United States v. Hines

UNITED STATES OF AMERICA v. PETER J. HINES

CR No. 12-117WES

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

January 28, 2020

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 Peter J. Hines 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 Fed. R. Crim. P. 32.1, hearings were held on February 7, February 21, April 22, December 2, and December 16, 2019, and January 15, 2020. At the initial appearance on February 7, 2019, I ordered Defendant detained pending further proceedings; by the next hearing, the parties had agreed that the matter must be delayed due to the pendency before the United States Supreme Court of what subsequently issued as United States v. Haymond, 588 U.S. ___, 139 S. Ct. 2369, 2384-85 (2019) ("Haymond"), on June 26, 2019. After June 2019, the delay continued at the request of Defendant as the parties and the Court struggled with how to interpret Haymond and to apply it in the circumstances of this case.

Finally, on January 15, 2020, with the parties in agreement, Defendant waived a revocation hearing and admitted certain facts, as well as that the government could prove the facts beyond a reasonable doubt, which are set out in a Stipulation and Agreement (ECF No. 78) (the "Agreement"), presented by the parties and signed by Defendant at the hearing. Based upon the parties' joint recommendation and the other terms of the Agreement, Defendant's admission to the facts contained in the Agreement and the following analysis, I recommend that the Court revoke the current term of supervision and impose a sentence of four years of incarceration, followed by a ten-year term of supervised release. I further recommend that, while on supervised release, Defendant be required to comply with the following conditions except to the extent that Probation proposes different or additional conditions after receiving the psychological/psychosexual evaluation report discussed infra:

Defendant shall participate in a program of mental health treatment as directed and approved by the Probation Office. The defendant shall contribute to the costs of such treatment based on ability to pay as determined by the probation officer.

Defendant shall comply with all applicable federal and state laws regarding the registration of sex offenders in the state of residence, employment and school attendance, and shall provide verification of compliance with this requirement to the probation officer.

Defendant shall participate in a sex offender specific treatment program as directed by the probation officer. Defendant shall contribute to the costs of such treatment based on ability to pay as determined by the probation officer.

Defendant shall participate in testing in the form of polygraphs or any other methodology approved by the Court in order to measure compliance with the conditions of treatment and supervised release. Defendant shall contribute to the costs of such testing based on ability to pay as determined by the probation officer.

Defendant shall permit the probation officer, who may be accompanied by either local, state, or federal law enforcement authorities, upon reasonable suspicion of the violation of supervision, to conduct a search of Defendant's residence, automobile, workplace, computer, and other electronic communication or data storage devices or media.

Defendant must submit to unannounced examination of his computer or other electronic equipment by the probation officer, who may be accompanied by either local, state, or federal law enforcement authorities, which may include retrieval and copying of all data from the computer to ensure compliance with this condition. In addition, Defendant must consentto the removal of such equipment for the purpose of conducting a more thorough investigation and must allow, at the discretion of the probation officer, installation on Defendant's computer any hardware or software system to monitor his computer use.

Defendant shall have no intentional contact with any child under the age of 18, without the presence of an adult who is aware of Defendant's criminal history and is approved, in advance, by the probation officer. This does not extend to incidental contact with minors, which should be discussed with the probation officer.

Defendant shall not loiter in areas where children congregate. These areas include, but are not limited to, schools, daycare centers, playgrounds, arcades, amusement parks, recreation parks and youth sporting events.

Defendant shall not be employed in any occupation, business, or profession or participate in any volunteer activity where there is access to children under the age of 18, unless authorized, in advance, by the probation officer.

Defendant shall live at a residence approved by the probation office, and not reside with anyone under the age of 18, unless authorized, in advance, by the probation officer.

Defendant shall not possess any material, including videos, magazines, photographs, computer-generated depictions, or any other forms that depict sexually explicit conduct involving children or adults.

Defendant shall not enter any establishment involved in the sex industry, including but not limited to adult bookstores, massage parlors, and strip clubs.

Defendant must not use, possess, procure, or otherwise obtain any electronic device that can be linked to any computer networks, bulletin boards, internet service providers, or exchange formats involving computers. Any exceptions to this condition must be pre-approved by the probation officer.

I. BACKGROUND

On January 28, 2019, the Court granted the Probation Office's petition for the issuance of a warrant charging Defendant with the following violations:

Violation No. 1: The defendant shall participate in testing in the form of polygraphs or any other methodology approved by the Court in order to measure compliance with the conditions of treatment and supervised release.

The defendant shall contribute to the costs of such testing based on ability to pay as determined by the probation officer.

On January 19, 2019, Mr. Hines reported as scheduled to undergo a maintenance re-test polygraph exam, but refused to submit to the exam.

Violation No. 2: While on supervision, the defendant shall not commit another federal, state, or local crime.

On December 7, 2018, Mr. Hines possessed child pornography, in violation of 18 U.S.C. § 2252(a)(4) and (b)(2).

Violation No. 3: The defendant shall not possess any material, including videos, magazines, photographs, computer-generated depictions, or any other forms that depict sexually explicit conduct involving children or adults.

On September 7, 2018, Mr. Hines reported that he has been downloading adult pornography to his cell phone and viewing the material for the past six months. On December 7, 2018, Mr. Hines was found to be in possession of an Amazon Fire tablet, on which pornographic videos and images had been downloaded. On January 22, 2019, Mr. Hines was found to be in possession of an LG cell phone and Amazon Fire tablet, on which pornographic videos and images had been downloaded.

Violation No. 4: The defendant must not use, possess, procure, or otherwise obtain any electronic device that can be linked to any computer networks, bulletin boards, internet service providers, or exchange formats involving computers. Any exceptions to this condition must be pre-approved by the probation officer.

On October 22, 2018, Mr. Hines was found to be in possession of an LG cell phone, which had not been pre-approved by the Probation Department. On December 7, 2018, Mr. Hines was found to be in possession of an Amazon Fire tablet, which had not been pre-approved by the Probation Department. On January 22, 2019, Mr. Hines was found to be in possession of an LG cell phone and Amazon Fire tablet, which were not pre-approved by the Probation Department.

On February 7, 2019, Defendant appeared before the Court for his initial appearance and requested a two-week continuance because discovery was needed. On February 21, the parties advised that Haymond, a case pending before the Supreme Court potentially dispositive of this case, was scheduled shortly for oral argument; therefore, they requested a continuance to awaitresolution of Haymond. Haymond issued on June 26, 2019. In brief, it clearly holds that 18 U.S.C. § 3583(k)'s five-year mandatory minimum prison sentence for certain sex offenses committed by SORNA defendants on federal supervised release is unconstitutional. Haymond, at 2384-85. Far less clear is Haymond's impact on a separate provision of § 3583(k), which provides that the statutory caps that normally cabin the length of incarceration for a supervised release violation are suspended when a SORNA defendant commits a new child pornography crime. The Court allowed several continuances at Defendant's request to allow the parties time to work on a Haymond-compliant solution that would adequately address Defendant's new criminal conduct as a violation without the need to bring new federal charges.

On January 15, 2020, the parties advised that they had reached a stipulated agreement containing the following provisions:

(1) specific facts that Defendant was prepared to admit, as well as that he was prepared to admit that these facts are supported by proof sufficient to establish them beyond a reasonable doubt;

(2) the acknowledgment that the admitted facts are sufficient to establish violations of four conditions of supervised release, as well as that one of them violates 18 U.S.C. § 2252(a)(4) and (b)(2);

(3) the parties' joint sentencing recommendation of four years of incarceration and ten years of supervised release (on which Defendant relied in making the admissions);

(4) Defendant's

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