Opinion
No. CR-04-0094-PHX-DJH
02-28-2017
United States of America, Plaintiff, v. Jeffery Martin Gore, Defendant.
REPORT AND RECOMMENDATION
TO THE HONORABLE DIANE J. HUMETEWA, U.S. DISTRICT JUDGE:
Pursuant to Rule 32.1(b)(2) of the Federal Rules of Criminal Procedure and the referral of the presiding Judge as well as the parties' consent, the Court conducted an evidentiary hearing on the allegations in the Petition which alleged that Defendant violated conditions of supervised release. At the outset of the hearing, the Government moved to dismiss Allegation A. The Court granted this unopposed motion and proceeded to hear evidence on Allegations B and C, which alleged, respectively, that Defendant violated Standard Condition No. 6 which required he "work regularly at a lawful occupation unless excused by the probation officer . . .." and Special Condition No. 1 which required that he "participate as instructed by the probation officer in a program of substance abuse treatment . . . ."
The Government called the Defendant's supervising Probation Officer Meredith L. Fast who testified that she reviewed the Conditions of Supervision with Defendant personally on November 15, 2016. She also testified with respect to Allegation B that Defendant lost his employment on November 26, 2016, because he was fired from his place of work as a "no show" and that Defendant never told her that he was fired. With respect to Allegation C, Officer Fast testified that the Defendant did not, as he was required to do, schedule an appointment with a drug treatment facility. When those appointments were scheduled for him, first on December 3 and then on December 8, 2016, he failed to participate and did not show. Defendant did not cross examine the Probation Officer nor offer any case to challenge the Government's presentation. The Court finds that the Government has met its burden of proof to show by a preponderance of the evidence that Defendant violated Conditions B and C of his supervised release and, accordingly, the Court will recommend that the District Judge determine that Defendant violated Conditions B and C.
IT IS THEREFORE RECOMMENDED that the District Judge find that the government proved by a preponderance of the evidence that Defendant violated Conditions B and C of his supervised release.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(b)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See, 28 U.S.C. § 636(b)(1); Rule 59(b)(2), Federal Rules of Criminal Procedure. Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Judge without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 59, Federal Rules of Criminal Procedure.
Dated this 28th day of February, 2017.
/s/_________
David K. Duncan
United States Magistrate Judge