§ 3144. Release or detention of a material witness

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1984

   Bail Reform Act of 1984

   Pub. L. 98–473 title II § 203(a) · 98 Stat. 1837

   Enacted · 18 U.S.C. § 3144

   Added Pub. L. 98–473, title II, § 203(a), Oct. 12, 1984, 98 Stat. 1982

   Source evidence

   Code source credit
   Added Pub. L. 98–473, title II, § 203(a), Oct. 12, 1984, 98 Stat. 1982

   Enacted provision · exact public law section
   (a) Sections 3141 through 3151 of title 18, United States Code, are repealed and the following new sections are inserted in lieu thereof: “§ 3141. Release and detention authority generally “(a) Pending Trial.— A judicial officer who is authorized to order the arrest of a person pursuant to section 3041 of this title shall order that an arrested person who is brought before him be released or detained, pending judicial proceedings, pursuant to the provisions of this chapter. “(b) Pending Sentence or Appeal.— A judicial officer of a court of original jurisdiction over an offense, or a judicial officer of a Federal appellate court, shall order that, pending imposition or execution of sentence, or pending appeal of conviction or sentence, a person be released or detained pursuant to the provisions of this chapter. “§ 3142. Release or detention of a defendant pending trial “(a) In General.— Upon the appearance before a judicial officer of a person charged with an offense, the judicial officer shall issue an order that, pending trial, the person be— “(1) released on his personal recognizance or upon execution of an unsecured appearance bond, pursuant to the provisions of subsection (b); “(2) released on a condition or combination of conditions pursuant to the provisions of subsection (c); “(3) temporarily detained to permit revocation of conditional release, deportation, or exclusion pursuant to the provisions of subsection (d); or “(4) detained pursuant to the provisions of subsection (e). “(b) Release on Personal Recognizance or Unsecured Appearance Bond.— The judicial officer shall order the pretrial release of the person on his personal recognizance, or upon execution of an unsecured appearance bond in an amount specified by the court, subject to the condition that the person not commit a Federal, State, or local crime during the period of his release, unless the judicial officer 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. “(c) Release on Conditions.— If the judicial officer determines that the release described in subsection (b) will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community, he shall order the pretrial release of the person— “(1) subject to the condition that the person not commit a Federal, State, or local crime during the period of release; and “(2) subject to the least restrictive further condition, or combination of conditions, that he determines will reasonably assure the appearance of the person as required and the safety of any other person and the community, which may include the condition that the person— “(A) remain in the custody of a designated person, who agrees to supervise him and to report any violation of a release condition to the court, if the designated person is able reasonably to assure the judicial officer that the person will appear as required and will not pose a danger to the safety of any other person or the community; “(B) maintain employment, or, if unemployed, actively seek employment; “(C) maintain or commence an educational program; “(D) abide by specified restrictions on his personal associations, place of abode, or travel; “(E) avoid all contact with an alleged victim of the crime and with a potential witness who may testify concerning the offense; “(F) report on a regular basis to a designated law enforcement agency, pretrial services agency, or other agency; “(G) comply with a specified curfew; “(H) refrain from possessing a firearm, destructive device, or other dangerous weapon; “(I) refrain from excessive use of alcohol, or any use of a narcotic drug or other controlled substance, as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802), without a prescription by a licensed medical practitioner; “(J) undergo available medical or psychiatric treatment, including treatment for drug or alcohol dependency, and remain in a specified institution if required for that purpose; “(K) execute an agreement to forfeit upon failing to appear as required, such designated property, including money, as is reasonably necessary to assure the appearance of the person as required, and post with the court such indicia of ownership of the property or such percentage of the money as the judicial officer may specify; “(L) execute a bail bond with solvent sureties in such amount as is reasonably necessary to assure the appearance of the person as required; “(M) return to custody for specified hours following release for employment, schooling, or other limited purposes; and “(N) satisfy any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community. The judicial officer may not impose a financial condition that results in the pretrial detention of the person. The judicial officer may at any time amend his order to impose additional or different conditions of release. “(d) Temporary Detention To Permit Revocation of Conditional Release, Deportation, or Exclusion.— If the judicial officer determines that— “(1) the person— “(A) is, and was at the time the offense was committed, on— “(i) release pending trial for a felony under Federal, State, or local law; “(ii) release pending imposition or execution of sentence, appeal of sentence or conviction, or completion of sentence, for any offense under Federal, State, or local law; or “(iii) probation or parole for any offense under Federal, State, or local law; or “(B) is not a citizen of the United States or lawfully admitted for permanent residence, as defined in section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(20)); and “(2) the person may flee or pose a danger to any other person or the community; he shall order the detention of the person, for a period of not more than ten days, excluding Saturdays, Sundays, and holidays, and direct the attorney for the Government to notify the appropriate court, probation or parole official, or State or local law enforcement official, or the appropriate official of the Immigration and Naturalization Service. If the official fails or declines to take the person into custody during that period, the person shall be treated in accordance with the other provisions of this section, notwithstanding the applicability of other provisions of law governing release pending trial or deportation or exclusion proceedings. If temporary detention is sought under paragraph (1)(B), the person has the burden of proving to the court that he is a citizen of the United States or is lawfully admitted for permanent residence. “(e) Detention.— If, after a hearing pursuant to the provisions of subsection (f), the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, he shall order the detention of the person prior to trial. In a case described in (f)(1), a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the safety of any other person and the community if the judge finds that— “(1) the person has been convicted of a Federal offense that is described in subsection (f)(1), or of a State or local offense that would have been an offense described in subsection (f)(1) if a circumstance giving rise to Federal jurisdiction had existed; “(2) the offense described in paragraph (1) was committed while the person was on release pending trial for a Federal, State, or local offense; and “(3) a period of not more than five years has elapsed since the date of conviction, or the release of the person from imprisonment, for the offense described in paragraph (1), whichever is later. Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), section 1 of the Act of September 15, 1980 (21 U.S.C. 955a), or an offense under section 924(c) of title 18 of the United States Code. “(f) Detention Hearing.— The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in subsection (c) will reasonably assure the appearance of the person as required and the safety of any other person and the community in a case— “(1) upon motion of the attorney for the Government, that involves— “(A) a crime of violence; “(B) an offense for which the maximum sentence is life imprisonment or death; “(C) an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or section 1 of the Act of September 15, 1980 (21 U.S.C. 955a); or “(D) any felony committed after the person had been convicted of two or more prior offenses described in subparagraphs (A) through (C), or two or more State or local offenses that would have been offenses described in subparagraphs (A) through (C) if a circumstance giving rise to Federal jurisdiction had existed; or “(2) Upon motion of the attorney for the Government or upon the judicial officer’s own motion, that involves— “(A) a serious risk that the person will flee; “(B) a serious risk that the person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror. The 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. During a continuance, the person shall be detained, and the judicial officer, on motion of the attorney for the Government or on his own motion, may order that, while in custody, a person who appears to be a narcotics addict receive a medical examination to determine whether he is an addict. At the hearing, the person has the right to be represented by counsel, and, if he is financially unable to obtain adequate representation, to have counsel appointed for him. The person shall be afforded an opportunity to testify, to present witnesses on his own behalf, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise. The rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing. The facts the judicial officer uses to support a finding pursuant to subsection (e) that no condition or combination of conditions will reasonably assure the safety of any other person and the community shall be supported by clear and convincing evidence. The person may be detained pending completion of the hearing. “(g) Factors To Be Considered.— The judicial officer shall, in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, take into account the available information concerning— “(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; “(2) the weight of the evidence against the person; “(3) the history and characteristics of the person, including— “(A) his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and “(B) whether, at the time of the current offense or arrest, he was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and “(4) the nature and seriousness of the danger to any person or the community that would be posed by the person’s release. In considering the conditions of release described in subsection (c)(2)(K) or (c)(2)(L), the judicial officer may upon his own motion, or shall upon the motion of the Government, conduct an inquiry into the source of the property to be designated for potential forfeiture or offered as collateral to secure a bond, and shall decline to accept the designation, or the use as collateral, of property that, because of its source, will not reasonably assure the appearance of the person as required. “(h) Contents of Release Order.— In a release order issued pursuant to the provisions of subsection (b) or (c), the judicial officer shall— “(1) include a written statement that sets forth all the conditions to which the release is subject, in a manner sufficiently clear and specific to serve as a guide for the person’s conduct; and “(2) advise the person of— “(A) the penalties for violating a condition of release, including the penalties for committing an offense while on pretrial release; “(B) the consequences of violating a condition of release, including the immediate issuance of a warrant for the person’s arrest; and “(C) the provisions of sections 1503 of this title (relating to intimidation of witnesses, jurors, and officers of the court), 1510 (relating to obstruction of criminal investigations), 1512 (tampering with a witness, victim, or an informant), and 1513 (retaliating against a witness, victim, or an informant). “(i) Contents of Detention Order.— In a detention order issued pursuant to the provisions of subsection (e), the judicial officer shall— “(1) include written findings of fact and a written statement of the reasons for the detention; “(2) direct that the person be committed to the custody of the Attorney General for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal; “(3) direct that the person be afforded reasonable opportunity for private consultation with his counsel; and “(4) direct that, on order of a court of the United States or on request of an attorney for the Government, the person in charge of the corrections facility in which the person is confined deliver the person to a United States marshal for the purpose of an appearance in connection with a court proceeding. The judicial officer may, by subsequent order, permit the temporary release of the person, in the custody of a United States marshal or another appropriate person, to the extent that the judicial officer determines such release to be necessary for preparation of the person’s defense or for another compelling reason. “(j) Presumption of Innocence.— Nothing in this section shall be construed as modifying or limiting the presumption of innocence. “§ 3143. Release or detention of a defendant pending sentence or appeal “(a) Release or Detention Pending Sentence.— The judicial officer shall order that a person who has been found guilty of an offense and who is waiting imposition or execution of sentence, be detained, unless the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released pursuant to section 3142 (b) or (c). If the judicial officer makes such a finding, he shall order the release of the person in accordance with the provisions of section 3142 (b) or (c). “(b) Release or Detention Pending Appeal by the Defendant.— The judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds— “(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released pursuant to section 3142 (b) or (c); and “(2) that the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial. If the judicial officer makes such findings, he shall order the release of the person in accordance with the provisions of section 3142 (b) or (c). “(c) Release or Detention Pending Appeal by the Government.— The judicial officer shall treat a defendant in a case in which an appeal has been taken by the United States pursuant to the provisions of section 3731 of this title, in accordance with the provisions of section 3142, unless the defendant is otherwise subject to a release or detention order. “§ 3144. Release or detention of a material witness “If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the 18 USC app. Federal Rules of Criminal Procedure. “§ 3145. Review and appeal of a release or detention order “(a) Review of a Release Order.— If a person is ordered released by a magistrate, or by a person other than a judge of a court having original jurisdiction over the offense and other than a Federal appellate court— “(1) the attorney for the Government may file, with the court having original jurisdiction over the offense, a motion for revocation of the order or amendment of the conditions of release; and “(2) the person may file, with the court having original jurisdiction over the offense, a motion for amendment of the conditions of release. The motion shall be determined promptly. “(b) Review of a Detention Order.— If a person is ordered detained by a magistrate, or by a person other than a judge of a court having original jurisdiction over the offense and other than a Federal appellate court, the person may file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order. The motion shall be determined promptly. “(c) Appeal From a Release or Detention Order.— An appeal from a release or detention order, or from a decision denying revocation or amendment of such an order, is governed by the 28 USC 1291. provisions of section 1291 of title 28 and section 3731 of this title. The appeal shall be determined promptly. “§ 3146. Penalty for failure to appear “(a) Offense.— A person commits an offense if, after having been released pursuant to this chapter— “(1) he knowingly fails to appear before a court as required by the conditions of his release; or “(2) he knowingly fails to surrender for service of sentence pursuant to a court order. “(b) Grading.— If the person was released— “(1) in connection with a charge of, or while awaiting sentence, surrender for service of sentence, or appeal or certiorari after conviction, for— “(A) an offense punishable by death, life imprisonment, or imprisonment for a term of fifteen years or more, he shall be fined not more than $25,000 or imprisoned for not more than ten years, or both; “(B) an offense punishable by imprisonment for a term of five or more years, but less than fifteen years, he shall be fined not more than $10,000 or imprisoned for not more than five years, or both; “(C) any other felony, he shall be fined not more than $5,000 or imprisoned for not more than two years, or both; or “(D) a misdemeanor, he shall be fined not more than $2,000 or imprisoned for not more than one year, or both; or “(2) for appearance as a material witness, he shall be fined not more than $1,000 or imprisoned for not more than one year, or both. A term of imprisonment imposed pursuant to this section shall be consecutive to the sentence of imprisonment for any other offense. “(c) Affirmative Defense.— It is an affirmative defense to a prosecution under this section that uncontrollable circumstances prevented the person from appearing or surrendering, and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement that he appear or surrender, and that he appeared or surrendered as soon as such circumstances ceased to exist. “(d) Declaration of Forfeiture.— If a person fails to appear before a court as required, and the person executed an appearance bond pursuant to section 3142(b) or is subject to the release condition set forth in section 3142 (c)(2)(K) or (c)(2)(L), the judicial officer may, regardless of whether the person has been charged with an offense under this section, declare any property designated pursuant to that section to be forfeited to the United States. “§ 3147. Penalty for an offense committed while on release “A person convicted of an offense committed while released pursuant to this chapter shall be sentenced, in addition to the sentence prescribed for the offense to— “(1) a term of imprisonment of not less than two years and not more than ten years if the offense is a felony; or “(2) a term of imprisonment of not less than ninety days and not more than one year if the offense is a misdemeanor. A term of imprisonment imposed pursuant to this section shall be consecutive to any other sentence of imprisonment. “§ 3148. Sanctions for violation of a release condition “(a) Available Sanctions.— A person who has been released pursuant to the provisions of section 3142, and who has violated a condition of his release, is subject to a revocation of release, an order of detention, and a prosecution for contempt of court. “(b) Revocation of Release.— The attorney for the Government may initiate a proceeding for revocation of an order of release by filing a motion with the district court. A judicial officer may issue a warrant for the arrest of a person charged with violating a condition of release, and the person shall be brought before a judicial officer in the district in which his arrest was ordered for a proceeding in accordance with this section. To the extent practicable, a person charged with violating the condition of his release that he not commit a Federal, State, or local crime during the period of release shall be brought before the judicial officer who ordered the release and whose order is alleged to have been violated. The judicial officer shall enter an order of revocation and detention if, after a hearing, the judicial officer— “(1) finds that there is— “(A) probable cause to believe that the person has committed a Federal, State, or local crime while on release; or “(B) clear and convincing evidence that the person has violated any other condition of his release; and “(2) finds that— “(A) based on the factors set forth in section 3142(g), there is no condition or combination of conditions of release that will assure that the person will not flee or pose a danger to the safety of any other person or the community; or “(B) the person is unlikely to abide by any condition or combination of conditions of release. If there is probable cause to believe that, while on release, the person committed a Federal, State, or local felony, a rebuttable presumption arises that no condition or combination of conditions will assure that the person will not pose a danger to the safety of any other person or the community. If the judicial officer finds that there are conditions of release that will assure that the person will not flee or pose a danger to the safety of any other person or the community, and that the person will abide by such conditions, he shall treat the person in accordance with the provisions of section 3142 and may amend the conditions of release accordingly. “(c) Prosecution for Contempt.— The judge may commence a prosecution for contempt, pursuant to the provisions of section 401, if the person has violated a condition of his release. “§ 3149. Surrender of an offender by a surety “A person charged with an offense, who is released upon the execution of an appearance bond with a surety, may be arrested by the surety, and if so arrested, shall be delivered promptly to a United States marshal and brought before a judicial officer. The judicial officer shall determine in accordance with the provisions of section 3148(b) whether to revoke the release of the person, and may absolve the surety of responsibility to pay all or part of the bond in accordance with the provisions of Rule 46 of the Federal Rules of 18 USC app. Criminal Procedure. The person so committed shall be held in official detention until released pursuant to this chapter or another provision of law. “§ 3150. Applicability to a case removed from a State court “The provisions of this chapter apply to a criminal case removed to a Federal court from a State court”.

2. 1986

   Criminal Law and Procedure Technical Amendments Act of 1986

   Pub. L. 99–646 § 55(e) · 100 Stat. 3592

   1. Substituted · 18 U.S.C. § 3144

      Pub. L. 99–646 substituted “subpoena” for “subpena”

   2. Inserted · 18 U.S.C. § 3144

      Pub. L. 99–646 inserted “of this title”

   Source evidence

   Code amendment note
   Pub. L. 99–646 substituted “subpoena” for “subpena” and inserted “of this title”.

   Enacted provision · exact public law section
   (e) Section 3144 Amendments.— Section 3144 of title 18, United States Code, is amended— (1) by striking out “subpena” and inserting “subpoena” in lieu thereof; and (2) by inserting “of this title” after “3142”.

   Effective date note
   Amendment by Pub. L. 99–646 effective 30 days after Nov. 10, 1986, see section 55(j) of Pub. L. 99–646, set out as a note under section 3141 of this title.

3 of 3 references resolved to an enrolled provision