United States v. Ditchley

          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 (“Petition”) filed on November 30, 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 April 5, 2019, in accordance with Rule 32.1 of the Federal Rules of Criminal Procedure.^[1]

         On April 5, 2019, defendant Brandon Ditchley appeared in person with his appointed counsel, Dominic Martin. The government appeared by Abhishek Kambli, Assistant United States Attorney. The United States Probation Office (“USPO”) appeared by Officer Tim Hardy, 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. Ditchley 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. Ditchley 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. Ditchley and his counsel, who informed the court they had reviewed the Petition and that Mr. Ditchley understood the violations alleged. Mr. Ditchley waived reading of the Petition. The court summarized the allegations in the Petition.

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

         4. The court advised Mr. Ditchley 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. Ditchley advised the court that he wished to give up his right to a hearing and to admit the violations. The court asked him questions to confirm that his decision was knowing and voluntary.

         6. Mr. Ditchley, by counsel, stipulated that he committed Violation Numbers 1 and 2 set forth in the Petition as follows:

         Violation Number Nature of Noncompliance

1 “You shall report to the probation officer in a manner and frequency directed by the court or probation officer.”

On November 15, 2018, Brandon Ditchley failed to report for a scheduled office visit. His whereabouts is unknown.

2 "Your probation officer must approve where you live. If you plan to move you must tell the probation officer at least 72 hours before you move. If you have to move unexpectedly, you must notify your probation officer within 72 hours of when you move. Your probation officer needs to know where you are living so they can reach you. You must tell your probation officer where you work. If something with your job changes, (such as losing a job, getting a new job, or a change in what you do at work), you must tell your probation officer."

On August 10, 2018, this officer attempted to visit the offender at his reported residence located at 125 Albany Street. The residents at the location reported the offender did not live there. On the same date, this officer attempted to locate the offender at his mother's residence located at 925 Albany Street. No. contact was made with the offender.

On August 17, 2018, this officer received a law enforcement alert indicating he had contact with the Indianapolis Metropolitan Police Department (IMPD). The officer left a voice mail message indicating he stopped the offender for a jay waking infraction. According to the message, the offender gave the officer his brothers name and identifiers. His brother had an active warrant for a driving offense, and according to the officer, Mr. Ditchley "came clean," and told him his true identity. Mr. Ditchley told the police officer he lied because he thought he had a federal warrant for a probation violation.

On August 22, 2018, this officer spoke with Mr. Ditchley's ex-girlfriend and mother of his child, Kimberly Hargrave, to ascertain his whereabouts. She reported she saw him two days prior and that he was homeless. Ms. Hargrave was asked to have the offender contact the probation office immediately should she come in contact with him.

On August 23, 2018, this officer contact the offender's mother, Darlene Evans, who reported Mr. Ditchley had not lived at her residence since age 17. She was unaware of his whereabouts, and reported he was homeless and that he preferred to live that way. Ms. Evans further stated the offender occasionally comes by her ...