United States District Court, S.D. Florida
REPORT AND RECOMMENDATION ON FINAL HEARING IN RESPECT
TO THE PETITION ALLEGING VIOLATIONS OF SUPERVISED RELEASE
J. Lynch, Jr. Judge
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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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 ...