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United States of America v. Eugene M. Gerrard

October 28, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
EUGENE M. GERRARD, DEFENDANT.



The opinion of the court was delivered by: David Alan Ezra United States District Judge

ORDER DENYING DEFENDANT'S MOTION FOR BAIL PENDING APPEAL

Pursuant to Local Rule 7.2(d), the Court finds this matter suitable for disposition without a hearing. After reviewing the motion and the supporting and opposing memoranda, the Court DENIES Defendant's Motion for Bail Pending Appeal (Doc. # 42).

BACKGROUND

On November 9, 2010, a Grand Jury indicted Defendant Eugene M. Gerrard ("Defendant") with knowingly possessing images and videos the production of which involved the use of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(4) and (b)(2). (See Doc. # 1.) On April 20, 2011, Defendant pled guilty to the indictment before United States Magistrate Judge Kevin S.C. Chang. (Doc. # 21.) On May 10, 2011, this Court accepted Defendant's guilty plea. (Doc. # 25.) On August 10, 2011, Probation drafted a presentence report to which Defendant had no objection. (See "PSR," Doc. # 39 at 22.)

The presentence report described Defendant's misconduct as follows. On March 14, 2008, an individual using the America On Line ("AOL") instant messenger screen name of "Femtofemtouching" began to "chat" with an undercover agent of the New York State Attorney General's Office ("UC"). (Id. ¶ 7.) The UC described herself as a 13-year-old female from Brooklyn, New York, while the individual using the screen name "Femtofemtouching" described himself as a 21-year-old female from Hawaii. (Id.) Information obtained in response to subpoenas delivered to AOL and Hawaiian Telcom Services Company, Inc., revealed that the individual using the screen name "Femtofemtouching" was Defendant. (Id. ¶¶ 8--9.) During the course of the March 14, 2008 "chat," Defendant electronically sent eight images of child pornography to the UC and informed the UC that some of the photographs were of girls who were twelve or thirteen years old and with whom he had previously chatted. (Id. ¶ 10.) Defendant claimed that he had chatted with about eight girls who were thirteen years old. During the "chat," Defendant made clear through lewd and graphic language that he was engaging in cybersex with the UC. (See id. ¶ 11.) Defendant engaged in a second "chat" with the UC on March 18, 2008 which was substantively the same as the March 14, 2008 "chat." (Id. ¶ 13.)

On July 25, 2008, the Government executed a search warrant on Defendant's residence and obtained three computers and a thumb drive. (Id. ¶¶ 14--15.) A forensic examination of Defendant's computers resulted in the identification of 944 still images and two videos depicting extremely graphic child pornography. (See id. ¶¶ 16--18.) The forensic examination of the computers also revealed approximately 1,020 emails which were either sent or received by Defendant; each contained one or more image files depicting child erotica or suspected child pornography. (Id. ¶ 19.)

Subsequent to the execution of the search warrant, Defendant acknowledged that he posed as an underage teenage girl in "chat rooms" on the internet. (Id. ¶ 20.) He also stated he chatted with three or four under-aged females. (Id. ¶ 21.)

On August 22, 2011, the Court sentenced Defendant. (See Doc. # 30.) The Court determined that the total offense level under the guidelines was twenty-six, with a criminal history category of one. ("Tr.," Doc. # 42-9, at 4.) The Court calculated the imprisonment range to be sixty-three to seventy-eight months. (Id.) Nonetheless, the Court granted a substantial variance and sentenced Defendant to thirty months imprisonment and five years of supervised release. (See Doc. # 30.) Given Defendant's age and health conditions, the Court permitted Defendant to remain on supervised release under home confinement until his self-surrender date of October 11, 2011. (Tr. at 24--26.)

On September 6, 2011, Defendant filed a Notice of Appeal. (Doc. # 32.) Defendant filed a motion for bail pending appeal in front of the Ninth Circuit which that court denied on September 26, 2011 "without prejudice to renewal following presentation of the motion to the district court." (Doc. # 41.)

On September 27, 2011, Defendant filed the instant Motion for Bail Pending Appeal ("Motion") as well as a Motion for an Order Staying Self-Surrender. ("Mot.," Doc. # 42; Doc. # 43.) On September 28, 2011, the Court granted Defendant's Motion for an Order Staying Self-Surrender pending resolution of the instant Motion and directed Defendant to self-surrender on October 31, 2011. (Doc. # 45.)

On October 17, 2011, the Government filed an Opposition to the instant Motion. ("Opp'n," Doc. # 47.) On October 19, 2011, Defendant filed a Reply. ("Reply," Doc. # 49.)

STANDARD OF REVIEW

18 U.S.C. § 3143(b) governs whether a defendant should be released or detained pending an appeal by a defendant. It provides as follows:

(1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds-

(A) 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 under section 3142(b) or (c) of this title; and

(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in-

(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.

18 U.S.C. § 3143(b)(1). Pursuant 18 U.S.C. § 3143(b)(2), a defendant convicted of a "crime of violence," and sentenced to a term of imprisonment, is subject to mandatory detention pending appeal. See id. § 3143(b)(2) ("[A] person who has been found guilty of an offense in a case described in . . . subsection (f)(1) of section 3142 and sentenced to a term of imprisonment, and who has filed an (i) reversal, appeal [shall] be detained."); id. § 3142(f)(1) (describing crimes of violence). Child pornography offenses, including the possession of child pornography, are "crimes of violence." See id. § 3156(a)(4)(c). Nonetheless, section 3145(c) provides an exception to section 3143(b)(2). Specifically, bail may be granted pending appeal where a defendant has been convicted of a crime of violence and sentenced to imprisonment provided that the ...


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