United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION AND ORDER
C. Reeves, United States District Judge
matter is pending for consideration of Defendant Robert
Porter's motion for bond pending appeal. [Record No. 194]
Because the motion does not present a substantial question
that would warrant appellate relief, the motion will be
“Bob” Porter is the former mayor of Paintsville,
Kentucky. On February 25, 2016, a federal grand jury returned
a superseding indictment charging him with three counts of
theft concerning programs receiving federal funds, in
violation of 18 U.S.C. § 666(a)(1)(A), and one count of
bribery concerning programs receiving federal funds in
violation of 18 U.S.C. § 666(a)(1)(B). [Record No. 40]
Porter was found guilty on two counts under §
666(a)(1)(A), and guilty on the single count under §
666(a)(1)(B) following a four-day jury trial. [Record No.
149] Porter was later sentenced to a 48-month term of
incarceration, followed by two years of supervised release.
[Record No. 181] A $4, 000 fine was imposed, together with
the statutorily-required special assessment. [Id.]
Porter did not address the Court during his sentencing
hearing and he did not ask this Court to consider releasing
him during any subsequent appeal.
filed a Notice of Appeal on January 19, 2017. [Record No.
187] He also moved, in the Court of Appeals, for bond pending
his direct appeal. The United States Court of Appeals for the
Sixth Circuit denied the motion, without prejudice, because
Porter failed to seek bond first in this Court, as required
by Federal Rule of Appellate Procedure 9(b). [Record No. 193]
Porter proceeded to file his bond motion in this Court. That
motion is now ripe.
pending appeal is governed by 18 U.S.C. § 3143. A person
who has been found guilty and sentenced to a term of
imprisonment, but has filed an appeal, must be detained
unless the court makes two findings. First, the court must
find, “by clear and convincing evidence[, ] that the
person is not likely to flee or pose a danger to the safety
of any other person or the community if released[.]”
§ 3143(b)(1)(A). Second, the court must determine that
“the appeal is not for the purpose of delay and raises
a substantial question of law or fact likely to result in--
(i) reversal, (ii) an order for a new trial, (iii) a sentence
that does not include a term of imprisonment, or (iv) a
reduced sentence to a term of imprisonment less than the
total of the time already served plus the expected duration
of the appeal process.” § 3143(b)(1)(B).
Sixth Circuit in United States v. Pollard, 778 F.2d
1177 (6th Cir. 1985), explained that “an appeal raises
a substantial question when the appeal presents a
‘close question or one that could go either way'
and that the question ‘is so integral to the merits of
the conviction that it is more probable than not that
reversal or a new trial will occur if the question is decided
in the defendant's favor.'” 778 F.2d at 1182
(quoting United States v. Powell, 761 F.2d 1227,
1233-34 (8th Cir. 1985) (en banc)). “It is not
sufficient to show simply that reasonable judges could differ
(presumably every judge who writes a dissenting opinion is
still ‘reasonable') or that the issue is fairly
debatable or not frivolous.” Powell, 761 F.2d
at 1234. Further, harmless errors and “question[s] as
to which the defendant had not sufficiently preserved his
record” do not meet the substantial question standard.
Powell, 761 F.2d at 1233 (citing United States
v. Miller, 753 F.2d 19 (3d Cir. 1985)). Thus, to qualify
for bond, Porter must raise questions integral to the merits
of his conviction. Further, they must be close questions
(more than non-frivolous or simply debatable), that if
decided in his favor, would warrant reversal, a new trial, or
a reduced sentence.
raises three matters which he believes meet the substantial
question standard. He first argues that the evidence
supporting his conviction under 18 U.S.C. § 666(a)(1)(B)
lacked the necessary “official act” and quid pro
quo agreement. Second, he argues that the playing of a video
deposition as substitute for the testimony of a live witness
violated his rights under the Sixth Amendment's
Confrontation Clause. Finally, Porter argues that the
introduction of out-of-court statements made by a
non-testifying witness violated the prohibition on hearsay
evidence and also violated the Confrontation Clause. Each
argument lacks merit.
Danger to the Community
questions for bond pending appeal are whether the movant is
likely to flee if released, and whether the individual poses
a danger to the safety of another person or the community.
The Court must find by clear and convincing evidence that
neither is true. The Court so finds.
defendant does not pose a flight risk. As Porter points out,
he was not arrested or taken into custody either before trial
or following his conviction. He was released pre-trial
without supervision, and complied with his bond conditions
post-conviction. Given his compliance with the conditions
imposed on him in the past, his family ties, and his medical
history, it is unlikely Porter will flee if released. The
government concedes that Porter does not pose a flight risk.
government also concedes that Porter is not a danger to the
community and nothing in the record suggests otherwise.
Porter has no documented history of violence, and there is no
reason to believe that he poses physical danger to any person
or to the community. Accordingly, § 3143(b)(1)(A) is no
barrier to Porter obtaining bond. The motion turns on the
merits of his appeal ...