One of the issues that top federal criminal lawyers are routinely required to address in their representations of their client defendants is whether their client will be granted bail/bond and thus pre-trial release, or whether their client will be required to remain in custody pending trial. Very few federal criminal defendants prefer to remain in custody pending trial. In rare circumstances, however, a defendant may wish to begin “eating his time” in light of his or her assessment that the government’s evidence is overwhelming and thus that he or she may likely plead guilty. More commonly though, the defendant desperately seeks to avoid pre-trial detention. In making the determination to grant bond/pre-trial release from custody, federal trial court judges and magistrates chiefly rely upon two factors: 1) the risk of the danger of flight by the defendant, and 2) the risk of the danger to the community posed by the defendant. Within those two factors, there are numerous facts and arguments that defense counsel can bring to the court’s attention in an attempt to obtain his client’s release from custody.
With regard to the issue of the risk of flight, defense counsel can rely upon some or all of the following facts in an attempt to persuade the judge or magistrate that the defendant does not possess a legitimate risk of flight, and/or that any perceived risk of flight can be appropriately mitigated: the defendant’s long-standing ties to the judicial district in which he or she is facing charges; the defendant’s lack of history of travel outside that district; the presence of the defendant’s family within the judicial district, including, if applicable, children and/or a spouse or significant other; the defendant’s gainful employment within the judicial district; the defendant’s practical inability to flee, in light of his or financial or other circumstances; the defendant’s prior history of consistently reporting to other courts, or the court at issue, to face prior charges in previous cases; the ability of the court to mitigate any risk of flight by way of the defendant forfeiting possession of his or her passport; the defendant’s knowledge of the charges against him in the present prosecution for a substantial period of time prior to them actually being brought, without any attempt to flee; the ability of the court to use electronic monitoring or GPS tracking of the defendant while on pre-trial release; and the ability of the court to require the defendant to post collateral, such as a house or property, to ensure the defendant’s appearance. Those are just some of the facts that can support arguments in favor of the defendant’s release from custody pending trial. There are numerous other fact-based arguments that can be made by top, thoughtful, and aggressive federal defense counsel in support of the argument that the defendant does not pose a flight risk.
With regard to the issue of the alleged danger of the defendant to the community, there are likewise numerous arguments that can be advanced by top federal criminal defense counsel. These include: the defendant’s lack of prior criminal history; the defendant’s lack of serious or violent prior criminal history; the non-violent nature of the charged offense that defendant is facing; the defendant’s lack of history with firearms or dangerous weapons; the ability of the court to require the defendant to turn in any firearms or weapons that he or she currently legally possesses; the ability of the court, through US Pre-Trial Services, to monitor the defendant’s movements by way of electronic monitoring or GPS tracking; the ability of the court to completely limit the defendant’s movement by way of home detention or other restrictions while on pre-trial release; the ability of the court to have other “eyes” on the defendant by way of a third-party custodian; the defendant’s otherwise lawful conduct, apart from the charges at issue; the government’s lack of swiftness in prosecuting the defendant for an extended period of time following the offense conduct at issue, allowing the inference that even the government did not perceive the defendant to be a danger to the community; the court’s decision to grant pre-trial release to other defendants in the case who are facing the same charges as the defendant. Of course, again, there are numerous other fact-based arguments that can be made by top, thoughtful, and aggressive federal criminal defense counsel in support of the argument that the defendant does not pose a danger to the community, or that any such perceived danger can be appropriately mitigated by the court.
In sum, there is really nothing to lose in attempting to obtain a client’s release from custody. This is true even where the odds of succeeding in such a motion may appear to be insurmountable.
Written by Michael Leonard
Leonard Trial Lawyers
November 9, 2022