This topic is of particular relevance given the publicity surrounding the indictment, arrest and detention of Sean “P. Diddy” Combs in the Southern District of New York this week. Both at the Magistrate-Judge at the initial hearing, and the District Court Judge hearing the appeal the following day, held that no conditions of release could assure that Mr. Combs would not be a danger to the community, in particular the risk of witness tampering and obstruction in his case.
In the federal system, most people charged with non-violent offenses are released after their first appearance before a Magistrate-Judge on conditions. Those conditions are to reasonably assure the appearance of the person as required and the safety of any other person or the community. 18 U.S.C. §3142(c). Those conditions of release could be as simple as release on an unsecured appearance bond, meaning no property or money is posted, travel restricted to the continental United States, surrender of passport, surrender of any firearms and reporting to Pretrial Services as required. For certain serious cases, the conditions of release could be very stringent, including home detention with electronic monitoring where the person is only allowed out of the home only for preapproved visits with their attorney or medical appointments, surrender of family members’ passports, the posting of properties with substantial equity, and release to third party custodians who are responsible to report any violations of the conditions of release to the court.
Pretrial Services (PTS) is an arm of the court that interviews the charged individual about their background, prior addresses, any prior criminal record, assets and liabilities, frequency of travel outside the United States and any health or mental health issues. After reviewing the charges and the person’s history, PTS makes a recommendation to the court as to the conditions of release.
In determining whether there are conditions of release that will reasonably assure the appearance of person and the safety of any other person or the community, the Court must consider the factors set forth in § 3142(g), not one of which is dispositive and all of which must be weighed with the underlying principle that only “a limited group of offenders” should be denied bail pending trial. Those factors include:
- The nature and circumstances of the offense charged, including whether it is a crime of violence;
- The weight of the evidence against the person;
- The history and characteristics of the person, including the person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, drug or alcohol problems, criminal history and any past record of missing court appearances; and the nature and seriousness of the danger posed to any person or the community if the person was released, including intimidation of prospective witnesses or jurors.
If the government moves for pretrial detention, risk of flight must be demonstrated by a preponderance of the evidence that no conditions of release can reasonably assure the presence of the defendant at trial. Dangerousness requires proof by clear and convincing evidence that no conditions of release can reasonably assure the safety of others or the community. Certain violent or drug crimes carry a presumption of detention that must be overcome by the defense to secure the person’s release pending trial. The rules of evidence and admissibility do not apply for these hearings and the government may proceed by way of proffer or witnesses. The defense has the opportunity to present their own witnesses, cross-examine any government witnesses and the defendant has the right to testify.
In the case of Sean Combs, the sex trafficking charge carries a rebuttable presumption of pretrial detention. In anticipation of these charges, his attorneys took several proactive steps to position their client in the best possible way to overcome this presumption. They had Mr. Combs pay off the remaining mortgage on his Miami home so that it could be posted as part of a $50 million bond, put his private jet up for sale so that it couldn’t be used to flee the jurisdiction, surrendered his and his family members’ passports, offered to have his travel restricted to the SDNY, SDFL and DNJ, have family members co-sign his bond, and be under strict conditions of home detention with electronic monitoring. In addition, they argued that Mr. Combs has known about the investigation and likely charges for many months and had cooperated with grand jury subpoenas and remained in the jurisdiction even though he had ample opportunity to flee.
Despite the extraordinary amount of bond and extremely strict set of conditions offered by the defense, two judges rejected those arguments and ordered that Combs be detained pending trial. The defense immediately announced that those decisions would be appealed to the Second Circuit for further review by a three judge panel.
Stahl Gasiorowski Criminal Defense Attorneys have successfully argued scores of bail and detention hearings, as well as successfully appealing detention orders. Stahl Gasiorowski Criminal Defense Attorneys actively and aggressively protect clients’ rights and offer big law skills at boutique firm prices. To contact us call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com or Laura K. Gasiorowski at lkg@sgdefenselaw.com.
