Rule 46 Release from Custody

(a) Release Prior to Trial.

(1) Any person charged with an offense shall, at his/her appearance before a judge, be ordered released pending trial on his/her personal recognizance or upon the execution of an unsecured appearance bond in an amount specified by the judge, unless the judge determines, in the exercise of the judge's discretion, that such a release will not reasonably assure the appearance of the person as required. When such determination is made, the judge shall either in lieu of or in addition to the above methods of release, impose the first of the following conditions of release which will reasonably assure the appearance of the person for trial or, if no single condition gives that assurance, any combination of the following conditions:

(A) place the person in the custody of a designated person or organization agreeing to supervise him/her;

(B) place restrictions on the travel, association or place of abode of the person during the period of release;

(C) require the execution of an appearance bond in a specified amount and the deposit in the registry of the court, in cash or other security as directed, of a sum not to exceed ten (10) per centum of the amount of the bond, such deposit to be returned upon the performance of the conditions of release;

(D) require the execution of a bail bond with sufficient solvent sureties, or the deposit of cash in lieu thereof; or

(E) impose any other condition deemed reasonably necessary to assure appearance as required, including a condition requiring that the person return to custody after specified hours.

(2) In determining which conditions of release will reasonably assure appearance, the judge shall, on the basis of available information, take into account the nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused's family ties, employment, financial resources, character and mental condition, the length of his/her residence in the community, his/her record of convictions, and his/her record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings.

(3) A judge authorizing the release of a person under this section shall issue an appropriate order containing a statement of the conditions imposed, if any, shall inform such person of the penalties applicable to violations of the conditions of his/her release and shall advise him/her that a warrant for his/her arrest will be issued immediately upon any such violation.

(4) A person for whom conditions of release are imposed and who after 24 hours from the time of the release hearing continues to be detained as a result of his/her inability to meet the conditions of release, shall, upon application, be entitled to have the conditions reviewed by the judge who imposed them. Unless the conditions of release are amended and the person is thereupon released, the judge shall set forth in writing the reasons for requiring the conditions imposed. A person who is ordered released on a condition which requires that he/she return to custody after specified hours shall, upon application~ be entitled to a review by the judge who imposed the conditions. Unless the requirement is removed and the person is thereupon released on another condition, the judge shall set forth in writing the reasons for continuing the requirement In the event that the judge who imposed conditions of release is not available, any other judge may review such conditions.

(5) A judge ordering the release of a person on any condition specified in this section may at any time amend his/her order to impose additional or different conditions of release, provided, that, if the imposition of such additional or different conditions results in the detention of the person as a result of his/her inability to meet such conditions or in the release of the person on a condition requiring him/her to return to custody after specified hours, the provisions of subsection (4) shall apply.

(6) Information stated in, or offered in connection with, any order entered pursuant to this section need not conform to the rules pertaining to the admissibility of evidence in a court oflaw.

(7) If it appears by affidavit that the testimony of a person is material in any criminal proceeding, and if it is shown that it may become impracticable to secure his/her presence by subpoena, a judge shall impose conditions of release pursuant to Rules 46(a)(l) through (6) above. No material witness shall be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and further detention is not necessary to prevent a failure of justice. Release may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to Rule 15.

(b) Release Purine Trial. A person released before trial shall continue on release during trial under the same terms and conditions as were previously imposed unless the court determines that other terms and conditions or termination of release are necessary to assure his/her presence during the trial or to assure that his/her conduct will not obstruct the orderly and expeditious progress of the trial.

(c) Pendine Sentence and Notice of Appeal. A person who has been convicted of an offense and is either awaiting sentence or has filed an appeal shall be treated in accordance with the provisions of Rule 46(a)(l) through (6) above, unless the court has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community. If such a risk of flight or danger is believed to exist, or if it appears that an appeal is frivolous or taken for delay, the person may be ordered detained.

(d) Justification of Sureties. Every surety, except a corporate surety which is approved as provided by law, shall justify by affidavit and may be required to describe in the affidavit the property by which he/she proposes to justify and the encumbrances thereon, the number and amount of other bonds and undertaking for bail entered into by him/her and remaining undischarged and all of his/her other liabilities. No bond shall be approved unless the surety thereon appears to be qualified.

(e) Forfeiture.

(1) Declaration. If there is a breach of condition of a bond, the court shall declare a forfeiture of the bail.

(2) Setting Aside. The court may direct that a forfeiture be set aside, upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture.

(3) Enforcement. When a forfeiture has not been set aside, the court shall on motion enter a judgment of default and execution may issue thereon. By entering into a bond the obligers submit to the jurisdiction of the court and irrevocably appoint the clerk of the court as their agent upon whom any papers affecting their liability may be served. Their liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the obligers to their last known addresses.

(4) Remission. After entry of such judgment, the court may remit it in whole or in pan under the conditions applying to the setting aside of forfeiture in paragraph

(2) of this subdivision.

(f) Exoneration. When the condition of the bond has been satisfied or the forfeiture thereof has been set aside or remitted, the court shall exonerate the obligers and release any bail. A surety may be exonerated by a deposit of cash in the amount of the bond or by a timely surrender of the defendant into custody.

(g) Syperyisjon of Detention Pendin~Trial. The court shall exercise supervision over the detention of the defendants and witnesses pending trial for the purpose of eliminating all unnecessary detention. The attorney for the government shall make a bi-weekly report to the court listing each defendant and witness who has been held in custody pending information, arraignment, or trial for a period in excess of ten (1 0) days. As to each witness so listed, the attorney for the government shall make a statement of the reasons why such witness should not be released with or without the taking of deposition pursuant to Rule 15(a). As to each defendant so listed, the attorney for the government shall make a statement of the reasons why the defendant is still held in custody.