can use proffers); United Statesv. Martir, 782 F.2d 1141, 1145 (2d Cir. 1986) (Government can useproffers); United States v. Gaviria, 828 F.2d 667, 669 (11th Cir. 1987)(Government can use proffers).

a. If the defendant asks tocall witnesses, courts cannot force proffer instead. United States v. Torres, 929 F.2d 291 (7th Cir.1991).

6. It is not advisable to actuallycall your client as a witness at a detention hearing. United States v. Ingraham, 832 F.2d 229, 237-39 (1stCir. 1987) (Statements by defendant at detention hearing admissible at trial), cert.denied, 486 U.S. 1009 (1988).

7. The Federal Rules of Evidence donot apply at detention hearing. SeeFed. R. Evid. 1101(d)(3); 18 U.S.C. § 3142(f).

8. Evidence that a defendant allegeswas illegally seized can still be admitted at a detention hearing. United States v. Viers, 637 F.Supp. 1343, 1353 (W.D. Ky. 1986); United States v. Angiulo, 755 F.2d969, 974 (1st Cir. 1985) (Court can use electronic surveillance evidence evenif defendant challenges its legality).

9. Fed. R. Crim. P. 46(j)(1) requiresthe government to produce all written statements in its possession that wereprepared by any of its witnesses at a detention hearing that relate to the subjectmatter of the witness' testimony. The statements must be produced after the government witness hastestified on direct examination. SeeFed. R. Crim. P. 26.2(a).

a. This rule also requires thedefense, upon request by the government, to produce written statements inits possession prepared by any defense witness who testifies at a detentionhearing.

b. If a party does not comply with arequest made pursuant to Fed. R. Crim. P. 46(j)(1), the court may not considerthe testimony of a witness whose statement is withheld. See Fed. R. Crim. P. 46(j)(2).

D. Standard for Ordering Detention

1. The Act provides that a defendantshall be detained if a magistrate judge finds 1) by clear and convincingevidence (see 18 U.S.C. § 3142(f)) that no condition or combinationof conditions will reasonably assure the safety of the community, or 2)that no condition or combination of conditions will reasonably assure theappearance of the defendant as required. See 18 U.S.C. § 3142(e).

a. While not set forth in the Act,courts have held that flight risk must be found by a preponderance of theevidence, as opposed to clear and convincing evidence. See United States v. Araneda,899 F.2d 368, 370 (5th Cir. 1990); United States v. Trosper, 809 F.2d1107, 1109 (5th Cir. 1987); United States v. Fortna, 769 F.2d 243, 250(5th Cir. 1985).

2. Arguably, if the government is allowedto seek detention only because a defendant is a potential flight risk, thedefendant cannot be detained solely on the grounds that he is a danger to thecommunity. See UnitedStates v. Himler, 797 F.2d 156 (3rd Cir. 1986); United States v. Ploof,8851 F.2d 7, 11-12 (1st Cir. 1988). But see United States v. Holmes, 438 F.Supp. 2d 1340,1341-51 (S.D. Fla. 2005).

3. It is important to recognize thatit is not required that the magistrate judge be able to set conditions that guaranteea defendant's appearance as required and the safety of the community only thatshe be able to set conditions that "reasonably assure" them. See United States v. Fortna,769 F.2d 243, 250 (5th Cir. 1985); United States v. Orta, 760 F.2d 887,891-92 (8th Cir. 1985) (en banc).

a. Of course, the burden is on thegovernment to show that no such conditions could be set.

4. Remember that ability to flee isnot synonymous with inclination to flee. A simple ability to flee does not justify detention. See United States v. Himler,797 F.2d 156, 162 (3rd Cir. 1986).

E. Presumption in Favor of Detentionin Certain Instances (18 U.S.C. § 3142(e))

1. There is a rebuttable presumptionthat a defendant be detained prior to trial because there is no condition orcombination of conditions that will reasonably assure the safety of thecommunity if:

a. The defendant has been convictedof a 1) violent crime, 2) capital offense, 3) drug offense, or 4) any felonyafter committing two violent crimes, two capital offenses or two drug offenses;and

b. The instant offense was committedwhile defendant was on bail; and

c. Less than five years has elapsedfrom the conviction date or date of release (whichever occurred last) for theoffense described in paragraph (a) above.

2. There is also a rebuttablepresumption that a defendant be detained prior to trial because there is nocondition or combination of conditions that will reasonably assure theappearance of the defendant as required or will reasonably assure thesafety of the community if the court has probable cause to believe that thedefendant has committed a) a drug offense with a penalty of ten years or more[1]; b) an offense subject to prosecutionunder 18 U.S.C. § 924(c); c)certain “terrorism” offenses; or d) certain offenses involving sexualexploitation of children (but not simple possession of child pornography).

a. An indictment alone establishesprobable cause needed for the presumption to apply. See United States v. Trosper, 809 F.2d 1107,1110 (5th Cir. 1987).

b. A single drug charge must have aten-year penalty for this presumption to apply. The charges cannot be aggregated. See United States v. Hinote, 789 F.2d 1490,1491 (11th Cir. 1986).

c. The presumption for drug offensesis arguably intended to prevent flight. See generally United States v. Jessup, 757 F.2d378, 395-98 (1st Cir. 1985) (Remarks from hearings on Bail Reform Act).

i. It does not matter thatthere is no realistic exposure of ten years if that is the statutorypenalty. See UnitedStates v. Carr, 947 F.2d 1239, 1240 (5th Cir. 1991).

3. Read United States v. Jackson,845 F.2d 1262, 1264-66 (5th Cir. 1988) on the effect of the presumption. Always argue that Jackson holdsthat the presumption is almost meaningless. But see United States v. Hare, 873 F.2d796, 798-99 (5th Cir. 1989).

4. If the presumption does apply,the defendant need only present some credible evidence that he is not a flightrisk or danger to the community (i.e. the defendant has the burden of productionbut he never has the burden of persuasion). See United States v. Rueben, 974 F.2d 580, 586(5th Cir. 1992), cert. denied, 113 S.Ct. 1336 (1993); UnitedStates v. Fortna, 769 F.2d 243, 251 (5th Cir. 1985).

a. Use of electronic bracelet"arguably" rebuts the presumption. United States v. O'Brien, 895 F.2d 810, 816 (1st Cir.1990).

F. Factors to be Considered at aDetention Hearing

1. The factors to be considered indetermining whether there are conditions of release that will reasonably assurethe appearance of the defendant at trial and reasonably assure the safety ofthe community are set out at 18 U.S.C. § 3142(g).

a. Nature of the offense, includingwhether offense is violent or involves a narcotic drug.

b. Weight of evidence.

i. This provision allows you to askbroad questions at a detention hearing and develop discovery because themagistrate judge must "discover the weight of the evidence."

ii. This is the least importantfactor because a court cannot make pretrial determination of guilt. See United States v. Townsend,897 F.2d 989, 994 (9th Cir. 1990); United States v. Motamedi, 767 F.2d1403, 1408 (9th Cir. 1985).

c. History and characteristics ofthe defendant.

d. The person's character, physicaland mental condition, family ties, employment, financial resources, length ofresidence in the community, community ties, past conduct, history relating todrug or alcohol abuse, criminal history, and record concerning appearance atcourt proceedings.

i. Foreign nationality is notnecessarily enough to indicate that a defendant is a flight risk. See United States v. Townsend,897 F.2d 989, 995 (9th Cir. 1990); United States v. Motamedi, 767 F.2d1403, 1408 (9th Cir. 1985).

ii. "Ties to community"means both the community where the defendant is arrested and the communitywhere the defendant normally resides. United States v. Townsend, 897 F.2d 989, 995 (9th Cir. 1990).

iii. In an usual case, Saudi Arabia citizen,without standing to remain in the United States was released on $50,000 bondand allowed to return to Saudi Arabia and would be “paroled” back into theUnited States for trial. UnitedStates v. Almohandis, 297 F.Supp. 2d 404 (D. Mass. 2004). But see United States v.Magallon-Torro, 2002 U.S. Dist.LEXIS 23362 (N.D. Tex. 2002) (Fish, C.J.) (Where defendant was an alien under afinal order detention no condition could reasonably assure his appearance attrial. Magistrate Judge’s releaseorder revoked).

iv. Court must hear testimony offamily members if the defendant asks to present witnesses. United States v. Torres, 929F.2d 291 (7th Cir. 1991).

e. The defendant'sprobation/parole/release status.

f. Nature of danger posed tocommunity if the defendant is released.

i. Economic crimes do not constitute adanger to the community justifying a defendant's detention. See United States v. Himler,797 F.2d 156 (3rd Cir. 1986).

g. “While the length of pretrial detentionis a factor in determining whether due process has been violated, the length ofdetention alone is not dispositive...” United States v. El-Hage, 213F.3d 74, 79-80 (2d Cir. 2000)

2. If you can roughly compute what adefendant's sentencing guidelines would be in the event she is convicted andthe guidelines are low, you should argue that it would be ironic and a travestyif the defendant was detained pretrial and then found eligible and sentenced toprobation or a short sentence.

G. Detention Order (18 U.S.C. § 3142(i))

1. If the court enters a detention order,the magistrate judge shall:

a. include written findings of factand a written statement of the reasons for the detention;

b. direct that the defendant be committedto the custody of the Attorney General for confinement in a correctionsfacility separate, to the extent practicable, from persons awaiting or servingsentences or being held in custody pending appeal;

c. direct that the defendant beafforded reasonable opportunity for private consultation with counsel; and

d. direct that, on order of a courtof the United States or on request of an attorney for the Government, theperson in charge of the corrections facility in which the defendant is confineddeliver the defendant to a United States marshal for the purpose of anappearance in connection with a court proceeding.

2. The Court must make specificfactual findings when ordering detention. See United States v. Westbrook, 780 F.2d 1185, 1190 (5thCir. 1986).

H. Temporary Release

1. Even if a defendant is detainedfollowing a detention hearing, a court may allow the defendant to betemporarily released in the custody of the United States Marshal or anotherappropriate person if such temporary release is "necessary for preparationof the person's defense or for another compelling reason." See 18 U.S.C. § 3142(i).

I. Conditions of pretrial detention can bechallenged by a habeas petition. SeeUnited States v. McGriff, 468 F.Supp. 2d 445, 447 (E.D..N.Y. 2007)

J. Strategy at a Detention Hearing

1. Whenever possible, talk to yourclient at least a day prior to a detention hearing and obtain backgroundinformation. This will allow youto arrange to have family, friends and/or employers testify at her detentionhearing. While not nearly aspersuasive, if you talk to family and employers of your client prior to thehearing and it is absolutely impossible for them to attend the hearing, you canat least proffer the information they give you.

a. If there is a strong possibilitythat your client will be detained, it is better to request a continuance of thehearing than to go in empty handed.

2. The magistrate judge will relyheavily upon a background report prepared by the Pretrial Services division ofthe Probation Department in determining whether to release your client. You are entitled to review a copy ofthis report prior to a detention hearing and you should definitely do this. See 18 U.S.C. § 3153(c)(1). The report often has a morecomplete criminal history on a defendant than the NCIC report you will beprovided by the government.

3. As noted above, Fed. R. Crim. P.46(j)(1) requires the government to produce any written statements prepared bywitnesses it calls at a detention hearing. Always avail yourself to this rule and ask the governmentwitness on cross examination if all of his or her statements have been producedas required.

a. Arguably, because a governmentagent is allowed to testify as to hearsay statements made by another witness,the government should be required, under Rule 46(j)(1), to produce the writtenstatements of the hearsay declarant in its possession, custody or control.

4. If all else is already lost andit is a foregone conclusion that your client will be detained, consider callingadverse witnesses on "the weight of the evidence" in order to obtainfree discovery.

VII. Reopening of DetentionHearings and Review of Detention Orders

A. Either side may seek review ofthe conditions of release set by a magistrate judge. Id. at § 3145(a).

1. This is styled a "motion toamend release conditions." See Attachment C

B. The defendant or the governmentmay also request a detention hearing be reopened at any time if based upon"new evidence." See18 U.S.C. § 3142(f). But seeUnited States v. Hare, 873 F.2d 796, 799 (5th Cir. 1989) (testimony offamily member not new evidence).

1. This is different from a motionto amend release conditions (e.g to lower a bond) which can be broughtat any time and does not require "new evidence." See 18 U.S.C. § 3142(c)(3)("The judicial officer may at any time amend the order [setting conditionsof release] to impose additional or different conditions ofrelease.").A.

2.Suppression of evidence in a case was “new evidence” warranting the reopeningof a detention hearing. UnitedStates v. Shareef, 907 F. Supp. 1481 , 1483 (D. Kan. 1995)

C. Likewise, either side may also seek areview of a magistrate judge’s order regarding a defendant’s release ordetention. See 18 U.S.C. §3145.

1. An appeal to the District Court of amagistrate judge's detention order is not an "appeal"at all but a "motion to revoke detention order." See Attachment D

i. Arguably, the review must be soughtwithin 10 days of the magistrate judge’s order pursuant to Fed. R. Crim. P.59(a). See United Statesv. Tooze, 236 F.R.D. 442, 443-45 (D. Ariz. 2006).

2. The review of a detention order,release order, or release conditions must be undertaken"promptly." See18 U.S.C. § 3145(b).

a. Thirty day delay not"promptly" - defendant ordered released on conditions. United States v. Fernandez-Alfonso,813 F.2d 1571, 1572 (9thCir. 1987).

b. Two month delay may not be"promptly," but the Fifth Circuit refusesto release defendant because no remedies are contained in statute. UnitedStates v. Barker, 876 F.2d 475, 477 (5th Cir. 1989).

3. The District Court should reviewa magistrate judge's detention order, release orderor release conditions de novo. See United States v. Fortna, 769 F.2d 243, 249 (5th Cir. 1985).

a. To facilitate the review, have anunofficial transcript from the detention hearingbefore the magistrate judge prepared and attached it to your motion to revoke the detentionorder.

4. While it is not clear that a defendant has a right to a newhearing before the DistrictCourt, courts have generally held that parties are allowed to submit new evidencewhen moving to revoke a magistrate judge's order. See United States v. Delker, 757 F.2d 1390, 1393-94(3rd Cir. 1985) (District Court may conduct new evidentiary hearing); UnitedStates v. Farguson, 721 F. Supp. 128, 129 n.1 (N.D. Tex. 1989)("The Court need not, of course, conduct a second evidentiary hearing in the absence ofnewly developed evidence not presented at the prior hearing."); UnitedStates v. Baker, 703 F. Supp. 34, 36 (N.D. Tex. 1989) (same).

5. Where a release or detentionhearing is set in an arresting district pursuant to Fed. R. Crim. P. 40 and notthe district where the defendant will stand trial, at least three courts hasheld that a motion to review the conditions of release or detention resideswith the District Court where the defendant will stand trial and not theDistrict Court where defendant had his release or detention hearing. See United States v. El Edway, 272 F.3d 149 (2d Cir. 2001); United States v.Torres, 86 F.3d 1029 (11th Cir. 1996); United States v. Evans, 62F.3d 1233 (9th Cir. 1995).

a. One court holds that, where a defendantis released in the district of arrest, the government may not seek to reopenthe detention hearing before a magistrate judge in the district in which the defendant is charged. Government’s remedy is to move torevoke the release order before a district judge in the district in which the defendant ischarged. United States v.Cisneros, 328 F.3d 610 (10th Cir. 2003)

6. An appeal of the District Court'sruling on a motion to revoke a release order or a detention order or a motionto amend release conditions can be made to the Court of Appeals by eitherparty. See 18 U.S.C. §3145; Fed. R. App. P. 9.

a. A Notice of Appeal by defendantmust be filed within ten days. SeeFed. R. App. P. 4(b).

b. The appeal "shall bedetermined promptly." See18 U.S.C. § 3145(c); Fed. R. App. P. 9. Indeed, the appeal should be heard on expedited basis. See United States v. Williams,753 F.2d 329, 332 (4th Cir. 1985).

c. The appeal will usually behandled as a motion. See UnitedStates v. Perdomo, 765 F.2d 942 (9th Cir. 1985); Fed. R. App. P. 9.

d. The standard of review used bythe Fifth Circuit in reviewing such an appeal is whether the District Court'sruling is "supported by the proceedings below." See United States v. Fortna,769 F.2d 243, 250 (5th Cir. 1985). This is the equivalent of an abuse of discretion standard. See United States v. Rueben,974 F.2d 580, 586 (5th Cir. 1992).

5. See Attachment E

7. Fromthe Court of Appeals, an Application can be filed with the Circuit Justice ofthe particular judicial circuit.

D. In some circumstances, theDistrict Court may, after a hearing, order detention on its own motion of a defendant releasedby the magistrate judge. SeeUnited States v. Gebro, 948F.2d 1118, 1120 (9th Cir. 1991); UnitedStates v. Maull, 773 F.2d 1479, 1486 (8th Cir.1985) (en banc).

VIII. Revocation of Release Order

A. Pursuant to 18 U.S.C. § 3148(b),a court can revoke a defendant's release if it finds there is 1) probable causeto believe that the defendant has committed a new offense or 2) clearand convincing evidence that defendant has violated any other condition ofrelease, and it determines 1) after review of factors in § 3142(g) (seeVI. F. supra) that there is no condition or combination of conditionsthat will reasonably assure the defendant's appearance as required and thesafety of the community or 2) the defendant is unlikely to abide by theconditions of release.

1. The defendant need not beconvicted of new crime to revoke his release, probable cause that he committeda new crime is enough. See,e.g., United States v. Santiago, 826 F.2d 499, 503-05 (7th Cir.1987).

2. If defendant is charged with afelony while on release, a rebuttable presumption arises that there are noconditions of release that will assure the safety of the community and that thedefendant should not be released. 18 U.S.C. § 3148(b).

3. It is clear that a defendant'srelease cannot be revoked automatically if defendant is charged with newoffense because section 3148(b) requires a court to examine factors in section3142(g) before deciding whether to detain a defendant. See United States v. Davis,845 F.2d 412, 414-15 (2d Cir. 1988); United States v. Higgs, 731 F.2d167, 170 (3rd Cir. 1984).

IX. Release PendingSentencing, Appeal, or Revocation Hearing (18 U.S.C. § 3143)

A. Pending Sentencing

1. There is a change in thepresumption in favor of release after a conviction (be it by a guilty plea orby a verdict of guilty after a not guilty plea). See 18 U.S.C. § 3143(a). After a conviction, a defendant shall be detained unless hersentencing guidelines indicate probation is possible or she demonstratesby clear and convincing evidence that she is not a flight risk or danger to thecommunity. Id. §3143(a)(1).

2. If a defendant is convicted of acrime of violence, capital crime or a drug crime where the penalty is more thanten years, then release pending sentencing is possible only if the courtfinds by clear and convincing evidence that the defendant is not a flight riskor danger to the community and (1) the court finds that there is asubstantial likelihood that it will grant a judgment of acquittal or new trialor (2) the government recommends no sentence of imprisonment be imposed. Id.at § 3143(a)(2).

-orshe demonstrates by clear andconvincing evidence that she is not a flight risk or danger to the communityand “exceptional reasons” exist to support her release § 3145(c)

B. Pending Appeal

1. Following sentencing and pendingappeal, a defendant must be detained if convicted of a crime ofviolence, capital crime or a drug crime for which the penalty is more than tenyears. See 18 U.S.C. §3143(b)(2).[2] Otherwise, a defendant can be releasedonly if she 1) shows by clear and convincing evidence that she is not a flightrisk or danger to the community; and ) the appeal is not for purpose ofdelay; and 3) the appeal raises a "substantial question oflaw" likely to result in a reversal, new trial, sentence of probation, orreduced term less than the amount the defendant will spend in custody duringthe duration of the appeal. Id.at § 3143(b)(1).

a. A "substantial question oflaw" is one that will "more probable than not" result in afavorable ruling for the defendant. See United States v. Valera-Elizondo, 761 F.2d 1020 (5thCir. 1985). See alsoUnited States v. Pollard, 778 F.2d 1177, 1182 (6th Cir. 1985)(Substantial question is "when the appeal presents a close question or onethat could go either way."); United States v. Giancola, 754 F.2d898, 901 (11th Cir. 1985); United States v. Powell, 761 F.2d 1227,1231-32 (8th Cir. 1985) (same).

b. The burden is on the defendant tomake the required showings for bail pending appeal. See United States v. Valera-Elizondo, 761 F.2d1020, 1024-25 (5th Cir. 1985).

2. Generally, unless impracticable,an application for release pending appeal should be made to the District Courtin the first instance. SeeFed. R. App. P. 8(a).

a. If the application to theDistrict Court is unsuccessful, an appeal may be taken to the Court ofAppeals. Id.

b. The appeal will be treated as amotion. Id

C. Pending Revocation Hearing

1. Pursuant to Fed. R. Crim P. 32.1(a)(6)the standards for release pending a probation or supervised release revocationhearing are governed by the statute dealing with release pending sentencing orappeal. 18 U.S.C. § 3143. Therefore, a defendant arrested for aviolation of probation or supervised released will be detained pending hisrevocation hearing unless he demonstrates by clear and convincing evidence thatshe is not a flight risk or danger to the community.

UpdatedMarch 2008

UNITEDSTATES DISTRICT COURT

NORTHERNDISTRICT OF TEXAS

DALLASDIVISION

UNITEDSTATES OF AMERICA, ) CRIMINAL ACTIONNO.

)

Plaintiff, ) 3:96-CR-137-D

)

v. )

)

XXXX, )

)

Defendant. )

)

MOTIONTO AMEND PRETRIAL RELEASE CONDITION

ANDMEMORANDUM OF LAW IN SUPPORT THEREOF

Defendant XXXX hereby moves this Court to remove the pretrial release conditionthat he "[s]ubmit to random urinalysis at the discretion of PretrialServices Agency" on the grounds that such a condition is not the leastrestrictive condition necessary to reasonably assure his appearance and protectthe safety of the community while he is on pretrial release and that such acondition violates his right under the Fourth Amendment to the United StatesConstitution to be free from unreasonable searches and seizures.

I. FACTS

OnApril 8, 1996, Mr. XXXX was released pretrial on his personal recognizance byMagistrate Judge William F. Sanderson. See Order Setting Conditions of Release. Nevertheless, Magistrate JudgeSanderson imposed certain conditions on Mr. XXXX's release. Included among the conditions was thatMr. XXXX report in person at least once per week to the Pretrial ServicesAgency and that he submit to random urinalysis testing at the discretion of thePretrial Services Agency. Id. The reality of the situation is thatMr. XXXX has been required to give a urine sample on a weekly basis to thePretrial Services Agency.

Mr.XXXX is charged with filing false income tax returns arising out of hispractice as a tax preparer. Mr.XXXX has absolutely no history of drug use or alcohol abuse. In fact, Mr. XXXX does not use anyalcohol because of medical problems and does not use drugs.

Mr.XXXX suffers from a spastic colon and possible prostate cancer. Significantly, Mr. XXXX has a"strangled urethra" that makes urination difficult, if notimpossible, at times. As a result,Mr. XXXX is not able to "urinate on command" and has had difficultyproviding urine specimens to the Pretrial Services Agency. Recently, Mr. XXXX was forced to spendhours at the Pretrial Services Agency and, when he could not produce a urinespecimen, he was told that it would be reflected as a "positive" testand that he would be required to return the following morning.

Inshort, Mr. XXXX has suffered great embarrassment as well as a significantamount of stress as a result of his inability to "urinate oncommand." Moreover, as arguedbelow, this condition of pretrial release is both unnecessary andunconstitutional.

II. ARGUMENT

A. Urinalysis testing is not the leastrestrictive pretrial release condition necessaryto assure Mr. XXXX's appearance and protect the community

TheBail Reform Act provides that a person shall be released pending trial on hispersonal recognizance or upon execution of an unsecured bond unless ajudicial officer determines that he needs to set additional conditions toreasonably assure the defendant's appearance as required and the safety ofanother person or the community. 18 U.S.C. § 3142(b). If thejudicial officer determines that he needs to set conditions on a defendant'srelease pending trial, the judicial officer may release the defendant subjectto the condition that the person not commit a federal, state or local crimeduring the period of release and "subject to the least restrictivefurther condition, or combination of conditions, that such judicial officerdetermines will reasonably assure the appearance of the person as required andthe safety of any other person and the community..." Id. at § 3142(c) (emphasisadded).[5]

Insetting the condition in the instant case that Mr. XXXX submit to urinalysistesting, Magistrate Judge Sanderson had no evidence whatsoever that Mr. XXXXused drugs or alcohol. Moreover,Mr. XXXX is not charged with any offense related to drugs or alcohol. In short, there is no support for theproposition that urinalysis testing is "the least restrictive"condition necessary to assure Mr. XXXX's appearance in this case and the safetyof the community. Indeed, such acondition is completely unnecessary and has caused Mr. XXXX a great deal ofstress and embarrassment. Becauseurinalysis testing is not "the least restrictive" condition necessaryto assure Mr. XXXX's appearance and the safety of the community, such acondition is inconsistent with the Bail Reform Act and should be deleted.

B. Urinalysis testing is alsounconstitutional

Twoother courts have considered the constitutionality of drug testing in contextssimilar to the one that now confronts this Court. In Portillo v. United States District Court for theDistrict of Arizona, 15 F.3d 819 (9th Cir. 1994), the United States Courtof Appeals for the Ninth Circuit was called upon to determine the constitutionalityof drug testing where a defendant had been released pending sentencing on theftcharges. In Berry v. Districtof Columbia, 833 F.2d 1031 (D.C. Cir. 1987), the United States Court ofAppeals for the District of Columbia Circuit considered the constitutionalityof the District of Columbia's pretrial drug testing program in the context of acivil suit brought by a narcotics defendant.

InPortillo, the defendant had been ordered to submit to urine testingfollowing his conviction on theft charges and pending sentencing. Id. at 821. Mr. Portillo sought a writ ofmandamus. Id. The Ninth Circuit began its analysis byholding that the urinalysis testing was a search and, therefore, it was subjectto certain Fourth Amendment protections. Id. at 822, citing, Skinner v. Railway LaborExecutives' Ass'n, 489 U.S. 602 (1989). Nevertheless, the Ninth Circuit likened Portillo's status tothat of an individual on probation. Id. at 822-24. Basedupon Supreme Court precedent, the Ninth Circuit recognized that "theoperation of a probation system presents ‘special needs, beyond the normal needfor law enforcement that may justify departures from the usual warrant andprobable cause requirements." Id. at 822, quoting, Griffin v. Wisconsin, 483 U.S.868, 876-78 (1987). The NinthCircuit concluded, therefore, that the urine testing need not be based uponprobable cause but also concluded that the search must be reasonable. Id. at 824. The Ninth Circuit then applied itsanalysis to the case before it and held that the testing in that case was notreasonable and, consequently, granted the writ of mandamus vacating theDistrict Court's order.

Here,the record does not indicate that the district court had any evidence thatPortillo's crime of theft bore any correlation to drug usage. Prior to the court's order directingPortillo to submit to urine testing, the court had no information regardingPortillo's background, criminal history or potential prior drug use. Moreover, because the test was to beadministered as a routine test, Portillo had advance notice of it, and noexigency existed which would jeopardize the government's interest. Therefore, the district court erred byrequiring Portillo to submit to presentence urine testing.

Id.(footnote and citations omitted).

InBerry, the plaintiff appealed a ruling by the District Court that hadconcluded that the District of Columbia's pretrial drug testing of "nearlyall persons arrested in the District" did not "raise issues of‘constitutional dimension.'" Berry,833 F.2d at 1033-34. The Districtof Columbia Court of Appeals, as did the Ninth Circuit in Portillo,first concluded that "[m]andatory urinalysis clearly implicates rightssecured under the Fourth Amendment." Id. at 1034. Nevertheless, the District of Columbia Court of Appeals was unable topass judgment on the testing program because of the lack of an adequaterecord. Id. In giving "guidance" to theDistrict Court on remand, however, the Court of Appeals commented that"[i]f the trial court finds that drug testing and treatment are onlyrequired when there is an individualized determination that an arrestee willuse drugs while released pending trial, then the District's testing programwill more likely than not be found reasonable." Id. at 1035. On the other hand, the Court noted that "questions will arise if itis found that arrestees are compelled to participate in the drug testingprogram even in the absence of individualized suspicion of potential druguse." Id. at 1036.

Basedupon Portillo and Berry, it is clear that the constitutionalityof the urinalysis testing in the instant case must be weighed against Mr.XXXX's Fourth Amendment rights. The question then becomes, is it reasonable to order the testing of anindividual who has no history of drug use or alcohol abuse and who is underindictment for preparing false tax returns in connection with his tax returnpractice? Clearly under the wellreasoned Portillo decision, it is not. Indeed, in Portillo, the defendant had at least beenconvicted and was not, as is Mr. XXXX, presumed innocent. Nevertheless, even when dealing with adefendant pending sentencing, the Portillo Court found drug testing of adefendant with no record of prior drug use to be unreasonable. Similarly, the Berry Courtclearly disapproved of pretrial drug testing in the absence of suspicion ofpotential drug use. In short, thedrug testing condition in the instant case, given the record, is anunreasonable search and seizure in violation of Mr. XXXX's Fourth Amendment rights.

III. CONCLUSION

Asdiscussed above, Magistrate Judge Sanderson has absolutely no reasonable basisfor believing that Mr. XXXX will use drugs or abuse alcohol while on pretrialrelease. Moreover, Mr. XXXX'smedical condition makes it embarrassing and stressful to provide urine sampleson command during his weekly Pretrial Services visits. Clearly, the pretrial release conditionis not the least restrictive condition to assure Mr. XXXX's appearanceas required and the safety of the community. Also, given that Mr. XXXX's background contains no historyof drug use or alcohol abuse and that the charges in the instant case are notrelated to drug use or alcohol abuse in any way, this drug testing condition isunreasonable and violates Mr. XXXX's constitutional right to be free fromunreasonable searches and seizures.

Therefore,Mr. XXXX respectfully requests that this Court amend his conditions of releaseto remove the condition that he submit to urinalysis testing.

Respectfullysubmitted,

F.Clinton Broden

Attorneyfor Defendant

XXXX

UNITEDSTATES COURT OF APPEALS

FORTHE FIFTH CIRCUIT

UNITEDSTATES OF AMERICA, ) DISTRICT COURTNO.

) 3:-01-CR-246-P

Plaintiff, )

)

v. )

)

XXX, )

)

Defendant. )

)

MEMORANDUMOF LAW IN SUPPORT OF

DEFENDANT'SAPPEAL OF DETENTION ORDER

I. Factual Background & Statement of the Case

OnJuly 25, 2001, XXX was indictedfor two counts of wire fraud, in violation of 18 U.S.C. § 1343. In the indictment, the governmentalleged that, although Ms. XXX relinquished insurance proceeds from herex-husband’s death in favor of her children, she, nevertheless, took control ofthose proceeds.

AtMs. XXX’s initial appearance before the United States Magistrate Judge, thegovernment moved to detain Ms. XXX and requested a three day continuance of thedetention hearing. See Government’s Motion for Detention, (attached heretoas Attachment A). In its Motionfor Detention, the government claimed that Ms. XXX was “eligible[]” fordetention because: 1) there was a serious risk that she would flee and 2) therewas a serious risk that she would obstruct justice. Id. at 1. Significantly, although the Motion forDetention was a “fill in the blank” type form, the government did not check thebox alleging that Ms. XXX was eligible for detention based upon this case beinga “crime of violence.” Id.

At the beginning of the detention hearing held onAugust 2, 2001, the Magistrate Judge asked Assistant United States AttorneyWilliam McMurrey “for the record, what is the basis for the Government’s motionfor detention?” See Transcript ofDetention hearing at 3. Mr. McMurrey responded:

Ourbasis, Your Honor, is that the Defendant, as I put in the motion, is a threatto the community, threat to herself, as well as flight risk, and the governmenthas concerns in both those areas. Also the Defendant could be considered, at least from the Government’stheory is that she’s also an economic threat to the community as well.

Id.

Thegovernment introduced evidence at the detention hearing that, for the purposesof this appeal, Ms. XXX concedes might support an argument that she was somehowconnected to the death of her ex-husband.

Atthe conclusion of the detention hearing, the Magistrate Judge began by notingthat “[t]he government has moved for detention as a flight risk and danger tocommunity, and obstruction of justice.” Id.at 81. She went on to note that“there doesn’t appear any evidence was offered on obstruction” and that therewas not “sufficient [evidence adduced at the detention hearing] to meet theGovernment’s burden of establishing by a preponderance of the evidence that[Ms. XXX is] a flight risk.” Id.at 81-82. Nevertheless, althoughthe government did not allege that Ms. XXX was eligible for detention basedupon the fact that this case supposedly involved “a crime of violence,” theMagistrate Judge sua spontefound that, based upon United States v. Byrd, 962 F.3d 106, 109 (5th Cir. 1992), Ms. XXX was, infact, eligible for detention because the case involved “a crime ofviolence.” Id. at 82-84. This, coupled with the fact that the Magistrate Judge believed that thegovernment had been proven by clear and convincing evidence that Ms. XXX was adanger to the community, resulted in the Magistrate Judge ordering Ms. XXXdetained prior to trial. Id. at 83-84. The following day, the Magistrate Judge entered awritten order to this effect. See Attachment B hereto.

Shortlyfollowing the detention hearing, Ms. XXX’s appointed attorney sought towithdraw from this case because of his limited knowledge in the area ofcriminal law. When that motion wasgranted, undersigned counsel was assigned to the case. Undersigned Counsel then sought toreopen the hearing because of the fact that the government did not base itdetention motion on the allegation that the case involved “a crime of violence”and, therefore, the Magistrate Judge could not sua sponte hold that Ms. XXX was eligible for detention becausethis case allegedly involved “a crime of violence.” The defense also argued that the Magistrate Judge relianceupon dicta from Byrd that wascontrary to the Bail Reform Act.

Uponruling on Ms. XXX’s motion, the District Court noted that Ms. XXX’s legalarguments did not qualify as a basis for “reopening” the detentionhearing. See Attachment D hereto at 3.[6] Nevertheless, the District Court alsoconsidered Ms. XXX’s legal argument on the merits and determined them to be“without merit.” Id. On that basis, the District Court deniedMs. XXX’s motion to reopen the detention hearing. Id. at 4.

II. Argument

Itis well understood that, when Congress enacted the Bail Reform Act, it retainedthe preference for the release of most defendants prior to trial. See Byrd, 969 F.2d 106 at 109 ("There can be no doubt that this Act clearlyfavors non-detention."). Given that fact, the provisions of the Bail Reform Act should benarrowly construed in favor of release. See,e.g., United States v. Singleton, 182 F.3d 7, 23 (D.C. Cir. 1999); UnitedStates v. Hinote, 789 f.2d 1490, 1941 (11thCir. 1986) (It is required “that we strictly construe provisions of the BailReform Act of 1984). Cf. Williams v. United States, 458 U.S. 279, 290 (1982) (Criminal statutes shouldbe narrowly construed in favor of the defendant).

A.A Magistrate Judge May Not Sua Sponte OrderDetention Based Upon a Defendant Being Involved in a Crime of Violence.

As noted above, in neither its written motion nor inits oral elucidation of its grounds for detention at the start of the detentionhearing in this case did the government claim that it was moving for detentionbecause Ms. XXX was involved with a “crime of violence.” It was the MagistrateJudge who, sua sponte, found that Ms. XXX was eligible fordetention because she was “involved in a crime of violence.” Nevertheless,

18U.S.C. § 3142(f) does not authorize a detention hearing whenever the governmentthinks detention would be desirable, but rather limits such hearings to thefollowing instances:

1)upon motion of the government in a caseinvolving a crime of violence, § 3142(f)(1)(A);

2)upon motion of the government in anoffense where the maximum sentence is life imprisonment or death, §3142(f)(1)(B);

3)upon motion of the government in certaindrug offenses, § 3142(f)(1)(C);

4)upon motion of the government in thecircumstances presented in § 3142(f)(1)(D);

5)upon motion of the government or the court's own motion in a case that involves a serious risk of flight, §3142(f)(2)(A) or

6)upon motion of the government or the court's own motion in a case that involves a serious risk that thedefendant will obstruct or attempt to obstruct justice or intimidate or attemptto intimidate a witness or juror, § 3142(f)(2)(B).

UnitedStates v. Ploof, 851 F.2d 7, 9 (1st Cir.1988) (emphasis added). See also United States v. Himler, 797 F.2d 156 (3rd Cir. 1986). In short, for a defendant to beeligible for detention based upon being involved in “a crime of violence” thegovernment, not the Court on its own motion, must make such a claim in itsmotion for detention. Here, it isundisputed that the government did not make such a claim in its motion. As noted above, the government onlymoved for detention based upon the allegations that there was (1) a seriousrisk that Ms. XXX would flee and (2) a serious risk that she would obstructjustice. Nevertheless, theMagistrate Judge rejected both of these grounds following the detentionhearing.

The District Court, in its order continuing Ms.XXX’s detention, noted that the government did argue that Ms. XXX was a dangerto the community and, therefore, the Magistrate Judge was free to rely upon herfinding that Ms. XXX was involved with “a crime of violence” in order to makeher eligible for detention and then could detain her upon finding that thegovernment had shown that she was, in fact, a danger to the community. This argument turn the Bail Reform Acton its head.

Indeed,it now axiomatic that, even if Ms.XXX was a danger to the community, this alone cannot form the basis of detention if one of the six factors notedabove are not present. Byrd, 969 F.2d 106; Ploof, 851 F.2d at 9; Himler, 797 F.2d at 159. Here, however, none of the six factors were present. There was no motion of thegovernment that the case involved “a crimeof violence.” 18 U.S.C.§3142(f)(1)(A). Likewise, althoughthere was a motion of the government that “the case that involve[d] a seriousrisk of flight” (id. at3142(f)(2)(A)) and that the “case that involve[d] a serious risk that thedefendant w[ould] obstruct or attempt to obstruct justice,” (id. at 3142(f)(2)(B)), the Magistrate Judge found thatthese grounds were notpresent. In short, it cannot bethe law that, in any case in which the government believes a defendant is adanger to the community, it can allege any of the six grounds that justifymoving for detention, whether those grounds apply or not, and detentioneligibility can then, nevertheless, be based upon a ground that the governmentdid not raise and which the Court cannot raise on its own motion in the firstinstance.

B. The dicta in Byrd is Contrary to the Language and Spirit of theBail Reform Act.

Asnoted above, Ms. XXX is only charged with wire fraud, clearly not a crime of violence. Nevertheless, the Magistrate Jude and the District Courtcited dicta from Byrd, 969 F.2d106 indicating that a defendant is eligible for pretrial detention if there issimply a nexus between the crime charged and “a crime of violence.” While this is, indeed, a correctreading of the Byrd dicta, suchdicta tortures the reading of 18 U.S.C. § 3142(f) and does not carefullyconstrue the Bail Reform Act to favor non-detention. Indeed, as noted in United States v. DeBeir, 16 F.Supp. 2d 592, 594 (D. Md. 1998):

TheFifth Circuit appears to be the only circuit that gives meaning to the word"involves" in § 3142(f), finding that the phrase "involves ... acrime of violence" authorizes detention if the defendant perpetrated anact of violence that is sufficiently connected to the nonviolent chargedoffense. Byrd, 969 F.2d at 110; United States v. Reinhart, 975 F. Supp. 834,836 (W.D. La. 1997). Although Byrd givesmeaning to the word "involves," it ignores the word"crime," finding that a violent act, although uncharged and thus nottechnically a crime before the court, can support detention. Indeed, thisproposition, in Byrd, appears to be dicta....

DeBeir is exactly right that the Fifth Circuit is the onlycourt to engage in this tortured reading of 18 U.S.C. § 3142(f). Ms. XXX was not charged with any “crime” of violence. If Congress had wanted to basedetention on allegations that an individual committed an act of violenceassociated with the charged crime, it could have easily done so. See Fed. R. Evid. 404(b) (“[C]rimes, wrongs oracts”). Its failure to do so isconsistent with the fact that the Bail Reform Act favors non-detention. The Byrd dicta is, indeed, inconsistent with the plainlanguage of 18 U.S.C. § 3142(f) and calls for an expansive reading of the BailReform Act despite that fact that, in order to effectuate the purpose of theBail Reform Act, it should be narrowly construed.

III. Conclusion

Ms.XXX respectfully requests this Court to reverse the District Court's order ofcontinued detention in this case and order that Ms. XXX be released fromcustody upon the setting of reasonable conditions.

Respectfullysubmitted,

F.Clinton Broden

Attorneyfor Defendant

XXXNO.

INTHE

SUPREMECOURT OF THE UNITED STATES

OctoberTerm, 2001

XXXXX

Petitioner,

VERSUS

UNITEDSTATES OF AMERICA,

Respondent.

__________________________________________

EMERGENTPETITION FOR WRIT OF CERTIORARI

TOTHE UNITED STATES COURT OF

APPEALSFOR THE FIFTH CIRCUIT

__________________________________________

F.Clinton Broden

Broden& Mickelsen

2707Hibernia

Dallas,Texas 75204

214-720-9552

214-720-9594(facsimile)

Counselof Record for Petitioner QUESTION PRESENTED

Maya defendant who is not arrested for and not charged with a crime of violence,but who is charged with a crime “related” to a crime of violence, be detained,pursuant to 18 U.S.C. § 3142(f)(1)(a), pending trial?
TABLE OF CONTENTS

PAGENO.

QUESTIONPRESENTED ii

TABLEOF CONTENTS iii

INDEXTO APPENDIX iv

TABLEOF AUTHORITIES v

OPINIONBELOW 2

JURISDICTION 3

CONSTITUTIONALPROVISIONS 4

STATEMENTOF THE CASE 5

REASONSFOR GRANTING THE WRIT 7

A.Byrd Conflicts with the LegislativeHistory of the Bail Reform Act 8

B.Byrd Conflicts with the OverwhelmingNumber of Courts that Apply

theCategorical Approach to “Crime of Violence”

DeterminationsUnder the Bail Reform Act. 10

CONCLUSION 14

APPENDIX appendix

INDEXTO APPENDIX

AppendixA DetentionOrder entered by Magistrate Judge of the United States District Court for theNorthern District of Texas in United States v. Johnston, No. 3-01-CR-246-P (August 3, 2001)

AppendixB Judgmentand Opinion of the United States Court of Appeals for the Fifth Circuit in UnitedStates v. Johnston, No. 01-11278 (5th Cir.November 14, 2001).

AppendixC Orderof the United States Court of Appeals for the Fifth Circuit denying Petitionfor Panel Rehearing and Suggestion for Rehearing En Banc.

TABLEOF AUTHORITIES

PAGENO.

CASES

Fasslerv United States 858 F2d 1016 (5th Cir.1988), cert. denied., 490

U.S.1099 (1989) 6

UnitedStates v. Byrd, 969 F.2d 106 (5th Cir.1992) 5-8, 10

UnitedStates v. Campbell, 28 F.Supp.2d 805 (W.D.N.Y. 1998) 12

UnitedStates v. Chappelle, 51 F.Supp.2d 703 (E.D.Va. 1998) 12

UnitedStates v. DeBeir, 16 F.Supp. 2d 592 (D. Md.1998) 8-9

UnitedStates v. Dillard, 214 F.3d 88 (2d Cir.2000), cert. denied, 131 U.S.

1232(2001) 10

UnitedStates v. Gloster, 969 F.Supp. 95 (D.D.C.1997 10, 12

UnitedStates v. Hardon, 6 F.Supp.2d 673 (W.D.Mich. 1988) 11

UnitedStates v. Hinote, 789 F.2d 1490 (11th Cir.1986) 7

UnitedStates v. Johnson, 704 F.Supp. 1398 (E.D.Mich 1988) 12

UnitedStates v. Kyle, 49 F.Supp. 2d 526 (W.D. Tx.1999) 8

UnitedStates v. Orta, 760 F.2d 887 (8th Cir.1985) 7

UnitedStates v. Powell, 813 F.Supp. 903 (D. Mass.1992) 12

UnitedStates v. Reinhart, 975 F.Supp. 835 (E.D.La. 1997) 8

UnitedStates v. Salerno, 481 U.S. 739 (1987) 7-8, 13

UnitedStates v. Silva, 133 F.Supp. 104 (D.Mass.2001) 12

UnitedStates v. Singleton, 182 F.3d 7 (D.C. Cir.1999) 7, 10, 12

UnitedStates v. Spry, 76 F.Supp.2d 719 (S.D.W.Va. 1999) 12

UnitedStates v. Taylor, 495 U.S. 575 (1990) 10

UnitedStates v. Washington, 907 F.Supp. 476(D.D.C. 1995) 12

UntiedStates v. Aiken, 775 F.Supp. 855 (D.Md.1991) 12

Williamsv. United States, 458 U.S. 279 (1982) 7

Statutes

18U.S.C. § 1343 5

18U.S.C. § 3142 ii, 7-10, 12

18U.S.C. § 3145 3, 6

18U.S.C. § 924(e) 10

18U.S.C.§ 922(g) 11

28U.S.C. § 1254 3

Other

984U.S.C.C.A.N. 3182 9

NO.________

INTHE

SUPREMECOURT OF THE UNITED STATES

OctoberTerm, 2001

XXX,

Petitioner,

VERSUS

UNITEDSTATES OF AMERICA,

Respondent.

__________________________________________

EMERGENTPETITION FOR WRIT OF CERTIORARI

TOTHE UNITED STATES COURT OF

APPEALSFOR THE FIFTH CIRCUIT

__________________________________________

Petitioner, XXX, respectfully requests that awrit of certiorari issue to review the judgment of the United States Court ofAppeals for the Fifth Circuit in United States v. XXX, No. 01-11278 (5th Cir. November 14, 2001).OPINION BELOW

TheDetention Order entered by Magistrate Judge of the United States District Courtfor the Northern District of Texas in United States v. XXX, No. 3-01-CR-246-P (August 3, 2001) is attachedhereto as Appendix A.

Thejudgment and opinion in United States v. XXX, No. 01-11278 (5th Cir. November 14, 2001) is attached hereto AppendixB.

Acopy of the Fifth Circuit's order denying a panel rehearing and denying arehearing en banc, in UnitedStates v. XXX, No. 01-11278 (5th Cir.December 18, 2001) is attached hereto as Appendix C.
JURISDICTION

Thejudgment and opinion of the United States Court of Appeals for the FifthCircuit was entered on November 14, 2001. On December 18 2001, the United States Court of Appeals for the FifthCircuit denied Ms. XXX’s Petition for Panel Rehearing and Suggestion forRehearing En Banc. The jurisdiction of this Court toreview the judgment of the United States Court of Appeals for the Fifth Circuitis invoked pursuant to 28 U.S.C. § 1254(1) and 18 U.S.C. § 3145.

CONSTITUTIONALPROVISIONS

TheFifth Amendment to the United States Constitution provides, inter alia:

Noperson ...in any criminal case shall...be deprived of life, liberty, orproperty, without due process of law....

STATEMENTOF THE CASE

OnJuly 25, 2001, XXX was indictedfor two counts of wire fraud, in violation of 18 U.S.C. § 1343. In the indictment the governmentalleged that, although Ms. XXX relinquished insurance proceeds from herex-husband’s death in favor of her children, she, nevertheless, took control ofthose proceeds.

Adetention hearing was held in the case on August 2, 2001. At the hearing, the governmentintroduced evidence that might support an argument that Ms. XXX was somehowconnected to the death of her ex-husband. At the conclusion of the hearing, the Magistrate Judge determined thatMs. XXX was neither a flight risk nor a danger to the community. Nevertheless, although Ms. XXX was onlycharged with wire fraud related to the insurance proceeds, the Magistrate Judgefound that the wire fraud charges were “related” to a crime of violence. Therefore, relying upon UnitedStates v. Byrd, 969 F.2d 106 (5th Cir.1992), the Magistrate Judge detained Ms. XXX finding by clear and convincingevidence that she was a danger to the community. The Magistrate Judge incorporated her ruling into a writtenorder filed on August 3, 2001.

Thedefense later sought to reopen the detention issue and argued, inter alia., that the Byrd dicta is contrary to the language and purpose of the BailReform Act.[7] The District Court issued an order onSeptember 28, 2001 denying the Motion. The District Court held that the Magistrate Judge correctly applied thisCourt’s decision in Byrd.

OnOctober 4, 2001, Ms. XXX filed a Notice of Appeal with the United States Courtof Appeals for the Fifth Circuit. On November 14, 2001, the Fifth Circuit issued an opinion affirming theDistrict Court’s continued order of detention. The Court held that Ms. XXX “failed to show that thedistrict court abused its discretion in applying Byrd.” On December 18, 2001, the Fifth Circuit denied Ms.XXX Petition for Panel Rehearing and Suggestion for Rehearing En Banc.

REASONS FOR GRANTING THE WRIT

Inupholding the constitutionality of the Bail Reform Act in United States v.Salerno, 481 U.S. 739, 750 (1987), thisCourt recognized that the Act “operates only on individuals who havebeen arrested for a specific category ofextremely serious offenses (emphasis added).” Likewise, this Court, as well as various courts ofappeals, have understood that when Congress enacted the Bail Reform Act itretained the preference for the release of most defendants prior to trial.[8]Indeed, courts have generally held that the provisions of the Bail Reform Actshould be narrowly construed in favor of release.[9]

Nevertheless,in United States v. Byrd, 969 F.2d 106,110 (5th Cir. 1992), the United States Court of Appeals for the Fifth Circuitwrote:

[I]tis not necessary that the charged offense be a crime of violence [in order todetain a defendant]; only that the case involve a crime of violence.... But theproof of a nexus between the non-violent offense charged and one or more of thesix § 3142(f) factors is crucial.

Asa result, individuals in the Fifth Circuit, such as Ms. XXX, who are not arrested for a specific category of offenses and whoare not charged with violentcrimes have been, and will continue to be, subject to detention, pursuant to 18U.S.C. § 3142(f)(1)(a), on the theory that their crimes are merely “related” tocrimes of violence.[10]

TheFifth Circuit’s interpretation of the Bail Reform Act is in conflict with thelanguage contained in this Court’s opinion in Salerno and is also in conflict with holdings from otherUnited States courts of appeals. Given this conflict, as well the importance and fundamental nature of anindividual’s strong interest in liberty (Salerno, 481 U.S. 750), this Court should grant certiorarito determine whether individuals who are not charged with crimes of violencecan, nevertheless, be detained pursuant to 18 U.S.C. § 3142(f)(1)(a). See Rules of the Supreme Court of the United States,Rules 10(a) and 10(c). Absentreview by this Court, such detention will continue to be visited only upondefendants unlucky enough to be charged in the Fifth Circuit.

A.Byrd Conflicts with theLegislative History of the Bail Reform Act

Asnoted in United States v. DeBeir, 16F.Supp. 2d 592, 594 (D. Md. 1998):

TheFifth Circuit appears to be the only circuit that gives meaning to the word"involves" in § 3142(f), finding that the phrase "involves ... acrime of violence" authorizes detention if the defendant perpetrated anact of violence that is sufficiently connected to the nonviolent chargedoffense. Although Byrd givesmeaning to the word "involves," it ignores the word"crime," finding that a violent act, although uncharged and thus nottechnically a crime before the court, can support detention. Indeed, thisproposition, in Byrd, appears to be dicta.... (citations omitted)

Indeed,a review of the legislative history supports the conclusion reached in DeBeir. In theSenate Judiciary Committee Report accompanying the passage of the Bail ReformAct it was noted:

Apretrial detention hearing to determine whether there is any form ofconditional release that will reasonably assure the appearance of the defendantas well as the safety of the community shall be held upon the motion of thegovernment in a case in which the defendant is charged with an offensedescribed in (f)(1). The offenses set forth in subsection f(1) (A) though(C) are crimes of violence, offenses punishable by life imprisonment or death,or offenses for which a maximum 10-year imprisonment is prescribed in theControlled Substances Act, the Controlled Substance Import and Export Act orSection 1 of the Act of September 15, 1980.

S.Rep. No. 98-225, at 20 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3203(emphasis added). This is also the interpretation given to this provision ofthe Bail Reform Act last year by the United States Court of Appeals for theSecond Circuit:

Thus,an arrest for an offense that fallswithin the statutory definition of "crime of violence" requires ahearing to determine whether there exists any "condition or combination ofconditions" of release that would "reasonably assure" thedefendant's appearance and the safety of the community. § 3142(e). Only if thecourt finds at the hearing that no combination of conditions will provide suchreasonable assurance may the person be detained. On the other hand, if thearrest offense is not within the statutorydefinition of "crime of violence," no detention hearing will be held(unless the defendant comes within some other provision for detention), and thedefendant must be released, no matter how violent and dangerous.

UnitedStates v. Dillard, 214 F.3d 88, 91 (2d Cir.2000) (emphasis added), cert. denied,131 U.S. 1232 (2001).

B.Byrd Conflicts with theOverwhelming Number of Courts that Apply the Categorical Approach to “Crime ofViolence” Determinations Under the Bail Reform Act.

Almostall of the courts use a “categorical approach” as opposed to a “case by caseapproach” to determine whether a person is charged with a “crime of violence”for purposes of 18 U.S.C. § 3142(f)). Likewise, this Court has required a ‘categorical approach” as opposed toa “case by case approach” when determining whether a crime qualifies as a“violent felony” for purposes of the armed career criminal provision of 18U.S.C. § 924(e). United Statesv. Taylor, 495 U.S. 575 (1990). However, such a “categorical approach”is contrary to the Fifth Circuit’s decision in Byrd and creates a conflict among the circuits. See United States v.Singleton, 182 F.3d at 10 n.4 (noting that Byrdconflicts with the categorical approach tointerpreting the Bail Reform Act); United States v. Gloster, 969 F.Supp. 92, 95 (D.D.C. 1997) (same).

Forexample, in United States v. Hardon, 6F.Supp.2d 673 (W.D. Mich. 1988), the defendant was charged with being a felonin possession of a firearm in violation of 18 U.S.C.§ 922(g) and the governmentsought detention. In consideringthe issue, the Court noted:

Underthe case-by-case approach the court may consider the specific conduct of thedefendant in committing the charged offense to determine whether there was asubstantial risk of physical harm. In light of the evidence produced at thedetention hearing to the effect that Defendant used a firearm in the course ofa robbery and a sexual assault, and that he had been involved in two other gasstation robberies, there is no question that the evidence was sufficient, underthe case-by-case approach, to find that the case against Defendant involved acrime of violence.

Mostcourts, however, favor applying the categorical approach to measure whether anoffense is a "crime of violence" for purposes of the Bail Reform Act.Under the categorical approach the court looks only to the statutory definitionof the offense itself and not to the specific circumstances under which thealleged offense was committed.

Id. at 675 (citations omitted). A case decided earlier this year,contained similar language:

[T]heCourt is bound to find that the offense charged against Mr. Silva is not acrime of violence, notwithstanding the facts surrounding the offense here.Stated differently, the Court cannot consider Mr. Silva's individual conduct inthe course of committing the offense charged. "The question is not whathappened in this case but what is the nature of the offense charged. . ."Thus, the frightening circumstances of the instant offense may not form thebasis of finding whether, categorically speaking, the crime is one of violence.

UnitedStates v. Silva, 133 F.Supp. 104, 113(D.Mass. 2001) (citations omitted). See also, Gloster,969 F.Supp. at 92, 94 (“As an analytic matter, in decidingwhether the felon-in-possession offense is a crime of violence, the Court is tofollow a ‘categorical approach,’ that is, the Court shall look only to thestatutory definition of the offense itself and not to the specific circumstancesunder which the alleged offense was committed.”); United States v.Johnson, 704 F.Supp. 1398, 1400 (E.D. Mich1988) (“Each generic offense must be categorized as either a ‘crime ofviolence’ or not a crime of violence; there cannot be a justification for adhoc classification of criminal activity.”);United States v. Powell, 813F.Supp. 903, 909 (D. Mass. 1992) (Uses categorical approach to hold that 18U.S.C.§ 922(g) is not a “crime of violence” despite the fact that there wereevidence at the detention hearing that the gun the defendant illegallypossessed was used in a murder.); Singleton, 182 at 11-12 (Applying categorical approach to 18U.S.C. § 3142(f) determination); United States v. Spry, 76 F.Supp.2d 719, 721 (S.D. W.Va. 1999) (same); UnitedStates v. Chappelle, 51 F.Supp.2d 703,704-05 (E.D. Va. 1998) (same); United States v. Campbell, 28 F.Supp.2d 805, 807 (W.D. N.Y. 1998) (same); UnitedStates v. Washington, 907 F.Supp. 476, 484(D.D.C. 1995) (same); United States v. Aiken, 775 F.Supp. 855, 856 (D.Md. 1991) (same).

ThisCourt in Salerno, noted the importanceand fundamental nature of an individual’s strong interest in liberty. See Salerno, 481 U.S. 750. Indeed, this interest in liberty is too important and too fundamental to be dependent upon the circuit inwhich a defendant is arrested. Theconflict between Byrd’s “case bycase approach” to the provisions of the Bail Reform Act and the myriad of othercases applying a “categorical approach” to the provisions Bail Reform Actrequires that this Court resolve the conflict. CONCLUSION

Forthe foregoing reasons, the petition for writ of certiorari should issue toreview the judgment of the United States Court of Appeals for the Fifth Circuitin United States v. XXX, No. 01-11278(5th Cir. November 14, 2001).

DATED:December 28, 2001. Respectfullysubmitted,

F.Clinton Broden

Counselof Record for Petitioner

[1] Ofthe rebuttable presumptions that may apply, this is by far the most prevalent

[2] This mandatory rule may be excused in"extraordinary circumstances." See 18 U.S.C. § 3145(c).

[3] While the report prepared by the Pretrial ServicesAgency indicated that Mr. XXXX had been convicted of murder and aggravatedassault in the late 1970s and early 1980s respectively, the evidence producedat the detention hearing indicated that Mr. XXXX has held his present job forthe past six years and is considered by his employer to be an excellentemployee, that he has recently been married and owns his own home where helives with his wife and three step-children, and that he is a decorated combatveteran from the Vietnam War. Indeed, there is every indication that Mr. XXXX has taken dramatic stepsin changing his life around. SeeExhibit A at 3-6.

[4] The Motion to Revoke Detention Order raises a purematter of law in that it raises the issue of whether the Court had jurisdictionto even hold a detention hearing. In any event, Mr. XXXX notes that the detention order will be reviewedby this Court de novo. United States v. Fortna, 769 F.2d 243, 249 (5th Cir. 1993). Moreover, pretrial release should onlybe denied for the "strongest of reasons." Truong Dinh Hung v. United States, 439 U.S. 1326,1329 (1978) (citation omitted).

[5] See also United States v. Gebro,948 F.2d 1118, 1121 (9th Cir. 1991) ("The Bail Reform Act of 1984, 18U.S.C. § 3141, et seq., requires the release of a person facingtrial under the least restrictive condition or combination of conditions thatwill reasonably assure the appearance of the person as required and the safetyof the community."); United States v. Himler, 797 F.2d 156, 159(3rd Cir. 1986) ("If a judicial officer finds that release on personalrecognizance or unsecured bond will not provide the requisite assurances, thejudicial officer must impose the least restrictive bail conditions necessary toassure appearance and safety."); United States v. Motamedi, 767F.2d 1403, 1405 (9th Cir. 1985) ("...Bail Reform Act of 1984...mandatesrelease of a person facing trial under the least restrictive condition orcombination of conditions that will reasonably assure the appearance of theperson as required."); United States v. Lopez, 827 F. Supp. 1107,1108 (D. N.J. 1993) ("Courts must strive to impose the least restrictivebail conditions necessary to assure the appearance of the defendant at trialand the safety of the public in the interim between arrest and trial.").

[6] Themotion was originally filed as a motion to reopen the detention hearing ratherthan a motion to revoke because of allegations that Ms. XXX was not receivingproper medical care when in custody. Because there is no jurisdictional time limit on filing a motion torevoke a detention order (see 18U.S.C. § 3145), this seems to be a distinction without a difference since theDistrict Court ultimately considered Ms. XXX’s legal arguments on themerits. See Fassler v UnitedStates 858 F2d 1016 (5th Cir. 1988)(“[W]e decline to hold that § 3145 provides the exclusive means by which a person under indictment canchallenge his pretrial detention....”), cert. denied., 490 U.S. 1099 (1989).

[7] Ms.XXX originally filed her motion as a motion to reopen the detention hearingrather than a motion to revoke the detention order because the motion includedallegations that she was not receiving proper medical care while in custody. When this issue was finally resolved,Ms. XXX did not believe it necessary to change the style of the pending motiongiven that the Fifth Circuit has refused to hold that 18 U.S.C. § 3145“provides the exclusive means bywhich a person under indictment can challenge his pretrial detention....” Fassler v United States, 858 F2d 1016 (5th Cir. 1988), cert. denied., 490 U.S. 1099 (1989). Ultimately, both the District Court and the Fifth Circuitconsidered the question raised herein on its merits.

[8] See,e.g., Salerno, 481 U.S. at 747 (1987) (“TheBail Reform Act carefully limits the circumstances under which detention may besought to the most serious of crimes.”); United States v. Orta, 760 F.2d 887, 891 (8th Cir. 1985) (enbanc) (“The wide range of restrictions[under the Bail Reform Act] ensures, as Congress intended, that very fewdefendants will be subject to pretrial detention.”)

[9] See,e.g.,United States v. Singleton, 182 F.3d 7, 23(D.C. Cir. 1999); United States v. Hinote, 789 F.2d 1490, 1941 (11th Cir. 1986) (It is required “that westrictly construe provisions of the Bail Reform Act of 1984). Cf. Williams v. United States, 458 U.S. 279, 290 (1982) (Criminal statutes shouldbe narrowly construed in favor of the defendant).

[10] See, e.g., United States v. Kyle, 49 F.Supp. 2d 526, 528 (W.D. Tx. 1999); UnitedStates v. Reinhart, 975 F.Supp. 835 (E.D.La. 1997).