US v. POLOUIZZI
| Decision Date | 23 March 2010 |
| Docket Number | No. 06-CR-22 (JBW).,06-CR-22 (JBW). |
| Citation | 697 F. Supp.2d 381 |
| Parties | UNITED STATES of America, Plaintiff, v. Peter POLOUIZZI, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Allen Lee Bode, United States Attorneys Office, Central Islip, NY, Andrea Goldbarg, United States Attorneys Office, Brooklyn, NY, for Plaintiff.
I. Introduction...........................................................384
II. Facts..................................................................384
III. Law....................................................................385
A. Mandatory Electronic Monitoring.....................................385
B. Constitutionality...................................................386
1. "Facial" versus "As-Applied" Challenges..........................387
2. Procedural Due Process...........................................387
3. Excessive Bail...................................................388
4. Separation of Powers.............................................390
IV. Application of Law to Facts............................................390
A. Procedural Due Process .............................................390
1. Application of Mathews Balancing Test............................390
a) Private Interest and Risk of Erroneous Deprivation ...........390
b) Governmental Interest.........................................392
2. Application of Medina Fundamental Justice Test...................394
B. Excessive Bail......................................................395
C. Facial and As-Applied Violations....................................395
V. Conclusion..............................................................395
Defendant is awaiting trial, his original conviction on charges of receipt and possession of child pornography having been set aside. See 18 U.S.C. §§ 2252(a)(2); 2252(a)(4)(B); United States v. Polouizzi (Polouizzi V), 687 F.Supp.2d 133, 138-39 (E.D.N.Y.2010) (Am. Mem. & Order Granting New Trial). His bail conditions include electronic monitoring, mandated by Section 216 of Title II of the Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248, 120 Stat. 587 (codified at 18 U.S.C. § 3142(c)(1)(B)). See also Bail Hr'g Tr. 6:21-7:4, Aug. 5, 2008, Docket Entry No. 176; Order Setting Conditions of Release & Bond, Aug. 15, 2008, at 3, Docket Entry No. 173. Contending that the Act is unconstitutional as applied, he moves for cancellation of this condition. Mem. of Law to Modify Bail Conditions 9-12, Docket Entry No. 224.
The motion is granted. As applied in this case, the statutorily mandated bail condition requiring the wearing of an electronic tracking device is unconstitutionally excessive and was imposed in violation of defendant's constitutional right to due process. Wearing of the electronic bracelet shall no longer be required by the defendant while he awaits trial. If there is a change in circumstances, the government may apply for reimposition.
Defendant's crime of conviction was receiving and watching child pornography on his computer screen behind locked doors. So far as is known, he has never molested any person, sexually or otherwise. Polouizzi I, 549 F.Supp.2d. 308, 320, 323-26 (E.D.N.Y.2008) (); Polouizzi V, 687 F.Supp.2d 133, 138-39 (same); Hr'g Tr. 6:19-24 Oct. 22, 2007, Docket Entry No. 106 (). "He has a good relationship with his wife and five sons, and has been a model citizen and ... entrepreneur except for this one aberrant offense." United States v. Polizzi, 2008 WL 1820900, at *4 (E.D.N.Y. Apr. 8, 2008) (Statement of Reasons Pursuant to 18 U.S.C. § 3553(c)(2)). Since his arrest in 2006, the defendant has been successfully engaged in continuing intensive mental health treatment. He has complied fully with the terms of bail and supervision while living with his family and operating his restaurant. See Polouizzi V, 687 F.Supp.2d at 155-56 (); Order to Show Cause, Jan. 15, 2010, Docket Entry No. 219 (same); Order to Show Cause Hr'g Tr. 2:17-19, Jan. 22, 2010 (statement of probation services).
As conditions of bail there were imposed the following requirements: (1) prohibition on association with minors, except in presence of guardian; (2) surrender of passport; (3) random drug testing; (4) mental health treatment; (5) home detention with electronic monitoring; (6) prohibition on use of family's computer; (7) prohibition on entering son's bedroom; and (8) a one million dollar bond secured by defendant's home and other properties. See Order Setting Conditions of Release on Bond, Aug. 15, 2008, Docket Entry No. 173; Order Setting Conditions of Release on Bond, Apr. 4, 2007, Docket Entry No. 43.
Only after the government demanded that the defendant be ordered to wear an electronic tracking bracelet in reliance on the mandate of the Adam Walsh Act was this condition added. See Bail Hr'g Tr. 6:21-7:4, Aug. 5, 2008. Without the statutory mandate, this condition would not have been imposed.
The Bail Reform Act of 1984 outlawed excessive bail requirements for defendants pending trial. Pub.L. No. 98-473, 98 Stat. 1976 (). See, e.g., 18 U.S.C. § 3142(c)(1)(B) (); S.Rep. No. 98-225, at 10 (1983), as reprinted in 1984 U.S.C.C.A.N 3182, 3194 ()"; Bail Reform, Hearings Before the Subcommittee on the Constitution of the Committee on the Judiciary, 97th Cong. 154 (1981); Senator Edward M. Kennedy, A New Approach to Bail Release: The Proposed Federal Criminal Code and Bail Reform, 48 Ford. L.Rev. 423, 429-35 (1980). Similar concerns animated the Bail Reform Act of 1966. See, e.g., S.Rep. No. 98-225, at 3 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182, 3187-88 (); Hearings on H.R. 3576, H.R. 3577, H.R. 3578, H.R. 5923, H.R. 6271, H.R. 6934, H.R. 10195 and S. 1357 before the House Committee on the Judiciary, Federal Bail Reform, Mar. 9-16, 1966, at 16 (statement of Representative William McCulloch) ("Pretrial freedom is too often needlessly denied."); id. at 17 (statement of Senator Sam J. Ervin) (similar). See also, e.g., United States v. Joyeros, 204 F.Supp.2d 412, 434-35 (E.D.N.Y. 2002) (); Note, The Eighth Amendment and the Right to Bail: Historical Perspectives, 82 Col. L.Rev. at 362 n. 13 ().
In 2006, the Adam Walsh Act amended the Bail Reform Act to require that "in any case that involves a minor victim under section ... 2252(a)(2) receipt of child pornography by any means including computer... any release order shall contain, at a minimum ... a condition of electronic monitoring." H.R. 4472, Pub. L 109-248, 10 Stat. 587 (July 27, 2006) () (emphasis added). The requirement covers pre-trial and post-bail; it is plain, unambiguous, and mandatory. But see United States v. Kennedy, 327 Fed.Appx. 706, 706-08 (9th Cir.2009) () (emphasis added); United States v. Cossey, 637 F.Supp.2d 881, 889 (D.Mont.2009) (applying Kennedy).
The judgment of conviction having been vacated, the present defendant is treated as a charged, not as a convicted child pornographer. The question now posed is whether the pretrial condition of curfew with electronic monitoring mandated by the Adam Walsh Act is unconstitutional as applied in view of this court's finding that electronic monitoring is not needed to avoid flight or any danger to children or to society. The answer: The Adam Walsh Act is unconstitutional as applied to this defendant under present circumstances.
The Eighth Amendment provides "excessive bail shall not be required." U.S. amend. VII. This limit of federal authority applies to the states. See Kennedy v. Louisiana, ___ U.S. ___, 128 S.Ct. 2641, 2649, 171 L.Ed.2d 525 (2008) (); Schilb v. Kuebel, 404 U.S. 357, 365, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971) (). Excess bail is banned as part of the panoply of integrated constitutional limitations on both the states and the national government in criminal cases, and in requiring due process for defendants accused of crimes. See, e.g., United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (); Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) ().
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