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Section 3142 (e) Contains a rebuttable presumption that where an accused is charged with: a crime of violence; an offense punishable by death or life imprisonment; a narcotics offense that carries a 10 year (or more) imprisonment term; or any combination of these offenses10; the accused shall be held without

1018 U.S.C. §(f)(1)(A), (B), (C), (D)


bail. Stated another way, if one is charged with such an offense, there is a presumption that there are no conditions favorable to his or her release on bail.


The presumption will not arise unless the defendant is charged with one of the crimes defined in §3142 of the Act. U.S. v. Chimurenga, 760 F. 2d 400 (2nd Cir. 1985); U.S. v. Shaker, 665 F. Supp. 698 (N.D. Ind. 1987); Contra U.S. v. Bess, 678 F. Supp 929 (D.D.C 1988) (noting even if defendant is not charged with triggering offense the presumption applies where there is probable cause to believe the defendant is guilty of offenses demonstrating this dangerousness, such as threatening potential witnesses or jurors or having firearms).


While there is no such presumption as to provisions of §3142(f)(2)(A) and

(B) relating to persons who pose a serious risk of flight or obstruction of justice, allegation that the accused poses a risk of flight or may injure or threaten witnesses under §3142(f)(2)(A) or (B) requires the Government to carry the burden or production as well as persuasion by clear and convincing evidence, to show that the accused should be confined pretrial.



Even as to the rebuttable presumption in favor of detention contained in

  • 3142 (f)(1)(B) and (C), it has been held:


“…that Congress did not intend to shift the burden of persuasion to the defendant but intended to impose only a burden of production…


Our reasons for believing that the burden of persuasion does not shift include the following. First, we are wary of interpreting ambiguous language to mandate pretrial confinement where evidence before a magistrate is indeterminate. Although pretrial confinement to prevent flight is not punishment, but rather one of various restrictions on the freedom of an accused person aimed at facilitating trial, …it is still a most severe restriction requiring clear cause.


Second, the Senate Judiciary Committee Report explaining the new presumption, while arguably ambiguous, does not suggest that Congress mean to impose a burden of persuasion on the defendant.” U.S. v. Jessup, 757 F.2d 378, 381 (1st Cir. 1985).


The Eighth Circuit notes in Orta, 760 F.2d at 891, that “the majority of cases thus far addressing the issue that the presumption shifts only the burden of production to the defendant; the burden of persuasion remains with the government.” Id. The Fifth Circuit also noted that §3142’s rebuttable presumption “does not shift the burden of persuasion” to the accused. U.S. v. Fortna, 769 F.2d 243 (5th Cir. 1985).


See also U.S. v. Breitas, 602 F. Supp. 1283, 1290, 1293 (N.D. Cal. 1985) (stating “The Court therefore concludes that the rebuttable presumption in the Bail Act shifts only the burden of production; not the burden of persuasion.”) As the District of Columbia Circuit reiterated “it is not the responsibility of the [accused] to carry the Government’s burden of persuasion.” U.S. v. Alatishe, 768 F.2d 364 (D.C. Cir. 1985). In U.S. v. Hazime, 762 F.2d 34, 36 (6th Cir. 1985), the Court of Appeals remanded the cause for further hearing in order to afford the Government an opportunity to meet its clear and convincing burden of persuasion even though the magistrate found that:


“Hazime’s indictment for a drug offense under 21 U.S.C §801 et seq. established a presumption that there was no condition or combination of conditions favorable to his release on bond pending trial, a showing the magistrate found was met by the Government’s assertions that Hazime was unemployed was vague about his wife’s whereabouts, had a valid passport and had in the recent past pleaded guilty to charges of possession of a stolen credit card and resisting arrest, and Hazimes prehearing statement that ‘if I find out who the people are who testified against me, I will put my fingers through their eyes.’” Hazime at 36.


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

U.S. v. Moore, 607 F. Supp. 489 (N.D. Cal. 1985);

U.S. v. Trosper, 809 F.2d 1107 (5th Cir. 1987).




It is clear from cases and every other circuit, that the accused’s burden to rebut the Act’s presumption11, is slight. Jessup at 384.


See also                 Orta, 760 F.2d at 891;

Hazime, 762 F.2d at 37;

Fortna, 769 F.2d at 243;

U.S. v. Aiello 598 F.Supp 740 (S.D.N.Y 1984).


The First Circuit held in Jessup that “in order to rebut the presumption, the defendant must produce some evidence” noting that neither the presumption nor evidence relating to it precludes releasing the accused on bail “so long as the defendant has presented some evidence.” Jessup, 757 F.2d at 384.


The Fifth Circuit reiterated that while the Court may obviously consider Congress’ general consideration as to the risks associated with persons charged with such drug offenses in order “to rebut the presumption of flight or dangerousness” the accused need only “produce some evidence.” Fortna, 769 F.2d at 251.


See also                 U.S. v. Dominguez, 783 F.2d 702, 707 (7th Cir. 1986) (stating “Any evidence favorable to a defendant that comes within a category listed in §3142(g) [see infra p. ] can affect the operation of one or both of the presumptions, including evidence of their marital, family and employment status, ties to and roles within the community, clear criminal record and other types of evidence encompassed in §3142(g)(3).”);


U.S. v. Jackson, 845 F.2d 1262 (5th Cir. 1988) (noting Government introduced no evidence regarding defendant’s participation in offenses alleged in the indicted and rested on

  • 3142(e)’s presumption. Court held that in light of defendant’s


1118 U.S.C. §3142(e) [that he presents a substantial risk of flight or danger to the community].


ties in the community a detention order was not warranted.)


But see                   U.S. v. Viers, 637 F. Supp. 1343 (W.D. Ky. 1986) (noting presumption is still a factory to be considered even if the defendant produces some evidence).

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