FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30338
Plaintiff-Appellee, D.C. No.
v. 9:10-cr-00029-
ROBERT ERNEST PEEPLES, JR., DWM-JCL
Defendant-Appellant. District of Montana,
Missoula
ORDER
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted to Motions Panel December 5, 2010
Filed December 28, 2010
Before: Alfred T. Goodwin, Pamela Ann Rymer, and
Susan P. Graber, Circuit Judges.
COUNSEL
John Rhodes, Assistant Federal Defender, Federal Defenders
of Montana, for the defendant-appellant.
Cyndee Peterson, Assistant United States Attorney, United
States Attorneys’ Office, for the plaintiff-appellee.
20669
20670 UNITED STATES v. PEEPLES
ORDER
PER CURIAM:
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 Protec-
tion 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.
I.
On July 23, 2010, the government indicted Peeples on a
charge of knowing receipt of child pornography. The indict-
ment alleges that, between December 2007 and February
2010, Peeples knowingly received child pornography by using
the internet while located in Missoula, Montana. The govern-
ment alleges that approximately 5,000 potential child pornog-
raphy 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 condi-
tions, 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 magis-
trate 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).1 Peeples timely
appeals.
1
“Defendant seeks review, pursuant to 18 U.S.C. § 3145, of Magistrate
Judge Lynch’s October 19, 2010 Order. That Order denied Defendant’s
motion challenging the constitutionality of his conditions of release
imposed pursuant to the Adam Walsh Act. Judge Lynch denied the motion
UNITED STATES v. PEEPLES 20671
II.
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 pre-
scribed minimum set of release conditions.2 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 trav-
el”; (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 agen-
cy”; (5) “comply with a specified curfew”; and (6) “refrain
from possessing a firearm, destructive device, or other dan-
gerous 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.
based on this Court’s decision in United States v. Cossey, 637 F. Supp. 2d
881 (D. Mont. 2009), and the reasoning found in United States v. Ken-
nedy, 327 Fed. Appx. 706 (9th Cir. 2009) (unpublished).
The Court has previously denied a similar challenge to the constitution-
ality of the Adam Walsh Act. See Cossey, [637] F. Supp. 2d at 892.
Defendant has failed to distinguish his challenge from the Court’s prior
ruling in Cossey. Nor has he offered any reason for the Court to revisit the
issue.
Accordingly, IT IS HEREBY ORDERED that Defendant’s Appeal
from United States Magistrate Judge’s Order Denying Modification of
Conditions of Release (dkt #37) is DENIED.” United States v. Peeples,
No. CR 10-29 (D. Mont. Nov. 18, 2010).
2
Among the specified crimes is knowing receipt of child pornography,
18 U.S.C. § 2252A(a)(2), the crime for which Peeples has been indicted.
20672 UNITED STATES v. PEEPLES
III.
Peeples argues that, both facially and as applied, the man-
datory release provisions of the Walsh Act violate his consti-
tutional 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 suc-
cessfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid.”
United States v. Salerno, 481 U.S. 739, 745 (1987).
Peeples’s facial challenge to the Walsh Act fails because he
cannot establish that a curfew or electronic monitoring would
be inappropriate for all defendants charged with knowingly
receiving child pornography. See United States v. Stephens,
594 F.3d 1033, 1038 (8th Cir. 2010) (“One can imagine many
defendants for whom curfew and electronic monitoring would
be necessary to assure their presence at trial or ensure the
safety of the community.”); see also Cossey, 637 F. Supp. 2d
at 891 (“[T]here are circumstances under which the AWA
amendments may be applied constitutionally.”); United States
v. Gardner, 523 F. Supp. 2d 1025, 1030 n.3 (N.D. Cal. 2007)
(rejecting facial challenge to the Walsh Act).
IV.
Peeples’s principal argument is that the Walsh Act’s man-
datory release conditions are unconstitutional as applied to
him. In raising numerous alleged constitutional infirmities
with the Walsh Act, Peeples ignores a well-established princi-
ple of statutory construction. “A statute, of course, is to be
construed, if such a construction is fairly possible, to avoid
raising doubts of its constitutionality.” St. Martin Evangelical
Lutheran Church v. South Dakota, 451 U.S. 772, 780 (1981);
see also Jones v. United States, 526 U.S. 227, 239 (1999)
(“[W]here a statute is susceptible of two constructions, by one
of which grave and doubtful constitutional questions arise and
UNITED STATES v. PEEPLES 20673
by the other of which such questions are avoided, [a court’s
duty] is to adopt the latter.”).
The Walsh Act’s mandatory release conditions require the
district court to exercise its discretion, to the extent practica-
ble, in applying the mandatory release conditions. Peeples’s
argument that his constitutional rights have been violated
because he has not been afforded an individualized determina-
tion of his release conditions cannot stand in light of the dis-
trict court’s duty to exercise its discretion in imposing the
mandated release conditions. See Stephens, 594 F.3d at 1039
(“[The Walsh Act] does not deprive child pornography defen-
dants of a detention hearing or an individualized determina-
tion whether detention or release is appropriate.”). The Walsh
Act does not mandate that the court require electronic moni-
toring in specific locations or during specific time periods.
See id. (“[T]he only effect of [the Walsh Act] is to require a
curfew and some electronic monitoring. The defendant
remains entitled to a detention hearing and a large number of
individualized determinations — including an individualized
determination as to the extent of any mandatory conditions of
release.”); Cossey, 637 F. Supp. 2d at 890 (holding the Walsh
Act release conditions constitutional because the magistrate
judge’s release conditions were crafted to address the defen-
dant’s individual needs, including job-related needs).
Similarly, Peeples’s release conditions were set by the
magistrate judge after an individualized determination of Pee-
ples’s circumstances. The court took significant steps to
ensure that the monitoring and curfew conditions did not
interfere with Peeples’s work- and school-related needs. Pee-
ples’s curfew permits him to return home at a later time on
Saturdays and Sundays so as not to interfere with his job at
a local convenience store. The magistrate judge also repeat-
edly advised Peeples that, if needed, further modification of
his release conditions could be considered and made.
Because the Walsh Act requires the district court to exer-
cise its discretion in applying the mandatory release condi-
20674 UNITED STATES v. PEEPLES
tions to each individual’s circumstances, and in view of the
established principle that a statute should be read to avoid
serious constitutional issues, Peeples’s constitutional chal-
lenge to the Walsh Act does not succeed.
V.
For the reasons discussed above, Peeples’s constitutional
challenge to the Walsh Act, both facial and as-applied, fails.
Accordingly, the district court order is affirmed.
AFFIRMED.