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United States v. Crowell

December 7, 2006

UNITED STATES OF AMERICA
v.
ANDREW CHRISTOPHER CROWELL, DEFENDANT.
UNITED STATES OF AMERICA
v.
WILLIAM JOHN SWIAT, DEFENDANT.
UNITED STATES OF AMERICA
v.
BRUCE BREMER, DEFENDANT.



The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

DECISION and ORDER

JURISDICTION

Pursuant to 28 U.S.C. § 636(a)(2), the undersigned has original jurisdiction over all matters pertaining to pretrial release pursuant to 18 U.S.C. § 3142. The instant matters are presently before the court on objections raised by Defendants to the imposition of certain conditions of release pursuant to the Bail Reform Act of 1984, as amended by the Adam Walsh Child Protection and Safety Act of 2006.

BACKGROUND and FACTS

Defendant Andrew Christopher Crowell ("Crowell") is charged in a criminal complaint filed September 11, 2006 (06-M-1095F, Doc. No. 1) ("the Crowell Complaint") with knowingly transporting and shipping or attempting to transport and ship in interstate or foreign commerce child pornography, in violation of 18 U.S.C. §§ 2252(a)(1)(A) and (B), and 2252(b)(1). Defendant William John Swiat ("Swiat") is charged in a September 6, 2006 Indictment (06-CR-291E(F), Doc. No. 1) ("the Swiat Indictment") with possession, receipt, and distribution of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(B), and 2252A(a)(5)(B). Defendant Bruce Bremer ("Bremer") is charged in a September 13, 2006 Indictment (06-CR-304S(F), Doc. No. 1) ("the Bremer Indictment"), with possession and distribution of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(B) and 2252A(a)(5)(B). Based on the Complaint and both the Swiat Indictment and Bremer Indictment ("the Indictments"), the undersigned issued warrants for the arrests of Swiat, Crowell and Bremer ("Defendants").

At Defendant Crowell's initial appearance before the undersigned on September 27, 2006, Crowell was assigned counsel and released upon conditions imposed by the court pursuant to 18 U.S.C. § 3142 ("§ 3142"), as recommended by the court's Pretrial Service unit ("Pretrial Services"), including posting secured bail in the amount of $10,000, fully secured by cash or property, reporting to Pretrial Services within 24 hours of release, surrendering any passports to the Clerk of the Court, refraining from obtaining any new passport, restricting travel to the Central District of Illinois and the Western District of New York, submitting to a mental health evaluation and any treatment as approved by Pretrial Services, refraining from possessing a firearm, destructive device, or other dangerous weapons, and refraining from possessing or downloading any child pornography as defined under 18 U.S.C. § 2256, or any analogous state law. September 29, 2006 Conditions of Release Order (06-M-1095F, Doc. No. 4) ("Crowell Release Order"). Pretrial Services' bail recommendations were not opposed by the Government, nor did the Government request Crowell be detained.

At Defendant Swiat's initial appearance before the undersigned on September 28, 2006, Swiat was assigned counsel and released to the third-party custody of his mother, Margaret Swiat, upon conditions imposed by the court pursuant to § 3142, including reporting to Pretrial Services within 24 hours of release, refraining from any use of alcohol, refraining from use or possession of any narcotic drug or other controlled substance, submitting to any testing by the Pretrial Services office for use of controlled substances, participating in substance abuse therapy and counseling approved by Pretrial Services, refraining from obstructing or tampering with the efficiency and accuracy of any required prohibited substance testing, reporting within 72 hours to Pretrial Services any contact with any law enforcement personnel, including any arrest, questioning or traffic stop, continuing in mental health treatment, refraining from possessing or downloading any child pornography as defined under 18 U.S.C. § 2256, and providing the U.S. Probation Office advance notification of any computer automated services or any connected devices to be used during Swiat's term of supervision, with the U.S. Probation Office authorized to install any necessary application on Swiat's computer to assure compliance with these conditions, and Swiat's consent to cooperating with the U.S. Probation Office's random monitoring of Swiat's computer, connected devise and storage media usage. September 28, 2006 Conditions of Release Order (06-CR-291E(F), Doc. No. 7) ("Swiat Release Order"). As with Crowell, the Government did not oppose Pretrial Services' recommended release conditions and did not seek Swiat's detention.

At Defendant Bremer's initial appearance before the undersigned on September 28, 2006, Bremer was assigned counsel and released upon conditions imposed by the court pursuant to § 3142, including reporting to Pretrial Services within 24 hours of release, refraining from any use of alcohol, refraining from use or possession of any narcotic drug or other controlled substance, submitting to any testing by the Pretrial Services office for use of controlled substances, participating in substance abuse therapy and counseling approved by Pretrial Services, refraining from obstructing or tampering with the efficiency and accuracy of any required prohibited substance testing, and not owning or accessing any computer, automated service, or connected devices. September 28, 2006 Conditions of Release Order (06-CR-304S(F), Doc. No. 4) ("Bremer Release Order"). Again, the Government concurred with Pretrial Services' bail recommendations and did not seek detention.

Thereafter, at the court's direction, upon becoming aware of the special release conditions required in these cases by the recently enacted Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, § 203, 120 Stat. 587, 613 (2006) ("the Adam Walsh Amendments" or "the Amendments"), Pretrial Services contacted defense counsel, Assistant Federal Public Defender Marianne Mariano ("Mariano"), and advised that the Adam Walsh Amendments, modifying the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq. ("the Bail Reform Act"), applied to Defendants' mandating the additional conditions of release at issue. As such, Pretrial Services recommended additional release conditions be imposed as directed by the Amendments on each Defendant including: (1) refraining from contact with minors absent the direct supervision of a responsible adult; (2) refraining from contact with the alleged victims, witnesses, or family of the victims or witnesses; (3) participating in a home confinement program and abiding by all requirements of the program, including electronic monitoring or other location verification system, the cost of which Defendant will be required to pay, either in whole or in part; and (4) submitting to a curfew restricting each Defendant to his residence. At the court's request, Pretrial Services contacted defense counsel, Mariano, as to whether Defendants would voluntarily agree to the modification of their conditions of release and Defendants, through Mariano, advised they objected to the additional mandatory conditions on the ground the Amendments were unconstitutional and requested a hearing.

On October 19, 2006, Defendants orally challenged the proposed modification of release conditions under the Adam Walsh Amendments as in violation of procedural due process, the separation of powers doctrine, and the Eighth Amendment's Excessive Bail Clause. 06-M-1095F, 06-CR-291E(F) and 06-CR-304S(F) October 19, 2006 Minute Entry. The Government responded by requesting the court impose the conditions in accordance with the Amendments. Id. Defendants were directed to file a memorandum of law supporting their objections by October 25, 2006, and the Government was directed to file its response by October 31, 2006. Id. Accordingly, each Defendant filed a Memorandum of Law in support of the objections. 06-M-1095F, Doc. No. 11, filed October 25, 2006 ("Defendant Crowell's Memorandum" or "Defendants' Memorandum"); 06-CR-291E(F), Doc. No. 8, filed October 26, 2006 ("Defendant Swiat's Memorandum"); and 06-CR-304S(F), Doc. No. 7, filed October 25, 2006 ("Defendant Bremer's Memorandum").*fn1 On October 31, 2006, at its request, the Government's deadline for filing its response was extended to November 6, 2006. October 31, 2006 Amended Briefing Order (06-M-1095F, Doc. No. 13; 06-CR-291E(F), Doc. No. 11; 06-CR-304S(F), Doc. No. 9). On November 6, 2006, the Government filed the Government's Response to Defendant's Memorandum of Law Relating to the Amendments to the Bail Reform Act as Set Forth in the Adam Walsh Child Protection and Safety Act of 2006 (06-M-1095F, Doc. No. 14; 06-CR-291E(F), Doc. No. 13; 06-CR-304S(F), Doc. No. 11) ("Government's Response").*fn2 Further oral argument was deemed unnecessary.

Treating the Government's opposition to the constitutional challenges raised by Defendants as motions for the imposition of pretrial release conditions ("the Government's motions"), the court finds that insofar as the Adam Walsh Amendments mandate the imposition of specific conditions for the pretrial release of criminal defendants accused of certain crimes, the Amendments violate procedural due process required by the Fifth Amendment, the separation of powers doctrine, and the Excessive Bail Clause of the Eighth Amendment. The Government's motions are therefore DENIED.

DISCUSSION*fn3

Defendants challenge the congressional mandate, established by the Adam Walsh Amendment, that persons charged with certain crimes, including, as relevant, 18 U.S.C. §§ 2251(a)(1), 2252A(a)(2)(B) and 2252A(a)(5)(B), and for whom the court determines release under 18 U.S.C. § 3142(b) on personal recognizance or unsecured appearance bond is insufficient, may, under 18 U.S.C. § 3142(c), be released pending trial only upon certain conditions available under 18 U.S.C. § 3142(c)(1)(B), specifically:

(1) electronic monitoring; (2) restrictions on personal associations, place of abode and travel; (3) avoiding contact with the alleged victim of the crime and potential witnesses; (4) regularly reporting to pretrial services; (5) complying with a specified curfew; and (6) refraining ...


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