U.S. v. Kennedy
| Decision Date | 25 November 2008 |
| Docket Number | Case No. CR08-354-RAJ-JPD. |
| Citation | 593 F.Supp.2d 1221 |
| Parties | UNITED STATES of America, Plaintiff, v. Joshua Osmun KENNEDY, Defendant. |
| Court | U.S. District Court — Western District of Washington |
Catherine L. Crisham, U.S. Attorney's Office, Seattle, WA, for Plaintiff.
ORDER DENYING GOVERNMENT'S MOTION FOR MODIFICATION OF CONDITIONS OF PRETRIAL RLEASE
The present matter comes before the Court on the Motion of the United States for Modification of Conditions of Pretrial Release. Dkt. No. 15. The government is seeking to have the Court modify the conditions of Defendant's release to include the additional conditions mandated by the Adam Walsh Act; specifically: (1) electronic monitoring; (2) that Defendant abide by specified restrictions on place of abode; and (3) that Defendant comply with a specified curfew. Id. Defendant opposes the government's motion, and argues that the Adam Walsh Act's mandatory conditions violate the Excessive Bail Clause of the Eighth Amendment, the Due Process Clause of the Fifth Amendment, and the separation of powers doctrine. Dkt. Nos. 12, 16. The government has filed a response to Defendant's opposition, Dkt. No. 17, to which Defendant has filed a reply, Dkt. No. 18. A hearing on the bond modification request was held on November 21, 2008. Dkt. No. 19. After careful consideration of the briefs, oral argument of counsel, the governing law, and the balance of the record, the Court finds that the mandatory conditions of the Adam Walsh Act, as applied to Defendant, violate the Excessive Bail Clause of the Eighth Amendment, the Due Process Clause of the Fifth Amendment, and the separation of powers doctrine. In addition, there are no changed circumstances that warrant imposition of additional terms of supervision. Accordingly, the government's Motion for Modification of Conditions of Pretrial Release (Dkt. No. 15) is DENIED.
On November 9, 2007, upon his re-entry into the United States from travel abroad, Defendant's laptop was examined at Sea-Tac Airport by Customs and Border Patrol Officer Murphy. Officer Murphy detained the laptop after viewing what appeared to be child pornography, and contacted Immigration and Customs Enforcement ("ICE"). ICE notified Defendant that his laptop was suspected of containing child pornography, and that the government would need to conduct a forensic examination of his laptop. Defendant's laptop was retained and he was released.
Defendant was aware that a government investigation regarding his laptop and its contents was pending against him over the course of the next 11 months. During that time, his counsel maintained contact with the United States Attorney's Office.
On October 23, 2008, Defendant was indicted by a federal grand jury on one count of possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2), and 2256. Dkt. No. 1. On October 28, 2008, Defendant surrendered voluntarily to ICE agents and was arraigned the same day before this Court. The Pretrial Services Report, dated October 28, 2008, recommended that Defendant be released on a personal recognizance bond, with Pretrial Services supervision and particular release conditions, none of which included the mandatory conditions of the Adam Walsh Act. The government did not seek Defendant's detention, nor did it request that Defendant's release conditions include electronic monitoring, restrictions on his place of abode, a curfew, or restrictions on his ability to possess firearms. This Court issued an appearance bond that same day which included various release conditions, including: submitting to drug and alcohol testing; undergoing a mental health evaluation; no possession of sexually explicit material; no access to a computer or the internet without permission of Pretrial Services; no frequenting of places primarily used by persons under the age of 18 without approval of Pretrial Services; no employment or volunteer activity that causes him to regularly contact persons under the age of 18; and no contact with any person under the age of 18 without permission of Pretrial Services. Dkt. No. 6. The appearance bond did not include an electronic monitoring condition, imposition of a curfew, or restrictions on possession of firearms.
Just over one week later, on November 5, 2008, Defendant was charged in a Superseding Indictment which added one count of transportation of child pornography, in violation of 18 U.S.C. §§ 2252(a)(1), (b)(1) and 2256. Dkt. No. 7. The additional charge was based on the allegation that the child pornography was on Defendant's laptop when he arrived from Mexico at the time of its seizure, approximately one year earlier. Dkt. No. 7. At the bond modification hearing, the government acknowledged that this new charge was not based on any new evidence, or any post-seizure transmission of the alleged child pornography.
The additional charge implicates the mandatory conditions of the Adam Walsh Act. Consequently, on November 14, 2008, the government, after notifying defense counsel of its intentions, filed the instant motion to modify the conditions of Defendant's release to include the additional conditions mandated by the Adam Walsh Act; specifically: (1) electronic monitoring; (2) that Defendant abide by specified restrictions on place of abode; and (3) that Defendant comply with a specified curfew. Dkt. No. 15. In connection with the motion, on November 20, 2008, Pretrial Services submitted a supplement to its original Pretrial Services Report, which recommended that Defendant's October 28, 2008 appearance bond be amended to include the statutorily mandated provisions of the Adam Walsh Act; namely, that Defendant: be prohibited from possessing or having access to firearms; "abide by specified restrictions on personal associations, place of abode, or travel," which were not specified apart from the original bond restrictions; abide by a curfew; and comply with an electronic monitoring program. At the bond modification hearing, the Pretrial Services officer confirmed that the sole reason for the additional release conditions in the amended Pretrial Services Report was to comply with the provisions of the Adam Walsh Act. At the hearing, the government asked for the firearms restriction that it mistakenly believed was already in the initial appearance bond. The Pretrial Services officer and the government each stated that they did not have any objections to Defendant's current place of abode. Pretrial Services also confirmed that Defendant has been in full compliance with the terms of the bond issued at his initial appearance.
The Defendant is 31 years old and has lived in the Seattle area his entire life, with the exception of 10 months in Vail, Colorado. He has no prior record of criminal activity. Defendant has maintained regular, gainful employment with the local Longshoreman's Union, and he began working with the Union when he was 18 years old.
Defendant is very concerned that the mandatory conditions will interfere with his employment, which requires him, on occasion, to travel to other cities along the West Coast. At the hearing, Defendant indicated that he may be required to travel two to three times per month as part of his employment. The Pretrial Services officer stated that Defendant, who has been under supervision for nearly a month, once requested permission to travel to California for a work-related purpose. At the time, Defendant told the Pretrial Services officer that he could avoid attending the function if necessary. Pretrial Services ultimately denied the request because of the short period of time that Defendant had been under supervision. He has not made subsequent requests to leave the jurisdiction. The Pretrial Services officer also confirmed at the hearing that Defendant would not be able to board an airplane with an electronic monitoring device.
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, inter alia, electronic monitoring, restrictions on place of abode, a specified curfew and restrictions on possessing firearms, as conditions of pretrial release for persons charged with certain crimes, including 18 U.S.C. § 2252(a)(1), under which Defendant now stands charged. See Dkt. No. 7; 18 U.S.C. § 3142(c)(1)(B). 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—
...
(iv) abide by specified restrictions on personal associations, place of abode, or travel;
(v) avoid all contact with an alleged victim of the crime and with a potential witness who may testify concerning the offense;
(vi) report on a regular basis to a designated law enforcement agency, pretrial services agency, or...
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