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United States v. Bernier

United States District Court, District of Columbia

August 23, 2018

UNITED STATES OF AMERICA,
v.
DAVID BERNIER, Defendant.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.

         A Hearing on Violation of Defendant David Bernier's supervised release was held on June 7, 2018. See Transcript of June 7, 2018 Hearing on Violation of Supervised Release (“Tr.”) Upon consideration of the three Petitions by the United States Probation Office dated March 23, 2018[1], ECF No. 42; April 17, 2018, ECF No. 49; and June 2, 2018, ECF No. 55, the testimony presented and representations made at the Hearing on Violation, the Court's observation of the witnesses' demeanor, and the entire record in this case, the Court finds by a preponderance of the evidence that Defendant David Bernier has violated the conditions of his supervised release, and accordingly, his supervision shall be revoked. A separate Order accompanies this Memorandum Opinion.

         BACKGROUND

         On June 20, 2016, Defendant David Bernier (“Defendant” or “Mr. Bernier”) pled guilty to a one count Information, charging Mr. Bernier with Making False Statements in violation of 18 U.S.C. § 1001. See Plea Agrmt. at 1-2, ECF No. 6 (wherein Defendant agreed that “the “Statement of Offense” fairly and accurately describe[d] [his] actions and involvement in the offense to which [he] [was] pleading guilty.”) As described in the Statement of Offense, Mr. Bernier forged documents regarding his military service, with the use of a computer, in connection with his claim for compensation he was not entitled to from the National Mortgage Settlement, and he made false statements about these documents and his military service to a Special Agent with the United States Department of Justice Office of the Inspector General. See Statement of Offense, ECF No. 5, at 4-6.

         Pursuant to the advisory U.S. Sentencing Guidelines, Mr. Bernier's criminal history category was I and his total offense level was 17. As such, the advisory guideline range for his offense was a term of 24 to 30 months imprisonment. However, the Court applied a variance/departure and, on January 6, 2017, the Court sentenced Defendant to a six month period of incarceration followed by supervised release for a period of twenty-four months. Judg. in a Crim. Case, ECF No. 30, at 2-3. In addition to the required mandatory conditions of supervised release, the trial court set special conditions requiring Mr. Bernier to “contribute 100 hours of community service” and “participate in a mental health treatment program, which may include outpatient counseling or residential placement, as approved and directed by the Probation Office.” Id. at 5.

         Before Mr. Bernier's supervised release commenced on August 4, 2017, and while he was still incarcerated, the United States Probation Office for the District of Columbia (“D.C. Probation Office”) filed a Petition requesting that the conditions of his supervision be modified to add the following condition:

Computer and Internet Monitoring - Defendant shall participate and comply with the requirements of the Computer and Internet Monitoring Program (which may include partial or full restriction of computer(s), internet/intranet, and/or internet-capable devices), and shall pay for services, directly to the monitoring company. The defendant shall submit to periodic or random unannounced searches of his/her computer(s), storage media, and/or other electronic or internet-capable device(s) performed by the probation officer. This may include the retrieval and copying of any prohibited data. Or, if warranted, the removal of such system(s) for the purpose of conducting a more comprehensive search.

         June 21, 2017 Prob. Pet., ECF No. 35, at 1. The D.C. Probation Office indicated that Mr. Bernier had requested release to the District of Maine for supervision, and the United States Probation Office for the District of Maine (“Maine Probation Office”) had “conditionally approved accepting his case for supervision pending the approval of the proposed modification.” Id. at 2. The D.C. Probation Office informed the Court that Mr. Bernier was “in agreement [with] the modification” as evidenced by the fact that he “signed the attached Waiver of Hearing to Modify Conditions of Supervised Release (“Waiver”).” Id.

         The Court concurred with the recommendation of the D.C. Probation Office to include the aforementioned condition of supervision regarding Computer and Internet Monitoring based on the facts underlying Defendant's charge of Making False Statements and his misuse of a computer to create false documents. See June 23, 2017 Order, ECF No. 36. Despite having signed a Waiver, Defendant challenged the imposition of the Computer and Internet Monitoring condition on grounds that such condition was “not reasonably related to the offense for which he was convicted.” Defendant's Opposition to Modification of Conditions of Post-Sentence Supervision (“Opposition”), ECF No. 38, at 2. While “Defendant acknowledge[d] that he consented to a supervisory restriction during his period of incarceration” he indicated that it was because he “did not consult with counsel” and he was “under the mistaken belief that signing the agreement was a condition precedent to the State of Maine accepting transfer” of his supervision. Id. at 4.

         The Waiver that Defendant signed stated that he “voluntarily waiv[ed] [his] statutory right to a hearing and to assistance of counsel” and further, that he “agree[d] to the [ ] modification of [his] Conditions of . . . Supervised Release” by accepting the Computer and Internet Monitoring condition. Ex. 16 (Waiver of Hearing to Modify Conditions of Supervised Release). That Computer and Internet Monitoring condition was a condition precedent to the State of Maine accepting transfer of his supervision.

         The D.C. Probation Office's Memorandum dated November 16, 2017 referenced Defendant's Opposition and proffered the rationale for requiring a Computer and Internet Monitoring condition. See Prob. Mem., ECF No. 39. The Probation Office notified this Court that certain documents which posed “a potential risk to the public” had been retrieved from Mr. Bernier's computer. Prob. Mem., ECF No. 39, at 2. Mr. Bernier filed a Response to the D.C. Probation Memorandum, whereby he asserted that the documents retrieved from his computer were part of his therapy, which involved “storytelling using Narrative Therapy.” See Def's Resp. to Prob. Memo., ECF No. 40. Ultimately, the D.C. Probation Office filed its March 23, 2018 Petition, ECF No. 42, alleging that Mr. Bernier had committed ten violations of his supervised release, summarized as follows: (1) possession of an unauthorized laptop; (2) failure to truthfully answer questions asked by the Maine Probation Officer regarding the unauthorized laptop; (3) failure to provide verification of his authorization to participate in “narrative therapy;” (4) participation in an attempted wire fraud, which was later re-characterized by the D.C. Probation Office as unauthorized use of a computer;[2] (5) multiple unreported email accounts; (6) traveling without permission to New Hampshire; (7) failure to truthfully answer questions by the Maine Probation Officer regarding the Computer and Internet Use Questionnaire; (8) commission of a crime regarding his citation in Florida for Lewdness, Exposure of Sex Organs; (9) using an unauthorized data storage device; and (10) accessing a website that Defendant had not reported to the Maine Probation Officer.

         The Court scheduled a Hearing on Violation (“HOV”) for April 12, 2018, which was converted into a status hearing when Defendant, through counsel, “contested all ten violations, thus necessitating that this Court set a hearing on the merits where both Defendant and the [United States] Government may present witnesses and exhibits.” Apr. 13, 2018 Min. Entry.

         On April 13, 2018, the Government filed under seal its position regarding the Defendant's [40] Response to the Probation Memorandum, wherein the Government described Mr. Bernier's “troubling behavior regarding computer usage, ” including his alleged possible fraudulent attempts to obtain money from an entity in Colorado and a company in Alabama, and Mr. Bernier's alleged email to David Dempsey, a Unit Manager at FCI Fairton, whereby Defendant asked Mr. Dempsey to sign a draft letter that was sent by Mr. Bernier on allegedly official United States Department of Justice/Bureau of Prisons letterhead, which Mr. Bernier had created. See Gov't Resp., ECF No. 47, at 3-4. Based on the alleged violations set forth in the Probation Office's March 23, 2018 Petition, and the Government's description of Mr. Bernier's additional alleged behavior involving computer usage, and subsequent to the April 12, 2018 status hearing, this Court further amended the conditions of Defendant's supervision to add the following addit ional special condit io ns:

1) You must not engage in an occupation, business, profession, or volunteer activity that would require or enable you to consummate or negotiate any financial contracts without the permission of the probation officer;
2) You must provide the probation officer access to any requested financial information and authorize the release of any financial information. The probation officer may share financial information with the United States Attorney's Office; and
3) You must not access the Internet except with receiving advance permission and supervision from the United States Probation Office.

Apr. 13, 2018 Memo. Op. and Order, ECF No. 46, at 3.

         The D.C. Probation Office alleged two additional violations in its April 17, 2018 Probation Petition: (11) accessing the Internet without authorization from the Probation Office to file an annual corporate report; and (12) accessing the Internet without authorization from the Probation Office to send the email to the BOP. See April 17, 2018 Probation Petition, ECF No. 49, at 2. In a Probation Petition dated June 2, 2018, ECF No. 55, at 2, the D.C. Probation Office alleged two more violations: (13) accessing the Internet without advance permission and supervision; and (14) failing to truthfully answer questions about his computer activities in the Probation Office.

         HEARING ON VIOLATION

         On June 7, 2018, the Court held an evidentiary hearing to address all fourteen alleged violations of Mr. Bernier's supervised release. At the hearing, the Court heard argument from the parties regarding their respective positions on each of the alleged violations. Mr. Bernier, through counsel, contested each and every violation while the Government argued that Defendant had violated the conditions of his supervision with respect to all of the violations set forth in the D.C. Probation Office's three Petitions. The Court considers first the violations warranting revocation of Defendant's supervised release, which have been proven by the Government by a preponderance of the evidence, followed by the remaining violations, which raise issues relating to Defendant's standard of conduct while on supervised release and the need for this Court to monitor his behavior, his use of technology and Internet access, and his financial transactions.

         As a preliminary matter, the following persons provided testimony on behalf of the Government during the evidentiary hearing, and the Court credits the testimony of these witnesses: (1) David Dempsey, currently a Unit Manager at the Federal Correctional Institution (“FCI”) in Fairton, New Jersey, and formerly an Acting Executive Assistant and Camp Administrator for that facility (as of June 9, 2017); (2) Officer Sarah Howe, employed by the Sanford Police Department in Sanford, Maine; and (3) Probation Officer Kate Phillips from the United States Probation Office for the District of Maine (where Defendant is being supervised). Furthermore, the Court credits the testimony of Dr. Lee Katherine Nicoloff - a clinical psychologist in private practice in South Portland, Maine who treats Mr. Bernier - who testified on behalf of the Defendant during the evidentiary hearing, with regard to Violations No. 3 and No. 12. The Government's exhibits numbered 3 and 8-17 were admitted into evidence. Defendant did not move for the admission of any exhibits into evidence nor did Mr. Bernier elect to testify.[3] Accordingly, the evidence with regard to Violations Nos. 1-2, 4-11, and 13-14 is uncontroverted.

         Violations that Support Revocation of Defendant's Supervised Release

         Violations No. 1 and No. 2

         Violation No. 1 is based on Mr. Bernier's alleged possession of an unauthorized laptop, and Violation No. 2 involves his allegedly untrue statements to the Probation Office regarding that laptop. See March 23, 2018 Probation Petition, ECF No. 42. Ms. Kate Phillips, Mr. Bernier's supervising Probation Officer in Maine, prefaced her testimony about these two violations by explaining that “[pe]r the [C]omputer and Internet [M]onitoring condition, clients must only use and/or possess a computer that has been approved.” Phillips Tr. 66. Ms. Phillips indicated that her co-worker Megan Entwistle met initially with Mr. Bernier on August 7, 2017, when his supervision commenced, and Ms. Entwistle reviewed the conditions of his release with him, but Ms. Phillips could not speak to exactly what they discussed. Phillips Tr. 121-124. On August 15, 2017, Mr. Bernier “reported into the probation office with a Dell laptop, ” which was approved by the Probation Office, and “[Ms. Phillips] explained to him that he would need to seek approval for any other device” he wanted to use. Phillips Tr. 66. “I had told him that he cannot operate or use another computer without our permission, aside from the Dell he brought in and his iPhone.” Phillips Tr. 147.

         On August 25, 2017, Ms. Phillips visited Mr. Bernier at his residence and found two laptops in the room that Mr. Bernier identified as his bedroom - the Dell laptop and an ASUS laptop. Phillips Tr. 66; see Ex. 3 (8/25/17 receipt of surrendered property, listing the Dell and the ASUS). Mr. Bernier gave up both computers without protest. Phillips Tr. 135.

         Ms. Phillips asked Mr. Bernier about the ASUS computer and why he was using it, and he responded that the ASUS laptop “belonged to his brother, Jim Bernier” and Mr. Bernier was using is “to edit photos from his 35th high school reunion.” Phillips Tr. 67. Ms. Phillips spoke with Jim Bernier on September 6, 2017, and Jim Bernier said that the ASUS laptop belonged to David Bernier and “it was his laptop from prior to his incarceration and that he did not know why David told [her] that the ASUS laptop belonged to [h]im.” Phillips Tr. 67-68. When asked: “Did Mr. Bernier ever make any additional statements regarding him telling you that the computer belonged to his brother, ” Ms. Phillips responded that Mr. Bernier apologized for “telling [her] untrue information” and he informed her that his brother Jim used the ASUS computer while Mr. Bernier was incarcerated in order to assist Mr. Bernier with a class reunion. Phillips Tr. 71. However, Defendant provided no evidence to support that use of the computer by his brother. Mr. Bernier further explained to her that “upon his release, and having the monitoring condition applied to him, he thought it would be in his best interest to obtain another computer, which would be [the] Dell computer, based on the privileged information that was on the ASUS computer.” Id.

         With regard to Violations No. 1 and 2, the Court finds that the Government has demonstrated by a preponderance that Defendant violated his supervision by possessing an unauthorized laptop - the ASUS computer - and by making false statements about the ownership of that computer. The record before this Court shows that these Violations No. 1 and 2 are uncontested. The ASUS laptop computer was located in Defendant's room and he admitted to using it to edit photos; however, there was no evidence presented to verify this use of the ASUS laptop to edit photos. While Defendant claimed that the computer belonged to his brother, this claim was directly contradicted by statements made by his brother to Probation Officer Kate Phillips, and statements made later, whereby Defendant acknowledged that the ASUS laptop was his but claimed, with no proof, that his brother used it while Defendant was incarcerated. As there is no evidence to support Defendant's claims about the use of the ASUS computer by his brother, the Court does not rely on the Defendant's statements made to the Probation Officer. The Court notes that Mr. Bernier did not specifically contest Violation No. 1, but instead, through counsel, he asserted that it was a technical violation mitigated by lack of experience with the criminal justice system. Tr. 171-172. The Court notes that Mr. Bernier is a well-educated individual (see Presentence Investigation Report, ECF No. 22), who is familiar with the criminal justice system insofar as he was convicted of Making False Statements, in violation of 18 U.S.C. Section 1001; he served a period of incarceration; and he has been on supervised release subject to conditions of supervision since August of 2017.

         Violation No. 3

         As a condition of his supervision, Mr. Bernier was to participate in a mental health treatment program, as approved and directed by the Probation Office. This violation is based upon Mr. Bernier's alleged failure to provide verification of his authorization to participate in narrative therapy. See March 23, 2018 Probation Petition, ECF No. 42. Ms. Phillips testified as follows:

On October 10th, 2017, I observed [, ] via monitoring software [, ] activity on Mr. Bernier's computer that involved editing Word documents that appeared to be in the medical field. And they were from three different doctors. And several of the documents involved moving a signature around. I had questioned Mr. Bernier about these documents. And his response was he was editing the medical documents as part of narrative therapy that he reported he had engaged in in the past. I had requested verification of his participation in narrative therapy. And he has been unable to provide any verification from any former practicing clinician or any treatment provider that he has seen in his life to involve participation in narrative therapy.

         Phillips Tr. 71-72. With regard to Violation No. 3, Mr. Bernier was the one who raised the concept of narrative therapy with Ms. Phillips, telling her that it was a “therapeutic modality that he in the past had used during his therapeutic sessions.” Phillips Tr. 135-136. Mr. Bernier told Ms. Phillips he was “currently practicing narrative therapy” but he did not say he was practicing it with his current psychologist, only that he had practiced it with “a former treatment provider.” Phillips Tr. 136, 149.

         In the Fall, Ms. Phillips contacted Mr. Bernier's current therapist, Dr. Lee Katherine Nicoloff, regarding Defendant's participation in any narrative therapy, and Dr. Nicoloff stated “she was unable to verify that [Defendant's] activity was part of narrative therapy[.]” Phillips Tr. 72-73. Ms. Phillips noted that Mr. Bernier's treatment summary, dated March 6, 2018, which covered the period from August 11, 2017 to March of 2018, does not mention anything about narrative therapy or the aforementioned three documents, nor has ...


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