Federal Pretrial Release

The issue of pretrial detention or pretrial release is often the first issue a Federal criminal lawyer will address as he undertakes a client’s representation. As with most State courts, the Federal criminal justice system has a statute that details the Federal bail procedure to determine if someone is eligible for release pending the outcome of their case, or whether they will be detained while awaiting trial. Federal Statute 18 U.S.C. § 3142 governs the issue of pretrial release and will be the primary resource for analysis by Tampa federal criminal lawyer, Jason Mayberry. As a practice, an experienced Tampa criminal attorney will evaluate the allegation, inquire as to the facts alleged, and then analyze the Federal bond statute in accordance with the allegation.

After arrest, depending on the allegation, the defendant will be entitled to an immediate detention hearing to determine if there is a condition or combination of conditions that will both reasonably assure the defendant will appear to answer for their federal criminal allegation and that he or she will not be a danger to the community. The United States Attorney will move for detention in the event the charge is considered to be a:

1. Crime of violence, defined as an offense containing an element requiring the use, attempted use, or threatened use of force; another offense that is a felony that by its nature involves a substantial risk of force against another or another’s property, or certain felonies enumerated under specific statutory chapters;
2. An offense where the maximum sentence is life imprisonment;
3. A Federal drug charge where the maximum sentence is ten years or more;
4. Any Felony if the defendant has been previously convicted of two or more Federal or State offenses that would be considered a crime of violence, charge where the maximum sentence is life imprisonment, or a drug charge where the maximum sentence is ten years or more;
5. A felony involving a minor victim or that involves possession of a firearm, destructive device, other dangerous weapon, or involves a failure to register in accordance with a sex offender registry.

If any of the above factors are present, as your attorney we will attempt to overcome a presumption that there is no condition or combination of conditions that will reasonably assure the safety of the community if you have already been convicted of a Federal offense or State offense matching any of the above, if your current offense occurred while you were on some type of release pending trial for any offense, or if it has not been more than five years since your conviction or release from incarceration for an offense listed above.

The United States Attorney or the Judge can move that you be detained in a case that involves the following:

1. A serious risk that you will flee your charges;
2. A serious risk that you will be obstructive in some way to the judicial process involving your case.

You will also be subjected to a rebuttable presumption favoring detainer based upon flight risk if you are charged with:

1. A Federal drug crime with a maximum term of imprisonment of ten years or more;
2. A crime of violence or drug trafficking crime involving a firearm; a conspiracy within the United States to commit a murder, kidnapping, or maiming, outside of the United States; or an act of terrorism as defined in the terrorism statute;
3. An offense involving peonage or slavery;
4. An offense involving a minor victim, primarily sex offenses.

The Federal bond statute clearly lays out a primary, but non-exhaustive list of what factors a Court will consider as they determine whether to keep you in jail or grant your release. One of the factors carrying the most weight in such a determination is the nature and circumstances of the offense you are charged with as you have likely figured out from reading above. In short, the more serious the allegation, the more the Judge will likely lean toward your detention and the higher the hill you will have to climb to secure your release. Cases involving violence, terrorism, minor victims, major drug crimes, firearms or other explosive materials are naturally scrutinized under a harsher lens.

One factor that is always difficult to assess when a Tampa Federal criminal attorney takes on a case, is the weight of the evidence against the client. This issue is always more easily fleshed out after receipt of discovery and an opportunity for the attorney to investigate the case. As such, performing a detention hearing immediately is often a recipe for a concession on this limited factor as the United States will be much more familiar with the evidence in the case at this early stage. Depending on the allegation against the you, and despite their desire to be freed immediately, it often increases the chances of release if the detention hearing is performed after your criminal defense attorney can perform some diligence.

The client’s history and characteristics are often the focus of putting forth a positive and convincing argument for a client. The Court will consider the character of the defendant, their physical and mental condition, how well they are tied to the community, whether they have a substantial familial support system, their criminal history, whether they have a history of failing to appear on prior charges, amongst other factors. Because these factors are non-exhaustive, our office believes in putting any positive information forward for the Judge’s consideration.

Was the defendant on pretrial release, probation, or parole at the time of his alleged offense? If so, this factor will weigh very heavily against release. 

Finally, the Court will do a considerable analysis on whether the defendant poses a danger to any person in the community.

As stated above, the facts of the defendant’s allegation are relevant for every consideration as it relates to pretrial release. If the allegation is not violent, not subject to considerable penalty, does not involve a minor, and other factors warrant, the individual will be considered for a personal recognizance release. If this is the case, the person will simply promise to return to court and nothing more. Another prospective release option would be for the defendant to sign an unsecured appearance bond. Monetary bond terms will be set, no security will be required, and the person will sign the bond paperwork promising to appear. If they breach their pretrial release condition, they are subject to forfeiture of the value of their bond.

Most often when pretrial release is granted, a defendant will be released on a series of conditions. It will always be a condition that the defendant does not commit a crime while out. Further conditions may be:

1. Stay in the custody of a third-party custodian. This means that a third party, unrelated to the Court system, will supervise the defendant to some extent but will be obligated to report any violation of pretrial release terms. Often these individuals are family members or friends who have no criminal history, are upstanding members of the community, and those who the Court feels comfortable will take seriously their role;
2. Maintain employment or educational program;
3. Avoid certain people, places, or things;
4. Not have contact with any alleged victim or potential witnesses against them;
5. Maintain a curfew and report regularly to United States Pretrial Services;
6. Undergo any required medical, psychological, or substance abuse evaluation;
7. Refrain from intoxicating substances;
8. Relinquish any lawfully owned firearm during the duration of pretrial release;
9. Execute a secured bond with sufficient collateral or surety;
10. Wear a radio frequency or global positioning system monitor.

While the Federal criminal lawyer will strive to achieve Federal bond for their client involving the least amount of restriction, in some cases where the odds are stacked against the defendant, it can be a good idea to proactively inform the Court that the client is ready and willing to abide by any condition, even the most restrictive, in order to secure pretrial release. The simple fact is, some cases are of such a nature that you should push all your chips in and exhibit a willingness to take more restrictive conditions than you might like, in an effort to avoid detention in the jail.

Another, and generally unpopular, issue to consider is to not press forward with a detention hearing at your initial appearance and instead, reserving the right to come back on a motion. Facts and evidence are not always readily known or available to your Federal criminal lawyer at your initial appearance and it is often a more thorough approach to come back before the Court on a motion and without such a rush. 18 U.S.C. § 3142(f) states that once a detention determination has been made, the issue can only be reopened by a showing that there is information that exists that was not known to the moving party at the original detention hearing. This information must have a material bearing on the issue of whether there are conditions of release that will reasonably assure the appearance of a defendant as required and that the safety of any other person and the community will not be jeopardized. In other words, once the issue of detention has been determined, it is extremely difficult to have it reconsidered and be successful in your bid for pretrial release. Because of this, despite the understandable desire to get out of jail as quickly as possible, it is a much better practice to efficiently and thoroughly gather information and then proceed with a detention hearing.

Gaining pretrial release in a Federal criminal case is never an easy task. Attorney Jason Mayberry has been practicing consistently in Federal Court for over ten years, has gained pretrial release for many clients, even when the odds were stacked against them, and will earn you the best result possible under your circumstances. Contact the Mayberry Law Firm today at 813-444-7435 or email Jason directly at Jason@mayberryfirm.com to see how we can help you.