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-  DWM-JCL ROBERT ERNEST PEEPLES, JR.,

District of Montana, Defendant-Appellant.

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.

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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 Protection 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 indictment alleges that, between December 2007 and February

2010, Peeples knowingly received child pornography by using

the internet while located in Missoula, Montana. The government alleges that approximately 5,000 potential child pornography 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 conditions, 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 magistrate 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

20670 UNITED STATES v. PEEPLES
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 prescribed 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 travel”; (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 agency”; (5) “comply with a specified curfew”; and (6) “refrain

from possessing a firearm, destructive device, or other dangerous 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. Kennedy, 327 Fed. Appx. 706 (9th Cir. 2009) (unpublished). 

The Court has previously denied a similar challenge to the constitutionality 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). 

2Among the specified crimes is knowing receipt of child pornography,

18 U.S.C. § 2252A(a)(2), the crime for which Peeples has been indicted.

UNITED STATES v. PEEPLES 20671
III.

Peeples argues that, both facially and as applied, the mandatory release provisions of the Walsh Act violate his constitutional 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 successfully, 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 mandatory release conditions are unconstitutional as applied to

him. In raising numerous alleged constitutional infirmities

with the Walsh Act, Peeples ignores a well-established principle 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

20672 UNITED STATES v. PEEPLES
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 practicable, in applying the mandatory release conditions. Peeples’s

argument that his constitutional rights have been violated

because he has not been afforded an individualized determination of his release conditions cannot stand in light of the district 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 defendants of a detention hearing or an individualized determination whether detention or release is appropriate.”). The Walsh

Act does not mandate that the court require electronic monitoring 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 defendant’s individual needs, including job-related needs). 

Similarly, Peeples’s release conditions were set by the

magistrate judge after an individualized determination of Peeples’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. Peeples’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 repeatedly 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 exercise its discretion in applying the mandatory release condiUNITED STATES v. PEEPLES 20673
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 challenge 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.

20674 UNITED STATES v. PEEPLES