Sherman & Plano, TX Criminal Defense Lawyer Blog
The presumption of detention is rebuttable, but very daunting. A person charged with a presumption case offense must rebut the presumption by clear and convincing evidence. This is the second most onerous burden in our law, right below proof beyond a reasonable doubt. Release is obviously far less common in these cases, but people with minor (or unprovable or nonexistent) roles in the offense with minimal criminal history who have a third party custodian stand a chance, and should not simply waive the detention hearing. In fact, the only time a person should waive their detention hearing is when they are being held outside the Federal courts: i.e., they would not be getting double credit for the holds if released, or people who have immigration holds. Even in these cases, the court can reopen the detention hearing if circumstances materially change, such as making bond on state charges (common) or getting the immigration hold lifted (rare).
Detention hearings are great opportunities not only for release but for discovery. The government begins with the burden in every case, so their agent must testify. Your attorney can cross examine the agent on key facts and circumstances of the case. You can dig for critical pieces of evidence relevant to the hearing, since the weight of the evidence is a factor the judge must consider. For this reason alone, a waiver should be avoided if no outside holds exist.
If the court denies release and orders detention pending trial, a person has the right to appeal the decision to the Article 3 federal judge. The presiding judge hears the case de novo, which means they make their own ruling on the evidence. The percentages of detentions getting reversed by the District Court is very low, and the subsequent successful appeal to the Fifth Circuit is virtually nonexistent, so it is very important to hire a lawyer who knows how to most effectively present your case for release in the magistrate court.
Community and family ties are very important in the Eastern District of Texas Sherman Division. The judges give lots of weight to whether a third party custodian exists: i.e. a responsible family member or very close friend who can supervise the defendant and report any violations to the court. The toughest problem detainees face in this District is the “presumption” case. In drug conspiracy and other serious offenses, a rebuttable presumption exists that no set of conditions exists to ensure the safety of the public or the appearance of the defendant. These cases by statute include: “(1)…(A) a crime of violence, a violation of section 1591, or an offense listed in section 2332b (g)(5)(B) for which a maximum term of imprisonment of 10 years or more is prescribed; 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 chapter 705 of title 46; (D) any felony if such person has been convicted of two or more offenses described in subparagraphs (A) through (C) of this paragraph, or two or more State or local offenses that would have been offenses described in subparagraphs (A) through (C) of this paragraph if a circumstance giving rise to Federal jurisdiction had existed, or a combination of such offenses; or (E) any felony that is not otherwise a crime of violence that involves a minor victim or that involves the possession or use of a firearm or destructive device (as those terms are defined in section 921), or any other dangerous weapon, or involves a failure to register under section 2250 of title 18, United States Code…” Probably 90 percent or more of drug conspiracies allege a drug weight amount high enough to trigger the ten to life sentencing range.
At the detention hearing, the judge determines according to statute whether any “condition or combination of conditions set forth in subsection (c) of this section will reasonably assure the appearance of such person as required and the safety of any other person and the community.” 18 USC 3142(b). Basically, will you show up to court and not commit any other offenses? The statute lists factors the judge shall consider: ” (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1591, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, including– (A) the person’s 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, the person 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…”
Unlike in Texas state courts, where upon arrest a (normally) affordable surety bond amount is set by a magistrate, in Federal court in the Eastern District of Texas Sherman Division there is no “bail bond” procedure. Instead, when arrested for a federal offense, you are taken before a magistrate judge, a judge who basically works for the Presidentially appointed Article 3 Federal Judge. This magistrate determines whether you are released on “conditions of release” or are held pending trial.
Mr. Prosecutor keeps looking through the rule, knowing something in there should save Mr. Manziel from getting a separate trial. “Here it is,” he says to himself. Rule 803(24), Statement Against Interest: “[a] statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant’s position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” We find people’s statements that subject themselves to ridicule or liability believable, hence the exception. “Statement against interest, your honor,” says Mr. Prosecutor. “The statement to the reporter subjects the reporter to criminal liability.”
The prosecutor, frustrated that an extra trial might interfere with his upcoming vacation plans, digs through the rules to somehow admit this evidence without allowing Mr. Manziel to force a separate trial. The judge, having similar vacation plans and not wanting to spend county resources empaneling another jury, looks at him. “Any other exception, Mr. Prosecutor?”
Rules 801 and 803 provide what is non-hearsay and what are exceptions to hearsay. The prosecutor says, “[a]dmission by a party opponent or coconspirator, your honor.” The autograph broker’s lawyer glances down at Rule 801(e)(2) which says, “[a] statement is not hearsay if…The statement is offered against a party and is: (A) the party’s own statement in either an individual or representative capacity; … or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.”
First, the right of confrontation would require the ESPN reporter to be on the stand to testify as to his knowledge. So, imagine in a criminal court Johnny Manziel and the autograph broker were being tried for violating NCAA rules or inducing said violations? There they sit with their lawyers at the defense table. The prosecutor asks the ESPN reporter, sitting on the witness stand, “Mr. Rovell, please tell the ladies and gentlemen of the jury what this autograph broker told you he did with Johnny Manziel.”
The rule against hearsay is one of the fundamental rules of the American justice system. It is very similar, although not completely identical, to the rule requiring confrontation of witnesses in a criminal case, i.e., the right to confront one’s accusers. Our nation’s founders were very disturbed at English prosecutions, such as that of Sir Walter Raleigh, based primarily upon letters from third parties as key evidence. Common sense also dictates that a person telling you what they heard another person say, as if they had observed the events personally, is not in any way as reliable as a first-person recollection of events. Texas Rule of Evidence 801(d) states: “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 802 says “Hearsay is not admissible except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority…”
The first jury trial I won on aggravated assault was trickier because allegation was threatening injury and displaying a deadly weapon. My client was alleged to have chased his ex-girlfriend/child’s mother’s vehicle up and down the highway with his vehicle, and threatened to ram her (he did bump her a little). Fortunately, the jury found him guilty of the lesser included offense of deadly conduct. This can be a reasonable out in many aggravated assault cases, which in reality are deadly conduct cases.