United States v. Blaser

390 F.Supp.3d 1306

UNITED STATES of America, Plaintiff,

v.Larry Wayne BLASER, Defendant.

Case No. 19-10075-01-EFM

United States District Court, D. Kansas.

Signed June 25, 2019

Jason W. Hart, Office of United States Attorney, Wichita, KS, for Plaintiff

MEMORANDUM AND ORDER

GWYNNE E. BIRZER, United States Magistrate Judge

This matter is before the Court on United States' Motion for Clarification and Reconsideration of Magistrate Judge's Order Setting Conditions of Release (ECF No. 11 ) and Defendant's Response (ECF No. 18). After careful consideration, the Court GRANTS the United States' request for clarification, but DENIES the request for reconsideration.

I. Background

On April 23, 2019, the Defendant was indicted on three counts of transportation of child pornography, using Microsoft's Bing Image search engine, in violation of 18 U.S.C. § 2252A(a)(1) and one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2).¹ These offenses are alleged to have occurred in May, October, and November of 2018 and January of 2019.²

On May 1, 2019, Defendant made his initial appearance before the undersigned Magistrate Judge.³ After the initial appearance, the undersigned conducted a detention hearing pursuant to 18 U.S.C. § 3142 (referred to herein as " § 3142"), and ordered the Defendant released on bond.⁴ As will be relevant here, the undersigned also ordered Defendant to abide by the following additional conditions of release: (1) no travel outside the District of Kansas or Western District of Oklahoma without permission of the Court or U.S. Probation Office; (2) no contact with any minors without direct supervision of a responsible adult; (3) no possession of any form of pornographic material; and (4) submit to computer monitoring by the Probation Office and follow the Probation Office's policies restricting/prohibiting computer, cell phone and internet usage.⁵

The undersigned declined to order conditions of electronic monitoring and curfew as requested by the United States.⁶ These conditions became mandatory under § 3142(c)(1)(B) for individuals charged with certain child pornography offenses⁷ when the Adam Walsh Child Protection and Safety Act ("Adam Walsh Act")⁸ was enacted in 2006. But, based on previous caselaw from this District and the factual situation presented to the Court, the undersigned found mandatory imposition of these conditions unconstitutional and unnecessary as applied to Defendant.⁹ The United States takes issue with the Court's authority to make this finding.

II. Adam Walsh Act Amendments to 18 U.S.C. § 3142

The release or detention of a defendant pending trial is governed by § 3142. If a defendant is not detained pending trial, he must be released on personal recognizance or on an unsecured bond unless the court determines these conditions are insufficient.¹⁰ In that event, the court is obligated to fashion a bail package consisting of 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."¹¹ The statute then provides a list of optional conditions at § 3142(c)(1)(B).¹²

As stated above, Congress enacted the Adam Walsh Act in 2006. That Act, among other things, amended § 3142(c)(1)(B) to mandate specific conditions for the release of persons charged with certain crimes involving minors, such as the child pornography offenses at issue here (referred to herein as the "Adam Walsh Amendments").¹³ Thus, under the Adam Walsh Amendments, "[i]n any case that involves a minor victim under section...of this title, any release order shall contain, at a minimum , a condition of electronic monitoring" and, as is relevant here, the condition that the defendant "comply with a specified curfew."¹⁴ Here, as explained above, the United States takes issue with the Court's declination to impose these mandatory electronic monitoring and curfew conditions, and in particular, its authority to determine whether a statute, or certain provisions of a statute, is unconstitutional.

III. United States' Motion for Clarification and Reconsideration of Magistrate Judge's Order Setting Conditions of Release (ECF No. 11).

A. Requests for Clarification

In its Motion, the United States seeks clarification regarding (1) the "Court's authority to declare a statute, or provisions of a statute, unconstitutional;"¹⁵ and (2) the identity of "what constitutional provisions are violated by the statute, and [the Court's] authority for so holding."¹⁶ Each will be addressed in turn below.

1. Court's Authority

The United States questions the undersigned's authority to opine the Adam Walsh Amendments to § 3142, which, as explained above, mandates specific release conditions for persons charged with certain crimes involving minors, is unconstitutional. As the United States correctly points out, federal magistrate judges, unlike federal district judges, are creatures of statute.¹⁷ Thus, magistrate judges only have the jurisdiction and authority granted to them by Congress, which is set out in 28 U.S.C. § 636.¹⁸

Section (a)(2) of 28 U.S.C. § 636 specifically gives magistrate judges jurisdiction and authority to "issue orders pursuant to section 3142 of title 18 concerning release or detention of persons pending trial." Thus, the undersigned's jurisdiction and authority to opine certain provisions of § 3142 are unconstitutional in issuing her order concerning release of Defendant pending trial comes directly from 28 U.S.C. § 636(a)(2). This is borne out by cases in this District, and across the country, where numerous magistrate judges have thoroughly analyzed the issue and found the Adam Walsh Amendments unconstitutional.¹⁹ While the magistrate judges' findings of unconstitutionality have been questioned on appeal, their authority to so opine has not been.²⁰

The United States also argues the undersigned's ruling is comparable to granting a motion for injunctive relief, which per 28 U.S.C. § 636(b)(1)(A), is an issue reserved for district judges. This argument lacks merit. As explained above, the undersigned's jurisdiction and authority to find the Adam Walsh Amendments unconstitutional comes directly from 28 U.S.C. § 636(a)(2), which allows magistrate judges to rule on § 3142 release issues. The authority does not come from 28 U.S.C. § 636(b)(1)(A), which, as the United States correctly points out, does normally restrict a magistrate judge from ruling on motions for injunctive relief.²¹

For the same reason, the United States' argument the undersigned's order is akin to ruling on a dispositive issue must also be disregarded. This Court, with full knowledge of its authority, is well aware magistrate judges, pursuant to 28 U.S.C. § 636(b)(1), generally do not decide issues which could dispose, partially or entirely, of the case.²² The United States does not explain how the Court's order releasing Defendant on certain conditions pending trial is dispositive. And, the Court sees nothing case dispositive about its release order, particularly where the Court issued the least restrictive conditions based on the facts presented to it. As stated above, the undersigned's authority to issue release orders comes directly from 28 U.S.C. § 636(a)(2), and not from 28 U.S.C. § 636(b)(1), which dictates what matters magistrate judges cannot rule on without a referral from the district judge.

In conclusion, because 28 U.S.C. § 636(a)(2) is the authority which gives magistrate judges jurisdiction over § 3142 release and detention issues, the undersigned has authority to opine that provisions of § 3142 relating to mandatory release conditions are unconstitutional.²³

2. Constitutional Provisions and Authority

As a second point of clarification, the United States asks the Court to identify what constitutional provisions are violated by the Adam Walsh Amendments, and its authority for so holding. During the May 1, 2019 hearing, the Court referenced case law in this District finding mandatory imposition of curfew and electronic monitoring unconstitutional.²⁴ However, the Court did not specify the constitutional provisions violated or provide case cites. As such, it is appropriate for the Court to indulge this request for clarification.

The Court finds mandatory imposition of electronic monitoring and curfew conditions violates Defendant's Fifth Amendment right to procedural due process. This is because the conditions are based solely on the crime charged, and applied without an opportunity for Defendant to be heard regarding imposition of the conditions and an independent judicial determination of whether those conditions are really the least restrictive means to ensure Defendant's future appearance and safety of the community.²⁵ In so holding, the Court relies on four previous decisions from this District reaching the same conclusion.

In United States v. Vujnovich ,²⁶ the defendant was charged with receipt and possession of child pornography. At the initial appearance, Magistrate Judge David J. Waxse ordered defendant released on an unsecured bond and imposed electronic monitoring.²⁷ However, Judge Waxse made no specific findings as to the necessity of electronic monitoring because, given the crimes charged, the Adam Walsh Amendments mandated monitoring as a condition of release.²⁸ The defendant then filed a motion to modify his conditions of release, asking for removal of the electronic monitoring condition and arguing the Adam Walsh Amendments' mandatory imposition of the condition was unconstitutional.²⁹ After review, Judge Waxse agreed. He found the Adam Walsh Amendments violated the defendant's Fifth Amendment right to procedural due process and removed the electronic monitoring requirement without a further hearing.³⁰ District Judge Carlos Murguia affirmed the constitutional aspects of Judge Waxse's order in a separate written opinion, but did set a hearing to...