United States v. Campbell

309 F.Supp.3d 738

UNITED STATES of America, Plaintiff,

v.Desi Duncan CAMPBELL, Defendant.

1:17–CR–10033–CBK

United States District Court, D. South Dakota, Northern Division.

Signed February 16, 2018

Filed February 21, 2018

Jeremy R. Jehangiri, U.S. Attorney's Office, Sioux Falls, SD, for Plaintiff.

Christopher D. Dohrer, Law Office of Christopher D. Dohrer, Prof. LLC, Aberdeen, SD, for Defendant.

MEMORANDUM OPINION AND ORDER

CHARLES B. KORNMANN, United States District Judge

INTRODUCTION

Defendant was indicted with four counts of aggravated sexual abuse of a child under the age of 12 years, one count for each of the years 2004–2007. Following a detention hearing, the United States Magistrate Judge released defendant on conditions, including the Adam Walsh mandatory conditions of release as required by 18 U.S.C. § 3142(c).¹ Defendant moved to modify the conditions of release, contending that the Adam Walsh conditions are unconstitutional, both facially and as applied to defendant. The Magistrate Judge denied the motion, finding that the conditions are constitutional both facially and as applied. Defendant has filed an appeal of the order pursuant to 18 U.S.C. § 3145(c).

DECISION

The Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109–248, was enacted on July 27, 2006. Most notable for its Title I provisions, the Sex Offender Registration and Notification Act, Title II, the Improving Federal Criminal Law Enhancements Needed to Protect Children From Sexual Attacks and Other Violent Crimes, is no less onerous. Title II enacted enhanced penalties and statutes of limitation for child sexual abuse and sex trafficking crimes. Section 216, entitled Improvements to the Bail Reform Act to Address Sex Crimes and Other Matters, amended 18 U.S.C. § 3142(c) to include the requirement that "in any case that involves a minor victim" under federal criminal statutes proscribing kidnapping, sex trafficking, sexual abuse, sexual exploitation (including child pornography), and interstate transportation for illegal sexual activity, "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)." Adam Walsh Child Protection and Safety Act of 2006, Pub. L. 109–248, Sec. 216, 120 Stat. 587.

The mandatory Adam Walsh conditions of release are electronic monitoring and:

(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

18 U.S.C.A. § 3142(c)(1)(B).

The subsection (vi) condition to report as directed to the pretrial services officer was included as part of defendant's general conditions of release. The subsection (iv) travel restriction condition was incorporated into the subsection (vii) curfew condition. The subsection (iv) personal associations restriction was incorporated into the subsection (v) no contact order. The Magistrate Judge thus included four conditions that were identified as Adam Walsh conditions: (1) electronic monitoring, (2) prohibition from possession of firearms, (3) no-contact order, and (4) curfew restriction. The curfew restriction imposed in this case essentially amounted to home confinement with work release. The magistrate was careful to note that, although the mandatory conditions were not unconstitutional, he would not have imposed them but for the § 3142(c) mandate

I. Facial Challenge.

Defendant contends that the Adam Walsh release conditions are facially unconstitutional. To succeed in a facial challenge, defendant must establish "that no set of circumstances exist under which the Act would be valid, i.e. , that the law is unconstitutional in all of its applications." Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 1190, 170 L.Ed. 2d 151 (2008) (citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed. 2d 697 (1987) ).

The Magistrate Judge held that the Adam Walsh conditions were not facially unconstitutional based upon the decision of the United States Court of Appeals for the Eighth Circuit in United States v. Stephens, 594 F.3d 1033 (8th Cir. 2010). The Eighth Circuit in Stephens, in denying a facial challenge to the Adam Walsh provisions of the Bail Reform Act, held that a court "need only find them ‘adequate to authorize the pretrial detention of at least some persons charged with crimes,’ whether or not they might be insufficient in some particular circumstances." United States v. Stephens, 594 F.3d at 1037–38, (quoting United States v. Salerno, 481 U.S. at 751, 107 S.Ct. at 2100 ). "One can imagine many defendants for whom curfew and electronic monitoring would be necessary to assure their presence at trial or ensure the safety of the community." United States v. Stephens, 594 F.3d at 1038.

The Eighth Circuit in Stephens rejected a facial Eighth Amendment challenge to the § 216 mandatory conditions of release. The Eighth Amendment "fails to say all arrests must be bailable." United States v. Stephens, 594 F.3d at 1039 (quoting Carlson v. Landon, 342 U.S. 524, 546, 72 S.Ct. 525, 537, 96 L.Ed. 547 (1952) ).

Congress may ban bail in entire classes of cases ... We see nothing in the Supreme Court's relevant precedents to indicate the Adam Walsh Act's much less restrictive mandatory release conditions are facially unconstitutional.

United States v. Stephens, 594 F.3d at 1039.

The Eighth Circuit in Stephens also rejected a due process challenge that § 216 of the Adam Walsh Act strips defendants of an individualized judicial consideration of the liberty restrictions necessary in an individual case.

[Defendant] overestimates the impact of § 216 of the Adam Walsh Act upon the Bail Reform Act. Section 216 does not deprive child pornography defendants of a detention hearing or an individualized determination whether detention or release is appropriate. As relevant here, the only effect of § 216 is to require a curfew and some electronic monitoring. The defendant remains entitled to a detention hearing and a large number of individualized determinations—including an individualized determination as to the extent of any mandatory conditions of release ... Because "curfew" and "electronic monitoring" remain undefined, the district court possesses many tools in its discretionary toolkit.

United States v. Stephens, 594 F.3d at 1039.

The United States Court of Appeals for the Ninth Circuit has also rejected a facial challenge to the Adam Walsh mandatory conditions of release. In United States v. Peeples, decided ten months after Stephens, the Ninth Circuit summarily disposed of a facial challenge based upon the "no set of circumstances exist" test set out in Salerno and adopted by Stephens. United States v. Peeples, 630 F.3d 1136, 1138 (9th Cir. 2010). The per curium opinion in Peeples completely ignored a prior Ninth Circuit panel opinion in United States v. Kennedy, 327 Fed. Appx. 706 (9th Cir. 2009), wherein the Ninth Circuit avoided constitutional infirmity by construing "the Walsh Act to require the district court to exercise its discretion, to the extent practicable, in applying the mandatory release conditions." United States v. Kennedy, 327 Fed. Appx. at 707.

There are a number of district and magistrate courts that have considered the facial constitutionality of the Adam Walsh mandatory release conditions.² None of the cases have held that the conditions are facially invalid under the Eighth Amendment. Some of the lower courts to have considered the issue of the constitutionality of the Adam Walsh mandatory release conditions have held, consistent with Stephens and Peeples, that such conditions do not facially violate the Fifth Amendment. See United States v. Cossey, 637 F.Supp.2d 881 (D. Mont. 2009) (Molloy, U.S. District Judge), United States v. Frederick, 2010 WL 2179102 (D.S.D. 2010) (Moreno, U.S. Magistrate Judge), and United States v. Rondeau, 2010 WL 5253847 (D.R.I. 2010) (Smith, U.S. District Judge).

Most of the lower courts to have considered the issue of the constitutionality of the Adam Walsh mandatory release conditions have held that such conditions are facially unconstitutional under the Fifth Amendment. See United States v. Crowell, 2006 WL 3541736 (W.D.N.Y. 2006) (Forschio, U.S. Magistrate Judge), United States v. Vujnovich, 2007 WL 4125901 (D. Kan. 2007) (Waxse, U.S. Magistrate Judge), United States v. Torres, 566 F.Supp.2d 591 (W.D. Tex. 2008) (Cardone, U.S. District Judge), United States v. Arzberger, 592 F.Supp.2d 590 (S.D.N.Y. 2008) (Francis, U.S. Magistrate Judge) (analyzing each of the preceding cases), United States v. Merritt, 612 F.Supp.2d 1074 (D. Neb. 2009) (Piester, U.S. Magistrate Judge), United States v. Smedley, 611 F.Supp.2d 971 (E.D. Mo. 2009) (Noce, U.S. Magistrate Judge), United States v. Rueb, 612 F.Supp.2d 1068 (D. Neb. 2009) (Piester, U.S. Magistrate Judge), United States v. Stephens, 2009 WL 3568668 (N.D. Iowa 2009) (Zoss, Chief U.S. Magistrate Judge), and United States v. Karper, 847 F.Supp.2d 350 (N.D.N.Y. 2011) (Treece, U.S. Magistrate Judge). The Stephens decision overruled those lower court decisions from the Eighth Circuit.

In United States v. Torres, supra , in a case decided before the circuit opinions in Stephens and Peeples, the district court held that the Adam Walsh conditions are facially unconstitutional under the Fifth Amendment because they "strip away any independent judicial evaluation by mandating that every arrestee be treated the same, that is, subject to a curfew with electronic monitoring, among other conditions of release, regardless of circumstances." United States...