United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge
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.
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).
FACTS AND PROCEDURAL HISTORY
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
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.
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).
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).
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.
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
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
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 ...