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Common Issues in Bond, Sentencing and Revocation Hearings. Overview

▪ Evidentiary / Procedural Issues in the context of: – Detention Hearings – Sentencing Hearings – Revocation Hearings Detention Hearings Detention Hearings

▪ The rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing. 18 U.S.C. §3142(f). ▪ Rule 1101(d)(3) exempts bail hearings from the applicability of the Federal Rules of Evidence. See FED. R. EVID. 1101(d)(3). Detention Hearings

▪ Hearsay Evidence is Admissible. ▪ Gov’t and Defense may proceed by Proffer ▪ 5th Circuit Cases – United States v. Fortna, 769 F. 2d 243 (5th Cir. 1985) – United States v. Parker, 848 F. 2d 61, 63 (5th Cir. 1998) Detention Hearings

▪ U.S. v. Fortna, 769 F. 2d 243 (5th Cir. 1985) – Hearsay evidence inadmissible at trial does not necessarily mean that such information cannot form the basis for a pretrial detention determination. – Hearsay evidence or other evidence inadmissible at trial can be used to make the “probable cause” determination, a necessary predicate for cases where the presumption of detention arises. – Hearsay evidence can be used in the court’s consideration of section 3142(g) factors: ▪ Nature and circumstances of the offense; ▪ Weight of the evidence against the defendant; ▪ History and characteristics of the defendant; and ▪ Nature and seriousness of the danger to any person or the community if released. Detention Hearings

▪ U. S. v. Parker, 848 F. 2d 61 (5th Cir. 1988) – Bail hearing does not compel a criminal defendant to testify in violation of the fifth amendment – Defendant need not personally testify because he may present evidence through hearsay or by proffer. Detention Hearings – Confronting Witness

▪ Does a Defendant have a right to confront adverse witnesses at bond hearing? ▪ Confronting adverse witnesses: Is it a right or is it conditional- defense has a right to cross examine witness if there is a dispute over the proffered information. ▪ Purpose for calling the witness – – Will witness give favorable information? – Is the goal to use detention hearing as a “discovery tool?” – Is there good cause for the Government’s failure to produce the adverse witness? Detention Hearing – Prior Witness Stmt

▪ Prior statements of witnesses who testify at a detention hearing must be disclosed pursuant to FED. R. CRIM. P. 26.2(g)(4). ▪ Rule 46(j) provides for production of witness statements at a “detention hearing held under 18 U.S.C. §3142. ▪ However, the right to production of witness statement granted by Rule 26.2 applies “unless the court for good cause rules otherwise.” Detention Hearings – Miscellaneous

▪ 18 U.S.C. § 3142(f) – timing of detention hearing – Hearing shall be held immediately upon first appearance unless a continuance requested – Except for good cause, ▪ A defendant’s request for a continuance shall not exceed 5 days. ▪ The Government’s request for a continuance shall not exceed 3 days. Detention Hearings – Flight Risk

▪ Preponderance Standard: – More likely than not that no condition or combination of conditions will reasonable assure the presence of the defendant at future court proceedings. Detention Hearing - Danger

▪ Clear and Convincing Standard – Assurance of community safety by clear and convincing evidence. Detention Hearings

▪ Appeal of an Order of Detention – 18 U.S.C. §3145(b) – Motion “to revoke or amend” the magistrate’s order. – Hearing de novo before the district court. Sentencing Hearings Sentencing Hearings

▪ Federal Rules of Evidence do not apply at sentencing. FRE 1101(d)(3) ▪ Courts may consider sentencing information that has a “sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. §6A1.3(a) ▪ The preponderance of the evidence standard is used to resolve any sentencing disputes, and relevant information may be considered whether or not it is admissible at trial. U.S.S.G. §6A1.3 Sentencing Hearings - Presentence Investigation Reports Sentencing – Presentence Investigation Report

▪ Undisputed information in the PSR may be accepted by the court as an admission. Inaccuracies must be objected to in a timely manner. FED. R. CRIM. P. 32(i)(3)(A). ▪ Courts must explicitly rule on any disputed portion of the presentence report or any other matter in controversy, unless the court finds that a ruling is unnecessary either because the matter will not affect the sentencing, or because the court will not consider the matter in sentencing. FED. R. CRIM. P. 32(i)(3)(B). Sentencing - Presentence Report

▪ The defense is provided an opportunity to comment on the report (file objections) and, in the discretion of the court, introduce testimony or other information relating to any alleged factual inaccuracy. FED. R. CRIM. P. 32(i)(2), 32(i)(4)(A). ▪ Probation Officer Comment: Acknowledge Receipt of the PSR. Sentencing - Presentence Report

▪ Defendant’s obligation to present contradictory evidence: – U.S. v. Reasor, 541 F. 3d 366 (5th Cir. 2008). ▪ The presentence report is considered reliable evidence for sentencing purposes. ▪ If no relevant affidavits or other evidence is submitted to rebut the information contained in the PSR, the court is free to adopt its findings without further inquiry or explanation. ▪ “[T]he way in which Reasor committed her offenses makes a precise loss calculation difficult and she submitted no evidence to show that the information in the PSR was materially untrue.” ▪ The defendant bears the burden of demonstrating that the PSR is inaccurate. ▪ Unsworn assertions by the defendant are unreliable and not to be considered. Sentencing ASK FOR A SHORT CONTINUANCE SO GOVERNMENT ▪ Hypothetical – CAN PROVIDE – You have objected to a “fact” listed in the PSR. Government callsSTATMENT a witness to testify on the “fact.” The witness has given a prior statement that was never provided to you.

– WHAT DO YOU DO?

SEEK EXCLUSION OF WITNESS TESTIMONY CROSS EXAMINE WITHOUT STATEMENT? Sentencing

▪ FED. R. CRIM. P. 26.2 applies to any witness who testifies at the sentencing hearing, and if the party producing a witness fails to comply with Rule 26.2’s disclosure obligations, the court is precluded from considering the witness’s testimony. FED. R. CRIM. P. 32(i)(2). Sentencing

▪ Should we object to “facts” that do not impact the length of a defendant’s sentence?

▪ https://www.bop.gov/policy/progstat/5100_008.pdf Revocation Hearings Revocation Hearings

▪ Revocation Proceedings are governed by Federal Rule of Criminal Procedure 32.1. ▪ Person may be released or detained. – If detained, defendant bears the burden of showing by clear and convincing evidence that the person will not flee or pose a danger to the community. ▪ Person entitled to a prompt preliminary hearing to determine probable cause to detain a person for a revocation hearing. Revocation Hearings

▪ Due process protections apply to revocation proceedings. ▪ Revocation proceedings must be conducted according to principles of fundamental fairness. Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); Morrissey v. Brewer, 408 U.S. 471 (1972): – Written notice of the allegations; – Disclosure of the evidence against him; – Opportunity to be heard and present evidence; – Neutral hearing; and – Written findings addressing the evidence relied on and reasons for revocation. Revocation Hearings - Discovery

▪ Rule 32.1(b)(2) provides that a defendant facing a supervised release revocation is entitled to “disclosure of the evidence against the person.” ▪ In general, discovery rights at revocation hearings appear to be limited to evidence that will actually be used to prove the violation. ▪ Favorable evidence should be requested in a timely fashion prior to the revocation hearing. ▪ Jencks Act codified in Fed. R. Crim. P. 26.2 does apply in the supervised release revocation context. Revocation Hearings – Rules of Evidence

▪ Federal Rules of Evidence generally do not apply in probation or supervised revocation proceedings. ▪ Federal Rule of Evidence 1101(d)(3) states that the rules of evidence do not apply in proceedings granting or revoking probation. ▪ Court may consider reliable hearsay in deciding whether to revoke supervised release. United States v. Stephenson, 928 F. 2d 728, 732 (6th Cir. 1991). Revocation Hearings – Hearsay and the Confrontation Clause

▪ The Sixth Amendment right to confrontation does not apply to revocation proceedings. ▪ The admission of hearsay evidence during a revocation hearing may violate a defendant’s right to confront adverse witnesses. ▪ The government must demonstrate good cause to deny the right of confrontation. ▪ The court must balance the defendant’s right to confront adverse witnesses with the government’s reasoning for denying that right. – Failure to do so is error. Revocation Hearings – It’s a Balancing Test

▪ The court must balance the defendant’s constitutional interest in confrontation and cross examination against the government’s stated reasons for denying them. ▪ A finding of reliability is not alone sufficient to support its admission under Rule 32.1(b)(2)(C). ▪ The defendant’s interest must be balanced against the government’s reasons. Revocation Hearings – Unique Issue

▪ Revocation sentencings do not incorporate all of the §3553(a) factors. – A court may not consider “the need for the sentence imposed … to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” – A court may sanction a violator for his “breach of trust,” not for the criminal conduct underlying the revocation.