Fed. R. Crim. P. 46 - Release from Custody; Supervising Detention
(a) Before Trial. The provisions of 18 U.S.C. §§ 3142 and 3144 govern pretrial release.
(b) During Trial. A person released before trial continues on release during trial under the same terms and conditions. But the
court may order different terms and conditions or terminate the
release if necessary to ensure that the person will be present during trial or that the person’s conduct will not obstruct the orderly
and expeditious progress of the trial.
(c) Pending Sentencing or Appeal. The provisions of 18 U.S.C.
§ 3143 govern release pending sentencing or appeal. The burden of
establishing that the defendant will not flee or pose a danger to
any other person or to the community rests with the defendant.
(d) Pending Hearing on a Violation of Probation or Supervised
Release. Rule 32.1(a)(6) governs release pending a hearing on a violation of probation or supervised release.
(e) Surety. The court must not approve a bond unless any surety
appears to be qualified. Every surety, except a legally approved
corporate surety, must demonstrate by affidavit that its assets
are adequate. The court may require the affidavit to describe the
(1) the property that the surety proposes to use as security;
(2) any encumbrance on that property;
(3) the number and amount of any other undischarged bonds
and bail undertakings the surety has issued; and
(4) any other liability of the surety.
(f) Bail Forfeiture.
(1) Declaration. The court must declare the bail forfeited if
a condition of the bond is breached.
(2) Setting Aside. The court may set aside in whole or in part
a bail forfeiture upon any condition the court may impose if:
(A) the surety later surrenders into custody the person
released on the surety’s appearance bond; or
(B) it appears that justice does not require bail forfeiture.
(A) Default Judgment and Execution. If it does not set
aside a bail forfeiture, the court must, upon the government’s motion, enter a default judgment.
(B) Jurisdiction and Service. By entering into a bond, each
surety submits to the district court’s jurisdiction and irrevocably appoints the district clerk as its agent to receive service of any filings affecting its liability.
(C) Motion to Enforce. The court may, upon the government’s motion, enforce the surety’s liability without an
independent action. The government must serve any motion, and notice as the court prescribes, on the district
clerk. If so served, the clerk must promptly mail a copy to
the surety at its last known address.
(4) Remission. After entering a judgment under Rule 46(f)(3),
the court may remit in whole or in part the judgment under
the same conditions specified in Rule 46(f)(2).
(g) Exoneration. The court must exonerate the surety and release any bail when a bond condition has been satisfied or when
the court has set aside or remitted the forfeiture. The court must
exonerate a surety who deposits cash in the amount of the bond
or timely surrenders the defendant into custody.
(h) Supervising Detention Pending Trial.
(1) In General. To eliminate unnecessary detention, the
court must supervise the detention within the district of any
defendants awaiting trial and of any persons held as material
(2) Reports. An attorney for the government must report biweekly to the court, listing each material witness held in custody for more than 10 days pending indictment, arraignment,
or trial. For each material witness listed in the report, an attorney for the government must state why the witness should
not be released with or without a deposition being taken under
(i) Forfeiture of Property. The court may dispose of a charged offense by ordering the forfeiture of 18 U.S.C. § 3142(c)(1)(B)(xi) property under 18 U.S.C. § 3146(d), if a fine in the amount of the property’s value would be an appropriate sentence for the charged offense.
(j) Producing a Statement.
(1) In General. Rule 26.2(a)–(d) and (f) applies at a detention
hearing under 18 U.S.C. § 3142, unless the court for good cause
(2) Sanctions for Not Producing a Statement. If a party disobeys a Rule 26.2 order to produce a witness’s statement, the
court must not consider that witness’s testimony at the detention hearing.