Filed: Apr. 18, 2017
Latest Update: Apr. 18, 2017
Summary: REPORT AND RECOMMENDATION ON DEFENDANT'S ADMISSIONS TO VIOLATIONS NUMBERS 1 AND 3 AS SET FORTH IN THE PETITION ALLEGING VIOLATIONS OF SUPERVISED RELEASE FRANK J. LYNCH, Jr. , Chief Magistrate Judge . THIS CAUSE having come on to be heard for a final hearing on April 18, 2017, in respect to the pending Petition Alleging Violations of Supervised Release [D.E. 66] and this Court having convened a hearing, this Court recommends to the District Court as follows: 1. The Defendant appeared befo
Summary: REPORT AND RECOMMENDATION ON DEFENDANT'S ADMISSIONS TO VIOLATIONS NUMBERS 1 AND 3 AS SET FORTH IN THE PETITION ALLEGING VIOLATIONS OF SUPERVISED RELEASE FRANK J. LYNCH, Jr. , Chief Magistrate Judge . THIS CAUSE having come on to be heard for a final hearing on April 18, 2017, in respect to the pending Petition Alleging Violations of Supervised Release [D.E. 66] and this Court having convened a hearing, this Court recommends to the District Court as follows: 1. The Defendant appeared befor..
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REPORT AND RECOMMENDATION ON DEFENDANT'S ADMISSIONS TO VIOLATIONS NUMBERS 1 AND 3 AS SET FORTH IN THE PETITION ALLEGING VIOLATIONS OF SUPERVISED RELEASE
FRANK J. LYNCH, Jr., Chief Magistrate Judge.
THIS CAUSE having come on to be heard for a final hearing on April 18, 2017, in respect to the pending Petition Alleging Violations of Supervised Release [D.E. 66] and this Court having convened a hearing, this Court recommends to the District Court as follows:
1. The Defendant appeared before this Court on April 18, 2017 for a final hearing in respect to the Petition Alleging Violations of Supervised Release [D. E. 66] which alleges the following four violations:
Violation Number 1 Violation of Special Condition, by buying,
selling, exchanging, possessing, trading, or
producing visual depictions of minors or adults
engaged in sexually explicit conduct. On or
about March 18, 2017, the defendant was found
to be in possession of visual depictions of adults
engaged in sexually explicit conduct as
evidenced by the 18 adult pornographic digital
video discs (DVDs) and seven printed
pornographic photo-graphs that were seized
from the defendant's residence in relation to a
search that was conducted on March 18, 2017.
Violation Number 2 Violation of Special Condition, by corresponding
or communicating in person, by mail, telephone,
or computer with individuals or companies
offering to buy, sell, exchange, possess, trade,
or produce visual depictions of minors or adults
engaged in sexually explicit conduct. Since the
inception of his supervised release, the
defendant admitted to personally buying several
adult hard core pornographic movies from a
company offering to buy, sell, exchange,
possess, trade, or produce visual depictions of
minors or adults engaged in sexually explicit
conduct.
Violation Number 3 Violation of Special Condition, by failing to
refrain from the use, or possession, of any
computer; except that the defendant may, with
prior approval of the Court, use a computer in
connection with authorized employment. On or
about March 10, 2017, the defendant used a
computer, without approval of the Court, to view
pornographic images as evidenced by the seven
printed pornographic photographs that were
seized from the defendant's residence in relation
to a search that was conducted on March 18,
2017.
Violation Number 4 Violation of Special Condition, by failing to
refrain from possessing or using a computer that
contains an internal, external, or wireless moden
without approval of the Court. On or about
March 10, 2017, the defendant used a computer,
without approval of the Court, to view
pornographic images as evidenced by the seven
printed pornographic photographs that were
seized from the defendant's residence in relation
to a search that was conducted on March 18,
2017.
2. After consultation with his attorney, the Defendant announced to this Court that he wished to admit Violations Numbers 1 and 3 inclusive, as set forth in the Petition [D.E. 66]. The government announced that it agreed to seek to dismiss Violation Numbers 2 and 4 of the Petition at sentencing. This Court questioned the Defendant on the record and made certain that he understood his rights in regards to an evidentiary hearing in respect to the alleged violations. The Defendant acknowledged that he understood his rights in that regard and further understands that all that will remain will be for the District Court to conduct a sentencing hearing for final disposition in this matter.
3. Counsel for the parties agreed that the Court could take judicial notice of the facts set forth in the Petition Alleging Violations of Supervised Release [D.E. 66] and the Memorandum from USPO Robert Tango to Chief Judge Moore dated March 20, 2017, which sets forth the essential elements of the violations to which the Defendant is admitting. Therefore, this Court will take judicial notice of the facts set forth in the Memorandum and finds that it sets forth a sufficient factual basis to support the Defendant's admissions to Violations Numbers 1 and 3 inclusive, as set forth in the Petition.
4. The possible maximum penalties which the Defendant was facing were read into the record by the government and the Defendant stated that he understood those penalties.
ACCORDINGLY, based upon the Defendant's admissions to Violations Numbers 1 and 3 inclusive of the Petition [D.E. 66] under oath, this Court recommends to the District Court that the Defendant be found to have violated his supervised release in respect to Violations Numbers 1 and 3 as set forth in the Petition and that a sentencing hearing be set at the earliest convenience of the District Court for final disposition of this matter.
The parties shall have fourteen (14) days from the date of this Report and Recommendation within which to file objections, if any, with the Honorable K. Michael Moore, the United States District Judge assigned to this case. Pursuant to Federal Rules of Criminal Procedure, Rule 59(b)(2), failure to file objections timely waives a party's right to review and bars the parties from attacking on appeal any legal rulings and factual findings contained herein.
