U.S. v. Stephens

• Decision Date: 17 February 2010
• Docket Number: No. 09-3706.,09-3706.
• Citation: 594 F.3d 1033
• Parties: UNITED STATES of America, Appellant, v. David STEPHENS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

594 F.3d 1033

UNITED STATES of America, Appellant, v. David STEPHENS, Appellee.

No. 09-3706.

United States Court of Appeals, Eighth Circuit.

Submitted: February 11, 2010.

Filed: February 17, 2010.

Mark Tremmel, AUSA, argued, of Sioux City, IA, for appellant.

Michael L. Smart, AFPD, argued, of Sioux City, IA, for appellee.

Before RILEY, SMITH, and SHEPHERD, Circuit Judges.

RILEY, Circuit Judge.

After a grand jury returned an indictment alleging David Stephens received and transported child pornography, the government asked the district court to impose a curfew and electronic monitoring as conditions of Stephens' pretrial release. A curfew and electronic monitoring are required under § 216 of the Adam Walsh Child Protection and Safety Act of 2006, Pub.L. 109-248, 120 Stat. 587 (2006) (Adam Walsh Act) (codified at 18 U.S.C. § 3142(c)(1)(B)). The district court declined to impose a curfew and electronic monitoring because, in its view, such mandatory release conditions are facially unconstitutional. The government filed an interlocutory appeal. See 18 U.S.C. §§ 3145(c) and 3731. We reverse and remand for further proceedings.

I. BACKGROUND

On September 17, 2009, a grand jury returned a seven-count indictment against Stephens. Only Counts 1 through 4 are relevant to this interlocutory appeal. Counts 1 and 3 charge Stephens with receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A). Counts 2 and 4 charge Stephens with transporting child pornography, in violation of 18 U.S.C. § 2252A(a)(1). The circumstances and alleged facts giving rise to the indictment are not presented in this appeal.

On October 2, 2009, Stephens appeared before a magistrate judge for his initial appearance and arraignment. After Stephens pled not guilty, the government requested the magistrate judge detain Stephens pending trial. The government did not, however, present the magistrate judge with any evidence in support of its request for detention. In lieu of presenting evidence Stephens was a flight risk or a danger to the community, the government relied on the rebuttable presumption for the detention of accused child pornographers. See 18 U.S.C. § 3142(e)(3)(E).

We assume the magistrate judge applied the rebuttable presumption, but the magistrate judge found Stephens was not a flight risk or a danger to the community. The basis for the magistrate judge's findings is unclear because it does not appear Stephens presented any evidence to rebut the presumption. The magistrate judge released Stephens subject to certain conditions but did not order a curfew or electronic monitoring.¹

On October 14, 2009, the government filed a motion to amend Stephens' conditions of release to include a curfew and electronic monitoring. See 18 U.S.C. § 3145(a)(1) (permitting the government to file a motion to amend a defendant's conditions of release). The government pointed out the Adam Walsh Act required the court to impose a curfew and electronic monitoring as conditions of Stephens' release. See Adam Walsh Act § 216 (codified at 18 U.S.C. § 3142(c)(1)(B)) (mandating, among other things, "a specified curfew" and "electronic monitoring" for persons released pending trial on charges of transporting or receiving child pornography in violation of 18 U.S.C. § 2252A(a)).

Stephens resisted the government's motion to amend, arguing the Adam Walsh Act's mandatory release conditions violate the Fifth Amendment's Due Process Clause and the Eighth Amendment's Excessive Bail Clause. Stephens maintained the mandatory release conditions violated accused child pornographers' rights to procedural due process insofar as they "are not afforded any individualized judicial consideration of the interests otherwise required to be considered under" the Bail Reform Act, i.e., risk of flight and danger to the community. Stephens opined the mandatory release conditions were excessive because they were "more harsh than necessary."

On October 27, 2009, the magistrate judge denied the government's motion to amend for the reasons expressed in Stephens' resistance. On October 30, 2009, the government appealed the magistrate judge's order to the district judge. See 18 U.S.C. § 3145(a)(1) (permitting the government to file "a motion for revocation of [an] order [of release] or amendment of the conditions of release" with "the court having original jurisdiction over the offense"); N.D. Iowa Local Cr. R. 5(a).

On November 17, 2009, the district judge affirmed the magistrate judge's decision in part. The district judge held the mandatory release conditions of the Adam Walsh Act, specifically, the curfew and electronic monitoring conditions, facially violate the Fifth Amendment's Due Process Clause. The district judge reasoned § 216 of the Adam Walsh Act is "unconstitutional on [its] face because the absence of procedural protections is universal: no defendant is afforded the opportunity to present particularized evidence to rebut the presumed need to restrict his freedom of movement." In other words, the district judge held § 216 is facially unconstitutional because the judge presiding over an accused child pornographer's detention hearing is required to impose a curfew and electronic monitoring without an individualized judicial determination that the accused poses a flight risk or a danger to the community. The district judge declined to rule on Stephens' Eighth Amendment argument.²

On November 18, 2009, the government filed a timely interlocutory appeal of the district court's decision. We retain jurisdiction under 18 U.S.C. §§ 3145(c) and 3731. Consistent with the Bail Reform Act's admonition to resolve appeals of detention orders "promptly," 18 U.S.C. § 3145(c), we expedited briefing and oral argument.

II. DISCUSSION

A. Standard of Review

"`We review a challenge to the constitutionality of a federal statute de novo.'" United States v. Hacker, 565 F.3d 522, 524 (8th Cir.2009) (quoting United States v. Betcher, 534 F.3d 820, 823 (8th Cir.2008)).

B. Analysis

1. Facial vs. As-Applied Challenges

At the outset, it is important to understand what the parties are asking us to do: issue a broad pronouncement on the constitutionality of § 216 of the Adam Walsh Act. The district court concluded § 216 is facially unconstitutional and did not purport to resolve an as-applied challenge. There is no discussion of the particular facts and circumstances surrounding Stephens' case in the district court's order or the parties' briefs on appeal. The issue before us is framed in purely legal form and is devoid of any factual context.

The Supreme Court takes a dim view of facial challenges to Congressional enactments.

Although passing on the validity of a law wholesale may be efficient in the abstract, any gain is often offset by losing the lessons taught by the particular, to which common law method normally looks. Facial adjudication carries too much promise of "premature interpretatio[n] of statutes" on the basis of factually barebones records.

* * *

Facial challenges . . . are . . . to be discouraged. Not only do they invite judgments on fact-poor records, but they entail a further departure from the norms of adjudication in federal courts: overbreadth challenges call for relaxing familiar requirements of standing, to allow a determination that the law would be unconstitutionally applied to different parties and different circumstances from those at hand.

Sabri v. United States, 541 U.S. 600, 608-09, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004).

The Supreme Court's disdain for facial challenges is "an expression of judicial self-restraint apart from the `case-or-controversy' requirement . . . [,] which is the basis of much standing doctrine." United States v. Lemons, 697 F.2d 832, 835 (8th Cir.1983) (citing Eisenstadt v. Baird, 405 U.S. 438, 443-44, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972)). "[F]acial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution." Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008). Facial challenges "are best when infrequent" and "are especially to be discouraged" when application of the challenged statute to the case at hand would be constitutional when the facts are eventually developed. Sabri, 541 U.S. at 608, 609, 124 S.Ct. 1941.

Not surprisingly, then, "[a] facial challenge to a legislative Act is . . . the most difficult challenge to mount successfully." United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). In Salerno, the Supreme Court "dispose[d] briefly" of a facial challenge to the Bail Reform Act under the Fifth Amendment's Due Process Clause. Id. at 751, 107 S.Ct. 2095. In holding the Bail Reform Act did not deprive defendants of substantive due process, the Supreme Court held a party mounting a facial challenge "must establish that no set of circumstances exists under which the Act would be valid. The fact that the Bail Reform Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid." Id. at 745, 107 S.Ct. 2095. Further, "[t]o sustain [the Bail Reform Act's provisions, a court] need only find them `adequate to authorize the pretrial detention of at least some persons charged with crimes,'" whether or not they might be insufficient in some particular circumstances. Id. at 751, 107 S.Ct. 2095 (quoting Schall v. Martin, 467 U.S. 253, 264, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984)). See also Sherbrooke Turf, Inc. v. Minn. Dep't of Transp., 345 F.3d 964, 971 (8th Cir.2003) (applying Salerno to determine facial validity of a legislative act).

2. Stephens' Facial Challenge Fails

Stephens' facial challenge to § 216 fails because Stephens cannot establish there are no child pornography defendants for whom a curfew or electronic monitoring is appropriate. See Salerno,...