Defending a Federal Criminal Case: Detention & Release

Defending a Federal
Criminal Case:
Detention & Release
Lunchtime CLE
April 3, 2015
Laine Cardarella
Federal Defender, WDMO
18 USC 3142
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The default position is release on personal recognizance or unsecured bond
unless the magistrate finds “that such release will not reasonably assure the
appearance of the person as required or will not ensure the safety of any
other person or the community.” 18 USC 3142(b)
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Must not commit any new crimes
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Must submit to collection of DNA if collection is authorized by 42 USC 14135(a)
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Must advise the Court, counsel, and US Attorney’s office in writing before any
change of address or phone number.
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Really? My clients will NOT be communicating in writing with the U.S. Attorney’s Office
Must appear in court as directed and surrender to serve any sentence imposed
Conditional Release
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If the judge believes conditions are needed to assure the person’s appearance
as required or the safety of any person or the community, then conditional
release can be ordered. 18 USC 3142(c)(1)(B)
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There are 14 suggested conditions in the statute and the catch-all “any other
condition that is reasonably necessary.”
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Conditions must be the least restrictive condition or combination of conditions that
will reasonably assure the appearance of the person as required and the safety of
any other person or the community.
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Conditions only have to REASONABLY ASSURE compliance, not GUARANTEE it.
United States v. Orta, 760 F2d 887 (8th Cir. 1985)
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Conditions must be related to the goals of assuring appearance and safety of the
community.
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If charged with certain crimes with minor victims, conditions must include electronic
monitoring.
Financial Conditions
You Can’t Give Poor People the Shaft
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Court should not set a financial
condition which the client cannot
meet, or which will result in
pretrial detention.
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But it’s probably ok to set a
financial condition that the client
will have to work at in order to
meet. (It’s ok to make him have
some “skin in the game.”)
So why aren’t all our
clients out on bond?
Because there are so many more subsections to 18 USC 3142.
Detention Hearings
on the Government’s Motion (3142(f)(1))
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Government can move to detain if case “involves”
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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;
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an offense for which the maximum sentence is life imprisonment or death;
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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;
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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
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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
That includes…
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Cases in which the person is not charged with a crime of violence, but the
case is related to a crime of violence probably count.
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Crime of violence crime is an offense that has as an element of the offense
the use, attempted use, or threatened use of physical force against the
person or property of another; or (B) any other offense that is a felony and
that, by its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing the
offense. (18 USC 3156(a)(4))
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1591 = sex trafficking of children
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2232b = terrorism
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3142(f)(1)(E) covers all the 922(g) cases (felon in possession, user in
possession, misdemeanor DV in possession…)
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When counting up those two or more prior convictions ((f)(1)(D)), at least one
District Court says it’s the counts not the cases that matter. US v. Delgado,
985 F.Supp.2d 895 (ND Iowa, 2013)
Detention Hearings on the Government’s
OR the Court’s Motion (3142(f)(2))
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Any case that involves either
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A serious flight risk, or
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A serious risk that the person will obstruct justice, or threaten, injure or intimidate
a witness or juror
How does the Court know if someone presents a serious flight risk or a serious
risk that the person will obstruct justice?
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Could object to a sua sponte detention hearing to find out….
Timing of a Detention Hearing
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First appearance (18 USC 3142(f))
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Government can seek up to three days continuance
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Client can seek up to five days continuance
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If you are feeling rushed ask for a continuance to get your witnesses
interviewed or into the courtroom for the hearing, or to find a place for your
client to live, etc.
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Either side, or the Court, can get more time for good cause.
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If the person appears to be a drug addict (???) the Court can order a
medical exam during the waiting period to see if he is an addict.
Don’t get too excited about timing issues. Timing errors/delays are
not necessarily grounds for release. US v. Montalvo-Murillo, 495 U.S.
711 (1990)
Unique problem: the client in on a writ
Do you have a hearing?
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If a client appears on a writ from state custody, Court has two options
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Can postpone the detention hearing under the “good cause” grounds until the
person is no longer in state custody.
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Court may try to obtain consent from government and client, but probably doesn’t need
consent to continue the hearing for “good cause.”
Can hold a provisional detention hearing. Any order would become effective if the
person’s status as a state inmate changes.
Be aware that if the client appears because of a request under the Interstate
Agreement on Detainers Act, returning him to state custody without his
consent may be grounds for dismissal of the federal case.
Rebuttable Presumptions
or the Art of Burden Shifting
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The previous violator assumption (18 USC 3142(e)(2))
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Case falls in the 3142(f)(1) list AND
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Client has been previously convicted of an (f)(1) offense or a state
offense that would be an (f)(1) offense if federal AND
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prior conviction was committed while the client was on pretrial
release for a state, federal or local offense AND
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prior conviction was within the last 5 years OR the client has
been released from prison for that conviction within the last 5 years
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Rebuttable presumption that no condition or combination of
conditions can reasonably assure the safety of any other person and
the community.
Rebuttable Presumptions
or The Art of Burden Shifting
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The drug and firearm offender presumption (3142(e)(3))
u  Misnomer
because used to generally only cover drug and firearm cases
but now broader
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Client is charged with, and Court finds probable cause that he committed
drug charge with maximum punishment of at least 10 years; Title 18
Section 924(c); 956(a) (conspiracy to kidnap, kill or maim in a foreign
country); 2332b (terrorism); 2332b(g)(5)(B) if max punishment is at least
10 years (more terrorism); 1581-1597 if max punishment is at least 20
years (slavery, trafficking in persons, etc); OR any of a laundry list of
offenses where minor is a victim (see 18 USC 3142(e)(3)(E)
Rebuttable presumption that no condition or combination of
conditions will reasonably assure the appearance of the client or the
safety of any person and the community.
Caselaw suggests the drug
and firearm presumption
gives the defendant the
burden of production, it does
not shift the burden of
persuasion.
US v. Orta, 760 F2d 887, fn 17 (8th Cir. 1985)
Whatever.
The Pretrial Report
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Clients are interviewed by a pretrial (probation) officer after the initial
appearance.
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Report is prepared for the Court, copies available to the parties
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Includes brief summary of client’s family history, employment history, medical
history, and substance abuse history.
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Includes criminal history BUT not always accurate.
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If your client says something is inaccurate in a way that is harmful, proffer the client’s
version to the Court - - especially if something triggers the previous violator presumption.
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Reminder: don’t just rely on the pretrial report when you are calculating criminal history
down the road. It may not be the whole picture.
Pretrial officer makes a confidential recommendation to the Court regarding
whether the client should be released or detained.
PTRA
Pretrial Risk Assessment
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A risk assessment tool used in many
if not most districts.
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Used in WDMO, but not always
completed before the detention
hearing. (Information kept for
statistical purposes.)
Created with the goal of REDUCING
detention rates
Uses empirically based information
to measure risk and create a score
ASK FOR IT. If it isn’t available until
after your hearing, ask for it then
and if it shows a low score, ask to
reopen the hearing.
FEDERAL PRETRIAL RISK ASSESSMENT INSTRUMENT
(PTRA)
DEFENDANT’S NAME:
OFFICER:
PACTS #:
DISTRICT:
1.0 CRIMINAL HISTORY & CURRENT OFFENSE:
1.1. NUMBER OF FELONY CONVICTIONS
0=NONE
1=ONE TO FOUR
2=FIVE OR MORE
1.2. PRIOR FTAS
0=NONE
1=ONE
2=TWO OR MORE
1.3. PENDING FELONIES OR MISDEMEANORS
0= NONE
1=ONE OR MORE
1.4. CURRENT OFFENSE TYPE
0= THEFT/FRAUD, VIOLENT, OTHER
1=DRUG, FIREARMS, OR IMMIGRATION
1.5. OFFENSE CLASS
0=MISDEMEANOR
1=FELONY
1.6. AGE AT INTERVIEW
0= 47 OR ABOVE
1=27 TO 46
2=26 OR YOUNGER
TOTAL CRIMINAL HISTORY
Version 2.1
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PO’s recommendation may not
have been based on PTRA but
instead on “experience.”
DATE OF ASSESSMENT:
1
June 15, 2010
PTRA
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Guide to Judicary Policy, Volume 8, Chapter 3, Section 340
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In a 2009 research study which examined the effectiveness of alternatives to
detention while considering the risk, researchers found that lower risk defendants
released with certain alternatives to detention conditions were more likely to
experience pretrial release failure than defendants released without these
conditions.
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Moderate to high risk defendants released with certain alternatives to detention
conditions were less likely to experience failure than defendants released without these
conditions.
Risk principle means target high risk offenders, provide intense treatment to high
risk offenders, understand that intense treatment increases recidivism for low risk
offenders.
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See Federal Probation, September 2009 (available on uscourts.gov); http://www.counties.org/
sites/main/files/file-attachments/latessa_presentation_8-24-11.pdf
Trying to deal with some unique
circumstances
Dealing with Immigration: Detainers do NOT mean a
client is going to be detained, deported, or
removed… So now what?
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Great article on our website (mow.fd.org) under CJA resources about pretrial
release and immigration issues.
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Arguments for a client with an ICE detainer to be released on bond (all fully
fleshed out in the article)
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ICE detainers are not even a factor consideration at a bail determination hearing
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The Bail Reform Act fully replaces any authority of ICE detainers for federal pretrial
defendants under 3142(d)
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If ICE doesn’t take custody during the 10 day temporary detention, then they can’t take
custody at all
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If they do take custody, it can only be for purposes of removal in lieu of prosecution, and
then only if prosecutor consents. Cannot use civil detention authority to hold client for
trial.
This is an important and complicated issue. Watch for further CLE programs!
Dealing with warrants
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State and city warrants are almost as dreaded as ICE warrants. Don’t give up just
because there’s a warrant.
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State and city courts don’t always have the resources to keep people in custody. If your
client is released on federal pretrial release, then the state or city warrant may be
resolved with a court appearance and release with a new court date.
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Do you know the state public defender who handles the jurisdiction where any state
warrant is pending? Ask for help in getting a warrant set aside, or an assurance that the
client will be released on bond once he appears in court.
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Can you do a pro bono appearance for the client in city court to try to get warrants set
aside?
Parole warrants are probably the most difficult to deal with, because there’s no
judge you can appeal to in order to get the warrant set aside. But, you can call a
parole analyst or the client’s parole officer to see if the warrant can be withdrawn
or how long the client will likely serve if sent back to MDOC. Maybe it’s worth
having him go to MDOC and then writ him out for court.
Dealing with addiction and/or housing
issues
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Become familiar with treatment and counseling services available in your area
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Halfway houses are not our best choice, but Courts may prefer them because of the
structured setting. We know there are lots of temptations and bad influences there.
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Does your client have any insurance or access to treatment/counseling through church? Do you
know of programs that will work with your client at a free or reduced rate? (Share that sort of
info with your fellow lawyers please!!)
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Google, google, google. Information is everywhere. Find articles that say document studies
showing that treatment OUT OF CUSTODY is more effective than treatment in custody. Let’s not
wait to send this guy to RDAP, let’s start getting really effective help NOW!
Ask for a continuance of the detention hearing if you need to so that you can
present some housing alternatives if there aren’t any in the pretrial report.
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If you don’t get a continuance, ask to reopen the hearing later after you get the needed
info.
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You’ll have to investigate information from your client, and track down family and
friends, but you may be able to find a suitable place for him to live. The pretrial officer
probably only had a couple of days to prepare that report. It may take time more time
than that for you to find a suitable place or willing family member.
Dealing with the
Rebuttable Presumptions
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Presumably only way to overcome the drug and firearm presumption is to say
you aren’t guilty - - - can say there’s something unique about this case that
makes it not like regular cases - - -
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Realistically seem able to overcome presumption if no record to speak of and
good prospects while on bond
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For the previous violator
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Has there been a long delay between offense and indictment? Has client stayed in
the area and avoided arrest in that interim? Sounds like not a flight risk or a
danger!
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How old are those priors? People change. Recidivism risks go down with age,
marital status, home ownership… Has client successfully completed drug
treatment since prior convictions? (Be aware of when he last tested positive!)
WDMO statistics
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Pretrial release statistics are available at uscourts.gov
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Some districts have it pretty good
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Oh to live in Hawaii: 74.2% release rate (204 clients released)
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But even better is Guam: 88% release rate (66 clients released)
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Rounding out our top third: NDWV: 73.4% release rate (243 clients released)
Nationally, 73.4% of all defendants were detained and never released.
(27,676/99426 were released)
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The H tables
56.9% were detained excluding immigration cases (24,252/56253 were released)
WDMO: 57.8% detained and never released (326 clients were released)
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56.9% detained excluding immigration cases (288 clients were released)
With less than a 50-50 chance….
Why do we keep trying so hard?
Keeping your clients out on bond
should you be successful in the first place
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PTRA/risk principle may help
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If your client is failing because the conditions of release are too restrictive for a low risk
offender like your client, try changing the conditions.
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Give good counsel
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This looks like rewarding bad behavior. You’ll need to bring in the social science information
FROM uscourts.gov about risk principle. Lay that foundation when the conditions are first being
set.
Warn your client about the perils of violations; encourage cooperation with treatment
and/or all conditions of release; maintain contact with your client so you know if he’s
struggling; be proactive with the pretrial officer to try to prevent revocation of bond
Never give up.
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But if your client is having lots of problems on bond, and you are confident a sentence is
ultimately going to be imposed, good counsel may include recommending surrender on
the bond in order to avoid losing acceptance of responsibility at sentencing.
Seeking Review and Revocation of Detention Orders
(18 USC 3145)
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In WDMO, magistrates make detention decisions so can file for review
to District Court
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If your client isn’t indicted yet, the clerk will assign a district court judge
for purposes of the review (Motion to Revoke Detention Order)
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You can start with a motion to reconsider to the magistrate. Best to do this if
you are going to be presenting new evidence that wasn’t available at the first
hearing
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Motions “shall be determined promptly.”
Appealing Detention Orders
(18 USC 3145; FRAP 9)
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If you are not successful at the District Court, you can appeal to the Circuit Court.
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“The appeal shall be determined promptly.” If the clerk doesn’t give you an expedited
briefing schedule, call and ask for one. You might think to call ahead when you file your
Notice of Appeal.
FRAP 9 says no briefs unless the court requires it.
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Standard of review is clearly erroneous for the factual determinations that have been
made.
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The Court of Appeals independently reviews the ultimate detention decision. US v. Cantu,
935 F2d 950 (8th Cir. 1991)
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Government can also seek review from District Court or Appeal to 8th Circuit.
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Sample pleading available on mow.fd.org under CJA Resources
Quick Primer:
Arraignment
Arraignment hearings are
either scheduled at the
same time as detention
hearings, or will be one of
the next hearings held.
DON’T DO THIS