The opinion of the court was delivered by: MCCLURE
We are presented with the question of whether a criminal defendant has the right to counsel during "processing" by the United States Marshals Service.
On July 6, 1998, the United States Attorney for the Middle District of Pennsylvania filed an information charging defendant Nancy L. Hoyt with providing a prohibited object, marijuana, to an inmate at the United States Penitentiary at Lewisburg, Union County, Pennsylvania, in violation of 18 U.S.C. § 1791(a)(1). On August 10, 1998, Hoyt appeared before the court for arraignment, waived indictment, and entered a plea of guilty to the charge set forth in the information.
Following entry of the plea, Hoyt and her counsel, D. Toni Byrd, Esquire, Assistant Federal Public Defender, left the courtroom for processing by the Marshals Service and release. Shortly thereafter, the court was contacted by the supervisor of the Williamsport office of the Marshals Service and informed that Hoyt and Attorney Byrd had left the office without completing all of the steps involved in processing. Attorney Byrd was contacted and she indicated that, because the order for pre-sentence release did not specify that processing was necessary, and because her client had the right to counsel when a questionnaire involving personal data was completed, a right the Marshals Service refused to honor, she and Hoyt had left the courthouse and Attorney Byrd had sent her client home.
The failure to direct processing of Hoyt prior to release was plainly an oversight which will be corrected through this order. Moreover, since there apparently is a dispute between the Marshals Service and defense counsel as to the right to counsel during the processing of a criminal defendant, we will set forth what we expect of both.
I. RELEASE PENDING IMPOSITION OF SENTENCE
The Federal Rules of Criminal Procedure provide that eligibility for release pending the imposition of sentence once a defendant has been found guilty is governed by 18 U.S.C. § 3143. Fed. R. Civ. P. 46(c). For an offense such as that to which Hoyt pled guilty, the controlling provision is § 3143(a)(1). Compare 18 U.S.C. §§ 3143(a)(2), 3142(f)(1)(A), (B), (C) (limiting availability of release pending sentence for certain offenses, not applicable). If the defendant is not likely to flee or pose a danger to another person or the community, § 3142(a)(1) provides that he or she may be released in accordance with the provisions of 18 U.S.C. § 3142(b), (c). Consistent with those provisions, "the judicial officer may at any time amend the order to impose additional or different conditions of release." 18 U.S.C. § 3143(c)(3).
Following entry of the plea, the court issued a standard Order Setting Conditions of Release, using form AO 199A. That form sets forth various options to be checked as applicable. The last section of the form is "Directions to United States Marshal," and includes two options. The first is for the release of the defendant after processing; the second is for detention of the defendant. Neither option is checked on the form order issued in this case (record document no. 7, filed August 10, 1998). The failure to check one of the options was simply an oversight on the part of the court.
Processing of a defendant permits the Marshals Service to identify the defendant when eventually taken into custody and permits law enforcement generally to maintain a record of arrests and related proceedings. Such processing is one of the fundamental routines of all law enforcement agencies, so much so that is seems unnecessary for us to state as much. For that reason, we will exercise our authority under §§ 3143(a)(1) and 3142(c)(3) and amend the conditions of release to require that Hoyt report to the Marshals Service in Williamsport for processing.
When contacted by the court due to Hoyt's absence from the Marshals Service office, Attorney Byrd indicated that she believes that her client has the right to the presence of counsel during processing, and that it has been her undisputed practice in the Middle District for some ten years to be present for processing. The supervisor of the Williamsport office of the Marshals Service, James Cunfer, asserts that defense counsel has no right to be present for processing, that he is required to take the ...