The opinion of the court was delivered by: Reagan, District Judge
I. Issue before the Court and the Court's Ruling Thereon
As to the decision to permit Defendant David Allen Monfre to remain on pretrial release pending trial in the above-captioned case, the undersigned District Judge DENIES the United States's Motion to Revoke Magistrate's Order Granting Pretrial Release (Doc. 7), AFFIRMS Magistrate Judge Donald G. Wilkerson's decision and ADOPTS all terms imposed by Judge Wilkerson as conditions of Defendant's release, with the understanding that the electronic monitoring shall be with GPS technology and will include exclusion zones*fn1 known only to the Court and to probation. Additional conditions of release will be imposed to "reasonably assure" that Defendant is not a danger to the community.
II. Procedural History of the Case
On June 17, 2009, a grand jury sitting in the Southern District of Illinois indicted Defendant Monfre, with receipt of child pornography, as defined in 18 U.S.C. § 2256(8), in violation of 18 U.S.C. § 2252(a)(2) (Counts 1 & 2); transportation of child pornography, as defined in 18 U.S.C. § 2256(2)(A), in violation of 18 U.S.C. § 2252(a)(1) & (b)(1) (Count 3); and criminal forfeiture under 18 U.S.C. § 2253 (Count 4). The United States moved to detain Defendant (Doc. 5), but, on June 26, 2009, Judge Wilkerson denied the motion and released Defendant with conditions (Doc. 12).
On June 26, 2009, United States moved to revoke the magistrate judge's order granting pretrial release (Doc. 7) and, on June 29, 2009, moved to stay execution of the release order pending review by the District Court (Doc. 13). After having reviewed the transcript of proceedings before Judge Wilkerson, the undersigned Judge granted the motion to stay execution of release pending a de novo review of Judge Wilkerson's determination with respect to detention (Doc. 20).
Defendant took issue with the order staying his release and filed a notice of appeal with the Seventh Circuit Court of Appeals on July 2, 2009 (Doc. 27). This appeal was dismissed for lack of jurisdiction by the Court of Appeals (Doc. 37). On the following day, the undersigned Judge held a detention hearing under 18 U.S.C. § 3142(f) of the Bail Reform Act.
The United States and the defense proceeded by way of proffer, with the United States offering exhibits one through seven. The Court heard arguments from both sides. The Court's affirmance of Judge Wilkerson's order is based upon the proffers, information contained in the indictment and the pretrial services report, and exhibits offered and admitted over objection and the arguments of counsel.
The parties agree that Defendant is not a flight risk; consequently, there is no issue as to whether or not he will appear as required. The Court is called upon to determine whether, by clear and convincing evidence, there is any condition or combination of conditions that would reasonably assure the safety of any other person and the community if Defendant is released on bond. If not, he is to remain detained pending trial.
In a thorough and well-reasoned order, Judge Wilkerson concluded that a combination of conditions exists that will likely assure the safety of any person or the community (Doc. 20). After so concluding, Judge Wilkerson imposed electronic monitoring and permitted Defendant to go only to work, church or to doctor's appointments. All of the trips would require prior approval from the pretrial services officer assigned to this case. Defendant was forbidden to use the Internet and was required to surrender his passport. While this Court is undertaking a de novo review, and, therefore, giving no deference to Judge Wilkerson's Order, it is interesting to note that, prior Judge Wilkerson's becoming a magistrate judge, he was an Assistant United States Attorney exclusively prosecuting offenses such as that with which Defendant is charged.
At the outset, it should be noted that Defendant is charged with a crime of violence, which gives rise to a rebuttable presumption, under 18 U.S.C. § 3142(e), that "no condition or combination of conditions will reasonably assure the appearance of [Defendant] as required and the safety of any other person and the community." 18 U.S.C. § 3142(e). Additionally, he is subject to a separate rebuttable presumption under 18 U.S.C. § 3142(e)(3)(E) since the offense involves minor victims under §§ 2252(a)(2) (Counts 1 and 2) and 2252(a)(1) and (b)(1) (Count 3).
A. The Nature and Circumstances of the Offense Charged
Counts 1 and 2 charge Defendant with receipt of child pornography, as defined in 18 U.S.C. § 2256(8), in violation of 18 U.S.C. § 2252(a)(2). Each count carries a potential penalty of 5 to 20 years' imprisonment, a $250,000.00 fine, or both, and a supervised release term of 5 years to life. Count 3 charges Defendant with transportation of child pornography, as defined in 18 U.S.C. § 2256(2)(A), in violation of 18 U.S.C. § 2252(a)(1) & (b)(1), which carries a potential penalty of 5 to 20 years' imprisonment, a $250,000.00 ...