U.S. v. Kahn

• Decision Date: 18 December 2007
• Docket Number: No. MJ-07-536-JPD.,MJ-07-536-JPD.
• Citation: 524 F.Supp.2d 1278
• Parties: UNITED STATES of America, Plaintiff, v. Mark B. KAHN, Defendant.
• Court: U.S. District Court — Western District of Washington

524 F.Supp.2d 1278

UNITED STATES of America, Plaintiff, v. Mark B. KAHN, Defendant.

No. MJ-07-536-JPD.

United States District Court, W.D. Washington, at Seattle.

December 18, 2007.

John Winn Wolfe, Wolfe Leinbach, Seattle, WA, for Defendant.

Catherine L. Crisham, U.S. Attorney's Office, Seattle, WA, for Plaintiff.

ORDER REGARDING PRETRIAL DETENTION OR CONDITIONS OF RELEASE

JAMES P. DONOHUE, United States Magistrate Judge.

I. INTRODUCTION AND SUMMARY CONCLUSION

The present matter comes before the Court on plaintiff United States of America's Motion for Detention. Dkt. No. 5; see also Dkt. Nos. 7, 8 (supplemental briefing).¹ The government argues that the mandatory electronic monitoring condition set forth in the Bail Reform Act of 1984, as amended by the Adam Walsh Child Protection Safety Act of 2006, applies in this case. Defendant disagrees, and argues that the mandatory pretrial release conditions of the Adam Walsh Act do not apply and, alternatively, are unconstitutional because the Act violates the Due Process Clause of the Fifth Amendment, the Excessive Bail Clause of the Eighth Amendment, and the separation of powers doctrine. After careful consideration of the briefs, the governing law, and the balance of the record, the Court finds that the mandatory conditions do not apply. Accordingly, there is no reason to address the constitutional challenges raised.

II. FACTS AND PROCEDURAL BACKGROUND

On November 16, 2007, defendant was indicted and charged with a single count of traveling in foreign commerce with the intent to engage in illicit sexual conduct in violation of 18 U.S.C. § 2423(b). According to the complaint, on October 26, 2007, defendant was arrested in Seattle, Washington, after traveling from Vancouver, Canada, to Seattle to have sex (for money) with "Jackie," a thirty-eight year-old female, and "Jenny," her thirteen year-old daughter. This arrangement was the end-product of an August 2007 "Erotic Services" advertisement posted by "Jackie" on a well-known internet site. After responding to the advertisement, defendant engaged in several online chats with "Jackie," during which the parties discussed compensation and defendant explained in graphic detail the sexual acts he wished to perform with "Jackie" and her thirteen year-old daughter. Importantly, "Jackie" was not a thirty-eight year-old female, but was in fact a detective with the Seattle Police Department acting in an undercover capacity. "Jenny," as it turns out, was a fictitious person.

According to a proffer made by his counsel to this Court, defendant was arrested in October and shortly thereafter made an appearance in King County Superior Court. He was released on conditions, including that he have no contact with minors. On November 16, 2007, the conduct which was the subject of the state charges led to the filing of the present criminal complaint in this court, alleging a violation of 18 U.S.C. § 2423(b). In December, the defendant was arrested as he re-entered this country to meet with his attorney on the state charges. An initial appearance was held on December 12, 2007, and defendant's initial detention hearing took place the following day. See Dkt. Nos. 3-4. During that hearing, the Court heard arguments on defendant's re quest for pretrial release. Pretrial Services recommended detention, based on the requirements of the Adam Walsh Act that a defendant charged be placed on electronic monitoring, coupled with Pretrial Service's inability to coordinate global positioning satellite ("GPS") electronic monitoring of the defendant in Canada. The government indicated that, but for this inability, the parties could likely agree on terms of supervised release pending trial. At the close of the hearing, the Court reserved its ruling and requested further briefing on the constitutional and statutory interpretation issues raised by the parties. The government's motion for detention, the parties' briefs, and the complete record in this case are now before the Court.

The government takes the position that this Court lacks the authority to order defendant released on any condition or combination of conditions because: (1) the Walsh Act applies to this case; (2) the Walsh Act modified the Bail Reform Act to require certain mandatory pretrial release conditions, including electronic monitoring;. (3) Pretrial Services is unable to conduct electronic monitoring of individuals such as defendant, who reside in Canada; and (4) while the government would consider agreeing to defendant's pretrial release — subject to appropriate conditions — if he remains in this district, the United States Citizenship and Immigration Services ("USCIS") will not agree to a probationary visa, thus no such arrangement is feasible. As such, an allegedly mandatory condition of pretrial release in this case — electronic monitoring — has the practical effect of barring pretrial release on any conditions. It is for these reasons that the government contends the Walsh Act mandates detention, and the defendant contends the Act is unconstitutional.

III. GOVERNING LAW

On July 27, 2006, Congress enacted the Adam Walsh Child Protection and Safety Act of 2006 ("Walsh Act"), Pub.L. No. 109-248, tit. II, 109 Stat. 587, which amended the Bail Reform Act of 1984 ("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. Specifically, 18 U.S.C. § 3142 was amended to require electronic monitoring as a condition of pretrial release for persons charged with certain forms of crimes, including certain violations of 18 U.S.C. § 2423(b), under which defendant now stands charged. Dkt. No. 1; 18 U.S.C. § 3142(c)(1)(B) ("Walsh Act Amendments"). These heightened pretrial release conditions are designed to "protect children from sexual attacks and other violent crimes." Pub.L. No. 109-248, tit. II, 109 Stat. at 611. The applicable portion of Bail Reform Act now reads, in relevant part:

(c) Release on conditions. — (1) If the judicial officer determines that the release described in subsection (b) of this section will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community, such judicial officer shall order the pretrial release of the person —

. . . . .

(B) subject to the least restrictive further condition, or combination of conditions, that such judicial officer determines will reasonably assure the appearance of the person as required and the safety of any other person and the community, which may include the condition that the person —

[be subjected to any condition or combination of conditions listed in subsections (I) through (xiv)]

. . . . .

In any case that involves a minor victim under section ... 2423 ... of this title,² ... any release order shall contain, at a minimum, a condition of electronic monitoring and each of the conditions specified at subparagraphs (iv), (v), (vi), (vii), and (viii).

18 U.S.C. § 3142(c)(1)(B) (emphasis added).

IV. ISSUES PRESENTED

The questions presented to the Court are whether the Walsh Act Amendments apply to this case and, if so, whether the mandatory pretrial release conditions imposed by the Walsh Act Amendments violate the Due Process Clause of the Fifth Amendment, the Excessive Bail Clause of the Eighth Amendment, and/or the separation of powers doctrine.

V. DISCUSSION

A. The Walsh Act Amendments Concerning Mandatory Pretrial Release Conditions, Including Electronic Monitoring, Do Not Apply to this Case Because there Is No "Minor Victim"

The specific question presented by this issue is whether the mandatory pretrial release conditions of the Walsh Act Amendments apply to the offense of interstate travel with the intent to engage in illicit sexual conduct with another person when that person, though thought to be a minor, is actually an adult posing as a fictitious minor. This appears to be an issue of first impression not only in this circuit, but nationwide.³

Defendant argues that 18 U.S.C. § 3142(c)(1)(B) of the Bail Reform Act, by its very terms, does not apply in this case. Specifically, defendant contends that because § 3142(c)(1)(B) mandates the imposition of certain pretrial release conditions only in cases "involv[ing] a minor victim," that provision is inapplicable to the present case, where the alleged "victim" is an adult undercover police detective posing as an adult prostitute with feigned access to a fictitious thirteen year-old prostitute daughter. Accordingly, defendant insists that because this case does not "involve [] a minor victim" under § 3142(c)(1)(B), the pretrial release conditions mandated by the Walsh Act Amendments, including electronic monitoring, do not apply.

The government, on the other hand, urges a broader reading of § 3142(c)(1)(B). It argues that Congress intentionally employed the term "minor victim" in § 3142(c)(1)(B) without distinguishing between cases involving actual and intended victims in order to mirror the language of § 2423(b), which treats such victims identically. According to the government, because no actual minor victim is necessary to convict under § 2423(b), no such victim is necessary to trigger the mandatory pretrial release conditions of the Walsh Act Amendments. The government insists that this interpretation corresponds with the overall purpose of the Walsh Act, and is most consistent with the Bail Reform Act's mission of reasonably assuring "the appearance of the [defendant] and the safety of any other person and the community." 18 U.S.C. § 3142(c)(1)(B).

As a general matter, the meaning of a statute is found in the actual language used therein. This is precisely how a legislature gives expression to its wishes. When the language of a given statute is plain, "the sole function of the courts is to enforce it according to its terms." United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109...