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United States v. Rogers

United States District Court, D. Kansas

June 18, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
TIMMY JOE ROGERS, Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on the government's Appeal of Magistrate Judge Ruling (Doc. 82). On April 5, 2019, Magistrate Judge Gale issued an order granting in part Defendant's Motion to Modify Conditions of Pretrial Release. The government objects to Judge Gale's determination that the motion was properly before the Court and for his finding that the statutory provision violated procedural due process and was thus unconstitutional. For the reasons described in more detail below, the Court finds that the motion was properly before the Court. The Court, however, reverses the determination that § 3142(c)(1)(B) is facially unconstitutional.

         I. Factual and Procedural Background

         Defendant Rogers was originally charged with two counts of sex trafficking a minor by way of solicitation pursuant to 18 U.S.C. § 1591(b)(2). The first count allegedly happened on March 30, 2014, and the second count on July 7, 2014. The government later filed a Superseding Indictment charging Defendant with two counts of sex trafficking a minor by way of recruitment and enticement pursuant to 18 U.S.C. § 1591(a)(1). On February 27, 2019, the government filed a Second Superseding Indictment against Defendant. The indictment charged Defendant with one count of sex trafficking or attempted sex trafficking of a minor pursuant to 18 U.S.C. § 1591(a)(1) between March 30 and July 7, 2014 (encompassing both the March 30 and July 7 dates) and one new count of enticement or attempted enticement between February 24 and July 7, 2014, pursuant to 18 U.S.C. § 2422(b).

         Defendant had his initial appearance before Magistrate Judge Gale on February 7, 2018. On February 9, Judge Gale conducted a detention hearing. Defendant was represented by counsel. Pretrial services recommended Defendant's release on bond with certain conditions. The government agreed and withdrew its motion for detention.

         Defendant was released on bond. Pursuant to 18 U.S.C. § 3142(c)(1)(B), known as the Adam Walsh Child Protection and Safety Act (the “Adam Walsh Act”), Judge Gale imposed certain mandatory conditions, which included a curfew and electronic monitoring. Defendant did not object to these conditions.

         On March 6, 2019, Defendant filed a Motion to Modify Conditions of Release. In this motion, Defendant requested that the curfew and electronic monitoring conditions be removed. He argued that the mandatory imposition of pretrial release conditions based on the nature of the crime charged was unconstitutional.

         The government objected to Defendant's motion. The government first argued that Defendant's motion was untimely because it was brought approximately 13 months after the conditions were imposed. Next, the government asserted that the mandatory conditions were not unconstitutional.

         Judge Gale held a hearing on the motion. On April 5, 2019, Judge Gale issued a written opinion granting, in part, Defendant's motion. Judge Gale first found that the motion was timely. Next, he determined that the mandatory conditions were unconstitutional. Specifically, he found that a provision in 18 U.S.C. § 3142(c)(1)(B) violated Defendant's right to procedural due process under the Fifth Amendment.

         At a later hearing, however, Judge Gale determined that despite the unconstitutionality of mandatory conditions, the conditions were reasonably appropriate in Defendant's case. Thus, he issued a written opinion denying Defendant's request to remove the conditions. The government now appeals Judge Gale's finding that Defendant's motion was timely and Judge Gale's holding that § 3142(c)(1)(B) is unconstitutional. This Court held a hearing on June 4, 2019.

         II. Analysis

         The government brings its motion pursuant to Fed. R. Crim. P. 59(a) which allows a district court to review a magistrate judge's non-dispositive order as long as the party files its objection within 14 days of the order. The government filed its objection and appeal within 14 days. At the hearing, there was discussion as to whether the government's motion was moot. Judge Gale issued two written opinions. The first opinion granted in part Defendant's motion to modify and found that the statutory provision was unconstitutional. The government filed its objection and appeal within 14 days of this order. On the same day that the government filed its motion, Judge Gale issued a second opinion denying Defendant's motion to modify conditions and left Defendant's bond conditions in place. His ruling on the constitutional issue, however, remained unchanged.

         The Court determines that the government's objection and appeal is not moot. Pursuant to Fed. R. Crim. P. 59(a), under which the government brings its motion, a district court can review a magistrate judge's non-dispositive order as long as the party files its objection within 14 days of the order. Rule 59(a) also provides that the district judge “must consider timely objections and modify or set aside any part of the order that is contrary to law or clearly erroneous.” Furthermore, the finding of the provision as facially unconstitutional has implications beyond this case, as a successful facial constitutional challenge invalidates the challenged law in all circumstances.[1]Thus, the Court will employ the standard of review under Rule 59 and determine whether Judge Gale's findings are contrary to law or clearly erroneous.

         A. Timeliness

         In Judge Gale's order, he found that Defendant's motion was properly before the court. Specifically, he found that 18 U.S.C. § 3142(c)(3) provided the avenue for his review.[2] Section 3142(c)(3) provides that “the judicial officer may at any time amend the order to impose additional or different conditions of release.” Specifically, Judge Gale stated that this statutory provision “allow[ed] the judge who set the original bond broad latitude to adjust the bond as the case moves forward.” Because Judge Gale set the original bond, he (as the judicial officer) may at any time amend the order to impose different conditions of release. Thus, although he noted that it was a difficult question whether Defendant's failure to object when the bond was originally issued constituted a waiver, he ultimately found that Defendant did not waive his right.

         The government first asserts that Judge Gale erred in finding Defendant's motion timely. The government relies on Fed. R. Crim. P. 59, which sets the limit for review of a magistrate's non-dispositive order as 14 days.[3] Thus, the government contends that because Defendant's motion was brought more than 14 days after Judge Gale entered Defendant's bond conditions, Defendant's motion was untimely.

         This rule, however, is inapplicable. Rule 59(a) governs a district court's review of a magistrate judge's non-dispositive order. In this case, a district judge was not reviewing the magistrate judge's order. Instead, the magistrate judge was reviewing or re-evaluating his own order setting the conditions of the bond, and whether to modify those conditions. Thus, it was not the district court's review, and Rule 59(a) is inapplicable.

         The government additionally contends that Judge Gale's decision was contrary to law because he did not follow the analysis from another recent decision in the District of Kansas, United States v. Doby.[4] Although the underlying facts in Doby are similar to the facts here, there is one distinct procedural difference. In Doby, the motion to modify was heard and decided by the district judge assigned to the case. This fact played a part in Judge Teeter's analysis.

         In a footnote, Judge Teeter noted the procedural inapplicability of § 3142(c)(3) to the defendant's motion to modify for two reasons. Specifically, she stated that § 3142(c)(3) was applicable to the judicial officer who entered the initial release order (which was not her).[5] That key distinction is present in this case. Judge Gale entered the initial release order and considered the request to modify the bond conditions. Thus, § 3142(c)(3) is applicable to Judge Gale.

         Judge Teeter also noted that § 3142(c)(3) “specifies when the judicial officer may act not when a party may move.”[6] This statement does not help the government. Although Defendant filed the motion, Judge Gale also found that he could act under §3142(c)(3). Section 3142(c)(3) provides that “[t]he judicial officer may at any time amend the order to impose additional or different conditions of release.” There is no limitation in this statutory provision precluding a judicial officer from acting if the issue was brought before the Court by motion. Indeed, there is no limitation in this statutory provision as to when the judicial officer may act. Thus, the Court does not find Judge Gale's determination that Defendant's motion was properly before the Court contrary to law or erroneous.

         B. Constitutionality

         Pursuant to the Adam Walsh Act, [7] “any release order shall contain, at a minimum, a condition of electronic monitoring” and certain other conditions, such as a specified curfew. Defendant brought a motion to modify asserting that these two mandatory conditions under § 3142(c)(1)(B) were unconstitutional, both procedurally and substantively. Specifically, Defendant argued that the provision violated the due process clause of the Fifth Amendment.[8]

         Judge Gale addressed the procedural component of the statute finding it unnecessary to make a further distinction between substantive and procedural due process.[9] He specifically found that the provision in the statute was facially unconstitutional because it fell short of procedural due process protections and thus violated the due process clause of the Fifth Amendment. He first found that there was no question that the conditions implicated a substantial liberty interest because they involved government monitoring.[10] Judge Gale then found that there were no procedures to not impose the ...


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