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Federal Pretrial Release — Analysis

It is extremely difficult for a federal defendant to obtain pretrial release — especially where the defendant has a prior record and/or has failed to comply with previous pretrial release orders in separate cases.

Drug Offenses

In drug offenses wherein the maximum sentence is 10 years or more, for instance, there is a rebuttable presumption that there are no conditions that will reasonably assure the appearance of the person, or the safety of the community. 18 U.S.C. Section 3142(e). Once the statutory rebuttable presumption is raised by the government, the defendant carries the burden of production to come forward with evidence to rebut the presumption. The defendant’s obligation to come forward with evidence does not shift to the defendant, the government’s ultimate burden of persuasion. United States v. King, 849 F.2d 485 (11th Cir. 1988). The presumption then remains in the case as evidence upon which the magistrate judge may rely on, along with other evidence produced by the defendant and the government. Length of detention by itself does not play a role in granting or denying pretrial release. United States v. Quartermaine, 913 F.2d 910 (11th Cir. 1990).


Pretrial detention based upon his dangerousness is not unconstitutional. United States v. Salerno, 481 U.S. 739 (1987). In order to detain a defendant on the basis of dangerousness, the government must prove by clear and convincing evidence that no condition or combination of conditions will reasonably assure the safety of any other person and the community. United States v. Medina, 775 F.2d 1398 (11th Cir. 1985).

Risk Of Flight

A defendant should be detained if the government establishes by a preponderance of the evidence that he poses a risk of flight. United States v. Medina, 775 F.2d 1398 (11th Cir. 1985). The court may rely on the presumption established by Section 3142(e) to deny a defendant charged with a narcotics offense pretrial release on the basis that he poses a risk of flight.

Detention Hearings

Prior to a detention hearing, pretrial services are empowered by 18 U.S.C. Section 3153 to obtain personal information from a defendant in order to assist the court in making a determination about release or detention. Information obtained from the defendant may only be used for the purposes of determining issues of release or detention and are otherwise confidential. 18 U.S.C. Section 3153(c). The government may therefore not use information, such as phone numbers, obtained by a pretrial officer, as evidence at trial. At a detention hearing, the Jencks Act applies. After a witness testifies, any witness statements that are in the possession of the party calling the witness and related to the testimony must be produced. Fed. R. Crim. P. 26.2. At a detention hearing, both the government and the defense may proceed by way of proffer, subject to the discretion of the court. A decision by the magistrate judge may be reviewed by the District Court and therefore affirmed, modified or reversed. The standard of review is de novo, but it need not conduct a de novo hearing.