Case 4:13-cr-00818-PJH Document 347 Filed 09/13/17 Page 1 of 79 1 2 3 4 5 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 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 OAKLAND DIVISION 10 UNITED STATES OF AMERICA, 11 Plaintiff, 12 v. 13 DAMIEN EDWARD McDANIEL, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) No. CR 13-00818 PJH SENTENCING MEMORANDUM Date: September 20, 2017 Time: 1:30 p.m. Hon. Phyllis J. HAMILTON 16 17 INTRODUCTION 18 Damien McDaniel was arrested on January 22, 2013, for one of the events leading to the 19 instant Indictment and has remained in custody since. He was initially charged in Alameda 20 County Superior Court. However, after a preliminary hearing in state court, the matter was 21 dismissed in favor of federal prosecution in 2014. 22 He entered guilty pleas on April 27, 2017 to Racketeering Conspiracy -18 U.S.C. §1962(d), 23 Attempted Murder in Aid of Racketeering -18 U.S.C. §1959(a)(5), Assault with a Dangerous 24 Weapon in Aid of Racketeering -18 U.S.C. §1959 (a)(3), and Possession/Brandish/Discharge 25 of a Firearm in Furtherance of a Crime of Violence -18 U.S.C. §924(c)(1)(A). 26 27 28 The Presentence Report (“PSR”) correctly calculates the Adjusted Offense Level at 34, and a Case 4:13-cr-00818-PJH Document 347 Filed 09/13/17 Page 2 of 79 1 Criminal History Category of V. The resulting guideline range is 235 to 293 months. Count 6 2 requires a 10-year sentence consecutive to all other counts. The minimum sentence the Court can 3 apply is 10 years, 3 days. Dean v. United States, (2017) 581 U.S. ____ . The PSR recommends a 4 sentence of 360 months. The plea agreement allows the parties to argue for a sentence between 5 27 and 33 years (324 and 396 months). Pursuant to the agreement, Mr. McDaniel cannot argue 6 for any less than 324 months. Sentencing is scheduled for September 20, 2017 at 1:30 p.m. 7 ARGUMENT 8 District Courts Have Both the Authority and the Responsibility to Exercise Their Judgment and Discretion in Arriving at the Appropriate Sentence 9 The Supreme Court’s decisions in United States v. Booker, 543 U.S. 220 (2005), 10 Kimbrough v. United States, 128 S. Ct. 558 (2007), and Gall v. United States, 128 S. Ct. 586 11 (2007), dramatically altered the district court’s role in sentencing. The Sentencing Guidelines, 12 “formerly mandatory, now serve as one factor among several courts must consider in determining 13 an appropriate sentence.” Kimbrough, 128 S. Ct. at 564. While “district courts still ‘must 14 consult [the] Guidelines and take them into account when sentencing,’” United States v. Cantrell, 15 433 F.3d 1269, 1279 (9th Cir. 2006) (quoting Booker, 543 U.S. 264), district courts “may not 16 presume that the Guidelines range is reasonable,” Gall, 128 S. Ct. at 596-97; see also United 17 States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc). After Booker, “[t]he overarching 18 statutory charge for a district court is to ‘impose a sentence sufficient, but not greater than 19 necessary’ to reflect the seriousness of the offense, promote respect for the law, and provide just 20 punishment; to afford adequate deterrence; to protect the public; and to provide the defendant 21 with needed educational or vocational training, medical care, or other correctional treatment.” 22 Carty, 520 F.3d at 991 (quoting 18 U.S.C. § 3553(a)). The Guideline range is only one factor for 23 the district court to consider in making this judgment, and it may not be weighed more heavily 24 than any other factor. Id. 25 In Gall, the Supreme Court held that appellate courts cannot require that “a sentence that 26 constitutes a substantial variance from the Guidelines be justified by extraordinary 27 28 2 Case 4:13-cr-00818-PJH Document 347 Filed 09/13/17 Page 3 of 79 1 circumstances.” 128 S. Ct. at 591. The Court likewise rejected “the use of a rigid mathematical 2 formula that uses the percentage of a departure as the standard for determining the strength of the 3 justifications required for a specific sentence.” Id. at 595. Rather, it is within the district court’s 4 discretion to arrive at an appropriate sentence, “whether inside, just outside, or significantly 5 outside the Guidelines range.” Id. at 591. 6 FACTORS TO BE CONSIDERED IN IMPOSING SENTENCE 7 The primary directive in 18 U.S.C. § 3553(a) is for sentencing Courts to impose a sentence 8 which is sufficient, but not greater than necessary, to comply with the above objectives of 9 sentencing. As noted, under Booker, sentencing courts must treat the guidelines as just one of a 10 number of sentencing factors set forth in18 U.S.C. § 3553(a). In determining a minimally 11 sufficient sentence, § 3553(a) further directs sentencing courts to consider certain factors, 12 particularly the following: 13 14 (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 15 and dysfunctional. PSR, ¶ 66. It led him inexorably to make the terrible choices that bring him 16 before this Court to face an unpleasant future regardless of the Court’s sentence. The PSR 17 accurately describes the facts of the offense and Mr. McDaniel’s past, but does not come close to 18 describing the person that Mr. McDaniel is today. 19 The undersigned met Mr. McDaniel at the inception of this matter in 2014. Several things 20 stood out about him. He was impulsive and quick to react to even the most benign stimuli. He 21 also had strong opinions about many topics. Unknown at the time was the fact that he suffered 22 from PTSD. See Exhibit 1. Over the many, many hours spent with him, observable change was 23 noted. Most strikingly, Mr. McDaniel changed his view of the world and it all appeared to stem 24 from his changed view of his son’s custody circumstances. 25 Initially, Mr. McDaniel expressed very negative opinions about the fact that his son was in 26 the foster care of two men. That those men were an interracial couple where neither was African- 27 American also caused him concern. Today, Mr. McDaniel enjoys a very warm relationship with 28 3 Case 4:13-cr-00818-PJH Document 347 Filed 09/13/17 Page 4 of 79 1 both men and fully supports the fact that his son is fortunate enough to have loving foster parents 2 who have provided for his son in so many ways that he could not have. See Exhibit 2. 3 Mr. McDaniel has also shown much progress in harnessing his energy and channeling it into 4 productive areas. Bible study is one such area. See Exhibit 3. Obtaining his GED was another. 5 See Exhibit 4. He has been able to have a positive impact on other inmates around him by 6 demonstrating that he can think first - chose to react or not later. See Exhibit 5. 7 While the ability to change is thought to be present in most people, the current state of affairs 8 in the United States and the seemingly rampant and intractable polarization would tend to cast 9 doubt on that proposition. That Mr. McDaniel has changed his positions on issues that many 10 Americans apparently cannot speaks volume about him and about his prospects for the future. He 11 understands that he must be punished for his actions and he deservedly faces many years of 12 incarceration. However the Court must also consider the fact that he will be released from 13 custody at some point. His demonstrated ability to change should give the Court some confidence 14 that pronouncing the least onerous sentence will not be a mistake. 15 The PSR notes that the recommendation of 360 months is based on a perceived lack of 16 remorse. The circumstances of an in-custody probation interview - with limited time and in 17 cramped quarters - certainly are not optimum for discerning the character of a person or the 18 depths of the person’s contrition. 19 Mr. McDaniel’s own words do, however, give a true litmus test of his feelings about his 20 actions in these offenses. See Exhibit 6. He could not have written these words in 2013 or 2014. 21 It took time for him to turn his focus inward and, it seems harsh to say, being in Administrative 22 Segregation helped in that regard. These letters contradict the impression of the USPO that he 23 was “barely apologetic.” That there remain mistakes in the PSR - namely the fact that paragraphs 24 50 and 51 incorrectly detail the same facts for 2008 and 2011 incidents - is evidence that we are 25 all imperfect. 26 While the PSR and the Psychological Evaluation note that he had few positive role models as 27 28 4 Case 4:13-cr-00818-PJH Document 347 Filed 09/13/17 Page 5 of 79 1 a child, his father has overcome many of his personal demons and has become a productive 2 member of society. He, too, has seen change in Mr. McDaniel. See Exhibit 7. Even the mother 3 of Mr. McDaniel’s son has taken the time to write a letter of support for Mr. McDaniel. See 4 Exhibit 8. 5 The undersigned referred to Mr. McDaniel above as a 27-year old child in an adult world. 6 The reason for that is because Mr. McDaniel was - at the inception of this case - very much out 7 of touch with the world most of us exist in everyday. Counsel, in preparation for a prior bond 8 hearing, sent in a job application to Cost Plus World Market for Mr. McDaniel. See Exhibit 9. 9 When counsel told Mr. McDaniel that he had been selected for an interview, Mr. McDaniel was 10 filled with wonderment - truly like a child at Christmas. He had no idea of how to get a job or 11 how simple it was to apply for one. From that point forward, Mr. McDaniel began to see that 12 things that he thought only “other people” could do were not beyond his capabilities. 13 Mr. McDaniel has never seen snow before, never been to the ocean, never explored the world 14 beyond East Oakland. However, having opened his mind and imagination, he has become a 15 student of life. He has joined the Commonweath Club and eagerly awaits their monthly 16 magazine. See Exhibit 10. He has found himself in the previously unexplored position of setting 17 goals for himself. He has become intrigued with rowing across the Pacific after learning about 18 Lia Ditton and her quest to become the first woman to row from San Francisco to Japan. See 19 Exhibit 11. He plans to beat her time and distance upon his release from prison. In the realm of 20 alleged gang member goals, this must count as one of the most unusual ever. However, it is just 21 the beginning for Mr. McDaniel. He also wants to ride a bike along the Great Wall of China. 22 These goals may seem of no consequence given his expected sentence. However, the very 23 existence of these goals speaks to the change in him and to his particular circumstances as they 24 relate to determining a sentence under Booker. 25 Instead of applying himself to getting high, he has applied himself to planning for his future 26 by drafting business plans and developing a strategy for success upon his release from custody. 27 See Exhibit 12. 28 5 Case 4:13-cr-00818-PJH Document 347 Filed 09/13/17 Page 6 of 79 1 Mr. McDaniel cannot ask for less than the 27 years provided for in the plea agreement. He 2 understands that his exposure could have been higher had the Government not entered into the 3 instant agreement. However, the 360 months that the PSR recommends is not a reasonable 4 sentence given the demonstrable change Mr. McDaniel has exhibited and the truthful expressions 5 of remorse his letters provide. This memorandum has not addressed in detail the offense conduct. That conduct is 6 7 indefensible and nothing written here excuses it. Officer Karsseboom and Raven Burnette will 8 never be the same because of Mr. McDaniel and he has to live with, and pay for, that. The change 9 that this memorandum does address does not minimize the criminality of the past conduct, but it 10 does address the future and the version of Damien McDaniel that will emerge from prison one 11 day. The ruthless, impulsive, and violence prone person of 2013 does not exist anymore. 12 Replacing that person is someone who has the best wishes of many people who could easily have 13 refused to give him the time of day, from his son’s foster parents to the paralegal who spent time 14 reviewing evidence with him. See Exhibit 13. I am not ashamed to say that I consider him more 15 than just a client and I’ve promised him that I will be happy to shadow him on his trip across the 16 Pacific someday. CONCLUSION 17 18 Mr. McDaniel stands before the Court recognizing that he broke the law and that severe 19 punishment must ensue. He cannot ask for less than 27 years in custody. A reasonable sentence 20 in this case will be based on both Damien McDaniels - the pre-offense criminal and the post- 21 offense work-in-progress. He is confident the Court will not throw the baby out with the bath 22 water by simply assuming that he is a throwaway creature of the streets who must be warehoused 23 away forever. He has always had the potential and native intelligence to be so much more than he 24 >> 25 >> 26 >> 27 28 6 Case 4:13-cr-00818-PJH Document 347 Filed 09/13/17 Page 7 of 79 1 was. The difference is that now, for the first time, he believes it. 2 3 DATED: September 13, 2017 Respectfully submitted, 4 5 6 -S- James Phillip Vaughns _______________________________ JAMES PHILLIP VAUGHNS. Attorney for Defendant McDANIEL 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Case Document 347 Filed 09/13/17 Page 8 of 79 EXHIBIT 1 Case 4:13-cr-00818-PJH Document 347 Filed 09/13/17 Page 9 of 79 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, Case 4:13-cr-00818-PJH Document 347 Filed 09/13/17 Page 10 of 79 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 Case 4:13-cr-00818-PJH Document 347 Filed 09/13/17 Page 11 of 79 Psychological Evaluation Damien Edward McDaniel Page 3 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 Case 4:13-cr-00818-PJH Document 347 Filed 09/13/17 Page 12 of 79 Psychological Evaluation Damien Edward McDaniel Page 4 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: • • • • • 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 Case 4:13-cr-00818-PJH Document 347 Filed 09/13/17 Page 13 of 79 Psychological Evaluation Damien Edward McDaniel Page 5 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. Case 4:13-cr-00818-PJH Document 347 Filed 09/13/17 Page 14 of 79 Psychological Evaluation Damien Edward McDaniel Page 6 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 imfi ECS PRISON MINISTRY n of Northern California EMMAL'S o NAV PRESS SET FREE Damien McDaniel 934 Om (Ely nun/71m W1 091.11 an?; Drab/b gag/n1? (19L. /9,.Fk5 7/1? n51? 1.x. ur? V9.41 0.0wa Ova/71V .IS k?rmr,\ 1f AQOOT 95V P109911 h; (In PMDD13 1 .) IK/{hl rid/7 rap rho 11? 0.. .2 4919.": #:fr/D 013W 5! PW v1 PM 91:11 .chxier {9141 he hairs? (11-11. .rvv 1.. a2. .1 111.1.th :Sn?v 1/110 kw.) 9 KEV. .KOQOLHW (I L9) L11 . win 01.11. (5hr y/slc f1. Alba, Km 51 .1. 1r uuVu-T?wl .11; {xx/m Vm a. P1 IKVL.) I .3 Case Document 347 Fil?d 09/13/17 Page 36 of 79 \vx\\wg? Qg kaw \w . :x\a 33? 3.491351% Ax?) 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ACNQA SA good dmeXE-?xEBY?wirQuA: A 1: r? /l7. ?31594?? 04-" . 3/ 57426;?? .- 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 Reuse content Sponsored Links by Taboola The Surprising Reason Behind Dollar Shave Club's Change Dollar Shave Club Reclusive Millionaire Warns Retirees: "Get Out Of Cash Now" DailyWealth Homeowners Born Before 1985 Are Getting A Huge Reward Clever Economy Quotes Best & Worst Home Solar Companies Finally Ranked. Best Company Get The Care You Need Without the ER from Sutter Health Sutter Health This $199 Golf Driver is Changing the Game For Amateurs GX7 Golf These are the rules at Prince George’s new school Thomas’s Battersea https://www.standard.co.uk/news/london/london-adventurer-lia-ditton-to-become-first-woman-to-row-solo-across-pacific-a3346456.html 2/4 Case Document 347 Filed 09/13/17 Page 69 of 79 EXHIBIT 12 Case Document 347 Filed 09/13/17 be 9; via <2 2?2: 2 ?1 Get: 099g bugboig 9L a? ?g bug?mg 3% $2 900\ 35 323%; am \gx buSmQ 3% bew?r? 5w? \mmag? a skua 35mg} ??49 gram 20mg! ?2993 - - LEGEKRCQ, 3,22%. 9% Qtw?? {3&5\o\o\m Page 70 of 790;!? WAG *0 Q9041 3229, memar 222:2?:er am; "ms: Mimi 929ng 1? QECNVV \3 Case Document 347 Filed 09/13/17 Rgg2r71 of 79 0? Cos-"rs mun 00 momma and scum-.93. my?. \cquagkt tki? $5 DQch?. GXQemse WQ g:07% u? Cog?s' 7 7 - ?30) . ?Hm 5.0?0wa magi \Qckn'k 0x? A 3 20V exmem 1' 2) 60th5?91?\' (200$ ?QwOmYc??oO \Qoo\ )m\o\o~9\s\qoe$ 9,th . 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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 ■