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JAMES PHILLIP VAUGHNS, CSBN 124040
Law Offices of James P. Vaughns
6114 LaSalle Avenue, Suite 289
Oakland, California 94611
Telephone:
510-583-9622
Fax:
510-735-8658
Email:
vaughnslaw@aol.com
Counsel for Defendant
DAMIEN EDWARD McDANIEL
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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UNITED STATES OF AMERICA,
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Plaintiff,
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v.
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DAMIEN EDWARD McDANIEL,
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Defendant.
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No. CR 13-00818 PJH
SENTENCING MEMORANDUM
Date: September 20, 2017
Time: 1:30 p.m.
Hon. Phyllis J. HAMILTON
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INTRODUCTION
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Damien McDaniel was arrested on January 22, 2013, for one of the events leading to the
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instant Indictment and has remained in custody since. He was initially charged in Alameda
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County Superior Court. However, after a preliminary hearing in state court, the matter was
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dismissed in favor of federal prosecution in 2014.
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He entered guilty pleas on April 27, 2017 to Racketeering Conspiracy -18 U.S.C. §1962(d),
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Attempted Murder in Aid of Racketeering -18 U.S.C. §1959(a)(5), Assault with a Dangerous
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Weapon in Aid of Racketeering -18 U.S.C. §1959 (a)(3), and Possession/Brandish/Discharge
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of a Firearm in Furtherance of a Crime of Violence -18 U.S.C. §924(c)(1)(A).
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The Presentence Report (“PSR”) correctly calculates the Adjusted Offense Level at 34, and a
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Criminal History Category of V. The resulting guideline range is 235 to 293 months. Count 6
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requires a 10-year sentence consecutive to all other counts. The minimum sentence the Court can
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apply is 10 years, 3 days. Dean v. United States, (2017) 581 U.S. ____ . The PSR recommends a
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sentence of 360 months. The plea agreement allows the parties to argue for a sentence between
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27 and 33 years (324 and 396 months). Pursuant to the agreement, Mr. McDaniel cannot argue
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for any less than 324 months. Sentencing is scheduled for September 20, 2017 at 1:30 p.m.
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ARGUMENT
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District Courts Have Both the Authority and the Responsibility to Exercise
Their Judgment and Discretion in Arriving at the Appropriate Sentence
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The Supreme Court’s decisions in United States v. Booker, 543 U.S. 220 (2005),
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Kimbrough v. United States, 128 S. Ct. 558 (2007), and Gall v. United States, 128 S. Ct. 586
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(2007), dramatically altered the district court’s role in sentencing. The Sentencing Guidelines,
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“formerly mandatory, now serve as one factor among several courts must consider in determining
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an appropriate sentence.” Kimbrough, 128 S. Ct. at 564. While “district courts still ‘must
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consult [the] Guidelines and take them into account when sentencing,’” United States v. Cantrell,
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433 F.3d 1269, 1279 (9th Cir. 2006) (quoting Booker, 543 U.S. 264), district courts “may not
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presume that the Guidelines range is reasonable,” Gall, 128 S. Ct. at 596-97; see also United
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States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc). After Booker, “[t]he overarching
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statutory charge for a district court is to ‘impose a sentence sufficient, but not greater than
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necessary’ to reflect the seriousness of the offense, promote respect for the law, and provide just
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punishment; to afford adequate deterrence; to protect the public; and to provide the defendant
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with needed educational or vocational training, medical care, or other correctional treatment.”
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Carty, 520 F.3d at 991 (quoting 18 U.S.C. § 3553(a)). The Guideline range is only one factor for
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the district court to consider in making this judgment, and it may not be weighed more heavily
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than any other factor. Id.
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In Gall, the Supreme Court held that appellate courts cannot require that “a sentence that
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constitutes a substantial variance from the Guidelines be justified by extraordinary
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circumstances.” 128 S. Ct. at 591. The Court likewise rejected “the use of a rigid mathematical
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formula that uses the percentage of a departure as the standard for determining the strength of the
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justifications required for a specific sentence.” Id. at 595. Rather, it is within the district court’s
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discretion to arrive at an appropriate sentence, “whether inside, just outside, or significantly
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outside the Guidelines range.” Id. at 591.
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FACTORS TO BE CONSIDERED IN IMPOSING SENTENCE
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The primary directive in 18 U.S.C. § 3553(a) is for sentencing Courts to impose a sentence
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which is sufficient, but not greater than necessary, to comply with the above objectives of
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sentencing. As noted, under Booker, sentencing courts must treat the guidelines as just one of a
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number of sentencing factors set forth in18 U.S.C. § 3553(a). In determining a minimally
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sufficient sentence, § 3553(a) further directs sentencing courts to consider certain factors,
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particularly the following:
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(1) Circumstances of the Offense and Characteristics of the Defendant
Damien Edward McDaniel is a 27 year old child in an adult world. His early life was chaotic
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and dysfunctional. PSR, ¶ 66. It led him inexorably to make the terrible choices that bring him
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before this Court to face an unpleasant future regardless of the Court’s sentence. The PSR
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accurately describes the facts of the offense and Mr. McDaniel’s past, but does not come close to
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describing the person that Mr. McDaniel is today.
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The undersigned met Mr. McDaniel at the inception of this matter in 2014. Several things
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stood out about him. He was impulsive and quick to react to even the most benign stimuli. He
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also had strong opinions about many topics. Unknown at the time was the fact that he suffered
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from PTSD. See Exhibit 1. Over the many, many hours spent with him, observable change was
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noted. Most strikingly, Mr. McDaniel changed his view of the world and it all appeared to stem
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from his changed view of his son’s custody circumstances.
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Initially, Mr. McDaniel expressed very negative opinions about the fact that his son was in
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the foster care of two men. That those men were an interracial couple where neither was African-
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American also caused him concern. Today, Mr. McDaniel enjoys a very warm relationship with
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both men and fully supports the fact that his son is fortunate enough to have loving foster parents
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who have provided for his son in so many ways that he could not have. See Exhibit 2.
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Mr. McDaniel has also shown much progress in harnessing his energy and channeling it into
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productive areas. Bible study is one such area. See Exhibit 3. Obtaining his GED was another.
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See Exhibit 4. He has been able to have a positive impact on other inmates around him by
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demonstrating that he can think first - chose to react or not later. See Exhibit 5.
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While the ability to change is thought to be present in most people, the current state of affairs
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in the United States and the seemingly rampant and intractable polarization would tend to cast
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doubt on that proposition. That Mr. McDaniel has changed his positions on issues that many
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Americans apparently cannot speaks volume about him and about his prospects for the future. He
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understands that he must be punished for his actions and he deservedly faces many years of
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incarceration. However the Court must also consider the fact that he will be released from
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custody at some point. His demonstrated ability to change should give the Court some confidence
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that pronouncing the least onerous sentence will not be a mistake.
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The PSR notes that the recommendation of 360 months is based on a perceived lack of
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remorse. The circumstances of an in-custody probation interview - with limited time and in
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cramped quarters - certainly are not optimum for discerning the character of a person or the
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depths of the person’s contrition.
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Mr. McDaniel’s own words do, however, give a true litmus test of his feelings about his
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actions in these offenses. See Exhibit 6. He could not have written these words in 2013 or 2014.
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It took time for him to turn his focus inward and, it seems harsh to say, being in Administrative
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Segregation helped in that regard. These letters contradict the impression of the USPO that he
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was “barely apologetic.” That there remain mistakes in the PSR - namely the fact that paragraphs
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50 and 51 incorrectly detail the same facts for 2008 and 2011 incidents - is evidence that we are
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all imperfect.
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While the PSR and the Psychological Evaluation note that he had few positive role models as
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a child, his father has overcome many of his personal demons and has become a productive
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member of society. He, too, has seen change in Mr. McDaniel. See Exhibit 7. Even the mother
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of Mr. McDaniel’s son has taken the time to write a letter of support for Mr. McDaniel. See
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Exhibit 8.
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The undersigned referred to Mr. McDaniel above as a 27-year old child in an adult world.
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The reason for that is because Mr. McDaniel was - at the inception of this case - very much out
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of touch with the world most of us exist in everyday. Counsel, in preparation for a prior bond
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hearing, sent in a job application to Cost Plus World Market for Mr. McDaniel. See Exhibit 9.
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When counsel told Mr. McDaniel that he had been selected for an interview, Mr. McDaniel was
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filled with wonderment - truly like a child at Christmas. He had no idea of how to get a job or
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how simple it was to apply for one. From that point forward, Mr. McDaniel began to see that
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things that he thought only “other people” could do were not beyond his capabilities.
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Mr. McDaniel has never seen snow before, never been to the ocean, never explored the world
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beyond East Oakland. However, having opened his mind and imagination, he has become a
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student of life. He has joined the Commonweath Club and eagerly awaits their monthly
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magazine. See Exhibit 10. He has found himself in the previously unexplored position of setting
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goals for himself. He has become intrigued with rowing across the Pacific after learning about
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Lia Ditton and her quest to become the first woman to row from San Francisco to Japan. See
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Exhibit 11. He plans to beat her time and distance upon his release from prison. In the realm of
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alleged gang member goals, this must count as one of the most unusual ever. However, it is just
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the beginning for Mr. McDaniel. He also wants to ride a bike along the Great Wall of China.
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These goals may seem of no consequence given his expected sentence. However, the very
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existence of these goals speaks to the change in him and to his particular circumstances as they
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relate to determining a sentence under Booker.
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Instead of applying himself to getting high, he has applied himself to planning for his future
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by drafting business plans and developing a strategy for success upon his release from custody.
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See Exhibit 12.
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Mr. McDaniel cannot ask for less than the 27 years provided for in the plea agreement. He
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understands that his exposure could have been higher had the Government not entered into the
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instant agreement. However, the 360 months that the PSR recommends is not a reasonable
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sentence given the demonstrable change Mr. McDaniel has exhibited and the truthful expressions
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of remorse his letters provide.
This memorandum has not addressed in detail the offense conduct. That conduct is
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indefensible and nothing written here excuses it. Officer Karsseboom and Raven Burnette will
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never be the same because of Mr. McDaniel and he has to live with, and pay for, that. The change
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that this memorandum does address does not minimize the criminality of the past conduct, but it
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does address the future and the version of Damien McDaniel that will emerge from prison one
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day. The ruthless, impulsive, and violence prone person of 2013 does not exist anymore.
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Replacing that person is someone who has the best wishes of many people who could easily have
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refused to give him the time of day, from his son’s foster parents to the paralegal who spent time
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reviewing evidence with him. See Exhibit 13. I am not ashamed to say that I consider him more
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than just a client and I’ve promised him that I will be happy to shadow him on his trip across the
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Pacific someday.
CONCLUSION
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Mr. McDaniel stands before the Court recognizing that he broke the law and that severe
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punishment must ensue. He cannot ask for less than 27 years in custody. A reasonable sentence
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in this case will be based on both Damien McDaniels - the pre-offense criminal and the post-
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offense work-in-progress. He is confident the Court will not throw the baby out with the bath
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water by simply assuming that he is a throwaway creature of the streets who must be warehoused
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away forever. He has always had the potential and native intelligence to be so much more than he
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was. The difference is that now, for the first time, he believes it.
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DATED: September 13, 2017
Respectfully submitted,
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-S- James Phillip Vaughns
_______________________________
JAMES PHILLIP VAUGHNS.
Attorney for Defendant McDANIEL
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Case Document 347 Filed 09/13/17 Page 8 of 79
EXHIBIT 1
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Scott Lines, Ph.D.
Licensed Psychologist PSY 14167
2415 Webster Street, Berkeley, CA 94705
510.644.2396 (phone & fax)
Psychological Evaluation
Client:
Date of Birth:
Date of Interviews:
Date of Report:
Referred by:
Damien Edward McDaniel
12-02-89
08-10-17
08-17-17
James Phillip Vaughns, Attorney at Law
Reason for Evaluation
Attorney James Phillip Vaughns requested this evaluation of his client, Damien
McDaniel, for the purpose of assessing his current mental status and retrospectively
assessing his mental and emotional condition at the time of his offense conduct. My
understanding is that Mr. McDaniel has been charged with Racketeering Conspiracy,
Attempted Murder in Aid of Racketeering, Assault with a Dangerous Weapon,
Maiming in Aid of Racketeering, Use of a Firearm in Furtherance of a Crime of
Violence, and Felon in Possession of a Firearm. He has pleaded guilty to some of
these charges.
Procedures
I conducted a clinical interview with Damien McDaniel at the Glenn Dyer Detention
Facility in Oakland on August 10, 2017. His attorney was present for the first third
of the meeting. In addition to clinical interview, I reviewed the following documents
provided by his attorney:
1. The Presentence Investigation Report, dated July 19, 2017, 19 pp.
2. Copies of search warrants dated January 22 & 25, 2013, 23 total pp.
3. A copy of a letter written to the court by the defendant’s son’s
adoptive parents, undated, 1 pp.
Please note that a summary of the clinical findings of this evaluation may be
found beginning on p. 5 of this report.
Appearance and Mental Status
Damien McDaniel presented in this interview as a short-statured African American
man with numerous tattoos, dark curly hair and slight facial hair. No evidence of
thought disorder, i.e. hearing voices or delusional thinking, was noted. His mood
was variable but within normal limits. His language skills were normal and he
appeared of normal intelligence. On several occasions, he dramatically re-enacted
traumatic events he has experienced, suggesting these events remained
unprocessed in his psyche, affecting his judgment and actions. His memory was
unimpaired, and significantly heightened for traumatic events, as if they had just
happened, rather than occurring several years ago. This, like his dramatizations,
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Psychological Evaluation
Damien Edward McDaniel
Page 2
appeared to be colored by his exposure to trauma.
Mr. McDaniel conducted himself in this interview without hesitation or evasion, and
with no effort observed to manipulate the interview to present himself in either a
more negative or more positive light. As such, I consider his statements to be
accurate renderings of facts as he remembers them.
Personal and Family History
Damien McDaniel was born a full-term baby in Oakland at Summit Hospital on
December 9, 1989. His parents were living together and unmarried at the time of
his birth. His father, Lynn McDaniel, 51, now lives in Richmond and drives for Uber;
his mother, Deborah Young, is in her 50’s and works in the kitchen of a convalescent
hospital. His older brother, Logan Johnson, 38, born from a different father, lives in
Pittsburg and works in delivery for Amazon. He has two other siblings from his
father’s relationships with other women: Dominique McDaniel, 28, is a janitor at
Travis Air Force Base; and Sade McDaniel, 20, works as a hair stylist.
His father used and sold drugs through much of Mr. McDaniel’s childhood, finally
attaining sobriety after being severely injured by gunfire when Mr. McDaniel was
16. The Presentence Investigation Report references his father’s extensive criminal
record. Because of his own drug use, Mr. McDaniel is able to recognize that his
father smoked crack cocaine and used heroin. “He was always asleep, always
sweating, always hustling for the next fix,” he said. He does not remember his
parents being together. He knows his father spent some time in custody but
couldn’t say when, nor the length of time he was away. “He was in but he was out,”
he said. “I’d see him every weekend for a few minutes, then he was gone. He was in
his addiction.” His mother grew tired of his father’s drug use and finally ended their
relationship. Mr. McDaniel related a memory of his father being put in the back of a
police car; he tried to open the door to free his father, but the door was locked. He
stated he felt like he couldn’t help his father, which saddened him. He considers his
father one of his primary role models, yet he also rejected him in early adolescence.
He described their complicated relationship as follows:
For a minute I was real rebellious in my early adolescence, trying to shake
him off, telling people I had no daddy. Probably resentment for him not
being there much when I was younger . . . thinking I’m all grown and don’t
need him.
By contrast, Mr. McDaniel always felt his mother was present throughout his
childhood, providing him with food, clothes and other basic needs. But it appears
that she didn’t know how to handle his adolescent rebellion, and by the age of 14 he
was on the streets all night. “She was worried, but I kept doing it,” he said.
“Eventually she said, ‘If you’re staying out, then stay out.’” This freedom had a
negative impact on his academic performance. He went to Horace Mann Elementary
School and had a few problems, fighting and causing disruptions in class. Teachers
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suspected he had ADHD, but he was never evaluated nor offered medication
treatment. By middle school at Calvin Simmons, he was failing to turn in homework
and falling behind in classes. His mother arranged her work schedule to allow her
to get off work by the time he got home from school, but her presence at home was
not sufficient to undo his identification with his criminally inclined father and
paternal uncle. He considers his mother’s boyfriend, Nelson Harris, to be a positive
role model, but by the time he was 14 their relationship ended.
By the time he was in high school, his behavior deteriorated to the point that regular
school settings could not contain him. He went to Fremont High School for 20 days,
but was expelled for throwing a stapler. Transferred to Oakland Community Day
School, he lasted two-and-one-half months before being removed for assault, which
landed him in juvenile hall for two weeks. Following that, he attended Rock
LaFlesch Community Day School, but was expelled after three days for threatening a
teacher; he was placed back in juvenile hall. He was sent to a group home in San
Jose and attended Campden Community Day School, but he went AWOL after one
month. He was finally placed in Trinity Whitewater boys ranch in Southern
California, where he resided for almost nine months. This was an idyllic change for
him, a setting he described as being like a college campus, with a swimming pool,
basketball courts, game room, movie room and a staff psychologist. He played
basketball and football and learned how to swim. Yet his behavioral dyscontrol
continued, with many incidents of fighting, smoking and leaving his housing unit.
He AWOL’d with a mere two weeks to go before his placement ended. While the
timing of this AWOL suggests he was anxious about this idyllic placement ending,
his rationale for walking out of the program was his resentment at getting only two
home passes during the placement. In describing his state of mind at the Trinity
program, he stated, “Now I’m cool, but back then I used to be real wild, rebellious, not
listening, fighting in front of staff. The staff would say I’m going crazy.” He turned 18
shortly after leaving the program; once back in Oakland, he was arrested within
seven months in an auto theft that ended in a high-speed chase.
When I reflected in our interview on Mr. McDaniel’s apparent problems with anger,
he offered this understanding of his childhood propensity for angry outbursts:
Back then, I’ve always been short, and my mother told me if someone touches
you, you hit their ass back. If I got into it with someone, I’d always take it to
next level. I had to show them not to pick on the little guy, there’s more to
this little guy than what y’all think.
Exposure to Traumatic Events
Damien McDaniel has an extensive history of exposure to life-threatening traumatic
events that reside in his psyche as overwhelming, unmetabolized experiences. By
unmetabolized, I mean that the experiences have not been broken down by thinking
and reflecting within oneself, nor communicated with understanding others, nor
placed in a rational context; they instead reside as unbidden memories that flood
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him in the form of nightmares, flashbacks, and “re-enactments,” such as his
elaborate acting out the traumatic things that have happened to him. These reexperiencing events are accompanied by responses of the sympathetic nervous
system, i.e. hyperarousal, hypervigilence, nervousness, sweating and the like; he
reports suffering these PTSD symptoms both currently and when he was on the
streets. He is positive for diagnosis of posttraumatic stress disorder, which is now a
chronic condition in this man.
The following is only a partial list of these traumatic events; he gave the impression
that these were but examples of traumatic experiences that came immediately to
mind in the interview and not a complete inventory of the bad things that have
happened to him. He mentioned the following incidents:
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At the age of eight, he was riding his bike at his father’s house when he saw
an argument between two men that resulted in one man shooting and
killing the other. He witnessed the shooting and the man dying. He avoided
that spot in the neighborhood, and said, “Even if I’m not looking at that spot,
it’s in my head.”
At 15, an acquaintance of his was boxing for sport and got the best of his
opponent, who soon thereafter came back with friends and killed his
acquaintance.
In a drive-by shooting incident, he was standing next to a friend in West
Oakland when bullets flew past him and landed in the wall beside his head.
At 16 he was robbed at gunpoint while standing on the street with his
cousin, who was showing him pictures of his new baby. The robber thought
he was a pimp with money. This was the first time a gun was pointed at
him. “That definitely put a fear in me,” he said. “Things started to bother me
then.”
While crossing a street in Oakland, a man came walking down the middle of
the street shooting a gun. He froze, fell to the ground and crawled away,
feeling he might be killed.
It is worth noting that PTSD is worsened both in symptom manifestation and
prognosis if the trauma experienced is human-caused, as opposed to a natural
disaster, because of the betrayal of human trust that accompanies human-caused
trauma. His traumatic experiences fall into the former category, thus worsening the
clinical manifestation in this man.
Drug and Alcohol History
Mr. McDaniel has used marijuana regularly since the age of 14; his first use of the
drug was at the age of ten. He was using heroin and cocaine on a regular basis since
17, snorting these drugs; he was considering injecting heroin just before he was
arrested. He had also just started using methamphetamines before being
incarcerated. In other words, it appears that his drug use was on the increase
before he was arrested. He doesn’t consider himself to have a drug problem
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presently, but admits his use was becoming more of a problem at the time he was
arrested. He was high on methamphetamine at the time of his arrest. He stated he
is open to drug programs while in custody.
Clinical Opinion Regarding Mental and Emotional Condition as it Relates to
Offense Conduct
It is my clinical opinion that Damien McDaniel’s troubles, including his
acknowledged offense conduct, originated in two psychological factors, those being
the family environment and larger community environment in which he was raised,
and his unmistakable posttraumatic stress disorder derived from this environment.
These will be examined in turn.
Regarding the first of these psychological factors, his familial and community
environment, Mr. McDaniel’s life originated in an arena of depravity, lack of parental
control and exposure to violence. Because the so-called war on drugs resulted in a
large percentage of adult males being incarcerated, his father’s drug addiction
meant he was either actively using drugs or serving time in prison for his drug
involvement. His relationship with his father was constantly impacted by his
father’s drug-related lifestyle, providing a confusing combination of idealization of
his father because of what he considered his father’s exciting life, mixed with
resentment and rejection of his father because of the latter’s overall absence in his
life. The result for Mr. McDaniel was an unconscious identification with his father’s
lifestyle, using drugs, being “bad” and pursuing “females” as his father did, while
also rebelling against any strictures on his behavior. This identification was so
strong that once his father got clean of his drug habit, Mr. McDaniel found himself
wishing that his father was still using drugs and pursuing women so that they could
share these interests. In essence, his absent cum provocatively present father set
the model for an anti-authoritarian figure who showed him what “bad” looked like,
and the young Mr. McDaniel simply followed suit—prioritizing life on the streets
over academics, discipline and responsibility. His paternal uncle, a man sentenced
to 30 years in prison for murder, was another of his stated role models. So where in
his home life was he going to find a model of responsibility and discipline?
What about his mother? She appears in his narrative as a well-meaning but
ineffectual figure whose maternal authority collapsed in the face of her son’s
rebellion, as she ceded control of him by saying, “If you’re going to stay out on the
streets at night, then stay out.” In essence, with this he was given license to be free
and uncontrolled. His early criminality was certainly driven by anger, but in my
estimation his anger was not only because of his short stature and resulting need to
manifest a tough exterior, but also because he was furious at his parents, his
teachers, and by extension, at society for not effectively teaching him how to behave,
and for not showing him that there were good things to strive for in life through
legitimate effort.
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The second psychological factor involved in his offense conduct is his severe and
chronic PTSD. The Seminary neighborhood of Oakland can rightly be described as a
war zone for the young men involved in selling and using drugs, with turf lines,
allies and enemies as well defined as between warring nations. As outlined in the
“Exposure to Traumatic Events” section, he was exposed to life-threatening trauma
beginning at the age of eight, when he saw a man get killed. At 15, an acquaintance
was shot and killed. His exposure to trauma worsened when bullets landed next to
his head in a drive-by shooting, and worsened still when he was robbed at gunpoint.
He felt that death, which surrounded him in his neighborhood, was coming closer
and closer, such that during the time period of his offense conduct he often felt he
would be killed by “enemies.” He said, “That’s why I keep a gun, there’s people
really trying to kill me, specifically me. Dudes see me and start shooting. Why? I’m
guilty by association, my friend does something and he’s my friend, so they come
after me.”
From this statement and from his acceptance of responsibility for the offense
conduct cited in the Presentence Report, it is clear that in 2013, Damien McDaniel
was wary of being killed by rival “enemies” and thus was ready to defend himself. It
is also clear that he was prepared to for retribution, including inflicting bodily harm
and possibly death, to those who had acted aggressively toward his friends. What
this report emphasizes is that this aggressive stance was not only a willful disregard
for life, but also a PTSD re-enactment response to perceived threats driven by his
autonomic nervous system, essentially a heightened state of alertness leading to a
“fight or flight” response. Regarding his involvement in shooting the undercover
officer while trying to take his gun, he reported that when he heard that the man
whom he thought was a sneaky assailant had a gun, he felt an adrenaline rush,
shaking hands and accelerated heart rate. These are all signs of an activated
autonomic nervous system related to his mental disorder of PTSD, which
overwhelmed his better judgment. In fact, his judgment, clearly impaired during the
events of January 2013, was chronically overwhelmed by the same factors
throughout his adolescence and into his twenties, such that when his teachers at the
Trinity boys’ ranch thought, by his account, that he was “crazy,” they were correct—
he did suffer then from chronic PTSD, as he does now.
Certainly, Mr. McDaniel is no angel. It does appear that his time in custody, and the
enforced sobriety of custody, has allowed him to recover his impaired judgment.
When I described in this interview the “eye for an eye” stance he felt he had to take
in his neighborhood, he reflected on how that has changed in his mind, as follows:
I felt that way then, now I feel it’s not my job to take matters in my own
hands. Now I be feeling like if I do something [aggressive] to someone who
did something, that’s like taking God’s place. It’s God’s job to right the
wrongs. If someone do something to one of my friends, that’s my friend’s
business. I got a son and a family, I can’t be doing that stuff man.
Case 4:13-cr-00818-PJH Document 347 Filed 09/13/17 Page 15 of 79
Psychological Evaluation
Damien Edward McDaniel
Page 7
In its adjudication of Damien McDaniel, the court may wish to consider that this man
is capable of change, including adjusting his stance regarding retaliation for
perceived wrongs in his community and adjusting his lifestyle to include sobriety.
He is aware that some people use drugs in prison, but he has avoided that and plans
to continue. He is interested in drug counseling to help him understand and address
the issues underlying his previous use, and interested in psychotherapy to address
his PTSD. It does appear from his early use of marijuana (age ten) that he has relied
on substances not only because of the enjoyment they afforded him or because of
his identification with his father or older peers, but also to self-medicate his severe
anxiety. It is worth remembering that PTSD, while now in its own diagnostic
category within DSM-V, was for a long time classified as an anxiety disorder; the
autonomically-driven anxiety within PTSD is severe by any measure, and Mr.
McDaniel was never treated for this debilitating condition. At the court’s discretion,
this medical fact should be taken into consideration in sentencing this man.
Finally, this man’s family is supportive of him. His father, originally a poor role
model, now is in the position of positively influencing him through his sobriety and
his involvement in community-based drug treatment and violence prevention. The
fact that Mr. McDaniel is himself a father is also an organizing influence in his life. A
significant sign of his ability to reflect on his life and change his attitudes is seen in
his relationship with his son’s adoptive parents, a gay couple living in Oakland. Mr.
McDaniel was originally opposed to his son being raised by two men. However,
upon seeing the loving stability they are providing his son, Damien Jr., he has
completely reversed his opposition. He now has a good relationship with these two
men and corresponds with them regularly, as well as with his son. For their part,
the adoptive parents, Scott Hofmeister and Brian Wong, view Mr. McDaniel as taking
responsibility for and regretting his previous life choices.
I will add that Mr. McDaniel expressed in this interview that following his term of
custody, he hoped to start a non-profit organization dedicated to helping urban
youths to avoid the pitfalls that have brought him before the court on this matter. In
this way, he is using his father’s example of a man who came to terms with his
damaging lifestyle; he hopes to have a positive impact on such youths in the future,
stating, “I’ve been there, I’m just like them.”
Diagnostic Impression (DSM-V)
Posttraumatic Stress Disorder, chronic
Recommendations
I found Mr. McDaniel quite interested in talking to me about his life and traumatic
experiences in this interview, which I judge to be prognostically a good sign that he
could benefit from psychotherapy in custody. He should also be offered drug
counseling. He also needs a medication evaluation; he has been asking for
medication help for insomnia, but has not been offered any medical assistance for
this problem. This insomnia is another manifestation of his PTSD that would benefit
Case 4:13-cr-00818-PJH Document 347 Filed 09/13/17 Page 16 of 79
Psychological Evaluation
Damien Edward McDaniel
Page 8
from medical attention.
I hope this evaluation will assist the court in its adjudication of this man. I am
available for discussion of these findings, should that be necessary to clarify any
aspect of this report.
Sincerely yours,
Scott Lines, Ph.D.
Clinical Psychologist
Case Document 347 Filed 09/13/17 Page 17 of 79
EXHIBIT 2
Case Document 347 Filed 09/13/17 Page 18 of 79
May It Please the Court:
We are writing in support of Damien McDaniel (Damien Sr.) for his sentencing hearing on
August 23, 2017. Damien?s biological son (Damien Jr.) was placed with us at the age of 3
through the Alameda County Foster Care System in July 2012. In July 2014 we adopted Damien
Jr. and we began corresponding by mail with Damien Sr. We have been exchanging letters with
Damien Sr. three to four times a year since then. We have been updating Damien Sr. on the
progress of Damien Jr. and Damien Sr. has been keeping us up to date on the proceedings of his
case. Damien Sr. also corresponds with Damien Jr. through the mail by letter and occasional
drawing.
In addition to corresponding with Damien Sr., we have attended two of his bail hearings, so we
are familiar with the list of crimes of which Damien has been accused and have heard some of
the evidence offered by the prosecutor. We have also met Damien Sr.?s father (that is, our
son?s paternal grandfather) and are aware of some of the challenges that Damien Sr. faced as a
child growing up. We are also aware of how Damien Sr. has managed to persuade his friends
and family, while in detention, that he has turned over a new leaf and is worthy of their trust.
Based on our correspondence with Damien it is clear to us that Damien accepts responsibility
for and truly regrets the choices that have led him before this court. Damien?s letters to us
have been consistently modest, respectful, and grateful. He has approached our unusual
relationship very thoughtfully and with considerable concern for what is best for Damien Jr. and
how he can be supportive to us in raising Damien Jr. His letters have also been very gentle and
optimistic, especially given the particulars of his situation. His correspondence with Damien Jr.
exhibits inquisitiveness, empathy, encouragement and a desire to use his life story as an
example so that his biological son does not repeat his mistakes.
Damien and his attorney have shared with us the broad outline of the plea agreement. If
approved, we find it tragic that someone as young as Damien Sr. will end up spending so much
time incarcerated. While we understand the crimes of which Damien is accused are quite
serious, his conversion seems to us quite genuine, and it is our hope that Damien will get a
second chance to be a productive and contributing member of society sooner rather than later.
If there is any additional information that we can provide in support of Damien?s cause we
would happily do so. We can be reached via email at rockridge8888@gmail.com or by mail at
PO. Box 5264, Berkeley, CA 94705-2606.
Sincerely,
Scott Hofmeister Brian Wong
Case Document 347 Filed 09/13/17 Page 19 of 79
EXHIBIT 3
Case 4:13-cr-00818-PJH Document 347 Filed 09/13/17 Page 20 of 79
\h[ew Life Cfiurcfi of Qod in Christ
"The Church where New Life begins
and old lives become testimonies."
4450 International Blvd.
Oakland, Ca 94601
(510) 536-8410 Church
August 5, 2013
(510) 978-1021 Cell
email: newlife4@pacbell.net
To Whom It May Concern:
My name is Reverend Daniel Stevens. I am the Pastor of New Life Church of God in
Christ and I am also a Chaplain with North Counly Jail. I am writing on the behalf of
Damicn MeDanie! who is appearing before you [oday.
1 have known Damien for several years. During the past 6 months he has accepted
Christ as his personal Savior, i 1c has also shown concern lor his family and especially
his son who he realizes needs him at this lime. Due to his drug addiction he has done
some unlawful things that was unlike his character.
As a Pastor. I know that the Lord can change people and I believe that he ean and has
changed him. Damien acknowledges and understands what he has done as a result of
his drug use. I le is willing lo turn his life around by completing a drug program that
will help him overcome circumstances and substances that cause him lo become a
drug addict.
If he is able lo be released lo a drug program he will have an opportunity to be a
positive role model in his son's life. Learn life skills that will enable him lo be a
productive citizen, a loving and caring father.
I am of the opinion thai given a chance Damien could be a dependable and stable
individual.
If I can be ol~ further assistance, please do not hesitate to contact me.
Respeelfulh.
/C?' ti^
Rev. Daniel Stevens
Case 4:13-cr-00818-PJH Document 347 Filed 09/13/17 Page 21 of 79
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Case Document 347 Filed 09/13/17 Page 56 of 79
EXHIBIT 7
Case Document 347 Filed 09/13/17 Page 57 of 79
Dear Judge Hamilton,
This is Edward Mcdaniel, I am writing this letter in light of
my young son Damien Edward Mcdaniel?s current unfortunate
situation which, without ignoring Damien?s accountability, I would
like to explain to you my contribution. Although I am now a
hardworking, clear-headed, man of faith and God, the severity of
this current sentencing has forced me to self-re?ect on my past and
how it came to effect Damien?s present.
To summarize my childhood; I grew up in Oakland, California, in a
2 bedroom house on 84th avenue - the hood, you could say. I lived
in this home with 6 siblings and only my father?s income to share
amongst us. It goes without saying this was not enough to survive
and I realized pretty fast I had to provide for myself. (It was that or
eat cornbread, mayonnaise sandwiches, or ride for dinner every
night). But with my young age, limited education and opportunity, I
turned to hustlin?. Petty crirnes that eventually evolved into things
that required me to ignore my morals until they no longer became a
problem for me. The backlash of this lead me into a life of low-self
esteem, hard drugs, crime and becoming a young, unprepared father.
Preoccupied With all the stupid things I was doing, I didn't realize I
was setting up Damien to grow up in a similar environment that I
did, and unfortunately, make similar bad choices. I chopped it up as
something he?d grow out of, maybe to soothe guilt I'd trained myself
to ignore, either way I was wrong. Without guidance from a much
needed father, a lot of Damien?s youth fell to gangs and crime.
Case Document 347 Filed 09/13/17 Page 58 of 79
About 4 to 5 years ago when he was released from jail, though I
had changed my life for the better (married, job and a home I pay
bills in), I dropped the ball again. He wanted to live with me, but I
felt the neighborhood wouldn?t have been conducive to the growth I
saw in him. Unknowingly, I pushed him right back into the
neighborhood he was in before he went into jail. I see my mistakes
clearer than ever, and I?m writing this letter to ask you to not only
give Damien a chance with a reduced sentence, but with it also
redemption for myself. I am 50 years old and I want an opportunity
to get it right. Talking to Damien these years he has been awaiting
his sentencing has showed us both the potential for redemption and
change.
Thank you,
McDaniel
Case Document 347 Filed 09/13/17 Page 59 of 79
EXHIBIT 8
Case Document 347 Filed 09/13/17 Page 60 of 79
Dear Honorable Judge: Hamill-0?
Hello, my name is Korine Ritter. I am writing this letter on behalf of my child?s father Damien
McDaniel. I met Damien 91/2 years ago. At that time, he was an extremely different person, the
Damien he was 4 years ago was not the Damien he was when I met him. I can?t and will not
justify any of Mr. McDaniel?s behaviors yet I will say the Damien I know people are thinking him to be. When I first met Mr. McDaniel he was a reliable man who I could
always count on to be at home every night by 10?10230pm instead out all night engaging in
criminal and addictive behaviors. When our son was a baby Mr. McDaniel was an active part of
his life whenever he had the chance to be. Our son was removed from my care by in the
year of 2011, Mr. McDaniel was incarcerated at this time so he was not able to fight for our son
the way I was able to. Following the removal of our son by Mr. McDaniel?s behaviors
changed rapidly in a negative way his way of coping with the situation was by engaging in
criminal and addictive behaviors and acting out of impulse. I myself coped with the situation by
turning to drugs. I blamed Mr. MrDar?ol for a ver~ long time for our son being took when it war
not his fault. I fought for our son for a long time and in the end, I still lost and he was adopted
out. I can?t speak on Mr. McDaniel?s behaviors before I met him or on the alleged charges I can
only speak about the man I met 91/2 years ago, the man I know is a great father and if given
the chance can become a productive member of society if he is able to change people places
and things. I am currently in a inpatient drug program with almost 8months under my belt.
Today I have tools and coping skills that I never had before. If Mr. McDaniel would agree I
honestly believe that an inpatient drug program working around substance abuse, Criminal and
addictive behaviors, anger management etc. would be ideal for him so he can become that man
I once knew and the man I know he can be. My honest opinion is prison is not going to help him
all the way he needs a program where he can learn tools and coping mechanisms. In the end,
the decision will be up to you I hope you can take into consideration my idea around an
inpatient drug program for a 1+ years for Mr. McDaniel. Thank you for taking the time to read
this letter and consider my opinion and viewpoints.
Thank you for your time and consideration in this matter.
Case Document 347 Filed 09/13/17 Page 61 of 79
EXHIBIT 9
Case Document 347 Filed 09/13/17 Page 62 of 79
From: Manager.022@cpwm.com
Subject: World Market - Thank you please call us at your earliest
convenience
Date: Oct 28, 2016, 3:44:48 PM
To:
Damien McDaniel,
Thank you for your interest in CPWM. I would be interested in
speaking with you at your earliest convenience regarding some
opportunities that might be of interest to you. I look forward to
hearing from you. Please ask for the manager on Duty to set up an
interview.
Chelsea Youngren General Manager
Case Document 347 Filed 09/13/17 Page 63 of 79
EXHIBIT 10
Case Document 347 Filed 09/13/17 Page 64 of 79
From: The Commonwealth Club, Membership
Sent: Thursday, May 4, 2017 11:21 AM
To: Damien McDaniel
Subject: Membership Payment - Application Received
Membership Receipt - Tax
Our Website save this emaill
Membership Receipt
Dear Damien,
Thank you for submitting your membership application! We are glad to have you as a member, and
appreciate your support.
We are working quickly to complete the ?nal steps to activate your membership. (Still a manual process
internally - please allow up to two business days). After your membership has been activated you will
receive an email with your membership number. With that, you?ll be able to purchase tickets online and
receive special member pricing.
In the mean time please call our box of?ce to secure tickets right away. They can help you reserve
tickets, with special member pricing, over the phone.
Box Of?ce: 1415). 5291' :6105.
Below is a summary of your gift.
Amount: 99.00
Payment Method:?
Date: 5I4i2017
No goods or services were received in exchange for your membership. which was used entirely to
support The Club's activities. The Club is a 501(c)(3) organization. and our federal tax is 94-
0399260. Your membership dues are considered a tax deductible contributibn.
Case Document 347 Filed 09/13/17 Page 65 of 79
From,
The Membership Team
P.S. Maximize the impact of your membership with a matching gift! As a registered
501(c)(3), the Commonwealth Club is eligible for many employers? corporate matching gifts
programs. Check with your employer to see if they match gifts; it?s a simple way to make
your membership go further.
-. To Unsubscribegplease replywith 'remo?ye' in the subject line9.2.
lnfo@commonwealthdub.om I _Email
The Commonwealth Club of Califomla. 2018
Case Document 347 Filed 09/13/17 Page 66 of 79
EXHIBIT 11
9/13/2017
adventurer Lia Ditton to Document
become first woman
solo across
Pacific London
Case London
4:13-cr-00818-PJH
347to row
Filed
09/13/17
PageEvening
67 ofStandard
79
News › London
London adventurer Lia Ditton to become first woman to
row solo across Pacific
BARNEY DAVIS Friday 16 September 2016 09:49
Like
1 comment
Click to follow
The Evening Standard
Charting a course: Lia Ditton training for her 5,500-mile voyage from Japan to San Francisco Julian Winslow
An adventurer from London is preparing to battle typhoons and her parents’ disapproval to
become the first woman to row solo non-stop across the Pacific.
Lia Ditton, 36, will set out from Japan next May on the 5,500-mile voyage to San Francisco’s Golden Gate
Bridge. Ms Ditton has clocked up more than 150,000 nautical miles in a sailing career — equivalent to
eight laps of the globe — and expects the journey to take from four to six months “depending on the
currents”.
She said: “The impossibility of it is definitely part of the appeal. Sixteen men have failed, by either starting
from the wrong position or not having the right gear.
https://www.standard.co.uk/news/london/london-adventurer-lia-ditton-to-become-first-woman-to-row-solo-across-pacific-a3346456.html
1/4
9/13/2017
adventurer Lia Ditton to Document
become first woman
solo across
Pacific London
Case London
4:13-cr-00818-PJH
347to row
Filed
09/13/17
PageEvening
68 ofStandard
79
"You need to have sailing experience when you’re taking on such a colossal body of water.”
READ MORE
Moment two young rowers rescued from Thames after boat capsizes
Oxford rowers rescued by lifeboat crew just 10 days before the Boat Race 2015
Olympic gold medal-winning rower Katherine Grainger: Un nished business motivated my return to the sport
She narrowly avoided Hurricane Katrina while racing in the Atlantic in 2005, and will draw on that
experience as she charts a course across the Pacific.
Ms Ditton, who studied at the Chelsea College of Art in the Nineties, is expected to lose 30lbs on the
journey and will have very little room on her 21ft boat for luxuries from home. She added: “My parents
hope it doesn’t happen. They’ve only just got used to me sailing across oceans so rowing across one has
maybe pushed them too far — but my brother is behind me 100 per cent.”
She has also received £20,000 as a gift from Dragon’s Den star and Yo! Sushi pioneer Simon Woodroffe,
who is sponsoring her attempt.
Ms Ditton said: “I’ll go down in history. Four men have succeeded but I want to inspire women
everywhere.”
More about: Paci c Ocean
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2/4
Case Document 347 Filed 09/13/17 Page 69 of 79
EXHIBIT 12
Case Document 347 Filed 09/13/17
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EXHIBIT 13
Case 4:13-cr-00818-PJH Document 347 Filed 09/13/17 Page 78 of 79
JANET L. MAXWELL
6114 LaSalle Ave. Suite 357
Oakland, CA 94611
510-593-6966
September 4, 2017
Dear Hon. Phyllis J. Hamilton,
I am writing to voice my opinion about Mr. Damien McDaniel.
I met Mr. McDaniel when I was appointed to serve as his attorney's paralegal.
Initially, my job was to review the voluminous discovery materials with Mr.
McDaniel at the Glen Dyer Jail. We went through many hours of reviewing
documents, surveillance videos, and audio recordings. During those hours, Mr.
McDaniel was unfailingly polite and respectful. Often, he would apologize for his
appearance or ask for forgiveness if he coughed. I found him to be very
different from other inmates with whom I had previous contact in that he is very
thoughtful and remarkably straightforward.
We began to discuss matters beyond his case while we watched lengthy videos. He
expressed many opinions about his life and his future plans. While many other
inmates become fixated on rewriting history and glossing over their past
transgressions, Mr. McDaniel was quite different. He candidly acknowledged his
past and made no excuses for it. Many times he has stated that he is "tired of running
from his problems" and that he wants to be more productive with his time
by getting a GED and job training. I feel that he is very dedicated to making his
future a better one for himself and for his son.
He would ask me questions about my life and the path I had traveled to be where I
am. He was fascinated to find out that I have a background in psychology. We
would have many discussions about psychology and he showed an honest interest in
studying the topic. Motivated by his eagerness to learn, I purchased and mailed
several books to him. He was very appreciative of this and would tell me about the
different chapters he would read. He became very interested in the topic regarding
the development of an adolescent males psyche. It was very enlightening for him to
learn that he wasn't alone or unusual in the thoughts or behaviors he had as a teen.
■
Case 4:13-cr-00818-PJH Document 347 Filed 09/13/17 Page 79 of 79
I believe he feels that he has matured quite a bit since the beginning of his
incarceration until now. Due to his need to use his pent up energy and time more
productively while in isolation, I sent him an adult coloring book of mandalas. This
is a useful tool originally used by Buddhists for meditation and introspection. It also
provides stress relief, peacefulness, and a creative outlet. He has found it to be very
effective in dealing with his thoughts and emotions in a more positive way. He
expressed a desire to develop a spiritual side to himself as well being in the
service of others.
One of his goals was to be apart of the Little League organization in order to help
kids like himself have a outlet for a different outcome than he had. Over time, his
opinions have evolved and he has begun to adopt a realistic view of his past and his
prospects for the future. He went from thinking of getting out of jail and getting into
the music industry to trying to find out which federal prisons offered the best
practical vocational training programs. We discussed many options for possible jobs
that would compliment his interests and strengths. He realized that he must make a
fundamental change both inside of himself as well as outside. He understands that
he must completely eradicate any negative influences in his life whether it be people
or places.
From our many discussions, I know Mr. McDaniel looks forward to proving he can
be a good and productive person. Whether it was proving it to his family, to his
friends, or even to the prosecutor, his consistent theme was to show everyone that he
could rise above his past. He expressed a deep desire to show how he has matured
and what his potential could be after serving his sentence. I look forward to seeing
him succeed in the future because I know he can
Sincerely,
JANET MAXWELL
2
■