United States District Court, D. Montana, Butte Division
W. MOLLOY, DISTRICT JUDGE.
October 12, 2017, United States Magistrate Judge Jeremiah
Lynch entered Findings and Recommendation with respect to the
disposition of the revocation proceedings stemming from the
September 18, 2017 amended petition for revocation of
Defendant Jamie Brock Grubb's supervised release. (Docs.
100, 108, 111.) Based upon a preponderance of the evidence
presented at the revocation hearing, Judge Lynch recommends
supervised release be revoked. Judge Lynch further recommends
this Court sentence Defendant to 3 months custody with credit
for time served and 80 months of supervised release. The
government filed objections on October 17, 2017. Grubb has
not filed objections.
to object waives the right to review. Fed. R. Crim. P.
59(b)(2). But consistent with the Court's "full
authority" to review the Findings and Recommendation
under any standard it deems appropriate, Thomas v.
Am, 474 U.S. 140, 154 (1958), the Court reviews for
clear error. Clear error exists if the Court is left with a
"definite and firm conviction that a mistake has been
committed." United States v. Syrax, 235 F.3d
422, 427 (9th Cir. 2000). The Court reviews de novo
those specific findings or recommendations objected to. 28
U.S.C. § 636(b)(1).
on a preponderance of the evidence, Judge Lynch concluded
Grubb violated the conditions of his release in the manner
set forth in Allegations Number 1, 2, 3, 7, 8, and 10 of the
amended petition. (Doc. 111 at 2-3.) He concluded the
government did not sustain its burden in establishing the
remaining alleged violations. (Id. at 3.) The
government objects, arguing Grubb should be found in
violation of all 11 allegations contained in the amended
petition. (Doc. 115 at 1.)
government first objects to Judge Lynch's finding that
the preponderance of the evidence did not show Grubb violated
Special Condition 6 (as amended) of his conditions of
supervised release as set forth in Allegation Number 4 of the
amended petition. (Id. at 5.) Special Condition 6
forbids Grubb from "be[ing] in the company of any child
under the age of 18." (Doc. 100 at 3.) The supervising
probation officer stated he did not "recall the
defendant saying that he had any sort of physical
relationship with [SH] prior to her being 18." (Doc. 113
at 26.) The supervising officer did not discuss if Grubb had
been in physical contact with SH before her 18th birthday.
This testimony was not sufficient to show Grubb was "in
the company of a child under 18.
government next objects to Judge Lynch's finding that
Grubb did not violate Special Condition 7 (as amended) as set
forth in allegation Numbers 5 and 6 of the amended petition.
(Doc. 115 at 6.) Judge Lynch correctly found Grubb did not
violate this condition. See United States v. Gnirke,
775 F.3d 1155 (9th Cir. 2015).
government also objects to the finding that Grubb did not
violate Special Condition 8 (as amended) as set forth in
Allegation Number 9 of the amended petition. (Doc. 115 at 8.)
That condition states Grubb "shall not knowingly possess
or use any computer or other device with access to any
on-line computer service without prior written approval of
the probation officer." (Doc. 100 at 5.) The supervising
probation officer testified Grubb had a Nintendo Wii game
system in his truck. (Doc. 113 at 14.) The amended petition
states the Wii "has internet capability and was not
approved by the probation office." (Doc. 100 at 5.)
Taken together, this evidence is sufficient to show Grubb
violated Special Condition 7 as set forth in Allegation
the government objects to the finding that Grubb did not
violate Special Condition 4 (as amended) as set forth in
Allegation Number 11 of the amended petition. (Doc. 115 at
8.) That condition provides that Grubb "shall enter and
successfully complete a sex offender treatment program."
(Doc. 100 at 6.) Grubb does not dispute he was terminated
from sex offender treatment, but notes that the termination
was due to his revocation proceedings. (Doc. 113 at 65.)
Grubb was terminated when the supervising probation officer
informed Grubb's treatment provider that Grubb had,
inter alia, been sending nude photos of himself and
others via an unapproved device. (Doc. 100 at 6.) The
preponderance of the evidence shows that Grubb engaged in
those behaviors (Violation Numbers 2, 3, 7, and 8) therefore,
Grubb violated Special Condition 4 as set forth in the
no clear error in Judge Lynch's conclusion that Grubb
violated the conditions of his release in the manner set
forth in violation numbers 1, 2, 3, 7, 8, and 10 of the
amended petition, and that Grubb's supervision should be
revoked, the Court adopts those findings and recommendation.
(Doc. 111 at 2-3.) In sum, Grubb has violated the conditions
of his supervised release as set forth in Allegations Number
1, 2, 3, 7, 8, 9, 10, and 11. He has not violated the
conditions of his supervised release as set forth in
Allegations Number 4, 5, and 6.
IT IS ORDERED Judge Lynch's Findings and Recommendation
(Doc. 111) is ADOPTED as modified above.
FURTHER ORDERED that Defendant's supervised release is
revoked. Judgment ...