United States v. Begaye

          FINDINGS AND RECOMMENDATION

          Eileen S. Willett United States Magistrate Judge.

         TO THE HONORABLE DAVID G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE:

         Pending before the Court is a Petition to Revoke Supervised Release (Doc. 60) filed against Defendant Terrence Begaye on April 28, 2016. On February 28, 2019, the Defendant appeared before the Magistrate Judge for an Admit/Deny Hearing with the written consents of all counsel and the Defendant (Doc. 69). The Defendant denied the single allegation in the Petition to Revoke Supervised Release, and the Court set the matter for Evidentiary Hearing (Doc. 70).

         With the written consents of all counsel and the Defendant (Doc. 69), an Evidentiary Hearing was held before the Magistrate Judge on March 20, 2019 in accordance with Fed. R. Crim. P. 32.1(b)(2). The Magistrate Judge heard testimony from United States Probation Officer (“USPO”) Craig Haraga, USPO Daniel Johnson, and the Defendant. The Government's Exhibits One (1), Three (3), and Five (5) were admitted into evidence. The matter was deemed submitted for decision on March 20, 2019.

         BACKGROUND

         The Defendant having entered a plea of guilty to the crime of CIR:Assault Resulting in Serious Bodily Injury (Doc. 36), the Honorable David G. Campbell sentenced the Defendant on June 9, 2014 to twelve (12) months in the Bureau of Prisons, followed by three (3) years of Supervised Release (Doc. 42). The Court ordered that, during the term of supervision, the Defendant shall comply with the standard conditions of supervision adopted by the Court in General Order 12-13, as well as eight (8) special conditions. On October 27, 2014, a Petition to Revoke Supervised Release (Doc. 44) was filed. On December 9, 2014, the Defendant admitted to Allegation B of the Petition, which stated that the Defendant violated Standard Condition No. 13 by failing to notify his USPO of being arrested or questioned by a law enforcement officer (Doc. 54). The Court entered its Order Revoking Supervised Release on January 26, 2015 and committed the Defendant to six (6) months in the Bureau of Prisons followed by thirty (30) months of supervised release (Doc. 58). The Court affirmed standard conditions of supervised release adopted by the Court in General Order 12-13 with one (1) special condition (Id.). The Defendant's supervised release most recently commenced on May 18, 2015 (Doc. 63).

         FINDINGS

         In the Petition to Revoke Supervised Release filed on February 5, 2019 (Doc. 63 at 2), the Government alleges that the Defendant violated the following Standard Condition:

A. Standard Condition # 3 which states, “You shall report to the probation officer in a manner and frequency directed by the court or probation officer.”

Begaye failed to report as directed, in person, to the probation officer, on January 12, 2016, as evidence by testimony of the probation officer. Grade C violation. § 7B1.1(a)(3)(B).

         USPO Haraga identified the Defendant in open Court and testified that he met with the Defendant on May 18, 2015. USPO Haraga read to and reviewed with the Defendant each condition of supervised release. The Defendant signed his conditions (Exhibit 3). USPO Haraga then provided a copy of the conditions of supervised release to the Defendant.

         On December 14 and 15, 2015, USPO Haraga notified the Defendant by text message that the Defendant's supervision would transfer to USPO Daniel Johnson in Phoenix. USPO Haraga provided USPO Johnson's contact phone number to the Defendant (Exhibit 1). The Defendant received the text message. USPO Haraga had no further contact with the Defendant.

         USPO Daniel Johnson testified that he sent the Defendant by text message a photograph of his business card with current contact information on January 5, 2016. USPO Johnson also spoke by phone with the Defendant's girlfriend on January 4, 2016. By text message USPO Johnson directed the Defendant to meet with USPO Johnson on January 12, 2016. The Defendant acknowledged receipt of the text message and confirmed the meeting with his USPO.

         USPO Johnson testified that the Defendant did not appear at the Field Supervision Probation office as directed. He stated that had the Defendant come to the office as directed, the Defendant's signature would appear on the sign-in log maintained each day in the reception lobby. The sign-in log for January 12, 2016 does not contain the signature of the Defendant (Exhibit 5). In addition, the USPO on duty in the office would have either contacted USPO Johnson or left notes for USPO Johnson that the Defendant had appeared as directed. USPO Johnson neither received notification that the Defendant was present in the lobby, nor received notes from an ...