United States v. Bernier

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) UNITED STATES OF AMERICA, ) ) v. ) Criminal Case No. 16-00088 (CKK) ) DAVID BERNIER, ) ) Defendant. ) )

MEMORANDUM OPINION (August 23, 2018)

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

1 The Probation Petition docketed on March 26, 2018, at ECF 42, is erroneously dated March 23, 2017, instead of March 23, 2018. 1 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

2 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

3 [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

2 Violation No. 4, involving alleged wire fraud, was later re-characterized by the D.C. Probation Office as a “computer monitoring issue in terms of unauthorized use of the computer,” because no money had been lost and no criminal charges were being pursued. See Tr. 63, 75. 4 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,

5 this Court further amended the conditions of Defendant’s supervision to add the following

additional special conditions:

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

6 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

3 The Court questioned him to ensure that this was his voluntary decision. Bernier Tr. 153.

7 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

8 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

9 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

10 the period from August 11, 2017 to March of 2018, does not mention anything about narrative

therapy or the aforementioned three documents, nor has Mr. Bernier provided any documentation

justifying his use of narrative therapy with regard to the creation of those documents. Phillips Tr.

73- 74.

Dr. Nicoloff was called by the Defendant to testify with regard to the allegations related to

Violation No. 3. Dr. Nicoloff is a clinical psychologist who treats patients with posttraumatic

stress disorder (“PTSD”), and she has been Mr. Bernier’s treating psychologist since August of

2017, seeing him on average once a week, while “us[ing] a variety of treatment modalities.”

Nicoloff Tr. 105-107. Dr. Nicoloff indicated that she is treating Mr. Bernier for PTSD, anxiety

and depression, and further, that Mr. Bernier exhibits a “number of obsessive compulsive

characteristics” which include “perfectionism and excessive attention to detail, [and] a need for

objects to be in order and symmetrical,” but she denied that he has obsessive compulsive disorder.

Nicoloff Tr. 107-108, 110.

Dr. Nicoloff stated that she is familiar with narrative therapy, which is an accepted form of

psychotherapy treatment, but she does not use it in her practice nor is she familiar with other

psychologists who use it. Nicoloff Tr. 108. Dr. Nicoloff described narrative therapy as follows:

The philosophy of narrative therapy is that we all carry layers of stories about ourselves that influence how we experience our lives. The narrative is a thread that connects experiences in a way that helps them make sense to us, helps us understand ourselves and our experiences. The assumption of narrative therapy is that by re-authoring those narratives, one can change how they think and feel about events and experiences in their life.

Nicoloff Tr. 108-109.

Dr. Nicoloff confirmed that she has never used narrative therapy with Mr. Bernier.

Nicoloff Tr. 111-112. She acknowledged that Mr. Bernier showed her his binder of self-help

11 materials, which included a description of — and articles about — narrative therapy, as well as

exercises prepared by him relating to narrative therapy, and a book called What is Narrative

Therapy. Nicoloff Tr. 115-116. In response to the Government’s question whether Dr. Nicoloff

had provided the Probation Office with any documentation that Mr. Bernier is authorized to engage

in narrative therapy, Dr. Nicoloff stated “[n]o” but added that “[i]t’s not really a matter of

authorization. As far as narrative therapy exercises go, Mr. Bernier is free to do whatever he feels

would be helpful to him.” Nicoloff Tr. 116-117. Dr. Nicoloff did however scoff at the idea that

narrative therapy would “involve the creation of false government documents that will be sent to

other people.” Nicoloff Tr. 113.

Defendant, through counsel, argued that this is not a significant violation, which would

warrant revocation, because the evidence shows that narrative therapy is an accepted modality and

any documents that Mr. Bernier created on his computer were not sent out. Tr. 173-174. While

the Court agrees that narrative therapy is an accepted modality and there is no evidence in the

record that the documents created by Mr. Bernier were sent out, Mr. Bernier was unable to provide

the Maine Probation Office with verification from any former practicing clinician or any treatment

provider that he has seen regarding his participation in narrative therapy. The Defendant’s

conditions of supervision require that he participate in mental health treatment at the direction of

his Probation Officer, who monitors such treatment. Although narrative therapy is a recognized

therapy, it is significant that Mr. Bernier engaged in this therapy without the supervision of a

therapist or without informing his Probation Officer. Furthermore, his creation of false documents

would not be consonant with the practice of narrative therapy. Accordingly, the Court finds that

the Government has demonstrated by a preponderance of the evidence that Defendant violated his

supervision by failing to provide the Probation Office with documentation or authorization that

12 affirms Mr. Bernier’s participation in narrative therapy. Dr. Nicoloff testified that she does not

employ narrative therapy with Mr. Bernier or her other patients nor would narrative therapy

include the falsification of documents to be sent to others. In sum, Defendant failed to proffer

any information that suggests that narrative therapy was part of any prior or current treatment

regimen as opposed to something he did/does on his own, or that such narrative therapy would

include the falsification of documents, and thus, Violation No. 3 is uncontroverted.

Violations No. 5 and No. 7

On September 4, 2017, as required by the Computer and Internet Monitoring condition

relevant to this supervision, Mr. Bernier completed a Computer and Internet Use Questionnaire

(“Questionnaire”), which requires that he list any and all email accounts. See Ex. 8 (Questionnaire

dated 9/4/2017), at 3. Violations Nos. 5 and 7 involve Defendant’s alleged possession of multiple

email accounts (Violation No. 5), reflected on Defendant’s cellphone on January 29, 2018, which

were not reported to the Probation Office in the Questionnaire and the subsequent submission of

an allegedly altered Questionnaire, which includes those email accounts and relates to Defendant’s

failure to truthfully answer questions asked by his Probation Officer. (Violation No. 7). See March

23, 2018 Probation Petition, ECF No. 42; see also Ex. 9 (screen shot of email accounts on

Defendant’s phone); Ex. 8 (original Questionnaire); Ex. 11 (email dated 2/01/18, including a copy

of a [modified] Questionnaire dated 9/4/2017).

Ms. Phillips testified that when Mr. Bernier completed the Questionnaire (Ex. 8) on

September 4, 2017, he only listed one email address, but when they looked at Defendant’s

13 telephone in January 2018, there were seven different accounts listed, including the one he

identified. Phillips Tr. 79.

With regard to the alleged alteration of the Questionnaire, Ms. Phillips testified that Mr.

Bernier emailed her on February 1, 2018, and attached a Computer and Internet Use Questionnaire

(Ex. 11) that has the same date as the September 4, 2017 Questionnaire (Ex. 8), but it lists five

email accounts instead of one. Phillips Tr. 80-81. Ms. Phillips recollected receiving the original

Questionnaire (Ex. 8), which listed one email address, on September 4, 2017. Phillips Tr. 81.

Ms. Phillips’ summary of these two violations is as follows:

When Mr. Bernier originally submitted the [C]omputer and Internet [U]se [Q]uestionnaire in September, it contained one email address. We confronted him on the multiple email addresses discovered on his iPhone in late January 2018. And he acknowledged he had those email addresses. After that conversation, he sent myself and a supervisor an email containing another [C]omputer and Internet [U]se [Q]uestionnaire which was also dated September 4th, 2017, but also contained multiple other email addresses that we reviewed. I spoke with him on the phone on February 1st, 2018, and confronted him about this altered document as it did not reflect the document submitted to our office. And I provided him with multiple opportunities to explain why he added information, namely the email addresses. And he denied that he altered that original form that was submitted in September.

Phillips Tr. 86.

The Court finds that the Government has shown by a preponderance of the evidence that

Mr. Bernier violated the conditions of his supervised release insofar as the Maine Probation Office

found numerous unreported email accounts on his iPhone, which were not listed as required in the

original September 4, 2017 Questionnaire (Ex. 8). Defendant claimed that these email addresses

were included on the “September 4, 2017” Questionnaire, and he submitted a copy of the

Questionnaire (containing these email addresses) to the Probation Office on February 1, 2018.

While Defendant denied altering that Questionnaire, he proffered absolutely no explanation to

account for the inconsistency between the first September 4, 2017 Questionnaire (Ex. 8) (which

14 lists one email account) and the second “September 4, 2017” Questionnaire (Ex. 11) (which lists

five email accounts). In contrast, Ms. Phillips testified that she remembered receiving the original

Questionnaire (Ex. 8), which listed one email account, while the second Questionnaire was not

received until February 1, 2018. There is nothing in the record before this Court that demonstrates

otherwise, and accordingly, the Court finds further that the Government has shown by a

preponderance of the evidence that Defendant violated the conditions of his supervised release

when he denied submitting an altered Questionnaire listing his email accounts and failed to

truthfully answer questions posed by the Probation Officer.

Violation No. 6

Violation No. 6 pertains to Defendant’s alleged unauthorized travel to New Hampshire on

December 18, 2017, which violates the standard condition of supervision that Defendant is

required to first obtain permission from the Probation Officer before leaving the judicial district

where Defendant resides. See March 23, 2018 Probation Petition, ECF No. 42. Ms. Phillips

testified that, on January 30, 2018, the Maine Probation Office conducted a search of the

Defendant’s iPhone and found evidence that he had been in Portsmouth, New Hampshire on

December 18, 2017. Phillips Tr. 82-83; see Ex. 10 (iPhone screen shot of trip details, map and

photos re: Portsmouth). Ms. Phillips confirmed with an employee of the Motel 6 in Portsmouth,

New Hampshire that Mr. Bernier checked into that hotel on December 18, 2017 through December

19, 2017. Phillips Tr. 83.

On January 31, 2018, Mr. Bernier reported to the Maine Probation Office and when Ms.

Philips indicated that there was evidence that he traveled to New Hampshire without permission,

he denied it. Phillips Tr. 84-85. Subsequently, Mr. Bernier told Ms. Phillips that he traveled to

Portsmouth to get medicine for his mother and “he ran into inclement weather and was forced to

15 get a motel for the evening.” Phillips Tr. 85. Ms. Phillips acknowledged that Mr. Bernier has

traveled previously to New Hampshire on several occasions, after receiving permission to do so,

and the reasons for those visits were for medication and doctor’s appointments for his mother.

Phillips Tr. 142-143.

Defendant conceded that this trip, unlike his prior trips, was taken without permission, but

he alleges that he went for the purpose of obtaining medicine for his mother, and he ended up

spending the night because of inclement weather. Tr. 174-175. No proof was offered by Defendant

to confirm that he traveled to New Hampshire for the purpose of obtaining medication for his

mother, or that any medication was obtained; therefore, there is no basis for this Court to rely upon

Mr. Bernier’s explanation for the purpose of this trip. Defendant, through counsel, characterized

this violation as a technical violation with a mitigating factor. 4 Tr. 175-176. The Court finds that

the Government has demonstrated by a preponderance of the evidence that Mr. Bernier violated

the conditions of his supervised release by traveling without prior permission to Portsmouth, New

Hampshire and lying about going, and therefore, this Violation No. 6 is uncontested.

Violation No. 9

Violation No. 9 alleges that Defendant failed to participate and comply with the

requirements of the Computer and Internet Monitoring Program, specifically, that he used an

unapproved data storage device on February 14, 2018. See March 23, 2018 Probation Petition,

ECF No. 42. Ms. Phillips explained this violation as follows: “On February 16, 2018, I was

reviewing [Defendant’s] computer activity via the monitoring software and observed items being

copied from a Documents folder to a USB drive E. And at this point in time, there was no approved

4 Defense counsel asserted that there are mitigating factors associated with certain violations. While these factors do not negate the substance of the violations, they may be considered at the time of sentencing. 16 - - Mr. Bernier had not been approved to possess or use a USB drive.” Phillips Tr. 88; See Ex. 13

(screen shot of Defendant’s computer screen from February 2018, showing USB device). When

Ms. Phillips talked to Mr. Bernier about the USB drive, he admitted to her, after being confronted,

that “he was using it because his computer had evidenced a blue screen, meaning it crashed.”

Phillips Tr. 145.

On cross-examination, Defendant’s counsel asked Ms. Phillips if “thumb drives are [ ]

mentioned” in the Computer and Internet Acceptable Use Contract (“Contract’) that she and Mr.

Bernier signed in September of 2017. Phillips Tr. 124, 141. Ms. Phillips responded in the

affirmative, noting that paragraph 34 therein says “You shall not possess or use removable media;

for example, a USB flash drive” configured with a “bootable operating system.” Phillips Tr. 144

While Ms. Phillips was unaware of whether the USB drive used by Mr. Bernier had a “bootable

operating system,” she noted that paragraph 9 of the Contract prohibits the use or ownership of

any other computer hardware that is not approved. Phillips Tr. 144.

Accordingly, upon Defendant’s own admission that he used the USB device without

permission, the Government has demonstrated by a preponderance of the evidence that Mr. Bernier

used an unapproved data storage device and thus violated the conditions of his supervision, and

this violation is uncontested.

Violation No. 10

Violation No. 10 involves an alleged violation of the Computer and Internet Monitoring

Program on March 19, 2018 when Mr. Bernier accessed a website that he failed to report to the

Maine Probation Officer. See March 23, 2018 Probation Petition, ECF No. 42. Ms. Phillips stated

that, on his original Questionnaire, Mr. Bernier listed one website - sanfordhigh1982 – as a website

where he had “privileges to receive, send and/or store information” but he did not list the “Down

17 East Senior Housing website, which was operated through a GoDaddy domain.” Phillips Tr. 90;

Ex. 8 [website list on Questionnaire]. Phillips Tr. 91. Ms. Phillips testified that even on the

Questionnaire attached to the February 1, 2018 email sent by Defendant, only the sanfordhigh1982

website is listed. Phillips Tr. 91, Ex. 8 [website list on Questionnaire]; Ex. 11 [same].

On March 19, 2018, the date of the alleged website access by Mr. Bernier, he provided the

Maine Probation Office with another Computer and Internet Use Questionnaire where he lists

downeastseniorhousing.org as a website that he operates or uses. Phillips Tr. 94; see Ex. 14 (March

19, 2018 Computer and Internet Use Questionnaire). Mr. Bernier’s after-the-fact reporting of his

website access, by means of the March 19, 2018 Questionnaire, does not counter his violation in

accessing the Down East Senior Housing website without providing prior notification to the Maine

Probation Office, and accordingly, the Government has demonstrated by a preponderance of the

evidence that Mr. Bernier violated the conditions of his supervision by accessing a website without

reporting it to the Probation Office, and this violation is uncontroverted.

Violation No. 11

Violation No. 11 involves an alleged failure by the Defendant to participate and comply

with the requirements of the Computer and Internet Monitoring Program, by allegedly accessing

the Internet without authorization on March 9, 2018. Phillips Tr. 92. Ms. Phillips indicated that

she had obtained a 2018 Florida not-for-profit corporation annual report that was allegedly filed

by Mr. Bernier on March 9, 2018, which was at a time when Mr. Bernier “could use a computer

in the probation office,” but he was not in the office on that date, and “he did not have permission

to use another computer at all.” Phillips Tr. 92. See Ex. 15 (2018 Florida not-for-profit corporation

annual report with a file stamp of March 9, 2018). There is nothing in the record before this Court

to counter the Government’s claim that Mr. Bernier accessed the Internet without authorization,

18 and accordingly, by a preponderance of the evidence, the Court finds that Mr. Bernier violated the

conditions of his supervision as set forth in Violation No. 11, and this violation is uncontested.

Violation No. 12

Violation No. 12 involves Mr. Bernier’s alleged failure to participate and comply with the

requirements of the Computer and Internet Monitoring Program insofar as the Defendant accessed

the Internet without authorization on April 7, 2018, and he sent an email to the Bureau of Prisons

requesting assistance with a legal matter. See March 23, 2018 Probation Petition, ECF No. 42.

Ms. Phillips testified that Defendant’s actions constitute a violation of the Computer and Internet

Monitoring Program because “[a]t the time that the Bureau of Prisons received that email and

document from Mr. Bernier, he did not have permission or an authorized computer or permission

to use a computer.” Phillips Tr. 95. In the event that Defendant was going to use the Maine

Probation Office’s computer, he had to get advance permission and he was supposed to advise the

Maine Probation Office as to “what he [was] using it for.” Phillips Tr. 96.

The Government’s witness David Dempsey, a unit manager at FCI Fairton, testified

regarding the receipt of that email from Mr. Bernier. Upon questioning by Government counsel,

Mr. Dempsey described first being a witness to a Waiver form that was signed by Mr. Bernier,

who was then an inmate incarcerated at FCI Fairton. Dempsey Tr. 14-15; see Ex. 16 (June 19,

2017 Waiver of Hearing to Modify Conditions of Supervised Release (“Waiver”)). Mr. Dempsey

described the Waiver as a “condition of supervised release for Mr. Bernier [who] was requesting

to relocate his supervision to Maine” and it “imposed upon him some computer monitoring.”

Dempsey Tr. 14. Mr. Dempsey testified that he “presented Mr. Bernier with the document,

explained it to him and what his options were, if he wanted to accept the conditions or not.”

19 Dempsey Tr. 14. When confronted with the document, Mr. Bernier “wasn’t happy with the

document, but he “chose to sign the document so he could release to Maine.” Dempsey Tr. 14.

Mr. Dempsey asserted that he did not force or coerce Mr. Bernier to sign anything. Dempsey Tr.

14-15.

Mr. Dempsey testified next about receiving an email from Mr. Bernier on April 7, 2018.

Dempsey Tr. 15-18; see Ex. 17 (email from Mr. Bernier to Mr. Dempsey dated April 7, 2018, with

attached draft Memorandum). In the email, Mr. Bernier asked Mr. Dempsey to confirm that

Defendant had signed the Waiver “under duress.” 5 Ex. 17 (email). Mr. Dempsey testified that:

[Mr. Bernier] had drafted a proposal letter for [him]. And it had an attachment on it with the Bureau of Prison’s letterhead, very similar to the letterhead that we use in the Department of Justice, the Bureau of Prisons. And he had already wrote a letter for me that said that he signed the document under duress. He wrote it for me. He was asking me to sign it, I guess, so he could use it for his own purpose.

Dempsey Tr. 17; Ex. 17 (attached draft Memorandum). Mr. Dempsey confirmed that he never

authorized Mr. Bernier to draft that Memorandum, and stated that “I knew right away when I read

it[,] it was definitely not true.” Dempsey Tr. 17-18.

On cross-examination of Mr. Dempsey, Mr. Bernier’s counsel established that case

managers usually review documents such as the Waiver in this case with the person in custody;

however, Mr. Dempsey presented it to Mr. Bernier because the case manager was not present that

day. Dempsey Tr. 22. Mr. Dempsey testified he did not have any “contact with the caseworker

5 Pursuant to D.C. Civil Jury Instruction 11-30: “A party may cancel a contract if he proves that he entered into the contract as a result of duress. Duress is an improper threat by one party that deprives the other party of the free exercise of his will and judgment, leaving him no reasonable alternative but to enter into the contract. To be an improper threat, the threat must be of wrongful conduct. Also, the threat must involve an imminent injury, as opposed to an uncertain injury that would not occur until sometime in the indefinite future.”

20 about the substance of this particular document” because “[t]here was no need to.” Dempsey Tr.

23. Mr. Bernier did not have counsel present when he signed the Waiver and Mr. Bernier did have

“a couple questions” about the document; namely, he was “trying to understand why these

restrictions were being presented to him.” Dempsey Tr. 20-21. The Court notes that there is no

evidence in the record that Mr. Bernier requested the presence of counsel while he was meeting

with Mr. Dempsey. See also Ex. 16 (Waiver) (stating that the Defendant “waive[s] his statutory

right to a hearing and to assistance of counsel”).

Mr. Dempsey did not recall that Mr. Bernier had “any questions that were unanswered at that

time,” and he recollected that Mr. Bernier “was told he d[id] not have to sign the form,” but he

“chose to sign the form,” and it was done “willingly; and everything was completely understood

at the time.” Dempsey Tr. 21-22. Mr. Bernier did not ask for additional time to consider the

Waiver. Dempsey Tr. 27. “He didn’t like the conditions, but he totally accepted them because he

knew to release back to Maine he had to accept the conditions the Courts were imposing.”

Dempsey Tr. 27; Dempsey Tr. 29 (“It was a condition for the relocation of his supervision to go

to Maine.”)

Mr. Dempsey acknowledged that he views the Memorandum drafted by Mr. Bernier as

a “letter [Mr. Bernier] drafted for me” that Mr. Dempsey was “not require[d]” to sign but was

asked to sign. Dempsey Tr. 25. Mr. Dempsey did however find the Memorandum “deceptive”

because it was written as if on official government letterhead and Defendant raised the issue of

duress, while Mr. Dempsey testified that “[t]here was no duress at all.” Dempsey Tr. 25-27.

There was additional testimony relating to Defendant’s creation and use of BOP

letterhead from Dr. Nicoloff. First, Defendant’s counsel asked Dr. Nicoloff if she had seen the

“documentation related to a form or a letter generated by Mr. Bernier that had the Bureau of Prisons

21 letterhead on it,” and she affirmed that she had. Nicoloff Tr. 109. Next, counsel asked for Dr.

Nicoloff’s opinion on how “Mr. Bernier’s psychological or psychiatric problems caused the

generation or impacted the generation of that letter” and she opined that “the way he wrote the

entire letter, I think, is a direct result of his need for things to be done in a certain way to be

symmetrical, to have many details and to execute things himself rather than delegate the task of

letter-writing to someone else.” Nicoloff Tr. 109-110. Dr. Nicoloff noted that Mr. Bernier’s

“psychological traits” consistent with the drafting of the letter are his “excessive attention to detail”

and “difficulty delegating” and “the need to perform tasks himself to make sure that they’re done

adequately.” Nicoloff Tr. 111.

Defendant’s counsel urged the Court to focus on the form of the email that accompanied

the draft letter, whereby Mr. Bernier did not “put a false name on this, try to disguise himself [nor

did he] try to conceal his identity [or] try to misrepresent what he was doing.” Tr. 169. Defense

counsel conceded that it should not have been put on BOP letterhead, but he asserted that the

drafting of letter could be explained by looking at the Defendant’s personality traits. Tr. 170. He

asked the Court to look at the intent behind the drafting of the letter and argued that Mr. Bernier’s

medical history, trauma, difficulties and psychological problems should be taken into account as

mitigating factors. Tr. 170-171.

The Government focused on Mr. Bernier’s unauthorized use of a computer and accessing

the Internet, but the Government also raised the issue that Mr. Bernier used the computer to “not

only communicate with a Bureau of Prisons official, but to create a fraudulent BOP document on

government letterhead that he had no authorization to do so, to send to this official for his

signature.” Tr. 161-162. For purposes of addressing Violation No. 12, the Court focuses on

Defendant’s unauthorized use of a computer and access to the Internet, as opposed to the contents

22 of the Memorandum and the Defendant’s use of BOP letterhead, which was created by him. As

such, the Court finds that the Government has shown by a preponderance of the evidence that Mr.

Bernier violated the conditions of his supervision by accessing the Internet without authorization,

and this violation is uncontested.

Violations No. 13 and No. 14

These two violations are based upon Mr. Bernier’s May 15, 2018 alleged use of the

computer in the lobby of the Maine Probation Office without obtaining advance permission

(Violation No. 13) and his alleged failure to truthfully answer questions about that computer usage

(Violation No. 14). Ms. Phillips testified that, on May 15, 2018, Mr. Bernier “reported into the

probation office and used the lobby computer without notifying myself or obtaining permission to

use it.” Phillips Tr. 99. Ms. Phillips was not present at the office, but her coworker notified her,

and Mr. Bernier admitted later to using the computer, although he stated “he was not aware he

needed permission to use the lobby computer.” Phillips Tr. 99-100. When cross-examined as to

whether there is any requirement in the aforementioned Computer and Internet Acceptable Use

Contract whereby Mr. Bernier needs “to get specific approval from the United States Probation

Office to use their computers,” Ms. Phillips responded that Condition No 5 in the Contract states

“You shall not use any other computer than the one you have been authorized to use,” which she

interpreted as applying to “any computer [which] would encompass the probation computer,” but

she agreed that it did not specifically reference the computer at the “United States Probation

Office.” Phillips Tr. 125. With regard to Mr. Bernier’s May 15, 2018 computer usage at the

Maine Probation Office, Ms. Phillips did not state that Mr. Bernier was “permitted” to use the

computer that day, but rather, she stated that “to [her] knowledge, no one told him not to [use it]

while he was in the office.” Phillips Tr. 99. When cross-examined about her knowledge of

23 whether Mr. Bernier received prior approval to use the computer that day, she noted that she was

not there on May 15, 2018, and “had not spoken with him to give that approval.” Phillips Tr. 130.

When Defendant’s counsel asked whether Ms. Phillips was aware that “the receptionist provided

Mr. Bernier with approval to use the computer that day,” she stated that she was not aware of that

and had not spoken to or been told that by the receptionist, and it was her understanding the

receptionist would not have that authority. Phillips Tr. 130-131, 148.

While Defendant’s counsel raised the issue of a receptionist at the Maine Probation

Office having provided permission for Mr. Bernier to use the computer, there was no testimony

by Mr. Bernier to that effect nor was the receptionist called as a witness or any sworn affidavit

proffered. Accordingly, the Court finds that the Government has established by a preponderance

of the evidence that Mr. Bernier violated the conditions of his supervision by using the Maine

Probation Office computer without permission on May 15, 2018 (Violation No. 13).

With regard to Violation No. 14, Ms. Phillips stated that she “asked [Mr. Bernier] what

he did while he was on the computer” and he responded that “he looked only at his hotmail email

account,” but from a “review of the computer activity during the time frame that Mr. Bernier was

using it, there appears to be other websites visited; and there is a document that was in the recycling

bin, and he also attempted to erase the [browsing] history.” Phillips Tr. 101. The document that

was in the recycling bin was a “W-9 request for taxpayer identification and certification with

[Defendant’s] name and Down East Senior Housing listed on it as well as his home address.”

Phillips Tr. 101. Accordingly, based on Ms. Phillips uncontested testimony, the Court finds that

the Government has established by a preponderance of the evidence that Mr. Bernier failed to

24 truthfully answer questions regarding his computer activity at the Maine Probation Office on May

15, 2018.

Violations that Support this Court’s Continued Monitoring of Defendant’s Behavior,

Use of Technology and the Internet, and Financial Transactions

Violation No. 4

Violation No. 4 initially revolved around alleged wire fraud, but the Court noted during the

evidentiary hearing that this had been subsequently modified to “put [it] in the context of computer

monitoring” and accordingly, the focus was on whether “there [was] anything in terms of these

events that suggest[ed] that [Defendant] used the computer in an unauthorized way.” Tr. 75, 133.

See Phillips Tr. 149 (agreeing that “Probation has since amended [Violation No. 4] to be a violation

of the computer and Internet monitoring requirements.”) With regard to Violation No. 4, Ms.

Phillips noted the basis for Violation No. 4 as follows:“[i]t appears that [Defendant] altered his

email address and sought funds from three different [entities] with no basis for the funds to be

deposited into an account where he is the authorized user.” Phillips Tr. 75. The three entities are:

Reverse Mortgage Funding in New Jersey; the Colorado Housing Authority in Bridgeton,

Colorado; and Jason Meredith, a CPA for a company in Birmingham, Alabama. Phillips Tr. 75-

76. Ms. Phillips could not state with certainty that Defendant had altered his email address, but

she noted that the information for all three entities was consistent insofar as “the accounts payable

department . . . received emails from what appears to be an internal employee, someone who

could authorize funds to be released . . . and they were going to Mr. Bernier’s address to the account

that his name is on, the Down East Senior Housing.” Phillips Tr. 76. Ms. Phillips acknowledged

that no forensic analysis was performed on the emails and she had no idea from a forensic

25 standpoint how to determine if an email had been altered, so she could not say “with 100 percent

certainty” that the emails were altered. Phillips Tr. 138-139.

In terms of the status of the investigation into these incidents, Ms. Phillips confirmed that

she was informed by means of a police report that the investigation in Colorado is inactive, but she

was uncertain whether the investigation in Alabama is active or inactive. 6 Phillips Tr. 76-77, 131.

It was Ms. Phillips’ understanding that the state of Maine had not opened up an investigation with

respect to the Colorado matter. Phillips Tr. 132. “As far as [she] kn[ew], there’s no investigation

anywhere in the United States related to that alleged violation of the law” (the transfer of money

from Colorado) “[o]utside of the US probation office,” and “no grand jury convened” regarding

the Colorado matter. Phillips Tr. 133. When asked the same questions about the Alabama matter,

she indicated that she was unaware of any grand jury investigation and has not been contacted by

the Alabama police regarding that incident. Phillips Tr. 134.

Police Officer Sarah Howe testified on behalf of the Government with regard to Violation

No. 4. Ms. Howe is a patrol officer with the Sanford Police Department in Sanford, Maine. Howe

Tr. 34. On January 9, 2018, she received a call from Peter Lifari, a representative at Adams

County Housing Authority located in Bridgeton, Colorado, who informed her that his company

had been the victim of a theft, and a check in the amount of $86,220.00 had been mailed to David

Bernier of Sanford, Maine. Howe Tr. 34-35. Officer Howe contacted Mr. Bernier who stated that

he had received the check and had taken it to the bank to cash it, because he was expecting a check

“for what he said were professional fees from a loan company [Premier Fast Loans] for starting up

6 There was no further discussion about the New Jersey transaction during the hearing. 26 a senior housing facility here in Sanford, Maine.” Howe Tr. 36. The bank put a hold on the check,

and it was not ultimately cashed. Howe Tr. 41.

Mr. Bernier provided Officer Howe with emails between himself and Premier Fast Loans

(“PFL”) but no copy of any loan application. Howe Tr. 37. When Officer Howe tried contacting

PFL at the email address given, she received a response from someone whose English was

grammatically poor and which did not “reflect any justification for a loan in the amount of

$86,000.” Howe Tr. 37-38.

Around January 16, 2018, Mr. Bernier contacted Officer Howe to report that when he

pulled his credit report, he found numerous unauthorized inquiries, and further, that Mr. Mayor,

the president of PFL, had told him PFL had experienced computer breaches, and thus, Mr. Bernier

believed himself to be a “victim of identity theft.” Howe Tr. 38.

On March 18, 2018, Officer Howe received an email from Jason Meredith, a CPA with a

company in Birmingham, Alabama, and he stated that unauthorized checks, in the amount of

$41,350 and $19,550, had almost been mailed from his company via FedEx to David Bernier, but

he had intercepted them before they went out to the post office. Howe Tr. 39, 41-42. What

prompted these checks being mailed was an “email [which appeared to be from Mr. Meredith] sent

to [ ]accounts payable asking to cut a couple of checks” to be “overnighted to a David Bernier.”

Howe Tr. 39. Officer Howe spoke to Mr. Bernier again and “he said he was the victim of a scam

and that it was identity theft.” Howe Tr. 39-40. When Mr. Bernier talked to Officer Howe about

the Alabama and Colorado incidents, he was very cooperative and she did not force him to answer

27 questions. Howe Tr. 61. Officer Howe thought the Alabama investigation was still open, but she

could not confirm whether the Colorado investigation was still open or not. Howe Tr. 38-39.

On cross-examination by Mr. Bernier’s counsel, Officer Howe acknowledged that

Defendant did not have counsel present when he spoke to her. Howe Tr. 52-53. Defendant’s

counsel established that Officer Howe did not try to confirm the physical address for PFL, but

rather, she contacted PFL via email and received a response from Mr. Mayor, “who is supposed to

be the president of Premier Fast Loans, and it [ ] [came] from their email address,” so she “had no

reason not to believe the authenticity of that email.” Howe Tr. 53-55. Officer Howe admitted

further that she did not investigate any alleged breaches of security on behalf of PFL since the

company is located in London. Howe Tr. 55-56. Ultimately, Officer Howe testified that she did

not attempt to confirm Mr. Bernier’s social security number, or investigate Mr. Bernier’s claim of

identity theft because “he was the one who received the check” . . . and she did not consider him a

victim “because when you are a victim of identity theft, you don’t generally get mailed a check for

money.” Howe Tr. 48-51, 56. Furthermore, Mr. Bernier had emailed her to say he had pulled his

credit report and there were unauthorized inquiries, but he did not provide a copy of it to Officer

Howe or attempt to pinpoint any fraudulent activity. Howe Tr. 57-58. Nor did Mr. Bernier indicate

that he had suffered any financial loss. Howe Tr. 60.

With respect to Violation No. 4, the Government argued that it showed “that it is more

likely than not that it was this Defendant who used an unauthorized email account to request money

from the housing authority to Colorado, money he was not entitled to” because it “belies logic”

that a “hacker is going to hack into someone’s computer and have the money sent to an individual

who is a victim.” Tr. 158-159. Furthermore, while Defendant claimed he was waiting on a loan

28 when he received and deposited the approximately $86,000.00 check, he never provided any loan

documents to Officer Howe, instead giving her only an email address for Premier Loans. Tr. 159.

Defendant, through counsel, focused on the fact that the Colorado case was closed, and

“there’s no grand jury in Colorado, Maine, or anywhere related to an investigation of this.” Tr.

164-165. Defendant’s counsel raised issues about Premier Loans’ email having been hacked and

noted that Officer Howe was able to contact Premier Loans, and further, that Defendant was

waiting on some funding from Premier when he received a check, and finally, that there was no

forensic expert to make a determination regarding any alternation of emails. Tr. 165-166.

In equipoise, the Court finds Defendant’s allegation of identity fraud unbelievable because

it is implausible that a hacker would send a check to his “victim” and furthermore, the Court notes

that it should have been obvious to Mr. Bernier that the check he received did not come from

Premier even while the Defendant attempted to cash it. The Court finds however that the

Government has not demonstrated Violation No. 4 by a preponderance of the evidence because

the emails that triggered checks being written and sent to Mr. Bernier have not been sufficiently

tied to Mr. Bernier, and it is unclear whether any investigation into these matters is still pending.

The Court notes that the suspicious activity surrounding the Colorado and Alabama incidents,

whereby Mr. Bernier was the intended beneficiary of checks that were written based on fraudulent

“internal” emails within a business entity, may be used to justify the continued monitoring of the

Defendant’s computer and financial transactions by the Maine Probation Office.

Violation No. 8

Violation No. 8 is based on Mr. Bernier’s commission of another federal, state, or local

crime, when he was cited by the Hollywood, Florida Police Department for Lewdness, Exposure

of Sex Organs on February 8, 2018. See March 23, 2018 Probation Petition, ECF No. 42. Ms.

29 Phillips affirmed that she received a copy of a police report from the Broward County, Florida

Police Department dated February 8, 2018. Phillips Tr. 87; see Ex, 12 (Police Report from

Broward County, Florida, charging Lewdness Exposure of Sex Organs pursuant to FSS 800.03). 7

Ms. Phillips testified that Mr. Bernier had permission to go to Florida for “a medical procedure

that he provided verification for.” Phillips Tr. 88. There is no indication from the record before

this Court whether or not Defendant obtained any medical treatment in Florida during the February

2018 visit. Ms. Phillips indicated that she and the Defendant had a conversation about this new

criminal conduct in her office on February 16, 2018, and Mr. Bernier “verbally acknowledged to

[her] that he had his penis exposed but that he was discreet.” Phillips Tr. 87. Basically, Defendant

admitted “that his penis was exposed, but den[ied] that he was masturbating.” Phillips Tr. 88.

With regard to the current status of Defendant’s case in Florida, Ms. Phillips has informed this

Court that the hearing that was set for June 14, 2018 was continued to September 20, 2018, and

the prosecutor will be pursuing adjudication for the offense as opposed to diversion because of Mr.

Bernier’s criminal history.

Defendant, through counsel, argued that this Court does not have enough information about

the Florida charges to support a violation, “until we hear from the State Attorney’s Office, because

they’re in charge of that investigation, whether or not it can go forward.” Tr. 168-169.

Government counsel asserted that Defendant “admitted to Officer Phillips that he was actually at

7 See West’s F.S.A. §800.03 (Exposure of Sexual Organs) (“It is unlawful to expose or exhibit one’s sexual organs in public or on the private premises of another, or so near thereto as to be seen from such private premises, in a vulgar or indecent manner, or to be naked in public except in any place provided or set apart for that purpose.”) To prove the crime of Exposure of Sexual Organs, these elements must be proven beyond a reasonable doubt: (1) the defendant exposed or exhibited his sexual organs or was naked; (2) the defendant did so in a public place. . . , (3) the defendant intended the exposure or exhibition of his sexual organs or nakedness to be in a vulgar, indecent, lewd, or lascivious manner; (4) the exposure or exhibition or nakedness was in a vulgar, indecent, lewd, or lascivious manner. Fla. Std. Jury Instr. (Crim.) 11.9. 30 the location [and] [h]e was arrested and he had his penis outside of his pants, which I understand

is part of the basis for that crime.” Tr. 157-158. The Court acknowledges that there is no dispute

that Defendant has been charged with a crime in Florida; however, because of the uncertainty of

the status of the case pending in Florida, this Court finds that it is premature to make a

determination regarding Defendant’s violation of the conditions of his supervision with regard to

his alleged commission of a crime. That does not preclude the Court from considering this activity

as grounds for continued monitoring of Defendant’s behavior and his use of technology and the

Internet. The Court notes that Defendant received permission to travel to Florida for medical

treatment and while he was there, he engaged in conduct that is incompatible with acceptable

conduct for someone who is on supervised release, and which could ultimately lead to additional

incarceration.

Violations No. 3 and 12 (Creation of False Documents)

While the Court has already determined that the Government has demonstrated Violations

No. 3 (failing to provide verification of narrative therapy) and 12 (accessing the Internet without

authorization) by a preponderance of the evidence so as to support the revocation of Defendant’s

supervised release, the Court further notes that it is troubled by the allegations underlying these

violations; i.e., that Defendant was creating false medical documents online (Violation No. 3) and

creating false letterhead (Violation No. 12). These type of activities reflect on the Defendant’s

veracity, and they are similar in nature to the criminal conduct underlying Defendant’s conviction

and sentence for Making False Statements. As such, they provide this Court with further

31 justification to monitor the Defendant’s behavior, his use of technology and the Internet, and his

financial transactions.

APPLICABLE LAW AND SENTENCING GUIDELINES

In this case, the Court indicated that “[if] I decide that I’m revoking [supervision], then I’ll

give you another opportunity to argue about the appropriate sentence, because you need to see

what my findings are, frankly.” Tr. 179. Accordingly, the Court will set a briefing schedule prior

to any resentencing hearing. The applicable law and sentencing guidelines are set forth below.

The Court’s disposition of supervised release violations is governed by 18 U.S.C. § 3583.

See Fed. R. Crim. P. 32.1(d); 18 U.S.C. § 3583. Specifically, § 3583(e) directs courts to consider

several factors drawn from 18 U.S.C. § 3553, including: (1) the history and characteristics of the

defendant; (2) the need for the sentence imposed to afford adequate deterrence to criminal conduct

and protect the public from further crimes of the defendant; and (3) the kinds of sentences and the

sentencing range established in the Sentencing Guidelines for the applicable category of offense

committed by the applicable category of defendant. 18 U.S.C. § 3583(e); 18 U.S.C. §§ 3553(a)(1);

(a)(2)(B); (a)(2)(C); (a)(4). After considering these factors, the Court can modify the conditions

of supervised release; or, if the Court finds by a preponderance of the evidence that a defendant

has violated one or more terms of supervised release, the Court may revoke supervised release and

require the defendant to serve an additional period of imprisonment and supervised release. Id. §§

3583(e)(2); (e)(3).

Under the Sentencing Guidelines, which provide nonbinding advisory policy statements

regarding supervised release violations arising from federal convictions, Mr. Bernier’s violations

would be considered Grade B violations. See U.S.S.G. § 7B1.1(a)(3). The Guidelines recommend

that, upon a finding of a Grade B violation, the Court shall revoke supervised release. See U.S.S.G.

32 § 7B1.3(a)(1). Based on Mr. Bernier’s criminal history category of I, the Sentencing Guidelines

recommend a period of imprisonment of four to ten months if the Court revokes his supervision.

See U.S.S.G. § 7B1.4(a). The maximum term of imprisonment upon revocation of supervised

release for a defendant convicted of a Class D felony, such as Mr. Bernier’s conviction under 18

U.S.C. § 1001, is 24 months. See 18 U.S.C. § 3583(e)(3).

SUMMARY OF RULINGS ON VIOLATIONS

The Court finds that the Government has demonstrated by a preponderance of the evidence

that the following violations support the revocation of Mr. Bernier’s supervised release: No. 1

(possession of an unauthorized laptop); No. 2 (making untrue statements to the Probation Officer

about the laptop, in connection with Violation No. 1 above); No. 3 (failure to provide verification

of narrative therapy); No. 5 (possession of multiple unreported email accounts); No. 6

(unauthorized travel to New Hampshire); No. 7 (denying the alteration of a Computer and Internet

Use Questionnaire, in connection with Violation No. 5 above); No. 9 (using an unapproved data

storage device); No. 10 (accessing a website that was not reported to the Probation Office); No. 11

(accessing the Internet without authorization – filing a corporate annual report); No. 12 (accessing

the Internet without authorization – sending the BOP email); No. 13 (unauthorized use of a

computer at the Probation Office); and No. 14 (failure to truthfully answer questions about the

computer usage at the Probation Office, in connection with Violation No. 13 above).

The Court finds further that while the following violations do not support the revocation

of Mr. Bernier’s supervised release, these violations may be used to support this Court’s continued

monitoring of Defendant’s behavior, his use of technology and the Internet, and his financial

trancations: No. 4 (unauthorized use of the computer with regard to emails to entities in Colorado

33 and Alabama); No. 8 (commission of a crime in Hollywood, Florida); as well as allegations

underlying No. 3 (creation of medical documents) and No. 12 (creation of BOP letterhead).

DATED: August 23, 2018 ______________/s/________________ COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE