As the case with most crimes, defendants arrested for fraud are eligible for bail, and many people arrested for such crimes are released on bail pending trial. In major federal fraud cases, the defendant’s attorney usually does not make a bail application during the initial appearance, which is called an arraignment. The attorney will instead consent to detention without prejudice, meaning the attorney can make future applications for bail at any time. After that initial appearance, the attorney will try to work out a bail package with a prosecutor, which will almost certainly be granted by the court, since the bail will be on the consent of both parties, the defense, and the government. If a bail package cannot be worked out with a prosecutor, then the defense counsel will have an option of filing in court an application for bail, which will be opposed by the government. It is up to a judge to make the final decision after hearing arguments from both sides and reviewing all of the documents filed as part of the bail application.
The two main issues that a federal judge looks at before deciding on bail are whether the release of the defendant will place the community in danger and whether the defendant will return to court if released on bail. In many fraud cases, danger to the community is either not an issue or can be addressed in some way, such as confining the defendant to their residence or forbidding internet use. The issue of whether the person will return to court if released on bail will depend on the defendant’s ties to the community or to the United States, as well as how many and what type of guarantors (called suretors) are willing to guarantee the defendant’s return to court and under what conditions, or bond. Bond is the amount of money the defendant or their suretors promise to pay to the court if the defendant absconds. In a federal system, there is usually no need to bring any cash to court to secure the bond since, in most cases, bonds are secured by some property or guarantee of suretors to pay.
Since many of my clients are foreign nationals, it is hard for them to establish ties to the community or to the United States. As a result, unless a bail package can be worked out with a prosecutor, the court usually will either deny bail outright or require the posting of a large amount of cash.
What Are Some Things to Review with My Federal Criminal Defense Attorney When Deciding If I Should Work with Authorities After Being Arrested and Charged in a Federal Case?
There is no general rule since each case is unique. However, if the government has strong evidence against someone and that person knows that it’s very likely that they will be convicted at trial, then perhaps in such situations, it makes sense to consider cooperation as an option. Nevertheless, I have learned that the government sometimes tends to exaggerate the strengths of its case. I have also learned that just because you do not cooperate immediately does not mean that cooperation will not be available later on. The government often wants defendants to think that cooperation can only happen at the beginning, and if the person wants to cooperate, he must choose to do so immediately. It is true that such a strategy may lead to a greatly reduced sentence, but it also comes with such conditions as giving up the right to full discovery.
In every criminal case, the defendant has a right to various types of discovery, including any incriminating evidence that the government has in its possession and that the government will use to prove the defendant’s guilt at trial. A defendant is also entitled to what is known as Brady material, which is any material in possession of the government that shows or tends to show that the defendant is innocent, also known as exculpatory evidence. All defendants are entitled to such material under the relevant statutory laws and under the U.S. Constitution. Sometimes, the government uses the lure of cooperation to convince the defendant to give up their right to this evidence.
My advice is to think very carefully before giving up your right to such evidence since I have seen cases where the government’s case fell apart after a full review of discovery. Unless you are certain that you will lose a jury trial because the government has an extraordinarily strong case and evidence against you, it probably makes sense to wait to get discovery, see what is there, and then make a decision on whether to cooperate.
I have seen people afraid to push for discovery because they believe the government will walk away and take cooperation off the table—and that is exactly what the government wanted them to think. However, that is not usually how it works. I have had many cases where we got the discovery because we said no to cooperation, waited to see the strengths of the government’s case, and chose to cooperate only after determining that the government actually had something on my client.
For more information on Bonding Out in a Federal Fraud-Related Case, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (718) 989-2908 today.