United States District Court, D. South Dakota, Northern Division
MEMORANDUM OPINION AND ORDER
CHARLES B. KORNMANN UNITED STATES DISTRICT JUDGE.
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). 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).
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.
mandatory Adam Walsh conditions of release are electronic
(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
(vi) report on a regular basis to a designated law
enforcement agency, pretrial services agency, or other
(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).
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.
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
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
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.
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.
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.
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.
are a number of district and magistrate courts that have
considered the facial constitutionality of the Adam Walsh
mandatory release conditions. 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).
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.
Vuinovich, 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.
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 v.
Torres. 566 F.Supp.2d at 596.
United States v. Karper, a magistrate judge from the
Northern District of New York specifically rejected the
Eighth and Ninth Circuits' conclusions that the mandatory
conditions were facially valid under the Fifth Amendment.
United States v. Karper, 847 F.Supp.2d at 360-61 n.
6. Magistrate Judge Treece held that the curfew and
electronic monitoring conditions "restrict the freedom
of movement, also known as the right to travel, as well as
dispense with the presumption of innocence at this stage of
the criminal prosecution." United States v.
Karper, 847 F.Supp.2d at 357.
This Court accepts the proposition that a party can only
succeed with a facial challenge by establishing that no set
of circumstances exists under which the Adam Walsh Act
Amendments imposition of a curfew and electronic monitoring
would be appropriate. We also accept that in some
circumstances the imposition of the conditions of home
detention and electronic monitoring may be warranted. What
the Court cannot embrace is that in all similar cases there
is a de jure, wholesale waiver of procedural protections,
especially those so noted in Salerno. "[B]y
mandating certain pretrial release conditions, [the
Amendments] effectively create an irrebuttable presumption
that the appearance at trial of arrestees charged with
certain crimes, and the safety of the community, cannot be
reasonable assured without such conditions." And, in
this respect the law is unconstitutional in all of its
applications because it universally forfeits an accused's
opportunity to contest whether such conditions are necessary
to ensure his return and to ameliorate any danger to the
United States v. Karper, 847 F.Supp.2d at 359-360
(internal citations omitted). The Court in Karper
held that the mandatory conditions of release violate the
Stephens panel rejected the claim that the Adam
Walsh mandatory release conditions are facially invalid under
the Fifth or Eighth Amendments. This Court is bound by the
determination in Stephens. I must reject case law
holding to the contrary.
distinction between facial and as-applied challenges is not
based upon the analysis employed but goes to the remedy
available. See Citizens United v. Fed. Election
Comm'n, 558 U.S. 310, 331, 130 S.Ct. 876, 893, 175
L.Ed.2d 753 (2010). A successful facial challenge would
invalidate the challenged law in all circumstances.
"An as-applied challenge consists of a challenge to the
statute's application only as-applied to the party before
the court." Republican Party of Minn., Third Cong.
Dist. v. Klobuchar, 381 F.3d 785, 790 (8th Cir. 2004).
"If an as-applied challenge is successful, the statute
may not be applied to the challenger, but is otherwise
enforceable." Id.; see Citizens United v. Fed.
Election Comm'n, 558 U.S. 310, 130 S.Ct. 876, 893,
175 L.Ed.2d 753 (2010) (holding that the distinction between
a facial challenge and an as-applied challenge "goes to
the breadth of the remedy employed by the Court, not what
must be pleaded in a complaint").
Minnesota Majority v. Mansky, 708 F.3d 1051, 1059
(8th Cir. 2013).
as-applied challenge, the challenger must show that the
statute is unconstitutional "because of the way it was
applied to the particular facts of their case."
United States v. Salerno, 481 U.S. at 745, n. 3. The
analysis is the ...