Opinion
Case Number: 3:12-00182-01
11-08-2012
USA v. Kenneth Charles Yarbrough
Assistant U.S. Attorney: Lynne Ingram Defense Attorney: to be determined
Superseding Petition for Summons for Offender Under Supervision
[Supersedes Petition Filed as Docket Entry No. 4]
Name of Offender: Kenneth Charles Yarbrough Name of Current Judicial Officer: Honorable William J. Haynes, Jr., Chief U.S. District Judge Name of Sentencing Judicial Officer: Honorable J. Daniels Breen, U.S. District Judge, WDTN Date of Original Sentence: August 17, 2007 Original Offense: 18 USC 2252A(a)(l) Transportation of Child Pornography and 18 USC 2252(a)(2) Receipt of Child Pornography Original Sentence: 60 months' custody: fifteen years' supervised release Type of Supervision: Supervised Release Date Supervision Commenced: March 2, 2012 Assistant U.S. Attorney: Lynne Ingram Defense Attorney: to be determined
PETITIONING THE COURT
__ To issue a Summons
__ To issue a Warrant
X To Consider Additional Violations / Information
THE COURT ORDERS:
[×] The Addition of Alleged Violations / Information
[ ] No Action
[ ] The Issuance of a Warrant:
[ ] Sealed Pending Warrant Execution (cc: U.S. Probation and U.S. Marshal only)
[ ] The Issuance of a Summons.
[ ] Other
I declare under penalty of perjury that the foregoing is true and correct. Respectfully submitted, Considered this 13th day of _______________, 2012, and made a part of the records in the above case.
_______________
Donna Jackson
Intensive Supervision Specialist
_______________
William J. Haynes, Jr.
Chief U. S. District Judge
Place Nashville, TN
ALLEGED VIOLATIONS
The information provided in the previous petition, filed as docket entry No. 4, has been amended as follows:
Violation No. 5 - has been added to include possession and viewing of sexually stimulating material.The probation officer believes that the offender has violated the following condition(s) of supervision:
Violation No. 6 - has been added to include termination from sex offender treatment.
+---------------------------------------------------------------------------------------------------------------+ ¦Violation No. ¦Nature of Noncompliance ¦ +---------------+-----------------------------------------------------------------------------------------------¦ ¦ ¦ The defendant shall not possess, view, listen to, or go to locations where any ¦ ¦ ¦ ¦ ¦ ¦ form of pornography, sexually stimulating material, or sexually oriented ¦ ¦ ¦ ¦ ¦ ¦ material is available. ¦ ¦ ¦ ¦ ¦ ¦During a residence contact on September 5, 2012, Mr. Yarbrough was found to ¦ ¦ ¦have ¦ ¦ ¦ ¦ ¦ ¦internet access on his cellular telephone. Mr. Yarbrough had been accessing ¦ ¦ ¦ ¦ ¦ ¦numerous websites including Twitter, Yahoo, Match.com and ¦ ¦ ¦adultfriendfinder.com. ¦ ¦1. ¦ ¦ ¦ ¦Mr. Yarbrough had downloaded hundreds of pornographic pictures onto his phone ¦ ¦ ¦ ¦ ¦ ¦and visit pornographic websites. Mr. Yarbrough accessed a website called ¦ ¦ ¦ ¦ ¦ ¦niftyarchive.com and read erotic stories, gay and bisexual oriented with incest ¦ ¦ ¦ ¦ ¦ ¦themes and intergenerational themes, relationships with fathers and sons. The ¦ ¦ ¦sons ¦ ¦ ¦ ¦ ¦ ¦were as young as five or six. The defendant advised he had been using the ¦ ¦ ¦internet ¦ ¦ ¦ ¦ ¦ ¦through his phone since July 2012. ¦ +---------------+-----------------------------------------------------------------------------------------------¦ ¦ ¦ Shall submit a truthful and complete written report within the first five days of each month. ¦ ¦ ¦ ¦ ¦ ¦Mr. Yarbrough submitted monthly supervision reports from July and August 2012. ¦ ¦ ¦ ¦ ¦ ¦The reports contain questions pertaining to access to the internet or having ¦ ¦ ¦someone ¦ ¦ ¦ ¦ ¦2. ¦else access the internet on your behalf. Mr. Yarbrough did not report any ¦ ¦ ¦internet ¦ ¦ ¦ ¦ ¦ ¦access by himself during that time period. The report also questions whether ¦ ¦ ¦any ¦ ¦ ¦ ¦ ¦ ¦pornography has been viewed during the month. Again, Mr. Yarbrough answered no ¦ ¦ ¦ ¦ ¦ ¦to the question on both months. ¦ +---------------+-----------------------------------------------------------------------------------------------¦ ¦ ¦ The defendant shall not possess or use a computer or any device with access ¦ ¦ ¦ ¦ ¦ ¦ to any "online computer service" at any location without prior written ¦ ¦ ¦ ¦ ¦3. ¦ approval of the probation office. ¦ ¦ ¦ ¦ ¦ ¦Mr. Yarbrough possessed a cellular phone with internet connection without the ¦ ¦ ¦ ¦ ¦ ¦approval of the probation office. ¦ +---------------------------------------------------------------------------------------------------------------+
+--------------------------------------------------------------------------------------------+ ¦ ¦ Do not use sexually oriented telephone numbers or services. ¦ ¦ ¦ ¦ ¦ ¦Mr. Yarbrough admitted calling a sex phone line called Megamate. He advised he ¦ ¦ ¦ ¦ ¦ ¦had phone sex on at least four occasions. Mr. Yarbrough reported that two men ¦ ¦ ¦ ¦ ¦ ¦he encountered on the phone chat line, he later met in person for sexual ¦ ¦ ¦relations. ¦ ¦4. ¦ ¦ ¦ ¦Mr. Yarbrough posted his phone number on an internet bulletin board asking for ¦ ¦ ¦ ¦ ¦ ¦texts in the gay men section. He also called a personals number advertised in ¦ ¦ ¦the ¦ ¦ ¦ ¦ ¦ ¦Clarksville Leaf Chronicle. He posted a free profile and message in order to be ¦ ¦ ¦ ¦ ¦ ¦able to leave messages for paying subscribers. ¦ +-----------+--------------------------------------------------------------------------------¦ ¦ ¦ The defendant shall not possess, view, listen to, or go to locations where any ¦ ¦ ¦ ¦ ¦ ¦ form of pornography, sexually stimulating material, or sexually oriented ¦ ¦5. ¦ ¦ ¦ ¦ material is available. ¦ ¦New ¦ ¦ ¦ ¦Mr. Yarbrough reported that in July 2012, he drew a picture of an adult male ¦ ¦Violation ¦ ¦ ¦ ¦raping an 8 year old male while a 14 year old male watched. He advised he ¦ ¦ ¦ ¦ ¦ ¦masturbated to this drawing several times and then destroyed the drawing. ¦ +-----------+--------------------------------------------------------------------------------¦ ¦ ¦ The defendant shall participate in a specialized sex offender treatment ¦ ¦ ¦ ¦ ¦6. ¦ program that may include the use of a plethysmograph and polygraph. ¦ ¦ ¦ ¦ ¦New ¦Mr. Yarbrough was terminated from sex offender treatment on October 23, 2012. ¦ ¦ ¦ ¦ ¦Violation ¦The termination was based on violations of a number of the treatment program ¦ ¦ ¦ ¦ ¦ ¦rules and program expectations. ¦ +--------------------------------------------------------------------------------------------+ Compliance with Supervision Conditions and Prior Interventions:
Mr. Yarbrough began his supervised release on March 2, 2012, and he is currently scheduled to terminate supervision on March 1, 2027.
Upon his release from BOP custody, Mr. Yarbrough was approved to reside at 5547 Louise Road, Cumberland Furnance, Tennessee, with his parents. On May 17, 2012, Mr. Yarbrough was permitted to move next door to his parents at 5535 Louise Road. This is a residence owned by his parents. Mr. Yarbrough began sex offender treatment with Luton/Centerstone Mental Health on May 1, 2012. He advised the two times he met men for sex were after leaving treatment sessions. Update of Offender Characteristics:
There is no additional information relevant to this section that has not already been provided in this petition.
U.S. Probation Officer Recommendation:
It is respectfully requested that Your Honor consider the additional violations when Kenneth Yarbrough appears before the Court.
The United States Attorney's Office has been consulted and concurs with this recommendation. Approved: _______________
Britton Shelton
Supervisory U.S. Probation Officer
SENTENCING RECOMMENDATION
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
UNITED STATES V. KENNETH CHARLES YARBROUGH, CASE NO.
GRADE OF VIOLATION: C
CRIMINAL HISTORY: I
ORIGINAL OFFENSE DATE: POST APRIL 30, 2003 PROTECT ACT PROVISIONS
+--------------------------------------------------------------------------------+ ¦ ¦Statutory ¦Guideline ¦Recommended ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦Provisions ¦Provisions ¦Sentence ¦ +----------+--------------------------+-------------------------+----------------¦ ¦ ¦2 years (Class C felony) ¦3-9 months ¦No ¦ ¦CUSTODY: ¦ ¦ ¦ ¦ ¦ ¦18 U.S.C. §3583(e)(3) ¦U.S.S.G. §7B1.4(a) ¦recommendation ¦ +----------+--------------------------+-------------------------+----------------¦ ¦ ¦Any term of years or ¦1 year to life less any ¦ ¦ ¦SUPERVISED¦ ¦ ¦No ¦ ¦ ¦life less imprisonment ¦term of imprisonment ¦ ¦ ¦RELEASE: ¦ ¦ ¦recommendation ¦ ¦ ¦18 U.S.C. 3583(h) ¦U.S.S.G. §5D1.2(b)(2) ¦ ¦ +--------------------------------------------------------------------------------+ 18 U.S.C. § 3583(e)(3) allows for revocation of supervised release and requires the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release without credit for time previously served on postrelease supervision, if the Court finds by a preponderance of the evidence that the offender violated a condition of supervised release. When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment that is less than the maximum term of imprisonment authorized under subsection (e)(3), the Court may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release, in accordance with 18 U.S.C. § 3583(h). Guideline Policy Statements: Pursuant to U.S.S.G. § 7B1.3(a)(2), upon a finding of a Grade C violation, the Court may (A) revoke probation or supervised release; or (B) extend the term of probation or supervised release and/or modify the conditions of supervision.
Respectfully Submitted,
_______________
Donna Jackson
Intensive Supervision Specialist
Approved: _______________
Britton Shelton
Supervisory U.S. Probation Officer