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United States v. Martinez-Ramirez

United States District Court, Ninth Circuit

November 22, 2013

United States of America, Plaintiff,
v.
David Martinez-Ramirez, Defendant.

REPORT AND RECOMMENDATION

LAWRENCE O. ANDERSON, Magistrate Judge.

Pursuant to his standing order of referral, dated June 21, 2012, the Honorable James A. Teilborg, Senior United States District Judge, referred the Petition to Revoke Supervised Release to the undersigned Magistrate Judge to "[m]ake appropriate findings and recommendations and submit the necessary Report and Recommendation[.]"[1] Pursuant to 18 U.S.C. § 3401(i) and 28 U.S.C. § 636(b)(3), the parties expressly consented in writing that this Magistrate Judge conduct the revocation hearing on this Petition. (Doc. 124) See United States v. Colacurcio, 84 F.3d 326, 332 (9th Cir. 1996).

Pursuant to Rule 32.1(b)(2), Federal Rules of Criminal Procedure ("Fed.R.Crim.P."), a revocation hearing was held on November 12, 2013 in open court. Defendant David Martinez-Ramirez was initially physically present, but later physically removed from the courtroom due to his disruptive behavior, as further explained herein, and represented by his counsel of record, Jerry M. Hernandez. The Government, represented by AUSA Keith E. Vercauteren, presented four witnesses, viz., City of Glendale Police Officers Matthew Moody, Wade Kamman, and Joel Queenan, and United States Probation Officer Scott Talbott, and introduced numerous photographs as exhibits in evidence. The Court finds that the Government has established by a preponderance of credible evidence that, on July 30, 2012, Defendant violated Standard Condition No. 1 of his supervised release by committing the State crimes of Disorderly Conduct and Criminal Damage, both Grade C violations.

I. Revocation of Supervised Release

The standard of proof for revocation of supervised release is governed by statute. Title 18 U.S.C. § 3583(e)(3) provides, in relevant part, that a district court may revoke a term of supervised release "[i]f the court, pursuant to the Federal Rules of Criminal Procedure applicable to revocation of probation or supervised release, finds by a preponderance of the evidence that the defendant violated a condition of supervised release[.]" See also United States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008) (citing, inter alia, 18 U.S.C. § 3583(e)(3)); United States v. Lomayaoma, 86 F.3d 142, 147 (9th Cir. 1996) ("for purposes of a supervised release revocation hearing, the district court need only conclude that a preponderance of the evidence supports" revocation.). "On a challenge to the sufficiency of evidence supporting a supervised release revocation, the Ninth Circuit asks "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. Haile, ___ Fed.Appx. ___, 0213 WL 2577403, at *1 (9th Cir. June 11, 2013) (quoting United States v. King, 608 F.3d 1122, 1129 (9th Cir. 2010) (internal quotation marks omitted); United States v. Jeremiah, 493 F.3d 1042, 1045 (9th Cir. 2007)).

The Ninth Circuit has noted that "[p]arole, probation, and supervised release revocation hearings are constitutionally indistinguishable and are analyzed in the same manner." United States v. Hall, 419 F.3d 980, 987 n. 4 (9th Cir. 2005) (citing United States v. Comito, 177 F.3d 1166, 1170 (9th Cir. 1999) (noting that the Supreme Court and the Federal Rules of Criminal Procedure have extended the same minimum due process rights to all three types of revocation proceedings)). Although preponderance of the evidence is a "[l]ower standard than the beyond a reasonable doubt' standard required for a criminal conviction, there must still be credible evidence the releasee actually violated the terms of supervised release." Perez, 526 F.3d at 547; see also United States v. Hankerson, 208 Fed.Appx. 810, at *1 (11th Cir. 2006) ("Preponderance of the evidence is not a high standard of proof. It is not, however, a toothless standard either.") (internal quotation marks and citation omitted); see also United States v. Hilger, 728 F.3d 947, 949-51 (9th Cir. 2013) (explaining why the Government's burden of proof is lower for revocation than a criminal trial).

Revocation proceedings are intended "to be flexible, ' reflecting their difference from a criminal prosecution" and less formal in which the rules of evidence, including those pertaining to hearsay, need not be strictly applied. Id., at 950 (citing Morrissey v. Brewer, 408 U.S. 471, 489 (1972)); United States v. Francis, 2012 WL 3289833, at *1 (D. Ariz. Aug. 13, 2012) (citing Fed.R.Evid. 1101(d)(3); United States v. Walker, 117 F.3d 417, 421 (9th Cir. 1997); United States v. Doswell, 670 F.3d 526, 530 (4th Cir. 2012)). Nevertheless, the "[a]dmission of hearsay evidence in revocation of supervised release proceedings is governed by the Fifth Amendment right to due process." Perez, 526 F.3d at 548 (citing Hall, 419 F.3d at 985 & n. 4)). "A releasee is guaranteed the right to confront and cross-examine adverse witnesses at a revocation hearing, unless the government shows good cause for not producing the witnesses." Id. (quoting Hall, 419 F.3d at 986) (internal quotation marks omitted); see also Fed.R.Crim.P. 32.1(b)(2)(C) (a releasee is entitled to "an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear"). In Perez, the Ninth Circuit reversed the District Court of Hawaii's finding of a supervised release violation based solely on a positive drug test where the only evidence of the violation was an undisputed diluted urine sample, the Government failed to call the Virginia technician to testify and be cross-examined to determine the reliability of urine test results, and the Government "[f]ailed to use an available substitute for the [technician's] live testimony, such as affidavits, depositions, and documentary evidence.") (citation and internal quotation marks omitted). Perez, 526 F.3d at 549.

II. Findings of Fact

On August 15, 2012, a Petition to Revoke Supervised Release was filed, alleging Defendant violated two conditions of his supervised release. (Doc. 107) Specifically, the Petition asserts multiple violations of Standard Condition No. 1: "You shall not commit another federal, state or local crime during the term of supervision[, ]" by committing the following Arizona crimes during the current term of his supervision: 1) Disorderly conduct on July 26 and July 30, 2012, in violation of Arizona Revised Statute ("A.R.S.") § 13-2904, [2] each a Grade C violation; 2) Criminal Damage, in violation of A.R.S. § 13-1602, a Grade C violation if the crime committed is a misdemeanor;[3] 3) Aggravated Assault, in violation of A.R.S. § 13-1204, [4] a Grade A[5] violation; and 4) Possession of Stolen Property, in violation of A.R.S. § 13-1802, a Grade C violation if the crime committed is a misdemeanor.[6] ( Id. [7]) When it was initially filed, the Petition also alleged Defendant violated Standard Condition No. 3 by failing to participate in mental health counseling as directed. ( Id. at 2) On October 4, 2013, Magistrate Judge Michelle H. Burns concluded after conducting a preliminary revocation hearing that the Government failed to establish "probable cause as to Allegation B in the Petition to Revoke Supervised Release and order[ed] Allegation B dismissed." (Doc. 117)

According to the Petition, on November 4, 2003, Defendant was convicted of the crime of Conspiracy to Possess with Intent to Distribute 500 grams or more of Methamphetamine, a Class A felony, and committed to the Bureau of Prisons for 57 months, followed by 60 months of supervised release. (Doc. 107 at 1) The docket reflects Defendant's term of supervised release was revoked on December 9, 2008, and he was sentenced to time served, and placed on supervised release for a term of 51 months. (Doc. 89) On February 28, 2011, Defendant's term of supervised release was again revoked. He was again sentenced to time served, and placed on a supervised release term of 48 months. (Doc. 104) Defendant's current term of supervised release expires on February 27, 2015. (Doc. 107 at 1)

At the October 16, 2013 admit/deny hearing, Defendant requested a revocation hearing, which was scheduled for October 30, 2013 at 1:30 p.m. (Doc. 117) On October 23, 2013, the Government moved to continue the revocation hearing because "a necessary witness, who is a Glendale Police Department officer, [was] out of the state October 30, 2013 through November 6, 2013. The government promptly notified defense counsel, Mr. Jerry Hernandez, and this Court's staff of the conflict, and inquired about either accelerating or continuing the revocation hearing." (Doc. 121 at 2) Defense counsel took "no position on the motion itself, " but agreed "with the [G]overnment's request that the entire hearing be conducted on one day only before this Court." ( Id. ) Finding the unavailability of the witness constituted good cause, the Court granted the Government's continuance motion and rescheduled the revocation hearing for November 12, 2013. (Doc. 122)

At the beginning of the November 12, 2013 hearing, the Court gave Defendant a clear warning or "fair notice" that, while he was free to speak quietly with his attorney, there should be no "loud outbursts" because the Court "did not want to exclude [him] from the courtroom."

The first witness, Officer Matthew Moody, testified that, on July 30, 2013, he was dispatched to the Paradise Vista Apartments, Apartment 601, 7102 N. 43rd Ave, Glendale, Arizona, on a call of a "family fight, loud disturbance, and banging noises." He spoke to Ricardo Hernandez, an apartment maintenance employee, who informed Officer Moody that when he heard the loud banging and noises, he looked out an apartment window and saw the Defendant, who he knew as "David Ramirez, " leave Apartment 601. Mr. Hernandez then proceeded directly to the apartment complex's front office where he encountered the Defendant, who admitted to Mr. Hernandez that he had kicked in the front door of Apartment 601. He also said he would pay for the damage he caused, and then Defendant left his business card with his name on it with the manager at the front office.[8] Mr. Hernandez informed Officer Moody that the cost to repair Apartment 601's front door would be $200.

Officer Moody identified the Government's exhibits 1(a)-1(g), which are photographs Officer Moody took on July 30, 2013, depicting the damage to the front door of Apartment 601. Exhibit 1(h) is a photograph Officer Moody took of the text message Defendant sent from his cell phone, (602) 489-8248), to the cell phone of Veronica Martinez, Defendant's putative girlfriend, who showed the text message to Officer Moody. Exhibits 1(a)-1(h) were received in evidence. Exhibit 1(h), the photograph of ...


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