United States District Court, D. Arizona
FINDINGS AND RECOMMENDATION OF THE MAGISTRATE
JUDGE
HONORABLE DEBORAH M. FINE, UNITED STATES MAGISTRATE JUDGE
TO THE
HONORABLE SUSAN R. BOLTON, SENIOR U.S. DISTRICT JUDGE:
On June
22, 2018, a Petition to Revoke Supervised Release was filed
against Defendant (Doc. 32). The Petition alleges that
Defendant violated Standard Condition No. 2. This condition
required of the Defendant as follows: “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”
(Doc. 28; Doc. 32). Specifically, the Petition alleges that
Defendant “failed to report to the probation officer on
May 23, 2018 as directed in writing and verbally on May 18,
2018” (Doc. 32).
On
January 8, 2019, Defendant appeared before this Court for an
initial appearance on the alleged supervised release
violation (Doc. 34). This matter was set for an admit/ deny
hearing on February 5, 2019, which was later continued to
February 19, 2019 (Docs. 39, 42, 43). Defendant and counsel
for both parties consented to having the admit/deny hearing
before a Magistrate Judge, Defendant entered a denial, and
Defendant requested a revocation hearing (Docs. 44, 45). The
revocation hearing was held before this Court on March 5,
2019, with the written consent of the Defendant, counsel for
the Defendant, and counsel for the government (Docs. 46, 47,
48, 49).
In
consideration of the revocation hearing, the exhibits
presented (Doc. 49), the testimony provided under oath and on
the record and in the presence of counsel (Doc. 48), and the
remarks of the Assistant United States Attorney and of
counsel for Defendant, I FIND the following
by a preponderance of the evidence:
Defendant
reported in person to the probation office on May 18, 2018.
On May 18, 2018, Defendant was made aware of a supervision
condition requiring him to report to the probation office as
instructed. Defendant was given clear instructions to report
to the probation office to meet with P.O. Spencer on May 23,
2018. Defendant called P.O. Spencer on May 23, 2018, and
acknowledged his duty to report that day in person. P.O.
Spencer informed that she would be available to meet all day.
Defendant did not report that day in person. P.O. Spencer
called Defendant's phone on May 25, 2018, leaving a
voicemail for Defendant requesting that he call so they could
set another time to meet. Having not heard from Defendant
after Defendant's call on May 23, 2018, P.O. Spencer
called Defendant's phone an additional time on May 29,
2018, and the call was routed to a generic voicemail message.
Therefore,
the Court finds that Defendant violated Standard Condition
No. 2 because he failed to report to the probation officer on
May 23, 2018, as he had been directed to do on May 18, 2018.
IT
IS THEREFORE RECOMMENDED that the Court find that
Defendant violated Standard Condition No. 2 of his supervised
release.
ORDER
IT IS ORDERED that a Final Disposition Hearing is
set for April 2, 2019, at 3:00 p.m. in Courtroom 502, 401
West Washington Street, Phoenix, AZ 85003 before the
Honorable Susan R. Bolton.
IT
IS FURTHER ORDERED that any objection to the
Court's findings and recommendation be made by the
parties in writing and shall be specific as to the objection
or request made. All objections shall be filed within
fourteen (14) days of the date of service of a copy of these
findings unless extended by an Order of the assigned district
judge. This recommendation is not an order that is
immediately appealable to the Ninth Circuit Court of Appeals.
Any notice of appeal pursuant to Rule 4(b)(1), Federal Rules
of Appellate Procedure, should not be filed until entry of
the district court's judgment.
IT
IS FURTHER ORDERED that any letters, documents, or
other matters Defendant would like the disposition judge to
consider before disposition (including the English
translation of any writings not in English) must be submitted
in paper form with the original to the probation office and
copies to the disposition judge and opposing counsel no later
than five (5) business days prior to the disposition date or
they may be deemed untimely by the disposition judge and not
considered. No. more than ten (10) character letters shall be
submitted by defense counsel, unless otherwise ordered by the
Court. Character letters shall not be mailed directly to the
disposition judge by any family members or other persons
writing in support of Defendant. Character letters or a
notice of service of such letters shall not be filed
electronically unless otherwise ordered by the Court.
IT
IS FURTHER ORDERED that any motions for upward or
downward departures or any disposition memoranda must be
filed at least seven (7) business days prior to the
disposition date. Responses are due three (3) business days
prior to the disposition date. Any motion to continue
disposition must be filed promptly upon discovery of the
cause for continuance and must state the cause with
specificity. Motions to continue disposition filed less than
fourteen (14) days before disposition are disfavored. If
either party intends to call a speaker at disposition, ...