Opinion
CR-21-01459-TUC-CKJ (MAA)
12-14-2023
United States of America, Plaintiff, v. Nicole Shermaine Martinez, Defendant.
AMENDED REPORT AND RECOMMENDATION
Michael A. Ambri, United States Magistrate Judge
The Petition to Revoke Probation (Doc. 82) was referred to Magistrate Judge Michael Ambri. The petition alleges Defendant Nicole Shermaine Martinez committed the crime of transportation of illegal aliens for profit in violation of Mandatory Condition No. 1. An evidentiary hearing was held on November 17, 2023. Defendant was present and assisted by counsel. The Government's Exhibits 1-4 were admitted into evidence by stipulation of the parties. Defendant offered no exhibits. Neither party offered witnesses.
Upon consideration of the evidence, the Magistrate Judge recommends that the District Court find Ms. Martinez violated Mandatory Condition No. 1 of her probation.
Factual Background.
On January 19, 2022, Ms. Martinez pleaded guilty to Counts 1-5 of a five-count Indictment charging her with Conspiracy to Transport Illegal Aliens for the Purpose of Commercial Advantage or Private Financial Gain (8 U.S.C. §§ 1324(a)(1)(A)(v)(I), 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(i)) and Transportation of Illegal Aliens (8 U.S.C. §§ 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(ii)). (Docs. 48, 49.) On August 22, 2022, the Court accepted the plea, entered judgment and sentenced Ms. Martinez to 36 months of probation. (Docs. 55, 80.) Mandatory Condition No. 1 of Ms. Martinez's probation stated: “ You must not commit another federal, state or local crime.” (Doc. 80 at p. 2.)
On January 17, 2023, Ms. Martinez was charged by Complaint in a new case alleging Transportation of Illegal Aliens for Profit in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), 1324(a)(1)(B)(ii) and 1324(a)(1)(B)(iii). (Doc. 1 in U.S. District Court, Arizona, Case No. CR23-00081-TUC-CKJ.) On January 18, 2023, a two-count Indictment was issued charging Ms. Martinez with Conspiracy to Transport Illegal Aliens for the Purpose of Commercial Advantage or Private Financial Gain (8 U.S.C. §§ 1324(a)(1)(A)(v)(I), 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(i)) and Transportation of Illegal Aliens for the Purpose of Commercial Advantage or Private Financial Gain (8 U.S.C. §§ 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(i)). (Doc. 9 in CR23-00081; Exhibit 2.) The Complaint and Indictment alleged the crimes occurred on or about January 15, 2023, approximately five months into Ms. Martinez's probation. (Docs. 1 and 9 in CR23-00081 .)
On January 20, 2023, the Government filed a Petition to Revoke Probation (the “Petition”). The Petition alleged a violation of Mandatory Condition No. 1, citing the allegations of Transportation of Illegal Aliens for Profit in the Complaint. (Doc. 82.)
On November 8, 2022, after trial, a jury found Ms. Martinez guilty of Conspiracy to Transport Illegal Aliens and Transportation of Illegal Aliens. (Docs. 113 and 121 in CR23-00081; Exhibits 3 and 4.) The jury did not find that the offenses were committed for commercial advantage or private financial gain. (Id.)
Analysis.
The court may revoke probation if it finds by a preponderance of the evidence that the defendant violated a condition of probation. 18 U.S.C. §§ 3565(a)(2) and 3583(e)(3); United States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008); see also United States v. Hall, 419 F.3d 980, 985 n. 4 (9th Cir. 2005) (“Parole, probation, and supervised release revocation hearings are constitutionally indistinguishable and are analyzed in the same manner.”). The preponderance standard is met where the relevant fact is more probably true than not. United States v. Collins, 109 F.3d 1413, 1420 (9th Cir. 1997).
The Government has shown by a preponderance of the evidence that Ms. Martinez violated Mandatory Condition No. 1. A trial jury found Ms. Martinez guilty beyond a reasonable doubt of Transportation of Illegal Aliens, a violation of 8 U.S.C. § 1324(a)(1)(A)(ii), and that the offense occurred on January 15, 2023, when Ms. Martinez was subject to Mandatory Condition No. 1. Proof beyond a reasonable doubt to a unanimous jury necessarily meets the lesser preponderance standard applicable to a probation violation. In violating 8 U.S.C. § 1324(a)(1)(A)(ii), Ms. Martinez violated Mandatory Condition No. 1's proscription against committing a federal crime.
This recommendation is unaffected by the lack of conviction on commercial advantage or financial gain. Transportation of Illegal Aliens is a federal crime regardless whether the crime was committed for commercial advantage or financial gain. See 8 U.S.C. § 1324(a)(1)(A)(ii) (stating the elements); see also 8 U.S.C. §§ 1324(a)(1)(B)(i) and 1324(a)(1)(B)(ii) (stating separate penalties for the offense with and without commercial advantage or financial gain). The Petition provides notice of the basis for the alleged violation - it alleges and cites the statutory basis for Transportation of Illegal Aliens (8 U.S.C. 1324(a)(1)(A)(ii)) and provides details supporting the charge.
Recommendation.
Based on the foregoing and pursuant to 28 U.S.C. § 636(b) and Local R. Crim. P. 57.6(d)(4), the Magistrate Judge RECOMMENDS that the District Court, after an independent review of the record, find that the Defendant violated Mandatory Condition No. 1 of her probation.
Pursuant to 28 U.S.C. § 636(b), any party may serve and file written objections with the District Court within fourteen (14) days of being served with a copy of this Report and Recommendation. If objections are not timely filed, they may be deemed waived.
The Local Rules provide for the filing of a response to an objection. They do not permit the filing of a reply without leave of the District Court.