The opinion of the court was delivered by: Honorable Sean F. Cox
OPINION FINDING DEFENDANT TO HAVE VIOLATED THE CONDITIONS OF SUPERVISED RELEASE
On March 24, 2010, this Court held a supervised release violation hearing in this matter, which was continued on April 2, 2010. As set forth below, the Court concludes that the Government has established, by a preponderance of the evidence, that Defendant committed a "Grade A" violation of supervised release, along with three "Grade C" violations of supervised release.
In Case No. 05-00031, in the United States District Court for the Eastern District of Tennessee, Defendant Andre Williams ("Defendant") pleaded guilty to Count I of the Indictment, Conspiracy to Possess and Utter Counterfeit Securities in violation of 18 U.S.C. §§ 513(a) and 371. On March 10, 2006, Defendant was sentenced to 48 months imprisonment, followed by 3 years of supervised release. The sentencing court imposed standard conditions of supervision, and imposed the following special conditions of supervision:
1) The defendant shall participate in a program of testing and/or treatment for drug and/or alcohol abuse, as directed by the probation officer, until such time as the defendant is released from the program by the probation officer.
2) The defendant shall pay any financial penalty that is imposed by this judgment, and that remains unpaid at the commencement of the term of supervised release.
3) The defendant shall provide the probation officer with access to any requested financial information.
4) The defendant shall not incur new credit charges on existing accounts or apply for additional lines of credit without permission of the probation officer until the restitution has been paid in full. In addition, the defendant shall not enter into any contractual agreements which obligate funds without permission of the probation officer.
Defendant's supervised release was to be from February 20, 2009, to February 19, 2012. Defendant's supervised release was transferred to the Eastern District of Michigan on July 1, 2009, at which time this action (Case No. 09-20356) was opened.
On February 11, 2010, Defendant's Probation Officer, Corey Elder, filed a "Petition for Warrant or Summons for Offender Under Supervision" ("the Petition"). (Docket Entry No. 2). The Government alleges that Defendant has violated the following conditions of supervised release:
Violation Number Nature of Noncompliance
1. Violation of Mandatory Condition: "THE DEFENDANT SHALL NOT COMMIT ANOTHER FEDERAL, STATE, OR LOCAL CRIME."
2. Violation of Mandatory Condition: "THE DEFENDANT SHALL NOT POSSESS A FIREARM, DESTRUCTIVE DEVICE, OR ANY OTHER DANGEROUS WEAPON."
3. Violation of Standard Condition No. 7: "THE DEFENDANT SHALL REFRAIN FROM EXCESSIVE USE OF ALCOHOL, AND SHALL NOT PURCHASE, POSSESS, USE, DISTRIBUTE, OR ADMINISTER ANY CONTROLLED SUBSTANCE OR ANY PARAPHERNALIA RELATED TO ANY CONTROLLED SUBSTANCES, EXCEPT AS PRESCRIBED BY A PHYSICIAN."
4. Violation of Standard Condition No. 8: "THE DEFENDANT SHALL NOT FREQUENT PLACES WHERE CONTROLLED SUBSTANCES ARE ILLEGALLY SOLD, USED, DISTRIBUTED, OR ADMINISTERED."
On August 27, 2009, officers of the Redford Township Police Department and agents of the Drug Enforcement Administration (DEA) executed a state search warrant at 8452 Heyden, Redford Township, Michigan. The offender was one of four individuals located in the residence. A search of the offender's person revealed $10,195.00 in United States currency concealed in his right front pocket. Also in the home, were numerous large bags of marijuana, one loaded shotgun, drug packaging paraphernalia, and pictures of the offender.
5. Violation of Special Condition No. 2: "THE DEFENDANT SHALL PAY ANY FINANCIAL PENALTY THAT IS IMPOSED BY THIS JUDGMENT, AND THAT REMAINS UNPAID AT THE COMMENCEMENT OF THE TERM OF SUPERVISED RELEASE."
The offender was originally sentenced to pay restitution in the amount of $67,013.87 and he currently owes $65,797.87. Since the start of his supervision, the offender has paid $25.00 on June 15, 2009, and again on September 9, 2009.
6. Violation of Standard Condition No. 2: "THE DEFENDANT SHALL REPORT TO THE PROBATION OFFICER AND SHALL SUBMIT A TRUTHFUL AND COMPLETE WRITTEN REPORT WITHIN THE FIRST FIVE DAYS OF EACH MONTH."
On September 2, 2009, the offender submitted a written monthly report whereby he answered "No" to being questioned by police, having any contact with anyone with a criminal record, possessing illegal drugs, being arrested, or having access to a firearm. These reports are considered untrue due to the circumstances of the offender's August 27, 2009 police contact.
7. Violation of Standard Condition No. 9: "THE DEFENDANT SHALL NOT ASSOCIATE WITH ANY PERSONS ENGAGED IN CRIMINAL ACTIVITY AND SHALL NOT ASSOCIATE WITH ANY PERSON CONVICTED OF A FELONY, UNLESS GRANTED PERMISSION TO DO SO BY THE PROBATION OFFICER."
Three convicted felons, Eric Wilson, Makonda Beasley, and Leonard Tompkins were all presented with the offender during the August 27, 2009, search warrant in Redford Township, Michigan.
8. Violation of Standard Condition No. 11: "THE DEFENDANT SHALL NOTIFY THE PROBATION OFFICER WITHIN SEVENTY-TWO HOURS OF BEING ARRESTED OR QUESTIONED BY A LAW ENFORCEMENT OFFICER."
This officer was never notified by the offender of his police contact on August 27, 2009.
(Petition at 2-3). On February 17, 2010, this Court ordered the issuance of the requested summons.
On March 3, 2010, the parties appeared before the Court. Defense Counsel confirmed that Defendant has received written notice of the alleged supervised release violations and that he has the initial Presentence Report. Both the Government and Defense Counsel indicated that they needed some time to prepare for the hearing and agreed to a March 24, 2010 hearing.
SUPERVISED RELEASE REVOCATION HEARING
On March 24, 2010, Defendant pleaded guilty to having committed Violation No. 6 and Violation No. 8. The Court then held the supervised release revocation hearing to determine whether Defendant committed any of the remaining alleged violations. The hearing was continued on April 2, 2010.
Twenty seven exhibits were admitted at the hearing, including: 1) the August 24, 2009 search warrant for 8452 Heyden; 2) numerous pictures taken on August 27, 2009, during the execution of the search warrant; 3) Defendant's August 2009 Monthly Supervision Report; and 4) the laboratory report analyzing the drugs seized during the execution of the search warrant. The Government called the following witnesses: 1) Officer Brian Jones; 2) Officer ...