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United States v. Fox

United States District Court, D. Arizona

July 11, 2019

United States of America, Plaintiff,
v.
Jesse Lynn Fox, Defendant.

          REPORT AND RECOMMENDATION

          Honorable Bruce G. Macdonald United States Magistrate Judge.

         Pending before the Court is Defendant's Motion to Dismiss the Petition to Revoke Supervised Release (Doc. 100) and the Superseding Petition to Revoke Supervised Release (Doc. 102). The Government filed a Response to Defendant's Motion (Doc. 104). An Evidentiary Hearing took place on June 20, 2019. See Minute Entry 6/20/19 (Doc. 107). Pursuant to LRCrim 57.6, this matter came before Magistrate Judge Macdonald for an evidentiary hearing and a report and recommendation. The Magistrate Judge recommends that the District Judge, after its independent review, deny the Motion to Dismiss, and find the Defendant did violate the terms of his supervised release as set forth in Allegations A (1) and (2) of the Superseding Petition.

         Motion to Dismiss

         On February 18, 2019, Defendant was arrested pursuant to a warrant and petition to revoke supervised release dated December 21, 2018. The Defendant had an Initial Appearance on the petition on February 20, 2019, and an Admit/Deny hearing was set for March 20, 2019. On March 8, 2019, defense counsel filed a motion to continue the hearing to March 27, 2019. The Court granted this motion. On March 27, 2019, the Defendant entered a denial and an evidentiary hearing was set for April 24, 2019. On April 24, 2019, the Defendant was not transported for the hearing, due to being placed on quarantine status. The hearing was rescheduled for May 14, 2019. Due to a conflict in the Court's calendar, the hearing was reset, by Minute Entry, for May 16, 2019. On May 15, 2019, the Court was notified by the United States Marshals Service that the Defendant was still under quarantine and would not be present for the hearing on May 16, 2019. The hearing was again rescheduled to May 28, 2019.

         On May 28, 2019, the Government requested a continuance of the hearing in anticipation of probation filing a Superseding Petition. Over the Defendant's objection, the hearing was continued to June 20, 2019. On June 12, 2019, the Superseding Petition was filed.

         The Defendant asks that the petition be dismissed because of an unreasonable delay in setting the revocation hearing.

         Federal Rules of Criminal Procedure Rule 32.1(b)(1)(A) provides that a preliminary hearing on a supervised release petition “must be promptly conducted.” Defendant's right to such a hearing arises under the Due Process Clause of the Fifth Amendment. United States v. Swanson, 300 Fed.Appx. 561, 562 (9th Cir. 2008) (Unpublished), citing United States v. Santana, 526 F.3d 1257, 1259 (9th Cir. 2008. For a defendant to qualify for relief, the defendant must show both (1) an unreasonable delay and (2) actual prejudice. Id. “Reasonableness” involves the balancing of the length of delay and the reasons given for the delay. United States v. Swanson, id.

         The Court finds the delay in this case was not unreasonable. In this case, the majority of the delay resulted from the Defendant being placed in quarantine for public safety reasons. The Court denies the Motion to Dismiss.

         Supervised Release Petition

          On February 5, 2014, the Defendant was found guilty of the felony offense of Possession of Ammunition by a Prohibited Possessor (Doc.32). On May 13, 2014, the District Judge sentenced the Defendant to 41 months in the Bureau of Prisons and 36 months of supervised release. See Judgment and Commitment May 13, 2014 (Doc.56). The supervised release commenced on November 16, 2016.

         The Superseding Petition alleges a violation of Mandatory Condition #1 which states: “You must not commit another federal, state or local crime.” Allegation A of the Superseding Petition alleges 5 violations of Mandatory Condition #1. However, the Government did not present any evidence at the hearing to support allegations A (3), (4) or (5). The Court finds the Government has not established by a preponderance of the evidence that the Defendant violated these conditions of his supervised release.

         Allegation A (1) of the Superseding Petition alleges the Defendant violated Mandatory Condition #1 as follows:

(1) “As outlined in Tucson Municipal Court, Docket CM 18054625, on December 21, 2018, Fox was determined guilty of committing the offense of Domestic Violence/interfering with a Judicial Proceeding, Disobeying Order of the Court, in violation of Arizona Revised Statutes (A.R.S. §13-2810.A.2, a Class One Misdemeanor.”

         Mr. Fox was found guilty of this offense in Tucson City Court and received a $500.00 suspended fine and ordered to pay DV fees of $100.00. As such, the Court finds that the Government has met its burden to establish the ...


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