SECTION 2

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
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Section 2 - Plea Taking/Criminal Trial

2.11 Release Or Detention Pending Sentence Or Appeal (18 USC 3142, 3143, 3145; FRCP 46; Fed. R. App. P. 9)

        2.11.1 Release Or Detention Pending Sentence Or Appeal: Pending Imposition Or Execution Of Sentence
        2.11.2 Release Or Detention Pending Sentence Or Appeal: Pending Appeal By Defendant
        2.11.3 Release Or Detention Pending Sentence Or Appeal: Government Appeal Of Sentence
        2.11.4 Release Or Detention Pending Sentence Or Appeal: Burden Of Proof
        2.11.5 Release Or Detention Pending Sentence Or Appeal: Written Order Required
        2.11.6 Related Sources, Issues and Instructions: Other Sources

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

2.11.1 Release Or Detention Pending Sentence Or Appeal: Pending Imposition Or Execution Of Sentence

1. If the defendant was in custody at the time of sentencing, there will ordinarily be no question of release after sentencing to a term of imprisonment.

2. If the defendant was at liberty at the time of sentencing, invite counsel for the defendant to address the question of whether continued release is appropriate. Invite counsel for the government to respond. If any victims of the offense are present, give them the opportunity "to be reasonably heard." 18 USC 3771(a)(4).

3. Except for those individuals subject to paragraph 4 below, a person may be released while awaiting imposition or execution of sentence only if the judge finds "by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community." 18 USC 3143(a)(1). "The burden of establishing that the defendant will not flee or pose a danger to any other person or to the community rests with the defendant." FRCP 46(c).

Release shall be in accordance with the provisions of 18 USC 3142(b) or (c) (governing release pending trial). This authority may be used to permit an offender to surrender at a Bureau of Prisons institution as well as to permit a delay before a defendant begins to serve the sentence.

4. Persons convicted of a crime of violence, an offense punishable by life imprisonment or death, or a drug offense for which the maximum term of imprisonment is ten years or more shall not be released pending imposition or execution of sentence unless the judge finds by clear and convincing evidence that the person is not likely to flee or to pose a danger to any other person or the community, and (i) there is a substantial likelihood that a motion for acquittal or new trial will be granted or (ii) an attorney for the government has recommended that no sentence of imprisonment be imposed upon the person. 18 USC 3143(a)(2). Release may also be authorized "if it is clearly shown that there are exceptional reasons why such person’s detention would not be appropriate." See 18 USC 3145(c).

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

2.11.2 Release Or Detention Pending Sentence Or Appeal: Pending Appeal By Defendant

B. Release or detention pending appeal by the defendant

1. Except for those individuals subject to paragraph 2 below, if the defendant appeals, he or she may be released pending appeal only if the judge finds

(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c) of this title; and

(B) that the appeal is not for purpose of delay and raises a substantial question of law [FOOTNOTE 1] or fact likely to result [FOOTNOTE 2] in—

(i) reversal,

(ii) an order for a new trial,

(iii) a sentence that does not include a term of imprisonment, or

(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.

18 USC 3143(b).

Release under § 3143(b) shall be in accordance with the provisions of 18 USC 3142(b) or (c) (governing release pending trial). If the defendant is to be released because of the likelihood of a reduced sentence under § 3143(b)(1)(B)(iv), "the judicial officer shall order the detention terminated at the expiration of the likely reduced sentence."

If any victims of the offense are present, they must be given the opportunity "to be reasonably heard" regarding the release of the defendant. 18 USC 3771(a)(4).

2. Detention is mandatory for persons appealing from a sentence to a term of imprisonment for a crime of violence, an offense punishable by life imprisonment or death, or a drug offense for which the maximum term of imprisonment is ten years or more. 18 USC 3143(b)(2). Release may be authorized, however, in "exceptional cases." See 18 USC 3145(c).

FOOTNOTES:

Footnote 1: A “substantial question” has been defined differently by different circuits. Compare United States v. Giancola, 754 F.2d 898, 900–01 (11th Cir. 1985) (per curiam) (“a ‘close’ question or one that very well could be decided the other way”), cert. denied, 107 S. Ct. 669 (1986), with United States v. Handy, 761 F.2d 1279, 1281–83 (9th Cir. 1985) (“fairly debatable”). Most circuits that have considered the issue have followed Giancola: United States v. Steinhorn, 927 F.2d 195, 196 (4th Cir. 1991); United States v. Perholtz, 836 F.2d 554, 555 (D.C. Cir. 1987) (per curiam); United States v. Shoffner, 791 F.2d 586, 589–90 (7th Cir. 1986) (per curiam); United States v. Pollard, 778 F.2d 1177, 1182 (6th Cir. 1985); United States v. Bayko, 774 F.2d 516, 523 (1st Cir. 1985); United States v. Powell, 761 F.2d 1227, 1231–34 (8th Cir. 1985) (en banc), cert. denied, 106 S. Ct. 1947 (1986); United States v. Valera-Elizondo, 761 F.2d 1020, 1024–25 (5th Cir. 1985); United States v. Affleck, 765 F.2d 944, 952 (10th Cir. 1985) (en banc). The Third Circuit has followed Handy, which is generally regarded as posing less of a barrier to the appellant seeking release. United States v. Smith, 793 F.2d 85, 89–90 (3d Cir. 1986), cert. denied, 479 U.S. 1031 (1987). The Second Circuit has expressed the view that the two standards are not significantly different but has indicated a preference for the Giancola formulation. United States v. Randell, 761 F.2d 122, 125 (2d Cir.), cert. denied, 474 U.S. 1008 (1985).

Footnote 2: “Likely to result” means likely to result if the defendant prevails on the substantial question. United States v. Miller, 753 F.2d 19, 23 (3d Cir. 1985), and cases cited supra note 1. A substantial question concerning only harmless error would not meet this requirement. “Likely” has been defined by some circuits as “more probable than not.” United States v. Bayko, 774 F.2d 516, 522 (1st Cir. 1985); United States v. Valera-Elizondo, 761 F.2d 1020, 1024–25 (5th Cir. 1985); United States v. Pollard, 778 F.2d 1177, 1182 (6th Cir. 1985); United States v. Bilanzich, 771 F.2d 292, 299 (7th Cir. 1985); United States v. Powell, 761 F.2d 1227, 1232–34 (8th Cir. 1985) (en banc), cert. denied, 106 S. Ct. 1947 (1986).

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

2.11.3 Release Or Detention Pending Sentence Or Appeal: Government Appeal Of Sentence

C. Government appeal of sentence

1. After sentence of imprisonment: If the defendant does not appeal and the government appeals a sentence pursuant to 18 USC 3742(b), release pending appeal may not be granted. 18 USC 3143(c)(1).

2. After sentence not including imprisonment: If the government appeals pursuant to 18 USC 3742(b) from a nonprison sentence, the government should move for a redetermination of the defendant’s status. Release or detention is to be determined in accordance with 18 USC 3142 (governing release or detention pending trial). 18 USC 3143(c)(2); see supra section 1.03: Release or detention pending trial. Place the reasons for the determination on the record. If any victims of the offense are in the courtroom, they must be given the opportunity "to be reasonably heard" regarding the release of the defendant. 18 USC 3771(a)(4).

3. Note that, except for a sentence imposed by a magistrate judge, the government’s appeal must be approved personally by the Attorney General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General. 18 USC 3742(b) and (g).

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

2.11.4 Release Or Detention Pending Sentence Or Appeal: Burden Of Proof

"The burden of establishing that the defendant will not flee or pose a danger to any other person or to the community rests with the defendant." FRCP 46(c). The rules of evidence do not apply. FRE 1101(d)(3). A testimonial hearing may be required. If there are any victims of the offense, they must be provided notice of such a hearing and allowed to attend, and be given an opportunity "to be reasonably heard." 18 USC 3771(a)(2)–(4).

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

2.11.5 Release Or Detention Pending Sentence Or Appeal: Written Order Required

If the defendant is detained or conditions of release are imposed, the reasons must be stated in writing or on the record. Fed. R. App. P. 9(b). If the defendant is released over the government’s objection, reasons should be placed on the record to facilitate appellate review.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

2.11.6 Other Sources

David N. Adair, Jr., The Bail Reform Act of 1984, at 36–43 (3d ed. 2006)