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United States v. Birdtail

United States District Court, D. Montana, Great Falls Division

April 10, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
EMERSON PAUL BIRDTAIL, Defendant.

          FINDINGS AND RECOMMENDATIONS TO REVOKE DEFENDANT'S SUPERVISED RELEASE

          John Johnston United States Magistrate Judge.

         I. Synopsis

         Mr. 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.

         II. Status

         On 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.

         Petition

         On 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).

         Initial appearance

          Mr. 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.

         Mr. 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.

         Revocation hearing

          Mr. 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.

         On 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.

         Mr. 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. ...


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