Local Rule Cr. RULE 46.1: RELEASE FROM CUSTODY

Cr. RULE 46.1 RELEASE FROM CUSTODY (a) Deposit in Lieu of Surety (1) In lieu of surety in any case there may be deposited with the Clerk lawful United States currency, certificates of deposit issued by a bank licensed to do business in the United States, negotiable bonds approved by the Court or notes of the United States. If certificates of deposit, negotiable bonds or notes are deposited, the depositor shall execute the agreement required by 31 U.S.C. § 9303, authorizing the Clerk to collect or sell the bonds or notes in the event of default. In the case of certificates of deposit, the depositor shall notify the banking institution that the depositor's rights in the certificate of deposit have been assigned to the Clerk, United States District Court, and the banking institution shall acknowledge such notification to the Clerk. Unless ordered otherwise, the Clerk automatically shall reinvest the certificate of deposit at the maturity date at the then prevailing rate of interest. (2) If such a deposit in a criminal proceeding is not forfeited for default upon the appearance bond and was made by the party required to give security, or is shown to the Court to be his or her property though deposited in another name, it may be applied successively to the satisfaction of: (a) pecuniary conditions imposed upon the grant of probation; (b) claims of the United States in the proceeding, such as fines, costs or costs of prosecution under 28 U.S.C. § 1918; and (c) fees and expenses of the Marshal and Clerk. Upon exoneration of the appearance bond, the balance of the deposit then remaining shall be returned to the depositor. (b) Bail (1) Security Required Unless otherwise specified, an order fixing bail in a stated amount will be deemed to require the execution of a bail bond or equivalent security. (2) Bail Review Bail fixed by a Magistrate Judge in this District may not be reviewed by a District Judge unless an application to modify has first been made to the Magistrate Judge who fixed bail. A Magistrate Judge shall hear the first bail review, including bail review after indictment, unless bail was previously set in open court by a District Judge after hearing. If bail is set by a District Judge after an adversary hearing, no Magistrate Judge shall hear any review of that bail without the specific authorization of the District Judge setting the bail. Further review by a District Judge shall be made upon the record of the reasons for the bail set forth in writing by the Magistrate Judge, together with additional information that may be presented. (3) Hearing Upon request of the United States Attorney with regard to a particular defendant, the Clerk shall notify the United States Attorney at the time the defendant appears to satisfy the bail provisions set by the Magistrate Judge or District Judge. Upon motion by the United States Attorney or by its own motion, the Court may hold a hearing at which any person who posts collateral or cash for the securing of any bond may be examined as to the sources of such cash or collateral. The Court shall refuse to accept such bond if there is reason to believe that such cash or collateral is from a source such that it will not reasonably assure the appearance of the defendant as required. (4) Posting Security When the release of a defendant is conditioned upon the deposit of cash or other security with the Court, such deposit shall be made with the Clerk. (5) Approval of Bonds and Sureties All bail bonds and witness signatures on personal surety bonds shall be approved by a Magistrate Judge or the Clerk, who will acknowledge the signatures of those persons having executed the bonds. Unless the Court otherwise directs, all bonds in noncapital criminal cases for appearance before the Court shall be presented to a Magistrate Judge or the Clerk for approval, and if approved by the Magistrate Judge immediately forwarded to the Clerk together with any money or certificates of deposit, negotiable bonds approved by the Court, or notes of the United States deposited as security. (6) Documentation - Review by United States Attorney Any documentation required by this Rule shall be promptly reviewed, if necessary, by the United States Attorney present at the office where the bail bond is being executed, who shall advise the judicial officer or the Clerk of his or her approval or disapproval of the documentation presented. If the documentation is disapproved, the United States Attorney shall specify to the Court the reason for disapproval. (7) Documentation - Disapproval by United States Attorney; Hearing At the request of an aggrieved party, the Court as soon as practicable shall set a hearing on the reasons for disapproval or the failure of the United States Attorney to respond. (8) Cancellation of Bond Subject to L.Cr.R. 46.1(a)(2), upon termination of a criminal proceeding and authorization from the United States Attorney, the Clerk shall cancel the appearance bond and, where there has been a deposit of money, negotiable bonds, certificates of deposit or notes of the United States, shall prepare an order for submission to the Court for the return of the money, bonds, certificates of deposit or notes to the depositor thereof. (c) Refund of Bond Monies (1) Where a defendant's bond is secured by depositing cash with the Clerk pursuant to L.Cr.R. 46.1(a), the monies shall be refunded when the conditions of the bond have been performed, the defendant has been discharged from all obligations thereon, and the recognizance bond has been duly cancelled of record. If the sentence includes a fine or costs, however, any such fine or costs shall constitute a lien in favor of the United States on the amount deposited to secure the bond. No such lien shall attach when someone other than the defendant has deposited the cash and the refund is directed to someone other than the defendant. (2) The depositor shall at the time of the deposit execute a certification indicating the name and address of the person to whom the cash is to be refunded. This shall be done on the form provided by the Clerk and appended to the bail bond. See Appendix C. The depositor may change the designation of the person to receive the refund only by filing an executed assignment of bail or a consent order. (d) Sureties (1) All surety companies holding certificates of authority from the Secretary of the Treasury as acceptable sureties on Federal bonds, and which have appointed process agents for the District of New Jersey, are approved up to the amount for which they are respectively authorized by the Treasury Department as sureties on stipulations for cost or value, undertakings, bail bonds, and all other bonds required to be filed in the Court. (2) Noncorporate sureties shall be required to annex to every bail bond an affidavit of justification executed on the form furnished by the Clerk. (3) Unless the Court otherwise directs, the equity of a noncorporate surety offering real estate as security shall be determined to be the difference between the assessed valuation as shown by the last current tax bill and the existing mortgages and liens against the property. Such equity must be at least twice the amount of the bonds if the surety offering such bond is unmarried, or if husband and wife jointly sign the bonds as sureties, where the property is in either of their names. If a married person offers a bond as surety without the spouse joining, then the equity must be four times the amount of the bond. (4) Only property held in fee simple shall be accepted, and where title is in the name of husband and wife as tenants by the entirety, their bond shall not be accepted unless both sign the same. (5) All noncorporate sureties shall be required to exhibit at the time of the execution of the bond, deeds, last current tax receipts and personal identification prior to acceptance of any such surety. (6) It shall be the duty of the officer accepting bail to acquaint a noncorporate surety with the conditions of suretyship as set forth in this Rule. (7) In determining equity, the Court may consider market value of such real estate instead of its assessed valuation only upon formal application to the Court with notice to the attorney for each adversary party. All such applications shall be accompanied by not less than two affidavits. (8) Property owned out of the District of New Jersey may be offered as surety on the same basis as set forth in L.Cr.R. 46.1(d)(3) and, if such property is accepted, it shall become the obligation of counsel for the defendant to perfect a lien on it in accordance with the law and rules of the courts in the jurisdiction where the property is located, and said counsel shall so certify to the Clerk. (e) Attorney Shall Not Provide Bail No attorney shall tender his or her own funds for use as bail, except by special leave of the Court.