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United States v. Gwinn

United States District Court, S.D. Indiana, Indianapolis Division

September 15, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSHUA NEIL GWINN, Defendant.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

DEBRA McVICKER LYNCH, Magistrate Judge.

This matter is before the undersigned according to the Order entered by the Honorable Jane Magnus-Stinson, directing the duty magistrate judge to conduct a hearing on the Petition for Warrant or Summons for Offender Under Supervision ("Petition") filed on August 11, 2014, and to submit proposed Findings of Facts and Recommendations for disposition under 18 U.S.C. §§ 3401(i) and 3583(e). Proceedings were held on August 28, 2014, in accordance with Rule 32.1 of the Federal Rules of Criminal Procedure. [1]

On August 28, 2014, defendant Joshua Neil Gwinn appeared in person with his appointed counsel, Bill Dazey. The government appeared by Melanie Conour, Assistant United States Attorney. The United States Probation Office ("USPO") appeared by Officer Tasha Taylor, who participated in the proceedings.

The court conducted the following procedures in accordance with Federal Rule of Criminal Procedure 32.1(a)(1) and 18 U.S.C. § 3583:

1. The court advised Mr. Gwinn of his right to remain silent, his right to counsel, and his right to be advised of the charges against him. The court asked Mr. Gwinn questions to ensure that he had the ability to understand the proceedings and his rights.

2. A copy of the Petition was provided to Mr. Gwinn and his counsel, who informed the court they had reviewed the Petition and that Mr. Gwinn understood the violations alleged. Mr. Gwinn waived further reading of the Petition.

3. The court advised Mr. Gwinn of his right to a preliminary hearing and its purpose in regard to the alleged violations of his supervised release specified in the Petition. Mr. Gwinn was advised of the rights he would have at a preliminary hearing. Mr. Gwinn stated that he wished to waive his right to a preliminary hearing.

4. Mr. Gwinn stipulated that there is a basis in fact to hold him on the specifications of violations of supervised release as set forth in the Petition. Mr. Gwinn executed a written waiver of the preliminary hearing, which the court accepted.

5. The court advised Mr. Gwinn of his right to a hearing on the Petition and of his rights in connection with a hearing. The court specifically advised him that at a hearing, he would have the right to present evidence, to cross-examine any witnesses presented by the United States, and to question witnesses against him unless the court determined that the interests of justice did not require a witness to appear.

6. Mr. Gwinn, by counsel, stipulated that he committed Violation Numbers 1, 2, 3, 4, 5, 6, and 7 set forth in the Petition as follows:

Violation
Number Nature of Noncompliance
1 "The defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered."
2 "The defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any narcotic or other controlled substance or any paraphernalia related to any ...

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