The opinion of the court was delivered by: Chief Magistrate Judge Michael R. Merz
BINDOVER ORDER; DECISION AND ORDER DENYING REQUESTED BOND MODIFICATION
This criminal case is before the Court on Defendant's oral motion for modification of his Conditions of Release Order. Specifically, he requests the Court to allow him computer access in the course of employment with properly filtered Internet access and, more importantly, to allow him work release privileges from electronic home confinement.
Defendant was arrested on his self-surrender to the United States Marshal on Wednesday, September 26, 2006. He is charged with one count of violating 18 U.S.C. §2252(a)(2) and (b)(1) by attempting "to knowingly receive visual depictions that had been mailed, shipped, and transported in interstate and foreign commerce, by any means, including by computer, to wit, four (4) magazines entitled Lolita #12, Nymph Lover #1, Lolita #17 and Incest #3, and production of such visual depictions involved the use of a minor engaging in sexually explicit conduct and such visual depictions were of such conduct. . . ."
The United States moved to detain Mr. Ballatto without bond pending trial and the case was accordingly set for preliminary examination and detention hearing on Friday, September 29, 2006. Mr. Ballatto, who himself is an attorney and a member of the bar of this Court, appeared with counsel and knowingly, intelligently, and voluntarily waived the preliminary examination. Based on the Affidavit attached to the Complaint and examination of the attachments, the Court finds there is probable cause to believe that Defendant committed the offense alleged in the Complaint and orders that he be bound over to the grand jury to answer those charges.
With respect to detention, the United States agreed to withdraw its motion if the Defendant were released on the conditions recommended by Pretrial Services. That agreement amounts to a stipulation by the United States that the combination of conditions set forth in the proposed Conditions of Release will adequately assure the appearance of the Defendant and the safety of the community pending trial. The Court accepted that agreement and ordered that Defendant be released on the recommended conditions which include, inter alia,
[s] Defendant shall not possess or use a computer or any device with access to any "on-line computer service" at any location, which includes any Internet Service provider, bulletin board system, or any other public or private network or e-mail system. Defendant shall not use or possess any device capable of creating pictures or video;
[t] [The defendant shall] Participate in a home confinement program, through electronic monitoring, under the direction of the U.S. Pretrial Services Office. Defendant shall remain on 24 hour lockdown status while on electronic home confinement, with exception of release privileges for medical counseling appointments and court proceedings, as approved by the U.S. Pretrial Services Officer.
(Order Setting Conditions of Release at 3.)
Following the hearing, in chambers with the Assistant United States Attorney and Pretrial Services Officer, Defendant's counsel moved to amend the Conditions of Release to allow Defendant work release privileges and work-related access to a computer with internet access. It was represented to the Court that, in the absence of those two concessions, Defendant would lose his present employment as an attorney. Even without any evidence, the Court credits the truth of those assertions: it is unlikely many employers of attorneys would be satisfied with their working exclusively from home and it is difficult to imagine the contemporary practice of law without access to e-mail and electronic research databases.
On July 27, 2006, the President signed the Adam Walsh Child Protection and Safety Act of 2006, P.L. 109-248 (the "Adam Walsh Act" or "Act").*fn1 Section 216 of the Act amends 18 U.S.C. §3142(c)(1)(B) to require that the Court impose electronic monitoring as a condition of release in cases involving a minor victim, such as the present one. More importantly, it adds subsection (E) to 18 U.S.C. 3142(f)(1) and thereby adds the offense with which Defendant is charged to the list of offenses carrying a presumption of detainability.
This Court's logic in past cases with respect to the presumption of detainability has been that once probable cause has been proven on such a charge, the burden of overcoming the presumption shifts to the defendant. Applying that logic here and considering all the evidence presented to the Court, Defendant would have been detainable absent the Government's agreement to the conditions imposed. While Defendant has no prior arrest history, he has lost several jobs because of inappropriate sexual conduct in the workplace. This Court found probable cause to search his workplace computer for child pornography in 2004. He self-diagnosed himself as a sexual addict in 1998 and has received various treatments for that addiction, most of which have not prevented recurrence. While his current therapist has encouraged him to strengthen the bonds with his six-year-old son and visit with the child at his mother's residence twice a week, those visits are now the subject of litigation in the Domestic Relations Court.*fn2 Thus despite acknowledging his problem, having suffered a number of serious consequences of it (e.g., job and marital loss), and having received several types of treatment, Defendant appears to continue to engage in sexually deviant behavior, in this case quite serious behavior. Thus the evidence does not overcome but rather supports the presumption of detainability. Without the Government's agreement to the conditions of release already imposed, the Defendant would face pretrial detention.
Because of the risk of recidivism pending trial, the Court believes the currently-imposed conditions appropriately balance the interests of the Defendant with the safety of the community. Accordingly, the oral motion to modify is denied.
Michael R. Merz Chief United States ...