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United States v. Nelson

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

November 29, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MARK NELSON, 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 Sarah Evans Barker, directing the duty magistrate judge to conduct a hearing on the Petition for Warrant or Summons for Offender Under Supervision filed on October 19, 2017, 2017, and a supplemental petition filed on November 7, 2017 (collectively, “Petition”) 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 November 15, 2017, in accordance with Rule 32.1 of the Federal Rules of Criminal Procedure.[1]

         On November 15, 2017, defendant Mark Nelson appeared in person with his appointed counsel, William Dazey. The government appeared by Michelle Brady, Assistant United States Attorney. The United States Probation Office (“USPO”) appeared by Officer Shelly McKee, 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. Nelson 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. Nelson questions to ensure that he had the ability to understand the proceedings and his rights.

         2. A copy of the Petition had been provided to Mr. Nelson and his counsel, who informed the court they had reviewed the Petition and that Mr. Nelson understood the violations alleged. Mr. Nelson waived further reading of the Petition. The court summarized the allegations of the Petition.

         3. The court advised Mr. Nelson 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. Nelson was advised of the rights he would have at a preliminary hearing. Mr. Nelson stated that he wished to waive his right to a preliminary hearing.

         4. Mr. Nelson 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. Nelson orally waived the right to a preliminary hearing in open court, which the court accepted.

         5. The court advised Mr. Nelson 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. The court asked Mr. Nelson questions to ensure he was making his decision to admit the violations knowingly and voluntarily.

         6. Mr. Nelson, by counsel, stipulated that he committed Violation Numbers 1, 2, 3, 4, 5, 6, 7, and 8 set forth in the Petition as follows:

Violation Number

Nature of Noncompliance

1

You shall reside in a residential reentry center for the first 4 months of supervised release. You shall abide by the rules and regulations of the facility.”

As previously reported to the Court, since Mr. Nelson arrived at the residential reentry center (RRC) on December 21, 2016, he failed to comply with all facility rules and regulations. On January 4, 2017, Mr. Nelson returned to the RRC 27 minutes late. On January 5, 2017, Mr. Nelson returned to the RRC one hour and 20 minutes late. Also on January 5, 2017, an incident report was prepared when Mr. Nelson walked around a RRC staff member and through the doors leading into the administrative hallway without permission. Staff had to instruct Mr. Nelson several times before he stopped and returned to the lobby. On January 15, 2017, Mr. Nelson failed to provide verification upon returning from an approved pass. On February 2, 2017, Mr. Nelson tested positive for alcohol. On February 7, 2017, Mr. Nelson returned to the RRC one hour late, and tested positive for alcohol. On February 7, 2017, it was discovered by RRC staff that Mr. Nelson's job assignment had ended on February 1, 2017; however, on February 2, 3, 4, and 6, 2017, Mr. Nelson continued to sign out of the RRC for employment. As such, his whereabouts were unaccounted for during that time. In addition, on March 6, 2017, at 2:58 a.m., this officer received an email regarding a law enforcement inquiry on the offender. After further investigation, it was determined he had requested a pass from the RRC on March 5, 2017, at 7:38 p.m. in order to go to the emergency room due to stomach pains. After returning to the RRC, which was not until 3:48 a.m. on March 6, 2017, the offender failed to provide any hospital discharge documentation. After further investigation and questioning by the RRC staff, the offender finally admitted he rode to the hospital with a female acquaintance and remained in the parking lot where they had sex. This would be consistent with the time-frame when the law enforcement inquiry was initiated at 2:58 a.m. on March 6, 2017.

Mr. Nelson was employed while at the RRC; however, he had failed to pay subsistence as required.

2

You shall notify the probation officer within 72 hours of being arrested, charged, or questioned by a law enforcement officer.”

As previously reported to the Court, Mr. Nelson failed to notify the probation officer regarding law enforcement contact on March 6, 2017.

3

The defendant shall not commit another federal, state or local crime.”

On July 11, 2017, at 1:43 a.m., Mr. Nelson received a citation by the Indiana State Police for the offense of count one, driving while suspended (prior within 10 years), and count two, none or improper license plate light/tail lights. It should be noted that as of this date, there has been no official filing of this case in Marion County Superior Court.

4

You shall submit to substance abuse testing to determine if you have used a prohibited substance or to determine compliance with substance abuse treatment. Testing may include no more than 8 drug tests per month. You shall not attempt to obstruct or tamper with the testing methods.”

Mr. Nelson failed to report for scheduled drug screens on June 9, 10, 11, 12, and 19, July 6, August 10, September 2, 3, 4, and 11, and October 13, 14, 15, and 16, 2017.

5

You shall make a good faith effort to follow instructions of the probation officer necessary to ensure compliance with the conditions of supervision.”

On October 12, 2017, Mr. Nelson was verbally instructed by this officer to report to the probation office on Monday, October 16, 2017, at 11:00 a.m. Mr. Nelson failed to report and did not contact this officer as to why he would not be able to report as instructed.

6

You shall participate in a cognitive behavioral program, such as Moral Reconation Therapy (MRT), at the direction of the probation officer and abide by the rules of the program.”

On April 4, 2017, Mr. Nelson attended his first MRT class. On May 9, and 30, 2017, Mr. Nelson failed to report for the class citing child care issues. On July 18, August 1, and 8, 2017, Mr. Nelson arrived late to class. On August 29, and September 5, 2017, Mr. Nelson failed to attend his scheduled class. On September 12, 2017, Mr. Nelson arrived approximately 30 minutes late for class. Mr. Nelson was informed he would be removed from MRT class effective September 12, 2017, for noncompliance and the Court would be notified accordingly.

7

The defendant shall refrain from any unlawful use of a controlled substance.”

On October 17, 2017, Mr. Nelson provided a urine specimen which tested positive for cocaine. He admitted using cocaine. October 23, and 25, 2017, Mr. Nelson provided urine specimens which confirmed positive for cocaine by Alere Laboratory.

8

You shall submit to substance abuse testing to determine if you have used a prohibited substance or to determine compliance with substance abuse treatment. Testing may include no more than 8 drug tests per month. You shall not attempt to obstruct or tamper with the testing methods.”

Mr. Nelson failed to report for scheduled drug screens on October 24, 29, 30, and November 6, 2017.

         7. The court placed Mr. Nelson under oath and directly inquired of Mr. Nelson whether he admitted violations 1, 2, 3, 4, 5, 6, 7, and 8 of his supervised release set forth above. Mr. Nelson admitted the violations as set forth above.

         8. The parties and the USPO further stipulated that:

(a) The highest grade of Violation (Violation 7) is a Grade B violation (U.S.S.G. ...

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