                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 09-3706
                                    ___________

United States of America,               *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
David Stephens,                         *
                                        *
             Appellee.                  *
                                    __________

                              Submitted: February 11, 2010
                                 Filed: February 17, 2010
                                  ___________

Before RILEY, SMITH, and SHEPHERD, Circuit Judges.
                             ___________

RILEY, Circuit Judge.

       After a grand jury returned an indictment alleging David Stephens received and
transported child pornography, the government asked the district court to impose a
curfew and electronic monitoring as conditions of Stephens’ pretrial release. A curfew
and electronic monitoring are required under § 216 of the Adam Walsh Child
Protection and Safety Act of 2006, Pub. L. 109-248, 120 Stat. 587 (2006) (Adam
Walsh Act) (codified at 18 U.S.C. § 3142(c)(1)(B)). The district court declined to
impose a curfew and electronic monitoring because, in its view, such mandatory
release conditions are facially unconstitutional. The government filed an interlocutory
appeal. See 18 U.S.C. §§ 3145(c) and 3731. We reverse and remand for further
proceedings.
I.     BACKGROUND
       On September 17, 2009, a grand jury returned a seven-count indictment against
Stephens. Only Counts 1 through 4 are relevant to this interlocutory appeal. Counts
1 and 3 charge Stephens with receiving child pornography, in violation of 18 U.S.C.
§ 2252A(a)(2)(A). Counts 2 and 4 charge Stephens with transporting child
pornography, in violation of 18 U.S.C. § 2252A(a)(1). The circumstances and alleged
facts giving rise to the indictment are not presented in this appeal.

      On October 2, 2009, Stephens appeared before a magistrate judge for his initial
appearance and arraignment. After Stephens pled not guilty, the government
requested the magistrate judge detain Stephens pending trial. The government did not,
however, present the magistrate judge with any evidence in support of its request for
detention. In lieu of presenting evidence Stephens was a flight risk or a danger to the
community, the government relied on the rebuttable presumption for the detention of
accused child pornographers. See 18 U.S.C. § 3142(e)(3)(E).

       We assume the magistrate judge applied the rebuttable presumption, but the
magistrate judge found Stephens was not a flight risk or a danger to the community.
The basis for the magistrate judge’s findings is unclear because it does not appear
Stephens presented any evidence to rebut the presumption. The magistrate judge
released Stephens subject to certain conditions but did not order a curfew or electronic
monitoring.1


      1
       Among other things, the magistrate judge ordered Stephens to (1) remain
within a hundred miles of his residence; (2) refrain from possessing controlled
substances, firearms, ammunition, destructive devices, and other dangerous weapons;
(3) avoid criminals, pornography, and erotica; (4) maintain weekly contact with his
attorney; and (5) consent to unannounced searches and monitoring of his computer
and other electronic devices. Stephens does not object to these other conditions of
release even though, for example, the Adam Walsh Act imposes mandatory

                                          -2-
       On October 14, 2009, the government filed a motion to amend Stephens’
conditions of release to include a curfew and electronic monitoring. See 18 U.S.C.
§ 3145(a)(1) (permitting the government to file a motion to amend a defendant’s
conditions of release). The government pointed out the Adam Walsh Act required the
court to impose a curfew and electronic monitoring as conditions of Stephens’ release.
See Adam Walsh Act § 216 (codified at 18 U.S.C. § 3142(c)(1)(B)) (mandating,
among other things, “a specified curfew” and “electronic monitoring” for persons
released pending trial on charges of transporting or receiving child pornography in
violation of 18 U.S.C. § 2252A(a)).

      Stephens resisted the government’s motion to amend, arguing the Adam Walsh
Act’s mandatory release conditions violate the Fifth Amendment’s Due Process
Clause and the Eighth Amendment’s Excessive Bail Clause. Stephens maintained the
mandatory release conditions violated accused child pornographers’ rights to
procedural due process insofar as they “are not afforded any individualized judicial
consideration of the interests otherwise required to be considered under” the Bail
Reform Act, i.e., risk of flight and danger to the community. Stephens opined the
mandatory release conditions were excessive because they were “more harsh than
necessary.”

      On October 27, 2009, the magistrate judge denied the government’s motion to
amend for the reasons expressed in Stephens’ resistance. On October 30, 2009, the
government appealed the magistrate judge’s order to the district judge. See 18 U.S.C.
§ 3145(a)(1) (permitting the government to file “a motion for revocation of [an] order



restrictions on personal associations and travel and a mandatory ban on possession of
firearms. See Adam Walsh Act § 216 (codified at 18 U.S.C. § 3142(c)(1)(B))
(requiring certain categories of accused child pornographers to “abide by specified
restrictions on personal associations, place of abode or travel” and “refrain from
possessing a firearm, destructive device, or other dangerous weapon”).

                                         -3-
[of release] or amendment of the conditions of release” with “the court having original
jurisdiction over the offense”); N.D. Iowa Local Cr. R. 5(a).

       On November 17, 2009, the district judge affirmed the magistrate judge’s
decision in part. The district judge held the mandatory release conditions of the Adam
Walsh Act, specifically, the curfew and electronic monitoring conditions, facially
violate the Fifth Amendment’s Due Process Clause. The district judge reasoned § 216
of the Adam Walsh Act is “unconstitutional on [its] face because the absence of
procedural protections is universal: no defendant is afforded the opportunity to present
particularized evidence to rebut the presumed need to restrict his freedom of
movement.” In other words, the district judge held § 216 is facially unconstitutional
because the judge presiding over an accused child pornographer’s detention hearing
is required to impose a curfew and electronic monitoring without an individualized
judicial determination that the accused poses a flight risk or a danger to the
community. The district judge declined to rule on Stephens’ Eighth Amendment
argument.2

       On November 18, 2009, the government filed a timely interlocutory appeal of
the district court’s decision. We retain jurisdiction under 18 U.S.C. §§ 3145(c) and
3731. Consistent with the Bail Reform Act’s admonition to resolve appeals of
detention orders “promptly,” 18 U.S.C. § 3145(c), we expedited briefing and oral
argument.

      2
        Neither the magistrate judge nor the district judge attempted in their opinions
to harmonize the language of the Adam Walsh Act with their shared view of the
Constitution’s limitations on the government. Cf. St. Martin Evangelical Lutheran
Church v. South Dakota, 451 U.S. 772, 780 (1981) (“A statute, of course, is to be
construed, if such a construction is fairly possible, to avoid raising doubts of its
constitutionality.”); United States v. Kennedy, 327 F. App’x 706, 707 (9th Cir. 2009)
(unpublished mem.) (avoiding an as-applied constitutional challenge by “constru[ing
§ 216 of the Adam] Walsh Act to require the district court to exercise its discretion,
to the extent practicable, in applying the mandatory release conditions”).

                                          -4-
II.   DISCUSSION
      A.     Standard of Review
      “‘We review a challenge to the constitutionality of a federal statute de novo.’”
United States v. Hacker, 565 F.3d 522, 524 (8th Cir. 2009) (quoting United States v.
Betcher, 534 F.3d 820, 823 (8th Cir. 2008)).

      B.      Analysis
              1.    Facial vs. As-Applied Challenges
       At the outset, it is important to understand what the parties are asking us to do:
issue a broad pronouncement on the constitutionality of § 216 of the Adam Walsh Act.
The district court concluded § 216 is facially unconstitutional and did not purport to
resolve an as-applied challenge. There is no discussion of the particular facts and
circumstances surrounding Stephens’ case in the district court’s order or the parties’
briefs on appeal. The issue before us is framed in purely legal form and is devoid of
any factual context.

      The Supreme Court takes a dim view of facial challenges to Congressional
enactments.

      Although passing on the validity of a law wholesale may be efficient in
      the abstract, any gain is often offset by losing the lessons taught by the
      particular, to which common law method normally looks. Facial
      adjudication carries too much promise of “premature interpretatio[n] of
      statutes” on the basis of factually barebones records.

                                         ***

      Facial challenges . . . are . . . to be discouraged. Not only do they invite
      judgments on fact-poor records, but they entail a further departure from
      the norms of adjudication in federal courts: overbreadth challenges call
      for relaxing familiar requirements of standing, to allow a determination
      that the law would be unconstitutionally applied to different parties and
      different circumstances from those at hand.

                                          -5-
Sabri v. United States, 541 U.S. 600, 608-09 (2004).

       The Supreme Court’s disdain for facial challenges is “an expression of judicial
self-restraint apart from the ‘case-or-controversy’ requirement . . .[,] which is the basis
of much standing doctrine.” United States v. Lemons, 697 F.2d 832, 835 (8th Cir.
1983) (citing Eisenstadt v. Baird, 405 U.S. 438, 443-44 (1972)). “[F]acial challenges
threaten to short circuit the democratic process by preventing laws embodying the will
of the people from being implemented in a manner consistent with the Constitution.”
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451 (2008).
Facial challenges “are best when infrequent” and “are especially to be discouraged”
when application of the challenged statute to the case at hand would be constitutional
when the facts are eventually developed. Sabri, 541 U.S. at 608, 609.

       Not surprisingly, then, “[a] facial challenge to a legislative Act is . . . the most
difficult challenge to mount successfully.” United States v. Salerno, 481 U.S. 739,
745 (1987). In Salerno, the Supreme Court “dispose[d] briefly” of a facial challenge
to the Bail Reform Act under the Fifth Amendment’s Due Process Clause. Id. at 751.
In holding the Bail Reform Act did not deprive defendants of substantive due process,
the Supreme Court held a party mounting a facial challenge “must establish that no
set of circumstances exists under which the Act would be valid. The fact that the Bail
Reform Act might operate unconstitutionally under some conceivable set of
circumstances is insufficient to render it wholly invalid.” Id. at 745. Further, “[t]o
sustain [the Bail Reform Act’s provisions, a court] need only find them ‘adequate to
authorize the pretrial detention of at least some persons charged with crimes,’ whether
or not they might be insufficient in some particular circumstances. Id. at 751 (quoting
Schall v. Martin, 467 U.S. 253, 264 (1984)). See also Sherbrooke Turf, Inc. v. Minn.
Dep’t of Transp., 345 F.3d 964, 971 (8th Cir. 2003) (applying Salerno to determine
facial validity of a legislative act).



                                           -6-
              2.     Stephens’ Facial Challenge Fails
       Stephens’ facial challenge to § 216 fails because Stephens cannot establish
there are no child pornography defendants for whom a curfew or electronic
monitoring is appropriate. See Salerno, 481 U.S. at 751. 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. An irrebuttable
presumption of curfew and electronic monitoring would be appropriate in any case in
which a judicial officer conducting a detention hearing would, in fact, find curfew and
electronic monitoring to be warranted. See United States v. Gardner, 523 F. Supp. 2d
1025, 1030 n.3 (N.D. Cal. 2007) (rejecting a similar facial attack because “[t]here are
circumstances where [the Adam Walsh] Act can be applied constitutionally—e.g.,
where a court determines all the minimum conditions mandated by the Adam Walsh
Act are in fact warranted”). District courts across this country have found curfew and
electronic monitoring to be appropriate in particular child pornography trafficking
cases in order to stem the risk of flight and ensure community safety. See, e.g., United
States v. Crites, No. 8:09CR262, 2009 WL 2982782, at *2 (D. Neb. Sept. 11, 2009).
Such cases demonstrate sets of circumstances exist when the mandates of § 216 of the
Adam Walsh Act are constitutionally valid.3

       Notwithstanding his inability to clear Salerno’s high hurdle for facial
challenges, Stephens insists § 216 must offend the Fifth or Eighth Amendment
because all defendants are presumed innocent, yet, under § 216, “defendants are not
afforded any individualized judicial consideration” in deciding whether a curfew or
electronic monitoring is appropriate, and a curfew or electronic monitoring will often
be “more harsh than necessary.” Stephens argues that, in Salerno, the Supreme Court
praised the procedural protections in the Bail Reform Act, including the right to a

      3
       In Stephens’ brief filed in the district court, Stephens acknowledged, “There
are instances where the pretrial conditions discussed [a curfew and electronic
monitoring] may be appropriate.” This recognition defeats the constitutional facial
challenge to § 216. See Salerno, 481 U.S. at 751.

                                          -7-
hearing and the right to present evidence. Stephens essentially complains the Adam
Walsh Act strips judges of the discretion to decide whether a curfew and electronic
monitoring are appropriate and impermissibly imposes a one-size-fits-all
straightjacket restricting the liberty of accused child pornographers.

      We believe Stephens misreads Salerno, overestimates the impact of § 216 on
the Bail Reform Act, and underestimates the breadth of Congressional power in
fashioning bail procedures.

        Stephens reads Salerno too broadly based upon an apparent misunderstanding
of its rationale. In Salerno, the Supreme Court entertained a substantive due process
challenge to the procedures of the Bail Reform Act. See Salerno, 481 U.S. at 741,
751-52. In concluding the Bail Reform Act did not run afoul of the Fifth Amendment,
the Supreme Court lauded the Bail Reform Act’s procedures—including a hearing and
an individualized determination regarding whether the pretrial defendant was a flight
risk or danger to the community. See id. at 751-52. Nowhere in Salerno, however,
did the Supreme Court hold that, as a matter of procedural due process, mandatory
conditions of release are always facially unconstitutional.

       Stephens overestimates the impact of § 216 of the Adam Walsh Act upon the
Bail Reform Act. Section 216 does not deprive child pornography defendants of a
detention hearing or an individualized determination whether detention or release is
appropriate. As relevant here, the only effect of § 216 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. In United
States v. Kennedy, 327 F. App’x 706, 707 (9th Cir. 2009) (unpublished mem.), the
Ninth Circuit Court of Appeals made the following observation about § 216:




                                         -8-
      Many of the terms of the Walsh Act are undefined. For example, a
      “condition of electronic monitoring” shall be imposed, but the statute
      does not require or define that condition to be continuous or limited to
      a particular locality. 18 U.S.C. § 3142(c)(1)(B). . . . A “curfew” must be
      specified, but the statute also does not define it as a certain time of day
      or night or number of hours per day. 18 U.S.C. § 3142(c)(1)(B)(vii).

Because “curfew” and “electronic monitoring” remain undefined, the district court
possesses many tools in its discretionary toolkit.

        Finally, Stephens underestimates the breadth of Congressional power in
fashioning bail procedures. Salerno, in upholding the Bail Reform Act, afforded
Congress great leeway when constructing a legal framework for deciding whether to
detain and how to release those charged with federal crimes. And the Eighth
Amendment provides an even thinner reed upon which Stephens might base a facial
challenge. The Supreme Court has stressed the Excessive Bail Clause does “not
prevent[] Congress from defining the classes of cases in which bail shall be allowed.”
Carlson v. Landon, 342 U.S. 524, 545 (1952). Congress may ban bail in entire classes
of cases, because the Eighth Amendment “fails to say all arrests must be bailable.”
Id. at 546 (recognizing Congress’s power to deny bail to all persons accused of capital
crimes). We see nothing in the Supreme Court’s relevant precedents to indicate the
Adam Walsh Act’s much less restrictive mandatory release conditions are facially
unconstitutional. Cf. Hunt v. Roth, 648 F.2d 1148, 1161 (8th Cir. 1981) (opining in
noncapital cases “Congress and the states may reasonably legislate as to the right to
bail for certain offenses ‘provided the power is exercised rationally, reasonably, and
without discrimination’” (quoting United States ex rel. Covington v. Coparo, 297 F.
Supp. 203, 206 (S.D.N.Y. 1969)), vacated as moot sub nom. Murphy v. Hunt, 455
U.S. 478 (1982) (per curiam).




                                         -9-
         3.    Potential As-Applied Challenge
         We express no view as to any as-applied challenge Stephens might assert on
remand. Cf. Citizens United v. Fed. Election Comm’n, No. 08-205, 2010 WL 183856,
at *14 (U.S. Jan. 21, 2010) (characterizing the distinction between as-applied and
facial challenges as “both instructive and necessary” insofar as it “goes to the breadth
of the remedy employed by the Court”). We know very little about Stephens—apart
from the fact a grand jury found probable cause to believe he trafficked in child
pornography—and decline to speculate as to whether a curfew and electronic
monitoring are unconstitutional as applied to him. Cf. Wash. State Grange, 552 U.S.
at 457 (internal citation omitted) (“Our conclusion that these implementations . . .
would be consistent with [the Constitution] is fatal to respondent’s facial challenge.
. . . In the absence of evidence, we cannot assume that Washington’s voters will be
misled. That factual determination must await an as-applied challenge.”). The record
before us is the quintessential “fact-poor record” about which the Supreme Court
spoke in Sabri.




                                         -10-
III.  CONCLUSION
      We reverse and remand for further proceedings.4 The mandate shall issue
forthwith.




       4
       To avoid an as-applied constitutional challenge, the Ninth Circuit in Kennedy
“construe[d] the Walsh Act to require the district court to exercise its discretion, to the
extent practicable, in applying the mandatory release conditions.” Kennedy, 327 F.
App’x at 707. The Ninth Circuit remanded with the following advice:

       On remand, the district court shall modify release conditions to include
       those mandated by the Walsh Act. Two of those six mandatory
       conditions are absolute by their own terms—defendant shall have no
       contact with the alleged victim and potential witnesses and shall refrain
       from possessing a firearm, destructive device, or other dangerous
       weapon. 18 U.S.C. § 3142(c)(1)(B)(v), (viii). The district court,
       however, shall exercise its discretion in setting the other four conditions
       required by the Walsh Act: (1) define a condition of electronic
       monitoring; (2) specify restrictions on personal associations, place of
       abode, or travel; (3) set a reporting requirement; and (4) specify a
       curfew. 18 U.S.C. § 3142(c)(1)(B), (iv),(vi), (vii). The district court shall
       consider all relevant factors, including defendant’s job-related needs, to
       determine the time of day or number of hours in specifying a curfew, or
       whether the curfew must be connected to a particular address. The
       district court shall also fashion an appropriate condition of electronic
       monitoring that would enable defendant to continue his employment. For
       example, the district court might find it appropriate to set a procedure by
       which defendant may travel by air for work, with prior notice and
       approval; and perhaps monitoring and a curfew at the destination city.

Id. at 707-08. Although this advice seems sound, we leave future proceedings under
§ 216 of the Adam Walsh Act to develop these application procedures.


                                           -11-
SMITH, Circuit Judge, concurring.

        I concur in the conclusion that David Stephens failed to establish that the Adam
Walsh Child Protection and Safety Act of 2006’s imposition of curfew and electronic
monitoring is facially unconstitutional. However, I write separately because I arrive
at that destination by a different route. Before the district court, Stephens successfully
challenged the constitutionality of 18 U.S.C. § 3142(c) as violative of his procedural
due process rights on its face. The district court concluded the Act impermissibly
“imposes curfew and electronic monitoring as conditions of release without affording
the defendant a fair opportunity to contest the necessity for such restrictions to the
defendant’s liberty.” While I agree that the Act imposes those restrictions, I do not
believe that Stephens was deprived of any right under the Due Process Clause to
contest their necessity.

       In its order setting conditions of release, the district court granted Stephens
pretrial release with conditions generally tailored to secure his presence at subsequent
proceedings and to protect the public. The court imposed four standard conditions of
release, seven general conditions, and three special conditions. These conditions
include provisions restricting the defendant’s activities, travel, associations, and
firearm possession or proximity, and compelling contact with his probation officer.
The conditions substantially restrict otherwise constitutionally protected conduct. The
court imposed these conditions after a detention hearing in which the court concluded
that the defendant did not need to be incarcerated before his trial on the charges. The
mandatory minimum conditions imposed by § 3142(c) are not different in kind or
degree from the conditions considered and imposed by a district court in every similar
case. In fact, the very conditions challenged here (curfew and electronic monitoring)
are included on the forms for special conditions of release. Every defendant afforded
a detention hearing is made aware of the potential of these restrictions and may
contest them. In fact, Stephens successfully avoided imposition of these restrictions
through that very hearing process. Stephens’s detention hearing was conducted at a

                                          -12-
meaningful time and in a meaningful manner consistent with due process. Mathews
v. Eldridge, 424 U.S. 319, 333 (1976).

       Congress, however, has mandated that curfew and electronic monitoring are
minimal conditions to be imposed on defendants accused of certain crimes involving
children. The balancing factors described in Mathews do not compel a conclusion that
§ 3142(c) violates due process on its face.5 Unquestionably, curfew and electronic
monitoring affect a liberty interest of the accused but potentially no more and no
differently than restrictions already imposed by the standard and general conditions
of release. Before the government requested the Walsh Act conditions, Stephens was
already under a condition which provided “[t]he defendant must not, without the prior
consent of his/her probation officer, travel farther than a hundred miles from the
defendant’s residence.” For purposes of a facial attack on the validity of § 3142(c), it
should not be presumed that any district court judge would set electronic monitoring
or curfew restrictions more onerous than those routinely imposed in its standard
conditions of release. Indeed curfew and electronic monitoring appear to be tools for
enhancing enforcement ability of existing conditions rather than establishing
materially different conditions. These restrictions by their very generality must be
tailored by the imposing court using its discretion to set the bounds of the restrictions
in accordance with the circumstances of the particular defendant. The risk, therefore,
of an erroneous deprivation of a defendant’s liberty interest is greatly minimized.




      5
        Mathews requires courts considering a due process challenge to weigh “[f]irst,
the private interest that will be affected by the official action; second, the risk of an
erroneous deprivation of such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards; and finally, the
Government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement would
entail.” 424 U.S. at 335.

                                          -13-
       Finally, as the district court acknowledged, “[T]he government has a significant
interest in ensuring the safety of the community in general and specifically in
protecting children from being victimized by those who commit child pornography
related offenses.” I conclude that this compelling interest sufficiently outweighs the
defendant’s interest in having an additional hearing on the necessity of a curfew and
electronic monitoring.
                          ______________________________




                                         -14-
