United States v. Wahpeta

          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, ...