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United States v. Davis

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

November 9, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL DAVIS, 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 April 9, 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 October 24, 2018, in accordance with Rule 32.1 of the Federal Rules of Criminal Procedure.[1]

         On October 24, 2018, defendant Michael Davis appeared in person with his appointed counsel, Loren Collins. The government appeared by Jeff Preston, Assistant United States Attorney. The United States Probation Office (“USPO”) appeared by Officer Tasha Taylor, 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. Davis 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. Davis 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. Davis and his counsel, who informed the court they had reviewed the Petition and that Mr. Davis understood the violations alleged. Mr. Davis waived further reading of the Petition.

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

         4. Mr. Davis 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.

         5. The court advised Mr. Davis 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. Davis, by counsel, stipulated that he committed Violation Numbers 1, 2, and 3 set forth in the Petition as follows:

         Violation

         Number Nature of Noncompliance

1 “The defendant shall not commit another federal, state, or local crime.”
On April 4, 2018, Mr. Davis was arrested in Marion County, Indiana, and was charged with Possession of Child Pornography, a felony offense. The charge is pending in the Marion County Superior Court under case number 49G02-1804-MC-011083.
According to the Probable Cause Affidavit, on March 6, 2018, a detective from the Indianapolis, Indiana, Metropolitan Police Department (IMPD) was provided a cellular telephone and other documentation belonging to the offender. The phone contained an image of child pornography. A search warrant was obtained for the device, and other images of child pornography were located. An investigation continued, and a second search warrant was obtained for the offender's person and any devices on his possession. On April 4, 2018, detectives from IMPD made contact with Mr. Davis. He was in possession of a second cell phone. A forensic triage search was conducted on the phone and images of child pornography were found, including pictures of prepubescent girls in various stages of undress with exposed genitalia.
2 “The defendant shall not possess/use a computer unless he consents, at the direction of the probation officer, to having installed on his computer(s), any hardware or software systems to monitor his computer use. Monitoring will occur on a random and /or regular basis. The defendant shall advise the probation office of all computers available to him for use. Any computer the defendant is found to have used and has not disclosed shall be considered contraband and may be confiscated by the probation officer. The defendant will warn other occupants of the existence of the monitoring software placed on his computer(s) and will abide by the rules of the Computer Restriction and Monitoring Program of the probation officer.”
3The defendant shall not possess any obscenity, pornography, erotica, or nude images. Any such material found in the defendant's possession shall be considered contraband and may be confiscated by the probation officer.”
On March 6, 2018, a cellular telephone was turned over to an IMPD detective by the offender's former landlord. The offender had been evicted from the residence and left behind property, including the telephone. The recovered phone was found to be an Internet capable device and had child pornographic images on it. A second Internet-enabled cellular telephone was found on his person on April 4, 2018, which also contained images of child pornography. Mr. Davis had not reported the possession of either device to the probation officer, and the phone were unmonitored.
7. The Court placed Mr. Davis under oath and directly inquired of Mr. Davis whether he admitted violations 1, 2, and 3 of his supervised release set forth above. Mr. Davis ...

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