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United States v. Dog

United States District Court, Ninth Circuit

September 12, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
ERICK THOMAS RED DOG, Defendant.

FINDINGS AND RECOMMENDATION TO REVOKE DEFENDANT'S SUPERVISED RELEASE

KEITH STRONG, Magistrate Judge.

I. Synopsis

Mr. Red Dog was accused of violating his conditions of supervised release by consuming methamphetamine, failing to notify his probation officer of contact with law enforcement, and consuming alcohol. Mr. Red Dog admitted to the second and third violations, and the government proved the first at a revocation hearing. Mr. Red Dog should be incarcerated for 12 months, with no supervised release to follow.

II. Status

Mr. Red Dog pleaded guilty in 2009 to being a Felon in Possession of a Firearm. CD 26. He was sentenced to 33 months imprisonment, with two years supervised release to follow. CD 35. Mr. Red Dog had his supervised release revoked in July 2012 for consuming alcohol and failing to participate in substance abuse treatment. CD 57. He was committed to prison for 11 months, with 13 months supervised release to follow. CD 57. Mr. Red Dog began his current term of supervised release on June 17, 2013. CD 59.

Mr. Red Dog had an earlier felony conviction: Assault with a Dangerous Weapon, in 2002. CD 59. His sentence for that offense included supervised release, which was revoked twice for failure to comply with conditions. CD 59.

Petition

The United States Probation Office filed a petition on July 31, 2013, asking the court to revoke Mr. Red Dog's supervised release. CD 59. The petition alleged that Mr. Red Dog violated three conditions of his supervised release. It alleged he 1) violated Standard Condition #7 by consuming methamphetamine, for which he tested positive on June 24, 2013; 2) violated Standard Condition #11 by failing to notify his probation officer within 72 hours that he was questioned by law enforcement twice on July 20, 2013; and 3) violated Special Condition #3 by consuming alcohol on July 20, when a breath test measured his blood alcohol concentration at.319. CD 59. Based on the petition, the undersigned issued a warrant for Mr. Red Dog's arrest. CD 60.

Initial appearance

Mr. Red Dog was arrested on August 4, 2013. He made an initial appearance before the undersigned on August 8. He was accompanied by Federal Defender David Ness, who was appointed to represent Mr. Red Dog. Assistant United States Attorney Ryan Weldon represented the United States. Mr. Red Dog said he had read and understood the petition. Mr. Weldon stated that Mr. Red Dog could be imprisoned for up to 24 months if his supervised release is revoked. Mr. Ness agreed. Mr. Red Dog waived his right to a preliminary hearing, and said he would like to proceed immediately to a revocation hearing.

The undersigned described the Findings and Recommendations procedure, explaining that the undersigned would recommend a disposition to United States District Judge Dana L. Christensen. Judge Christensen will decide whether to revoke Mr. Red Dog's supervised release and, if so, what sanction to impose. Mr. Red Dog was informed of his right to object to the recommendation, and to request another hearing from Judge Christensen. The revocation hearing commenced. CD 62.

Revocation hearing

Mr. Ness said that Mr. Red Dog was prepared to admit Violations 2 and 3, but disputed Violation 1, regarding methamphetamine consumption. Mr. Ness said that Mr. Red Dog acknowledges testing positive for methamphetamine, but maintains that he consumed it unintentionally when he smoked a cigarette that, unbeknownst to him, was laced with the drug. Mr. Red Dog's probation officer was unavailable to testify. Because the alleged violation is significant and likely to have an impact on the disposition, the undersigned continued the hearing a week so the probation officer could testify.

The parties reconvened on August 20, 2013. Mr. Red Dog was present with Mr. Ness; Mr. Weldon represented the United States. Mr. Red Dog maintained his position that his ...


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