U.S. v. Arzberger

Decision Date31 December 2008
Docket NumberNo. 08 Mag. 1876 (JCF).,No. 08 Cr. 894 (AKH).,08 Cr. 894 (AKH).,08 Mag. 1876 (JCF).
Citation592 F.Supp.2d 590
PartiesUNITED STATES of America v. Jason ARZBERGER, Defendant.
CourtU.S. District Court — Southern District of New York

Amie Nicole Ely, U.S. Attorney's Office, New York, NY, for Plaintiff.

Leonard Fessenden Joy, Federal Defenders of New York Inc., New York, NY, for Defendant.

MEMORANDUM AND ORDER

JAMES C. FRANCIS IV, United States Magistrate Judge.

Jason Arzberger is charged with possessing and receiving child pornography. After Mr. Arzberger was released on bond pending trial, the Government moved to modify his bail by adding conditions required by the Adam Walsh Amendments to the Bail Reform Act. See 18 U.S.C. § 3142 et seq., as amended by Adam Walsh Child Protection and Safety Act of 2006, H.R. 4472, Pub. L. No. 109-248 (the "Adam Walsh Amendments"). In particular, the Government requested that the defendant (1) be required to comply with a curfew, (2) be subject to electronic monitoring, (3) be directed to avoid contact with any potential witnesses who may testify regarding his offense, and (4) be prohibited from possessing a firearm, destructive device, or other dangerous weapon.

Mr. Arzberger has opposed the Government's application on the grounds that the Adam Walsh Amendments are unconstitutional because they (1) violate due process under the Fifth Amendment, (2) violate the Eighth Amendment proscription against excessive bail, and (3) violate the separation of powers doctrine. For the reasons that follow, the Government's motion is denied.

Background

In the course of an international criminal investigation, Europol identified a producer of child pornography in Italy (the "Producer"), who sold photographs and movies through a website with the internet address youngvideomodels.net. (Criminal Complaint § "Compl."), ¶¶ 4(a), (g). In the course of a search of the Producer's residence, Europol seized approximately 150 videotapes and numerous e-mail addresses which it provided to the Federal Bureau of Investigation (the "FBI"). (Compl., ¶¶ 4(d), (e), (f)). The FBI reviewed the videos and determined that they all depicted females under the age of 15, and Europol identified many of the minors and verified their ages. (Compl., ¶ 4(f)). In nearly all of the videos, the minors appear nude or partially nude, are engaging in sexual acts, or are depicted in lascivious positions. (Compl., ¶ 4(f)).

One of the e-mail addresses obtained by the FBI was that of the defendant, Jason Arzberger. (Compl., ¶¶ 4(g), 6). Mr. Arzberger had communicated with the Producer seven times between September 2005 and March 2006, inquiring about and requesting movies containing child pornography. (Compl., ¶ 5). In December 2007, an undercover FBI agent (the "Undercover Agent"), posing as an associate of the Producer, sent an e-mail to the defendant offering new pornographic DVDs. (Compl., ¶ 7(a)). When Mr. Arzberger responded by requesting details, the Undercover Agent provided a catalogue of three sets of videos depicting a 10-year-old, a 12-year-old, and a 14-year-old engaged in sexual acts. (Compl., ¶ 7(c)). The Undercover Agent also provided an order form. (Compl., ¶ 7(c)).

Mr. Arzberger returned the order form, requesting specific DVDs that depicted the 12 year old and 14 year old girls engaging in sexual activities. (Compl., ¶¶ 7(c), 8(c)). On August 27, 2008, an undercover letter carrier delivered to the defendant a package that appeared to be from the Producer's associate in response to Mr. Arzberger's order. (Government's Memorandum of Law Regarding the Constitutionality of the Adam Walsh Act Bail Conditions ("Gov't Memo.") at 3). When the defendant identified himself and accepted the package, he was arrested. (Gov't Memo. at 3-4). He made a post-arrest statement acknowledging his conduct. (Gov't Memo. at 4).

Mr. Arzberger was charged in a criminal complaint with one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(b)(B) and with one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B). He was subsequently indicted on the same charges.

The defendant appeared before me on August 27, 2008, the same day he was arrested. I ordered that he be released on a bail package that included an agreedupon bond of $100,000.00, secured by $10,000.00 in cash and co-signed by two financially responsible persons. (Transcript of Criminal Cause for Presentment and Bail Hearing dated Aug. 27, 2008 ("Tr.") at 4, 6). As additional conditions of release, I also required that Mr. Arzberger be subject to strict pretrial services supervision including drug testing and treatment, that he undergo a mental health evaluation by an independent provider as well as treatment if recommended, that he have no unsupervised contact with minors, that he permit the Pretrial Services Office to monitor his computer use, and that he limit his travel to the Southern and Eastern Districts of New York. (Tr. at 6-7). I declined to require electronic monitoring. (Tr. at 6).

On August 29, 2008, the Government notified me that certain additional conditions were required by 18 U.S.C. § 3142(c)(1)(B) and asked that I modify the terms of the defendant's release accordingly. (Letter of Amie N. Ely dated Aug. 29, 2008). Specifically, the Government requested the conditions referred to above: a curfew, electronic monitoring, a prohibition on contact with potential witnesses, and a prohibition on possessing a firearm or other dangerous weapon. Defense counsel responded on September 2, 2008, contending that the requirements imposed by the Adam Walsh Amendments were unconstitutional. (Letter of Leonard F. Joy dated Sept. 2, 2008). Both parties have subsequently briefed those issues.

Discussion
A. The Legal Landscape
1. The Statutory Scheme

Under the Bail Reform Act of 1984, an accused person may be held without bail pending trial upon a judicial determination that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(e). Where the issue is the safety of the community, the burden is on the Government to demonstrate by clear and convincing evidence that the defendant poses a danger. 18 U.S.C. § 3142(f)(2). In cases involving crimes of violence, including crimes against minor victims such as receipt or distribution of child pornography, there is a rebuttable presumption that the defendant presents a danger to the community. 18 U.S.C. § 3142(e). And, while the Government retains its burden of proving dangerousness by clear and convincing evidence, the presumption continues to carry weight even when the defendant comes forth with rebuttal evidence. See United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir.1991).

If a defendant is not remanded, he must be released on personal recognizance or on an unsecured bond unless the court determines that these conditions are insufficient. 18 U.S.C. § 3142(b). In that event, the court is obligated to fashion a bail package consisting of "the least restrictive further condition or conditions" that will reasonably assure the defendant's appearance and the safety of the community. 18 U.S.C. § 3142(c)(1)(B).

In 2006, Congress enacted the Adam Walsh Amendments, which, among other things, mandated specific conditions for the release of persons charged with child pornography offenses. Now, "[i]n any case that involves a minor victim under section ... 2252A(a)(2) ... of this title, any order shall contain, at a minimum, a condition of electronic monitoring" and the conditions that the defendant:

[1] abide by specified restrictions on personal associations, place of abode, or travel;

[2] avoid all contact with an alleged victim of the crime and with a potential witness who may testify concerning the offense;

[3] report on a regular basis to a designated law enforcement agency, pretrial services agency, or other agency;

[4] comply with a specified curfew; [and]

[5] refrain from possessing a firearm, destructive device, or other dangerous weapon[.]

18 U.S.C. § 3142(c)(1)(B). It is the nondiscretionary imposition of these conditions that Mr. Arzberger challenges.

2. The Case Law

Four cases have considered the constitutionality of the Adam Walsh Amendments. The first was United States v. Crowell, Nos. 06-M-1095, 06-CR-291, 06-CR-304, 2006 WL 3541736 (W.D.N.Y. Dec. 7, 2006). In that case, three defendants were released on conditions that were recommended by the Pretrial Services Office and unopposed by the Government. Id. at *1-2. Sometime after the defendants' release, Pretrial Services recognized that it had not sought certain terms mandated by the Adam Walsh Amendments and recommended that the conditions of release be modified accordingly for each defendant. Id. at *2. Defense counsel objected on the ground that the Amendments were unconstitutional, and the Government submitted papers opposing the defendants' position, which the court construed as a motion for imposition of the additional conditions recommended by Pretrial Services. Id. at *2-3.

United States Magistrate Judge Leslie G. Foschio first considered the Eighth Amendment's prohibition on excessive bail. He reasoned that the appropriate mode of analysis was to "compare [the] proposed conditions with the interests the government seeks to protect, including assuring the defendant's appearance at trial and protecting the safety of the community." Id. at *5 (citation omitted). Judge Foschio reached the following conclusion:

Although the additional conditions sought to be required would further advance the public's valid interest in protecting children from sexual abuse and exploitation through the production or possession of such pornography and, as such, are not per se violative of the Eighth Amendment's prohibition against excessive bail, the imposition of such conditions on all defendants charged with certain...

To continue reading

Request your trial
27 cases
  • State v. Jorgenson
    • United States
    • Washington Supreme Court
    • 21 Noviembre 2013
    ...States v. Karper, 847 F.Supp.2d 350 (N.D.N.Y.2011); United States v. Smedley, 611 F.Supp.2d 971 (E.D.Mo.2009); United States v. Arzberger, 592 F.Supp.2d 590 (S.D.N.Y.2008); United States v. Torres, 566 F.Supp.2d 591 (W.D.Tex.2008). 4 Like the Washington statute, the Adam Walsh Amendments id......
  • U.S. v. Pool
    • United States
    • U.S. District Court — Eastern District of California
    • 27 Mayo 2009
    ...procedural due process under the Fifth Amendment); United States v. Rueb, 612 F.Supp.2d 1068 (D.Neb.2009) (same); United States v. Arzberger, 592 F.Supp.2d 590 (S.D.N.Y.2008) (statute violates procedural due process under the Fifth Amendment, but does not violate, on its face, the Excessive......
  • United States v. Karper
    • United States
    • U.S. District Court — Northern District of New York
    • 10 Agosto 2011
    ...as applied to a particular set of facts, the Government can enforce it differently under dissimilar situations. United States v. Arzberger, 592 F.Supp.2d 590, 598 (S.D.N.Y.2008) (citation omitted); see also United States v. Polouizzi, 697 F.Supp.2d at 387 (“In an as-applied challenge, the q......
  • United States v. Laurent
    • United States
    • U.S. District Court — Eastern District of New York
    • 2 Diciembre 2011
    ...of pre-trial release unconstitutional); United States v. Torres, 566 F.Supp.2d 591, 598 (W.D.Tex.2008) (same); United States v. Arzberger, 592 F.Supp.2d 590, 607 (S.D.N.Y.2008) (striking down the Adam Walsh amendment's curfew and electronic monitoring requirements; restrictions on firearms ......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT