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United States v. Wells

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

November 9, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DEREK D. WELLS, Defendant.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          DEBRA MCVICKER, LYNCH UNITED STATES MAGISTRATE JUDGE.

         This matter is before the undersigned according to the Order entered by the Honorable Tanya Walton Pratt, directing the duty magistrate judge to conduct a hearing on the Petition for Warrant or Summons for Offender Under Supervision (“Petition”) filed on October 20, 2017 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 October 27, 2017, in accordance with Rule 32.1 of the Federal Rules of Criminal Procedure.[1]

         On October 27, 2017, defendant Derek D. Wells appeared in person with his appointed counsel, William Dazey. The government appeared by Cynthia Ridgeway, Assistant United States Attorney. The United States Probation Office (“USPO”) appeared by Officer Chris Dougherty, 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. Wells 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. Wells 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. Wells and his counsel, who informed the court they had reviewed the Petition and that Mr. Coleman understood the violations alleged. Mr. Wells waived further reading of the Petition.
3. The court advised Mr. Wells 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. Wells was advised of the rights he would have at a preliminary hearing. Mr. Wells stated that he wished to waive his right to a preliminary hearing.
4. Mr. Wells 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. Wells orally waived the right to a preliminary hearing in open court, which waiver the court accepted.
5. The court advised Mr. Wells 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. Wells, by counsel, stipulated that he committed Violation Number 1 set forth in the Petition as follows:
Violation Number
Nature of Noncompliance
1 “The defendant shall not unlawfully possess a controlled substance.
The defendant shall refrain from any unlawful use of a controlled substance”

         The offender began testing positive for marijuana on his first day of supervised release, August 15, 2017, claiming he smoked marijuana daily while incarcerated. The offender's first two screens which were collected in this district, on August 29, 2017, and September 8, 2017, both tested positive for marijuana. On September 14, 2017, the offender submitted a negative screen and he was advised that the marijuana was out of his system and all future screens should be negative. The offender submitted a third positive screen for marijuana on September 23, 2017.

         7. Mr. Wells contested or wished to provide explanation as to Violations Number 2 and 3 of the Petition. The hearing therefore proceeded. Mr. Wells was sworn and presented testimony upon direct examination of his counsel and counsel for the United States cross-examined him. USPO Chris Dougherty was called as a witness by the United States, was sworn, and provided testimony upon direct and cross examination.

         8. On the basis of the evidence presented, the court found Mr. Wells guilty of Violation Number 1 above (which he admitted in his testimony), not guilty of Violation Number 2, and guilty of Violation Number 3, which is set forth in the Petition as follows:

3“The defendant shall reside in a residential reentry center for a term of 180 days. You shall abide by the rules and ...

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