Opinion
CR 22-02031-TUC-RM (JR)
03-23-2023
United States of America, Plaintiff, v. Stephany Lynn Borja and Xavier Joaquin Colgan, Defendants.
REPORT AND RECOMMENDATION
HONORABLE JACQUELINE M. RATEAU UNITED STATES MAGISTRATE JUDGE
This matter was referred to the Magistrate Judge to address the Government's Petitions for Warrant to Revoke Probation. The Petitions allege that Defendant Stephany Lynn Borja and Defendant Xavier Joaquin Colgan (collectively, “Defendants”) committed new crimes in violation of their terms of probation, specifically mandatory condition #1 that directs them not to commit another federal, state, or local crime.
Pursuant to Rule 32.1(b)(2) of the Federal Rules of Criminal Procedure, an evidentiary hearing was conducted on March 23, 2023. One witness was presented by the Government, United States Probation Officer (USPO) Alexis M. Mesko. The Government presented two exhibits which were admitted without objection from defense counsel. Defendants were present and represented by counsel.
I. Background
Defendants, husband and wife and co-defendants in this case, were convicted of Conspiracy to Transport Illegal Aliens for Profit. On January 18, 2023, they were each sentenced to serve a 48-month term of probation. Their probationary term commenced on January 18, 2023 and was set to expire on January 17, 2027. Mandatory Condition #1 was imposed in both cases. Defendants were ordered not to commit another federal, state. or local crime during the term of their probation. EX 1 at 22, EX 2 at 21.
The Government alleges that on January 24, 2023, both Defendants committed state misdemeanor offenses, specifically, Disorderly Conduct-Fighting/Disruptive Behavior-Domestic Violence and Criminal Damage-Deface/Damage PropertyDomestic Violence. DOCS 78, 80.
II. Discussion
As is relevant to this case, a person commits disorderly conduct pursuant to A.R.S. § 13-2904(A)(1) and (2) if, with the intent to disturb the peace or quiet of a person, or with knowledge of doing so, such person engages in fighting or using abusive or offensive language to any person present in a manner likely to provoke immediate physical retaliation by such person. A person commits criminal damage pursuant to of A.R.S. § 13-1602(A)(1) and (2) by recklessly damaging the property of another person or recklessly tampering with the property of another person so as substantially to impair its function or value.
At the evidentiary hearing, USPO Mesko testified that on January 25, 2023, she received both a text and a call from Defendant Borja advising that her and her husband Defendant Colgan had been arrested on January 24, 2023. USPO Mesko verified the arrest by contacting local police dispatch in Flagstaff, Arizona. Later, USPO Mesko spoke to both Defendants about the events. USPO Mesko testified that she saw a large bruise on Defendant Borja's right shoulder that was allegedly the result of her husband's actions.
USPO Mesko also reviewed the police reports prepared by the arresting officers. While each Defendant provided different details about the dispute, USPO Mesko determined that the reports were consistent with the account provided to her by the Defendants, namely that there was a verbal altercation between the two of them and it had turned violent. As a result, property was damaged and both Defendants inflicted bodily injury on one another. Both were charged with misdemeanor domestic violence offenses. Formal charges were filed locally in Flagstaff and remain pending.
USPO Mesko explained that her professional guidelines require that when a probation matter involves domestic violence, within 48 hours, she must notify the court or file a violation notice or revocation packet. She opted for the second option.
According to 18 U.S.C. §§ 3565(e)(3) and 3583 (e)(3), a district court may revoke a defendant's probation if it finds by a preponderance of the evidence that the defendant violated a condition of his or her supervised release or probation. Although this is a lower standard than the “beyond a reasonable doubt” standard required for a criminal conviction, there must still be credible evidence the releasee actually violated the terms of release. United States v. Perez, 526 F.3d 543, 550 (9th Cir. 2008).
In this case, more “credible evidence” came from the reports of the arresting officers. According to Officer Priest (EX 1 at 18), Defendant Borja reported that her and her husband got into a verbal argument over his communications with an exgirlfriend. Defendant Borja stated that she began throwing small items around the apartment. Her husband then locked himself in a bedroom. She banged on the door and caused damaged to it. When she entered the bedroom, her husband took her phone away. In trying to retrieve the phone, she accidentally struck him in the genitals. He then slapped her on the back and she pushed him in return.
According to Officer Wesley (EX 2 at 16), Defendant Colgan reported that he and his wife were in a verbal argument in the bedroom. She was yelling at him while she was trying to move the beds out. He helped her move the beds and when she left the room, he locked the door. After a few hours, his wife returned and knocked on the door. When he opened it, she entered the room yelling and ultimately laid on the ground. He grabbed her and drug her out of the room and then locked the door again. His wife began hitting the door until it was damaged. The two of them argued about his cellphone and as he tried to unlock her cellphone, she took her phone and hit him in the genitals. Another struggle ensued. According to Defendant Borja, when her husband grabbed her the third time to take her out of the room, he grabbed her by the neck. When asked about the chocking, Defendant Colgan said he didn't know if he had done that as he was just grabbing her wherever he could to try and force her out of the room.
Both attorneys argue that their clients acted in self-defense. While this defense may very well exonerate one of them at trial, given the standard needed to revoke a probationary term, the Court finds that the Government has proven by a preponderance of the evidence that both Defendants committed the local offenses charged in the Petitions for Warrant to Revoke Probation.
III. Recommendation
Having considered the testimony, exhibits and arguments of counsel, the Magistrate Judge recommends that the District Court find that both Defendants violated Mandatory Condition #1 of their conditions of probation. The Magistrate Judge further recommends that the District Court schedule a disposition hearing.
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 the objections are not timely filed, they may be deemed waived. If any objections are filed, this action should be designated with the following case number CR 22-02031-TUC-RM.