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United States v. Bell

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

March 2, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL BELL, 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 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 February 6, 2018 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 February 28, 2018, in accordance with Rule 32.1 of the Federal Rules of Criminal Procedure.[1]

         On February 28, 2018, defendant Michael Bell appeared in person with his appointed counsel, Joseph Cleary. The government appeared by Brad Blackington, Assistant United States Attorney. The United States Probation Office (“USPO”) appeared by Officer Brent Witter, 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. Bell 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. Bell 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. Bell and his counsel, who informed the court they had reviewed the Petition and that Mr. Bell understood the violations alleged. Mr. Bell waived further reading of the Petition.

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

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

         5. The court advised Mr. Bell 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. Bell, 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 neither possess nor have under his control and matter that is pornographic or that depicts or describes sexually explicit conduct as defined by Title 18 U.S.C. §2256, or any matter depicting or describing sexual activity involving a person or persons under the age of 18.” On January 24, 2018, Mr. Bell was in possession of approximately 43 pornographic images on his cellular phone.

         7. The court asked Mr. Bell a series of questions to ensure that his decision to admit the violations and to give up his right to hearing was knowing and voluntary.

         8. The Court placed Mr. Bell under oath and directly inquired of Mr. Bell whether he admitted violation 1 of his supervised release set forth above. Mr. Bell admitted the violation as set forth above.

         9. The parties and the USPO further stipulated that:

(a) The highest grade of Violation (Violation 1) is a Grade C violation (U.S.S.G. ...

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