USA v. Whitmore

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
MICHAEL GLENN WHITMORE,
Defendant.
Case No. 3:21-cr-00038-SLG-DMS
ORDER REGARDING PRETRIAL RELEASE
Before the Court at Docket 25 is defendant Michael Glenn Whitmore’s
Appeal from Magistrate Judge’s Detention Order and Request for Immediate
Release with Conditions. The government responded in opposition at Docket 28.
On or around March 10, 2021, Mr. Whitmore was arrested on charges of
possession and distribution of child pornography.1 On March 25, 2021, the
Honorable Magistrate Judge Matthew M. Scoble denied Mr. Whitmore’s oral
motion for conditional release.2 Judge Scoble determined that there was a
rebuttable presumption that no conditions would reasonably assure the
appearance of Mr. Whitmore and community safety because there was probable
cause to believe that Mr. Whitmore committed an offense involving a minor victim
1 Docket 1; Docket 13.
2 Docket 18; Docket 20.
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pursuant to 18 U.S.C. § 2252A(a)(2), but that Mr. Whitmore had presented
sufficient evidence to rebut that presumption.3 However, Judge Scoble also
determined that the government had proven by clear and convincing evidence that
no conditions of release would reasonably assure the safety of any other person
and the community.4
The matter is now before this Court pursuant to 18 U.S.C. § 3145. That
statute provides that “[I]f a person is ordered detained by a magistrate judge . . .
the person may file, with the court having original jurisdiction over the offense, a
motion for revocation or amendment of the order.”5 This Court’s review of the
detention determination is de novo.6
I. Applicable law
The instant motion is governed by the Bail Reform Act. As relevant here,
the Act creates a rebuttable presumption that no conditions of release will
reasonable assure the appearance of the defendant and the safety of the
community if the court finds probable cause to believe the defendant committed
an offense involving a minor victim pursuant to 18 U.S.C. § 2252A(a)(2).7 The
Bail Reform Act directs courts to consider the nature and circumstances of the
3 Docket 20 at 2.
4 Docket 20 at 2; Docket 25-1 at 21.
5 18 U.S.C. § 3145(b).
6 United States v. Koenig, 912 F.2d 1190, 1991–92 (9th Cir. 1990).
7 18 U.S.C. 3142(e).
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offense charged, the weight of the evidence, the history and characteristics of the
defendant, and the nature and seriousness of the danger to the community or to
an individual if the defendant is released.8
II. The appearance of Mr. Whitmore
The Court finds that the government has not shown that Mr. Whitmore is a
flight risk. It appears that he has resided in Alaska for his entire life.9 He has no
criminal history.10 He was cooperative with law enforcement during the
investigation of this case.11 The government also does not contend that Mr.
Whitmore is a flight risk.12
III. The safety of any other person and the community
Mr. Whitmore asserts that the Probation Office’s recommended release plan
would adequately protect the safety of the public and individuals.13 The proposed
release plan contemplates Mr. Whitmore residing at a transitional living facility as
“home” detention, wearing a GPS-monitor, having no access to minors, and having
no access to the internet, among other conditions.14 The government contends
8 18 U.S.C. § 3142(g).
9 Docket 16 at 2 (under seal).
10 Docket 16 at 3 (under seal).
11 Docket 16 at 1 (under seal).
12 See generally Docket 28; Docket 25-1 (transcript of arraignment where the government
conceded that Mr. Whitmore did not present a flight risk).
13 Docket 25 at 2, 4 (citing Docket 16).
14 Docket 16 at 5–6.
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that this plan would not mitigate the risk Mr. Whitmore poses generally to the
community and the risk he poses specifically to his half-sister.15
This case appears to involve more than a defendant who possessed child
pornography or even re-posted or shared child pornography. Instead, Mr.
Whitmore allegedly provided the link to the Facebook page of his 11-year old half-
sister to a group of strangers, who could have been anywhere in the world. The
Facebook page included the girl’s photo and information that would identify her as
living in Alaska. Mr. Whitmore allegedly asked the other chat members to fantasize
about “what y’all would do to my little half sis.”16 Other group members responded
by describing violent sexual acts and by indicating that they had visited the girl’s
Facebook page and learned other details about her.17 Mr. Whitmore also allegedly
told the group that he would like to have sex with the 11-year old.18 Additionally,
Mr. Whitmore allegedly posted a video that showed an infant being sexually and
physically abused by an adult.19
Mr. Whitmore purportedly told the FBI that he used cell networks, as
opposed to wireless internet, to access the chat group on his cell phone, and
review of his phone showed that he participated in nearly 80 different child-
15 Docket 28 at 9.
16 Docket 32-1 at 5 (under seal); accord Docket 2 at 10–11.
17 Docket 32-1 at 6, 9,
18 Docket 2 at 11.
19 Docket 2 at 11.
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pornography chat groups and had sent more than 99,000 messages in those
groups.20 Mr. Whitmore also purportedly told the FBI that he had very strong
computer skills, likening himself to Bill Gates and Mark Zuckerberg, and that he
was able to store child pornography on his cell phone in a manner that more easily
allowed him to share it with other chat users.21 Mr. Whitmore purportedly had
approximately 1,200 images and videos of child pornography stored on his cell
phone, and he purportedly stated that he shared child pornography with
approximately 100 people.22
The Court finds by clear and convincing evidence that there are no release
conditions that could reasonably assure the safety of the community and Mr.
Whitmore’s half-sister if he were released. As discussed above, the nature and
circumstances of the offenses portray a defendant who went beyond possessing
or distributing child pornography but also exposed—in a sexual and violent
manner—an 11-year old family member to an unknown group of strangers. There
is significant evidence against Mr. Whitmore, including cell phone forensics and
his own admissions. The Court has reviewed the affidavit from FBI Agent Jolene
Goeden filed in this case, which includes admissions by Mr. Whitmore that he
would have done something sexual to his half-sister if given the opportunity and
20 Docket 2 at 14–15
21 Docket 2 at 14.
22 Docket 2 at 14, 16.
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that he had shared the child pornography video of the infant.23 The Court
acknowledges that Mr. Whitmore’s lack of criminal history weighs in favor of pretrial
release, although he allegedly admitted that he has been viewing child
pornography for approximately 10 years and has taken steps to conceal these
activities.24 And the nature and seriousness of the danger to the community and
particularly to his half-sister if released are significant.
Mr. Whitmore’s proposal to serve “home” detention at a transitional living
facility, wear a GPS bracelet, have no access to minors, and have no access to
the internet25 does not adequately address the Court’s safety concerns, even
assuming arguendo that the proposal is sufficient to rebut the presumption of
detention. The Court and pretrial services would have no control over the other
residents of the facility or what technology they brought into the facility (e.g.,
personal cell phones or laptop computers). Even if there is no wireless internet at
the halfway house, Mr. Whitmore allegedly used cellular network data to view and
share child pornography. He has allegedly been viewing child pornography for
approximately ten years, including while living at home with his grandmother, and
taking active steps to conceal doing so. There is also no evidence in the record
as to the security level or “house arrest” protocol at the proposed halfway house.26
23 Docket 2 at 13–14 (under seal).
24 Docket 2 at 14.
25 Docket 16 at 5–6.
26 The government has asked the Court to note the half-mile proximity of the transitional living
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There is also no evidence in the record of why type of treatment or therapy Mr.
Whitmore could access if he was living at the transitional living facility, although he
alleged stated that he has a sexual attraction to young children, would have
engaged in sexual conduct with his young half-sister if he the opportunity, and
recognized that his use of child pornography is a problem for him. Thus, it is not
clear that if released pending trial the defendant would not again access child
pornography.
CONCLUSION
Having reviewed the magistrate judge’s determination de novo, this Court
concludes that the evidence is clear and convincing that there are no release
conditions that could reasonably assure the safety of the community and Mr.
Whitmore’s half-sister if he were released. Accordingly, IT IS ORDERED that
the motion at Docket 25 is DENIED, and the magistrate judge’s detention order at
Docket 20 remains in full force and effect.
DATED this 26th day of April, 2020, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
facility to schools, playgrounds, and a museum. Docket 28 at 6, n.1. The Court does not afford
much weight to the location of the halfway house because the government has not provided any
exhibits to support its assertion.
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