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United States v. McDougall

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

March 11, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
PAUL T. MCDOUGALL, III, 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 Petitions for Warrant or Summons for Offender Under Supervision (“Petition”) filed on January 29, and February 22, 2019 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 March 6, 2019, in accordance with Rule 32.1 of the Federal Rules of Criminal Procedure.[1]

         On March 6, 2019, defendant Paul T. McDougall, III appeared in person with his counsel, Mario Garcia. The government appeared by Cynthia Ridgeway, 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. McDougall 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. McDougall 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. McDougall and his counsel, who informed the court they had reviewed the Petition and that Mr. McDougall understood the violations alleged. Mr. McDougall waived further reading of the Petition. The court summarized the Petition.

         3. The court advised Mr. McDougall 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. McDougall was advised of the rights he would have at a preliminary hearing. Mr. McDougall stated that he wished to waive his right to a preliminary hearing, stipulating that there is a basis in fact to hold him on the specifications of violation.

         4. The court then advised Mr. McDougall 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. Mr. McDougall, by counsel, stipulated that he committed Violation Numbers 1, 2, 3, 4, and 5 set forth in the Petition as follows:

Violation Number Nature of Noncompliance
1 “The defendant shall refrain from unlawful use of a controlled substance.” On December 19, 2018, and January 16, 2019, the offender submitted urine samples which tested positive for amphetamine. The samples were sent to the Alere Laboratory for further testing and were confirmed positive for amphetamine and methamphetamine. Subsequently, Mr. McDougall submitted a sample on January 22, 2019, which tested positive for amphetamine.
As previously reported to the Court, on October 30, December 14, and 18, 2018, Mr. McDougall submitted urine samples which tested positive for amphetamine. He admitted to the use of methamphetamine up to twice weekly since his commencement of supervised release.
2 “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.”
As previously reported to the Court, Mr. McDougall failed to report for urinalysis testing at the Indianapolis Comprehensive Treatment Center (ICTC) three times in November 2018, as well as on December 4, 2018. He failed to report for testing at the probation office on December 12, and 13, 2018. He has since failed to report for urinalysis testing at ICTC on December 27, 2018, and January 9, 2019. He informed the probation officer he avoided drug tests due to his continued use of methamphetamine since his release from prison.
3The defendant shall refrain from unlawful use of a controlled substance.”
On February 12, and 15, 2019, Mr. McDougall submitted urine samples which tested positive for amphetamine. On February 15, 2019, he informed the probation officer he continued to consume methamphetamine, but claimed he last used the substance on February 9, 2019. To date, he has not submitted a negative sample since beginning his term of supervised release.
4You 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.” The offender failed to report for urinalysis testing at the Indianapolis Comprehensive Treatment Center on February 8, 2019.
5" You shall participate in a program of treatment for sexual disorders, including periodic polygraph examinations, as directed by the probation officer. The treatment provider should determine the type and timing of such polygraph examinations. The court authorizes the release of the presentence report and available psychological evaluations to the treatment provider, as approved by the probation officer."
Mr. McDougall began participation in the psychosexual treatment program at the Indianapolis Counseling Center on December 20, 2018. He is required to report once weekly for group treatment sessions. However, he failed to report on December 31, 2018, February 4, and 18, 2019. On February 19, 2019, he was unsuccessfully discharged from treatment due to failure to comply with the agency's attendance policy, as well as for continued drug
6. The court placed Mr. McDougall under oath and directly inquired of Mr. McDougall whether he admitted violations 1, 2, 3, 4, and 5 of his supervised release set forth above. Mr. ...

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