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United States v. Justice

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

December 9, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
BRIAN SCOTT JUSTICE, Defendant.

          REPORT AND RECOMMENDATION

          Mark J. Dinsmore United States Magistrate Judge.

         On November 4, and December 3, 2019, the Court held hearings on the Petition for Warrant or Summons for Offender Under Supervision filed on August 29, 2019. [Dkt. 4.] Defendant Justice appeared in person with his appointed counsel Sam Ansell and Julie Treida. The government appeared by Steve DeBrota, Assistant United States Attorney. U.S. Parole and Probation appeared by Officer Felecia White.

         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 Justice of his rights and ensured he had a copy of the Petition. Defendant Justice orally waived his right to a preliminary hearing.

         2. After being placed under oath, Defendant Justice admitted violation numbers 1, 2, 3, and 4 as set forth in the Petition. [Dkt. 4.]

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

Violation Number

Nature of Noncompliance

1

The defendant shall not commit another federal, state or local crime.”

On May 16, 2019, a search was conducted on the offender in which multiple electronic devices were confiscated as evidence. The devices were sent for forensic analysis and at least one device was found` to contain nude images of prepubescent minors. The possession of these images is in violation of 18 U.S.C. Section 2252.

2

The defendant shall no[t] possess any 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 May 16, 2019, a search conducted at the offender's residence produced electronic devices that contained nude images of prepubescent minors.

3

The defendant shall abide by the Computer Restriction and Monitoring Program of the U.S. Probation Office, which includes his consent 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 will warn other occupants/or uses of the existence of the monitoring software placed on his computer(s).”

A search conducted on May 16, 2019, produced at least two laptop computers that were not reported to the U.S. Probation office and were not being monitored.

4

The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of a controlled substance.”

On May 16, 2019, the offender provided a urine sample that yielded positive for marijuana.

         4. The Court finds that:

(a) The highest grade of violation is a Grade B violation.
(b) Defendant's criminal history category is I.
(c) The range of imprisonment applicable upon revocation of supervised release, therefore, is 4 to 10 months' imprisonment.

         5. The parties jointly recommended a sentence of ten (10) months imprisonment with lifetime supervision to follow. Upon release, the Government will withhold prosecution for the images found on Defendant's computer if no further crimes are committed by Defendant. Defendant agreed to forfeiture of the computer seized at the time of Defendant's arrest.

         The Magistrate Judge, having considered the factors in 18 U.S.C. § 3553(a), and as more fully set forth on the record, finds that the Defendant violated the conditions set forth in the Petition, and recommends that Defendant's supervised release be revoked, and that Defendant be sentenced to the custody of the Attorney General or his designee for a period of ten (10) months, with lifetime supervision to follow. In addition to the mandatory conditions of supervision, the following conditions of supervised release, as set forth in the Revocation Parameters Worksheet [Dkt. 4-3], will be imposed:

1. You shall report to the probation office in the judicial district to which you are released within 72 hours of release from the ...

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