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United States v. Porter

United States District Court, E.D. Kentucky, Southern Division, Pikeville

March 22, 2017



          Danny C. Reeves, United States District Judge

         This 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 denied.


         Robert “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.

         Porter 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.


         Release 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).

         The 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.


         Porter 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.

         A. Danger to the Community

         Threshold 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.

         The 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.

         The 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 ...

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