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United States v. Doby

United States District Court, D. Kansas

January 28, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JERRY DOBY, Defendant.

          MEMORANDUM AND ORDER

          HOLLY L. TEETER UNITED STATES DISTRICT JUDGE

         Defendant Jerry Doby is charged with failure to register, in violation of 18 U.S.C. § 2250(a). After a detention hearing, the magistrate judge released him on conditions including electronic monitoring and curfew as required by the Adam Walsh Child Protection and Safety Act of 2006 (“Adam Walsh Act”). In the instant motion, Mr. Doby challenges the constitutionality of these mandatory conditions, arguing that they violate the Fifth Amendment Due Process Clause and the Eighth Amendment Excessive Bail Clause. Doc. 24. Because this motion is not properly before it, the Court denies the motion and does not address Mr. Doby's constitutional challenges.

         I. BACKGROUND

         In June 2018, the government filed an indictment charging Mr. Doby with failure to register as required by 18 U.S.C. § 2250(a). For persons charged under that section, the Adam Walsh Act mandates that pretrial release conditions include electronic monitoring and curfew. See 18 U.S.C. § 3142(c)(1)(B). At the July 3, 2018 detention hearing, Magistrate Judge Gary Sebelius imposed those two conditions, among others. Mr. Doby made no objection to these two conditions. Over four months later, on November 7, 2018, Mr. Doby filed the instant motion, arguing that these mandatory conditions violate the Fifth Amendment Due Process Clause and the Eighth Amendment Excessive Bail Clause.

         II. ANALYSIS

         Th Court analyzes whether Mr. Doby's motion is properly before it. The Bail Reform Act of 1984 generally provides two avenues through which a party may seek modification of a pretrial release order before review on appeal by a court of appeals: (1) review of a release order under 18 U.S.C. § 3145(a), and (2) a motion to amend under 18 U.S.C. § 3142(f). United States v. Cisneros, 328 F.3d 610, 614 (10th Cir. 2003). The Court analyzes each avenue to determine whether Mr. Doby's motion is procedurally proper.

         A. The First Avenue: Review of a Release Order under 18 U.S.C. § 3145(a)

         The first avenue is review of a release order under § 3145(a), which governs district court review of detention or release orders entered by magistrate judges. Section 3145(a) states:

(a) Review of a release order. If a person is ordered released by a magistrate judge, or by a person other than a judge of a court having original jurisdiction over the offense and other than a Federal appellate court- . . . .
(2) the person may file, with the court having original jurisdiction over the offense, a motion for amendment of the conditions of release.

18 U.S.C. § 3145(a).

         Although this section does not specify a time limit, Federal Rule of Criminal Procedure 59(a), which governs district court review of a magistrate judge's order, contains both a time limit and a waiver provision. Rule 59(a) states in relevant part:

A party may serve and file objections to the [magistrate judge's] order within 14 days after being served with a copy of a written order or after the oral order is stated on the record, or at some other time the court sets. The district judge must consider timely objections and modify or set aside any part of the order that is contrary to law or clearly ...

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