United States District Court, D. Arizona
FINDINGS AND RECOMMENDATION OF THE MAGISTRATE
JUDGE
HONORABLE DEBORAH M. FINE UNITED STATES 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.[1]
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. ...