Most people are not prepared for the arrest of a loved one and, hopefully, you’ll never experience it first-hand. For those who do find themselves in this unfortunate situation, however, it is important to keep a few things in mind if your loved one is arrested for a federal crime.
Federal cases operate differently from state cases. What is portrayed in television is not indicative of the federal system. Most TV shows and movies center around state crimes such as robbery or murder. These are reactive crimes where arrests are often made quickly after the offense is committed. Once arrested, a suspect is charged and arraigned, which simply means that a judge explains the charge against the suspect and the suspect’s rights. Then, a bail bond is set by the judge which allows money to be put up to ensure the suspect will attend court proceedings. This is not the process in federal cases.
Bond exists to ensure a defendant’s appearance in court and the safety to the community while a defendant is awaiting trial. However, federal cases do not generally operate in the same manner as state cases when it comes to getting released from jail after an arrest. In fact, unless the Government agrees to a suspect’s release or you are able to establish that your loved one is not a danger to the community and will appear for court, your loved one will likely remain in jail until trial.
Federal approaches to bail and detention can be quite confusing. In federal cases, after someone is arrested, that person is brought before a federal magistrate for an initial appearance and detention hearing within three days of an arrest under Rule 5 and 5.1 of the Federal Rules of Criminal Procedure. The suspect will learn the charges against him or her, whether court-appointed counsel is available, whether probable cause exists for the case and detention of the defendant, and whether any set of conditions could reasonably assure appearance by the defendant and safety to the community. Specifically, the detention hearing determines whether a person is a danger to the community or a flight risk. The authority of the Court to order a person to remain incarcerated pending trial is provided for under 18 USC 3142 (e) and (f). The following offenses or factors subject a person to pretrial detention:
If any of the above factors exist, then the Court must determine whether the defendant will present a flight risk or a danger to the community or another person. If so, then the defendant will not be released.
It is important to also understand that certain offenses actually invoke a rebuttable presumption that the defendant will be a risk of flight or a danger to the community. Specifically, the following offenses trigger this presumption:
The most striking difference between federal initial appearance/detention hearings and state bail hearings is the fact that drug defendants in the federal system are presumed to be a flight risk and a danger to the community. This means that defendants are not presumed to be entitled to release. In other words, drug defendants in federal cases have to overcome a barrier to be released. Thus, drug defendants are simply assumed to be dangerous and kept in custody absence a substantial showing that they are “safe” and likely to appear.
Most federal cases do not give regard to monetary security/collateral. This means that loved ones of most federal defendants will not be looking for a bondsman. Rather, they should concentrate on establishing stability and reliability and be prepared to testify at the detention hearing that the defendant will appear in court and that they will take steps to ensure appearance.
The following two examples illustrate some of the challenges loved ones face.
Example One: Early in the morning, DEA and local agents raid your son’s home to execute a search and arrest warrant. During the raid your son is taken into custody. You later find out the prosecutor is charging him with possession of a controlled substance but is seeking to prove up two years of relevant conduct to enhance his punishment range.
Example Two: Your uncle is arrested at his workplace by IRS agents who state that he has been indicted for mail fraud under 18 USC 1341, wire fraud under 18 USC 1343, money laundering under 18 USC 1956, and tax evasion under 26 USC 7201. You find out that the prosecutors are seeking to bring in five years of relevant conduct to enhance his possible punishment range.
Very few people are prepared for these types of circumstances. The following steps can help loved ones confront this type of a crisis:
Whenever a warrant is executed, whether it be an arrest warrant or a search warrant, agents will typically leave a copy of the warrant with someone present. Understand that a warrant only includes a judge’s signature and the language of the order. Warrants themselves do not contain the facts that are used to justify searches or federal arrests. The document with that information is the affidavit supporting the warrant. While the affidavit contains the real meat, the warrant can at least offer some useful information. Warrants will tell which jurisdiction and venue will hold the detention hearing. They also will list an agent’s name. These pieces of information can help loved ones and attorneys figure out where the loved one is going to be held and what kind of charge he or she might be facing.
If you are present at the time of the raid or arrest, you can ask agents for their contact information and which jail the suspect is likely being taken. This information will also allow your loved one’s attorney to make contact and begin to discuss the Government’s position on detention as well as a general sense of what your loved one is accused of.
If you are present at the raid or arrest, or you make contact through a jail visit, understand that you are not a lawyer and your conversation, if at a jail, will be recorded. While it may sometimes be beneficial to speak to an agent, it is never wise to do so without an attorney present. Agents are skilled at interrogating and gathering information that result in statements that are often used against your loved one. In the alternative, if the interview takes place after an attorney is hired, then it transfers the interrogation from a confession to a proffer. Confessions get you time. Proffers oftentimes lower sentences.
The federal sentencing guidelines are a series of principles and rules that suggest a sentencing range to judges if someone pleads guilty (or is found guilty after a trial). For example, USSG 2D1.1 sets the standards for most federal drug cases. This guideline bases a sentence upon the quantity of drugs involved in a case and a myriad of other factors, such as the use of a premises to distribute drugs or the importation of drugs. These guidelines are no longer mandatory since the decision rendered under U.S. v. Booker, 543 U.S. 220 (2005). Nonetheless, judges must consider the guidelines and most sentences still fall within the guidelines. Since the guidelines are so important, it is extremely important that your loved one’s attorney discuss the possible applications of the guidelines to the case.
In federal courts, the decision whether someone remains in jail, also called detained, or is released is not predicated upon the ability to secure a bail bond. Instead, a detention hearing is scheduled quickly after an arrest. Under federal law, persons charged with a drug offense are presumed to be a danger to the community and a flight risk. Unless the Government agrees to release the suspect or you are able to establish that your loved one is not a danger to the community and will appear for court, your loved one will remain in jail until trial. Simply put, in drug cases, release is the exception rather than the norm.
This means that you should start to consider if anyone can vouch for the reliability of your loved one at a detention hearing. Presenting testimony that the defendant has ties to the community, a job, family in the area, lack of a prior criminal record, and a place to stay if released are vital pieces of information that can help your loved one get released. You are likely one of the few people who can establish these facts at the hearing. You should make your willingness and availability to testify at the detention hearing known to the attorney as quickly as possible.