United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable Bruce G. Macdonald United States Magistrate Judge.
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
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.
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.
Defendant asks that the petition be dismissed because of an
unreasonable delay in setting the revocation hearing.
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(Unpublished), citing United States v. Santana, 526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.
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.
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.
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.
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.”
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 ...