United States District Court, S.D. Florida
REPORT AND RECOMMENDATION ON FINAL HEARING IN RESPECT
TO THE PETITION ALLEGING VIOLATIONS OF SUPERVISED
SHANIEK M. MAYNARD UNITED STATES MAGISTRATE JUDGE
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:
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 Program at the Clinical
& Forensic Institute as part of his condition of sex
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].
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].
April 30, 2018, Probation filed the pending Petition alleging
the following violation of supervised release:
Violation Number 1
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,
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.
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.
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. 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.
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
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
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, ...