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United States v. Porter

November 1, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
HOWARD THOMAS PORTER, DEFENDANT.



The opinion of the court was delivered by: Sifton, Senior Judge.

MEMORANDUM OPINION & ORDER

On October 16, 2003, Howard Thomas Porter ("Porter") was convicted by a jury on three counts of transporting and shipping child pornography in interstate commerce by computer, in violation of 18 U.S.C. § 2252A(a)(1) and seven counts of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). On May 26, 2004, Porter was sentenced by the undersigned to 4 years imprisonment on each count to be served concurrently and 3 years supervised release on each count to be served concurrently. On November 1, 2006, following a Second Circuit appeal and remand, Porter was sentenced to the same period of imprisonment and supervised release. On August 31, 2007, Porter began his period of supervised release. On October 23, 2007, the United States Probation Department ("Probation Department") petitioned for the revocation of Porter's supervised release. Presently before this court is the issue of Porter's detention pending the revocation hearing. For the reasons set forth stated and the findings of fact set forth below, Porter is ordered to be detained pending the hearing on his alleged violation of the conditions of supervised release.

BACKGROUND

The following facts are drawn from the parties' submissions, the October 29, 2007 proceeding, the November 1, 2007 hearing, and from the record of the prior proceedings before the undersigned.

Between October 7, 2002 and December 2002, an undercover detective from the Wichita, Kansas Police Department, posing as the mother of a four-year-old daughter in Wichita, entered a chat room believed to be frequented by individuals interested in exchanging child pornography or engaging in sexual activities with children. Porter made initial contact with the detective, and several chat sessions ensued in which Porter discussed the possibility of engaging in sexual activity with the four-year-old daughter. Porter also sent the detective e-mail messages with attached images of child pornography. Law enforcement officers obtained a warrant to arrest Porter and search his , which was executed on January 9, 2003. Among the evidence seized were computer materials containing images of child pornography and ten photographs of children, including Porter's son.

Porter was arraigned on January 9, 2003, and signed an unsecured bond in the amount of $150,000 in which he agreed to the conditions of pretrial release set by Magistrate Judge Azrack. These conditions included restriction of travel to New Jersey and New York City, surrender of his passport, weekly in-person reports to and random visits by the Pretrial Services Agency, evaluation and treatment for possible mental health problems, forbearance from unsupervised contact with children, and a ban on all Internet use. On January 28, 2003, Magistrate Judge Mann imposed the additional conditions of drug and alcohol testing and treatment as well as the immediate cessation of employment or volunteer work for the National Coalition for Civil Rights. On January 30, 2003, Porter was indicted on three counts of transporting child pornography through interstate commerce. The indictment was superseded by a fourteen count indictment on April 23, 2003, charging Porter with three counts of transporting and shipping child pornography in interstate commerce by computer in violation of 18 U.S.C. §§ 2252A(a)(1), 2252A(b)(1), and 3551 et seq., and eleven counts of possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2), and 3551 et seq.

In accordance with the conditions of his pretrial release, Porter was evaluated at the New York Center for Neuropsychology and Forensic Behavioral Science. The evaluation revealed that defendant's primary sexual interest is in adolescent females...he endorsed items which reflect justification for pedophilic behavior, the types of rationalization and/or excuses used frequently by individuals who are sexually involved with children...he attempts to present himself in a socially desirable light...Mr. Porter is either unwilling to openly discuss his offending behavior, and/or, lacks substantial insight into the nature of the same.

Mem. From Melissa A. Roman, United States Pretrial Services Officer, Apr. 3, 2003, at 1-2 (internal quotation marks omitted). The treating facility determined that Porter was "in need of individual therapy to: monitor his mental status over time; and, to confront his distorted thinking, and gain insight into his offending behavior." Id. at 1. Porter refused to participate in treatment. While on pretrial release, Porter was also reportedly failed to attend a pre-trial services appointment, report a change in employment, and be present for a scheduled home visit.

Trial by jury commenced on October 7, 2003, and on the government's motion, one count of possession of child pornography was dismissed. On October 16, 2003, the jury acquitted Porter on three counts of possession, found Porter guilty on the remaining seven counts of possession, and found Porter guilty on all three counts of transportation. Porter remained on conditional release following the verdict.

At the time of Porter's sentencing, Porter's criminal history was described as consisting of several arrests; a conviction in 1987 for battery on a Florida law enforcement officer and disorderly conduct resulting in a sentence of three years of probation; 1993 guilty plea of disorderly conduct in Putnam Valley, New York after being arrested for criminal contempt; and a Staten Island arrest and arraignment for driving while intoxicated, which occurred during Porter's conditional release pending sentencing. In addition, Porter's son was removed from his custody by the Administration for Children's Services on neglect charges in 2003, with custody eventually being transferred to his son's great-aunt. Porter also presented a history of alcohol abuse.

On March 10, 2004, the government moved for Porter's remand which the Court granted, based on Porter's violation of the conditions of his release. The motion was filed because (1) Porter was twice seen at a public library by Administration for Children's Services workers, each time on internet chatrooms, in direct violation of the terms of his release which stated that he was not to use the internet, and (2) he failed to report the driving while intoxicated arrest as required.

At his sentencing on May 15, 2004, Porter moved for bail pending appeal. The court denied the motion finding Porter to be a danger to the community. On July 20, 2005, Porter again moved for release pending appeal, claiming that he had demonstrated a substantial likelihood of reversal on the seven possession counts, which would reduce his sentence, and that he was not a danger to the community or a flight risk. The motion was denied on September 15, 2005.

Porter appealed his conviction and sentence to the Second Circuit. On June 5, 2006, the Second Circuit affirmed the conviction but remanded to the undersigned for sentencing, under United States v. Fagans, 406 F.3d 138 (2d Cir. 2005). Porter v. U.S., 184 Fed. Appx. 112, 115 (2d Cir. 2005). In June 2006, Porter moved for release pending resentencing which the court denied in October 2006. On November 1, 2006, Porter was resentenced to 4 years imprisonment and 3 years supervised release. Porter appealed the November 1, 2006 sentence to the Second Circuit.

On February 22, 2007, Porter filed a motion for bail pending appeal. On April 5, 2007, Porter's motion was denied, because (1) Porter had not demonstrated a likelihood of success on appeal or a substantial issue of law or fact likely to result in a reduced sentence to less than the time he would have served when the appeals process was likely to be completed; and (2) Porter had not demonstrated that the danger which he presented to the community would be ...


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