Bond for the Federal Criminal Defendant

Bond for the Federal Criminal Defendant

For the overwhelming number of federal white-collar criminal defendants indicted for a crime, it is their first brush with the law. Fear of lengthy and immediate incarceration likely overwhelms them. Most are familiar with the terms “bail” and “bond” from watching their favorite crime television show, but these ideas are usually based on state criminal offenses, rather than the federal system in which they find themselves. They may try to start gathering resources to “make bond” and avoid being locked up. However, they should probably save this money for a white-collar criminal attorney, as money for bond may not be necessary or helpful.

Before their initial appearance, they will meet with a representative of the Pretrial Services Office who will perform a brief interview and provide a background report to the Judge. This report will focus on ties to the community, employment, and criminal history. This is the information upon which the judge will focus in determining whether to release the defendant, or keep them detained. It is important to be honest with the Pretrial Officer, as deception can be grounds for additional charges and give the court reasons to keep them detained.

Prior to the initial court appearance, most criminal attorneys make contact with the United States Attorney that is handling the prosecution to inquire whether they seek detention. If the U.S. Attorney doesn’t want the defendant locked up pending trial, odds are they will be released after the initial appearance. If they do want the defendant in jail, then a hearing will be required to avoid pre-trial lock-up. If a full-blown hearing is required, the white-collar criminal attorney should be prepared to have supportive witnesses available from the defendant’s family, job, and from the community to show there is no incentive to flee and that they will be a productive member of society pending trial.

Odds are the initial appearance will be conducted before a United States Magistrate, rather than the actual United States District Judge that will be trying the case. The federal statute controlling bond decisions is 18 U.S.C. 3142. This statute says the Magistrate Judge is required to allow pre-trial release UNLESS they determine that “release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.” In short, they want to make sure the defendant will show up for trial, and won’t harm themselves or others while awaiting trial. White-Collar defendants accustomed to international travel, private aircraft, and private yachts should be prepared to forfeit their passport, as well as their access to any plane or vessel that could be viewed as increasing their risk of flight as a condition of bond. Firearms may also be required to be secured away from their access.

In short, for white-collar defendants, who by definition are not charged with drug crimes or crimes of violence, and who have not shown the propensity to flee or hide assets, it is quite common to be released before trial on their own recognizance, or on signing an unsecured appearance bond (also known as a “signature bond”).

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