In Federal Court, there are two types of investigations that lead to criminal prosecution. In the first instance, Federal agents pursuing an active investigation decide that there is probable cause to arrest, and they do. In the other situation, a Federal Grand Jury has been hearing evidence and reviewing documents for several months, and they return an Indictment. Once the Indictment is filed, Arrest Warrants for the Defendant are issued.

In both of the above scenarios, the business day after the arrest, the arrestee will appear before a U.S. Magistrate Judge. There are no Initial Appearances in Federal Court during weekends and holidays.

Before the Initial Appearance, the Defendant will be interviewed by the Pre-Trial Services Agency. Pre-Trial Services is an arm of the Federal Court. The purpose of the interview is to gather information about the Defendant for the Court. The Defendant will be asked his name, date of birth, address, employment history, family, and financial status. The Pre-Trial Services Officer who interviews the Defendant will try to verify the information. They will frequently make a recommendation as to bond.

The Magistrate Judge will set bond unless the Government makes a Motion for Pre-Trial Detention. If bond is set, and the Defendant is represented by counsel, who has already had an opportunity to prepare for the bond presentation, a request for a bond reduction can take place immediately.

There are three types of bond in Federal Court. They are called a (1) personal surety bond, (2) 10% bond, and (3) corporate surety bond.

Personal Surety Bond

When a personal surety bond is set, the Defendant and close family members designated by the Court, will sign the bond as sureties agreeing to be liable for the full amount of the bond if the Defendant should fail to appear in Court. In other words, say the Court sets a $100,000.00 personal surety bond to be co-signed by the Defendant’s wife and parents. Each of the signators will be liable to pay the Government $100,000.00 in the event that the Defendant fails to appear.

There is no requirement that any money be deposited with the Court or paid to a bondsman to post a personal surety bond. As a practical matter, the Court will rarely grant a personal surety bond if the co-signers do not own any real property. This is because the bond document could be used to place a lien on that property in order to collect the amount of the bond.

10% Bond

When the Court orders a 10% bond, it can be posted by depositing 10% of the amount of the face value of the bond with the Clerk of Court. For instance, if the Court orders a $50,000.00, 10% bond, then the Defendant could be released when $5,000.00 is deposited with the Clerk of Court. Usually, a 10% bond will be accompanied by a personal surety bond. If the Defendant fails to appear in Court, the 10% is forfeited immediately, and the Government will then seek the remainder of the bond from the sureties.

Corporate Surety Bond

A bondsman must be hired to post a corporate surety bond. In Federal Court, the premium that must be paid to the bondsman is 15% of the face amount of the bond. That premium is non-refundable. The bondsmen will want to collateralize the full amount of the bond with assets such as real property, automobiles, jewelry or anything he or she is willing to accept.

Under appropriate circumstances, the Government has the right to request the Court hold a Defendant without bail pending his trial. They can do this by filing a Motion for Pre-Trial Detention Pursuant to 18 U.S.C., Section 3142(e). The Government can seek pre-trial detention for any Defendant accused of a (1) crime of violence, or (2) narcotics offense with a maximum penalty of 10 years or more. If they have evidence that a Defendant would constitute a risk of flight or would obstruct justice, principally by intimidating witnesses, pre-trial detention can be sought for any felony charge.

At the Pre-Trial Detention Hearing, the Government must prove by clear and convincing evidence that the Defendant’s release would constitute a danger to society. The Government can show that the Defendant constitutes a risk of flight by a preponderance of the evidence.

If the Defendant is charged with a crime of violence or narcotics offense that carries a maximum penalty of 10 years, that Defendant is presumed to be a danger to the community and a risk of flight. In those cases, the Defendant must rebut that presumption in order to defeat the Government’s Motion for Pre-Trial Detention.

After the Hearing, the Magistrate Judge will either grant or deny the Government’s Motion for Pre-Trial Detention. If the Defendant is detained, he can take an appeal to the District Court Judge. If the Defendant is not detained, then the Magistrate Judge will set bond. The Government has the right to appeal the Magistrate’s denial of a Motion for Pre-Trial Detention to the District Judge. In that case, the Defendant would be unable to post his bond until the District Judge has ruled on the Government’s appeal.

All Federal bonds are subject to the requirement that any assets used, whether money deposited with the Clerk of Court or paid to a bondsman, or collateral proffered to the Court by the signators of a personal surety bond or offered to the bondsman must be proven to have been legitimately gained before the bond can be posted. The Magistrate Judge who set the bond will conduct a hearing to determine the source of the funds and collateral.