United States District Court, D. Arizona
REPORT & RECOMMENDATION
Honorable Jacqueline M. Rateau United States Magistrate Judge
matter was referred to the Magistrate Judge to address the
Government's Petition for Warrant filed on October 25,
2017, by which the Government requests that the Court revoke
Defendant Mendoza's Supervised Release. DOC 58. The
Petition alleges that Defendant violated two conditions of
his Supervised Release: he failed to report to his Probation
Officer as instructed; and he failed to submit a urine sample
for testing as directed. Id.
evidentiary hearing was conducted on February 6, 2018. One
witness was presented by the Government, United States
Probation Officer Chris Woodiel. Defendant was present and
represented by counsel. He testified in his own defense. Four
exhibits were admitted at the hearing.
was sentenced on November 30, 2016, for possession with
intent to distribute marijuana. EX 1. He was ordered to serve
18 months in prison to be followed by 36 months of supervised
release. Id. Defendant's supervision began when
he was released from prison on May 11, 2017, and would have
expired on May 10, 2020. DOC 58.
Officer Woodiel testified that he was Defendant's
assigned probation officer. On May 17, 2017, he met with
Defendant and reviewed the supervised release conditions with
him. Standard Condition #2 states: “After initially
reporting to the probation office, you will receive
instructions from the court or the probation officer about
how and when you must report to the probation officer, and
you must report to the probation officer as
instructed.” EX 1. Special Condition #1 states in
relevant part: “You shall participate as instructed by
the probation officer in a program of substance abuse
treatment which may include testing for substance
abuse.” Id. After review, both Officer Woodiel
and Defendant signed and dated the conditions. Id.
Defendant was provided a copy of the conditions.
to Officer Woodiel, after their initial meeting on May 17,
2017, he next met with Defendant on June 19, 2017. At that
meeting, Defendant signed a document entitled
“Implementation of Terms of Supervision District of
Arizona.” EX 2. Defendant signed the document and
acknowledged that he was directed to speak or report in
person to Officer Woodiel on August 17, 2017. Id.
Defendant failed to show for his appointment. The following
day, Officer Woodiel called the Defendant who explained that
he did not know of the appointment.
August 23, 2017, Officer Woodiel made an unannounced visit to
Defendant's residence. Defendant's sister confirmed
that Defendant lived at the address but was not at home at
the moment. On August 31, 2017, Officer Woodiel sent
Defendant a certified letter directing him to report in
person to the Phoenix Probation Office on September 19, 2017,
at 11 a.m. EX 3. The letter warned that if he did not make
the appointment, the Court could be notified and a warrant
issued for his arrest. Id. Receipt of the letter by
Defendant was confirmed on September 6, 2017. EX 4. Defendant
failed to show for his appointment but did call earlier in
the day to state that he had transportation issues. Officer
Woodiel stressed to Defendant that he was not excused from
the appointment as he had weeks to make transportation
appointment was scheduled for September 21, 2017. Although
very late for his appointment, Defendant did show up.
According to Defendant, he did show up for his September 19th
appointment and was only 35 minutes late for his appointment
on September 21. However, on cross-examination, Defendant
admitted that he could not remember what he and his Probation
Officer spoke about as “everything was a blur” to
him. Nor could Defendant explain why, if he had showed up for
his appointment on September 19, he was again directed to
meet with his probation officer two days later.
September 25, 2017, Defendant scheduled an appointment for
October 3, 2017. The purpose of the appointment was for
Defendant to submit a urine sample. It's not clear if
Defendant called or appeared but he was unable to submit a
sample because of “kidney stones.” Officer
Woodiel asked the Defendant to submit proof from his doctor
of his medical condition. Defendant never did that. Nor did
he attend his next two scheduled appointments (October 17 and
23) with Officer Woodiel.
to 18 U.S.C. § 3583(e)(3), a district court may revoke a
defendant's supervised release if it finds by a
preponderance of the evidence that the defendant violated a
condition of his supervised release.
respect to Standard Condition #2, Allegation A of the
Petition charges that “[O]n or about August 17,
September 19, and October 17 and 23, 2017, Mendoza failed to
report for scheduled office appointments with the probation
officer.” Id. Based on the testimony of the
Probation Officer, which was not sufficiently refuted by
Defendant, the Court finds by a preponderance of the evidence
that Defendant violated Standard Condition #2 as charged in
allegation A of the Petition.
respect to Special Condition #1, Allegation B of the Petition
charges that “[O]n October 3, 2017, Mendoza failed to
submit a urine sample for testing as directed by the
probation officer.” Id. Based on the testimony
of the Probation Officer at the hearing which Defendant did
not dispute, the Court finds by a preponderance of the