United States District Court, W.D. Pennsylvania
GUSTAVE DIAMOND, District Judge.
Dennis Rockot ("defendant") appeared before this court for a show cause hearing on October 30, 2013, pursuant to a petition for warrant or summons for offender under supervision filed by United States Probation Officer Alexis Zellefrow (Document No. 81). Upon due consideration of the testimony elicited at the show cause hearing, as well as the parties' post-hearing briefs, for the following reasons, the government's request for revocation will be denied and the petition alleging the violations will be dismissed.
On February 25, 1997, a grand jury returned a six-count indictment against defendant charging him with transportation of a minor for illegal sexual activity (Count One); sexual exploitation of a minor (Counts Two and Three); and, transportation, receipt and possession of material depicting the sexual exploitation of a minor (Counts Four, Five and Six, respectively). Defendant subsequently entered a guilty plea at Counts One, Two and Four On October 22, 1997, defendant was sentenced to a term of imprisonment of 188 months, consisting of 120 months at' each of Counts One and Two, to be served concurrently, and 68 months at Count Four to be served consecutively, to be followed by a term of supervised release of 3 years at each count, all to be served concurrently.
While on supervised release it was directed that defendant shall not commit another federal, state or local crime and shall comply with the standard conditions of supervision adopted by the court as well as certain additional special conditions, including, inter alia, that he shall participate in a sex offender treatment program. On June 7, 2010, pursuant to a petition on supervised release filed by the probation office and defendant's signed waiver of hearing, the conditions of supervision were modified to include, inter alia, compliance with the United States Probationl Pretrial Services Office's Computer Restriction and Monitoring Program. In addition, the previously imposed condition that defendant shall participate in a sex offender treatment program was expanded to include a provision requiring that he abide by all rules, requirements and conditions of that treatment program, including submission to polygraph testing. On September 17, 2010, defendant was released to supervision.
On June 9, 2011, pursuant to a request for modifying the conditions of supervision with consent of the offender and defendant's signed waiver of hearing, the conditions of supervision were modified to add a condition that defendant be placed on home detention with electronic monitoring for a term of up to 18 months based upon his "admitted violations of supervised release which included unsupervised contact with a minor and unauthorized use of a computer." On November 14, 2012, pursuant to another request for modifying the conditions of supervision with consent of offender and defendant's signed waiver of hearing, the period of home detention was extended for 6 months based upon "inconclusive" polygraph results. On December 3, 2012, the terms of supervision were modified yet again pursuant to another request for modification and defendant's signed waiver of hearing to prohibit defendant from accessing any computer equipment or any "on-line" computer service at any location due to "defendant's admitted violations of supervised release which include removal of the computer monitoring software and viewing adult pornographic images, which are prohibited by the treatment provider."
On August 15, 2013, the probation office filed the pending petition alleging that defendant had been unsuccessfully discharged from sex offender treatment on July 22, 2013, due to his failure to be honest with the treatment provider and group members, in violation of the condition of supervision that he shall participate in a mental health treatment and/or sex offender treatment program, and further alleging that defendant had removed the computer monitoring software from his computer in November 2012 and had accessed child pornography, in violation of the conditions of his supervision that he shall not use a computer to access child pornography and that he shall abide by the provisions of the Computer Restriction and Monitoring Program.
At the show cause hearing on October 30, 2013, the government presented the testimony of Rita Lukas, the President and director of defendant's sex offender treatment provider, the Forensic Associates for Assessment Consultation and Treatment, Inc. ("FAACT"), and also that of United States Probation Officer Muhammad AbdoolRaman. As ordered, defendant filed a post-hearing brief in opposition to revocation of supervised release, the government filed a brief in support ofrevocation, and defendant filed a reply.
Pursuant to 18 U.S.C. §3583(e)(3), the court may revoke a term of supervised release and require a defendant to serve in prison all or part of the term authorized by statute for the original offense, without credit for time previously served on post-release supervision, if it finds by a preponderance of the evidence that the defendant violated a condition of supervision.
Here, the petition alleges that defendant violated three conditions of his supervision: (1) that he shall participate in a mental health treatment program and/or sex offender treatment program approved by the probation officer; (2) that he shall not use a computer to access child pornography; and, (3) that he shall abide by the provisions of the Computer Restriction and Monitoring Program. The government since has withdrawn the allegation that defendant used a computer to access child pornography. Accordingly, the issue before the court is whether the government has proven by a preponderance of the evidence that defendant failed to participate in a sex offender treatment program or failed to abide by the provisions of the Computer Restriction and Monitoring Program, or both, as alleged in the pending petition.
Before determining whether any violation has occurred, however, the court first must address defendant's argument that he did not validly waive his right to a hearing and the assistance of counsel prior to the June 7, 2010, modification of supervision which added the two conditions which he now is alleged to have violated. Because these conditions were imposed in violation of his right to due process, he argues, revocation would not be appropriate regardless of whether or not he may have violated them. The court finds this argument to be without merit.
Because proceedings to revoke supervised release may result in a "loss of liberty, " they are subject to due process considerations. United States v. Taylor, 519 Fed.Appx. 85, 87 (3d Cir. 2013); see also Morrissey v. Brewer , 408 U.S. 471, 485 (1972). The minimum due process requirements for revoking or modifying supervised release have been codified in Rule 32.1 of the Federal Rules of Criminal Procedure. Taylor, 519 Fed.Appx. at 89; United States v. Poindexter, 444 Fed.Appx. 580, 582 (3d Cir. 2011). "The rights provided by Rule 32.1 may be waived, so long as the waiver is signed knowingly and voluntarily." Poindexter, 444 Fed.Appx. at 582.
Rule 32.1 (c)(1) provides that "[b]efore modifying the conditions of... supervised release, the court must hold a hearing, at which the person has the right to counsel and an opportunity to make a statement and present any information in mitigation." However, a hearing is not required in certain enumerated instances, including when "the person waives the hearing." Rule 32. 1 (c)(2)(A).
In this case, prior to the June 2010 modification at issue, defendant signed a written waiver of his right to a hearing. (Document 69). The waiver fonn explicitly advised defendant that he was "entitled by law to a hearing and assistance of counsel before any unfavorable change may be made" to the conditions of his supervision. It further advised him that he had the right to be represented at a hearing by counsel of his own choosing and that he could request that counsel be appointed for him if he could not afford to retain one. The waiver states: "1 hereby voluntarily waive my statutory right to a hearing and to assistance of counsel" and that "I agree to the following modification of my Conditions of... Supervised Release...." The two modifications at issue in this case are enumerated in the waiver. The waiver form bears defendant's signature as well as the signature of a witness.
The court is satisfied that the plain language of the waiver fonn expressly advising defendant that he had a right to a modification hearing with the assistance of counsel and that he understood that he was waiving those rights, along with defendant's signature on that waiver form, are ...