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On October 12, 1984, Congress passed and the President signed into law the Comprehensive Crime Control Act Amendments to the Bail Reform Act, which provides for detaining presumptively innocent citizens without bail prior to a determination of guilt. 18 U.S.C. §3142. While the Eighth Amendment provides that: “excessive bail shall not be required”; Congress apparently decided that the Eighth Amendment does not mean that an accused person is entitled to bail.

Thereafter, the Supreme Court agreed in Salerno, 481 U.S. 739 (1987) that the Eighth Amendment did not require an accused person be given bail. It only required that if bail was granted, that it must be reasonable.




As one court has noted, the Government’s all inclusive concept of pretrial detention of presumptively innocent individuals awaiting trial without bail is contrary to the legislative history of the 1984 Bail Reform Act which states that “there is a small but identifiable group of particularly dangerous defendants as to whom neither the imposition of stringent release conditions nor the prospect of release can reasonably assure the safety of the community or other persons.” Ridinger at 1401 (noting that at the detention hearing the Magistrate should “insist that the government produce the testimony of live witnesses or, but conducting an appropriate preliminary inquiry, establish the reliability of the information upon which the government bases its claim”).


See also       Acevedo-Ramos, 755 F.2d 203 (5th Cir. 1985).


But see  U.S. v. Gaviria, 828 F.2d 667 (11th Cir 1987) (noting Government merely proffered evidence and defendant was not permitted to call government agent in response to the proffer).


Furthermore, appropriate conditions of release (i.e. house arrest and monetary bond), that insure the safety of the community provide an alternative to pretrial detention.


See               U.S. v. Traitz, 807 F.2d 322, 324-26 (3rd Cir. 1986).


In U.S. v. Musgrave, (order on certified question from magistrate) Cause No.

SA-80-CR-70, the Chief Judge of this District court noted “ This Court also believes that due process requires the Defendant to be given the opportunity to review and cross-examine Special Agent Allen on the documents upon which he has based his testimony. Due Process requires an opportunity to be heard and for that opportunity to be meaningful…As has been said countless times, cross- examination is the best method of testing the credibility of a witness.” [Included in study materials]




At least one court has held that if the government fails to meet their burden of demonstrating that no combination of conditions will assure his appearance, the defendant in a drug case need not rebut the presumption of flight and dangerousness to the community.


“Upon considering all of the evidence presented, I conclude that the defendant has not rebutted the presumption that he presents a risk of flight and a danger to the community. I find, however, that the Government has not met its burden of producing clear and convincing evidence that not condition or combinations of conditions will assure his appearance or safety of the community…Accordingly, I will enter an order setting forth the terms of he defendant’s release, employing a combination of terms enumerated in §3142(C).” U.S. v. Jones, 614 F. Supp. 96, 98 (D.C. Pa. 1985).




Courts have held that a “preponderance of evidence” standard will suffice to demonstrate that no conditions will “reasonably assure” the accused’s appearance. However, certainty that the accused will appear is not required. Orta, 760 F.2d 887 (8th Cir. 1985).


See also       U.S. v. Motamedi, 767 F.2d 1403 (9th Cir. 1985) (stating “clear preponderance” standard);


U.S. v. Freitas, 602 F. Supp. 1283 (N.D. Cal. 1985);


U.S. v. Medina, 775 F.2d 1398 (11th Cir. 1985).


“Only if he government shows by clear and convincing evidence that no release condition or set of conditions will reasonably assure the safety of the community and by a preponderance of the evidence that no condition or set of conditions under subsection (C) will reasonably assure the defendant’s appearance can a defendant be detained before trial.


In this case, the district court erred in interpreting the ‘reasonably assure’ standard set forth in the statute as a requirement that release conditions ‘guarantee’ community safety and the defendant’s appearance. Such an interpretation contradicts both the framework and the intent of the pretrial release and detention provision of the 1984 Act.” Orta at 891.




At the same time that it rejected a facial challenge to the constitutionality of

  • 3142(e) of the Bail Reform Act, which permits detaining presumptively innocent citizens on a finding of dangerousness alone, the Supreme Court enumerated the procedural due process rights of such detainees.


“Under the Bail Reform Act, the procedures by which a judicial officer evaluates the likelihood of future dangerousness are


specifically designed to further the accuracy of that determination. Detainees have a right to counsel at the detention hearing. 18 U.S.C

  • 3142(f). They may testify in their own behalf, present information by proffer or otherwise, and cross-examine witnesses who appear at the hearing. Ibid. The judicial officer charged with the responsibility of determining the appropriateness of detention is guided by statutorily enumerated factors, which include the nature and the circumstances of the charges, the weight of the evidence the history and characteristics of the putative offender, and the danger to the community. §3142(g). The government must prove its case by clear and convincing evidence. §3142(f). Finally, the judicial officer must include written findings of fact and a written statement of reasons for a decision to detain. §3142i. The Act’s review provisions, §3145 c, provide for immediate appellate review of the detention decision.” Salerno, 481 U.S. 739 (1987).





And the guarantee of such rights is consistent with Justices Marshall and Stevens’ real fear that majority’s holding will allow the government to use the indictment as evidence to detain the accused. The Supreme Court has expressed the danger inherent in allowing an indictment to constitute evidence to detain someone.


“The statute now before us declares that persons who have been indicted may be detained if a judicial officer finds clear and convincing evidence that they pose a danger to individuals or to the community. The statute does not authorize the government to imprison anyone it has evidence is dangerous; indictment is necessary. But let us suppose that a defendant is evidence that he is dangerous and should be detained pending a trial, at which trial the defendant is acquitted. May the government continue to hold the defendant in detention based upon its showing that he is dangerous? The answer cannot be yes, for that would allow the government to imprison someone for uncommitted crimes based upon ‘proof’ not beyond a reasonable doubt. The result must therefore be that once the indictment has failed, detention cannot continue. But our fundamental principles of justice declare that the defendant is as innocent on the day before his trial as he is on the morning after his acquittal. Under this statute an untried indictment somehow acts to permit a detention, based on other charges, which after an acquittal would be unconstitutional. The conclusion is inescapable that the indictment has been turned into evidence, if not that the defendant is guilty of the crime charged, then that left to his own devices he will soon be guilt of something else. ‘If it suffices to accuse, what will become of the innocent?’” Coffin v. U.S., 156 U.S. 432 (1895).


“To be sure, an indictment is not without legal consequences. It establishes that there is probable cause to believe that an offense was committed, and that the defendant committed it. Upon probable cause a warrant for the defendant’s arrest may issue; a period of administrative detention may occur before the evidence of probable cause is presented to a neutral magistrate. Once a defendant has been committed for trial he may be detained in custody if the magistrate finds that no conditions of release will prevent him from becoming a fugitive. But in this connection the charging instrument is evidence of nothing more than the fact that there will be a trial, and ‘release before trial is conditioned upon the accused’s giving adequate assurance that he will stand trial and submit to sentence if found guilty. Like the ancient practice securing the oaths of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as additional assurance of the presence of an accused.’ Stack at 4-5.


“The finding of probable cause conveys power to try, and the power to try imports of necessity the power to assure that the process of justice will not be evaded or obstructed. ‘Pretrial detention to prevent future crimes against society at large, however, is not justified by any concern for holding a trial on the charges for which a defendant has been arrested.’ 794 F.2d 64, 73 (2nd Cir. 1986) (quoting U.S. v. Melendez-Carrion, 790 F.2d 984, 1002 (2nd Cir. 1986)). The detention purportedly authorized by this statute bears no relation to the government’s power to try charges supported by a finding of probable cause, and thus the interests it serves are outside the scope of interests which may be considered in weighing the excessiveness of bail under the Eighth Amendment.

“It is not novel that the Bail Clause plays a vital role in protecting the presumption of innocence. Reviewing the application for bail pending appeal by members of the American Communist Party convicted under the Smith Act, 18 U.S.C. §2385. Justice Jackson wrote:


‘Grave public danger is said to result from what [the defendants] may be expected to do, in addition to what they have done since their conviction. If I assume that defendants are disposed to commit every opportune disloyal act helpful to Communist countries, it is still difficult to reconcile with traditional American law the jailing of persons by the courts because of anticipated but as yet uncommitted crimes. Imprisonment to protect society from predicted but unconsummated offenses is…unprecedented in this country and …fraught with danger of excesses and injustice…’ Williamson v. U.S., 95 L Ed 1379, 1382 (1950) (Jackson, J., in chambers).


“As Chief Justice Vinson wrote for the Court in Stack v. Boyle: ‘Unless th[e] right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.’ 342 U.S. at 4.” Salerno at 719-21.


And Justice Stevens stated:


“If the evidence of imminent danger is strong enough to warrant emergency detention, it should support that preventive measure regardless of whether the person has been charged, convicted, or acquitted of some other offense. In this case, for example, it is unrealistic to assume that the danger to the community that was present when respondents were at large did not justify their detention before they were indicted but require that measure the moment that the grand jury found probable cause to believe they had committed crimes in the past. It is equally unrealistic to assume that the danger will vanish if a jury happens to acquit them. Justice Marshall has demonstrated that the fact of indictment cannot, consistent with the presumption of innocence and the Eighth Amendment’s Excessive Bail Clause, be used to create a special class the members of which are, alone, eligible for detention because of future dangerousness.


“Several factors combine to give me an uneasy feeling about the case the Court decides today. The facts set forth in Part I of Justice Marshall’s opinion strongly support the possibility that the Government is much more interested in litigation a ‘test case’ than in resolving an actual controversy concerning respondents’ threat to the safety of the community. Since Salerno has been convicted and sentenced on other crimes, there is no need to employ novel pretrial detention procedures against him. Cafaro’s case is even more curious because he is apparently at large and was content to have his case argued by Salerno’s lawyer even though his interest would appear to conflict with Salerno’s. But if the merits must be reached, there is no answer to the arguments made in Parts II and III of Justice Marshall’s dissent. His conclusion, and not the Court’s, is faithful to the ‘fundamental principles as they have been understood by the traditions of our people and our law.’ Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting). Accordingly, I respectfully dissent.” Salerno at 722-23.




Importantly, the defendants challenged §3142(e) on its face rather than as applied in Salerno. Thus, the Court left open the question of the constitutionality of the statute as applied to a particular set of facts:


“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that the Bail Reform Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment. Schall v. Martin at 269. We think respondents have failed to should their heavy burden to demonstrate that the act is ‘facially’ unconstitutional.” Salerno at 707-08.


See also       U.S. v. Simpkins, 826 F.2d 94 (D.C. Cir. 1987) (rejecting Constitutional challenge citing Salerno).





In an opinion by Chief Justice Rehnquist, the court held that detaining citizens based on dangerousness does not violate the Fifth Amendment’s Due Process Clause since such “detention imposed by the [Bail Reform] Act falls on regulatory side of the dichotomy,” Salerno at 708, and hence, “the government’s regulatory interest in community safety can, in appropriate circumstances, outweigh an individual’s liberty interest.” Salerno at 709.


In a scathing dissent, Justice Marshall, joined by Justice Brennan, fiercely criticizes the majority’s argument as “merely an exercise in obfuscation.” Salerno at 717.


“On the due process side of this false dichotomy appears an argument concerning the distinction between regulatory and punitive legislation. The majority concludes that the Act is a regulatory rather than a punitive measure. The ease with which the conclusion is reached suggests the worthlessness of the achievement.


The absurdity of this conclusion arises, of course, from the majority’s cramped concept of substantive due process. The majority proceeds as though the only substantive right protected by the Due Process Clause is a right to be free from punishment before conviction. The majority’s technique for infringing this right is simple: merely redefine any measure which is claimed to be punishment as ‘regulation,’ and, magically, the Constitution no longer prohibits its imposition. Because, as I discuss in Part III, infra, the Due Process Clause protects other substantive rights which are infringed by this legislation, the majority’s argument is merely an exercise in obfuscation.” Salerno at 716-17.




The high court rejected defendant’s contention that the Act contravenes the Eighth Amendment’s proscription against excessive bail, reasoning that:


“The Eighth Amendment addresses pretrial release by providing merely that ‘Excessive bail shall not be required. This Clause, of course, says nothing about whether bail shall be available at all.


While we agree that a primary function of bail is to safeguard the courts’ role in adjudicating the guilt or innocence of defendants, we reject the proposition that the Eighth Amendment categorically prohibits the government from pursuing other admittedly compelling interests through regulation of pretrial release.” Salerno at 712-13.


Again, in dissent, Justice Marshall rejects the Chief Justice’s reasoning as “mere sophistry”:


“The logic of the majority’s Eighth Amendment analysis is equally unsatisfactory. The Eighth Amendment, as the majority notes, states that ‘[e]xcessive bail shall not be required.’ The majority then declares, as if it were undeniable, that: “[t]his Clause, of course, says nothing about whether bail shall be available at all.’ Salerno at 712. If excessive bail is imposed the defendant stays in jail. The same result is achieved if bail is denied altogether. Whether the magistrate sets bail at $1 billion or refuses to set bail at all, the consequences are indistinguishable. It would be mere sophistry to suggest that the Eighth Amendment protects against the former decision, and not the latter.” Salerno at 717.




The length of a defendant’s pretrial detention may, of course, be challenged under the Due Process Clause. However, “the due process limit on the duration of preventive detention ‘requires assessment on a case by case basis, since due process does not necessarily set a bright line limit for length of pretrial confinement.’” U.S. v. Gonzales Claudio, 806 F.2d 334, 340 (2nd Cir. 1994)

(quoting Salerno, 749 F.2d 64) rev’d on other grounds, 95 L.Ed. 2d 697 (1987). To determine whether the length of a pretrial detention violates a defendant’s due process rights, the court weigh: (I) the length of detention; (ii) the extent of the prosecution’s responsibility for the delay of the trial; and (iii) the strength of the evidence upon which the detention was based. Melendez-Carrion v. U.S., 479 U.S. 978 (1986); see also U.S. v. Ojeda Rios, 846 F.2d 167 (2nd Cir. 1988) (applying the test to risk of flight); United States v. Gotti, 776 F. Supp. 666 (E.D.N.Y. 1991) (applying the test to dangerousness).


See               U.S. v. El-Hage, 213 F.3d 74 (2nd Cir. 2000) (per curium)(pretrial detention over 30 months did not violate due process because prosecution bore little responsibility for delay, defendant was charged with playing important role in worldwide terrorist organization, defendant was capable of flight and had strong motive to flee given that he was facing life sentence);


U.S. v. Infelise, 934 F.2d 103 (7th Cir. 1991)(potential 2-year detention did not violate due process because prosecution was not responsible for delay and defendants were shown to be dangerousness);

U.S. v. Tortora, 922 F.2d 880 (1st Cir. 1990)(18-month detention on ground of dangerousness did not violate due process even when trial could last up to 8 months and not likely to start to start within 2 or 3 months);


U.S. v. Quartermaine, 913 F.2d 910 (11th Cir. 1990)(prospect of 8 to 10-month detention, without more, did not violate due process or mandate release);


U.S. v. Mendoza, No. 87-0005 (D.N.J. July 7, 1987)(holding that a


nine-month detention without trial was not the “draconian result intended by Congress”)


But See        U.S. v. Millan, 4 F.3d 1038, 1044 (2nd Cir. 1993)(holding that while the length of pretrial detention is a factor in determining whether due process has been violated, the length of detention alone is not dispositive and “will rarely by itself offence due process.”)


Salerno, 481 U.S. 739 (stating the Due Process Clause clearly does not grant a person an absolute right to be free from detention, even when convicted of no crime).


Moreover, in order to detain a presumptively innocent citizen without bail the burden is on the prosecution and it should be substantial. Courts have recognized that procedures associated with such a process must provide substantially greater safeguards. Musgrave, Cause No. W-85-CR-25 (W.D. Tex., July 3, 1985), requiring pretrial disclosure to the accused of materials reviewed by magistrate at “detention hearing” noting that:


“This should be especially true where, as here, a presumptively innocent citizen is ordered detained before trial without bail, based upon the ex parte receipt of documentary evidence, without affording him the opportunity to review or rebut same.” Musgrave, Cause No. W-85CR-25 (W.D. Tex., July 3, 1985). [included in study materials]




Upon motion, the Act provides:


“The [detention] hearing shall be held immediately upon the person’s first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance. Except for good cause, a continuance on motion of the person may not exceed five days, and a continuance on motion of the attorney for the Government may not exceed three days.” U.S. v. O’Shaughnessy, 764 F.2d 1035, 1037 (5th Cir. 1985)(emphasis in original).


In O’Shaughnessy, the court held the government must request detention, rather than bail under §3142(f) at the earliest possible opportunity or same is waived.


“Unless we find exceptional circumstances, we will not deviate from clear, unambiguous and mandatory statutory language. In considering the ‘first appearance’ requirement, the Second Circuit refused to weaken the Act’s procedural fabric by ‘encouraging imprecise application of procedural requirements…’ [W]e agree with its policy to strictly apply the ‘first appearance’ requirement.” O’Shaughnessy at 1038 (emphasis in original).


See also       U.S. v. Holloway, 781 F.2d 124 (8th Cir. 1986)(noting Government could not request detention two days after bond set for defendant.

Only evidence to come to light during interim was that defendant had greater net worth than originally supposed).


But see         U.S. v. Moneada-Palaez, 810 F.2d 1008 (11th Cir. 1987)(stating as long as demand for detention hearing is made within the temporary detention period allowed by the Bail Reform Act the hearing is timely held).




In the Bail Reform Act’s infancy, circuit court were grappling with a fundamental problem – if the government cannot not proceed with a detention hearing within the time limitations prescribed by Section 3142(f), should the remedy of barring detention apply in all cases?                                See e.g. U.S. v. Payden, 759 F.2d 202 (2d Cir. 1985); U.S. v. O’Shaughnessy, 764 F.2d 1035 (5th Cir. 1985); U.S. v.

Mitchell, 600 F. Supp. 164, 168 (N.D. Cal. 1985).


“We based our reversal upon material violations of the timeliness requirement of 18 U.S.C. § 3142(f) which


provides that a detention hearing ‘shall be heard immediately upon the person’s first appearance before the judicial officer unless that person, or the attorney for the government, seeks a continuance’. . . .


The Bail Reform Act does not permit a waiver of time requirements by the defendant. Congress, therefore, must have intended enforcement to be at least as strict as that under the Speedy Trial Act, where waiver by the defendant is permitted. We have held that court congestion does not excuse violations of time requirements under the Speedy Trial Act. United States v. Nance, 666 F.2d 353, 358 (9th Cir.), cert. denied, 456

U.S. 918 (1982).


We conclude that the procedures under section 3142 of the Act must be strictly followed as a precondition to detention under subsection (e). If the time constraints are violated in any material way, the district court should not order unconditional pretrial detention of the person.” U.S.

  1. Al-Azzawy, 768 F.2d 1141, 1145 (9th Cir. 1985)

(emphasis added). See also U.S. v. Payden, 759 F.2d 202 (2d Cir. 1985); U.S. v. Iturtado, 779 F.2d 1467 (11th Cir. 1985).


The language of the Act is clear and straightforward. Nothing in the Act suggests that the initial requirement is mitigated in any way by any subsequent hearings. Where statutory language is clear and unambiguous, we are not at liberty to adopt an interpretation different from that directed by the language” U.S. v. Payden, 759 F.2d 202, 204 (2d Cir. 1985).


Cf                 U.S. v. Fortna, 769 F.2d 243 (5th Cir. 1985) (holding it is legally impossible to hold detention hearing at first judicial appearance when accused is not represented by counsel).


See               U.S. v. Alatishe, 768 F.2d 364 (D.C. Cir. 1985); U.S. v. Resek, 602 F.Supp. 1126 (S.D.N.Y. 1985).


See also  U.S. v. Valenzuela-Verdigo, 815 F.2d 1011 (5th Cir. 1987) (stating where defendant requested and stipulated that the detention hearing would be held in San Antonio where the indictment was returned, rather than at place of arrest; and court found that initial appearance occurred in San Antonio, and resulting delay caused by transfer was not sufficient grounds to set aside the detention order).


But see  U.S. v. King, 818 F.2d 112 (2d Cir. 1987) [holding that any error in failing to hold a detention hearing at the first appearance was harmless].


The Supreme Court put this matter somewhat to rest, however, in United States

  1. Montalvo-Murrilo, which held that the time table pronounced in subsection

(f) of Section 3142 is not fatal to the Government’s motion for detention, and that release predicated on non-compliance with the statute would only be appropriate if the defendant can demonstrate that the error (denoted “unconstitutional error”) had a “substantial influence” on the outcome of the proceeding. United States v. Montalvo-Murrilo, 495 U.S. 711, 721 (1990).


However, a defendant might waive his right to a timely detention hearing. U.S. v. Valenzuela-Verdigo, 815 F.2d 1011 (5th Cir. 1987) (finding in substance defense counsel had asked for a continuance as provided by the Act court found counsel had waived the right); U.S. v. Coonan, 826 F.2d 1180 (2nd Cir. 1987) (holding the right was waived by a defendant whose attorney claimed that his client’s federal bail status was not at issue since he was then in state custody); U.S. v. Madruga, 810 F.2d 1010 (11th Cir. 1987) (stating failure to specifically object to the date to which the hearing had been continued constituted waiver); U.S. v. Araneda, 899 F.2d 368 (5th Cir. 1990) (failure to object to continuance granted as to all defendants on motion of only some co-defendants constituted waiver).




Under §3142(b) of the Bail Reform Act, the judicial officer “shall order the pretrial release of the person . . . unless . . . [he] determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.”


Reasonable assurance, however, does not require a guarantee of appearance.

U.S. v. Fortna, 769 F2d 243 (5th Cir. 1985). Rather, the standard required by the Act is that of an objectively reasonable assurance of community safety and appearance at trial. U.S. v. Orta, 760 F2d 887 (8th Cir. 1985).




The provisions of 18 U.S.C.A. § 3142(f) also apply in cases where the government seeks to incarcerate an indigent as a material witness pursuant to 18

U.S.C.A. § 3144. In such an instance, appointment of counsel is required at the hearing to determine whether conditions can be imposed upon the witness that will reasonably assure his appearance at trial so as to allow pretrial release. See In re Class Action Application for Habeas Corpus on Behalf of All Material Witnesses in the Western District of Texas, 612 F. Supp. 940 (D.C. Tex. 1985) (holding that counsel must be appointed for indigent witness or due process is violated, and no immediate right to counsel exists, instead compliance would be required by a specified date).





Section 3142(i)(1) required that “the judicial officer shall . . . include written findings of fact and a written statement of the reasons for the detention . . . ”


See               U.S. v. Westbrook, 780 F.2d 1185, 1190 (5th Cir. 1986) (holding by Fifth Circuit to remand because of district court’s order of detention failed to “satisfy the strict procedural requirements contained in section 3142(i).”); In re Smith, 823 F.2d 401 (11th Cir. 1987) (stating District Court could not deny defendant bail pending


appeal without specifying its reasons in writing on the record). The order did not include the factual findings supporting same. U.S. v. Coleman, 777 F.2d 888 (3d Cir. 1985) (stating writing necessary for appellate review).





Where the accused offered new evidence to rebut the government’s allegations, the district court, within its discretion, reopen the detention hearing to consider the new evidence. U.S. v. Shakur, No. HCR 87-65-02 (N.D. Ind. July 16, 1987). This is whether the matter is before the magistrate judge of the district court.



See also       U.S. v. Gerken, SA-88-CR-205 (W.D. Tex. 1988) (holding to reopen detention hearing under 18 U.S.C. § 3142(f), a judicial officer must find that information exists which was not shown to the movant at the initial hearing).





Most detention hearings are conducted at the trial court level by Magistrate judges and are reviewable by District Court judges. Thereafter, the detention or release orders are reviewed by the circuit Courts of Appeal


The appeal of a magistrate’s detention order under 18 U.S.C. §3145 is reviewed de novo by the District Court “mak[ing] an independent determination of the proper pretrial detention or conditions for release”. See U.S. v. Westbrook, 780 F.2d 1185, 1188 (5th Cir. 1998); U.S. v. Aron, 904 F.2d 221, 223 (5th Cir. 1990).





The maximum sentence for each offense charged must exceed ten years or the government may not detain a suspect without bail. 18 U.S.C. §3142(f)(1)(C);

U.S. v. Hinote, 789 F.2d 1490 (11th Cir. 1986). In Hinote, the Eleventh Circuit held that the “district court acted improperly in adding together maximum sentences of each of [the] alleged offenses in order to invoke rebuttable presumption on basis that total sentences could exceed ten years.” U.S. v. Hinote, 789 F.2d 1490, 1491 (11th Cir. 1986).




The Courts of Appeals of three federal circuits review the overall propriety of pretrial detention orders, pursuant to the Bail Reform Act of 1984, by applying the “clearly erroneous” standard.


U.S. v. Fortna, 769 F.2d 243, 250 (5th Cir. 1985); U.S. v.

Chimurenga, 760 F.2d 400, 405 (2nd Cir. 1985); U.S. v. Williams, 753

F.2d 329, 333 (4th Cir. 1985).

However, the majority of the Courts of Appeals now review such orders “de novo” as involving mixed questions of law and fact.


U.S. v. Hurtado, 779 F.2d 1467, 1472 (11th Cir. 1985); U.S. v. Maull,

773 F.2d 1479, 1487, 1488 (8th Cir. 1985) (en banc);

U.S. v. Motamedi, 767 F.2d 1403, 1406 (9th Cir. 1985);

Hazime at 37; Bayko at 1399-1400.

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