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United States v. Hutchins

United States District Court, E.D. Wisconsin

November 6, 2017



          J.P. Stadtmueller, U.S. District Judge

         Defendant Marcus Hutchins (“Hutchins”) is charged with crimes arising from his alleged deployment of the “Kronos” malware program. (Docket #6). Kronos stole user credentials and personal identifying information from computers on which it was installed. Id. at 2. Hutchins, a citizen of the United Kingdom, was arrested in Las Vegas on August 2, 2017. He has been under pretrial supervision since that time. Magistrate Judge William E. Duffin recently entered an order modifying the conditions of Hutchins' pretrial release, (Docket #35), and the government has sought review of that order by this Court, (Docket #36). For the reasons stated below, the government's motion will be denied.


         The Bail Reform Act, 18 U.S.C. § 3142, defines the manner in which courts impose conditions of pretrial release. The Act allows courts to impose conditions ranging from personal recognizance all the way to pretrial detention. Id. § 3142(a). The guiding principle of the Act is that courts must impose the least restrictive condition or combination of conditions necessary to reasonably assure the defendant's appearance as required and to reasonably assure the safety of any other person or the community. Id. § 3142(c).


         When he was arrested, Hutchins surrendered his passport. A friend paid his $30, 000 cash bond and he was thereafter placed on GPS monitoring. He traveled unaccompanied to Milwaukee for his arraignment on August 14, 2017. At that hearing, his conditions of release were modified to permit him to reside in Los Angeles under home detention. See (Docket #8 at 2). He was also allowed access to the internet subject to certain conditions, and he was allowed to travel within the United States. Id. The GPS monitoring condition was continued. Id.

         On August 24, 2017, the Pretrial Services Office recommended that Hutchins' release conditions be reduced from home detention to a curfew. See (Docket #18). The assigned pretrial services officer contended that not only are such reductions commonplace after a defendant has shown compliance with release conditions, in Hutchins' case his home detention, coupled with the fact that he worked from home, meant that he essentially spent all his time at home. Id. at 1. Magistrate Duffin granted the requested modification and set a curfew for Hutchins from 9:00 each night to 6:00 each morning. Id. at 2.

         The government challenged this modification to Hutchins' release conditions, (Docket #21), but Magistrate Duffin denied the government's request to return Hutchins to home detention, (Docket #23). Consistent with the general practice of pretrial supervision in this District, the magistrate found Hutchins' pretrial freedom should correlate with his compliance with release conditions. Id. at 5. Review of Magistrate Duffin's order was sought before Judge Pamela Pepper, (Docket #25), who declined to modify Magistrate Duffin's order or Hutchins' release conditions, finding that Hutchins' home confinement was essentially punitive, (Docket #28 at 2).

         On October 13, 2017, Hutchins filed a motion pursuant to Section 3142(c)(3) requesting a further reduction in his release conditions. (Docket #32); 18 U.S.C. § 3142(c)(3) (“The judicial officer may at any time amend the order to impose additional or different conditions of release.”). He requested that he be discharged from both his curfew and the GPS monitoring. (Docket #32 at 1). The Pretrial Services Offices in both Milwaukee and in Los Angeles supported Hutchins' request. See (Docket #35 at 8). Unsurprisingly, the government opposed the motion. (Docket #33). Magistrate Duffin granted Hutchins' motion in an order dated October 19, 2017. (Docket #35).

         In the order, Magistrate Duffin noted that government has never argued in this case that Hutchins is a danger to anyone; rather, its sole contention is that he is a flight risk. Id. at 3. Magistrate Duffin, reviewing Hutchins' history of compliance with release conditions in this case, found that neither the curfew nor GPS monitoring were necessary to curb his risk of flight. Id. at 6-8. The magistrate reasoned that curfew, which is most often used to control the behavior of defendants who might commit crimes at night, was not particularly relevant to Hutchins. Id. Additionally, while Hutchins is a foreign national, Magistrate Duffin was convinced that because he had surrendered his passport, used a friend's money to post his bond, was under threat of enhanced penalties if he should flee, and would continue under the supervision of two Pretrial Services Offices, there was little danger that Hutchins' risk of flight would increase if GPS monitoring was removed. Id. at 6-8. Further, the magistrate rejected the government's contention that mere compliance with release conditions is not enough to warrant modification thereof. Id. at 4. Magistrate Duffin explained that it is routine to reward a demonstrated track record of compliance with reduced or modified release conditions. Id. at 5.

         The government has again sought review of Magistrate Duffin's bond order. (Docket #36). Hutchins opposes the government's motion. (Docket #37). Unlike its first motion to revoke the magistrate's bond determination, here the government did not seek a stay of Magistrate Duffin's order pending review in this Court. Thus, the Court understands that Hutchins' GPS monitoring and curfew conditions have not been in force since October 19, 2017, the date of the magistrate's order. See (Docket #37 at 5). Nevertheless, he has not attempted to flee.

         3. ANALYSIS

         Section 3145 allows the government to seek review of an order of a magistrate judge regarding a defendant's conditions of release. 18 U.S.C. § 3145(a). The district court reviews the magistrate's order de novo. United States v. Portes, 786 F.2d 758, 761 (7th Cir. 1985). The court may hold a new hearing, but since neither party requests it, the Court will not do so in this instance. See United States v. Torres, 929 F.2d 291, 292 (7th Cir. 1991).

         At the outset, it is worth noting some slippage in the government's bond argument. The government clings to the factors set forth in Section 3142(g) to support the notion that more restrictive release conditions are necessary in this case. See (Docket #36 at 5-7). In determining whether there are any conditions of release that will satisfy this standard, Section 3142(g) directs courts to consider: (1) the nature and circumstances of the offense charged; (2) the weight of the evidence against the person; (3) the history and characteristics of the person; and ...

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