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United States v. Harsley

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

June 5, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MARK HARSLEY, 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 William T. Lawrence, 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 the supplemental petition dated May 29, 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, and May 29, 2018, in accordance with Rule 32.1 of the Federal Rules of Criminal Procedure.[1]

         On February 28, and May 29, 2018, defendant Mark Harsley appeared in person with his appointed counsel, Joe 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. Harsley of his right to remain silent, his right to counsel, and his right to be advised of the charges against him.
2. A copy of the Petition was provided to Mr. Harsley and his counsel, who informed the court they had reviewed the Petition and that Mr. Harsley understood the violations alleged. Mr. Harsley waived further reading of the Petition.
3. The court advised Mr. Harsley 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. Harsley was advised of the rights he would have at a preliminary hearing. Mr. Harsley stated that he wished to waive his right to a preliminary hearing.
4. The court advised Mr. Harsley 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.
5. On February 28, 2018, Mr. Harsley, by counsel, stipulated that he committed Violation Numbers 1, 4, 5, and 6 set forth in the Petition as follows:

Violation Number

Nature of Noncompliance

1

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

On January 16, 2018, Mr. Harsley submitted a urine sample which was confirmed positive for marijuana. When confronted about the positive test, he denies using marijuana.

On July 28, 2017, Mr. Harsley submitted a urine sample which returned positive for marijuana. The Court was advised of this positive urinalysis, and Mr. Harsley's conditions of supervision were modified to include substance abuse treatment.

4

You shall maintain lawful full-time employment unless excused by the probation officer for schooling, vocational training, or other reasons that prevent lawful employment.”

On or about January 29, 2018, Mr. Harsley was terminated from his employment with the Indianapolis Recorder for job abandonment.

5

The defendant shall pay the total criminal monetary penalties in accordance with the schedule of payments set forth in this judgment.”

Mr. Harsley has failed to make a payment towards his $3, 984.00 fine.

6

You shall pay the costs associated with the following imposed conditions of supervised release, to the extent you are financially able to pay: substance abuse testing, location monitoring and anger management.”

Mr. Harsley has failed to make a payment towards his location monitoring fees and has an outstanding balance of $762.30.

         6. At the February 28, 2018 hearing, the court asked Mr. Harsley questions to ensure that his decision to waive hearing and admit the specified violations was knowing and intentional. The court then placed Mr. Harsley under oath and directly inquired of Mr. Harsley whether he admitted Violation Numbers 1, 4, 5, and 6 of his supervised release set forth above. Mr. Harsley admitted the violations as set forth above.

         7. The Government orally moved to dismiss Violation Numbers 2 and 3 and the Court granted the same.

         8. The court held the disposition of the admitted violations in abeyance until the hearing scheduled for May 29, 2018. The supplemental petition, alleging Violation Number 7, was filed before the May 29 hearing, which is set forth as follows:

7 “The defendant shall refrain from any unlawful use of a controlled substance.”
On May 22, 2018, Mr. Harsley submitted a urine sample which confirmed positive for marijuana. He denied use. The sample confirmed positive with Alere National Laboratory on May 27, 2018.

         9. On May 29, 2018, Mr. Harsley, by counsel, denied Violation Number 7. The court held a hearing on Violation 7 at which testimony and documentary evidence was presented. The court found by a preponderance ...


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