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United States v. Everhart

United States District Court, S.D. Florida

March 3, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN PAUL EVERHART, II, Defendant.

          REPORT AND RECOMMENDATION ON FINAL HEARING IN RESPECT TO THE PETITION ALLEGING VIOLATIONS OF SUPERVISED RELEASE [D.E.120]

          Frank J. Lynch, Jr. Judge

         THIS CAUSE having come on to be heard for a final hearing on March 2, 2017, in respect to the pending Petition Alleging Violations of Supervised Release [D.E. 120], and this Court having received testimony, evidence, and arguments of counsel, recommends to the District Court as follows:

         1. The Defendant is charged by a Petition with the following violations of supervised release:

Violation Number 1 Violation of Mandatory Condition, by failing to refrain from violation of the law. On or about March 16, 2016, in Saint Lucie County, Florida, the defendant committed the offense of failure of sex offender to report in person to the Department of Highway Safety and Motor Vehicles within 48 hours after a change in permanent, temporary, or transient residence, contrary to Florida Statute 943.0435(4)(a).
Violation Number 2 Violation of Mandatory Condition, by failing to refrain from violation of the law. On or about March 17, 2016, in Saint Lucie County, Florida, the defendant did threaten Frank LaFergola, contrary to Florida Statute 836.05.
Violation Number 3 Violation of Standard Condition, by associating with a person who is a convicted felon without permission of the U.S. Probation Officer. On or about March 17, 2016, the defendant knowingly associated with Frank LaFergola, a known convicted felon.

         2. The first witness called by the government was United States Probation Officer Robert Tango. He has been supervising the Defendant since March 11, 2016. He identified the Defendant in open court as the person he is presently supervising. The Defendant was advised of all conditions of supervised release by his U.S. Probation Officer upon his release from prison. Further, the Defendant is advised every time that he comes to the Probation Office in Fort Pierce, to not associate with any convicted felons unless permission is granted in advance by his U.S. Probation Officer.

         3. The Defendant was charged in St. Lucie County state court with failing to report in person to the Department of Highway Safety and Motor Vehicles within forty-eight hours of a change in permanent address. This offense allegedly occurred on March 16, 2016. The Defendant ended up entering a plea of nolo contendere in that case and the Judgment and Conviction along with fingerprints were admitted into evidence as Government's Exhibit No. 1 at this hearing. The Defendant was adjudicated guilty in that state case and committed to the Florida Department of Corrections for a period of 366 days as the exhibit so reflects.

         4. Counsel for the government requested that this Court take judicial notice of [D.E. 107] and [D.E. 119] in this case. [D.E. 107] is this Court's previous Report and Recommendation dated May 29, 2015 in this case in which the Court conducted a prior hearing concerning previous violations of supervised release. [D.E. 119] is the District Court's Judgment and Commitment based upon the final hearing this Court held as reflected in its Report and Recommendation [D.E. 107]. Counsel for the Defendant had no objection and later during the proceeding the government submitted the request for the Court to take judicial notice of those documents to reflect that the Defendant previously knew that he was not to associate with Frank LaFergola and that he has previously been found to have violated his supervised release in respect to his contact with Mr. LaFergola, a convicted felon.

         5. On cross-examination, Mr. Tango testified that the Defendant was released from prison on or about March 11, 2016 when he began supervising the Defendant. The Defendant was to report on Monday, March 14th since March 11th was a Friday. The Defendant did report on March 14, 2016 both to the St. Lucie County Sheriff's Office to make his registration as a sex offender current there and to the U.S. Probation Office.

         6. Defendant's Exhibit No. 1 admitted into evidence at this hearing is an e-mail to Mr. Tango from Tonya Hill with the Bureau of Prisons concerning a request that the Defendant be given housing assistance. According to Mr. Tango, this request was denied by his office since the Defendant had previously been supported by his mother and was living with her and also had family assistance with his residence at the Sunset Inn on U.S. Highway 1 in Fort Pierce where the Defendant began to reside when he was released from prison on March 11, 2016.

         7. Mr. Tango testified that the Defendant had 48 hours from March 11, 2016 to go to the Department of Highway Safety and Motor Vehicles (DMV) to change his address as a registered sex offender. Since the weekend intervened, it was Mr. Tango's understanding that the sheriff's office would not enforce that 48 hours until the next business day. Therefore, the Defendant had the following Monday and Tuesday in full to make sure that he had his registration with the DMV current on or before March 16, 2016 which was actually the third day after the weekend.

         8. Defendant's Exhibit No. 2 admitted into evidence at this hearing is a copy showing that his registration with the Department of Highway Safety and Motor Vehicles was in fact not done until March 17, 2016. This Court is not exactly certain why the Defendant wanted to introduce this as an exhibit since it establishes that the Defendant did not comply and have his registration with the DMV changed by March 16, 2016 which was the date he was required to do so. Nevertheless, this Court did admit that exhibit into evidence at this hearing.

         9. Mr. Tango testified that he contacted Detective DeMichael of the St. Lucie County Sheriff's Office to determine if the Defendant had in fact registered with the St. Lucie County Sheriff's Office as required and if the Defendant had made the change of address with the DMV as required as a registered sex offender. While the Defendant did register with the St. Lucie County Sheriff's Office, it was confirmed that he had not so registered with the DMV on or before March 16, 2016.

         10. Defendant's Exhibit No. 4 admitted into evidence at this hearing is an arrest warrant for the Defendant for the state offense referenced above which resulted in his conviction and sentence in state court.

         11. Mr. Tango testified that on March 17, 2016 at approximately 10:00 a.m. the Defendant met with him at the U.S. Probation Office here in Fort Pierce. The Defendant still had his driver's license with the old address of Florida Avenue in Fort Pierce. The Defendant did not say that he was going to change that address immediately upon leaving the Probation Office and he did not say that he was going to do that. However, it was determined that he did make the change at the DMV later that day on March 17, 2016, which was beyond the 48 hour period required.

         12. Defendant's Exhibit No. 5 admitted into evidence at this hearing is the Petition in this case. As this Court stated on the record, the Petition is part of the record and the Court did not understand why the Defendant needed it in evidence. However, since the Defendant requested that, the Court admitted the Petition into evidence as Defendant's Exhibit No. 5. Defendant's Exhibit No. 6 is ...


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