U.S. v. Stephens

• Decision Date: 17 November 2009
• Docket Number: No. CR09-3037-MWB.,CR09-3037-MWB.
• Citation: 669 F.Supp.2d 960
• Parties: UNITED STATES of America, Plaintiff, v. David STEPHENS, Defendant.
• Court: U.S. District Court — Northern District of Iowa

669 F.Supp.2d 960

UNITED STATES of America, Plaintiff, v. David STEPHENS, Defendant.

No. CR09-3037-MWB.

United States District Court, N.D. Iowa, Central Division.

November 17, 2009.

COPYRIGHT MATERIAL OMITTED

Mark A. Tremmel, U.S. Attorney's Office, Sioux City, IA, for Plaintiff.

Michael L. Smart, Federal Public Defender's Office, Sioux City, IA, for Defendant.

ORDER CONCERNING PROSECUTION'S APPEAL OF MAGITRATE'S ORDER DENYING PROSECUTION'S REQUEST TO AMEND DEFENDANT'S CONDITIONS OF RELEASE

MARK W. BENNETT, District Judge.

TABLE OF CONTENTS

                I. INTRODUCTION AND BACKGROUND ..................................... 962
                II. ANALYSIS ........................................................ 964
                    A. Standard of Review ........................................... 964
                    B. Adam Walsh Act Amendments .................................... 964
                    C. Procedural Due Process ....................................... 965
                    D. Application of the Mathews Balancing Test .................... 966
                III. CONCLUSION ..................................................... 969
                

I. INTRODUCTION AND BACKGROUND

This case is before the court on the prosecution's appeal of Chief United States Magistrate Judge Paul A. Zoss's order denying the prosecution's motion to amend defendant David Stephens's conditions of release (docket no. 15). In its appeal of Judge Zoss's order, the prosecution requests that this court amend defendant Stephens's conditions of release to include electronic monitoring and curfew restrictions.

On September 17, 2009, an Indictment was returned against defendant Dale Stephens, charging him with receipt of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1), transporting and attempting to transport child pornography in interstate commerce, in violation of 18 U.S.C. §§ 2252A(a)(1) and 2252A(b)(1), possession and attempted possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2), and making a false statement to the Federal Bureau of Investigation. On October 2, 2009, Judge Zoss conducted a detention hearing for defendant Stephens pursuant to the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq. The prosecution presented no evidence at the detention hearing, relying instead on the rebuttable presumption that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community" for persons accused of receipt of child pornography. 18 U.S.C. § 3142(e)(3)(E). Judge Zoss found that the prosecution had failed to show by a preponderance of the evidence that defendant Stephens represents a flight risk, or by clear and convincing evidence that defendant Stephens represents a danger to the community under any terms or conditions of release. Therefore, Judge Zoss ordered defendant Stephens to be released pending trial subject to certain conditions of release. Judge Zoss's conditions of release did not include a curfew or electronic monitoring.

On October 14, 2009, the prosecution moved to amend defendant Stephens's conditions of release to include a curfew and electronic monitoring, as required by the Adam Walsh Child Protection and Safety Act of 2006, 18 U.S.C. § 3142(c) ("the Adam Walsh Act"). The prosecution argued that a curfew and electronic monitoring are required under the Adam Walsh Act's amendments to the Bail Reform Act of 1984 in this case because defendant Stephens is charged with violations of 18 U.S.C. § 2252A(a)(1) and 2252A(a)(2). In response, defendant Stephens argued that mandatory imposition of these two conditions of pretrial release under the Adam Walsh Act violates his right to procedural due process in violation of the Fifth Amendment and the Excessive Bail Clause of the Eighth Amendment. Judge Zoss denied the prosecution's motion to amend defendant Stephens's conditions of release, concurring in the reasoning and conclusions of a number of United States district courts, including one Judge in the Northern District of Iowa, finding the Adam Walsh Act's mandatory conditions of release to be unconstitutional on either or both of the grounds raised by defendant Stephens. See United States v. Solomon, CR09-4024-DEO, docket no. 33, at *8-9 (N.D.Iowa Aug. 27, 2009) (O'Brien, Senior J., concluding that automatic imposition of electronic monitoring and curfew restrictions under the Adam Walsh Act violates the Due Process Clause of the Fifth Amendment but does not violate the Eighth Amendment's prohibition against excessive bail); United States v. Merritt, 612 F.Supp.2d 1074, 1080 (D.Neb.2009) (holding that imposition of a curfew and electronic monitoring as conditions of release solely on the basis of the Adam Walsh Act violated the defendant's right to procedural due process); United States v. Rueb, 612 F.Supp.2d 1068, 1074 (D.Neb. 2009) (same); United States v. Smedley, 611 F.Supp.2d 971, 977 (E.D.Mo.2009) (holding that the Adam Walsh Act's amendments violate procedural due process on their face); United States v. Arzberger, 592 F.Supp.2d 590, 601 (S.D.N.Y. 2008) (holding that the Adam Walsh Act's amendments violate the Due Process Clause of the Fifth Amendment on their face); United States v. Torres, 566 F.Supp.2d 591, 599, 602 (W.D.Tex.2008) (concluding that the Adam Walsh Act's amendments violated the Due Process Clause on their face and also violated the Excessive Bail Clause as applied to the defendant); United States v. Vujnovich, No. 07-20126-01-CM-DJW, 2008 WL 687203, at *2 (D.Kan. Mar. 11, 2008) (holding that the mandatory imposition of electronic monitoring on defendant violated his right to procedural due process); United States v. Crowell, No. 06-M-1095, 2006 WL 3541736, at *7, *10 (W.D.N.Y. Dec. 7, 2006) (holding the Adam Walsh Act Amendments violate the Eighth Amendment's prohibition against excessive bail and the Fifth Amendment's guarantee of procedural due process).¹ But see United States v. Kennedy, 327 Fed.Appx. 706, 708 (9th Cir.2009) (finding "no constitutional infirmity in the Walsh Act" as applied to defendant where the act was construed "to require the district court to exercise its discretion, to the extent applicable, in applying the mandatory release conditions."); United States v. Cossey, 637 F.Supp.2d 881, 892 (D.Mont.2009) (same, applying Kennedy, 327 Fed.Appx. at 708); United States v. Gardner, 523 F.Supp.2d 1025, 1028 (N.D.Cal.2007) (holding that the act does not violate procedural due process under the Fifth Amendment, the Excessive Bail Clause under the Eighth Amendment, or the separation of powers principle of the Constitution). On October 30, 2009, the prosecution filed its appeal of Judge Zoss's order denying its motion to amend defendant Stephens's conditions of release. Defendant Stephens has not filed a response to the prosecution's appeal.

II. ANALYSIS

A. Standard of Review

Pursuant to 18 U.S.C. § 3145(a)(1), the prosecution may seek review, in the district court, of a magistrate judge's order setting a defendant's conditions of release. The court conducts a de novo review of the magistrate judge's order. See United States v. Maull, 773 F.2d 1479, 1481-82 (8th Cir.1985) (en banc) (holding that under the Bail Reform Act of 1984, a district court conducts de novo review of magistrate determination in bail matters) accord United States v. Cisneros, 328 F.3d 610, 616 n. 1 (10th Cir.2003); United States v. Rueben, 974 F.2d 580, 585-86 (5th Cir.1992), cert. denied, 507 U.S. 940, 113 S.Ct. 1336, 122 L.Ed.2d 720 (1993); United States v. Torres, 929 F.2d 291, 292 (7th Cir.1991); United States v. Tortora, 922 F.2d 880, 883 n. 4 (1st Cir. 1990); United States v. Koenig, 912 F.2d 1190, 1192 (9th Cir.1990); United States v. Portes, 786 F.2d 758, 761 (7th Cir.1985); United States v. Leon, 766 F.2d 77, 80 (2d Cir.1985); United States v. Williams, 753 F.2d 329, 333 (4th Cir.1985). The court must make its own de novo determination of the facts with no deference to the magistrate judge's findings. Koenig, 912 F.2d at 1192; United States v. Gaviria, 828 F.2d 667, 670 (11th Cir.1987); United States v. Ruiz-Corral, 338 F.Supp.2d 1195, 1196 (D.Colo.2004); United States v. Eischeid, 315 F.Supp.2d 1033, 1035 (D.Ariz. 2003); United States v. Lutz, 207 F.Supp.2d 1247, 1251 (D.Kan.2002); United States v. Cruickshank, 150 F.Supp.2d 1112, 1113 (D.Colo.2001); United States v. Walters, 89 F.Supp.2d 1217, 1219-20 (D.Kan.2000); United States v. Lee, 79 F.Supp.2d 1280, 1284 (D.N.M.1999), aff'd, 208 F.3d 228 (10th Cir.2000) (table decision). The district court may incorporate the record of the detention hearing conducted by the magistrate judge. United States v. Chagra, 850 F.Supp. 354, 357 (W.D.Pa.1994). The district court, unlike a court of appeals, is equipped to explore and redetermine factual issues if that proves necessary. Koenig, 912 F.2d at 1192. Thus, the district court may conduct evidentiary hearings if "necessary or desirable," and the hearings are not limited to situations where new evidence is being offered. Koenig, 912 F.2d at 1193. These matters are left to the district court's sound discretion. Id.

B. Adam Walsh Act Amendments

Only July 27, 2006, Congress enacted the Adam Walsh Act. Section 216 of Title II of the Adam Walsh Act amended the Bail Reform Act in several ways. As amended by the Adam Walsh Act, 18 U.S.C. § 3142(c) provides in pertinent 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—

(A) subject to the condition that the person not commit a Federal, State, or local crime during the period of release and subject to the condition that the person cooperate in the collection of a DNA sample from the person if the collection of such a sample is authorized...