UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA,
Plaintiff,
v.

Case No. 17-CR-124

MARCUS HUTCHINS,
Defendant.
ORDER
I.

Facts and Procedural History

On October 13, 2017, Marcus Hutchins filed a motion to modify his conditions of
release. He asks that the court eliminate his curfew and remove him from GPS
monitoring. Pretrial Services supports the modifications. However, the government
opposes them.
Hutchins is charged with conspiracy and advertising a device that has the
primary purpose of surreptitiously intercepting electronic communications, all in
violation Title 18, United States Code, Sections 371, 2512(1)(c)(i), and 2.
Hutchins, a citizen of the United Kingdom, was arrested in Las Vegas on August
2, 2017. He surrendered his passport, was released on $30,000 cash bond, and placed on

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 GPS monitoring. He traveled to Milwaukee unaccompanied by law enforcement and
appeared at his arraignment as required on August 14, 2017. The court modified his
conditions of release to permit him to reside in Los Angeles, restricted him to home
detention, permitted him access to the internet (with a narrow exception), and restricted
his travel to the United States. He continued on GPS monitoring.
On August 24, 2017, Pretrial Services submitted a report recommending that
Hutchins’s supervision be reduced from home detention to curfew status. In addition to
the fact that such reductions in supervision are routine after a period of compliance
while on release, Pretrial Services noted that Hutchins’s circumstances were unusual. A
person on home detention generally is allowed to leave his residence for a number of
reasons, including for work. Because Hutchins works from home, the consequence of
home detention was that he was forced to remain confined to his home for all but four
hours per week. The court approved Pretrial Services’s request and permitted Hutchins
to be outside his home between 6:00 AM and 9:00 PM. (ECF No. 18.)
At the government’s request, the court issued a stay to permit the government to
respond to this change in supervision. (ECF Nos. 19, 20.) The following day the court
denied the government’s motion to return Hutchins to home detention and vacated its
stay. (ECF No. 23); United States v. Hutchins, No. 17-CR-124, 2017 U.S. Dist. LEXIS
136820 (E.D. Wis. Aug. 25, 2017). The government sought review pursuant to 18 U.S.C.

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 § 3145 (ECF No. 25), and on August 30, 2017, the Honorable Pamela Pepper denied the
government’s motion. (ECF Nos. 28, 29.)
In denying the government’s motion to reinstate home detention, this court
stated, “[F]rankly, if Hutchins continues to comply with the conditions of his release, he
can expect that the court will further expand the amount of time he may be outside his
residence. By the same token, if he fails to comply with his conditions, he should expect
that the court will decrease his freedom.” Hutchins has continued to comply with this
court’s conditions of release and asks that the court further reduce his supervision.
This motion comes before the court pursuant to 18 U.S.C. § 3142(c)(3), which
states, “The judicial officer may at any time amend the [release] order to impose
additional or different conditions of release.” The government mistakenly argues that
modification of conditions of release requires Hutchins to meet the standard set forth in
18 U.S.C. § 3142(f). But that is the standard for reopening a detention hearing. It would
be applicable only if Hutchins had been detained and was asking that the court now
release him.
II.

Curfew

In imposing conditions of release the court must consider both the risk that the
defendant will not appear in court as required and “the safety of any other person and
the community.” 18 U.S.C. § 3142(c)(1)(B). The court does not believe that the conditions
of curfew and GPS monitoring plausibly affect any danger to the community Hutchins

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 might pose while on release. Nor does the court understand the government to be
arguing that curfew and GPS monitoring are needed to protect the community from
Hutchins. Rather, the government’s objection to any change in Hutchins’s conditions
relates solely to a concern that Hutchins will not appear as required.
With respect to the condition that Hutchins abide by a curfew, the government
argues that “[c]onditions of release should not be modified simply because a defendant
has complied with bond conditions.” (ECF No. 33 at 5.) In support of its argument the
government relies on United States v. LaFrance, No. 16-10090-IT, 2016 U.S. Dist. LEXIS
90969 (D. Mass. July 13, 2016).
The conclusion that the defendant’s compliance with the conditions of his
release did not merit a change in bond conditions made sense given the facts in
LaFrance. The defendant was alleged to have used the internet and email to commit wire
fraud. The court barred him from accessing email and the internet, but after a period of
compliance he asked the court to rescind the prohibition. In the context of that case,
where the issue was a danger to the community and the defendant was requesting
access to the tools of his alleged offense, it was reasonable to conclude that past
compliance with his conditions of release did not materially change the danger the
defendant posed.
But it would be unreasonable to read LaFrance as standing for the proposition
that a track record of compliance never merits changes in conditions of release. That

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 would be inconsistent with the policies underlying the Bail Reform Act and routine
practice in courts around the country. Reducing the level of supervision (e.g., from
home confinement, then to home detention, then to curfew, etc.) after a demonstrated
record of compliance (or increasing supervision in the event of non-compliance) is a
routine measure necessary to ensure the court’s obligation to impose the least restrictive
conditions necessary to reasonably assure Hutchins’s appearance and the safety of the
community. 18 U.S.C. § 3142(c)(1)(B).
Beyond the argument that a track record of compliance is not new information
meriting a further reduction in supervision, the government does not offer any
argument why Hutchins must remain on curfew.
Granted, Hutchins does not really offer any specific reasons why he needs or
wants to be outside his home after 9 PM aside from an amorphous assertion that the
curfew “makes it harder for him to establish ties to the community.” (ECF No. 32 at 5.)
But he is not obligated to demonstrate a reason why he should be allowed out. In light
of the court’s obligation to impose no more than the least restrictive measures necessary
to reasonably assure Hutchins’s appearance and the safety of the community, it is the
government’s obligation to prove that a curfew remains necessary.
Curfew might be used as a long-term condition of release when necessary to
deter a defendant from committing crimes often associated with the hours of darkness
(e.g., robberies or burglaries) or when it helps impose stability and structure on the lives

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 of defendants who need it (e.g., those addicted to drugs or alcohol, or with mental
health needs). Absent those types of considerations, curfew is used as an interim
measure to gauge a defendant’s compliance with conditions of release, with the goal
being a further reduction in supervision. Curfew status is routinely removed if the
defendant completes a period of compliance.
The court has no reason to believe that Hutchins has supervision needs that merit
the long-term use of a curfew. Having demonstrated his compliance with his curfew
restriction, the court concludes that, consistent with the court’s obligation that a
defendant be released on the least restrictive conditions necessary, 18 U.S.C.
§ 3142(c)(1)(B), it is appropriate to remove Hutchins from curfew status.
III.

GPS

The government argues that GPS monitoring remains necessary because
Mr. Hutchins is a citizen and resident of the U.K. He has no family in the
United States. Mr. Hutchins does not own any property in the United
States. Mr. Hutchins is employed by a business located in Los Angeles,
CA, but he apparently works remotely, as he did from the U.K. prior to
his arrest. It is fair to say his conditions of bond are the only things
securing his presence in the U.S.
(ECF No. 33 at 6.)
If by “property” the government is referring to Hutchins’s lack of real estate
ownership, the fact that Hutchins does not own real estate in the United States does not
distinguish him from many if not most criminal defendants. Moreover, there is no
indication that Hutchins owns any property in the U.K., or anywhere else in the world
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 for that matter. Significantly, the court understands from Pretrial Services that Hutchins
has leased an apartment and invested sizable sums acquiring furnishings and the
computer equipment necessary to continue working here while on release. This sort of
“property” interest in the United States is greater than many defendants.
More importantly, the facts identified by the government do not suggest that but
for GPS monitoring Hutchins will not appear in court as required. Many defendants
appear as required simply by being told to do so lest they face enhanced penalties,
additional serious charges, or a life on the run. In fact, the notion that a defendant will
appear simply by being told to do so, without any additional conditions, is where the
court’s analysis under the Bail Reform Act is to begin for a defendant such as Hutchins,
for whom there is no presumption of detention. 18 U.S.C. § 3142(a). The court has little
reason to believe that the general consequences of non-appearance are insufficient to
ensure Hutchins’s appearance as required.
Beyond the threat of enhanced penalties or serious criminal charges, Hutchins is
likely to appear because he has surrendered his passport, making international travel
extremely difficult. And the court understands that his passport is his only source of
identification, making it difficult for him to even travel (at least by plane) within the
United States (which he is permitted to do under his conditions of release).
Further, Hutchins was required to post a $30,000 bond as a condition of his
release. The government states that it learned during the hearing before Judge Pepper

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 that it was not Hutchins’s money that was posted. (ECF No. 33 at 5.) Although that
might have been new information to the government, the court never understood that
the $30,000 was Hutchins’s. The court always understood that his bond had been posted
by a friend. The fact that his bond was posted by a friend is, in some respects, a greater
deterrent to flight than if the bond was from his own pocket. A defendant might be
more deterred from flight if flight would result in a trusting innocent friend suffering a
loss of a significant sum of money.
Hutchins will also continue to be supervised by Pretrial Services. These experts
on ensuring defendants comply with conditions of release will continue to monitor
Hutchins as they have done throughout his period of release. Significantly, both of his
supervising officers, one in Los Angeles and one in Milwaukee, agree that elimination
of curfew and GPS monitoring is appropriate. These officers have the discretion to
adjust the frequency and nature of their contacts with Hutchins to ensure that he
continues his compliance. The officers are also in position to promptly notify the court
should circumstances merit a further modification of Hutchins’s conditions of release.
Again, as the court noted in its prior order, the risk of nonappearance is inherent
every time a defendant is released from custody pending trial. But
[t]he Bail Reform Act does not impose an obligation upon courts to craft
conditions of release with an aim toward guaranteeing that a defendant
will appear. See United States v. Portes, 786 F.2d 758, 764 n.7 (7th Cir. 1985)
(“The conditions need not guarantee appearance but they must reasonably
assure appearance.”); United States v. Orta, 760 F.2d 887, 889 (8th Cir. 1985)
(en banc) (“[T]the district court erred in interpreting the ‘reasonably
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 assure’ standard set forth in the statute as a requirement that release
conditions ‘guarantee’ community safety and the defendant's appearance.
Such an interpretation contradicts both the framework and the intent of
the pretrial release and detention provision of the 1984 Act.”). Rather, the
court may impose only the least restrictive conditions necessary to
reasonably assure a defendant’s appearance.
Hutchins, 2017 U.S. Dist. LEXIS 136820, at *5. In light of Hutchins’s compliance with the
conditions of his release and the absence of any hint that he will not appear in court as
required or that modifying the conditions of his release as requested will pose a threat
to the safety of the community, the court concludes that, consistent with 18 U.S.C.
§ 3142(c)(1)(B), the least restrictive conditions that will reasonably assure Hutchins’s
appearance as required and the safety of the community no longer include curfew or
GPS monitoring.
IT IS THEREFORE ORDERED that Hutchins’s motion to modify his conditions
of release (ECF No. 32) is granted. The conditions of GPS monitoring and curfew are
removed as conditions of Hutchins’s pretrial release.
Dated at Milwaukee, Wisconsin this 19th day of October, 2017.

_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge

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