Opinion
No. CR-19-50217-PHX-DLR
12-08-2020
United States of America, Plaintiff, v. Charles Lee Anderson, Defendant.
REPORT AND RECOMMENDATION
TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE:
Pending before the Court is a Superseding Petition, filed on October 16, 2020, alleging three violations of supervised release. Pursuant to a Standing Order of Referral, dated July 9, 2014, the Honorable Douglas L. Rayes, United States District Judge, referred the Superseding Petition to Revoke Supervised Release in the above-numbered case to the undersigned Magistrate Judge to "make the appropriate findings and recommendations and submit the necessary Report and Recommendation to the District Court."
I. Procedural Background.
On June 14, 2010, defendant was sentenced to 152 months of imprisonment and 60 months of supervised release. (Doc. 1-2 at 1-7). On October 16, 2020 a Superseding Petition was filed alleging violations of defendant's supervised release. (Doc. 8). On October 27, 2020, a Preliminary Revocation Hearing was held before Magistrate Judge Deborah M. Fine, who found probable cause as to Allegations A-1, B, and C; Allegations A-2, A-3, and A-4 were dismissed.
On November 16, 2020, this Court conducted an evidentiary hearing. The parties submitted written consent to the Court, and defendant acknowledged his consent on the record. (Doc. 16, 17). Defendant was present and assisted by counsel. Defendant did not testify at the hearing. The government called United States Probation Officer Heinbaugh and Phoenix Police Officers Justin Rangel and Curtis Young. Government's Exhibits 1-3 were admitted into evidence. (Doc. 17). Exhibit 1 is the Judgment imposing sentence (also found at Doc. 1-2), including Defendant's Conditions of Supervised Release. Exhibit 2 is District of Arizona General Order 17-18, dated August 14, 2017, adopting Mandatory and Standard Conditions of Supervised Release for all offenders supervised in Arizona district court. Exhibit 3 is a Modification of Defendant's Supervised Release, signed by the Honorable Louise W. Flanagan on October 15, 2019, prohibiting defendant from involvement in any gang activity.
II. Findings of Fact.
The Court submits the following findings of fact.
A. Timeline of Events.
On June 14, 2010, defendant was sentenced to 152 months of imprisonment and 60 months of supervised release. (Doc. 1-2 at 1-7).
On November 4, 2019, Probation Officer Heinbaugh met with defendant to review his Conditions of Supervised Release; defendant and Officer Heinbaugh initialed and dated the Conditions to memorialize their meeting. (Ex. 1 at 5). That same day Officer Heinbaugh and defendant also reviewed and initialed District of Arizona General Order 17-18. (Ex. 2 at 3).
On October 13, 2020 defendant was arrested by Phoenix Police Officers for multiple violations of Arizona law, including Misconduct Involving Weapons and Possession of Marijuana and Drug Paraphernalia. Probation Officer Heinbaugh spoke with Phoenix Police Officers that day and determined that the Charles Lee Anderson arrested by the Phoenix Police was the same individual under her supervision on supervised release.
After speaking with Phoenix Police Officers and reviewing reports about defendant's arrest, Officer Heinbaugh prepared a Petition to Revoke Supervised Release and a Superseding Petition to Revoke Supervised Release; the Superseding Petition was issued by the Court on October 16, 2020. (Doc. 8).
B. Testimony of Phoenix Police Officers Rangel and Young.
While on duty on October 13, 2020, Phoenix Police Officers Rangel and Young responded to a domestic violence call at a Quality Inn hotel in Phoenix, Arizona. At the hotel, Officer Rangel spoke with the complaining witness, a female, who stated the defendant was attempting to flee the scene. Officer Young was informed by hotel staff that the suspect was in the parking lot. Officer Young first saw defendant in the parking lot standing next to a silver Buick vehicle; defendant got in his vehicle and attempted to drive away, but was compliant when both Officers stopped him and asked him to leave the vehicle.
Defendant was the sole occupant of the vehicle, which was registered to him. A black and white backpack was on the floorboard directly behind the front passenger seat. The backpack was readily accessible to defendant from the driver's seat of the vehicle.
Defendant denied any knowledge of the complaining witness or any other female at the Quality Inn. Defendant stated to Officer Young that he was at the hotel so that his car could be picked up for servicing. Officer Young then confirmed with the complaining witness that the defendant was in fact the individual she had made the complaint about. In verifying defendant's identity, Officer Young determined that defendant was on federal supervision, and prohibited from possessing a firearm.
The call notes for the dispatch of the Phoenix Police Officers stated that the suspect potentially had a gun. After detaining defendant, Officer Rangel spoke again with the complaining witness. The witness told Officer Rangel that defendant typically had a black and white backpack, and that when defendant drove his vehicle, he always had a weapon inside a black and white backpack or on his lap.
Officer Rangel's testimony that the witness stated that defendant typically had a black and white backpack was elicited on cross-examination and not objected to; the testimony that the witness stated that the defendant always drove with a weapon in his black and white backpack or in his lap was admitted on re-direct examination of Officer Rangel, for the non hearsay purpose of showing Officer Rangel's purpose in asking defendant about the backpack. In determining whether the government proved by a preponderance of the evidence that defendant knowingly had access to or possessed a firearm or ammunition, in violation of his conditions of Supervised Release, the Court did not consider the statements admitted on re-direct for a non hearsay purpose. See United States v. Comito, 177 F.3d 1166, 1171 (9th Cir. 1999) (discussing low indicia of reliability of unsworn verbal allegations in context of revocation of supervised release). Here, the crucial question is not ownership of the black and white backpack; rather, it is whether defendant knowingly possessed or had access to the contents of the backpack.
Officer Rangel did a Terry frisk of Defendant; no weapons or marijuana were found on defendant's person. On cross examination Officer Young stated that when he first saw defendant standing outside his vehicle, he did not see defendant holding a backpack or a gun or smoking any marijuana. Further, when defendant attempted to leave in his vehicle, Officer Young did not see him reach into the backseat of the vehicle.
Defendant was detained in Officer Rangel's patrol car. After being Mirandized, Defendant agreed to speak with Officer Rangel. When asked about the backpack, Defendant stated that he knew the backpack was in the vehicle but that it belonged to his wife. Upon being asked about weapons, Defendant was "uncertain" if there were weapons in the vehicle or backpack, but stated that any weapons belonged to his wife because she lived in an unsafe neighborhood.
Officer Young also Mirandized defendant, who agreed to speak with him. When asked whether there was a handgun in the vehicle, defendant stated that to his knowledge there was not a handgun.
In a subsequent conversation, after Officer Young advised defendant he would be charged, defendant stated he had not been truthful in denying a connection with the complaining witness. Defendant denied committing any violence towards the witness but admitted that he knew the witness. Further, defendant asserted that the backpack belonged to his wife, and that she "had two guns." Defendant stated that he did not live with his wife, because he "can't be around guns."
A Maricopa County Superior Court Judge authorized a search warrant of the vehicle. In searching the backpack in the vehicle Officers found a black semi-automatic handgun loaded with thirteen rounds of ammunition.
The backpack did not contain any identification or clothing. The gun was submitted for DNA testing by the Phoenix Police but the results were still pending at the time of the evidentiary hearing.
The backpack also contained a green leafy substance in a bag, that Officer Young believed to be marijuana, based on his experience. The suspected green leafy substance was impounded for destruction and was not field tested for the presence of marijuana. On cross examination both Officer Young and Officer Rangel stated that defendant did not give off a smell of marijuana.
The complainant for the domestic violence call was not defendant's wife. Officer Rangel testified that defendant's wife came to the Quality Inn and asserted that the backpack was hers. In speaking with Officer Rangel, defendant's wife did not admit to knowing that the backpack contained weapons; rather, she stated that she knew there were weapons in defendant's vehicle.
III. Conclusions of Law.
"A district court may 'revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release...if the court ... finds by a preponderance of the evidence that the Defendant violated a condition of supervised release.'" United States v. Vallejo, 69 F.3d 992, 994 (9th Cir. 1995) (quoting 18 U.S.C. § 3583(e)(3)).
The Government must prove that Defendant knowingly violated his supervised release. See United States v. Vega, 545 F.3d 743, 750 (9th Cir. 2008) (prohibited criminal acts require an element of mens rea to establish a supervised release violation); United States v. Farley, 696 F. Appx. 210, 213 (9th Cir. 2017) (government must prove Defendant knowingly violated a supervised release term).
The Court concludes that defendant violated Mandatory Condition #1 (Petition A1) and Standard Condition #10 (Petition C) of his Supervised Release. The Court does not find that defendant violated Mandatory Condition #2 (Petition B). //
A. Mandatory Condition #1 and Standard Condition #10
Defendant knew that he could not possess or have access to a firearm or ammunition. On November 4, 2019 defendant reviewed General Order 17-18 (Exhibit 2) with Probation Officer Heinbaugh. In addition to the prohibition against the commission of a crime in MANDATORY CONDITION 1, STANDARD CONDITION 10 of the General Order required that defendant not own, "possess, or have access" to a firearm or ammunition. (Id. at 2) (emphasis added). At the scene on October 13, 2020, defendant acknowledged to Officer Young that he could not "be around guns."
On October 13, 2020 defendant was the sole occupant of a silver Buick, which was registered to him. On the floorboard behind the front passenger seat, and within his reach as the driver, was the backpack containing a handgun loaded with thirteen rounds of ammunition. Defendant acknowledged knowing that the backpack was in the vehicle, and it is undisputed that the backpack was within his reach.
Defendant's wife, in claiming ownership of the backpack, did not claim ownership of its contents; rather, she stated that she knew there were weapons in the vehicle and did not admit to knowing the backpack contained a weapon. The backpack did not contain identification of any type. However, the identity of the true owner of the backpack, whether it was defendant's wife or defendant, does not resolve whether defendant possessed or had access to the contents of the backpack, which included the handgun and ammunition.
The Court finds that the testimony at the evidentiary hearing, which established defendant's control of his vehicle and ready access to the backpack, support defendant's knowledge of its contents and therefore his violation of his supervised release conditions. The Court finds by a preponderance of the evidence that as the sole occupant of a vehicle registered to him, and knowing that the backpack, as positioned on the floorboard of the front passenger seat, was within his immediate reach from the driver's seat, defendant knowingly possessed or had access to the firearm and ammunition in the backpack.
The credibility of defendant's denial to Officers Rangel and Young of knowledge of the contents of the backpack is undermined by defendant's admission to Officer Young that he lied to Officer Young in providing a false story that he was at the hotel to have his car picked up for servicing and in falsely denying any connection to the complaining witness.
Defendant exercised dominion and control of his own vehicle and the backpack. He acknowledged knowing that the backpack was in the vehicle. Officer Rangel testified, without objection, to the statement by the complaining witness that defendant typically had a black and white backpack with him - a statement that contradicts the statement by defendant's wife that she was the owner of the backpack. In her statement to the Phoenix Police, defendant's wife did not acknowledge having recently driven the vehicle, and did not claim ownership of the contents of the backpack (the loaded handgun and the green leafy substance). On October 13, 2020, defendant owned his car, drove it as the sole occupant in seeking to leave the scene, and possessed the keys to the car. Cf. United States v. Sanchez-Mata, 925 F.2d 1166, 1167-69 (9th Cir. 1991) (where defendant did not own car, was not the driver of a car, and did not possess car key, evidence was insufficient to support conviction for possession of marijuana found in trunk of car). Further, defendant's statement to Officer Young that he did not live with his wife supports the inference that on or about October 13, 2020, defendant had sole and knowing possession and access to the contents of the vehicle, including the gun and ammunition.
B. Mandatory Condition #2
Mandatory Condition #2 prohibits Defendant from possessing a controlled substance, including marijuana. (Ex. 2 at 1). The Court finds that Defendant is not in violated of this condition, because the evidence at the hearing did not establish by a preponderance of the evidence that the green leafy substance found in the backpack was in fact marijuana. The green leafy substance was not field tested at the scene for the presence of marijuana; other than Officer Young's unverified personal belief that the substance was marijuana, no evidence was introduced at the hearing in support of the assertion that the substance was marijuana. ///
IV. Recommendation.
Based on the foregoing and pursuant to 28 U.S.C. § 636(b) and LRCrim 57.6(d)(4), Rules of Practice for the District of Arizona, the undersigned Magistrate Judge RECOMMENDS that the Honorable Douglas L. Rayes, United States District Judge, after an independent review of the record, find Defendant violated the terms of supervised release contained in Allegations A1 and C.
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(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
IT IS ORDERED that the U.S. Probation Department shall prepare a Disposition Report and the Defendant shall cooperation with the Probation Department in its preparation of the Disposition Report.
IT IS FURTHER ORDERED the parties shall have 14 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); Fed. R. Crim. P. 59(b)(2). 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 court 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 of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 59.
Dated this 8th day of December, 2020.
/s/_________
Honorable Michael T. Morrissey
United States Magistrate Judge