United States District Court, D. Montana, Great Falls Division
FINDINGS AND RECOMMENDATIONS TO REVOKE
DEFENDANT'S SUPERVISED RELEASE
Johnston United States Magistrate Judge.
Birdtail was accused of violating his conditions of
supervised release by 1) committing another crime, 2) failing
to report a change in address to his Probation Officer, and
3) consuming alcohol. He admitted to Violation 3, after an
evidentiary hearing, was found to have committed Violation 2.
The United States failed to prove by a preponderance of the
evidence that Mr. Birdtail had committed Violation 1. Mr.
Birdtail's supervised release should be revoked. He
should be sentenced to four months of custody, with
thirty-two months of supervised release to follow.
August 6, 2015, United States District Judge Brian Morris
sentenced Mr. Birdtail to thirty-four months custody, with
three years of supervised release to follow, after Mr.
Birdtail pled guilty to Assault Resulting in Serious Bodily
Injury. (Doc. 27). Mr. Birdtail's term of supervised
release began on September 27, 2017.
March 28, 2018, the United States Probation Office filed a
petition asking the Court to revoke Mr. Birdtail's
supervised release. The petition alleged that on March 19,
2018, Mr. Birdtail was arrested for Partner Family Member
Assault, stemming from an incident where it is alleged that
Mr. Birdtail struck his wife while driving in Great Falls,
after which Mrs. Birdtail was hospitalized with significant
facial injuries. The petition further alleged that Mr.
Birdtail was not living in the place approved by probation
after his Probation Officer conducted a home visit on March
20, 2018, and that Mr. Birdtail had not contacted his
Probation Officer as of the writing of the petition. Finally,
the petition alleged that on November 9, 2017, Mr. Birdtail
provided a urinalysis positive for alcohol, and admitted that
he consumed alcohol on November 7, 2018. (Doc. 30). Based on
the petition, Judge Morris issued a warrant for Mr.
Birdtail's arrest. (Doc. 31).
Birdtail appeared before the undersigned on April 4, 2018, in
Great Falls, Montana, for an initial appearance. Federal
Defender Hank Branom accompanied him at the initial
appearance. Assistant United States Attorney Jeff Starnes
represented the United States.
Birdtail said he had read the petition and understood the
allegations. Mr. Birdtail waived the preliminary hearing, and
the parties consented to proceed with the revocation hearing
before the undersigned.
Birdtail admitted that he violated the condition of his
supervised release as set forth in Violation 3, but denied
the allegations in Violations 1 and 2. Mr. Branom requested
time to prepare for an evidentiary hearing, to which the
United States did not object. The hearing was continued until
April 9, 2018.
April 9, 2018, Mr. Birdtail appeared with Federal Defender
Tony Gallagher before the undersigned for a revocation
hearing. Mr. Starnes appeared on behalf of the United States.
The parties presented evidence and testimony as to whether or
not Mr. Birdtail committed the acts as alleged in Violations
1 and 2. The Court finds that the United States has not met
its burden to show by a preponderance of the evidence that
Mr. Birdtail committed the acts as alleged in Violation 1.
The Court finds that the United States has met its burden
with respect to Violation 2, as well as Violation 3, which
Mr. Birdtail admitted. The violations are serious and warrant
revocation of Mr. Birdtail's supervised release.
Birdtail's violation grade is Grade C, his criminal
history category is IV, and his underlying offense is a Class
C felony. He could be incarcerated for up to twenty-four
months. He could be ordered to remain on supervised release
for thirty-six months, less any custody time imposed. ...