Appeal from the United States District Court for the District of Montana Missoula DC. No.9:10-cr-00029-DWM-JCL Donald W. Molloy, District Judge, Presiding
Submitted to Motions Panel December 5, 2010
Before: Alfred T. Goodwin, Pamela Ann Rymer, and Susan P. Graber, Circuit Judges.
Defendant Robert Peeples ("Peeples") appeals the district court's denial of his constitutional challenge to his conditions of release imposed pursuant to the Adam Walsh Child Protection and Safety Act of 2006 ("Walsh Act"), 18 U.S.C. § 3142(c)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm the district court's order.
On July 23, 2010, the government indicted Peeples on a charge of knowing receipt of child pornography. The indictment alleges that, between December 2007 and February 2010, Peeples knowingly received child pornography by using the internet while located in Missoula, Montana. The government alleges that approximately 5,000 potential child pornography files were located on the computer seized from Peeples's residence.
At the arraignment on August 26, 2010, the magistrate judge granted Peeples's release pending trial subject to conditions, including conditions mandated by the Walsh Act, most notably a curfew and electronic monitoring. On September 17, 2010, Peeples filed a motion to declare the Walsh Act's mandatory conditions of release unconstitutional. The magistrate judge, after briefing and a hearing, denied Peeples's motion, and the district court denied his appeal on November 18, 2010, consistent with its decision in United States v. Cossey, 637 F. Supp. 2d 881 (D. Mont. 2009).*fn1 Peeples timely appeals.
Passed by Congress in 2006, the Walsh Act amended the Bail Reform Act of 1984, 18 U.S.C. § 3142, to require that a defendant charged with certain listed crimes involving a minor victim, if released before trial, be placed on a prescribed minimum set of release conditions.*fn2 As amended, the Bail Reform Act now requires that such a defendant (1) be placed on electronic monitoring; (2) "abide by specified restrictions on personal associations, place of abode, or travel"; (3) "avoid all contact with an alleged victim of the crime and with a potential witness who may testify concerning the offense"; (4) "report on a regular basis to a designated law enforcement agency, pretrial services agency, or other agency"; (5) "comply with a specified curfew"; and (6) "refrain from possessing a firearm, destructive device, or other dangerous weapon." 18 U.S.C. § 3142(c)(1).
Peeples challenges the mandatory release provisions of the Walsh Act as violations of (1) the Excessive Bail Clause of the Eighth Amendment; (2) the Due Process Clause of the Fifth Amendment, including the presumption of innocence; and (3) the separation of powers doctrine.
Peeples argues that, both facially and as applied, the mandatory release provisions of the Walsh Act violate his constitutional rights. A defendant raising a facial challenge to legislation must sustain a heavy burden to have legislation declared unconstitutional. "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of ...