Archive | bail

Tuesday, December 17th, 2019

A district court’s order granting a criminal defendant bail under the Bail Reform Act (“BRA”), doesn’t preclude immigration authorities from then detaining that person under the Immigration and Naturalization Act (“INA”). United States v. Lett, No. 18-749-cr, __ F. 3d__, 2019 WL 6752763 (Dec. 12, 2019).

The Second Circuit joins the Third, Sixth, and D.C. Circuits and holds “that immigration authorities may lawfully detain a criminal defendant ordered to be released under the BRA  pursuant to their authority under the INA to detain aliens seeking admission into the United States who are not ‘clearly and beyond a doubt entitled to be admitted[.]’”United States v. Lett, 2019 WL 6752763 at *1, *2 (2d Cir. Dec. 12, 2019) [18-749_Documents] (quoting 8 U.S.C. § 1225(b)(2)(A)); see also 18 U.S.C. § 3142 (bail reform act); 8 U.S.C. § 1101, et seq. (immigration and naturalization act).

Several district courts in this Circuit and around the country had held “that pretrial release under the BRA forecloses detention under the INA” — including the district court in Lett’s case.  2019 WL 6752763 at *3.  But the Circuit holds to the contrary. It rejects the argument that a person granted …

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Friday, August 2nd, 2019

Wealthy Defendants Cannot Buy Their Way Out of Jail by Hiring Private Security Guards

In United States v. Boustani, No. 19-1018-cr (2d Cir. Aug. 1, 2019), the Second Circuit held that “the Bail Reform Act does not permit a two-tiered bail system in which defendants of lesser means are detained pending trial while wealthy defendants are released to self-funded private jails.”

Boustani was charged with conspiring to commit wire fraud, securities fraud, and money laundering. He sought bail, proposing conditions that included home confinement under the supervision of private armed security guards, to be paid for by him. The district court denied bail, finding Boustani to pose a risk of flight based on the seriousness of the charges, the lengthy potential sentence, the strength of the evidence, and the defendant’s personal characteristics, which included his “substantial financial resources.” The court also found that no set of conditions would reasonably assure the defendant’s appearances in court. Judge Kuntz specifically noted that releasing Boustani to …

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Friday, August 17th, 2018

Judge Carter Issues Lengthy Opinion Justifying Bail Grant

If you’re looking for some inspiring beach reading this weekend, look no further than this opinion in United States v. Paulino. On appeal by the government, S.D.N.Y. Judge Andrew Carter upheld the Magistrate’s decision to set bail in Mr. Paulino’s case. The government appealed to the Second Circuit, which remanded with instructions for Judge Carter to elaborate his rationale for granting bail. Today, he issued this memorandum opinion discussing the history of bail in American courts; the presumptions, burdens and standards of proof that apply to bail decisions; and how imposing conditions of release can mitigate the risk of flight and danger to the community.

NB: The Federal Defenders represents Mr. Paulino.…


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Friday, January 19th, 2018

Recent “Trujillo” Decisions and Resources

Today Judge Vitaliano (EDNY) dismissed an indictment with prejudice after ruling that the government must choose between (1) complying with the Bail Reform Act or (2) continuing to hold the defendant in immigration detention notwithstanding that she had been released on bond.  See United States v. Lopez, 17-cr-683 (1/19/18 electronic order).

This decision is the most recent contribution to a string of “Trujillo” decisions, see United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012).  For practitioners’ convenience, this blog will maintain an updated list of all Trujillo decisions in the EDNY and SDNY. If you are aware of any decided cases that are not on this list, please contact our office.

Practitioners should also note this recent New York Times article, which confirms that Customs and Border Patrol (CBP) has only recently started placing people in immigration detention after they have been …

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Categories: bail, ICE detention

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Friday, December 29th, 2017

EDNY Requires Government to Choose Between Complying With Bail Reform Act and Detaining for Immigration Removal

In an otherwise slow holiday week, Eastern District Chief Judge Irizarry has reaffirmed that ICE cannot detain noncitizens who are being federally prosecuted and have met their bond conditions. The opinion in United States v. Benzadon Boutin, No. 17-cr-590 (DLI), is available here. The decision is the latest in the “Trujillo” line of cases, see United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012). This case law now include two opinions by Chief Judge Irizarry and one by Southern District Judge Carproni. (Our discussion of Judge Caproni’s opinion includes suggestions for attorneys considering whether to file a “Trujillo” motion.)

Mr. Benzadon Boutin was indicted for theft of public property and money laundering. He satisfied his bond conditions, but was nevertheless kept in custody pursuant to an ICE detainer. Chief Judge Irrizarry held that “once a criminal prosecution is initiated and …

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Tuesday, November 14th, 2017

EDNY Holds That ICE Can’t Detain a Defendant for Criminal Prosecution

Chief Judge Irizarry recently issued the first EDNY decision holding that once a defendant has been granted pretrial release under the Bail Reform Act, the defendant may not be detained by ICE while his prosecution is pending. In United States v. Rosario Ventura, 17-cr-418, Judge Irizarry held that “the Government must either release Defendant under the bond conditions set in this case and continue the instant prosecution, or dismiss the indictment without prejudice, forego its illegal reentry prosecution, and proceed with Defendant’s removal.” The decision is available here. (As we’ve reported, Southern District Judge Caproni recently issued a similar decision.)

Mr. Rosario Ventura met the bail conditions set by a magistrate judge pursuant to the Bail Reform Act. Immediately after his release from criminal custody, however, ICE detained Mr. Rosario Ventura and held him in immigration custody. He then filed a motion to compel ICE to release …

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Monday, July 31st, 2017

Bail Reform Act Controls Whether Defendant Released Pretrial; ICE Cannot Detain A Defendant Held For Prosecution

In the first decision of its kind within the Second Circuit, Judge Caproni in the SDNY held that once a defendant has met the conditions of release imposed under the Bail Reform Act, ICE cannot detain that defendant unless it is actually taking steps to remove him.  You can read the opinion in United States v. Galitsa, 17 Cr. 324 (VEC), here.

Mr. Galitsa met the bail conditions set by Magistrate Judge Fox at presentment.  Because ICE had filed a detainer, he was transferred to ICE custody rather than released after meeting his bail conditions.  Six days later, the government had Mr. Galitsa transferred back to the MDC Brooklyn pursuant to a writ of habeas corpus ad prosequendum.  He moved to dismiss the indictment or, in the alternative, to compel his release from custody.  The government conceded that, since detaining Mr. Galitsa, ICE had taken no steps to …


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Wednesday, July 20th, 2016

Second Circuit Updates – July 20, 2016

There were three summary orders from the circuit today.

Remanded again: In United States v. White, the circuit reaffirmed that the district court must consider material post-sentencing conduct when resentencing a defendant. Ms. White’s case had already been remanded by the circuit once before because the district judge did not make factual findings to support a sentence enhancement. At the resentencing, the district court made ambiguous comments suggesting that it was ignoring her post-sentencing rehabilitation. The circuit, therefore, sent Ms. White’s case back to the district judge again. This time, the judge must consider whether the evidence of Ms. White’s rehabilitation merited a reduced term of supervised release.

Two affirmances: In United States v. Galanis, the circuit upheld the district court’s revocation of bail pending trial because there was probable cause that the defendant had continued his criminal activity; and, in United States v. Sturgis, the circuit …


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Friday, July 1st, 2016

Circuit Clarifies that Government Retains the Ultimate Burden When Seeking Detention in “Presumption” Cases

Late last week, the Second Circuit issued a short summary order in United States v. Horton, No. 16-1574, ordering that the District Court vacate its order of detention and remanding for further proceedings. Although it issued just a short summary order, the Circuit clarified that even in “presumption” cases, the government retains the ultimate burden of persuasion on the issue of remand based on a defendant’s dangerousness.

In certain types of cases, Title 18 U.S.C. 3142(e) creates a rebuttable presumption that “no condition or combination of conditions will reasonably assure” the safety of the community.  The defendant bears the burden of producing evidence to rebut this presumption.  If the defendant does so, the presumption is not eliminated, but it remains a “factor” just like any other factor the district court has to consider and weigh.  “At all times,” though, “the government retains the ultimate burden of persuasion by …

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Wednesday, April 13th, 2016

EDNY Update: Judge Pohorelsky Finds Adam Walsh Act Mandatory Bail Provision Unconstitutional, Judge DeArcy Hall Reverses Bail Determination

On Friday, in the EDNY, Magistrate Judge Viktor V. Pohorelsky found that the Adam Walsh Amendments to the Bail Reform Act violate the Due Process Clause of the Fifth Amendment and the Excessive Bail Clause of the Eighth Amendment.  The case was United States v. Kim, 16-mj-280 (VVP), and the transcript is available here: Kim_16MJ280_Transcript 4.8.16.

For those charged with crimes involving a minor, Adam Walsh requires the nondiscretionary imposition of specific pretrial release conditions, including electronic monitoring and a curfew, depriving defendants of any opportunity to contest whether such conditions are necessary, and denying judges the ability to make individualized determinations as to the least restrictive bail conditions.  In this case, where the defendant is charged with receipt and possession of child pornography, the court found that electronic monitoring was not necessary to assure his appearance or the safety of the community.  Judge Pohorelsky ordered that the …


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Sunday, June 10th, 2012

PC World

United States v. Gowing and Scheringer, Nos. 10-4037-cr, 11-683-cr (2d Cir. June 6, 2012) (Winter, Straub, Lynch, CJJ) (per curiam)

The court’s latest per curiam looks at 18 U.S.C. § 3147, which enhances the sentence of a person “convicted of an offense committed while on release.”

The underlying case involved a massive oil contract fraud orchestrated by Scheringer. Gowing was an attorney who represented Scheringer in a civil fraud suit, who eventually joined the fraud. Although he initially refused to invest or refer others to the scheme, he eventually helped solicit funds from victims. Both defendants had been released on bail by 2006, but continued to engage in the scheme. Calls recorded by the government in 2008 captured them speaking about obtaining more money from victims. Even after Scheringer was remanded in 2009, his prison calls reflected Gowing’s efforts to continue raising money from victims.

On appeal, Gowing challenged the …

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