Opinion
CR 19-02249-TUC-JGZ(EJM)
01-04-2023
United States of America, Plaintiff, v. Rene Encinas-Martinez, Defendant.
REPORT AND RECOMMENDATION
Eric J. Markovich, United States Magistrate Judge.
Pending before the Court is a Superseding Supervised Release Petition against the defendant, Rene Encinas-Martinez. For the reasons discussed below, it is recommended that the District Court find that the defendant violated a condition of supervised release.
FACTUAL BACKGROUND
The defendant is charged with three supervised release violations: (1) commission of new crimes (Allegation A); (2) failure to notify his probation officer within 72 hours of contact with law enforcement (Allegation B); and (3) failure to participate in substance abuse treatment (Allegation C). The defendant entered denials and requested an evidentiary hearing.
At the evidentiary hearing on December 5, 2022, the government moved to dismiss the new crime allegation and the allegation that the defendant failed to notify his probation officer within 72 hours of his contact with law enforcement. The government did not explain why it was moving to dismiss those allegations. Nevertheless, the Court dismissed those allegations. As a result, the testimony at the hearing pertained only to the allegation that the defendant failed to participate in substance abuse treatment; specifically, failing to schedule an assessment with a treatment provider after being instructed to do so on September 28, 2022.
The defendant's Probation Officer, Anysia Munoz, testified as follows on direct examination. The defendant's initial supervised release term began on July 9, 2021. 12/5/22 Tr. at 5. His supervised released was revoked on April 5, 2022, and a new term of supervised release began on August 26, 2022. Id. at 5-6. Ms. Munoz reviewed the conditions with the defendant at his residence on September 28, 2022. Id. at 6. The defendant stated that he understood the conditions and signed the judgment. Id. at 7. He did not have any questions about his conditions. Id.
One of the supervised release conditions was that the defendant participate in a substance abuse treatment program. Id. Ms. Munoz filed the instant Superseding Petition based, in part, on the defendant's failure to engage in substance abuse treatment. Id. Specifically, Ms. Munoz directed the defendant “to complete or at least make an appointment with Community Intervention Associates [“CIA”] for an assessment and he failed to do so as directed. Id. at 8. Ms. Munoz spoke with the receptionist at CIA who confirmed that the defendant “had not called them or scheduled any appointments.” Id. She also spoke with the therapist who confirmed this information. Id.
When the defendant was originally placed on supervised release, his conditions included participation in substance abuse treatment. Id. at 9. He was ultimately unsuccessfully discharged from treatment. Id. However, “he did at least make an attempt to sign up for treatment” with CIA and ultimately registered with that provider. Id.
With respect to the “second stint of supervision,” the defendant told Ms. Munoz at their meeting on September 28, 2022, that “he had an issue with AHCCCS coverage[.]” Id. at 10. They discussed “him going ahead and making the appointment at [CIA] anyway as they could help him there” with AHCCCS. Id. at 10-11. The defendant would not have been prevented from registering with CIA even though he did not have AHCCCS. Id. at 10.
Ms. Munoz testified as follows on cross-examination. Ms. Munoz was aware that the defendant “had lost his AHCCCS while he was in custody doing the eight months that he had to serve” on the first supervised release violation. Id. at 11-12. In fact, the defendant mentioned that to Ms. Munoz during their meeting on September 28, 2022. Id. at 12. He also told her that “he was in the process of getting his AHCCCS back[.]” Id. Ms. Munoz told the defendant “to go ahead and contact [CIA] regardless so he could set an appointment and have some confirmation from them as far as his AHCCCS application was concerned.” Id. She explained that AHCCCS could “look up his application status” with AHCCCS and “tell him whether or not his application had been granted or not[.]” Id. at 12-13. However, AHCCCS would also inform the defendant when his AHCCCS was reinstated. Id. at 13.
Ms. Munoz agreed with counsel that the defendant knew the rules and procedures of CIA because he participated in their drug treatment program during his first term of supervision. Id. Specifically, CIA would have discussed with the defendant the issue of how AHCCCS pays for services. Id. Ms. Munoz again testified that “not having AHCCCS would not prevent [the defendant] from participating” in the CIA program. Id. Counsel asked Ms. Munoz if she was aware that the defendant “was told differently originally . . . the first time he went there to do their treatment[.]” Id. Ms. Munoz did not know because she “wasn't present when [the defendant was] explained the terms the first time[.]” Id. at 14. She is aware that CIA has “a sliding scale fee” so if a person does not have AHCCCS, “the person can still attend treatment and they would prove . . . income or provide that financial information for the agency to determine if or how much they would be charged per session.” Id. But if the defendant has AHCCCS he would not have to pay anything for treatment with CIA. Id. There is a possibility that the defendant would have to pay for treatment with CIA unless or until his AHCCCS was reinstated. Id.
Ms. Munoz again testified that she met with the defendant on September 28, 2022, and discussed his treatment with CIA. Id. at 15. They did not discuss “how long ago he had applied for AHCCCS[.]” Id. Ms. Munoz does not know how long it normally takes to get AHCCCS reinstated. Id.
On redirect examination, Ms. Munoz testified that the defendant would not have been prevented from making an appointment with CIA even though he did not yet have his AHCCCS reinstated. Id. at 15-16.
The Court had several questions for Ms. Munoz. If defendant had scheduled an appointment with CIA and went to that appointment, it is possible that the defendant would have had to pay for his appointment if his AHCCCS had not been reinstated. Id. at 16. But the fee would have been based on his income at the time. Id. Ms. Munoz believes that CIA would have waived the fee if the defendant could show that he was not employed. Id. In response to the Court's question of whether probation has a free substance abuse treatment program that is not dependent on a defendant having AHCCCS, Ms. Munoz testified that unfortunately at the end of January 2022, the Probation Office's “contracted provider in Douglas lost the federal contract. Therefore, we had only noncontract providers which would have accepted AHCCCS or private insurance or income-based co-payments.” Id. at 16-17. However, she added that Probation does have a telehealth option with Community Bridges “if all else had failed” and the defendant had let her know that he had not “been able to do anything at all.” Id. at 17. Ms. Munoz would have been able to make that referral, but the defendant “failed to even go to [CIA] to make any appointments.” Id.
The defendant testified as follows on direct examination. The defendant testified that he was released from custody on August 26, 2022, and he met with his probation officer at his house on September 28, 2022. Id. at 18. With respect to their conversation about doing an intake at CIA, he testified that they went over the rules, and he told his probation officer that he was going to get his AHCCCS reinstated because he knew that he needed if for CIA. Id. During his first term of supervision, it took him about three weeks to get his AHCCCS card. Id. The defendant testified that he told his probation officer to “give me one or two weeks” to get his AHCCCS, but a supervised release petition was filed after only five working days. Id. at 18-19. He explained that he could not get AHCCCS and look for a job in five days. Id. at 19.
The defendant went into custody on October 6, 2022, on a state charge. Id. He then went into federal custody on October 7, 2022 and has remained in custody. Id.
The defendant testified as follows on cross-examination. The defendant agreed that a condition of supervised release was that he participate in substance abuse treatment as directed by his probation officer. Id. During his first term of supervision, he participated in substance abuse treatment at CIA. Id. at 20. As a result, he is familiar with “how to enroll and contact them to enroll[.]” Id.
During the second term of supervision, the defendant never contacted CIA to schedule an assessment while he was trying to reinstate his AHCCCS. Id. He testified that he was trying to get his AHCCCS first and it had only been five days since his meeting with his probation officer. Id. He further testified that: “I thought I had more time. I didn't know I had five days. If I had known, I would have gone quick.” Id. at 21.
The Court asked the defendant why he believed he had more than five days to contact CIA. Id. at 22. His response was: “Because that's what they're telling me.” Id. In response to the Court's question of whether Ms. Munoz gave him five days to contact CIA, he testified that she did not tell him that; but if she would have told him that he “would have gone right away[.]” Id. at 22-23. He thought he could fix his AHCCCS in a week or two and there would not be a problem. Id. at 23. In response to the Court's question of what led him to believe that he had five working days, the defendant testified that “she told me on the 28th . . . [and] I got violated on the 7th[.]” Id.
Government counsel had follow-up questions based on the Court's questions. Ms. Munoz never told the defendant that he had five days to make the appointment with CIA. Id. at 24. He agreed with counsel that he believed he had five days because it was about five days between the meeting with Ms. Munoz and the filing of the supervised release petition. Id. But he added that: “I never thought like it was going to be five days.” Id.
Defense counsel also had follow-up questions. The defendant testified that during his first term of supervision he went to the CIA office and was told that he needed AHCCCS. Id. at 25. He obtained his AHCCCS in two to three weeks and then went to classes at CIA. Id. He did not get violated for not signing up with CIA in those two to three weeks. Id. As a result, he believed he “had some time to get signed up because of last time[.]” Id.
This testimony led to more questions from the Court. The defendant explained that during his first term of supervision he went to CIA, which is two blocks from his mother's house, and was told by the receptionist that he needed AHCCCS to participate in the program. Id. at 25-26.
DISCUSSION
The government argues that the testimony establishes by a preponderance of the evidence that defendant violated his supervised release by not making an appointment with CIA as instructed by his probation officer. Id. at 27-28. The government notes that the defendant was never prevented from making an appointment with CIA even though he did not yet have his AHCCCS reinstated. Id. at 27. The government acknowledges that there was some bureaucracy that needed to be dealt with before he could participate in the program at CIA. Id. However, the probation officer only asked the defendant to make an appointment to sign up for treatment, which he did not do. Id. at 27-28. Thus, “the crux of it really is he just never took that first step, regardless of whether or not he had AHCCCS at that time, to set up the assessment.” Id. at 28.
The defense points out that “the issue is not whether or not [the defendant] called and scheduled his appointment. Clearly he has said he did not.” Id. at 28-29. The defense maintains that the issue in this case “is the reasonableness of the violation, as to whether it's reasonable to make him pay on a sliding scale where he doesn't have a job” and did not yet have AHCCCS. Id. at 29. The defense points out that the defendant knew that if he had gone to CIA without AHCCCS, they would have turned him away because that is exactly what happened during his first term of supervision. Id. The defense is not arguing that there “isn't technically a violation,” but the defendant “was not willfully trying to violate” because no time limit was imposed by which to make the appointment with CIA and the defendant informed his probation officer of his need to reinstate AHCCCS and that he was working on doing so. Id. at 29-30. The defendant was given two to three weeks to obtain his AHCCCS during the first term of supervision before he did the assessment with CIA. Id. at 30.
In rebuttal, government counsel argued that the “reasonableness argument kind of misses a point when you look at the special condition itself.” Id. at 31. A reasonableness standard “kind of guts the meaning ‘as instructed by the probation officer,' which is specifically referenced in condition number one.” Id. Ms. Munoz was aware that the defendant did not have AHCCCS, but she still instructed him to make the appointment with CIA, and advised the defendant that CIA may be able to help him with reinstating his AHCCCS. Id. All the defendant had to do was make a phone call, and he admitted that he never contacted CIA.
At the conclusion of oral argument, the Court noted that it understood why this alleged violation “went to a hearing” because the issue is “tricky” for the reasons articulated by counsel. Id. at 32. The Court further noted that the violation at issue likely would not have been alleged if not for the defendant's arrest on October 6, 2022 on a state offense. “But that's neither here nor there, because the allegation was made.” Id. at 32.
Both parties agree that the issue is how quickly the defendant should have contacted CIA to make or attempt to make an appointment. Perhaps the probation officer should have imposed a deadline for the defendant to make or attempt to make his appointment. However, the defendant could have sought clarification from his probation officer (at the September 28, 2022, meeting or subsequently) on the time frame to make the appointment, asked if he could make the appointment after he obtained AHCCCS, and/or explained to his officer his prior experience with CIA and the inability to make an appointment until he had AHCCCS reinstated. The defendant simply assumed that he could wait two to three weeks and contact CIA when AHCCCS was reinstated.
The defendant testified that he told his probation officer to give him one or two weeks to get his AHCCCS. However, the defendant did not testify that Ms. Munoz agreed to his request. Relatedly, defense counsel did not ask Ms. Munoz if the defendant asked her to give him one to two weeks to contact CIA. And, as discussed in text infra, even if Ms. Munoz had testified that the defendant made that request, her credible testimony on direct and cross-examination was that she told the defendant to contact CIA even though he did not yet have AHCCCS.
Ms. Munoz knew the defendant did not have AHCCCS at the time of their meeting on September 28, 2022, and that he was in the process of having AHCCCS reinstated. She was also aware that the defendant needed to have AHCCCS to obtain services at CIA unless he got a fee waiver. Ms. Munoz never told the defendant that he need not make an appointment with CIA until after his AHCCCS was reinstated. To the contrary, they discussed the defendant “going ahead and making the appointment at [CIA] anyway as they could help him there” with AHCCCS. Id. at 10-11.
Additionally, even though he did not yet have AHCCCS, if the defendant contacted CIA there may have been a way to waive any co-payments (at least until he had AHCCCS) based on his indigency. Moreover, Ms. Munoz testified that her understanding is that the defendant would not have been prevented from registering with CIA even though he did not have AHCCCS. Id. at 10. Thus, the defendant could have scheduled his appointment with CIA two to three weeks out to allow him sufficient time to have his AHCCCS reinstated. Finally, the defendant's assumption that his prior experience with CIA led him to believe that trying to make an appointment without AHCCCS would be futile fails to account for the fact that the procedures and/or policies of CIA could have changed in the year since he dealt with that provider.
The defendant only had to call CIA or walk two blocks from his mother's house to their office to make or attempt to make an appointment. By his own admission, he had five working days to do so before his arrest. Thus, the defendant's failure to follow the instruction of his probation officer and make or try to make an appointment with CIA is a violation of a supervised release condition.
For the reasons detailed above, it is recommended that the District Court find that the defendant has violated a condition of his supervised release.
Pursuant to Federal Rule of Criminal Procedure 59(b)(2), any party may serve and file written objections within 14 days of being served with a copy of this Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If any objections are filed, this action should be designated case number: CR 19-02249-TUC-JGZ. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).