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United States v. Maxwell

United States District Court, E.D. Kentucky, Southern Division, London

August 8, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
THOMAS W. MAXWELL, JR., Defendant.

          RECOMMENDED DISPOSITION

          HANLY A. INGRAM UNITED STATES MAGISTRATE JUDGE.

         On referral from District Judge Van Tatenhove (D.E. 114), the Court considers reported violations of supervised release conditions by Defendant Thomas W. Maxwell, Jr. This is his fourth revocation.

         I.

         District Judge Van Tatenhove entered an amended judgment against Defendant on March 5, 2013, for failure to register as a sex offender. D.E. 50; 18 U.S.C. § 2250(a). Defendant was sentenced to 37 months of imprisonment followed by a life term of supervised release, which included several special conditions. Id. Defendant began his first term of supervised release on February 19, 2013.

         The first revocation proceedings began on June 18, 2013, when the United States Probation Office (“USPO”) issued a report that charged Defendant with failing to obtain pre-approval for his residence and associating with a convicted felon without permission. An addendum (clarified by a second addendum) charged Defendant with leaving the judicial district without permission, failing to register as a sex offender under state law, and committing another crime, i.e., failing to register as a sex offender. Defendant stipulated to all the violations and was sentenced to eighteen months of imprisonment to be followed by lifetime supervision. Defendant was released on October 22, 2014, to begin his second term of supervised release.

         The second set of revocation proceedings began on November 20, 2014, when the USPO charged Defendant with using a computer or device with access to on-line computer service. An addendum further charged failure to comply with Kentucky sex offender registration. Defendant stipulated to both violations, and he was sentenced to 24 months of incarceration with a lifetime term of supervised release to follow. Defendant was released on December 13, 2016, to begin his third term of supervised release.

         The third set of revocation proceedings began on February 13, 2017, when the USPO charged Defendant with using two smartphones without permission. Defendant admitted guilt and was sentenced to another 24 months of imprisonment, followed by lifetime supervised release. Defendant began his fourth term of supervised release on January 4, 2019.

         I.

         On May 31, 2019, the USPO issued a Supervised Release Violation Report (“the Report”) that initiated these proceedings. The Report charges two violations. The first violation concerns the condition that Defendant not possess or use any device with access to the internet without prior written approval by his probation officer. According to the Report, On May 7, 2019, the undersigned [probation officer] was informed that Mr. Maxwell reported two different numbers he could be contacted at by Vocational Rehabilitation.

On May 17, 2019, the undersigned was informed by Mr. Maxwell that these were landlines. On May 28, 2019, the previously reported number 859-397-9139 was confirmed by the undersigned to be a smartphone that Mr. Maxwell was in possession of. On May 30, 2019, Mr. Maxwell was confronted about the smartphone. He confirmed he had purchased a smartphone and used said phone.

         This is a Grade C violation.

         Violation #2 alleges a violation of Defendant's condition requiring him to participate in a treatment program for mental health and sexual disorders and follow all program rules. According to the Report, the treatment provider informed the USPO that Defendant failed to attend his treatment on May 24, 2019. A representative of the provider said Defendant told them he had overslept. Defendant also told them he could not attend the group sessions “due to employment and would only be attending individual sessions.” Defendant had also been “a poor participant” during his April 12, 2019, group session-dominating the session and getting the group off-track. This is a Grade C violation.

         On June 7, 2019, the Court conducted an initial appearance on the Report pursuant to Rule 32.1 and set a final hearing following a knowing, voluntary, and intelligent waiver of the right to a preliminary hearing. D.E. 119. At the initial appearance, the United States made an oral motion for interim detention; Defendant did not argue for release. Id. The Court found detention was appropriate as Defendant did not carry the heavy release burden imposed upon him under Rule 32.1(a)(6) and 18 U.S.C. § 3143(a). Id.

         On June 17, 2019, the USPO issued an Addendum to the Report. The Addendum charges, in Violation #3, another violation of the condition that Defendant not use a device with access to the internet. According to the Addendum, the probation officer received a call on June 4 informing him that Defendant had another smartphone. Defendant was incarcerated at the time, and the officer visited his residence. Defendant's roommate showed the officer the phone “in plain view, next to Mr. Maxwell's bed” and confirmed the phone was Defendant's. The officer seized the phone.

A subsequent search of the cell phone showed several pictures of pornography. There were several pornographic websites visited. Also search history showing searches for the “darkweb” and “darkweb signup.” There was a picture recovered showing two topless females that ...

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