Federal Pretrial Release and Detention in Internet Crime Cases, Explained

At the time of this writing, a person arrested on federal computer or internet crime charges generally appears before a U.S. Magistrate Judge for an initial appearance soon after arrest. At that appearance, the government may ask the court to detain the person until trial, and if it does, the court generally holds a detention hearing within a few days. Federal pretrial release is governed by the Bail Reform Act, and it works quite differently from the bond systems many people know from state court.

Attorney Ron Frey has practiced criminal defense since 2004 and is admitted in the Middle and Southern Districts of Florida, the Northern and Southern Districts of Ohio, and the Western and Eastern Districts of North Carolina. Drawing on his experience handling many federal internet and computer crime cases, he has found that the detention hearing is often one of the most important early stages of a federal case, and that preparation begins right away. Because federal law and local practices in this area change, anyone facing a federal detention decision should talk with an attorney about how the current law applies.

How Federal Pretrial Release Generally Works

The process generally moves through a few stages:

• Initial appearance. After arrest, the person is brought before a magistrate judge, who explains the charges and rights and addresses counsel.
• The government’s motion for detention. In certain kinds of cases, including many involving minors, the government may ask the court to hold the person until trial.
• The detention hearing. The hearing is generally held at the initial appearance or after a short continuance, typically a few days. Both sides may present information, and the person has the right to counsel.
• The decision. The magistrate judge either releases the person on conditions or orders detention.

Federal courts generally do not use bond schedules. Release decisions are made case by case.

The Bail Reform Act and the Presumption of Detention

The Bail Reform Act generally provides that a person should be released on the least restrictive conditions that will reasonably assure their appearance and the safety of the community. In certain categories of cases, however, the law creates a rebuttable presumption that no conditions will be enough. At the time of this writing, that presumption generally applies in many cases involving a minor victim, including charges under federal enticement, child exploitation, and certain child pornography statutes.

A rebuttable presumption does not mean detention is automatic. The defense can generally present evidence to rebut it, and the court then weighs the factors described below. In addition, in cases involving a minor victim under certain statutes, federal law generally requires that any release order include electronic monitoring and several other specific conditions. These are often called the Adam Walsh Act conditions.

The Factors the Court Generally Considers

In deciding release or detention, the court generally considers:

• The nature and circumstances of the charged offense, including whether it involves a minor victim
• The weight of the evidence
• The person’s history and characteristics, such as family ties, employment, length of residence, community ties, health, and prior record
• The nature and seriousness of any danger to any person or the community if the person is released

The Pretrial Services Interview

Before the hearing, a U.S. Pretrial Services officer generally interviews the person and checks the information provided, then prepares a report or recommendation for the court on release and conditions. The interview generally focuses on background, such as residence, family, employment, finances, health, and prior record, rather than the facts of the case.

Because the report can carry real weight with the court, Attorney Ron Frey generally advises clients to talk with counsel before the interview, and he generally recommends that counsel either attend or prepare the client in advance. He also generally recommends keeping the conversation to background information and leaving discussion of the charges to counsel.

What the Government and the Defense Generally Argue

The government generally relies on the nature of the charge, the presumption where it applies, the strength of the evidence, any statements or device evidence, and claimed risks of danger or flight. In internet cases, it often argues that internet access makes conditions hard to enforce.

The defense generally responds with the person’s ties to the community, lack of any prior record, steady employment, a stable residence, a responsible third-party custodian, a specific set of proposed conditions, and questions about the weight of the evidence. Many people charged in these cases are first-time offenders (see our guide to a first-offense internet crime charge).

Common Release Options and Conditions

Federal release can take several forms, generally including:

• Release on personal recognizance or an unsecured appearance bond, sometimes called a signature bond
• A secured bond backed by property or cash
• A third-party custodian, such as a family member, who agrees to supervise and report
• Location monitoring
• Computer monitoring software, or limits on internet and device use, including no-internet conditions
• No contact with minors, travel limits, and passport surrender

Review and Appeal of a Detention Order

If a magistrate judge orders detention or sets conditions, either side may generally ask the district judge to review the order, and further appeal may be available. A detention hearing may also generally be reopened when new, material information comes to light, such as a new residence plan or custodian.

Common Concerns People Have

People facing a federal detention decision, and their families, generally ask about where the person can live, whether they can keep working, whether there are children in the home, how internet and device restrictions work in practice, whether they can travel, and how long the case is likely to take. See also what to do if police seized your computer or phone and our guide to a federal target letter.

The Laws Involved

In the federal system, pretrial release and detention are generally governed by the Bail Reform Act, including 18 U.S.C. § 3142 (release or detention of a defendant pending trial), which contains the presumption of detention for many offenses involving a minor victim, such as offenses under 18 U.S.C. §§ 2422, 2251, and certain provisions of §§ 2252 and 2252A, as well as the Adam Walsh Act release conditions. Review and appeal of release and detention orders are addressed under 18 U.S.C. § 3145 (review and appeal of a release or detention order), and Pretrial Services is addressed under 18 U.S.C. § 3154 (functions and powers relating to pretrial services). The initial appearance is addressed in Rule 5 of the Federal Rules of Criminal Procedure. As always, laws are subject to change and revision, so contact Attorney Ron Frey to discuss the details of your case and the current status of the law.

Why Talk With an Attorney About the Details?

A website can only offer a general picture. Federal pretrial practice varies from district to district, and the law continues to change. It is important to discuss the details of any specific situation with an attorney at the time it arises.

Talk With Attorney Ron Frey About a Federal Detention Hearing

If you or someone close to you has been arrested on federal computer or internet crime charges, contact Attorney Ron Frey of The Frey Law Firm, LLC. For state cases, see Bond and Pretrial Detention in Florida Internet Crime Cases, Explained. You can also read about federal enticement charges and federal sentencing.

This page is for general information only. It is not legal advice, and reading it or contacting us does not create an attorney-client relationship. Laws change, and how they apply depends on the facts of each case.