The opinion of the court was delivered by: Byron G. Cudmore United States Magistrate Judge
3:12-mj-03046-BGC # 9 Page 1 of 10 E-FILED
Wednesday, 18 July, 2012 09:46:12 AM Clerk, U.S. District Court, ILCD
OPINION BEFORE U.S. MAGISTRATE JUDGE BYRON CUDMORE:
Before the Court is Defendant's Motion for Emergency Relief (d/e 5) filed Friday, July 13, 2012. The Defendant, Russell Schuetz, is represented by Court-appointed counsel Daniel Hillis, Assistant Federal Public Defender. A hearing on Defendant's motion was held at 4:15 p.m. on Friday, July 13, 2012. The Defendant and Attorney Hillis were personally present. The Government appeared through Assistant United States Attorney Tim Bass. At the conclusion of the hearing the Court took the matter under advisement to draft the instant opinion.
On July 10, 2012, a Complaint and Affidavit and Arrest Warrant (d/e 1) (Criminal Complaint) were issued for Defendant Schuetz. The Defendant is charged with violation of Title 18 U.S.C. §1470, using interstate commerce to knowingly transfer obscene materials to an individual under the age of 16 years knowing that the individual had not attained the age of 16 years, or attempts to do so. The affidavit in support of the Criminal Complaint shows that Defendant admitted that for the past ten years he has engaged in sexually explicit chats with boys and girls under the age of sixteen and has, during this time period, transmitted webcam video images of himself masturbating to the children along with the sexually explicit online chats. He also admitted to law enforcement officers that he has saved on his personal computer video of children masturbating that he has received over the Internet. Criminal Complaint, attached Affidavit in Support of Criminal Complaint.
The Criminal Complaint further establishes that on January 10, 2012, and on April 13, 2012, Defendant engaged in sexually explicit chats and sent video of himself masturbating to a person that the Defendant believed to be a 14 year old girl. The recipient in each case, however, was an undercover law enforcement officer who was holding himself out to be a 14 year old girl.
At the Defendant's initial appearance on July 10, 2012, the Government moved for detention and asked for a brief continuance of the detention hearing. At no time on July 10, 2012, did the Defendant object to the Government's ability to seek detention. All parties, including the Court, presumed that detention could be sought based upon the offense charged.
On July 11, 2012, a detention hearing was held. The Defendant was ordered detained based upon a finding of dangerousness pursuant to the Bail Reform Act, Title 18 U.S.C. § 3142(f)(1)(E).
Consistent with the Court's comments in open court on July 13, 2012, the Court is viewing the Defendant's Motion for Emergency Relief (d/e 5) as a motion to reconsider. The Court appreciates the opportunity to revisit and rethink the issue raised in the instant motion for emergency relief. It is clear the Defendant's posture here is not an appeal on the issue of detention to the District Court under 18 U.S.C. § 3145, nor is the Defendant asking the Court to reopen the issue of detention under 18 U.S.C. § 3142(f).
The undersigned has been a United States Magistrate Judge for 15 years and before that for many years was a prosecutor and defense attorney. This procedural issue challenging the ability of the Court to allow a detention hearing raised after detention has been ordered is an issue of first impression for the undersigned. Preliminarily the Court addresses the issue of whether or not the Defendant has waived the instant challenge. There was no objection raised on July 10, 2012, when the Government moved for detention. There was no objection raised when the detention hearing was held in full on July 11, 2012. The issue raised in the motion for emergency relief clearly was ripe and could have, and should have, been raised on both of those dates. Motions for reconsideration may not be used to raise arguments that should have been raised in the first instance. See Emergency Services Billing corp., Inc., v. Allstate Ins. Co., 2010 WL 1948239, at *1 (N.D. Ind. 2010); In re Rimsat, Ltd., 230 B.R. 362, 366 (N.D. Ind. 1999). Therefore, the Court denies Defendant's motion because the Defendant has waived this argument. The Court, however, realizes that detention orders are subject to de novo review on appeal to the District Court. 18 U.S.C. § 3145; see e.g., United States v. Goba, 240 F.Supp.2d 242, 245 (W.D.N.Y. 2003). The Court, therefore, will address the substantive argument since that issue may be raised on appeal.
Substantively, the Court finds that the Government may seek detention in this case. The Defendant argues that the Bail Reform Act does not authorize detention in this case because the relevant provision only authorizes the Government to move for detention if crime charged "involves a minor victim." Section 3142(f)(1)(E) of the Bail Reform Act states, in part, (f) Detention hearing--The judicial officer shall hold a hearing to determine whether ...