United States District Court, S.D. Indiana, Terre Haute Division
REPORT TO DISTRICT JUDGE PROPOSED FINDINGS OF FACT AND CONCLUSION OF LAW
CRAIG M. McKEE, District Judge.
A hearing was convened in this matter on October 7, 2014, on a Petition filed September 5, 2014 [Doc. 4] seeking revocation of the defendant's supervised release for alleged violations of the terms and conditions of his sentence while under supervision. This matter was referred to the Magistrate Judge for hearing pursuant to 18 U.S.C. 3401(i) and the Entry and Order issued by The Hon. William T. Lawrence, U.S. District Judge, on September 9, 2014. [Doc. 6]
The Government appeared by Bradley Blackington, Assistant United States Attorney; the defendant, David Garrow, appeared in person (in custody) and by counsel, David Mejia. The Court previously had conducted an initial appearance in this matter on September 24, 2014, to advise the defendant of his rights. The matter of a preliminary hearing was deferred at that time. Based on these proceedings, the necessity of a preliminary hearing is moot because of the parties' partial agreement set forth in this report.
The Government and defense counsel advised the Court that the parties had reached an agreement on admission of certain violations, but each reserved argument with respect to a recommended sentence. The Court advised the defendant of his constitutional rights and the burden of proof with respect to the alleged violations. The defendant reviewed with counsel in open court the specific allegations contained in the Petition filed September 5, 2014. Defendant further was advised that the Court was not a party to any agreement with the Government with regard to admission of the violations or the recommended sentence. The defendant advised the Court that his admission was voluntary and not made under any coercion or promise other than the statement by counsel summarizing the agreement. Finally, the defendant was advised that the Magistrate Judge's powers were limited to making recommendations to the District Judge and that the District Judge could accept or reject the recommendation in his discretion.
The defendant was sworn and testified under oath that violations 2 and 3 were true. The defendant was not asked any question regarding violation 1 because the parties' agreement contemplated dismissal of that alleged violation. The Court found that the defendant made a knowing, intelligent and voluntary admission of violations 2 and 3 of the Petition.
The Court heard the testimony of U.S. Probation Officer Brian Bowers and Heather Garrow, the defendant's daughter. In addition, the defendant submitted a handwritten two-page statement together with brief letters from prospective employers or contractors, all of which was marked and admitted as Exhibit 1 without objection by the Government. Argument was then heard on the matter of appropriate disposition of this matter.
The undersigned recommends to the Court adoption of the following Findings of Fact and Conclusions of Law:
Findings of Fact
1. The defendant, David Garrow, was sentenced on January 23, 2004, upon his conviction for Production of Child Pornography. The original sentence included 121 months imprisonment and three years of supervised release.
2. The defendant was under supervision of the U.S. Probation Office effective March 26, 2012, and at the time the Petition was filed seeking revocation of supervised release on September 5, 2014, was still under supervision.
4. While under supervision, the defendant violated the terms of the supervised release as follows:
a. The defendant possessed or used a computer or other related hardware or software during supervised release without the consent or approval of the Probation Officer.
b. The defendant possessed pornography, erotica or nude images during the period of his supervised release. Forensic examination revealed a substantial number of such images on the defendant's mobile telephone, all of which appeared to be ...