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United States v. Lizarraga

United States District Court, D. Arizona

June 6, 2019

United States of America, Plaintiff,
v.
Aaron Abel Lizarraga, Defendant.

          REPORT AND RECOMMENDATION

          Honorable Leslie A. Bowman United States Magistrate Judge.

         This matter was referred to the Magistrate Judge to address the Government's Petition for Warrant filed on February 6, 2019, by which the Government requests that the Court revoke Defendant Lizarraga's Supervised Release. (Doc. 276). The Petition alleges that the defendant violated two conditions of his Supervised Release: he failed to report to his Probation Officer as instructed; and he possessed a firearm. Id. The petition states that the defendant began his supervised release on 9/1/17 and the supervision was scheduled to terminate on 8/31/20.

         An evidentiary hearing was conducted on May 8, 2019 (RT) and May 10, 2019 (RT1)[1]. United States Probation Officers (USPO) Olivia Bartfalvi and Deborah Valenzuela testified for the government. The defendant was present and represented by counsel. He testified in his own defense, along with defense witnesses Pablo Valencia and Fidencio Martinez-Abelaiz. Government's exhibits 1 through 3 were admitted by stipulation of the parties.

         Mr. Lizarraga admitted during the hearing that he failed to report to the probation officer as directed as required by standard condition 2 and as set forth in Allegation 1 of the petition. The Court finds he violated standard condition 2. Based on the evidence presented at the evidentiary hearing the Court finds by a preponderance of the evidence that the defendant possessed a firearm, in violation of standard condition 10, as alleged in Allegation B of the petition to revoke.[2]

         I. Facts

         Exhibit 1 is the judgment indicating that the defendant was sentenced on 1/29/15 to serve 50 months in the bureau of prisons with three years of supervised release to follow. (Doc. 205) The defendant pled guilty to Conspiracy to Possess with Intent to Distribute Marijuana. A number of conditions of supervised release were imposed, including standard conditions #2 and #10. Those conditions required, respectively, that the defendant report to the probation officer as directed and not possess a firearm.

         Exhibit 2 is a copy of Exhibit 1 but it was signed by the defendant and the USPO on 9/11/17.

         Exhibit 3 is a copy of the defendant's conditions of supervised release signed on 9/11/17 by USPO Bartfalvi and the defendant.

         USPO Olivia Bartfalvi testified that she has been a federal probation officer in Tucson for four years. (RT 8:19-20) On 9/1/17, she was assigned to supervise Defendant Lizarraga. (RT 10:14-15, 22) She met with him on 9/11/17 to review the judgment and the conditions of supervision. (RT 11:2-5) The meeting lasted about two hours. (RT 13:1-3) USPO Bartfalvi explained the conditions to the defendant. (RT 11:22-24) He had no questions. (RT 12:24-25) Mr. Lizarraga had a positive attitude, was employed and had good family relations. (RT 14:7-11) All his drug tests were negative. (RT 60:15-19) There were five uneventful home visits. (RT 60-61:24-25, 1-2)

         Mr. Lizarraga was compliant with his conditions until April 2018 when the USPO lost contact with the defendant. (RT 14:17-19, 23) She was concerned. (RT 15:1-2) On 10/26/18 Mr. Lizarraga reported to the probation office for a one-hour appointment with USPO Bartfalvi. (RT 15:18-21, 25) He was reminded that he was required to report monthly as directed on the online web-based program. (RT 16:8- 12) Mr. Lizarraga failed to report in November and December of 2018, and in January 2019. (RT 17:16-17)

         After trying unsuccessfully to reach the defendant by phone (RT 17:21-22), USPO Bartfalvi and her partner, USPO Deborah Valenzuela, went to his home on 1/31/19 to find him. (RT 21:3-4; 22:9-11) Officer Bartfalvi made contact with the defendant's sister and was told that the defendant was not home. (RT 21:15-18) Officer Bartfalvi left her business card and asked the sister to have the defendant contact her. (RT 22:1-3) As the officers were leaving, they saw the defendant drive up and park. (RT 23:14-18) The officers turned around and pulled their vehicle up alongside the defendant's truck. (RT 24:5, 16-17) He was out of the truck by then. (RT 24:17-18)

         USPO Bartfalvi spoke to the defendant through the open window of her vehicle. (RT 25:13-15) Mr. Lizarraga explained that he had changed his phone number and did not have the officer's phone number. (RT 25:20-21) He reached into the driver's side truck window to retrieve his cell phone so he could provide his new phone number to Officer Bartfalvi. (RT 26:3-5, 12-13, 18-21) Her vehicle was parallel to his vehicle. (RT 66:11-14)

         When the defendant reached into the truck Officer Bartfalvi saw him pick up a gun from the center console and place it on the driver's seat. (RT 27:7-12) The defendant used his right hand to pick up the black handgun, which the USPO saw “fairly” clearly. (RT 28:8, 11-12, 16) She was extremely close to Mr. Lizarraga when he reached into the truck. (RT 65:4-6) His back was to her. (RT 65:7-9) The officer was still seated in her vehicle when she saw the gun. (RT 65:11-15)

         The gun was not a revolver but she only saw it for a second or two so Officer Bartfalvi cannot say what kind of gun it was. (RT 62:8, 12-13, 22-24) At that time she was watching the people outside the house, the defendant, traffic and her partner. (RT 67:2-7)

         Upon seeing the gun, Officer Bartfalvi thought she and her partner were in danger. (RT 28:18-19) She commanded the defendant to put his hands up and back away from the vehicle. (RT 28:24-25) He complied. (RT 29:21-22) Officers Bartfalvi and Valenzuela exited their vehicle. (RT 30:1) They commanded the defendant to sit on the curb but he refused to comply. (RT 30:3-4) He was pacing, upset and acting erratic. (RT 30:10-11) Mr. Lizarraga was moving toward the vehicle, refusing to stay still and insisting that he wanted to leave in the truck. (RT 34:21-23)

         Mr. Lizarraga said he knew that he was in violation but he argued that he had been compliant thus far. (RT 35:15-17) He became very upset when Officer Bartfalvi tried to call her supervisor. (RT 35:18-19) She put the phone away but the defendant still refused to sit and calm down. (RT 35:22-24) He asked her to listen to him and said even though he knew he was in violation, he didn't want to go down this way. (RT 43:15-17)

         The defendant said he didn't want to stay and he was going to leave in the truck. (RT 45:14-15) The officer told him that he could leave but not in the truck because of the presence of the gun. (RT 45:16-18) Mr. Lizarraga refused to walk away and was firm in his resolve to leave in the truck. Officer Bartfalvi told the defendant that he could not get in the truck because of the firearm and the officers' concern for their safety. (RT 45:14-21; 74:21-24). He said he knew he was in violation for possessing the firearm. (RT 44:9-10) Even when the USPO mentioned the firearm, Mr. Lizarraga did not deny it. (RT 75:5-8)

         There were multiple people and cars present. (RT 36:9-10) A man drove up, got out of his car and approached the officers. He said the firearm was his. (RT 36:10-12) The officers did not know if he was armed. (RT 38:13-14) He tried to enter the truck but the officer told him to back away and stay out of the truck for safety reasons. (RT 36:13-16) The man complied. (RT 42:21-23) The USPO was trying to keep an eye on the defendant, the truck and all the people and activity in the area. (RT 36:18-20) She did not know who the other people were or if any of them were armed. (RT 40:21-23)

         The USPO eventually agreed to allow the defendant to leave in the truck on the condition that the officers could leave the area first. (RT 47:5-8) Officer Bartfalvi did not try to take possession of the firearm because the defendant was upset, other people were nearby, and it wasn't worth the risk of escalating the situation. (RT 47:16-19) The confrontation lasted about 5 minutes or less. (RT 50:3-7; 57:19-21) Officer Bartfalvi did not draw her service weapon because she did not want a gun fight. (RT 47:20-25) She did not use her phone to record or photograph the exchange because she didn't want to be distracted and wanted her hands free. (RT 73-74:23-25, 1-5) She took a photo of the defendant's license plate as the officers left the scene. (RT 51:4-6) When Mr. Lizarraga saw that, he asked if the officer really wanted to turn this into a high-speed chase. (RT 51:6-8)

         As the officers were leaving Officer Bartfalvi looked in the rearview mirror and saw the defendant get into the truck and leave. (RT 69:2-6) When the officers got to a safe place, Officer Bartfalvi called her supervisor and 911 from about a block away to report a felon in possession of a firearm and provide a description of the vehicle due to safety concerns. (RT 52:2-3, 9-13) Tucson Police Department did not respond. (RT 55:14-15) ATF did not respond to the area. (RT 56:4-8) The officers left and ...


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