United States District Court, E.D. Wisconsin
ORDER GRANTING THE DEFENDANT'S MOTION TO SEAL
DOCUMENT DEFENDANT'S MOTION FOR EARLY TERMINATION OF
SUPERVISED RELEASE (DKT. NO. 55)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
August 3, 2006, the defendant entered a guilty plea to Count
One, traveling in interstate commerce for the purpose of
engaging in a sexual act with a person under the age of
eighteen, in violation of 18 U.S.C. §2423(b). Dkt. Nos.
21 at 2; 23. On November 3, 2006, Judge Charles N. Clevert,
Jr. sentenced the defendant to serve forty-six months of
imprisonment, followed by ten years of supervised release.
Dkt. No. 34. Judge Clevert emphasized the need for the
defendant to receive treatment, and stated that one of the
reasons he was imposing such a long term of supervised
release was so that he could retain the option “to
reduce supervision if there are benchmarks which indicate
that [the defendant] can continue to live a pro-social life .
. . .” Dkt. No. 55 at 15. The defendant's
supervision started on May 4, 2010, and is scheduled to
terminate on May 3, 2020. Dkt. No. 58 at 1.
defendant has served more than seven and a half years (over
75% of his total term) of supervised release. He has filed a
motion under 18 U.S.C. §3583(3)(1), asking the court to
terminate his supervision early. Dkt. No. 55. The government
does not oppose the request. Dkt. No. 55.
Defendant's Motion to Seal Document (Dkt. No.
December 8, 2017, the defendant filed a motion to seal
portions of his motion for early termination of supervised
release, including footnote two on page five; the majority of
paragraph nine on page six; and the appendix of supporting
materials. Dkt. No. 56. The defendant cites General Local
Rule 79, which requires proof of good cause for withholding
material from the public record. Gen. L.R. 79(d)(4)(E.D.
Wis.). According to the defendant, these portions of the
motion include private details concerning his medical
treatment while on supervision.
no one has opposed the defendant's motion to seal, the
court still must be satisfied that good cause exists to
overcome the strong presumption of public access in criminal
proceedings. See Gen. L. R. 79(d)(4)(E.D. Wis.).
Footnote two on page five references information contained in
probation supervision records, and the records themselves
typically would be under seal. Crim. L.R. 32(a)(1)(E.D.
Wis.). Paragraph nine on page six discusses the
defendant's medical treatment and records-personal
information that courts routinely seal from public view. In
addition, the appendix contains references to past and
current treatment. Dkt. Nos. 55-1 at 14. The court will grant
Defendant's Motion for Early Termination of Supervised
Release (Dkt. No. 55)
Standard Governing Early Termination of Supervised
district court may grant an early termination of a remaining
term of supervised release after one year of supervised
release has elapsed and after the court considers certain
factors in 18 U.S.C. § 3553(a), if the defendant's
conduct and the interests of justice warrant the court doing
so. 18 U.S.C. §3583(e)(1). The Seventh Circuit does not
require a court to make explicit findings as to each of the
§3553(a) factors, but the record must show that the
court considered the factors. United States v. Lowe,
632 F.3d 996, 998 (7th Cir. 2011). A court considering an
early termination request looks at factors such as whether
the defendant has a stable residence and stable employment
and whether he has complied with the conditions of his
supervision. The court also must look at the factors outlined
in §3553(a): the nature and circumstances of the
offense, the need to afford deterrence, the need to protect
the public, the need to promote respect for the law and to
provide just punishment and the need to provide the defendant
with correctional treatment. A defendant who seeks early
termination must show “more than simply following the
rules of supervision.” United States v.
O'Hara, No. 00-cr-170, 2011 WL 4356322 at *3 (E.D.
Wis., Sept. 16, 2011). Courts generally grant such motions
only “in cases involving new or unforeseen
circumstances, or where the defendant's behavior has been
exceptionally good.” Id. (listing cases). The
defendant carries the burden of proving that he has done more
than just follow the rules. O'Hara, 2011 WL
4356322, at *3 (citing United States v. Hook, 471
F.3d 766, 771 (7th Cir. 2011)).
Defendant's Motion for Early Termination
is no question that the defendant's offense was a serious
one; he does not contest that. He argues, however, that his
crime was an isolated act. Dkt. No. 55 at 2. He had no
criminal record prior to his offense, and has had no criminal
arrests or convictions in the seven years and nine months
since his release. Id. With regard to specific
deterrence, the defendant argues that he is a low risk for
reoffending. He is now forty-four years old (he was
thirty-three at the time of the offense), has a large and
supportive network of family and friends, is well-educated,
has been continuously employed while on release, took
advantage of programming while in prison and has participated
in treatment since being out of prison. He is on minimal
supervision. Id. at 5. He has no drug or alcohol
treatment needs. Id. at 3. He does not owe
restitution or other court-ordered financial obligations.
Id. at 8. There appears to be no question that he
has complied with the conditions of release for almost eight
years. And regarding just punishment, he served his full
prison term and has served over three-quarters of his long
supervised release term.
discussed above, however, simple compliance, standing alone,
is not sufficient to warrant early termination. The defendant
notes this, and argues that he has gone beyond simple
compliance. He describes his work organizing fundraisers for
St. Ben's, the Milwaukee Homeless Veterans Initiative,
and the Sojourner Truth Family Peace Center. Id. at
4. He talks about his involvement in community activities,
such as his election to the board of the Avenues West
Association, and his sponsorship of “National Thank a
Police Officer” Day. Id.
terms of new or unforeseen circumstances, the defendant
points the court to his business situation. The defendant is
part of his family's restaurant business. He worked his
way up from dishwasher as a young person, and after his
release from prison, first managed Chicago Prime in
Schaumburg, Illinois, then became a managing partner at the
Five O'Clock Steakhouse in Milwaukee. Id. at 3.
He says that his parents are getting older, and would like to
retire from the restaurant business. He says that the
“plan” is for him to buy out his parents'
stake in the restaurant, and become the full owner. He
explains, however, that he has applied for loans from three
different banks to finance the buyout, but that each has told
him that “the nature of his conviction and the fact
that he is ...