United States District Court, D. Montana, Billings Division
P. WATTERS, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Thurmon
Crosswhite's Motion for Discovery (Doc. 56). Crosswhite
faces a revocation hearing on December 8, 2017. (Doc. 59). In
his motion, Crosswhite requests all documentation
"bearing on [his] sex offender therapy, " including
but not limited to the contract he entered into with his sex
offender therapist, all notes, tests and test results, and
any and all materials contained in the United States
Probation Office's file "concerning" Crosswhite
and his alleged violations. (Id. at 1).
2009, Crosswhite was sentenced to a term of 97 months
imprisonment and 10 years of supervised release after he
pleaded guilty to one count of receipt of child pornography,
in violation of 18 U.S.C. 2252A(a)(2). (Doc. 32).
term of supervised release commenced on January 20, 2016. On
June 1, 2016, the Probation Office filed a petition alleging
that Crosswhite had violated his terms of release, including
being terminated from sex offender treatment, and asked the
Court to consider revocation. (Doc. 38). Crosswhite was
sentenced to 6 months imprisonment and a 114 months
supervised release. (Doc. 47).
began his current term of supervised release on December 1,
2016. (Doc. 49). On October 11, 2017, the Probation Office
filed another petition alleging that Crosswhite had violated
his terms of release, including again being terminated from
sex offender treatment, and asked the Court to consider
revocation. (Id.). On November 3, 2017,
Crosswhite's counsel filed this motion, seeking to compel
the Probation Office to provide Crosswhite's entire
probation file and his sex offender therapy materials. (Doc.
56 at 1). Crosswhite does not state whether he has submitted
any formal request to his sex offender treatment provider for
his sex offender file.
United States Probation Officer's File
legal authority supports Crosswhite's request for the
United States Probation Office's file. The legal
authority upon which Crosswhite relies applies to
prosecutors, not probation officers. The distinction is
important. Because the United States Probation Office
"serves as an investigative and supervisory arm of the
court, " United States v. Davis, 151 F.3d 1304,
1306 (10th Cir. 1998), disclosure pursuant to Brady v.
Maryland, 373 U.S. 83 (1963) "is not compelled . .
. if the [evidence] is in the hands of. . . the probation
office." United States v. Zavala, 839 F.2d 523,
528 (9th Cir. 1988).
Brady principles are not applicable to revocation
proceedings because a revocation proceeding "is not part
of a criminal prosecution." See Morrissey v.
Brewer, 408 U.S. 471, 480 (1972) (holding as to parole
revocation); see also Gagnon v. Scarpelli, 411 U.S.
778, 782 (1973) (applying Morrissey as to probation
revocation). As a result, a defendant is only entitled to
disclosure of the evidence the Government intends to use
against him at the revocation hearing. Fed. R. Crim. P.
32.1(b)(2)(B). Accordingly, the Ninth Circuit has held that
there is no due process violation where a probation file is
not disclosed, so long as the documents in the file are not
used as evidence at the hearing. See, e.g., United States
v. Tham, 884 F.2d 1262, 1265 (9th Cir. 1989); United
States v. Donaghe, 924 F.2d 940, 944 (9th Cir. 1991).
Fed. R. Crim. Pro. 32.1, it is the Government's duty to
disclose any documents it intends to offer or introduce into
evidence in a revocation proceeding. If the Government fails
to disclose certain material, it may not be used as evidence
against Crosswhite. Having no knowledge of what evidence the
Government intends to use at the revocation hearing, the
Court will not order a broad disclosure of documents in
Crosswhite's probation file.
Sexual Offender Treatment Materials
has directed his request for his sex offender treatment
materials to the wrong entity. Under the Health Insurance
Portability and Accountability Act of 1996 (HIPAA), the
United States Department of Health and Human Services (HHS)
was required to establish national standards for electronic
health care transactions. Pub. L. No. 104-191 (1996). HIPPA
also required HHS to adopt regulations that would increase
the security and privacy of health information. See
42 U.S.C. §§1320d-2(d) & 1320d-3 (2000)
(authorizing regulations to protect the privacy of medical
records). HHS first published health information privacy
regulations in 2000. See 45 C.F.R. 160 & 164.
These regulations, collectively referred to as the
"Privacy Rule" were implemented in 2003 and apply
directly to health treatment vendors, who are obliged to
comply with them.
Privacy Rule establishes individual rights regarding covered
health information, defines and limits the circumstances in
which vendors may use and disclose "protected health
information" (PHI) and requires "covered
entities" to implement safeguards to protect the
confidentiality of PHI. See 45 CF.R. § 160.103.
While the judiciary is not a covered entity under the Privacy
Rule, vendors who have contracted with the judiciary to
provide mental health care and drug treatment services are
covered entities. Id. at 164.502. Accordingly, those
vendors must comply with the Privacy Rule's parameters
regarding handling PHI, which ...