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United States v. Wygant

United States District Court, W.D. Pennsylvania

October 13, 2017

UNITED STATES OF AMERICA
v.
SANTANA WYGANT, Defendant.

          MEMORANDUM OPINION

          Nora Barry Fischer United States District Judge

         I. INTRODUCTION

         Presently before the Court is a Petition filed by the Probation Office on January 13, 2017; a Supplemental Petition filed by the Probation Office on January 18, 2017; a Notice Regarding Supervised Release Violation Hearing filed by the Government on March 2, 2017; a Second Notice Regarding Supervised Release Violation Hearing filed by the Government on June 14, 2017; and a Third Notice Regarding Supervised Release Violation Hearing filed by the Government on August 4, 2017. (Docket Nos. 4, 7, 22, 32, 40). On June 2, 2017, the Court held a supervised release hearing, at which time Defendant admitted to the Grade C violations set forth in the Petition and Supplemental Petition. (Docket No. 27). On August 9, 2017, the Court held a hearing regarding the revocation of Defendant's supervised release, at which time the Government and Defendant presented evidence with respect to the disputed Grade A and Grade B violations in the Government's notices. (Docket No. 41). Defendant presented additional evidence at a continuation of the hearing on October 10, 2017. (Docket No. 53). After careful consideration of the record, and for the following reasons, the Court finds that the Government has demonstrated by a preponderance of the evidence that Defendant committed Grade A and Grade B violations. The Court will proceed as scheduled on October 18, 2017. (See id.).

         II. FINDINGS OF FACT

         A. Procedural History

         On September 15, 2009, Defendant was sentenced by the United States District Court for the Northern District of West Virginia to 108 months' imprisonment for aiding and abetting the distribution of cocaine base within 1, 000 feet of a protected location, followed by a six-year term of supervised release with standard and additional conditions. (Docket No. 1-2). Defendant's sentence was reduced from 108 months' imprisonment to 87 months' imprisonment on January 12, 2012. (Docket No. 1-3). Jurisdiction of this matter was transferred to this Court on October 12, 2016. (Docket No. 1-4 at 10). On December 13, 2016, the Court granted the Probation Officer's request that the conditions of Defendant's term of supervision be modified to permit him to reside at the Renewal Center for a period of not more than six months, to commence as soon as possible. (Docket No. 3).

         By way of a Petition filed on January 13, 2017, and a Supplemental Petition filed on January 18, 2017, the Probation Office advised the Court that Defendant had violated several conditions of his supervised release. (Docket Nos. 4, 7). On March 2, 2017, the Government filed a Notice Regarding Supervised Release Violation Hearing, wherein the Government averred that Defendant had committed Grade A, Grade B, and Grade C violations and attached supporting exhibits. (Docket No. 22). In light of the same, the Court granted Defendant's two requests to postpone the supervised release hearing. (Docket Nos. 24, 26).

         On June 2, 2017, based upon the parties' agreement, the Court held a supervised release hearing, at which time Defendant admitted to the Grade C violations set forth in the Petition and Supplemental Petition. (Docket No. 27). The Court scheduled a hearing as to Defendant's Grade A and Grade B violations for August 9, 2017. (Id.). In the interim, Defendant filed an ex parte motion to fire his counsel, and his counsel filed a motion to withdraw. (Docket Nos. 28, 29). On June 14, 2017, the Court held a hearing to address the motions, which were terminated as moot after the hearing. (Docket No. 31). Also on June 14, 2017, the Government filed a Second Notice Regarding the Supervised Release Hearing. (Docket No. 32). On June 22, 2017, and on June 26, 2017, the Court granted Defendant's requests for service of two subpoenas duces tecum. (Docket Nos. 36, 38). On July 21, 2017, the Government filed a brief in support of its Notice Regarding Supervised Release Violation Hearing. (Docket No. 39). On August 4, 2017, the Government filed a Notice Regarding Supervised Release Violation Hearing, wherein it detailed the crimes alleged to have been committed by Defendant. (Docket No. 40).

         The Court held a hearing regarding the revocation of Defendant's supervised release on August 9, 2017, at which time the Government and Defendant presented evidence regarding the Grade A and Grade B violations. (Docket No. 41). After the parties completed their presentations, the Court granted Defendant's request that the remainder of the hearing be continued to permit him to access additional records. (Id.). The Court scheduled the continuance of the hearing for September 7, 2017. (Docket No. 42).

         On August 22, 2017, Defendant filed a Motion to Enter Cell Tower Information into Evidence, which the Court denied because the motion was made pro se while Defendant is represented by counsel. (Docket Nos. 44, 45). The same day, the official transcript of the proceeding held on August 9, 2017, was filed. (Docket No. 46). On September 5, 2017, the Court granted Defendant's Unopposed Motion to Postpone the Supervised Release Violation Hearing, wherein Defendant stated that he had not yet received the records that he requested. (Docket Nos. 47, 48). The Court rescheduled the hearing for October 10, 2017. (Docket No. 48). After receiving a letter and attachment from Defendant's counsel, the Court convened a teleconference on September 29, 2017. (Docket No. 49). Defendant's counsel agreed to file the letter and attachments as a pleading and stated that he will present a witness with respect to the attachments at the hearing on October 10, 2017.[1] (Id.). On October 3, 2017, the Government filed a Post-Hearing Memorandum Regarding Supervised Release Violation, and Defendant filed Proposed Findings of Fact and Conclusions of Law. (Docket Nos. 51, 52). On October 10, 2017, Defendant presented additional evidence at a continuation of the hearing. (Docket No. 53).

         B. Government's Allegations

         In its Third Notice Regarding Supervised Release Violation Hearing, the Government delineated the crimes alleged to have been committed by Defendant. (Docket No. 40). Specifically, the Government stated that the Pennsylvania State crimes alleged to have been committed include:

(1) Terroristic Threats, 18 Pa.C.S. § 2706, Misdemeanor 1 (M1), Grade B;
(2) Rape, 18 Pa.C.S. §§ 3121(a)(1) and (2), Felony 1 (F1), Grade A;
(3) Involuntary Deviate Sexual Intercourse, 18 Pa.C.S. §§ 3123(a)(1) and (2), Felony 1 (F1), Grade A;
(4) Theft By Unlawful Taking, 18 Pa.C.S. § 3921(a) (see 18 Pa.C.S. § 3903(b) and 18 Pa.C.S. § 1103), Grade B or C;
(5) Simple Assault (intentional), 18 Pa.C.S. § 2701(a)(1), Misdemeanor 2 (M2), Grade A (adult victim);
(6) Simple Assault (intentional), 18 Pa.C.S. §§ 2701(a)(1) and (b)(2), Misdemeanor 1 (M1), Grade A (child victim); and
(7) Criminal Trespass, 18 Pa.C.S. § 3503(a)(1)(i), Felony 3 (F3), Grade B

(Id.).

         C. Hearing Held on August 9, 2017

         a. Defendant's Competency

         At the hearing on August 9, 2017, the Court found Defendant to be competent. (Docket No. 46 at 8). Specifically, based upon Defendant's appearance, his demeanor, his answers to the Court's questions, and the interactions between him and his counsel, as well as his attorney's representations, the Court concluded that Defendant was competent and that he could participate in the hearing. (Id.).

         b. Evidence Presented at the Hearing

         At the outset, it is well established that it is the Government's burden to prove that a violation of supervised release was committed by a preponderance of the evidence. See 18 U.S.C. § 3583(e)(3). The evaluation of the credibility of the evidence is left to the discretion of the Court. See United States v. Conde, 58 F. App'x 538, 539-40 (3d Cir. 2002) (citing United States v. Whalen, 82 F.3d 528, 531 (1st Cir. 1996) (“[T]he District Court was in the best position to determine witness credibility.”)). Hence, the Court's factual findings that follow summarize the facts that were established during the hearing by a preponderance of the evidence.

         The testimony of three witnesses was presented during the hearing: (1) L.D., one of the victims of Defendant's alleged violations; (2) Valerie Mozes; and (3) Defendant. (See Docket No. 46 at 20-135). The testimony of each witness centered around events occurring on the evening of December 5, 2016.

         The Government presented the testimony of one witness, L.D. (Id. at 20-70). While testifying, L.D. reviewed her communications with Defendant through text messages, which were admitted as Government's Exhibits 1A through 1DD. (Id. at 21; see also Docket Nos. 41-1 through 41-32). In explaining why Defendant is listed as “Sperm Donor” in her telephone, L.D. stated, “[T]hat's all he is, ” and noted that she and Defendant have a child, R., together. (Docket No. 46 at 21-22; see also Docket Nos. 41-1 through 41-32). In summarizing the text messages between her and Defendant on November 25, 2016, L.D. testified that when Defendant texted, “Get ur. [sic] Ass up [sic] show me titties[, ]” he wanted her to take pictures of herself. (Docket No. 46 at 23; Docket No. 41-4). Defendant next texted, “Let me c [sic] them big ass titties, ” and, “Wtf, ” which L.D. testified means, “[W]hat the fuck, ” when she did not respond. (Docket No. 46 at 23-24; Docket No. 41-5). Defendant continued to send text messages throughout the day and requested “picd, ” but L.D. did not respond until Defendant asked, “What u [sic] doin [sic], ” to which L.D. wrote, “Usual, u [sic]?, ” and Defendant responded, “Work.”[2] (Id. at 24-25; Docket Nos. 41-6, 41-7). L.D. stated that she had not responded to Defendant's earlier messages because she did not want to send him pictures or encourage him. (Docket No. 46 at 25). On November 26, 2016, Defendant texted, “Mornin [sic], ” to which L.D. did not respond. (Docket No. 46 at 25; Docket Nos. 41-8, 41-9). Defendant did not send L.D. another text message until the morning of December 7, 2016, when he wrote, “U [sic] up, ” “Get up, ” and “What u [sic] doinbto [sic] my baby.” (Docket No. 46 at 25-26; Docket Nos. 41-8, 41-9).

         After acknowledging the large gap of time between November 26 and December 7, 2016, L.D. reviewed the events of her day on December 5, 2016. (Docket No. 46 at 26). L.D. stated that she was at school until 2:00 p.m., picked R. up from daycare, and returned to her home for the rest of the day by 3:00 p.m. (Id.).[3] Defendant arrived at L.D.'s home around 5:00 p.m. after he picked up dinner from McDonald's for R. (Id. at 28-29).[4] Defendant fed R. her dinner in the dining room while L.D. remained in the living room for approximately one-half hour. (Id.). Defendant then entered the living room and “kept trying to give [L.D.] hugs, ” while she “would just keep moving away from him” because “[h]e was just crossing the line.” (Id.). L.D. retreated upstairs to her bedroom and shut the door. (Id.). Defendant then went upstairs with R. and said that he was going to try to put her to bed.[5] (Id. at 29). When R. did not want to go to bed “because it was too early, ” Defendant “was getting frustrated” and “threw her down on the bed.” (Id.). In explaining how Defendant threw R. on the bed, L.D. testified, “He tossed her. He was holding her in his arms and she was being fussy, so he tossed her down on the bed and she landed on her back.” (Id. at 30). R.'s crying increased when she was thrown on the bed. (Id.).

         L.D. testified that she was upset with Defendant's action and asked him to give R. to her. (Id.). Defendant then “got really aggressive, ” “pushed [L.D.] down on the bed, ” and “proceeded to attack [her].” (Id.). To this end, L.D. stated that “[Defendant] just pushed me by my shoulders down onto the mattress and forcefully made me have sex with him.” (Id. at 30-31). She explained that Defendant removed her clothes, pushed her shorts to the side, and had sexual intercourse with her by inserting his penis into L.D.'s vagina. (Id. at 31). L.D. did not want to have sexual intercourse with Defendant, and she asked him to stop. (Id.). L.D. testified, “I kept telling him, why are you doing this. I kept asking him why because we are not that close, we don't have sex. The last time we had sex was two days before R.'s birthday and he forced me to have sex then.” (Id.). During the course of the assault, R., who was thirteen months old at the time, was still on the bed next to L.D. (Id. at 32). Defendant had an orgasm, and L.D. told him to leave because her father would be arriving within fifteen minutes. (Id.). Defendant gathered his things and left. (Id.).

         In returning to the text message communications, L.D. explained that there was a large gap of time between November 26 and December 7, 2016, because there was little communication between the two and because she had deleted some of the text messages. (Id. at 32-33). L.D. stated that on December 7, 2016, Defendant texted, “What [u] doinbto [sic] my baby, ” because he was outside of her home and heard R. screaming upstairs in her bedroom. (Id. at 33; Docket Nos. 41-9, 41-10).[6] Defendant then texted, “Y [sic] i [sic] hav [sic] to keep callin [sic], ” “I kno [sic] shit is fucked up but damn, ” “im [sic] so sad people r [sic] the way they r [sic], ” “I need a few seconds of ur [sic] time can [sic] u [sic] come down stairs [sic] and talk to me, ” and, “Hello.”[7] (Docket No. 46 at 33-34; Docket Nos. 41-10, 41-11, 41-12). L.D. testified that Defendant came inside her home that morning and was downstairs in her living room when he heard her father say something inappropriate, which is why he left L.D.'s home and sent her the text messages.[8] (Id. at 34). L.D. did not respond to Defendant's messages because she had school that morning. (Id.; Docket Nos. 41-10, 41-11, 41-12).

         L.D. did not communicate with Defendant until December 9, 2016, when she texted, “U [sic] hurt us so bad we never [sic] gon [sic] b [sic] ok.” (Docket No. 46 at 35; Docket No. 41-12). L.D. was referencing “[w]hat he had done to us, how he had attacked me in front of R., and just everything he has done as a whole.” (Docket No. 46 at 35). When Defendant responded, “Stop texting me, ” L.D. replied, “I c [sic] but u [sic] can blow up my phone then show up at my house rite [sic]?, ” and, “And let urself [sic] in my front door.” (Docket No. 46 at 35; Docket Nos. 41-13, 41-14). L.D. testified that she was referring to when he came to her house and entered without her permission. (Docket No. 46 at 35). Four hours after she texted, “Quit pretending like u [sic] care wen [sic] actually u [sic] careless, ” L.D. texted, “Did u [sic] go to jail?” (Id. at 36; Docket No. 41-16). In discussing this text message, L.D. testified, “[A]fter he assaulted me Monday, I told him that I was going to call the police and report it and get the PFA [Protection from Abuse] reinstated because I didn't want him around me or R. anymore. He told me, don't worry about it, because he is going back to jail that Friday for probation violations. So he was going to be going back to jail.” (Docket No. 46 at 36). When Defendant did not respond, L.D. assumed that he had gone back to jail. (Id. at 37).

         L.D. learned that Defendant had not returned to jail when she was shopping at Target with her mother and R. and saw Defendant, who did not acknowledge L.D. or R. (Id.). On December 19, 2016, L.D. texted, “U [sic] can walk up in my house tresspassn [sic] but u [sic] cant [sic] even say hello to [R.] or even acknowledge her in public, u [sic] can take my pussy against my will while my baby is watchn [sic] but u [sic] cant [sic] say hi to her as u [sic] pass us at the store? Is that rite [sic] daddy? Ur [sic] a sick mutherfucker [sic] don't [sic] ever come around us again ur [sic] fuckn [sic] crazy.” (Docket Nos. 41-17, 41-17). L.D. stated that she sent the text message because Defendant had sexually assaulted her and because she was frustrated with him for the reasons included in the message. (Docket No. 46 at 38). On December 20, 2016, when L.D. texted, “I will never understand y [sic] u [sic] decided to hurt me and [R.] so bad but i [sic] hope it was worth it, ” she was referring to Defendant throwing R. on the bed and sexually assaulting L.D. (Id. at 39; Docket No. 41-18).

         On December 25, 2016, L.D. texted, “Lying to us for months, played us, u [sic] not in jail u [sic] fuckn [sic] 2 face [sic] liar.” (Docket No. 46 at 39; Docket No. 41-19). L.D. also texted, “Its [sic] ok u [sic] let fugs harass me n [sic] [R.] weneva [sic] shes [sic] feeln [sic] weak and lonely.” (Docket No. 41-19). L.D. explained that “fugs, ” which means “fucking ugly, ” is in reference to Ms. Mozes. (Docket No. 46 at 39-40). She also stated that Defendant had given her telephone number to Ms. Mozes and that Ms. Mozes “would continuously call me and text me out of the blue for no reason at all.” (Id. at 40). Also on December 25, 2016, L.D. texted, “U [sic] raped me in front of [R.] two weeks ago . . . dnt [sic] lie, im [sic] sick of u [sic] sayn [sic] im [sic] crazy cuz [sic] u [sic] so ignorant u [sic] kno [sic] the truth Santana, u [sic] did this to me and [R.], ” and, “U [sic] didnt [sic] have to hurt us so bad, u [sic] just did it cuz [sic] u [sic] hate us i [sic] guess idk.”[9] (Id.; Docket No. 41-20). While discussing Defendant's responses, “I aint [sic] saw [sic] u [sic] n [sic] week quit ur [sic] shit, ” and, “Dont [sic] take it out on [R.] cause [sic] u [sic] mad at me, ” L.D. noted that Defendant did not deny that he had raped her or assaulted R. (Docket No. 46 at 41; Docket No. 41-21).

         On December 26, 2016, L.D. sent several screen shots of text messages that Ms. Mozes had sent to her. (Docket No. 46 at 41-42; Docket Nos. 41-22 through 41-29). In discussing why she forwarded the messages to Defendant, L.D. stated, “[W]henever I would bring that to his attention, he would act like she never did anything, I'm making this up. He didn't believe me.” (Docket No. 46 at 42.). That day, L.D. also texted, “My dad was here that mornin [sic] u [sic] broke in my house so i [sic] hav [sic] a witness, ” and, “U [sic] get away with so much in life . . . responsibilities etc [sic] . . . u [sic] think u [sic] can shit on me & [R.] then get away with that too, ima [sic] make sure u [sic] pay this time cuz [sic] u [sic] didnt [sic] hav [sic] to hurt us so bad u [sic] did it deliberately, shit u [sic] never even apologized u [sic] keep on hurtn [sic] us.” (Docket No. 46 at 42-43; Docket Nos. 41-29, 41-30). L.D. testified that her text messages referred to the day that Defendant entered her home without permission and to the day that Defendant raped her and assaulted R. (Docket No. 46 at 43).

         At 3:45 a.m. on December 27, 2016, L.D. texted, “Is that u [sic] at my door??, ” “Go away, ” and, “Omg idk who it is.”[10] (Id. at 43-44; Docket No. 41-31). In discussing these messages, L.D. stated, “I thought it was him at first because I didn't think anybody else would be at my door in the middle of the night. Then whenever he didn't respond, I didn't know who it was.” (Docket No. 46 at 44). Defendant responded approximately seven hours later by texting, “No not at ur [sic] crib but u [sic] kno [sic] this.” (Docket No. 46 at 44-45; Docket No. 41-32). L.D. never learned who was at her door but believes that it was Defendant. (Docket No. 46 at 44). At the conclusion of her direct examination, L.D. reiterated that Defendant entered her home without permission, that he raped her; and that he threw R. on the bed. (Id. at 45). She also noted that Defendant has threatened her by calling her and stating that she abuses [R.] and that he “could get her taken off of me.” (Id.).

         On cross examination, L.D. again stated that some of the text history was not preserved. (Id. at 46). She noted, however, that she did not recollect deleting any text messages or photographs that could have been text messages between the end of November and December 7, 2016. (Id. at 47). She stated that she and Defendant had communicated through telephone calls from November 25, 2016, through the end of December. (Id. at 47-48). L.D. also testified that the texting history ended on December 27, 2016, because she purchased a new phone. (Id. at 48).

         L.D. next reviewed text messages from January 16, 2017, wherein Defendant texted, “What do I do from here, ” and, “I want to turn myself in.” (Id. at 48-49; Docket No. 41-35). L.D. did not recall Defendant's messages, but she remembered her response, “U [sic] turn urself [sic] in yet?” (Docket No. 46 at 48-49; Docket No. 41-35). L.D. then addressed her PFA, which was filed in January 2017. (Docket No. 46 at 49-50).[11] L.D. testified that Defendant was personally served at the Renewal Center on January 13, 2017, and that he left the Renewal Center approximately one hour after he was served with the PFA. (Docket No. 46 at 50-51). To this end, L.D. explained that Defendant's Probation Officer called her approximately one hour after Defendant was served and advised her to go home, lock her doors, and avoid answering the door because Defendant had left the Renewal Center. (Id. at 51). L.D. returned to her text messages from January 16, 2017, wherein she stated, “U [sic] kno [sic] my intentions were to keep [R.] safe away from u [sic] & fugs. I never intended for u [sic] to go back to prison for 4yrs, [sic] wow, u [sic] did that to urself [sic], ” “Felt bad for yest [sic] wen [sic] p told me u [sic] had a temper tantrum & got urself [sic] 4yrs [sic] in prison, ” and “[R.] says bye hav [sic] a nice life w ...


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