United States District Court, E.D. New York
MEMORANDUM AND ORDER AND REPORT AND ADOPTING IN PART AND MODIFYING PART REPORT AND RECOMMENDATION
DORA L. IRIZARRY, District Judge.
On April 8, 2010, a jury convicted Pierre Saliba ("Defendant"), after trial, of international parental kidnapping in violation of 18 U.S.C. § 1204(a). On November 17, 2010, the Court sentenced Defendant to a three-year term of imprisonment, followed by a one-year term of supervised release. ( See Judgment of Conviction ("J."), Dkt. Entry No. 111.) With respect to Defendant's term of supervised release, the Court imposed standard conditions as well as three special conditions. (J. at 3-4.) On April 24, 2012, Defendant was charged with violating one of the special conditions of supervised release. ( See generally Government's Motion to Revoke Supervised Release ("Gov't Mot."), Dkt. Entry No. 115; Violation of Supervised Release Report ("VOSR Rpt."), Dkt. Entry No. 129.) The Court referred the matter to United States Magistrate Judge Robert M. Levy for a hearing and to issue a Report and Recommendation ("R & R").
On August 15, 2012, the magistrate judge conducted a hearing on the government's motion. ( See Aug. 15, 2012 Hearing Transcript ("Tr.").) On November 6, 2012, the magistrate judge issued an R & R, recommending that the Court find Defendant not guilty of the violation and deny the government's motion. ( See generally R & R, Dkt. Entry No. 144.) The government submitted timely objections to the R & R ( see Government's Objections to R&R ("Gov't Obj."), Dkt. Entry No. 147), which Defendant opposed ( see Defendant's Memorandum of Law in Opposition to Gov't Obj. ("Def.'s Opp'n"), Dkt. Entry No. 150).
Having reviewed the R & R and the government's timely objections thereto, the Court adopts in part and modifies in part the recommendations contained in the R & R, for the reasons set forth below. Accordingly, Defendant's supervised release is revoked.
A. Procedural History
On February 20, 2000, Defendant abducted his then twenty-month-old daughter from her home in Brooklyn, New York, to Lebanon, without the consent of her mother (the "victimmother"). The victim-mother secured orders from the Family Court of the State of New York, and an equivalent Canadian court, granting her sole custody of the victim-daughter. On March 9, 2000, this Court issued a warrant for Defendant's arrest for international parental kidnapping in violation of 18 U.S.C. § 1204(a). On October 26, 2008, more than eight years after Defendant abducted his daughter, Defendant re-entered the United States, on unrelated business, and immediately was arrested. A trial was held on the charge beginning on March 30, 2010, and on April 8, 2010, the jury found Defendant guilty of international parental kidnapping.
A sentencing hearing was held on November 18, 2010. After hearing from the parties, including a victim-impact statement from the victim-mother, the Court imposed a sentence consisting of a three-year term of imprisonment, followed by a one-year term of supervised release. (J. at 2-3.) With respect to supervised release, the Court imposed standard conditions and three special conditions. (Id. at 3-4.) It is the third special condition that is at issue. The third special condition specifies that:
[T]he defendant shall facilitate the immediate and safe return of [P.] to the United States, whether or not [P.] expresses a desire to return to the United States. In connection with facilitating the return, the defendant shall authorize a member of his family to bring the child to an airport to be boarded on an American or any other airplane to the United States. Any fees for the return trip to the United States are to be paid either by the defendant or, if the defendant is unable to afford the fees, by the government. In addition, the defendant is required, if needed[, ] to communicate with any Lebanese official or court and to express his willingness that the child return to the United States. The defendant is prohibited from interfering in any way, shape, or form, including by making statements or inducement to any other family member or to [P.], or to in any way cause her to resist or object to being returned to the United States. The defendant shall not interfere in any way, shape, or form with any party involved in facilitating [P.'s] return to the United States.
(J. at 4.) At sentencing, the Court explained that this particular condition was designed to "hopefully deter  Mr. Saliba from continuing to unlawfully retain the child after his release from prison." (Nov. 17, 2010 Sentencing Hearing Transcript ("Sentencing Tr.") at 80.)
On May 20, 2011, prior to Defendant's scheduled release, the government moved for revocation of his supervised release. ( See generally Gov't Mot.) The government contended that "[D]efendant has not indicated any intent to comply with one of the Court's imposed special conditions of supervised release, specially, that the [D]efendant shall facilitate the immediate and safe return of [P.] to the United States whether or not [P.] expresses a desire to return to the United States.'" (Gov't Mot. at 1 ( quoting J. at 4).) The government elaborated that the entire third condition was at issue, and indicated that, "[D]efendant has not indicated that he intends to comply with this condition." (Id. at 3.)
On June 7, 2011, the parties appeared before the Court for a status conference and reported that they had reached an agreement with respect to the special condition. Defendant signed an affirmation authorizing P.'s maternal grandmother to obtain a U.S. passport for P., directing his family in Lebanon to release P. to the custody of her maternal grandmother, authorizing P. to return to the United States, prohibiting his family from interfering with her return, and requesting that the Lebanese government assist in P.'s return to the United States if necessary. ( See Saliba Affirmation filed under Seal ("Affirm."), Dkt. Entry No. 120). At that time, he was released under home confinement and began his term of supervised release. On June 23, 2011, he brought an Arabic translation of the affirmation to the Lebanese Embassy. (Tr. 50-51.)
On April 24, 2012, the United States Probation Department ("Probation") issued a Violation of Supervised Release Report ("VOSR Rpt.") violation memorandum, charging Defendant with violating the third special condition. (Dkt. Entry No. 129.) On May 1, 2012, the Court issued a Summons for Defendant to appear in Court to respond to Probation's recommendation that the Court revoke his supervised release. (Summons, Dkt. Entry No. 130.) The Summons stated that the sentence included special conditions, one of which was that Defendant "shall facilitate the immediate and safe return of [P.] to the United States, whether or not [P.] expresses a desire to  return to the United States." (Id. at 1.) With respect to the "Nature of Noncompliance, " the Summons stated that "[t]he offender violated the following Court ordered special condition of supervision: (the offender) shall facilitate the immediate and safe return of [P.] to the United States. '" (Id. (emphasis in original); see also VOSR Rpt. at 5-6.) On May 22, 2012, the Court referred the violation for an R & R.
B. Violation Hearing
On August 15, 2012, the magistrate judge presided over a hearing, at which three witnesses testified: Defendant, U.S. Probation Officer Stephen Sandford ("Officer Sandford"), and Yolla Fayad, a friend of Defendants' family. The R & R provides a detailed and thorough summary of the witnesses' testimony. ( See R & R at 4-9.) The Court assumes the parties' familiarity with the testimony and the underlying facts of this case. ...