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United States v. Poignant

United States District Court, S.D. Florida

June 6, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSEPH POIGNANT, Defendant.

          REPORT AND RECOMMENDATION ON FINAL HEARING IN RESPECT TO THE PETITION ALLEGING VIOLATIONS OF SUPERVISED RELEASE

          SHANIEK M. MAYNARD UNITED STATES MAGISTRATE JUDGE

         THIS CAUSE having come on to be heard for a final hearing on the Petition Alleging Violations of Supervised Release (the "Petition") [D.E. 121], and this Court having conducted a hearing and received testimony and arguments of counsel on May 29, 2018, makes the following recommendations to the District Court:

         1. Defendant's supervision began on March 21, 2008. He was sentenced to a period of sixty months in the Federal Bureau of Prisons after having been convicted of using a facility, a computer, and means of interstate commerce to persuade, induce, entice or coerce an individual under the age of 18 years to engage in sexual activity in violation of Title 18, United States Code, Section 2422(b). As part of the Defendant's supervised release, the District Court ordered Defendant to participate in sex offender treatment. The Defendant was placed in the REACH[1] Program at the Clinical & Forensic Institute as part of his condition of sex offender aftercare.

         2. On January 6, 2011, Probation filed a petition alleging that Defendant violated his supervised release conditions by (1) possessing or using a computer with internet access and (2) failing to participate in sex offender treatment based on Defendant's unsuccessful discharge from the REACH sex offender program. [D.E. 59]. Defendant was found guilty of both violations by a preponderance of the evidence. [D.E. 72]. Defendant was sentenced to seven months' incarceration to be followed by seven years of supervised release. [D.E. 75, 76].

         3. On November 14, 2015, Probation filed a second petition alleging that Defendant violated conditions of supervised release by (1) possessing a tablet computer with internet access, (2) possessing and/or producing visual depictions of adults engaged in sexually explicit conduct, and (3) failing to be truthful with his probation officer. Defendant admitted these violations. Defendant was sentenced to eight months' incarceration to be followed by twenty years of supervised release. [D.E. 105, 106].

         4. On April 30, 2018, Probation filed the pending Petition alleging the following violation of supervised release:

Violation Number 1

         Violation of Special Condition, by failing to participate in a sex offender treatment program. On or about April 23, 2018, the defendant was unsuccessfully discharged by REACH, Clinical & Forensic Institute, as evidenced by the letter of unsuccessful discharge from treatment dated April 23, 2018.

         5. This Court held a final hearing on the Petition on May 29, 2018. The sole witness called by the government was Dr. Holly Goller, a licensed psychologist at the Clinical & Forensic Institute who specializes in the treatment of sex offenders. Dr. Goller received her doctorate degree in psychology in 2014 and her license to practice in 2016. Dr. Goller began treating Defendant in 2012 as a student practitioner working under the supervision of Dr. Lori Butts. She has treated Defendant continually since then except during his periods of incarceration and when she left to complete her pre-doctoral work in 2013/14.

         6. Dr. Goller testified that she resumed treatment with Defendant in September 2016 after he was released from his most recent period of incarceration. Defendant was placed on an Intensive Therapy Plan (ITP), which is a treatment plan specifically tailored to the client's individualized needs. Defendant's ITP required him to attend two group sessions per week and two individual sessions per month. This plan was more intensive than the usual treatment plan which generally required one weekly group meeting and one monthly individual session. Defendant's plan required twice as many sessions so he could work intensively on his urge control and anger management issues, cognitive distortions, and management of factors that would put him at risk of re-offending.

         7. According to Dr. Goller, Defendant began exhibiting deceptive and risky behaviors in January 2017 when she and Defendant's probation officer determined that Defendant was lying to them about having internet access. At first Defendant told them his girlfriend left her computer at his house but there was no internet access. He then admitted that the girlfriend also left her portable hotspot device (which provides internet access) but he claimed he did not know the password so could not access the internet. He finally admitted that he had set up the hotspot device for his girlfriend, and had retained the password at that time. Defendant also violated the terms of his ITP by going to beaches and to bars - places Defendant had identified in therapy as being "risky" for him because they provide access to desired victims.[2] Dr. Goller also reported that Defendant failed a polygraph on April 30, 2017 by exhibiting signs of deception when asked whether he had access to pornography or contact with anyone under 18. Dr. Goller explained that truthfulness is an important indicator of compliance when working with sex offenders. In her opinion, Defendant's failure to be forthcoming and his return to risky locations suggested a lack of compliance with treatment and re-engagement in his offense cycle. Dr. Goller counseled Defendant about his increasing levels of risk at his three month progress reviews.

         8. Another goal of Defendant's therapy was to help Defendant manage his anger. Dr. Goller testified that Defendant's ITP agreement included a three part plan for dealing with anger. First, Defendant was to take five minutes to calm down. Second, Defendant's group therapy peers would give him feedback on how his behavior affected them to help Defendant recognize the consequences of his behavior. Third, Dr. Goller would lead Defendant through a guided therapeutic process to help him understand his feelings and thoughts. Defendant agreed in his ITP to utilize this three part plan, and communicated the plan to his peers during a subsequent group session.

         9. On April 16, 2018, Defendant became angry and lost his temper during a group therapy session. The conflict started when Defendant raised his hand to say he wanted to share his presentation but could not do so because there was not enough time left in the session. Defendant was upset because another participant took up more time than Defendant thought that person was entitled to, Dr. Goller explained. Dr. Goller told Defendant that there was enough time left in the session for him to present, and Defendant should go ahead and share. Defendant became angry, raising his voice, turning red, and refusing to respond to Dr. Goller's efforts to redirect him. After ten to fifteen minutes of trying to get Defendant to use his anger management strategies, Dr. Goller asked him to leave. Defendant became verbally aggressive, stating, "This is fucking bullshit!" and mumbling "fuck this" under his breath as he walked out the door. Defendant sat in his car in the parking lot instead of leaving the premises. Dr. Goller testified that all REACH participants - including Defendant-are told verbally as well as in the program handbook that they must be respectful to others during treatment. Failing to do so is a violation of one's ITP. Participants are also told that it is against the rules for them to linger on the premises after therapy. Despite this, when Dr. Goller went to the parking lot and told Defendant to leave, he rolled up his window. Dr. Goller knocked on the window and said she would call the police if he did not leave. Defendant complied at that point and drove away.

         10. On cross-examination, Dr. Goller acknowledged that going to the beach or to a bar is not illegal. She also admitted that Defendant never self-reported accessing pornography, using a computer for inappropriate purposes, or engaging in any illegal activity. Dr. Goller is aware that April 2018 was the two-year anniversary of Defendant's mother's death by suicide. She knew about Defendant's bereavement issues due to the loss of his mother. She knew that Defendant claimed he was sexually abused as a child. She also knew that Defendant's psychiatrist had prescribed an antidepressant to Defendant. Nonetheless, Dr. Goller's professional opinion is that Defendant is not depressed or anxious and does not suffer from posttraumatic stress disorder (PTSD). Dr. Goller testified that Defendant was discharged for a number of reasons, including his angry outburst on April 16, 2018. Specifically, ...


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