U.S. v. Gardner

• Decision Date: 28 November 2007
• Docket Number: No. CR-07-0454 PJH (EMC).,CR-07-0454 PJH (EMC).
• Citation: 523 F.Supp.2d 1025
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES of America, Plaintiff, v. Latosha GARDNER, Defendant.

523 F.Supp.2d 1025

UNITED STATES of America, Plaintiff, v. Latosha GARDNER, Defendant.

No. CR-07-0454 PJH (EMC).

United States District Court, N.D. California.

November 28, 2007.

Michelle Morgan-Kelly, U.S. Attorney's Office, Oakland, CA, for Plaintiff.

Jodi Linker, Office of the Federal Public Defender, San Francisco, CA, for Defendant.

ORDER GRANTING GOVERNMENT'S MOTION TO AMEND RELEASE CONDITIONS

EDWARD M. CHEN, United States Magistrate Judge.

Defendant Latosha Gardner was indicted on July 17, 2007 on one count of conspiracy to engage in sex trafficking of a minor under 18 U.S.C. § 371, and one count of sex trafficking of a minor under 18 U.S.C. § 1591. On August 16, this Court held a detention hearing. After considering the parties' proffers and the report and recommendation of Pretrial Services, the Court granted Ms. Gardner pretrial release subject to numerous conditions. The conditions of release required that Ms. Gardner (1) shall appear at all proceedings as ordered by the Court; (2) shall not commit any federal, state, or local crime; (3) shall not harass, threaten, intimidate, injure, tamper with, or retaliate against any witness, victim, informant, juror, or officer of the Court, or obstruct any criminal investigation; (4) shall not travel outside the Northern District of California; (5) shall report to Pretrial Services as directed; (6) shall not possess any firearm, destructive device, or other dangerous weapon; (7) shall maintain current employment, or if unemployed shall seek and maintain verifiable employment; (8) shall have no contact with any co-defendant out of the presence of counsel; (9) shall not change residence without prior approval of Pretrial Services; (10) shall comply with a curfew as determined by Pretrial Services; and (11) shall have no contact with minor victim and Daphne Vickers. See United States v. Gardner, No. CR07-0454 PHI (N.D.Cal. Aug. 16, 2007) (order setting conditions of release and appearance of bond).

On October 22, the government moved to amend Ms. Gardner's pretrial release conditions to include the condition of electronic monitoring pursuant to 18 U.S.C § 3142(c)(1)(B) as amended by the Adam Walsh Child and Protection Safety Act of 2006. Having reviewed the parties' briefs and accompanying submissions, as well as the oral argument of counsel, the Court hereby GRANTS the government's motion.

I. FACTUAL & PROCEDURAL BACKGROUND

A. The Instant Case

On July 17, 2007, a grand jury indicted Ms. Gardner for her alleged part in a March 2007 conspiracy with co-defendants Shannon Blaylock and Tawakoni Seaton. All parties are charged with conspiring to engage in the sex trafficking of a 17-year old minor female, V.S. On March 10, 2007, Ms. Gardner is alleged to have accompanied Mr. Blaylock to pick up V.S. at the San Francisco Greyhound station whereupon they transported V.S. to Ms. Gardner's home to prepare V.S. for work as a prostitute. Indictment ¶¶ 2b(1)-(2). Thereafter, Ms. Gardner is alleged to have rented a car on March 20, 2007 for Mr. Blaylock to allow him to transport V.S. and collect money from V.S. Id. ¶ 2k. Further, the indictment alleges that, throughout the criminal enterprise, Ms. Gardner's residence was used to house V.S. between prostitution calls. Id. ¶ 2l(3). Ms. Gardner was arrested pursuant to this indictment on August 13.

At her detention hearing on August 16, this Court ordered that Ms. Gardner be released subject the posting of a $75,000 unsecured bond and the numerous conditions described above. The release conditions were found by this Court to be the least restrictive conditions necessary to secure her appearance and protect the safety of the community, consistent with the Bail Reform Act of 1984. See 18 U.S.C. § 3142(c)(1)(B).

In a letter dated October 4, almost two months after Ms. Gardner was initially released on bond, the government notified Pretrial Services and Defendant that it would seek to impose electronic monitoring. The decision to review the conditions was spurred by the assistant U.S. attorney's ("AUSA") subsequent realization that the Adam Walsh Act mandated electronic monitoring, notwithstanding the Court's finding that it was not required.

The Adam Walsh Child and Protection Safety Act of 2006 ("the Adam Walsh Act"), Pub.L. No. 109-248, 109 Stat. 587, amended the Bail Reform Act of 1984 ("the Bail Reform Act"), 18 U.S.C. § 3142, to require that defendants charged with certain listed crimes be placed on a prescribed minimum set of release conditions. As amended, the Bail Reform Act now requires that these defendants be (1) placed on electronic monitoring; (2) "abide by specific restrictions on personal associations, place of abode, or travel"; (3) "avoid all contact with [the] alleged victim of the crime and with [any] potential witness[es] who may testify concerning the offense;" (4) "report to on a regular basis to a designated law enforcement agency, pretrial services agency, or other agency"; (5) "comply with a specified curfew"; and (6) "refrain from possessing a firearm, destructive device or other dangerous weapon." 18 U.S.C. § 3142(c)(1)(B). These mandatory conditions are meant to "protect children from sexual attacks and other violent crimes." Pub.L. No. 109-248, tit. II, 109 Stat. at 611.

At the October 22 bond hearing, the AUSA formally requested the imposition of electronic monitoring.¹ Ms. Gardner's defense counsel objected to the imposition of electronic monitoring, arguing that the Adam Walsh Act's amendment to the Bail Reform Act is unconstitutional. Ms. Gardner argued that the conditions imposed by the Adam Walsh Act (1) constituted excessive bail in violation of the Excessive Bail Clause of the Eighth Amendment; (2) violated procedural due process; and (3) contravened the separation of powers doctrine. She relied on United States v. Crowell, Nos. 06-M-1095, 06-CR-291E(F), 06-CR-304S(F), 2006 WL 3541736 (W.D.N.Y. Dec. 7, 2006), which held the Adam Walsh Act amendments unconstitutional on all three grounds.

The parties were provided with an opportunity to provide supplemental briefing on the constitutionality of the Act. An additional hearing was, also held to afford counsel an opportunity to argue the matter.

B. The Crowell Case

In Crowell, the defendants were charged with crimes involving child pornography. 2006 WL 3541736, at *1. The defendants were initially released subject to certain conditions which did not include all the conditions required by Adam Walsh Act. Id. Notably absent were the Adam Walsh Act's mandatory conditions of curfew and electronic monitoring. Upon discovering the Adam Walsh Act's mandated conditions, the court, on its own direction, contacted the defendants to see whether they would voluntarily accept the modification of their pretrial bond to include the Adam Walsh Act conditions. Id. The defendants objected, claiming that the additional conditions were unconstitutional. Id.

The district court, in a thoughtful opinion, held that the Adam Walsh Act amendment constituted excessive bail, a violation of procedural due process, and a contravention of the separation of powers doctrine. Though it acknowledged that the conditions were not per se excessive, the court found that the Adam Walsh Act nonetheless violated the Excessive Bail Clause since the imposition of the conditions came without regard to "the personal characteristics of each defendant and circumstances of the offense." Id. at *2. The court also found the Act violated procedural due process because of its elimination of an independent judicial determination as to the mandated release conditions. Id. at *10. Finally, the court concluded that the Adam Walsh Act contravened separation of powers since Congress "unmistakenly and unduly encroach[ed] upon the judicial function" in setting bail conditions. Id. at

For the reasons stated below, this Court does not find Crowell dispositive to the case at bar.

II. DISCUSSION

A. Excessive Bail

Ms. Gardner alleges that the Adam Walsh Act violates the Excessive Bail Clause of the Eighth Amendment since the Act "imposes conditions without regard for the personal characteristics of each defendant." Def's Opp. at 6. The Court first notes that this case is not the prototypical challenge to bail under the Excessive Bail Clause. Traditional challenges to bail typically involve whether the amount of bail was set too high, resulting in detention, or the failure of a court to admit a defendant to bail. See, e.g., United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (determining whether pretrial detention of defendants was warranted); Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951) (determining whether setting of bail amount was excessive in relation to crime charged); Galen, 477 F.3d at 652 (determining whether enhancement of bail to $1 million from default amount of $50,000 violated defendant's civil rights); United States v. Motamedi, 767 F.2d 1403 (9th Cir.1985) (determining burden of proof required to detain defendant for risk of flight). This case deals with the conditions of pretrial release, not the amount of bail. There appears to be no case law directly on point.

The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. Amend. VIII. Although the explicit text of the Eighth Amendment appears to address the amount of bail fixed, no court has so limited the reach of this provision. None have held the clause does not apply to conditions of release. In Salerno, the issue was not the amount of bail, but the detention. If this most extreme condition — detention — is amenable to scrutiny under the Excessive Bail Clause of the Eighth Amendment, it would seem that conditions of release, particularly those that approach confinement in function (e.g., home detention enforced by electronic monitoring), should be subject to scrutiny as well. I...