UNITED STATES v. HIGBY (2015)

ORDER

This matter comes before the court pursuant to the government's November 19, 2015 appeal from the order of Magistrate Judge ¹ Helen Adams' November 10, 2015 order releasing the defendant on pretrial release. The court has conducted a de novo review of the order to determine whether there are conditions or combination of conditions that will reasonably assure the appearance of the defendant and the safety of the community.

The defendant is sixty-one years old and has a 1994 conviction for a hands-on sexual abuse of a minor child. He has convictions in 2005 and 2007 for failure to register as a sex offender. The defendant's preferred child pornography appears to include images of sadomasochism. He lives alone and is disabled with heart problems. He has a daughter in Des Moines who is supportive.

Magistrate Judge Adams filed a lengthy and thoughtful order. After considering the facts and the law, she imposed very restrictive conditions of release. The defendant was placed on home detention with electronic monitoring. He is not permitted to possess or use a computer or cellular telephone connected to the internet. He cannot have any contact with minors nor loiter where minors are likely to be found. There are other conditions as well.

The goal here is to keep the defendant away from children and child pornography. The conditions imposed, including home confinement and electronic monitoring, provide reasonable assurance for the safety of the community.

Upon the foregoing,

IT IS ORDERED that the government's appeal from the November 10, 2015 order releasing the defendant on conditions of release is denied.

FOOTNOTES

1.   To avoid confusion with state court justices of the peace or other part time judicial officers with relatively little responsibility, Congress changed the title for Article I judicial officers from “Magistrate” to “Magistrate Judge”. It is an important distinction not recognized in the government or the defendant's brief. In fact, the government referred to “magistrate court”. There simply is no such place. They should be referred to as “Magistrate Judge”. They work in the United States District Court.

JOHN A. JARVEY, Chief Judge