Opinion
CR 18-107WES
07-10-2023
UNITED STATES OF AMERICA v. ANTHONY WASHBURN
REPORT AND RECOMMENDATION
Patricia A. Sullivan, United States Magistrate Judge
This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) and 18 U.S.C. § 3401(i) for proposed findings of fact concerning whether Defendant Anthony Washburn is in violation of the terms of his supervised release and, if so, for recommended disposition. In compliance with that directive and in accordance with 18 U.S.C. § 3583(e) and Fed. R. Crim. P. 32.1, hearings were held on May 2, 2023, and June 6 and 16, 2023.
For the reasons that follow, I recommend that the Court adopt my conclusion that Defendant is guilty of part of what is charged in Violation No. 1 because the evidence establishes that he committed the following crimes: Count 1: Domestic Violence - Felony Assault and/or Battery; Count 2: Domestic Violence - Felony Assault and/or Battery; Count 5: Possession of a Firearm Prohibited Person Convicted; Count 6: Possession of Ghost Gun/Undetectable Firearm/Firearm; Count 7: Domestic Violence - Simple Assault and/or Battery; and Count 8: Domestic Violence - Disorderly Conduct. As to the remaining charges in Violation No. 1 [Count 3: Using a Firearm When Committing a Crime of Violence; and Count 4: Domestic Violence - Assault by Strangulation], I recommend a finding of not guilty. Based on Defendant's admission to Violation No. 2 and my finding of guilt on some of the charges in Violation No. 1, I recommend that the Court impose a sentence of incarceration for twenty-four months with supervised release of twelve months to follow, subject to the following conditions:
The defendant shall participate in a program of substance abuse treatment (inpatient or outpatient), as directed and approved by the Probation Office.
The defendant shall participate in a program of substance abuse testing (up to 72 drug tests per year) as directed and approved by the Probation Office.
The defendant shall participate in a program of mental health treatment as directed and approved by the Probation Office.
The defendant shall contribute to the cost of all ordered treatment and testing based on ability to pay as determined by the probation officer.
The defendant shall permit the probation officer, who may be accompanied by either local, state, or federal law enforcement authorities, upon reasonable suspicion of a violation of supervision by possessing firearms, to conduct a search of the defendant's residence, automobile, and any other property under the defendant's control or ownership.
I. BACKGROUND
On February 8, 2023, the Court granted the Probation Office's Petition for the issuance of a warrant charging Defendant with the following violations:
Violation No. 1: Mandatory Condition: You must not commit another federal, state or local crime.
On February 7, 2023, Anthony Washburn committed the following offenses, as evidenced by an Incident Report prepared by Pawtucket Police. Count 1: Domestic Violence - Felony Assault and/or Battery. Count 2: Domestic Violence - Felony Assault and/or Battery. Count 3: Using a Firearm When Committing a Crime of Violence. Count 4: Domestic Violence - Assault by Strangulation. Count 5: Possession of a Firearm Prohibited Person Convicted. Count 6: Possession of Ghost Gun/Undetectable Firearm/Firearm. Count 7: Domestic Violence - Simple Assault and/or Battery. Count 8: Domestic Violence -Disorderly Conduct. Mr. Washburn remains at large.
Violation No. 2: Mandatory Condition: You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the court.
On October 18, 2022, Anthony Washburn tested positive for marijuana and on January 17, 2023, Anthony Washburn tested positive for cocaine, both as evidenced by his positive drug test results.
An initial appearance was conducted on May 2, 2023, at which I ordered that Defendant be detained and issued an order of no contact with the alleged victim of Violation No. 1. Following Defendant's request for a continuance, a revocation hearing was conducted on June 6, 2023, during which Defendant admitted Violation No. 2 (based on two positive drug screens, one for cocaine and one for marijuana) and the Court received evidence and heard arguments regarding Violation No. 1. Based on the admission, I found Defendant guilty of Violation No. 2. At the end of the evidentiary hearing on Violation No. 1, I took the issue of guilt under advisement. By text order issued on June 14, 2023, and at a hearing on June 16, 2023, I announced my proposed finding that Defendant is guilty of some but not all of the criminal charges in Violation No. 1; at the June 16 hearing, the parties presented their sentencing arguments, and Defendant was offered but declined his right to allocution.
II. REVOCATION HEARING - VIOLATION NO. 1
A. Defendant's Pertinent Criminal History
As the parties stipulated, on April 5, 2019, Defendant was convicted in this Court following a guilty plea of the felonies of being a felon in possession of a firearm (18 U.S.C. § 922(g)) and possessing a firearm with intent to commit a felony (18 U.S.C. § 924(b)(2)) for which he was sentenced to imprisonment for fifty-one months. At the time of imposition of the federal sentence, Defendant was classified as criminal history VI, based inter alia on two state felony convictions for distribution of controlled (schedule I/II) substances (crack cocaine) - P22012-3024B and P2-2005-1909A. ECF No. 21 at 7-17. Defendant's criminal history also reflects four charges of domestic assault or vandalism that were dismissed and one that was pending as of the date when the presentence investigation report in this case was prepared. Id. at 18-20. Defendant began supervised release on March 8, 2022, to terminate on March 7, 2025.
B. Violation No. 1 as Charged in Petition and Described in Underlying Report
Violation No. 1 charges Defendant with eight state law crimes:
1. Domestic Violence - Felony Assault and/or Battery.
2. Domestic Violence - Felony Assault and/or Battery.
3. Using a Firearm When Committing a Crime of Violence (Felony).
4. Domestic Violence - Assault by Strangulation (Felony).
5. Possession of a Firearm Prohibited Person Convicted (Felony).
6. Possession of Ghost Gun/Undetectable Firearm/Firearm (Felony).
7. Domestic Violence - Simple Assault and/or Battery (Misdemeanor).
8. Domestic Violence - Disorderly Conduct (Misdemeanor).
Using boiler plate language that references the date of the Pawtucket Police Incident Report, the Petition (ECF No. 43) lists the state charges and recites that “[o]n February 7, 2023, [Defendant] committed the following offenses, as evidenced by an Incident Report prepared by Pawtucket Police.”
As laid out in the Supervised Release Violation Report, ECF No. 43-1, a Pawtucket Police Officer was waved down by an individual - James Reardon - who told the Officer that his daughter, Amory Reardon (the “Victim”), “has been the victim of ongoing domestic violence (abused, beaten and tortured)” at the hands of her boyfriend, Defendant. The Victim was familiar to law enforcement as someone who had previously claimed Defendant was beating her. Reardon directed the Officer to 205 Sweet Avenue, Pawtucket, Rhode Island. The Officer responded to that address and the Victim opened the door. Observed by Law Enforcement, she had two visible black eyes and a cast on her hand and appeared to panic. She cried out repeatedly, “Please leave, he's going to kill me,” but also told the Officer that her visible injuries were sustained at the hands of Defendant. After confirming that Defendant was not present, the Violation Report reflects that the Officer asked the Victim if Defendant had any weapons with him and she said that he “owns” a firearm that was presently located in a bag in a closet in the residence. As described in the Violation Report, the Victim consented to Officers retrieving the firearm and they found a loaded firearm, gloves and a mask.
C. Reason for Government's Failure to Call Victim to Testify
Before the revocation hearing began, the government represented that the Victim had been contacted by the prosecutor about testifying at the hearing. The Victim stated that she did not want to be involved, that she would not come to court, and that she would not provide her current address or location (which would allow her to be served with a subpoena). As a disclosure of potentially exculpatory information, the government also represented that the Victim told the prosecutor that she loves Defendant, that her statements to law enforcement (as described infra) were lies and that she wants Defendant to be released to live a normal life. The government further represented that, if it could have procured her attendance, she would have been called to testify without regard to her recantation of prior statements. The Victim did not appear and did not testify.
D. Evidence Presented at Revocation Hearing
During the revocation hearing, the government called three witnesses (retired Pawtucket Police Officer Emilio Mejia, Pawtucket Police BCI Detective Mark Ramos and Pawtucket Police Detective Evan Della Torre) and marked twenty-three exhibits, all of which were admitted in full. Two of the government's exhibits were videos; one (Ex. 21) was an excerpt from the police interview of the Victim and the other (Ex. 22) was an excerpt from the police interview of Defendant. Defendant cross examined the government's witnesses and offered one exhibit (Ex. A), which was admitted full. I found all three of the government's witnesses highly credible.
During his testimony, Officer Mejia described a prior encounter he had with the Victim in January 2023, when she was on the street almost naked and said her boyfriend (Defendant) abused her and she left without time to get her clothes. However, on that occasion, Officer Mejia observed no injuries and concluded there was not enough information to investigate further.
Regarding February 7, 2023, Officer Mejia testified that he was on patrol when the Victim's father directed him to 205 Sweet Avenue, Pawtucket, regarding his daughter. Officer Mejia asked the father to wait on the street and knocked on the door of 205 Sweet Avenue. It was opened by the Victim who had two black eyes and a cast on her arm; when she saw that Officer Mejia was a police officer, she said, “Please leave, please leave, he's going to kill me.” Because she kept looking back into the apartment and frantically repeating “please leave, he's going to kill me,” Officer Mejia was worried that the individual she feared might be present; therefore, he entered and cleared the apartment, confirming that no one else was present. Then he began to question the Victim. She told Officer Mejia that she and Defendant both live together in the residence and had been living there together for months. As the Victim spoke to Officer Mejia, she continued to be frantic, continued to ask Officer Mejia to leave because “he's going to kill me,” but also described months of abuse by Defendant, including that the visible black eyes and her casted arm were the result of what Defendant did to her.
Officer Mejia asked the Victim if Defendant had any guns on him. She said that he has a gun but it was not with him because it was in their residence; she pointed to a closet. Officer Mejia asked for her consent to search; the Victim said yes and led him to where he found a bag containing a loaded firearm and magazine with a mask and gloves. Officer Mejia cleared the gun for safety.
During the interview at the apartment, every time Officer Mejia asked for details of the abuse, the Victim got frantic. He tried to calm her, but she stated she was afraid of Defendant and he would kill her if he knew she spoke to law enforcement. Officer Mejia took the Victim to the station “so she would feel more comfortable.” Her parents also came to the station. Other than completing a domestic abuse form with the Victim, Ex. A, and sitting with the Victim and her parents as they waited for Detectives to interview them, Officer Mejia was not involved further.
At no time during either interaction with the Victim (in January and on February 7, 2023) did Officer Mejia see signs of alcohol use nor did he make any observation that caused him to conclude that she was under the influence of alcohol or another substance. See Ex. A (domestic abuse form filled in by Officer Mejia indicates “unk[nown]” for drug/alcohol use). Officer Mejia later learned that the Victim's father had told a different officer that the Victim had a drinking problem. The Victim did not tell Officer Mejia that Defendant had hurt her on the day of his encounter with her, February 7, 2023.
BCI Detective Ramos testified next. He authenticated the photographs that he took after being summoned to 205 Sweet Avenue by Officer Mejia, some of which were entered as exhibits; these depict the Victim and her significant facial bruising, the residence and the firearm, cartridges, magazine, light, mask and gloves. Exs. 1, 3-4, 6-19. Detective Ramos confirmed, based on his examination and as reflected in his photographs (Exs. 12-15), that the firearm is a ghost gun. He also authenticated the Certificate of Testfire (Ex. 23), which confirmed that this ghost gun is an operable firearm.
One item that was also photographed was a red sweatshirt labelled “Blood Gang.” Exs. 5, 7. There is otherwise no evidence of Defendant's having gang involvement; I have ignored these two exhibits.
The third witness, Detective Della Torre, together with another officer, conducted a video-recorded interview of the Victim and, a day later, of Defendant. Detective Della Torre also spoke to the Victim's parents. He authenticated the excerpts of the interviews of the Victim (Ex. 21) and Defendant (Ex. 22). Not visible on the video or photographs of the Victim, but testified to by Detective Della Torre, were photographs of herself that the Victim showed him on her phone depicting what he observed as “deep bruising” on her body that she said was “everywhere” and was caused by Defendant beating her with a belt “almost two weeks ago.” She subsequently refused to provide her phone or copies of these photographs to law enforcement. As confirmed by the photographs of the Victim taken by Detective Ramos, Exs. 811, on February 7, 2023, she had significant bruising under each eye but no marks on her neck.
Exhibit 21 is the video of an excerpt of the Victim's interview at the police station on February 7, 2023, by Detective Della Torre and another officer. In it, the Victim may be observed and heard answering questions. While she is visibly upset, at times tearful and her voice is quiet and at time tremulous, her statements are clear and coherent and appear to be reliable and truthful. To this judicial officer, there is nothing observable on the video suggesting that her statements were affected by alcohol or other substances. Enhancing the Victim's credibility are her statements (visible and audible on Exhibit 21) that Defendant had not done anything to her on the night of February 7, 2023, that he had not done anything physical to her in at least a week, and (retracting what she told Officer Mejia) that the arm injury (with the cast) happened while she was roller skating with Defendant's children and it was not Defendant's fault.
Exhibit 21 shows the Victim describing four instances of recent abuse or potential abuse by Defendant.
First, the Victim stated that the large bruises readily visible under both her eyes were from an incident that had occurred “almost two weeks ago” when Defendant beat her with a belt because of messages she received from people on Instagram. She stated that she had (as of February 7, 2023) bruises all over her body (“everywhere”) from this beating, which are depicted in photographs. She showed these photographs to Detective Della Torre, which he observed depicted “deep bruising,” but she declined to provide copies or access to the phone to law enforcement.
Second, the Victim stated that, almost a month before February 7, 2023, Defendant had become upset because people messaged her. In response, Defendant hit the Victim with his hands, screamed at her, put his gun in her mouth and then tried to drown her in the bathroom “with the shower.” The Victim did not say that she experienced any injuries resulting from this incident. While describing this incident, the Victim became extremely upset, began to cry and told Officers that she did not want her parents to know about it. The Victim also said, prior to this incident, she had not seen or known what Defendant's gun looked like because she wanted “nothing to do with his outside shit.”
Third, the Victim also said that Defendant choked her “probably three weeks ago” (but no neck marks were noticeable). More vaguely, she also stated that he had “choked [her] out” at least three times but provided no details regarding the timing of these incidents.
Fourth, on Exhibit 21, the Victim may be seen and heard confirming Officer Mejia's testimony about the incident on a night in January 2023, when she encountered him in the street wearing almost nothing and told him Defendant abused her. She clarified that she had left her residence during the night in January wearing almost nothing because she was fleeing Defendant to avoid being hurt and that he did not actually hurt her that day.
Exhibit 22 is the interview of Defendant, who was interviewed while in Pawtucket police custody and given Miranda warnings before he was questioned. Defendant confirmed that he was currently living at 205 Sweet Avenue, Pawtucket, and has been living there for over a year. He confirmed that the Victim currently also was living there with him and has been living with him for a few months, since “about September.” He said that she had previously been homeless and he took her in. When asked about the visible bruises under the Victim's eyes, Defendant stated that the bruises were from when “me and her got in an altercation . . . a couple of weeks ago.” When pressed for details, Defendant asked for an attorney and the interview ended.
This statement was confirmed by other indicia that Defendant currently resided at 205 Sweet Avenue. Ex. 2 (appointment card for meeting with probation & parole); Ex. 20 (mail addressed to Defendant at 205 Sweet Avenue).
On cross examination, Detective Della Torre reported that, during the interview of the Victim's mother, the mother stated that the Victim had not told her that Defendant had caused her bruising but said it was an accident. Detective Della Torre also testified that the Victim's father said she has a drinking problem. Based on his own observations of the Victim during the interview (Ex. 21), Detective Della Torre did not discern that she was drunk.
E. Law, Findings and Analysis
The preponderance of the evidence is the applicable standard for the revocation of supervised release. See Johnson v. United States, 529 U.S. 694, 700 (2000) (violations of supervised release need only be found by a judge under a preponderance of the evidence standard) (citing 18 U.S.C. § 3583(e)(3)); United States v. Bergeron, No. CR 03-116S, 2011 WL 1458787, at *1 (D.R.I. Mar. 15, 2011), adopted, 2011 WL 1463629 (D.R.I. Apr. 14, 2011). Preponderance of the evidence “is a more-likely-than-not standard.” United States v. Tanco-Pizarro, 892 F.3d 472, 475 (1st Cir. 2018). In making findings based on a preponderance of the evidence, the Court may rely on plausible inferences that are grounded in the evidence; it may not rely on guesswork or speculation. See United States v. Montanez-Quinones, 911 F.3d 59, 73 (1st Cir. 2018) (Lipez, J., concurring); Figueroa v. Gelb, Civil Action No. 13-13008-IT, 2016 WL 3147354, at *2 (D. Mass. Apr. 20, 2016).
In this case, Defendant has asserted threshold arguments of law that must be addressed before the Court can analyze whether the government has sustained its burden of establishing that Defendant is guilty of any or all of the charges listed in the Petition.
1. Lack of Due Process Because Notice References February 7, 2023
Defendant's first threshold argument is based on the due process requirement that a defendant charged with violating a condition of supervised release must be afforded notice of the charges against him before the Court may revoke his supervised release. Defendant contends that the language used in the Petition, which references the date of a police Incident Report (“[o]n February 7, 2023, [Defendant] committed the following offenses, as evidenced by an Incident Report prepared by the Pawtucket Police”), fails to meet this standard because none of the assaultive, violent or disorderly conduct occurred on February 7, 2023, as the Victim made clear in her video-taped statement. Ex. 21. This argument does not apply to the charges based on Defendant's constructive possession of the loaded ghost gun, which is established by the evidence as occurring on February 7, 2023, as well as prior. See United States v. Norris, 21 F.4th 188, 195 (1st Cir. 2021).
There is no question that the notice must be sufficient to allow the releasee to prepare to defend against the charges. United States v. Chatelain, 360 F.3d 114, 121 (2d Cir. 2004). A defendant charged with a violation of supervised release is entitled to basic due process, which includes that the defendant must be given notice of the alleged violation. Fed. R. Crim. P. 32.1(b)(1)(B)(i), (2)(A-B); see Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972) (parole revocation is subject to due process protections, including notice of the charges against the parolee). If the defendant does not receive notice of the charge until the hearing, the charge cannot be the basis for revocation. United States v. Reed, 573 F.2d 1020, 1023 (8th Cir. 1978).
While there is no controlling authority in this Circuit addressing what notice is sufficiently specific in the supervised release context, persuasive cases from other Circuits establish that a petition asserting a violation of the supervised release requirement that the releasee not commit crimes provides adequate notice in accordance with Fed. R. Crim. P. 32.1(b)(2)(A) and the Constitution if it identifies the no-further-crime condition allegedly violated, identifies the crimes allegedly committed, and contains a general description of the basic facts underlying the new criminal charges, including the approximate dates of the events, the location at which they occurred, and the individuals involved. United States v. Venable, 416 F.Supp.2d 64, 78-79 (D.D.C. 2006) (petition sufficient because it recites condition allegedly violated, crime allegedly committed, and contains description of basic facts underlying new criminal charge); Chatelain, 360 F.3d at 121 (petition asserting violation of no new crimes condition provides adequate notice if it identifies condition allegedly violated and crime allegedly committed, including description of basic facts); United States v. Kirtley, 5 F.3d 1110, 1113 (7th Cir. 1993) (petition that identifies specific condition violated, general dates of violation and basic facts regarding violation provides sufficient notice); United States v. Mumford, 2 F.3d 1152 (Table), 1993 WL 307086, at *2 (6th Cir. 1993) (despite petition that erroneously stated violation occurred when defendant left community placement, but actual violation occurred several days later, notice held to be sufficient).
Here, the Petition (ECF No. 43) and particularly the underlying Report (ECF No. 43-1) informed Defendant that the condition allegedly violated is the no-new-crimes requirement and that the alleged noncompliance is based on the eight charged crimes that are listed in the Petition. For the factual foundation for the charged violation, the Report (ECF No. 43-1) provided Defendant with notice that it was based on: law enforcement's prior encounter with the Victim during which she stated that Defendant had been beating her; her father's statement on February 7, 2023, that his daughter was the victim of “ongoing domestic abuse (abused, beaten and tortured)”; the Victim's facial bruises that were still clearly visible on February 7, 2023, which injuries she said were caused by Defendant; the Victim's terrified utterance on February 7, 2023, of her fear of someone who she said is “going to kill me”; and Defendant's status as the owner of the loaded firearm found in his residence on February 7, 2023. This notice does not allege that abuse/disorderly conduct specifically occurred on February 7, 2023; rather, the Report references the visible bruises and “ongoing abuse,” providing notice that the alleged assaultive/disorderly conduct had occurred in the relatively recent past.
I find that this notice is more than sufficient to meet the constitutional standard as to the Petition's charges based on ongoing domestic violence.
2. Admission of Victim's Hearsay
Because the Victim did not testify, Defendant objected to the Court's admission of any of the Victim's out-of-court declarations because they are hearsay and consideration of them for the truth contravenes Defendant's Sixth Amendment right to confront adverse witnesses. This argument is cabined by the well-settled principle that, in a supervised release proceeding, the defendant does not have a full Sixth Amendment right to confront adverse witnesses. United States v. Franklin, 51 F.4th 391, 396 (1st Cir. 2022); United States v. Rodriguez, 919 F.3d 629, 635 (1st Cir. 2019). Accordingly, reliable hearsay evidence can be admitted. Fed.R.Evid. 1101(d)(3); Franklin, 51 F.4th at 396; United States v. Rondeau, 430 F.3d 44, 48 (1st Cir. 2005). However, in deciding to admit hearsay, the court must weigh not only reliability, but also the government's proffered reason for not producing the declarant. Franklin, 51 F.4th at 396 (citing United States v. Fontanez, 845 F.3d 439, 443 (1st Cir. 2017)); see Fed. R. Crim. P. 32.1 (b)(1)(B)(iii), (2)(C); Fed.R.Evid. 1101(d)(3). That is, mindful that the defendant retains a limited right of confrontation in a supervised release proceeding, the Court must balance the right to confront witnesses against whatever good cause may exist for relaxing customary principles of confrontation. Rodriguez, 919 F.3d at 635 (court must “weigh both the apparent reliability of the hearsay evidence and the government's proffered reason for not producing the declarant”).
Here, the government has proffered a non-speculative reason for not producing the Victim as a testifying witness: when contacted by the prosecutor about testifying, she stated that she is refusing to appear and she refused even to provide law enforcement with information about where she was living so as to permit her to be served with a subpoena. These statements by the Victim are corroborated by her terrified utterances on February 7, 2023, that Defendant would kill her if she talked to law enforcement and her statement that she did not want even her parents to know about some of what he had done to her, permitting the inference, as I find, that the Victim was in fear for her safety if called to testify. See Franklin, 51 F.4th at 401. The government's reason for not presenting the Victim as a witness in this case is starkly distinguishable from the “wholly speculative” explanation found to be insufficient in Rodriguez, 919 F.3d at 635. Nor, as the prosecutor made clear, is the government's reason based on reluctance arising from the Victim's recantation. In reliance on this explanation, I find that the government has sustained its burden of showing good cause for failing to present the Victim's direct testimony. On balance, considering Defendant's limited right of confrontation in a supervised release proceeding, I further find that this reason is sufficient to permit the Court to admit the Victim's out-of-court statements if they are supported by sufficient indicia of reliability. Franklin, 51 F.4th at 396.
As to reliability, I find that the Victim's statements to law enforcement, first to Officer Mejia as he summarized in his credible testimony and then to Officer Della Torre as he credibly testified, as well as in the video-recorded interview in Exhibit 21, largely appear to be highly reliable, especially in that many aspects of them are corroborated. For example, the Victim's statement that Defendant beat her with a belt causing two black eyes and bruising everywhere, which happened “almost two weeks ago,” was corroborated by Defendant's post-Miranda admission that her visible facial bruises were the result of his having had an “altercation” with her that happened “a couple of weeks ago.” Ex. 22. The Victim's statements about Defendant's possession of a gun that he placed in her mouth “almost one month ago” was corroborated by the discovery of the loaded ghost gun in their shared residence in the location that the Victim indicated to law enforcement. Corroborating the Victim's claim of ongoing abuse by Defendant is her January statement to Officer Mejia that she fled into a January night wearing almost nothing to avoid Defendant's abuse. Additional corroboration is derived from her non-hearsay excited and terrified utterance that “he's going to kill me” when Officer Mejia first appeared at her door. See Fed.R.Evid. 803(2) (declaration not excluded by hearsay rule if it relates to startling event while declarant under stress of excitement that event caused). The context of the hearsay statements also bolsters their credibility in that the Victim did not spontaneously volunteer them but rather made these disclosures in response to Officers' questions, for the most part only after moving to a venue (the station) with her parents where Officer Mejia thought she would be more comfortable.
One exception to this generalized finding is the Victim's statement to Officer Mejia when he first appeared at her door that her arm was in a cast due to conduct of Defendant. During her subsequent interview later on the same day, the Victim recanted this statement, explaining that this injury was sustained while roller skating with Defendant's children. I find that the Victim's quick recantation of this untrue accusation enhances the reliability of the declarations that are reflected on Exhibit 21.
As part of my assessment of the reliability of the Victim's declarations, I have carefully watched the video (Ex. 21) to observe the Victim's affect and behavior in making declarations about (1) the beating with a belt from two weeks prior (resulting in two black eyes and extensive body bruising); and (2) the incident almost one month prior where Defendant beat her with his hands, put his gun in her mouth and tried to drown her in the shower. Based on my observation, I find that these declarations are highly reliable, and that the Victim's subsequent recantation is not credible as it is the result of her fear for her safety as corroborated by her excited utterance that “he's going to kill me.” Enhancing the credibility of these statements in Exhibit 21 is the Victim's obvious reluctance in reporting abuse by Defendant of which she had previously feared to speak, as well as her thoughtful refusal to blame Defendant for things he had not done, including her clarification that the cast on her arm was not related to an injury caused by Defendant and her firm statement that Defendant had not physically hurt her either that day (that is, on February 7, 2023) or at any time during the preceding week. Also enhancing the credibility of these statements is the evidence of the Victim's parents' concern and support for her as reflected in her statements about her parents and by their willingness to accompany her to the police station, to stay with her while she waited for the Detectives and their agreement to be interviewed themselves.
Based on the foregoing, I find that the Victim's out-of-court hearsay statements, as discussed above, are reliable; therefore, mindful of the reason for her failure to appear and the interests of justice, I have admitted and considered them.
3. Application of Exclusionary Rule
Defendant's final threshold argument is that the Court must dismiss all of Violation No. 1 because it rests on a warrantless entry into and search of the shared residence of the Victim and Defendant that was not reasonable under the Fourth Amendment. Apart from my preliminary assessment that both the entry into the apartment and the search that resulted in the discovery of the loaded ghost gun are constitutionally permissible, Defendant's argument fails because, in a supervised release hearing, the Rules of Evidence, including the exclusionary rule, do not apply. United States v. Rodriguez, No. CR 11-0005-WES, 2017 WL 11501873, at *3 (D.R.I. Dec. 26, 2017), aff'd, 919 F.3d 629 (1st Cir. 2019).
Here, the evidence establishing that the warrantless police entry was well justified by exigent circumstances includes Officer Mejia's awareness of the allegation by both the Victim and her father that Defendant was engaged in ongoing violent physical abuse, Officer Mejia's observation of serious physical injuries consistent with abuse, the Victim's terrified utterance begging “please leave, he's going to kill me,” and her backward looks strongly suggestive to Officer Mejia that “he” or someone dangerous was still in the residence. See Caniglia v. Strom, 141 S.Ct. 1596, 1604 (2021) (Kavanagh, J., concurring) (entry may be permitted as reasonably necessary to address exigency despite lack of warrant or consent). As to the search of the closet for the firearm, the Victim told Officer Mejia that it was her residence where she and Defendant lived together; she consented to the search for the firearm; she pointed towards the area where it was located and led him to the closet where it was found; she told him the gun was located in a bag in the closet; and the search that followed was limited to the closet that she indicated. See Fernandez v. California, 571 U.S. 292, 306 (2014) (warrantless search may be based on consent by woman who also occupied apartment; such “[a] warrantless consent search is reasonable and thus consistent with the Fourth Amendment irrespective of the availability of a warrant”). Further, in light of the Victim's repeated excited utterance that “he's going to kill me,” the warrantless search to find Defendant's gun, a weapon that could be used to kill her, is alternatively reasonable based on the exigency of these circumstances. See Caniglia, 141 S.Ct. at 1604 (Kavanagh, J., concurring) (search for gun may be permitted as reasonably necessary to address exigency despite lack of warrant or consent).
4. Analysis and Findings - Domestic Violence Charges
In the Petition, Defendant is charged with violating conditions of release by committing conduct that constitutes five state law domestic violence crimes. These include two counts of Domestic Violence - Felony Assault, as well as Domestic Violence - Simple Assault and/or Battery - 1st Offense (misdemeanor), and Domestic Violence - Disorderly Conduct - 1st Offense (misdemeanor). These also include Domestic Violence - Assault by Strangulation (felony). To satisfy the statutory classification of “domestic” violence, as relevant here, the offenses must have been committed against a “household member,” which includes “adult persons who are presently residing together.” R.I. Gen. Laws § 12-29-2(a)-(b). I find that the evidence is more than sufficient to establish by a preponderance that the Victim and Defendant were “presently” residing together at the time of the assault when he beat her with a belt “two weeks ago” and at the time of the incident when he beat her with his hands, put the gun in her mouth and tried to drown her in the shower, “almost a month ago.” Therefore, this conduct is properly analyzed as potentially constituting “domestic” violence.
The elements of the charged crimes of domestic assault/disorderly conduct in pertinent part are as follows:
• Domestic Violence - Felony Assault and/or Battery: (1) assault or battery, (2) upon a household member, (3) with a dangerous weapon. R.I. Gen. Laws §§ 11-5-2, 12-29-2.
• Domestic Violence - Simple Assault and/or Battery: (1) assault or battery, (2) upon a household member. R.I. Gen. Laws §§ 11-5-3(b), 12-29-2.
• Domestic Violence - Disorderly Conduct: (1) intentionally, knowingly or recklessly, (2) engaging in fighting or threatening, or in violent or tumultuous behavior, (3) against a household member. R.I. Gen. Laws §§ 11-45-1(a)(1), 12-29-2.
As an alternative to felony assault with a dangerous weapon, felony assault may also be proven by evidence that serious bodily injury resulted. Such evidence must show a physical injury that inter alia “[c]reates a substantial risk of death.” R.I. Gen. Laws § 11-5-2(c)(1). For example, evidence that a beating led not just to substantial bruising but also to significant loss of blood is sufficient to meet the “substantial risk of death” prong of § 11-5-2. State v. Gaffney, 63 A.3d 888, 894 (R.I. 2013). While I find that the government has proven the use of various dangerous weapons (belt, hands, gun and shower) so as to create the potential of injury resulting in death, State v. Lopez, 78 A.3d 773, 781 (R.I. 2013), I do not find sufficient evidence to establish the alternative element of actual “serious bodily injury.” R.I. Gen. Laws § 11-5-2.
To succeed in proving felony assault with a dangerous weapon, three conjunctive elements must be proven: (1) any unlawful offer to do corporal injury to another, (2) under such circumstances as may create a reasonable apprehension of immediate injury unless the person so threatened takes action or inaction to avoid it, coupled with (3) a present ability to carry the offer into effect. State v. Caba, 887 A.2d 370, 372-73 (R.I. 2005). “Battery” refers to conduct constituting “an offensive contact with or unconsented touching of or trauma upon the body of another, thereby generally resulting in the consummation of the assault.” State v. Albanese, 970 A.2d 1215, 1221 (R.I. 2009) (internal quotation marks omitted). Even if unloaded, the Rhode Supreme Court holds that an operable gun is presumptively a dangerous weapon because it possesses a “present ability to carry the offer [to do corporal injury to another] into effect for purposes of a felony prosecution” under R.I. Gen. Laws § 11-5-2. State v. Jackson, 752 A.2d 5, 10 (R.I. 2000). Further, as the Rhode Island Supreme Court has held, any object may constitute a “dangerous weapon” if so used that serious bodily injury may have resulted whether or not such injury actually occurred. State v. Lopez, 78 A.3d 773, 781 (R.I. 2013). Thus, a charge of assault with a dangerous weapon may be based on the use of hands to choke despite the absence of evidence regarding how long the hands were on the complainant's neck or whether there were injuries indicative of choking. Id.; see State v. Zangrilli, 440 A.2d 710, 711 (R.I. 1982) (“We have no doubt but that an individual's hands, when employed in such a manner as to be likely to produce substantial bodily harm, may properly be qualified as a dangerous weapon.”). Similarly, a belt may constitute a deadly weapon. See State v. Brown, 900 A.2d 1155, 1156 (R.I. 2006) (upholding convictions of felony assault and simple assault based on evidence inter alia that defendant hit victim with belt); cf. Com. v. Eddington, 879 N.E.2d 1261, 1264 (Mass. App. Ct. 2008) (belt may be dangerous weapon for purposes of charge of felony assault with dangerous weapon).
The misdemeanor of simple assault (lacking the element of a dangerous weapon) is a lesser included offense to the offense of felony assault. State v. Pineda, 13 A.3d 623, 630 (R.I. 2011); cf- State v. Sampson, 24 A.3d 1131, 1158 (R.I. 2011) (Suttell, C.J., dissenting) (simple assault on child is lesser-included offense to felony assault on child, which also requires proof of serious injury). In the domestic setting, the misdemeanor of disorderly conduct requires proof of fighting or violent or tumultuous behavior; it is established, for example, by evidence of a fight between domestic partners initiated by the defendant resulting in violence. See State v. Van Dongen, 132 A.3d 1070, 1077-79 (R.I. 2016) (no error in finding defendant guilty of domestic disorderly conduct based on evidence that fight between couple initiated by defendant who punched victim causing visible bruising); State v. Hesford, 900 A.2d 1194, 1201 (R.I. 2006) (crime of domestic disorderly established by evidence of violent and threatening behavior in privacy of residence).
Applying this law to the facts established here, I find that the government's evidence is sufficient to establish by a preponderance that Defendant is guilty of felony assault with a dangerous weapon (1) when he beat the Victim with a belt causing facial bruising still visible two weeks later and deep bruising all over her body as seen in the photographs viewed by Detective Della Torre; and (2) when he beat the Victim with his hands, put his gun in her mouth and tried to drown her with the shower. Each of these episodes involved the use either of a per se dangerous weapon (the gun, whether or not loaded at the time of the incident) or of an object used so that serious bodily injury might have resulted even though it did not actually occur. See Lopez, 78 A.3d at 781. I also recommend that the same evidence supports a finding of guilty by a preponderance on the lesser included charge of misdemeanor assault. I further find that Defendant's admission that the facial bruises came from “an altercation” and the Victim's description of Defendant's disagreement with her receiving Instagram messages, leading in one instance to his beating her with a belt and in another to the episode with the use of his hands, the gun and then the shower in an attempt to drown her is more than sufficient to establish guilt on the misdemeanor charge of disorderly conduct.
The final charge involving domestic violence is the felony charge of Assault by Strangulation. R.I. Gen. Laws §§ 11-5-2.3, 12-29-2. Strangulation is defined as “knowingly and intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person, with the intent to cause that person harm.” R.I. Gen. Laws § 11-5-2.3(c). The factual foundation for this charge is the Victim's statement that Defendant “choked [her] out” at least three times. Unlike the specificity of her descriptions of the assault with the belt resulting in serious injuries and the assault with hands/gun/shower, the Victim's statements are vague with regard to the timing of these “choked . . . out” incidents. Nor does the Victim explain what she meant by “choked . . . out,” leaving the Court to speculate whether Defendant knowingly impeded normal breathing with the intent to cause harm. Nor was any neck injury observed during police interaction with the Victim in January or on February 7, 2023. Based on this vagueness and the absence of corroborating injury, I find that the government has failed to prove the crime of strangulation by a preponderance of the evidence and recommend that the Court find that Defendant is not guilty of this charge.
5. Analysis and Findings - Firearm Charges
The Petition alleges that Defendant violated his conditions by conduct constituting three firearms crimes under state law: Using a Firearm When Committing a Crime of Violence - 1st Offense (felony); Possession of a Firearm Prohibited Person Convicted (felony); and Manufacture, Sell, Purchase, or Possess Ghost or 3D Gun (felony). The elements of these crimes are:
• Using a Firearm When Committing a Crime of Violence: (1) use of firearm, (2) while committing or attempting to commit a crime of violence. R.I. Gen. Laws § 11-47-3.2(a).
• Possession of a Firearm by Prohibited Person: (1) Possession, (2) of a firearm, (3) by a person convicted of certain crimes, including “crimes of violence.” R.I. Gen. Laws § 11-47-5(a).
• Manufacture, Sell, Purchase, or Possess Ghost or 3D Gun: (1) possession, (2) of a ghost gun/undetectable firearm/3D-printed firearm. R.I. Gen. Laws § 11-47-8(e).
As pertinent here, the applicable statute provides that a “crime of violence” under Rhode Island law “means . . . any felony violation involving the illegal possession with intent to manufacture, sell, or deliver a controlled substance classified in schedule I or schedule II” or any “assault with a dangerous weapon.” R.I. Gen. Laws § 11-47-2(5). A “firearm” is defined as “any machine gun, pistol, rifle, . . . or other instrument from which steel or metal projectiles are propelled.” R.I. Gen. Laws § 11-47-2(6). A ghost gun is “a firearm that lacks a unique serial number engraved or cased in metal alloy on the frame or receiver by a licensed manufacturer, maker, or importer under federal law or markings in accordance with 27 C.F.R. § 479.102.” R.I. Gen. Laws § 11-47-2(8).
Weighing this evidence, including the plausible inferences to which it gives rise, and using the preponderance standard, I find that the government has proven that Defendant is guilty of being a prohibited person in possession of a firearm pursuant to R.I. Gen. Laws § 11-47-5(a). That this weapon is an operable firearm is proven by the testimony of and exhibits entered through BCI Detective Ramos who photographed it, examined it, and procured a test-fire of it. That Defendant is a prohibited person is well supported by his two convictions for drug trafficking in crack cocaine. R.I. Gen. Laws § 11-47-2(5). The finding that Defendant “possessed” the firearm on February 7, 2023, at a moment when he was away from home, is based on the evidence establishing “constructive possession . . . [in] that the defendant had ‘dominion and control over the area where the contraband was found.'” Norris, 21 F.4th at 191, 195-96 (quoting United States v. Mendoza-Maisonet, 962 F.3d 1, 12 (1st Cir. 2020)) (possession of firearm may be constructive and may be established by circumstantial evidence). Defendant's possession of the firearm is further confirmed by the Victim's reliable statement describing it as his and his use of it during the episode when he put it in her mouth. Based on all of this evidence, coupled with the unrebutted testimony of BCI Detective Ramos that this firearm is a ghost gun pursuant to R.I. Gen. Laws § 11-47-8(e), I further find that the government has also proven that Defendant is guilty of being in possession of a ghost gun pursuant to R.I. Gen. Laws § 11-47-8(e).
The more difficult question is whether Defendant's placing of his gun in the Victim's mouth in the course of conduct that I have found constitutes a felony assault pursuant to R.I. Gen. Laws § 11-5-2 is sufficient to establish the commission of “crime of violence” while using a firearm. Facially, it would appear that it does - “assault with a dangerous weapon” is specifically defined as a “crime of violence” by R.I. Gen. Laws § 11-47-2(5). However, under federal precedent, courts have reached the opposite conclusion. In this Circuit, it is well settled that Rhode Island's crime of assault with a dangerous weapon is not a categorical “crime of violence.” United States v. Rose, 896 F.3d 104, 114 (1st Cir. 2018) (under categorical approach, Rhode Island's felony assault is not crime of violence); United States v. Sabetta, 221 F.Supp.3d 210, 218 (D.R.I. 2016) (felony assault under R.I. Gen. Laws § 11-5-2 does not qualify as per se crime of violence and therefore may not be predicate offense for Armed Career Criminal sentence). While it seems plain that the crime of use of a firearm while committing a crime of violence under Rhode Island law is established based on my finding that Defendant used his gun as a dangerous weapon in the course of committing a felony assault, I am troubled by the fairness of a federal court finding that this also constitutes a “crime of violence” to support a finding of a violation of the federal supervision condition of no new crimes. For this reason, I recommend that the Court find Defendant not guilty of using a firearm when committing a “crime of violence.”
III. SENTENCING
A. Law Applicable to Sentencing
According to 18 U.S.C. § 3583(e)(3), the Court may revoke a term of supervised release and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release without credit for time previously served on post-release supervision, if the Court finds by a preponderance of evidence that the defendant has violated a condition of supervised release. The prison term is limited in that Defendant, who was on supervision for Class C felony, may not be sentenced to a term beyond two years.
According to 18 U.S.C. § 3583(h) and § 7B1.3(g)(2) of the United States Sentencing Guidelines (“USSG”), when a term of supervised release is revoked and the defendant is required to serve a term of imprisonment that is less than the maximum term of imprisonment authorized, the Court may impose a new term of supervised release. The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release. In this case, the authorized statutory maximum term of supervised release is three years. Therefore, the Court may impose the statutory maximum of thirty-six months of supervision, minus the term of imprisonment that is to be imposed for this revocation.
Section 7B1.1 of the USSG provides for three grades of violations (A, B and C). Subsection (b) states that where there is more than one violation, or the violation includes more than one offense, the grade of violation is determined by the violation having the most serious grade. Grade A constitutes conduct which is punishable by a term of imprisonment exceeding one year that (i) is a crime of violence, (ii) is a controlled substance offense, or (iii) involves possession of a firearm or destructive device of a type described in 26 U.S.C. § 5845(a), or (B) any other offense punishable by a term of imprisonment exceeding twenty years. Grade B violations are conduct constituting any other offense punishable by a term of imprisonment exceeding one year, while Grade C violations are conduct constituting an offense punishable by a term of imprisonment of one year or less; or a violation of any other condition of supervision. Section 7B1.3(a)(1) states that, upon a finding of a Grade A or Grade B violation, the Court shall revoke supervision, while upon a finding of a Grade C violation, the Court may revoke, extend or modify the conditions of supervision. In this case, my finding of guilt on some of the crimes alleged in Violation No. 1 establishes that Defendant has committed a Grade A violation because three of the crimes as to which I find him guilty “involve[] possession of a firearm.” Therefore, the Court shall revoke supervision. If Defendant is hereafter found not guilty on the two firearm possession offenses and guilty of the assault and battery/disorderly conduct offenses (as I have also recommended), it would establish that Defendant has committed a Grade B violation, which also mandates the revocation of supervision. However, if the Court finds Defendant not guilty of Violation No. 1, what remains is Grade C, in which event the Court may revoke, extend or modify the conditions of supervision.
At the sentencing hearing, Defendant argued that my finding of not guilty on the charges of strangulation and use of a firearm while committing a crime of violence drops the Grade from A to B. Defendant is right that this finding means he has not been found guilty of a “crime of violence” under federal law. However, these violations are still categorized as Grade A based on the finding that Defendant committed crimes involving possession of a firearm (assault with a deadly weapon (the firearm), possession of a firearm by a prohibited person and possession of a ghost gun). Therefore, I have rejected this argument and have based my recommendation on the premise that Defendant has committed Grade A violations.
Section 7B1.4(a) of the USSG provides that the Criminal History Category (“CHC”) is the category applicable at the time the defendant was originally sentenced. In this instance, Defendant was CHC VI at the time of original sentencing. Should the Court revoke supervised release, the Revocation Table provided for in § 7B1.4(a) provides the applicable imprisonment range. For a Grade A violation committed by a defendant classified as CHC VI, the applicable range of imprisonment is thirty-three to forty-one months. For a Grade B violation, the range is twenty-one to twenty-seven months. For a Grade C violation, the range is eight to fourteen months.
As itemized in 18 U.S.C. § 3583(e), the factors that the court may consider in setting the length of the sentence to be imposed following a revocation of supervised release are some (but not all) of the sentencing factors listed in 18 U.S.C. § 3553(a). As relevant here, they include: the nature and circumstances of the offense and the history and characteristics of the defendant; the need for the sentence imposed to afford adequate deterrence to criminal conduct and to protect the public from further crimes of the defendant; the need to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and the applicable guidelines and policy statements issued by the Sentencing Commission. 18 U.S.C. §3553(a). The USSG makes clear that the sanction for a supervised release violation should focus on the defendant's failure to follow the court-imposed conditions as a “breach of trust” and not on the need to punish the new criminal conduct. USSG § 7A.3(b).
In the supervised release context, the policy statement “range” does not carry the same legal meaning appurtenant to the calculation of the “guidelines range” for the original sentence. The supervised release ranges are set forth in a policy statement specifically to afford “greater flexibility.” USSG § 7A.3(a). Nevertheless, core principles remain true: “A sentencing judge, ‘draw[ing] upon his familiarity with a case[ and] weigh[ing] the factors enumerated in 18 U.S.C. § 3553(a),' may ‘custom-tailor an appropriate sentence.'” United States v. Viloria-Sepulveda, 921 F.3d 5, 8-9 (1st Cir. 2019) (quoting United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013)) (alterations in original). And, to the extent that facts are considered, § 3553(a) “invite[s] the district court to consider, broadly, any reliable information relevant not only to the history and characteristics of the defendant but also to the factors such as . . . the need to afford adequate deterrence to criminal conduct, and the need to protect the public from further crimes of the defendant.” Id. at 9 (alteration in original) (internal citation and quotation marks omitted). Relatedly, the First Circuit has also held that “[f]actual findings at sentencing must satisfy only a preponderance of the evidence standard.” United States v. Rodriguez-Cardona, 924 F.2d 1148, 1155 (1st Cir. 1991); see United States v. Gutierrez, 673 Fed.Appx. 919, 923 (11th Cir. 2016) (“relevant facts at [supervised release] sentencing must be established by a preponderance of the evidence”).
B. Recommended Sentence
Based on Defendant's admission and my findings as summarized above, which bear on Defendant's profound breach of trust and the need for deterrence and to protect the public, the government requested a sentence of twenty-four months, which is the statutory maximum and well below the policy statement range of thirty-three to forty-one months. In considering the need to protect the public, the government urged the Court to focus not only on Defendant's shockingly dangerous behavior directed towards the Victim, but also on the evidence proving that, as a felon whose underlying conviction involved possession of a firearm, while actively under federal supervision, Defendant possessed a ghost gun with a loaded magazine found in a bag that also contained a face mask and gloves. The government asked the Court to consider that there is no conceivable explanation for what use might be made of the latter items except for the inference that they were there to be used to commit more crimes. The government further recommended the imposition of the maximum period of supervision to follow (twelve months) with the same conditions as were imposed at the time of the underlying sentence.
Defendant countered that the Court should impose a year and a day of incarceration, although he agreed with the government's recommendation that the Court should impose the maximum period of supervision to follow with the same conditions as were imposed at the time of the underlying sentence. Based on Defendant's sentencing recommendation of only twelve months and a day, maximizing the period of supervision would result in the imposition of a new supervision term of twenty-four months less a day. In support of his argument for leniency, Defendant asked the Court to find possession of a ghost gun not as sinister as the label implies in that it means only that the firearm is not traceable. He also urged the Court to focus both on the random nature of the Guidelines ranges applicable in the supervised release context and on the legal principle that a violation sentence must be based on the breach of trust, not on the underlying criminal conduct. Defendant urged the Court to focus on the breach of trust, and to downplay the § 3553(a)(2)(B)-(C) factors of deterrence and the protection of the public.
Defendant waived his right to allocution.
Weighing these arguments, and mindful that the facts establish an egregious breach of trust, as well as that the government is right that protection of the public is an important § 3553(a)(2) sentencing consideration that is seriously engaged by the facts in this case, I recommend that the Court impose the maximum sentence of two years of incarceration to be followed by one year of supervised release with the same conditions as previously set at the time of Defendant's original sentence.
IV. CONCLUSION
Based on foregoing factual findings, I recommend that the Court find Defendant guilty of some of the charges in Violation No. 1 and not guilty of others. Specifically, I recommend that the Court find Defendant guilty of Possession of a Firearm Prohibited Person Convicted (felony) and Possession of Ghost Gun/Undetectable Firearm/Firearm (felony), as well as the domestic violence charges of felony assault (2 counts), simple assault (misdemeanor), and disorderly conduct (misdemeanor). I recommend findings of not guilty with respect to the charges of Using a Firearm When Committing a Crime of Violence (felony) and Domestic Violence - Assault by Strangulation (felony). Based on Defendant's admissions, I recommend that the Court find the Defendant guilty of Violation No. 2. Mindful of these violations, considering the appropriate factors set forth in 18 U.S.C. § 3553(a) and for the reasons expressed above, I recommend that the Court revoke supervised release and impose a term of twenty-four months of incarceration, with twelve months of supervised release to follow, subject to the following conditions:
The defendant shall participate in a program of substance abuse treatment (inpatient or outpatient), as directed and approved by the Probation Office.
The defendant shall participate in a program of substance abuse testing (up to 72 drug tests per year) as directed and approved by the Probation Office.
The defendant shall participate in a program of mental health treatment as directed and approved by the Probation Office.
The defendant shall contribute to the cost of all ordered treatment and testing based on ability to pay as determined by the probation officer.
The defendant shall permit the probation officer, who may be accompanied by either local, state, or federal law enforcement authorities, upon reasonable suspicion of a violation of supervision by possessing firearms, to conduct a search of the defendant's residence, automobile, and any other property under the defendant's control or ownership.
Any objection to this report and recommendation must be specific and must be served and filed with the Clerk of the Court within fourteen (14) days after its service on the objecting party. See Fed. R. Crim. P. 59(b); DRI LR Cr 57.2(d). Failure to file specific objections in a timely manner constitutes waiver of the right to review by the district judge and the right to appeal the Court's decision. See United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir. 2008); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980).