United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, Chief District Judge.
On August 26, 2014, a grand jury issued an indictment against defendant Andrew Hiipakka. (Docket 1). Mr. Hiipakka was charged in count I with receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and in count II with possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Id . Mr. Hiipakka was arrested that same day. A detention hearing was held on August 27, 2014, before United States Magistrate Judge John E. Simko. (Docket 10). At the detention hearing the government was represented by Assistant United States Attorney Sarah Collins and the defendant was represented by Assistant Federal Public Defender Gary Colbath. Id . Following the presentation of evidence by the government, Magistrate Judge Simko entered an order setting conditions of release. See Dockets 8, 10 & 16.
On October 30, 2014, the government filed an ex parte motion to reconsider bond. (Docket 22). The same day, United States Magistrate Judge Veronica L. Duffy entered an order directing a summons be issued to Mr. Hiipakka and that a hearing on the government's ex parte motion be held. (Docket 23). On November 4, 2014, an evidentiary hearing was held at which Mr. Hiipakka, Mr. Colbath and Ms. Collins appeared. (Docket 26). Magistrate Judge Duffy ordered post-hearing briefing and permitted Mr. Hiipakka to remain on bond pending a decision on the government's motion. Id . On November 13, 2014, Magistrate Duffy filed an order granting the government's motion to reopen the original detention hearing and requiring Mr. Hiipakka detained pending trial. (Docket 34).
On November 19, 2014, a grand jury issued a superseding indictment against Mr. Hiipakka. (Docket 39). The superseding indictment charged Mr. Hiipakka with the following offenses: count I, attempted enticement of a minor using the internet in violation of 18 U.S.C. § 2422(b); count II, transfer of obscene material to a minor in violation of 18 U.S.C. § 1470; count III distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A); and count IV, possession of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(5)(B). Id.
On November 21, 2014, defendant filed a motion to extend the time to appeal the detention order. (Docket 42). The motion was granted, permitting the defendant to file his motion within ten days following preparation of the transcript of the November 4, 2014, hearing. (Docket 44). On December 15, 2014, defendant timely filed an appeal from the decision of Magistrate Judge Duffy. (Docket 48).
On January 15, 2015, the court held a hearing on defendant's appeal. For the reasons stated at the conclusion of the hearing, defendant's appeal is denied.
The Bail Reform Act provides in relevant part:
The hearing shall be held immediately upon the person's first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance. Except for good cause... a continuance on motion of the attorney for the Government may not exceed three days (not including any intermediate Saturday, Sunday, or legal holiday).... The person may be detained pending completion of the hearing. The hearing may be reopened, before or after a determination by the judicial officer, at any time before trial if the judicial officer finds that information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue whether there are conditions of release that will reasonably assure the appearance of such person as required and the safety of any other person and the community.
18 U.S.C. § 3142(f)(2).
Mr. Hiipakka argues the magistrate judge misinterpreted § 3142(f) by permitting the original bond hearing to be reopened. (Docket 48 at p. 16). Mr. Hiipakka asserts that while the government may not have "reviewed all of the information it had on August 27, " the evidence presented at the second bond hearing was not "new information for purposes of section 3142(f)." Id. at p. 17. Mr. Hiipakka further argues the government waived any right to claim § 3142(f) permits a second bond hearing because the government failed to move for a continuance during the original detention hearing. Id. at p. 18.
The government argues it did request a continuance of the original detention hearing, but Magistrate Judge Simko permitted only a continuance of a few hours. (Docket 51 at p. 5). The government contends the evidence presented at the second bond hearing had not yet been discovered prior to the original bond hearing "despite diligent efforts, because of the volume" of material on defendant's computer. Id. at p. 7. The government's last argument is that the materials subsequently discovered on Mr. Hiipakka's computer were new evidence because it showed the ...