The opinion of the court was delivered by: Sue E. Myerscough, United States District Judge.
E-FILED Thursday, 02 August, 2012 12:38:01 PM Clerk, U.S. District Court, ILCD
This cause is before the Court on Defendant Russell Shuetz's Motion for Revocation of Detention Order (d/e 11) (Motion), which United States Magistrate Judge Byron G. Cudmore has construed as a notice of appeal from the order of detention issued on July 18, 2012, and referred to this Court for ruling. The Court has reviewed the electronic recordings of the July 11, 2012 detention hearing and the July 13, 2012 hearing on Defendant's Motion for Emergency Relief (d/e 5) before Judge Cudmore, the order of detention, and all of the Parties' briefing on the relevant issue. After consideration of the foregoing and for the reasons set forth below, Defendant's Motion is DENIED. This Court orders that Defendant remain held without bond.
On July 10, 2012, a Complaint was filed against Defendant along with an Affidavit in Support of Criminal Complaint. See d/e 1. The Complaint charges Defendant with violating 18 U.S.C. § 1470 by using interstate or foreign commerce to knowingly transfer obscene matter to an individual under the age of 16 years, knowing that the individual has not attained the age of 16 years.
The Affidavit in Support of Criminal Complaint alleges that on January 10, 2012, and April 13, 2012, Defendant engaged in sexually explicit chats via Yahoo's instant messaging system. During these chats, Defendant sent videos of himself masturbating to a person he believed to be a 14-year old girl. In both cases, the recipient was an undercover law enforcement officer who was holding himself out as a 14-year old girl.
The Affidavit in Support of Criminal Complaint also indicates Defendant admitted he had engaged in sexually explicit chats with, and transmitted images of himself masturbating to, several individuals he believed were under 16 years old. Defendant acknowledged engaging in this activity for at least 10 years, and as recently as July 9, 2012. Finally, Defendant stated to law enforcement that they would find child pornography on his laptop computer that he had received via Yahoo Messenger.
At Defendant's July 10, 2012, initial appearance, the Government moved for detention and moved for a brief continuance. The detention hearing was held on July 2012. Judge Cudmore ordered Defendant detained based upon a finding of dangerousness pursuant to the Bail Reform Act, Title 18 U.S.C. § 3142(f)(1)(E).
On July 13, 2012, Defendant filed a Motion for Emergency Relief (d/e 5), in which he argued that the relevant language of the Bail Reform Act does not authorize detention in this case because the relevant provision only authorizes the Government to move for detention if the crime charged "involves a minor victim." See 18 U.S.C. § 3142(f)(1)(E). Defendant argued that there was no "minor victim" because Defendant sent pictures of himself to law enforcement officers pretending to be minors. Judge Cudmore held a hearing on the Motion for Emergency Relief that same day at which he heard the Parties' arguments and took the motion under advisement.
On July 18, 2012, Defendant filed the instant Motion. As stated, Judge Cudmore construed the Motion as a notice of appeal of his detention order and referred the appeal to this Court for ruling. The Motion is fully briefed and ready for ruling.
Once a defendant has been ordered detained by a magistrate judge, 18 U.S.C. § 3145 permits the defendant to file a motion seeking revocation or amendment of the detention order. See 18 U.S.C. § 3145. "This [C]court considers the issue of detention de novo." United States v. Francis, 2001 WL 899635, at *1 (S.D. Ind. 2001) (citations omitted). The district court "must make an independent determination of the proper pretrial detention or conditions for release." United States v. Troup, 2012 WL 1301244, at *1 (N.D. Ind. 2012).
In 2006, Congress enacted the Adam Walsh Child Protection and Safety Act (Adam Walsh Act) (Pub.L. No. 109-248, Title II, § 216, 109 Stat. 587 (July 27, 2006)). The Adam Walsh Act added the phrase "involves a minor victim" to several subsections of § 3142 of the Bail Reform Act (18 U.S.C. § 3142). See 18 U.S.C. §§ 3142(c)(1)(B) (requiring electronic monitoring as a minimum condition of pretrial release "[i]n any case that involves a minor victim" and involves an enumerated offense); 18 U.S. § 3142(f)(1)(E) (allowing the Government to seek the detention of a defendant in a case that involves "any felony that is not otherwise a crime of violence that involves a minor victim");
18 U.S.C. § 3142(g)(1) (in determining whether there are conditions of release that assure the appearance of the defendant and the safety of the community, the court shall take into account "the nature and circumstances of the offense charged, including whether the offense . . . involves a minor victim"). While not amended by the Adam Walsh Act, § 3142(e)(3) provides a statutory presumption in favor of detention if there is probable cause to ...