United States v. Karper

• Decision Date: 10 August 2011
• Docket Number: No. 1:11–CR–103 (TJM/RFT).,1:11–CR–103 (TJM/RFT).
• Citation: 847 F.Supp.2d 350
• Parties: UNITED STATES of America, v. David R. KARPER, Jr., Defendant.
• Court: U.S. District Court — Northern District of New York

847 F.Supp.2d 350

UNITED STATES of America,

v.David R. KARPER, Jr., Defendant.

No. 1:11–CR–103 (TJM/RFT).

United States District Court, N.D. New York.

Aug. 10, 2011.

Held Unconstitutional

18 U.S.C.A. § 3142(c)(1)

Gwendolyn E. Carroll, Office of the United States Attorney, Syracuse, NY, Thomas A. Capezza, Tina E. Sciocchetti, Office of United States Attorney, Albany, NY, for United States of America.

Timothy E. Austin, Office of the Federal Public Defender, Albany, NY, for Defendant.

MEMORANDUM–DECISION and ORDER

RANDOLPH F. TREECE, United States Magistrate Judge.

On March 2, 2011, the Grand Jury returned a two count Indictment against David Karper charging him with violating 18 U.S.C. §§ 2252A(a)(2) and 2256(8)(A), receipt of child pornography, and §§ 2252A(a)(5)(B) and 2256(8)(A), possession of child pornography. Dkt. No. 1, Indictment. On March 17, 2011, without the benefit of an arrest warrant, Karper appeared for his arraignment. Based upon the recommendation of Pretrial Services and the Government, Karper was released on Conditions of Release. Min. Entry, dated Mar. 17, 2011; Dkt. No. 2, Order, dated Mar. 17, 2011. In recommending that Karper be released on his own recognizance with conditions, the Government moved and insisted that those Conditions include those required by the Adam Walsh Act Amendments to the Bail Reform Act. See18 U.S.C. § 3142, et seq. Most of the Conditions of Release to be imposed were agreeable to Karper, however, he registered a vigorous protest against the imposition of (1) home detention and (2) electronic monitoring.¹

Notwithstanding Karper's opposition to these two Conditions at his arraignment, this Court imposed them nonetheless, however, we further granted Karper permission to file a motion challenging the imposition thereof. Dkt. No. 2, Order, dated Mar. 17, 2011. On March 31, 2011, Karper filed a Motion to Strike the Conditions of Pretrial Release on the grounds that the mandated provisions of the Adam Walsh Act Amendments violate his right (1) to procedural due process under the Fifth Amendment to the United States Constitution, and (2) to the Eight Amendment's prohibition against excessive bail. Dkt. No. 7, Def.'s Mot. to Strike. Succinctly, Karper argues that the Bail Reform Act, via the Adam Walsh Act Amendments, mandatory impositions of the most restrictive types of release conditions in each and every case, with no opportunity to be heard thereupon and without judicial discretion to either consider or reject those conditions, violate the Constitution. On April 27, 2011, the Government filed a Memorandum of Law opposing Karper's Motion. Dkt. No. 9. Immediately thereafter, Karper filed a Memorandum of Law replying to the Government's Opposition. Dkt. No. 10.

I. BACKGROUND

Pursuant to an investigation, the New York State Police discovered that someone at Karper's address was receiving child pornography. A search warrant of Karper's residence was executed in November 2010 and his computer was seized. The Government proffered that approximately 179 images were located within Karper's computer, to which he admitted downloading. Dkt. No. 9 at pp. 1–2. Realizing that potential criminal charges were forthcoming, Karper did not attempt to flee and remained within the jurisdiction until his ultimate appearance before this Court at his arraignment on March 17, 2011.

Karper is a 29 year old man who has resided in Schoharie County for most of his life and currently lives with his parents and a sibling. Karper has attended college and has been regularly employed, however, he has been unemployed since June 2010 and was collecting unemployment benefits at the time of his Arraignment. He is a beneficiary of good health and has no history of (1) mental or emotional issues, (2) use of drugs, or (3) abuse of alcohol. Karper does not have a criminal conviction, though he was arrested as a juvenile delinquent for removing a motorcycle from a neighbor's barn. Dkt. No. 7 at pp. 3–4.

At no time during the Arraignment did the Government argue or proffer that Karper posed a risk of flight or a danger to the community. Rather, the Government defaulted to its typical posture when a defendant is accused with the receipt and possession of child pornography by moving for the conditions of release as mandated by the Adam Walsh Act.

II. BAIL REFORM ACT

The Bail Reform Act of 1984 is a rather comprehensive statutory scheme used to determine whether an arrestee will be released or detained during the pendency of the prosecution. 18 U.S.C. § 3141, et seq. This Act was enacted in order to correct the regrettable circumstances of district courts being compelled to set monetary bails, which, too often, were too high for indigent defendants to meet, and thus encumbered with detention prior to trial. Significantly, in enacting the Bail Reform Act, Congress recognized “the traditional presumption favoring pretrial release for the majority of Federal defendants.” United States v. Berrios–Berrios, 791 F.2d 246, 250 (2d Cir.) (internal quotation marks and citation omitted), cert. dismissed,479 U.S. 978, 107 S.Ct. 562, 93 L.Ed.2d 568 (1986); United States v. Morris, 2000 WL 1455244, at *3 (N.D.N.Y. Sept. 21, 2000) (noting that “[b]y its very language, the Bail Reform Act demonstrates its favorable inclination toward pretrial release of federal criminal defendants.”). Therefore, the general expectation of the Bail Reform Act is that a defendant shall be released on his own recognizance or unsecured bond, “unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.” 18 U.S.C. §§ 3142(a)(1) & 3142(b). When a court determines that a release on recognizance will not assure a defendant's appearance or ameliorate any danger, it may release the accused, nonetheless, on the “least restrictive” condition or combination of conditions. Id. at §§ 3142(a)(2) & 3142(c).² However, based upon the revelations heard during a hearing,³ a court may detain a defendant if it finds that there are no conditions or combination of conditions that will “reasonably assure the appearance of the person as required and the safety of any other person and the community.” Id. at § 3142(e).

Risk of flight is not the exclusive basis for detaining an accused. The Bail Reform Act also instituted dangerousness as a basis for detention. United States v. LaFontaine, 210 F.3d 125, 134 (2d Cir.2000); see also United States v. Dono, 275 Fed.Appx. 35, 38 (2d Cir.2008) (unpublished opinion) (“[P]retrial detention was the means chosen by Congress in the Bail Reform Act to protect the community from dangerous defendants.”); United States v. Jimenez, 104 F.3d 354 (2d Cir.1996). When detention is based wholly or in part on a determination of dangerousness, such finding must be supported by clear and convincing evidence. 18 U.S.C. § 3142(f)(2)(B); see also United States v. Ferranti, 66 F.3d 540, 542 (2d Cir.1995); United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir.1991). In cases involving crimes designated as violent, there is a rebuttable presumption that the defendant presents a danger to the community, 18 U.S.C. § 3142(e)(2), yet the burden of persuasion rests always with the Government. If a defendant exercises his opportunity to be heard and submits arguments and facts to overcome the presumption, the presumption is not lost but weighed along with other factors in considering detention. United States v. Mercedes, 254 F.3d 433, 436 (2d Cir.2001) (citing, inter alia, United States v. Rodriguez, 950 F.2d at 88).

In 2006, Congress enacted the Adam Wash Act Amendments which mandate the imposition of specific conditions for release of a person charged with child pornography or offenses against a minor: “In any case that involves a minor victim under ... [18 U.S.C.] § 2252(A)(a)(2) ... any release order shall contain, at a minimum, a condition of electronic monitoring [.]” ⁴18 U.S.C. § 3142(c)(1). In this respect, the Adam Walsh Act is “plain, unambiguous, and mandatory.” United States v. Polouizzi, 697 F.Supp.2d 381, 386 (E.D.N.Y.2010); United States v. Crowell, 2006 WL 3541736, at *4 (W.D.N.Y. Dec. 7, 2006) (citing McNeil v. United States, 508 U.S. 106, 111, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993), for the legal axiom that “the use of the word shall is unequivocal”). In our case, Karper is charged with receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2) and because of that charge and the Amendments mandates, he was subjected to home detention ⁵ and electronic monitoring, without an opportunity to be heard as to whether such Conditions were applicable or even necessary as to him and without the Court exercising its discretion accordingly.

III. CONSTITUTIONAL CHALLENGES

Karper moves this Court to strike the Conditions of home detention and electronic monitoring in that the Adam Walsh Act Amendments are mandatory in every case without an opportunity to be heard as to these release conditions and without the benefit of a court's discretion, which is faithfully provided in all other types of federal charges, and thus violates the United States Constitution. Karper raises both a facial and “as-applied” challenge. There is a legal and analytical distinction between facial and “as-applied” challenges.

“A facial challenge to a statute considers only the text of the statute itself, not its application to the particular circumstances of an individual.... [While] [a]n as-applied challenge, on the other hand, requires an analysis of the facts of a particular case to determine whether the application of a statute, even one constitutional on its face, deprived the individual to whom it was applied of a protected right.” Field Day, LLC v. County of Suffolk, 463 F.3d 167, 174–75 (2d Cir.2006) (citing, inter alia, City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 770 n. 11, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988)...