The Bail Reform Act in the federal system represents a delicate balance between the presumption of innocence and the need to assure the presence of a criminal defendant at subsequent court appearances.  This balance was sorely tested in a meticulously analyzed decision in United States v. Jones, 08 Cr. 0535(VM), 2008 WL 2796543 (S.D.N.Y. July 17, 2008), a case involving death eligible murder charges against an individual with a decidedly checkered past, but where there were also “persuasive arguments” from the defense on the weight of the evidence against him (including eye witness testimony that arguably excluded the defendant from the murder scene, alibi evidence from witnesses - albeit ones with credibility issues - and a potentially exculpatory statement obtained by a government agent from an eye witness).  This evidence suggested a high potential for establishing reasonable doubt at trial, but as Judge Marrero emphasizes in Jones, guilt or innocence is not the issue in bail determinations. 

Analyzing the bail factors in the case – the circumstances of the offense charged, the defendant’s history, any potential danger to the community and the weight of the evidence – Judge Marrero, in a de novo review, affirmed the magistrate’s conclusion that the defendant had not rebutted the presumption.  (Because of the charges the defendant faced, there was a rebuttable presumption that no bail conditions would assure the defendant’s presence in court.)

What is most interesting is the court’s analysis of the “weight” factor.  Quoting a Ninth Circuit case, the court pointed out that “because the Bail Reform Act ‘neither requires nor permits a pretrial determination that the person is guilty,’ the Court’s function in examining the weight of the evidence is not to determine guilt or innocence.”  The court continues: “[t]he Weight Factor ‘may be considered only in terms of the likelihood that the person will fail to appear or will pose a danger to any person or to the community.’”  Thus, “c]ourts generally consider the Weight Factor as the ‘least important’ of the Factors.”

Here, the court concluded “although both parties made persuasive arguments regarding the weight of the evidence, this factor, even if all credibility issues were viewed in a light favorable to [defendant] Jones, does not tip the balance in favor of allowing his release on bail.”

This case will be an especially useful case in close bail cases where the evidence against the defendant is strong, but the other bail factors militate in favor of release. 

The case of the Long Island couple recently convicted after trial of charges of forced labor and harboring aliens, in a notorious case described by prosecutors as modern-day slavery, has already produced one interesting decision on venue transfer, discussed here.  It has also spawned a notable decision on the issue of remanding a defendant post-conviction and pre-sentence in violent cases - required under 18 U.S.C. § 3143(a)(2) unless there is a substantial likelihood that the judge will grant a motion for acquittal or new trial, or there are "exceptional reasons" justifying release. 

In United States v. Sabhnani, 07CR 429 (ADS)(WDW), 2007 WL 4591822 (E.D.N.Y. December 27, 2007), the court found that neither alternative applied to Varsha Sabhnani, whose motion for acquittal had been denied and whose primarily family-related reasons for release were "purely personal" and thus, under Second Circuit precedent, did not rise to the level of exceptional.  The court also rejected the defense argument that the forced labor offenses were not crimes of violence because they did not require the use or threat of physical force for conviction, in light of the fact that the jury had expressly found on special verdict sheets that Varsha had threatened serious harm against the victims. 

The court reached a different conclusion with regard to her husband, however.  Although convicted of the same crimes, the jury did not expressly find that he had personally used or threatened violence towards the victims.  Importantly, the court held that even if Mahender's crimes of conviction were deemed crimes of violence, exceptional circumstances warranted his release pending sentence: "Mahender is solely responsible for operating his business and has various employees who are dependent upon their jobs, salaries and benefits. As such, the Court finds that Mahender should be permitted time to arrange for the affairs of the business, as well as the family's financial affairs, for the benefit of the Sabhnanis' four children."

Notably, this is the second reported case involving crimes of violence in the past month (the first is discussed here) in which a court has made a rare finding of exceptional reasons justifying post-conviction, pre-sentence release.

This month, two NDNY judges issued divergent bail decisions in cases involving charges of interstate receipt and possession of child pornography - charges that are deemed "crimes of violence," and therefore carry a rebuttable presumption that the defendant is a dual flight and danger risk.  The receipt charge also carries a mandatory minimum five years imprisonment.  While one judge ordered detention and the other release, notably, both judges agreed that bail may be appropriate in the absence of any evidence that the defendant directly engaged in child sexual abuse.

In the first, United States v. Colin, 2007 WL 4377723, 07 CR 512 (GLS) (N.D.N.Y, December 12, 2007), the court conducted a de novo bail hearing and revoked a magistrate's release order, finding that disturbing aspects of the defendant's interactions with young girls from the neighborhood indicated that he was a future danger to the community. In fact, the judge concluded, based on his own analysis of the evidence and without the benefit of any clinical testimony, that the defendant is a pedophile.  While the extent of the judge's research is admirable, and his conclusions may well be accurate, it is troubling to see a district judge reach a clinical diagnosis without expert testimony.  In addition, the judge's view, relying on the Second Circuit's decision in United States v. Brand, 467 F.3d 179 (2d Cir. 2006), that there is a link, whether causal or associational, between possession of child pornography and molestation of children is also not a foregone conclusion in the relevant scientific literature.  The Court in Brand had relied in part on a report from the BOP's sex offender treatment program at Butner, but reports generated from that program (which treats only volunteers and generally the most serious sex offenders in the BOP system) are likely to suffer from a sampling bias that overstates the association between downloading child pornography and molestation.  In any event, it is important to note the Colin judge's comment that "[i]f the only danger was that presumed by the child pornography charges, the court would be inclined to agree with the conditions of release recommended by [the magistrate] . . . home detention and restrictions on Colin's use of computers and the [i]nternet."   

In United States v. Reboux, 06 CR 451 (FJS), 2007 WL 4409801 (N.D.N.Y., December 14, 2007) - a case in a different procedural posture to Colin, since Reboux had actually pled guilty to receipt and possession of child pornography, thereby triggering automatic detention pending sentencing - the court found "exceptional reasons" justifying presentence release.  Given a paucity of Second Circuit case-law on the exceptional circumstances that may justify release in the post-conviction, pre-sentence context, the court applied a series of non-exhaustive factors set forth in a Ninth Circuit decision, United States v. Garcia, 340 F.3d 1013, 1019-21 (9th Cir. 2003).  The court concluded that exceptional circumstances existed in Reboux's case where he had been unusually cooperative with authorities, there was no evidence that he was a risk of flight or danger to the community, and "through his faith community and work environment, he has found a support system to aid him in a course of self improvement," which the court did not want to "prematurely extinguish" by detaining him.  A significant factor for the court was that although Reboux's crime was definitionally violent, his "conduct was not violent.  He did not have sexual contact with any child, not did he attempt to communicate with any child for illicit purposes.  Obtaining child pornography for private sexual gratification, although wrongful, is not in and of itself an act of violence under any ordinary definition of that term." 

These are two useful, thoughtful decisions to use in opposing detention in cases involving possesion of child pornography.

It is rare for the government to seek bail forfeiture for an event other than the defendant's failure to appear, but as an EDNY Magistrate Judge points out in United States v. Stathakis, 2007 WL 3124703 (E.D.N.Y. October 24, 2007), the majority of courts that have addressed the issue "have concluded that forfeiture of the bail bond under Rule 46(f) is an appropriate sanction for the violation of any condition of release, whether that condition relates to the defendant's appearing in court or not" (emphasis added).

Forfeiture is not a foregone conclusion, however.  As the Stathakis court notes, a court may apply several factors in deciding whether a forfeiture should be set aside "in whole or in part," including whether the defendant's breach of the bond was willful; the cost, inconvenience and prejudice suffered by the government as a result of the breach; any explanation or mitigating factors submitted by the defendant; whether the surety has assisted in the apprehension of the defendant; whether the surety is a professional, friend or member of the defendant's family; and, where the party moving for relief from forfeiture is the surety, the appropriateness of the amount of the bond.  In addition, where, as here, "the government materially increased the surety's risk without notice to and consent of the surety," the surety can be relieved of its obligations under the bond.

In Stathakis, the government moved for forfeiture of the defendant's $5 million bond, co-signed and secured by $3.5 million in property posted by a business friend.  The defendant's bail had been revoked because he had violated an express condition not to speak to any witnesses or potential witnesses.  The contact condition had been added at a court hearing subsequent to the bail hearing.  The defendant had always appeared in court as required. The friend, who had co-signed the bond and whose favor was now turning into a very costly one, argued pro se that the government's motion should be denied, primarily because he (the friend) never had notice of the condition prohibiting any contact with witnesses.

Agreeing with the surety, the judge denied the government's motion and granted the surety's motion to set aside the forfeiture under Rule 46(f)(2)(B).  Applying the factors outlined above, the court found most persuasive the fact that the surety, a friend and not a professional bondsman, was not familiar with the conditions set forth on the back of the bond form (which expressly included a directive not to intimidate or tamper with a witness), nor was he aware that contacting witnesses would be considered a violation sufficient to result in forfeiture of the bond.  "Mere contact with witnesses, unless explicitly made a condition at the time of the bail hearing, is not a crime in itself and therefore, contrary to the government's posture, cannot be inferred from the standard language of the Bond." Moreover, although the defendant was expressly advised at a subsequent hearing that contact with any witnesses was prohibited, the surety had not received notice of, nor been apprised of, that court hearing, where this new condition was added.  As such, he did not consent to it, and therefore relief from the obligations on the bond was appropriate.

Although all ended happily for the surety in this case, it is a reminder of just what an immense act of faith and loyalty is encompassed in a surety's signature on the bond.  Moreover, it is an act fewer and fewer will be willing to perform if the government seeks bail forfeiture for reasons other than a defendant's failure to appear.