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United States v. Nelson

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

April 18, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MARK NELSON, Defendant.

          REPORT AND RECOMMENDATION

          Tim A. Baker United States Magistrate Judge

         On April 11, 2019, the Court held a hearing on the Petition for Warrant or Summons for Offender Under Supervision filed on February 22, 2019. Defendant Nelson appeared in person with his appointed counsel Dominic Martin. The government appeared by Michelle Brady, Assistant United States Attorney. U.S. Parole and Probation appeared by Officer Angela Smith.

         The Court conducted the following procedures in accordance with Fed. R. Crim. P. 32.1(a)(1) and 18 U.S.C. § 3583:

         1. The Court advised Defendant Nelson of his rights and provided him with a copy of the petition. Defendant Nelson orally waived his right to a preliminary hearing.

         2. After being placed under oath, Defendant Nelson admitted violation numbers 1, 2, 3, and 4. [Docket No. 363.]

         3. The allegations to which Defendant admitted, as fully set forth in the petition, are:

Violation Number Nature of Noncompliance
1 “You shall not use or possess any controlled substances prohibited by applicable state or federal law.” On February 19, 2019, the offender reported to the probation office and submitted a urine specimen which yielded positive for opiates. He admitted consuming Vicodin, which is not prescribed to him, on February 17, 2019.
2 “You shall submit to substance abuse testing. You shall not attempt to obstruct or tamper with the testing methods.” Mr. Nelson reported to the office following his violation court proceeding on February 14, 2019, to submit a urine specimen but could not provide a sample. He was directed to report by 4 pm on February 15, 2019, but failed to report or contact this officer with justification for missing his urine test. On February 19, 2019, he admitted he took an Uber to work but did not take the Uber downtown to provide his urine screen after work.
3 “You shall not use or possess alcohol.” Mr. Nelson reported for Moral Reconation Therapy (MRT) session at the probation office on February 19, 2019. The facilitator in charge of the program smelled alcohol on him and gave him a portable breath test. The test registered positive for alcohol. The MRT facilitator further advised he had smelled alcohol on the offender the week before but did not test him. Mr. Nelson admitted he has been consuming alcohol to deal with some relationship troubles.
4 “You shall participate in a cognitive behavioral program, such as Moral Reconation Therapy (MRT), at the direction of the probation officer and abide by the rules of the program.” Mr. Nelson reported for his second to last Moral Reconation Therapy (MRT) session at the probation office on February 19, 2019, and tested positive for alcohol. Due to his noncompliance, and his excessive history of non-compliance in this program. He was terminated from that program indefinitely.

         4. The parties stipulated that:

(a) The highest grade of violation is a Grade B ...

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