US v. POLOUIZZI

697 F. Supp.2d 381

UNITED STATES of America, Plaintiff, v. Peter POLOUIZZI, Defendant.

No. 06-CR-22 (JBW).

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

March 23, 2010.

Allen Lee Bode, United States Attorneys Office, Central Islip, NY, Andrea Goldbarg, United States Attorneys Office, Brooklyn, NY, for Plaintiff.

MEMORANDUM AND ORDER

JACK B. WEINSTEIN, Senior District Judge.

Table of Contents

   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

I. Introduction

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.

II. Facts

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) (finding of trial court); Polouizzi V, 687 F.Supp.2d 133, 138-39 (same); Hr'g Tr. 6:19-24 Oct. 22, 2007, Docket Entry No. 106 (observation of magistrate judge that "there was expert opinion offered at trial that the defendant does not pose any danger to any minors," and "no evidence ... that defendant has in any way engaged in conduct that would result in harm to any member of the community"). "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 (finding of trial court); 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.

III. Law

A. Mandatory Electronic Monitoring

The Bail Reform Act of 1984 outlawed excessive bail requirements for defendants pending trial. Pub.L. No. 98-473, 98 Stat. 1976 (codified as amended at 18 U.S.C. §§ 3141-3156). See, e.g., 18 U.S.C. § 3142(c)(1)(B) (obligating court to fashion bail package with "least restrictive condition or combination of conditions"); S.Rep. No. 98-225, at 10 (1983), as reprinted in 1984 U.S.C.C.A.N 3182, 3194 ("The pretrial detention provision of Section 3142... disallows the imposition of excessively high money bonds.)"; 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 (stating that the "primary purpose" of the 1966 Act was "to deemphasize the use of money bonds ... which was perceived as resulting in disproportionate and unnecessary pretrial incarceration of poor defendants"); 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) (detailing history and motivations of bail reform); Note, The Eighth Amendment and the Right to Bail: Historical Perspectives, 82 Col. L.Rev. at 362 n. 13 (discussing evolution of constitutional prohibition against excessive bail).

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) (codified in relevant part at 18 U.S.C. § 3142(c)(1)(B)) (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) (construing the Adam Walsh Act "to require the district court to exercise its discretion, to the extent applicable, in applying the mandatory release conditions") (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.

B. Constitutionality

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) ("The Eighth Amendment, applicable to the States through the Fourteenth Amendment, provides that `excessive bail shall not be required'...."); Schilb v. Kuebel, 404 U.S. 357, 365, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971) ("The Eighth Amendment's proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment."). 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) (recognizing that federal bail provisions are subject to constitutional limitations of due process and excessive bail); Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) ("Conditions or restrictions of pretrial detention ... implicate ... protection against liberty without due process of law....").

The weight of nisi prius...