Not that long ago, individuals accused of non-violent, “white-collar” crimes were able to stay out of jail pending adjudication of the charges against them, obtaining bail packages that leveraged their substantial assets to satisfy the court’s concerns that they would appear for trial. In 2009, both Bernard Madoff, the investment manager accused of perpetrating the largest Ponzi scheme in history, and Marc Dreier, the Manhattan attorney charged with stealing $380 million from hedge funds and investors, sought release pending trial with proposed bail packages that, arguably, only the wealthiest of defendants could afford. Among other things, both defendants secured bail with personal recognizance bonds of $10 million and home detention secured by on-premises armed security guards—guards supplied by a security firm acceptable to the government, but paid for by the defendant or his family. See United States v. Madoff, 586 F. Supp. 2d 240 (S.D.N.Y. 2009); United States v. Dreier, 596 F. Supp. 2d 831, 834-35 (S.D.N.Y. 2009).

Times have changed. The recent decision of the U.S. Court of Appeals for the Second Circuit in United States v. Boustani, 932 F.3d 79 (2d Cir. 2019), marks a shift in the ability of wealthy defendants to secure bail pending trial. Jean Boustani’s bail request was similar to those of Madoff and Dreier, if not stronger. Charged with conspiracy to commit wire fraud, securities fraud, and money laundering arising out of an alleged $2 billion scheme, Boustani filed an application for bail that included, among other things, a $20 million personal recognizance bond and home confinement under the supervision of private armed security guards—to be provided by a security firm approved by the government at Boustani’s expense. See United States v. Boustani, 356 F. Supp. 3d 246, 250 (E.D.N.Y. 2019).

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