Court: District Court, E.D. Wisconsin; November 5, 2017; Federal District Court
Marcus Hutchins, a UK citizen, faces charges related to the deployment of the 'Kronos' malware, which compromised user credentials and personal information. Arrested in Las Vegas on August 2, 2017, he has been under pretrial supervision since. Following his arrest, Hutchins surrendered his passport, was released on a $30,000 cash bond, and placed under GPS monitoring. Initially allowed to reside in Los Angeles under home detention, his conditions were later modified to permit internet access and travel within the U.S.
On August 24, 2017, the Pretrial Services Office recommended easing his conditions from home detention to a curfew, arguing that Hutchins complied with his release terms and spent most of his time at home due to his remote work. Magistrate Judge William E. Duffin approved this modification, setting a curfew from 9 PM to 6 AM. The government challenged this decision, but Judge Duffin maintained that Hutchins' pretrial freedom should reflect his compliance.
Subsequently, Judge Pamela Pepper upheld the modified conditions, deeming home confinement punitive. Hutchins later filed a motion on October 13, 2017, seeking further reductions, specifically the removal of his curfew and GPS monitoring. Both Pretrial Services Offices supported his request, although the government opposed it. Magistrate Duffin granted Hutchins' motion on October 19, 2017, further modifying his pretrial release conditions.
Magistrate Duffin determined that the government failed to prove Hutchins posed a danger to others, arguing only that he was a flight risk. Upon reviewing Hutchins' compliance history, the magistrate concluded that neither GPS monitoring nor a curfew was necessary to mitigate this risk. He noted that the curfew was irrelevant to Hutchins, who had surrendered his passport, posted bond using a friend's funds, faced potential penalties for fleeing, and was supervised by two Pretrial Services Offices. The magistrate also rejected the government's argument that mere compliance with release conditions was insufficient for modification, stating it is standard practice to adjust conditions for compliant defendants. The government has sought a review of this bond order but did not request a stay, meaning Hutchins' prior conditions have not been enforced since October 19, 2017, and he has not attempted to flee. Under Section 3145, the district court reviews the magistrate's order de novo and may hold a new hearing if requested, which neither party has done. The government’s bond argument relies on Section 3142(g) factors, but the statute's purpose is to determine appropriate release conditions rather than impose more restrictive ones. The government’s insistence that compliance alone is inadequate contradicts common practice, as demonstrated compliance typically reduces the need for stringent conditions.
The Bail Reform Act mandates that courts impose only the least restrictive conditions necessary to reasonably assure a defendant's appearance at trial. Magistrate Duffin highlighted that while there is a possibility a defendant might flee, this risk is inherent in all cases of pretrial release, and the Act does not require conditions that guarantee appearance. The district court mistakenly interpreted the "reasonably assure" standard as necessitating guarantees of safety and appearance, contrary to the intent of the 1984 Act. The government’s push for harsher conditions for Hutchins, to prevent potential flight, exceeds what the Act allows. The government cited a previous case (United States v. Lafrance) where conditions were not modified due to the risk of further crimes; however, this is not applicable to Hutchins, whose compliance with current conditions does not pose a similar risk. The government argued Hutchins' lack of ties to the U.S. increases flight risk, noting he is not a citizen, has no family or property in the U.S., and was able to post bond with a friend. Nonetheless, the government failed to substantiate its claim that stricter conditions are necessary, as Hutchins has consistently shown his commitment to comply with court requirements.
Elimination of curfew and GPS monitoring for Hutchins is justified as the government has not adequately explained the need for these conditions. Key factors influencing the Court's decision include Hutchins' significant financial investment in a rented apartment in Los Angeles, which counters the government's view that only property ownership ties a defendant to the country. The severe consequences of non-appearance further diminish flight risks, and the Bail Reform Act obligates the government to justify the necessity of such conditions. The argument that Hutchins could escape without a passport is acknowledged but deemed irrelevant, as lacking a passport complicates potential flight. Notably, Hutchins has traveled within the U.S. since his arrest without attempting to flee. His bond, paid by a friend, also provides a strong incentive for compliance with court appearances. Continuous oversight by Pretrial Services in both locations will monitor adherence to release conditions. The Court supports the magistrate's conclusion that only the least restrictive conditions necessary should be applied, and the government's insistence on maintaining previous conditions lacks merit, especially given Hutchins' compliance since the previous conditions were lifted. The Court finds no error in the magistrate's decision to modify Hutchins' release conditions and denies the government's motion to revoke this order, noting that none of the circumstances for pretrial detention under the Bail Reform Act apply to Hutchins.
