U.S. v. Torres

• Decision Date: 18 July 2008
• Docket Number: No. EP-08-CR-01697-KC.,EP-08-CR-01697-KC.
• Citation: 566 F.Supp.2d 591
• Parties: UNITED STATES of America, v. Francisco TORRES.
• Court: U.S. District Court — Western District of Texas

Page 591

566 F.Supp.2d 591

UNITED STATES of America, v. Francisco TORRES.

No. EP-08-CR-01697-KC.

United States District Court, W.D. Texas, El Paso Division.

July 18, 2008.

Erik Anthony Hanshew, Federal Public Defender, El Paso, TX, for Francisco Torres.

J. Brandy Gardes, Assistant U.S. Attorney, El Paso, TX, for United States of America.

ORDER

KATHLEEN CARDONE, District Judge.

On this day, the Court considered' the Government's "Appeal of Magistrate Judge McDonald's Decision and Order and Request for Stay" ("Gov't Appeal"). For the reasons set forth herein, the Magistrate Judge's Decision is AFFIRMED.

I. BACKGROUND

On June 3, 1999, Defendant Francisco Torres ("Torres") was convicted of one count of Sodomy with a Child in violation of Article 120 of the Uniform Code of Military Justice and one count of Committing Indent Acts upon a Child in violation of Article 134 of the Uniform Code of Military Justice. Gov't Appeal 2. On December 25, 2004, Torres was released from the custody of the Federal Bureau of Prisons, and, on December 30, 2004, Torres completed his initial registration with the El Paso Police Department by signing a CR-32 Pre-release Notification Form for the Texas Sex Offender Registration Program. Id. at 3. At this initial registration, Torres acknowledged that he was required to update his registration every ninety days. Id. Torres signed a second CR-32 form, in which he indicated that he understood that "not later than the seventh day after the date of a change, I shall report to my primary registration authority any change in the following: my name ..., my physical health ..., job status (includes beginning and leaving employment and changing work locations)...." Id.

There is no dispute that from March 31, 2005, through March 20, 2008, Torres regularly and timely filed his quarterly update reports with the El Paso Police Department. Id.; Oral Argument Before the Hon. Michael McDonald Hr'g Tr. ("Oral Argument") 8:4-6, May 21, 2008. However, the Government alleges that Torres failed to disclose on his registration form that he was employed at the post exchange on Fort Bliss in 2008 and at Wal-Mart in 2006-2007. Oral Argument 8:9-19. At the time, the authorities were aware of the alleged lapse of the reporting of the Wal-Mart employment though they decided not to pursue the matter. Prelim. Hr. Tr. 15:11-22, May 13, 2008. In addition, the Government alleges that, although Torres properly reported his current employment as American Eagle Brick Company to the Texas authorities, he failed to indicate that the employer is located in New Mexico and to disclose this information to the New Mexico authorities. Oral Argument 8:23-9:1. The entrance to American Eagle Brick Company is in El Paso, Texas, however, the company itself is located in New Mexico. Gov't Appeal 3.

On May 7, 2008, the Government filed a Complaint against Torres, alleging that he knowingly failed to register or update registration in violation of the Sex Offender Registration and Notification Act ("SONA"), 18 U.S.C. 2250(a). Def.'s Resp. 5. Later that day, Torres was arrested pursuant to a warrant without incident. Gov't Appeal 2.

On May 8, 2008, Torres appeared before a Magistrate Judge for his initial appearance. Def.'s Resp. 5-6. On May 12, 2008, the Court issued a Release Order which required an appearance and compliance bond in the amount of $10,000 secured by Torres's assets and signature. Id. at 6. Among other requirements, the Release Order mandated:

Immediately after Defendant's release, Pretrial Services shall place Defendant on electronic monitoring and Defendant shall comply with all conditions of electronic monitoring including, but not limited to, the following:

(a) Defendant shall wear an electronic monitoring device and shall follow all electronic monitoring procedures established by the Pretrial Services Office;

(b) ... Defendant shall not leave his residence earlier than 5:00 a.m. each day and shall return to his residence each day no later than midnight....

Release Order, May 12, 2008, at 2 (Doc. No. 7)..

On May 13, 2008, Torres appeared for his Preliminary Hearing at which the Court found probable cause. Def.'s Resp. 6. On May 14, 2008, Torres filed his "Opposition to Imposition of Mandatory Conditions of Pretrial Release Pursuant to the Adam Walsh Act's Amendments to the Bail Reform Act of 1984 ("Adam Walsh Amendments") and Motion to Amend the Conditions of Pretrial Release" and the Government filed its Response on May 21, 2008. Id. On May 21, 2008, the Magistrate Judge heard oral arguments regarding the Motion to Amend. Id. On May 22, 2008, the Magistrate Judge issued a written Order granting Torres's Motion. Id. at 7. In that Order, the Magistrate Judge held that the Adam Walsh Amendments violated the Due Process Clause of the Fifth Amendment, the Excessive Bail Clause of the Eighth Amendment, and separation of powers. Id.

On May 27, 2008, the Government filed its Notice of Appeal and Torres filed his brief in response on June 5, 2008. Id. On June 12, 2008, this Court denied the Government's Motion for a stay of the Magistrate's decision pending appeal.

II. DISCUSSION

A. Standard

When prompted to review a magistrate judge's pretrial detention order, the district court acts de novo, making an independent determination for detention or the appropriate conditions for pretrial release. United States v. Rueben, 974 F.2d 580, 586-87 (5th Cir.1992) (citing United States v. Fortna, 769 F.2d 243, 249 (5th Cir.1985)).

B. Conditions of Release under the Adam Walsh Amendments

The Government urges in its Appeal that the Court should reverse the Magistrate Judge's holding and impose the relevant conditions of pretrial release set forth in the Adam Walsh Amendments. Gov't Appeal 1. The Government argues that the Adam Walsh Amendments mandate the conditions of pretrial release at issue in this case, particularly a curfew with electronic monitoring, and that the statute survives constitutional scrutiny, contrary to the holding of the Magistrate Judge. Id. at 7-8, 15, 26.

According to 18 U.S.C. 3142(c):

1) If the judicial officer determines that the release described in subsection (b) of this section [i.e. personal recognizance or an unsecured appearance bond] 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 pursuant to section 3 of the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. 14135a); and

(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 other agency;

(vii) comply with a specified curfew;

(viii) refrain from possessing a firearm, destructive device, or other dangerous weapon

In any case that involves a minor victim under section 1201, 1591, 2241, 2242, 22U(a)(1), 2245, 2251, 2251A, 2252(a)(1), 2252(a)(2), 2252(a)(3), 2252A(a)(1), 2252A(a)(2), 2252A(a)(3), 2252A(a)(4), 2260, 2421, 2422, 2423, or 2425 of this title, or a failure to register offense under section 2250 of this title, 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) (emphasis added).

The plain language of the Adam Walsh Amendments, specifically the unenumerated paragraph at the end of 18 U.S.C. § 3142(c)(1)(B), immediately above, establishes that Congress has attempted to mandate the court's imposition of certain pretrial release conditions for those arrestees allegedly involved in certain crimes, specifically 18 U.S.C. §§ 1201, 1591, 2241, 2242, 2244(a)(1), 2245, 2251, 2251A, 2252(a)(1), 2252(a)(2), 2252(a)(3), 2252A(a)(1), 2252A(a)(2), 2252A(a)(3), 2252A(a)(4), 2260, 2421, 2422, 2423, or 2425, or a failure to register offense under 18 U.S.C. § 2250. Where a court decides to release a defendant charged with these offenses targeted by the Amendments, upon any condition beyond release on personal recognizance or release on an unsecured appearance bond, the Adam Walsh Amendments mandate that the court also impose the additional conditions prescribed by the Amendments. See United States v. Crowell, Nos. 06-M-1095, 06-CR-291E(F), 06-CR-304S(F), 2006 WL 3541736, at *4 (W.D.N.Y. Dec. 7, 2006) (engaging in a thorough statutory interpretation analysis of the Amendments).

Torres maintains that the Adam Walsh Amendments, specifically the undesignated paragraph at the end of § 3142(c)(1)(B) mandating five conditions of release, is unconstitutional, violating the Excessive Bail Clause of the Eighth Amendment, procedural due process under the Fifth Amendment, and separation of powers, in all cases, and as applied to him. Def.'s Resp. 7 & n. 1.

Outside of the First Amendment context, a plaintiff may only succeed in a facial challenge to the constitutionality of a statute by "establishing that no set of circumstances exists under which the Act would be valid."¹ Washington State Grange v. Washington State Republican Party, ___ U.S. ___, 128 S.Ct. 1184, 1190 & n. 6, 170 L.Ed.2d 151 (2008) (citing United States...