United States District Court, D. Massachusetts
ORDER DENYING MOTION TO MODIFY CONDITIONS OF
H. Hennessy United States Magistrate Judge
the court is the unresolved component of a motion Defendant
Edward P. LaFrance filed seeking elimination of a condition
of his release. Docket #42. Defendant seeks relief from
the prohibition that Defendant make no use of e-mail, the
internet, or text-messaging, or have no access to any
electronic device capable of performing any of these
functions. The United States filed an opposition on July 7,
2016, Docket #51, and the matter is now ripe for decision.
Pretrial Services has notified the court by email of its
opposition. For the reasons stated below, the motion is
and Procedural History
first appeared on this case on January 28, 2016, on the basis
of a criminal complaint alleging his commission over a couple
of years of wire fraud and money laundering. See
Docket ##4, 9. At the initial appearance, the United States
agreed to release provided certain conditions it proposed
were ordered, including the condition Defendant now seeks to
eliminate, that he have no access to the internet, text
messaging or email, or devices that were capable of executing
these functions. See Docket ##9, 10. Defendant
acknowledged and agreed to this prohibition and other
conditions of his pretrial release, affixing his signature to
the order setting conditions. See Docket #10. In
doing so, Defendant was released on the day of his arrest.
January 28, 2016, when bail was fixed and Defendant released,
a number of things have occurred in the case: current counsel
was retained and assigned counsel (the Federal Public
Defender) withdrew, see Docket ##16, 17 and 29;
Defendant was indicted on two counts of wire fraud, each
corresponding to a separate victim, see Docket #19;
discovery was provided, some of it pursuant to a protective
order, see Docket ## 33, 39, and 40; and the grand
jury returned a superseding indictment which added charges of
money laundering involving wire transfers to banks in
Malaysia, see Docket #46. Defendant represents in
his motion that Defendant has fully complied with all of the
release conditions since his release. See Docket #42
Bail Reform Act provides in relevant part that the
"judicial officer may at any time amend the [release]
order to impose additional or different conditions of
release." 18 U.S.C. § 3142(c)(3). The legislative
history reports that "this authorization is based on the
possibility that a changed situation or new information may
warrant altered release conditions." See S.
Rep. No 98-226 at p.16 (1983). Accordingly,
"[c]onditions of bail should properly be modified if a
substantial change in circumstances as they existed at the
time bail was fixed is clearly shown." United States
v. Falcetti, No. 02-CR-140 (ILG), 2002 WL 31921179
(E.D.N.Y. 2002), at *1 (denying request to travel with
counsel to Florida to prepare for trial, where Defendant
showed no change in circumstances); see also United
States v. Numisgroup Int'l Corp., 128 F.Supp.2d 136,
151 (E.D.N.Y 2000) (modifying bail conditions where court
found that need to continue to finance defense warranted
relief from pledge of cash as security for bail).
motion to modify is denied. As a procedural matter, Defendant
has failed to show a substantial change in circumstances that
warrants such a significant change in the conditions of his
release, and the developments in this case, as described in
the summary of the docket (set out above) similarly shows no
qualifying change in circumstances for the modification
sought. To the contrary, Defendant's case has progressed
closer to trial: he has been indicted, discovery has been
provided, and a superseding indictment broadens the scope of
potential liability and increases the potential penalties.
Nothing in the case itself suggests a change in
substantive matter, Defendant raises essentially three
arguments for striking in its entirety this prohibition.
First, he attacks the prohibition on email and internet
access as "overbroad, " "not reasonably
necessary, " and "grossly exceed[ing]" the
goals of reasonably ensuring his appearance as required and
protecting the public. See Docket #42 at ¶ 4.
Far from being a change in circumstances, the internet and
email prohibition is a condition to which Defendant expressly
agreed and, though perhaps not dispositive of his release,
his agreement to this condition facilitated his release. Put
another way, it is conceivable that, if at the time this
court fixed bail, Defendant had raised this objection to his
release, he would not have been released at all. In agreeing
to release, the United States expressly proposed prohibiting
access to email, instant messaging, and the internet. As
noted in its opposition to this motion, its reasons for this
condition are not without some force. According to all of the
charging documents in this case - the complaint, indictment,
and superseding indictment - Defendant used email and the
internet to execute a fraud on at least five victims over a
period of a number of years, and to transfer the proceeds of
that fraud to banks in Malaysia.
regard, Defendant cites a number of cases to suggest the
internet and email prohibition is unjust and unreasonable.
However, the cases are inapposite, for not one of them deals
with conditions of pretrial release, but rather conditions of
probation or supervised release. Moreover, in nearly all, the
underlying crime did not involve the use of emails or the
internet. For instance in United States v. Scott,
316 F.3d 733 (7th Cir. 2003), the Appeals Court was reviewing
a condition of supervised release prohibiting internet
access, not because of the nature of the offense of which
Scott was convicted - fraud --, but because a search of the
defendant's computer revealed images of child
pornography. See id. at 734. Indeed, the Seventh
Circuit noted elsewhere in the opinion:
Computers and the Internet may be used to commit crimes, of
which child pornography and fraud are only two examples.
Inveterate hackers who have used access to injure others may
be ordered to give up the digital world. If full access posed
an unacceptable risk of recidivism, yet all controls on
access were forbidden, then a judge would have little
alternative but to increase the term of imprisonment in order
to incapacitate the offender.
Id. at 736-37. A similar argument can be made here.
Defendant not only used a computer to execute the offenses
for which he is indicted, but he has been previously
convicted of fraud, and unfettered internet access poses a
not insignificant risk of recidivism.
other cases Defendant cites are similarly distinguishable.
United States v. Ramos, 763 F.3d 45 (1st Cir. 2014),
did not involve the use of the internet to commit the
offense. Rather, the defendant was convicted of participating
in sex acts with a minor which were being recorded.
Id. at 50. He was sentenced to 188 months'
imprisonment to be followed by 10 years' supervised
release with the condition that he have no internet access.
Id. at 51. Hence the internet ban was for a far more
significant period of time than a pretrial release condition;
indeed, the Court of Appeals noted that the condition had the
potential of interfering with Defendant's rehabilitation
while on supervised release. Id. at 60-61; see
also United States v. Peterson, 248 F.3d 79, 82 (2d Cir.
2001) (review of conditions of probation imposed after
sentencing for bank larceny; "The government does not
argue that the computer and Internet restrictions were
related to the offense of conviction."); United
States v. White, 244 F.3d 1199, 1205-06 (10th Cir. 2001)
(following service of a jail sentence for receipt of child
pornography, remanding for clarification of a prohibition on
possession of a device capable of ...