BRUCE G. MacDONALD, Magistrate Judge.
Pending before the Court is a Petition to Revoke Probation (Doc. 48) filed on November 28, 2016. Pursuant to LR Crim. 5.1, this matter came before Magistrate Judge Macdonald for an evidentiary hearing and a report and recommendation. See also 18 U.S.C. § 3401(i). An Evidentiary Hearing occurred before Magistrate Judge Macdonald on February 15, 2017. See Minute Entry 2/15/2017 (Doc. 57). The Magistrate Judge recommends that the District Judge, after her independent review, find the Defendant did violate certain terms of his probation and did not violate certain other terms of his probation.
On April 26, 2016, Defendant pled guilty to the felony offense of Transportation of Illegal Aliens for Profit. See Minute Entry 4/25/16 (Doc. 26). On August 29, 2016, the District Judge sentenced the Defendant to probation for a term of 36 months. See Judgment 8/30/2016 (Doc. 47).
On November 22, 2016, Defendant's Probation Officer filed a Petition for Warrant (Doc. 48) alleging violations of the following conditions of Probation:
Petition for Warrant (Doc. 48) at 1-2 (emphasis omitted).
Defendant was present, in custody, and assisted by counsel. The Government presented one witness, United States Probation Officer Max C. Richards, and admitted four exhibits into evidence. The Government exhibits included: a letter from Mr. Richards to Mr. Hollis dated November 7, 2016 (Exhibit 1), an email from Alejandra Dicochea to attorney Brad Armstrong dated January 26, 2017 (Exhibit 3), an email from Behavioral Systems Southwest dated September 23, 2016 (Exhibit 4a), and an email for Behavioral Systems Southwest dated October 25, 2016 (Exhibit 5a). The Defendant testified and was the sole defense witness.
United States Probation Officer ("USPO") Max C. Richards testified that on September 8, 2016, he met with Defendant Hollis for the first time and went over the conditions of Defendant's supervised release. USPO Richards further testified that he went over each condition as written in the Judgment (Doc. 47) and explained them. The Court takes judicial notice of the conditions outlined in the August 30, 2016 Judgment (Doc. 47).
USPO Richards testified that on September 8, 2016, Defendant provided the Stone Avenue address. USPO Richards further testified that he made numerous attempts to contact Defendant via home visits, texts, and telephone calls; however, Defendant failed to respond. USPO Richards sent Defendant a certified letter to the Stone Avenue address which was returned stamped "vacant, unable to forward." On September 12, 2016, USPO Richards visited the Stone Avenue apartment, and found a note on the door from the manager regarding overdue rent. On November 1, 2016, USPO Richards again visited the property and spoke with Defendant's teenage son, who indicated that Defendant was at his mother's house doing laundry. USPO Richards had visited Defendant's mother, prior to speaking with Defendant's son, and she reported not having seen or heard from Defendant in weeks. On November 22, 2016, the property manager of the Stone Avenue apartment indicated to USPO Richards her intent to serve an eviction notice for non-payment of rent. USPO Richards further testified that during this time, Defendant made no attempts to contact him or otherwise inform USPO Richards that Defendant was staying elsewhere.
Defendant Hollis testified that he was aware that he was supposed to submit to a uranalysis, but failed to do so. Defendant claimed that his wallet, cellular telephone, and paperwork were stolen when he went to the park with his son and his car was vandalized. Defendant admits that he "totally lapsed" on his responsibility to undergo drug screening.
Defendant Hollis further testified that he was in regular contact with the apartment manager at Glenstone Village, the Stone Avenue apartment complex. Defendant Hollis also testified that his mother was paying the rent. Defendant testified that his mother has dementia.
Defendant testified that he was working out of town four (4) to five (5) days per week, usually Thursday through Sunday. On cross-examination, however, Defendant admitted that he was not working this job in either September or October. Defendant also admitted that he was only out of town three (3) days per week. Defendant further admitted that he never talked to USPO Richards about being out of town. Despite protesting that he was ignorant about being on probation, Defendant admitted that he had previously been on probation in 1997 and remembered everything about it.
"In evaluating the sufficiency of the evidence supporting a supervised release revocation, `we ask whether, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of a violation by a preponderance of the evidence.'" United States v. Thum, 749 F.3d 1143, — (9th Cir. 2014) (quoting United States v. King, 608 F.3d 1122, 1129 (9th Cir. 2010)) (internal quotation marks omitted) (citations omitted); see also 18 U.S.C. § 3583(e)(3). The Federal Rules of Evidence do not apply to a revocation hearing. Fed. R. Evid. 1101(d)(3); United States v. Martin, 984 F.2d 308, 310-11 (9th Cir. 1993).
The Government moved to dismiss this allegation, with no objection from the Defendant. As such, the Court recommends the District Judge dismiss Allegation B.
This Special Condition required the Defendant to "participate as instructed by the in a program of substance abuse treatment which may include testing for substance abuse." Judgment 8/30/2016 (Doc. 47) at 3. The Government alleges the Defendant violated this condition when, "[o]n or about September 22, 2016, and October 24, 2016, Hollis failed to submit to urinalysis as ordered." Petition for Warrant (Doc. 48) at 2.
The Defendant admitted he was aware of this Special Condition of his Probation. The Defendant claims he lost the information or paperwork about Behavioral Systems Southwest ("BSS") and failed to follow-up on his substance abuse treatment and testing. While the Defendant alleges he was not aware of the specific dates he was to report for urinalysis testing, he does admit he failed to present to BSS for a urinalysis test as directed on September 22, 2016 and October 24, 2016, and he further admits this is a violation of his Special Condition of Probation. (See Exhibits 4a and 5a.)
The Court finds the Government has met it burden in establishing that the Defendant violated this Special Condition of his Probation.
The standard conditions of supervised release provide that the Defendant "shall notify the probation officer at least ten days prior to any change of residence or employment." Judgment 8/30/2016 (Doc. 47) at 2. The Government alleges the Defendant violated this condition when, "[o]n or about November 22, 2016, Hollis changed residences and failed to notify the probation officer of a change in residence." Petition for Warrant (Doc. 48) at 1.
On September 8, 2016, United States Probation Officer Max C. Richards met with the Defendant at the office of the Probation Officer. Mr. Richards went over the Conditions of Probation and was told by the Defendant that his address was 2835 North Stone Avenue, Apartment #8302. At that time, the Defendant signed the Conditions of Probation.
Mr. Richards then met with the Defendant at the apartment on Stone Avenue on September 12, 2016. Mr. Richards was aware the Defendant's sixteen (16) year old son was living with the Defendant at the apartment. Mr. Richards did not speak to the Defendant after September 12, 2016.
In October and November 2016, Mr. Richards tried to contact the Defendant, but could not make contact. On November 1, 2016, Mr. Richards went to the Defendant's mother's house and was told the Defendant was not at the house. Mr. Richards then went to the Stone Avenue apartment and was told by the Defendant's son that the Defendant was not there, but that he was at his mother's house doing laundry. Mr. Richards told the Defendant's son he was just at the mother's house and the Defendant was not there.
On November 7, 2016, Mr. Richard's sent a letter to the Defendant at the Stone Avenue address. (See Exhibit 1.) The letter was sent by certified mail. The letter was returned to the sender and it was noted by the Postal Service the apartment was vacant. (See Exhibit 1.)
On November 22, 2016, Mr. Richards went to the Stone Avenue apartment and spoke to the manager of the apartment complex, Alejandra Dicochea. Ms. Dicochea said the Defendant had not paid his rent and Ms. Dichochea also stated she thought the Defendant might have moved out of the apartment.
The Defendant testified he never moved out of the apartment, but that he was working out of town for days at a time and that was why he was not at the apartment. The Defendant also admitted he was behind on his rent, but he always intended to pay his rent and remain living at the apartment.
The Petition for Warrant was filed on November 28, 2016 and the Defendant was arrested on December 9, 2016. Until he was arrested, the Defendant had no idea Mr. Richards was trying to locate him.
While it appears that the Defendant did not technically violate this condition of his probation, he certainly could have done a better job of staying in contact with his Probation Officer. However, under the circumstances, the Court does not find the Government has met its burden to show a violation.
The Government has established by a preponderance of the evidence that Defendant Hollis violated Special Condition No. 1 of his Probation. The Government did not establish by a preponderance of the evidence that Defendant Hollis violated Standard Condition No. 7 of his Probation. The Government moved to dismiss Allegation B of the Petition alleging a violation of Standard Condition No. 11.
Based on the foregoing and pursuant to 28 U.S.C. § 636(b) and 18 U.S.C. § 3401(i), the Magistrate Judge
1) Defendant Hollis DID violate Special Condition No. 1 (Allegation C);
2) Defendant Hollis DID NOT violate Standard Condition No. 7 (Allegation A); and
3) DISMISSING Allegation B, alleging a violation of Standard Condition No. 11, pursuant to the Government's unopposed oral motion.
Pursuant to 28 U.S.C. §636 (b) and rule 59(b)(2) of the Federal Rules of Criminal Procedure, any party may serve and file written objections with fourteen (14) days after being served with a copy of this Report and Recommendation. No reply shall be filed unless leave is granted by the District Judge. If objections are filed, the parties shall us the following case number:
Failure to file timely objections to any factual or legal determination of the Magistrate Judge in accordance with Fed. R. Crim. 59 may result in waiver of the right of review.
