USA v. Shoffstall

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
ROGER LEE SHOFFSTALL,
Defendant.
4:09-cr-00023-RRB-SAO
FINAL
REPORT AND RECOMMENDATION
ON PETITION TO REVOKE
SUPERVISED RELEASE
Defendant, Roger Lee Shoffstall, was sentenced to 38 months imprisonment,
three years supervised release, $100 special assessment, and $237, 790.67 in restitution on April
16, 2010 as a result of a conviction for Evasion of Payment of Tax in violation of 26 U.S.C. §
7201.1 On October 9, 2013, a Petition for Warrant or Summons for Offender Under Supervised
Release was filed and the matter referred to a Magistrate Judge for initial appearance and, with
consent of the defendant, preliminary hearing.2 Magistrate Judge Scott Oravec set an initial
appearance for November 13, 2013 and a summons was issued.3 The summons was executed,
however Defendant did not appear on November 13, 2013 and Magistrate Judge Oravec issued
an arrest warrant for the defendant.4 The arrest warrant was executed on December 9, 2013 and
an initial appearance held on December 11, 2013.5 Defendant elected to proceed pro se.
Standby counsel, Mr. Jason Crawford, was appointed. A detention hearing was held and
1 Jury verdict at Dkt. 76, judgment at Dkt. 108.
2 Petition at Dkt. 207, referral at Dkt. 208.
3 Dkt. 210 and 211.
4 Summons was executed on October 15, 2013 at Dkt. 211. Defendant acknowledged receipt of
a summons in a written “Ex Parte Notice” signed by defendant on November 3, 2013, filed with
the court November 4, 2013 at Dkt. 215.
5 Dkt. 219 and 221.
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Magistrate Judge Oravec denied release of the defendant.6 Magistrate Judge Oravec conducted a
preliminary hearing on January 14, 2014.7 United States Probation Officer Toni Ostanik
testified for the United States. Advisory counsel was present and permitted to cross-examine the
witness. Defendant presented no evidence. Both parties presented argument.
Upon due consideration of the information presented, the Magistrate Judge finds
probable cause supporting each of the six violations contained in the Petition. Therefore, the
Magistrate Judge recommends the court adopt the findings of fact as stated below and further
recommends forwarding the case to the District Judge for further proceedings.
FINDINGS OF FACT
Defendant, Roger Lee Shoffstall, was sentenced to 38 months imprisonment,
three years supervised release, $100 special assessment, and $237, 790.67 in restitution on April
16, 2010 as a result of a conviction for Evasion of Payment of Tax in violation of 26 U.S.C. §
7201.8 The judgment contained standard and special conditions of supervision, including
Special Condition of Supervision 8, which stated “The Defendant shall participate in and fully
comply with an outpatient mental health treatment program approved by the United States
Probation Office.” 9 The judgment included Standard Condition of Supervision 3 which stated
“the defendant shall report to the probation officer and shall answer truthfully all inquiries by the
probation officer and follow the instructions of the probation officer.”10 The Judgment was
executed on July 27, 2010.
6 Magistrate Judge Oravec denied defendant’s request for release on his own recognizance on
December 20, 2013. Magistrate Judge John Roberts conducted a bail review hearing on
December 27, 2013 and denied defendant’s requested release on proposed conditions.
7 Dkt. 239.
8 Jury verdict at Dkt. 76, judgment at Dkt. 108.
9 Dkt 108.
10 Dkt. 108.
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Officer Ostanik began supervision of the defendant on January 16, 2013. Officer
Ostanik saw the Defendant at least once monthly and usually only contacted him at his place of
employment. Officer Ostanik kept a chronology of the events of supervision in her computer.
On September 17, 2013, Officer Ostanik called defendant at his place of
employment and left a message.11 The defendant returned her call later that day. Officer
Ostanik directed the defendant to obtain a mental health evaluation at a specific date and time.
Defendant did not go to the mental health provider as directed and did not obtain a mental health
evaluation. Defendant has not obtained a mental health evaluation since the period of supervised
release began.
On September 24, 2013, Officer Ostanik left messages with the receptionist at the
defendant’s place of employment asking defendant to contact her. Officer Ostanik attempted to
reach the defendant to discuss the need for the mental health evaluation. The defendant did not
return the phone calls or otherwise contact Officer Ostanik.
On September 25, 2013 Officer Ostanik left messages with the receptionist at
defendant’s place of employment asking the defendant to contact her. Officer Ostanik attempted
to reach defendant to discuss the need for the mental health evaluation. The defendant did not
return the phone calls or otherwise contact Officer Ostanik.
On October 1, 2013 Officer Ostanik again left messages with the receptionist at
defendant’s place of employment asking defendant to contact her again to reach the defendant to
discuss the need for the mental health evaluation. The defendant did not return the phone calls or
otherwise contact Officer Ostanik.
11 Officer Ostanik communicated with defendant by leaving messages at his place of
employment because typically when she tried to reach the defendant on his personal phone, he
did not answer and the phone would not allow her to leave a voicemail message. The defendant
had requested Officer Ostanik contact him in this manner.
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On October 4, 2013, Officer Ostanik traveled to defendant’s place of employment
and made contact with defendant to discuss the further need for the mental health evaluation.
Officer Ostanik asked the defendant if he had received her messages from September 24, 25 and
October 1, 2013. Defendant replied that he had received the prior messages, but told Officer
Ostanik he was not going to respond back to her. Defendant asked Officer Ostanik if she had a
warrant and then declared he was not going to engage in a mental health evaluation. The
defendant stated he would only talk further to the United States Supreme Court and not her.
CONCLUSIONS OF LAW
If a person is in custody for violating a condition of probation or supervised
release, a magistrate judge must promptly conduct a hearing to determine whether there is
probable cause to believe that a violation occurred.12 The Petition for Warrant or Summons for
Offender Under Supervised Release describes six violations.13
Violation 1 alleges that on or about September 17, 2013 the defendant violated the
Special Condition of Supervision requiring the defendant to comply with mental health treatment
by failing to engage in mental health treatment as directed. 14 Special Condition of Supervision
8, from defendant’s judgment, states “The defendant shall participate in and fully comply with an
outpatient mental health treatment program approved by the United States Probation Office.”15
Officer Ostanik told the defendant on September 17, 2013 to go to a specific mental health
provider to obtain a mental health evaluation at a specific date and time. The defendant did not
go to the mental health provider as directed and did not obtain a mental health evaluation. The
defendant has not obtained a mental health evaluation since the period of supervised release
12 Federal Rule of Criminal Procedure 32.1(b)(1)(A)
13 Petition at Dkt 207.
14 Petition at Dkt. 207.
15 Judgment at Dkt. 108.
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began. For this reason, the court finds probable cause exists to believe that the defendant
violated the Special Condition of Supervision 8 of his judgment when on or about September 17,
2013 he did not obtain mental health treatment as directed.
Violation 2 alleges that on or about September 17, 2013 the defendant violated
Standard Condition of Supervision 3 requiring the defendant to follow the instructions of the
probation officer by failing to obtain a mental health evaluation as directed by Officer Ostanik.16
Defendant’s judgment included Standard Condition of Supervision 3 which stated “the defendant
shall report to the probation officer and shall answer truthfully all inquiries by the probation
officer and follow the instructions of the probation officer.”17 Officer Ostanik told the defendant
on September 17, 2013 to go to a specific mental health provider to obtain a mental health
evaluation at a specific date and time. The defendant did not go to the mental health provider as
directed, did not obtain a mental health evaluation, and has not obtained a mental health
evaluation since the commencement of his supervised release. The court finds probable cause to
believe that the defendant violated Standard Condition of Supervision 3 of his judgment when on
or about September 17, 2013 he did not obtain a mental health evaluation as directed by Officer
Ostanik.
Violation 3 alleges that on or about September 24, 2013, the defendant violated
Standard Condition of Supervision 3 requiring the defendant to follow the instructions of the
probation officer by failing to report as directed.18 Violations 4 and 5 allege the same on
September 25, 2013 and October 1, 2013. Officer Ostanik left messages on each date with the
receptionist at the defendant’s place of employment asking the defendant to call her. The
16 Petition at Dkt. 207.
17 Judgment at Dkt. 108.
18 Petition at Dkt. 207.
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defendant did not return her phone call or otherwise contact Officer Ostanik on either September
24, September 25, or October 1, 2013. The defendant told Officer Ostanik on October 4, 2013
he had received Officer Ostanik’s prior phone messages from September 24, September 25, and
October 1, 2013 and chose not to call her back. He further told Officer Ostanik he would not go
to a mental health evaluation. As the defendant chose to be contacted at his place of
employment, the method had worked for the prior eight months, and the defendant admitted he
plainly received the messages from Officer Ostanik, it is clear the defendant chose not to call or
otherwise contact Officer Ostanik when she directed him to do so on September 24, September
25, or October 1, 2013. The court finds probable cause to believe that the defendant violated
Standard Condition of Supervision 3 on or about September 24, September 25, and October 1,
2013.
Violation 6 alleges that on or about October 4, 2013 the defendant violated
Standard Condition of Supervision 3 requiring the defendant to follow the instructions of the
probation officer by failing to obtain a mental health evaluation as directed.19 Officer Ostanik
traveled to the defendant’s place of employment on October 4, 2013. She met with the defendant
and told him he needed to get a mental health evaluation. The defendant told her he was not
going to obtain a mental health evaluation and declared he would not talk with her any further.
The defendant has not obtained a mental health evaluation since his supervised release period
began. The court finds probable cause to believe that the defendant violated Standard Condition
of Supervision 3 of his judgment when on or about October 4, 2013 he did not obtain a mental
health evaluation as directed by Officer Ostanik.
19 Petition at Dkt. 207.
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CONCLUSIONS
Based on the factual findings, the Magistrate Judge finds probable cause to
support each of the six violations contained in the Petition for Warrant or Summons for Offender
Under Supervised Release.20 Therefore, the Magistrate Judge recommends the court adopt the
findings of fact and forward the case to the District Judge for a revocation hearing or further
proceedings.21
IT IS SO RECOMMENDED.
DATED this 22nd day of January, 2014, at Fairbanks, Alaska.
/s/ Scott A. Oravec__________
SCOTT A. ORAVEC
United States Magistrate Judge
A party seeking to object to this finding and recommendation shall submit any
objections to the District Judge, the Honorable United States District Court Judge Ralph R.
Beistline, not later than NOON on January 29, 2014 and a response to the objections shall be
filed on or before NOON on February 3, 2014. 	The failure to object to a magistrate judge's
findings of fact may be treated as a procedural default and waiver of the right to contest those
findings on appeal.22 The Ninth Circuit concludes that a district court is not required to consider
evidence 	introduced 	for 	the 	first 	time 	in 	a 	party's 	objection 	to 	a 	magistrate 	judge's
recommendation.23 Objections and responses shall not exceed five (5) pages in length, and shall
not merely reargue positions presented in motion papers. Rather, objections and responses shall
specifically designate the findings or recommendations objected to, the basis of the objection,
20 Federal Rule of Criminal Procedure 32.1(b)(1)(A)
21 Federal Rule of Criminal Procedure 32.1(b)(1)(C)
22 McCall v. Andrus, 628 F.2d 1185, 1187-1189 (9th Cir.), cert. denied, 450 U.S. 996 (1981).
23 United States v. Howell, 231 F.3d 615 (9th Cir. 2000).
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and the points and authorities in support. Reports and recommendations are not appealable
orders. Any notice of appeal pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of
the district court's judgment.24
24 See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
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