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United States v. Marvin

United States District Court, N.D. Indiana, Hammond Division

May 20, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
JASON MARVIN, Defendant.

OPINION AND ORDER

RUDY LOZANO, District Judge.

This matter is before the Court on the Motion for Modification of Conditions of Probation, filed by Defendant, Jason Marvin, through counsel, on January 21, 2015 (DE #54). For the reasons set forth below, the motion (DE #54) is GRANTED IN PART and DENIED IN PART. THE TERMS OF CONDITION OF PROBATION SHALL BE MODIFIED AS SET FORTH IN THIS ORDER.

BACKGROUND

Marvin pled guilty to both possessing child pornography and possessing material involving sexual exploitation of children. He was sentenced to 168 months of imprisonment on one count, and 120 months imprisonment on the other count, with the terms to run concurrently. He was also sentenced to five years of supervised release on one count, and three years of supervised release on the other count, to run concurrently.

After his release, Marvin violated the terms of his supervised release. As a result, on October 18, 2012, Marvin was sentenced to 3 months of incarceration to be followed by 57 months of supervised release.

Marvin again violated the conditions of his supervised release and on January 8, 2015, this Court imposed a 6-month term of imprisonment to be followed by a 47-month term of supervised release. This Court incorporated the conditions of supervised release imposed previously, and provided the parties with an opportunity to provide written objections within 10 days. The Defendant has filed the instant motion pursuant to 18 U.S.C. §3583(e), and this Court has jurisdiction to modify his probation conditions. 18 U.S.C. § 3563(e); Fed. R. Crim. P. 32.1(c). Furthermore, because the instant motion does not require resolution of any disputed issue of material fact and Defendant has waived his right to a hearing, no hearing is necessary.

DISCUSSION

Standard Condition on Travel Restriction

Condition: The defendant shall not leave the judicial district without the permission of the Court or probation officer.

The Defendant argues that this condition imposes unnecessary restrictions on him because he lives in a location where areas directly surrounding his home are located in the Southern District of Indiana. In light of this circumstance, the Court feels that USDC IN/ND case 2:99-cr-00148-RL-PRC document 56 filed 05/20/15 page 3 of 12 the Defendant's proposed modification is appropriate, as it does not significantly hinder the ability of the probation department to monitor his whereabouts. The following modification is GRANTED:

Revised Condition: The defendant shall not leave the state of Indiana without the permission of the Court or probation officer.

Standard Condition Regarding Answering Inquiries

Condition: The defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer.

The Seventh Circuit, in United States v. Thompson, expressed concern that this provision "essentially asks for a waiver of the right not to be forced to incriminate oneself..." U.S. v. Thompson, 777 F.3d 368, 378 (7th Cir. 2015); see also U.S. v. Kappes, 782 F.3d 828, 850 (7th Cir. 2015). The Defendant has proposed a modification which the Court finds satisfies the concerns expressed in Thompson, and the Government does not object. Accordingly, the following modification is GRANTED:

Revised Condition: The defendant shall answer truthfully inquiries by the probation officer and instructions of the probation officer regarding compliance with the conditions of the defendant's supervised release.

Standard Condition Regarding Supporting Dependants

Condition: The defendant shall support her dependents and meet other family responsibilities.

Because Marvin has no dependents, this condition is REMOVED.

Standard Condition Regarding Frequenting Places Where Controlled ...


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