Honorable Deborah M. Fine United States Magistrate Judge

FINDINGS AND RECOMMENDATION OF THE MAGISTRATE JUDGE

TO THE HONORABLE SUSAN R. BOLTON, SENIOR U. S. DISTRICT JUDGE:

On February 19, 2019, a Superseding Petition to Revoke Supervised Release was filed against Defendant (Doc. 82). The petition alleges that Defendant violated Special Condition No. 6 and Standard Condition No. 13.

Special Condition No. 6 required that Defendant "reside and participate in Beautiful Beginnings, a residential care program providing mental health and substance abuse treatment, or a similar program approved by the probation officer, for 180 days unless discharged earlier by the probation officer" (Docs. 82, 72). Specifically, the Superseding Petition alleges that Defendant "failed to reside and participate in Beautiful Beginnings" for 180 days as required because "[o]n or about October 9, 2018, [Defendant] was unsuccessfully discharged from Beautiful Beginnings" (Doc. 82).

Standard Condition No. 13 required that Defendant "must follow the instructions of the probation officer related to the conditions of supervision" (Doc. 82; General Order 17-08). Specifically, the Superseding Petition alleges that Defendant "failed to submit documentation from Community Bridges on or about October 23, 2018" (Doc. 82).

Defendant, who was previously detained pending petition to revoke proceedings (Docs. 76, 78), appeared before this Court on February 27, 2019, for an initial appearance on the alleged supervised release violations in the Superseding Petition, consented to proceed with an admit/deny hearing before a magistrate judge, entered denials, and requested a revocation hearing be set (Docs. 84, 85). The revocation hearing was held before undersigned on March 13, 2019, with the written consent of the Defendant, Defendant's counsel, and counsel for the Government. (Docs. 87, 88, 89.)

The Court has considered the exhibits presented, the testimony provided under oath and on the record and in the presence of counsel, the remarks of the Assistant United States Attorney, and of Defendant's counsel at the revocation hearing. In assessing a witness's credibility, among other things, the Court's considerations include the demeanor of a witness, the incentives of the witness, the internal consistency of a witness's testimony, the consistency of the testimony with the documentary evidence, and whether the witness directly answered the questions asked.

The Court finds that witnesses Torres and Duah, called by the Government, were credible and presented reliable evidence, including documentary evidence. While the Court finds that most of Defendant's testimony was not reliable or consistently credible, as discussed below, Defendant's testimony about the lack of documentation about her short stay at Community Bridges had the ring of truth enough for the Court, absent contrary evidence, to have significant concern about whether it was possible for Defendant to comply with Probation Officer Torres' directive to provide Community Bridges documentation on October 23, 2018.

The evidence was undisputed that Defendant was aware of all her supervision conditions, including the ones at issue at the time of her placement at Beautiful Beginnings on September 28, 2018.

Judge Bolton specified Beautiful Beginnings as the residential facility in Special Condition No. 6 at which Defendant would spend 180 days unless discharged earlier by the probation officer. The probation officer's testimony was clear that she did not discharge Defendant from Beautiful Beginnings earlier than 180 days; rather, Defendant was unsuccessfully discharged from Beautiful Beginnings a few weeks into her placement there.

Defendant testified that her unsuccessful discharge from Beautiful Beginnings on or about October 9, 2018, was not appropriate and was unfair. Defendant testified she was discharged for behavior that she did not know was against the rules, relating to keeping a partial cigarette in her pocket the first day or so after placement, that she was discharged for behaviors in which she did not engage, relating to snacking outside designated times, and that she was discharged for raising her voice on one occasion because she legitimately needed medical help, or a medical assessment at least, and therefore called 911 herself in violation of Beautiful Beginnings' rules.

The Court finds Defendant not credible regarding her conduct at Beautiful Beginnings. If Defendant tried to hide at the revocation hearing her hostility about having been placed at Beautiful Beginnings to begin with, her efforts were wholly unsuccessful. Defendant's testimony was consistent with her demeanor that she was extremely displeased, and quite angry, with the Beautiful Beginnings placement. Defendant testified that she repeatedly complained to her probation officer about Beautiful Beginnings while Defendant was at Beautiful Beginnings between September 28, 2018, and October 9, 2018. During her testimony, Defendant acknowledged that she understood she was ordered to be at Beautiful Beginnings and that her opinions about the quality of services at Beautiful Beginnings did not negate the Court's Order that she be there. Yet, Defendant repeatedly testified to her negative opinions regarding the services provided and staff performance at Beautiful Beginnings.

The Government called the owner and program director of Beautiful Beginnings, Josephine Duah, to testify at the revocation hearing. Ms. Duah testified that she had owned Beautiful Beginnings, which had six homes in all, for ten years. Ms. Duah's main office is located in the home in which Defendant was placed, and, thus, Ms. Duah spent much of her time at that location. Ms. Duah testified about her own observations and from what her staff had reported to her about Defendant. Ms. Duah authenticated the discharge summary (Exhibit 4) and confirmed she was the author. Ms. Duah testified that the staff notes in Exhibit 5 were made close to the observations therein and were the kind regularly kept in the course of business operations regarding all residents. The discharge summary (Exhibit 4) and other Beautiful Beginnings records (portions admitted of Exhibit 5) are consistent with Ms. Duah's testimony about Defendant's conduct at Beautiful Beginnings and belie Defendant's testimony on important points.

Ms. Duah testified that during Defendant's stay at Beautiful Beginnings, it was necessary for Ms. Duah or staff to speak with Defendant almost daily about her behavior. Ms. Duah testified that Defendant argued with staff; the discharge summary states Defendant would "pick arguments." Ms. Duah testified that Defendant had been loud and disruptive during nighttime hours on more than the one occasion when Defendant called the ambulance on October 3, 2018. The discharge summary details that "the night prior to discharge," which was October 8, 2018 given the October 9, 2018 discharge, Defendant "started again yelling in the home and the other clients became upset." Ms. Duah testified that Defendant had broken rules regarding smoking more than two times. Noteworthy to the Court is that Defendant was readily able to recite such rules when she testified. As Defendant testified, there were designated smoking times every two hours beginning at 8:30 a.m., and the designated smoking place was outside the home in an area with tables; staff kept cigarettes locked, staff handed each resident one cigarette each smoking break, and partially smoked cigarettes were not to be taken from the smoking area.

Staff notes reflect that on October 4, 2018, at 2 p.m., which was outside of smoking break hours, Defendant "was sitting out back smoking upon staff arrival" and then "went back to her room/layed on the floor" and later "had 2:30 p.m. cigarette." On October 5, 2018, the notes reflect that Defendant woke "wanting a cigarette" and acted "hostyle [sic] when she doesn't get her way" and asks staff "multiple times to sneak a cig for her." The 5 p.m. entry reports that there were problems with Defendant following cigarette rules and "staff advised her she could not take cigarettes in her room." Later, at 10 p.m., Defendant "went back to her room w/cigarette. Staff went/got a cigarette from" Defendant. Even later, Defendant "went into snack closet w/o permission." On October 8, 2018, the notes from 2 p.m. reflect that Defendant "went out back @ 6:05 pm" and "smoked a cigarette that she kept w/o permission." Further, "staff advised [Defendant] it was not smoke break/asked her to put it out. She continued to smoke."

The Court finds that such repeated violations of facility rules, coupled with Defendant's angrily acting out, were rightfully considered disruptive by Ms. Duah and her staff. The unsuccessful discharge from Beautiful Beginnings was due to knowing violations by Defendant of Beautiful Beginnings' rules and reasonable expectations about conduct.

Defendant also testified that she was not in violation of Special Condition No. 6 after discharge from Beautiful Beginnings because she made significant efforts to stay at a suitable replacement facility but was unable to do so. The Court disagrees about the basis of Defendant's argument. First, as discussed above, Defendant violated Special Condition No. 6 in her unsuccessful termination from Beautiful Beginnings. Further, for a different facility to substitute for Beautiful Beginnings, Special Condition No. 6 required the substituted facility to have the approval of the probation officer. The probation officer did not approve any facility other than Beautiful Beginnings. Indeed, the probation officer lacked opportunity to do so because Defendant failed to report as instructed to probation on October 23, 2018, during Defendant's search for a replacement facility.

There was persuasive evidence from Probation Officer Torres' testimony that Defendant was clearly and repeatedly instructed to report to the probation officer on October 23, 2018, but did not report as instructed in violation of Standard Condition No. 13. If the Court were evaluating an allegation that Defendant had violated Standard Condition No. 13 in her failure to report in person to the probation office on October 23, 2018, from the evidence presented at the hearing the Court could find by a preponderance of the evidence that Defendant had violated her supervision in this way. That is not the allegation before the Court. The allegation before the Court insofar as a violation of Standard Condition No. 13 (that Defendant follow instructions by the probation officer) is that Defendant failed to provide Community Bridges documentation on October 23, 2018, as instructed. By the testimony presented at the hearing, the Community Bridges stay for which Defendant was to provide documentation was Defendant's overnight stay on October 9, 2018. Defendant was adamant in her hearing testimony that presenting such documentation was impossible because Community Bridges provides no documentation of any kind for the type of stay Defendant testified that she had on October 9, 2018, an overnight detox. No contrary evidence was offered or admitted. Despite that the Court found Defendant not credible on many points, on this point, the Defendant's testimony was enough that the Court cannot find by a preponderance of the evidence that Defendant violated Standard Condition No. 13 for failing to submit paperwork from Community Bridges to the probation officer on October 23, 2018.

Accordingly,

The Court finds by a preponderance of the evidence that Defendant violated Special Condition No. 6 as alleged in allegation A of the Superseding Petition because she was unsuccessfully discharged from Beautiful Beginnings for violations of Beautiful Beginnings rules of which Defendant was aware and failed to follow several times during her short time there.

The Court cannot find that it was shown by a preponderance of the evidence that Defendant violated Standard Condition No. 13 as alleged in allegation B of the Superseding Petition for failing to submit paperwork from Community Bridges to the probation officer on October 23, 2018.

IT IS THEREFORE RECOMMENDED that the Court find that Defendant violated Special Condition No. 6 of her supervised release as alleged in allegation A of the Superseding Petition (Doc. 82).

IT IS FURTHER RECOMMENDED that the Court not find that Defendant violated Standard Condition No. 13 for failing to submit paperwork from Community Bridges to the probation officer on October 23, 2018 (Doc. 82).

ORDER

IT IS ORDERED that a Final Disposition Hearing is set for April 9, 2019, at 1:30 p.m., in Courtroom 502, 401 West Washington Street, Phoenix, AZ 85003 before the Honorable Susan R. Bolton.

IT IS ORDERED that any objection to the Court's findings and recommendation be made by the parties in writing and shall be specific as to the objection or request made. All objections shall be filed within fourteen (14) days of the date of service of a copy of these findings unless extended by an Order of the assigned district judge. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(b)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.

IT IS FURTHER ORDERED that any letters, documents, or other matters Defendant would like the disposition judge to consider before disposition (including the English translation of any writings not in English) must be submitted in paper form with the original to the probation office and copies to the disposition judge and opposing counsel no later than five (5) business days prior to the disposition date or they may be deemed untimely by the disposition judge and not considered. No more than ten (10) character letters shall be submitted by defense counsel, unless otherwise ordered by the Court. Character letters shall not be mailed directly to the disposition judge by any family members or other persons writing in support of Defendant. Character letters or a notice of service of such letters shall not be filed electronically unless otherwise ordered by the Court.

IT IS FURTHER ORDERED that any motions for upward or downward departures or any disposition memoranda must be filed at least seven (7) business days prior to the disposition date. Responses are due three (3) business days prior to the disposition date. Any motion to continue disposition must be filed promptly upon discovery of the cause for continuance and must state the cause with specificity. Motions to continue disposition filed less than fourteen (14) days before disposition are disfavored. If either party intends to call a speaker at disposition, other than the Defendant, counsel must notify the Courtroom Deputy at least three (3) business days in advance.

Dated this 14th day of March, 2019.

/s/ _________

Honorable Deborah M. Fine

United States Magistrate Judge