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 defense 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”).