Opinion
CR-19-08214-01-PHX-SPL
03-17-2023
United States of America, Plaintiff, v. Thayne Thomas Fowler, Defendant.
TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
HONORABLE JOHN Z. BOYLE UNITED STATES MAGISTRATE JUDGE
Pending before the Court is a Superseding Petition, filed on November 21, 2022, alleging three violations of supervised release. Pursuant to a Standing Order of Referral, dated July 2, 2014, the Honorable Steven P. Logan, United States District Judge, referred the Petition to Revoke Supervised Release in the above-numbered case to the undersigned Magistrate Judge to conduct a “hearing and preparation of findings and recommendations . . . and submit the necessary Report and Recommendation . . .” as authorized under 18 U.S.C. § 3401(i) and 28 U.S.C. § 636(b)(3).
This Court recommends a finding that Defendant violated the terms of his supervised release because Allegation B has been proven by a preponderance of the evidence. The government elected to present no evidence regarding Allegations A and C, so those allegations are not addressed here.
I. Procedural Background.
On September 13, 2021, Defendant commenced a three-year term of supervised release. On October 21, 2022, a Petition to Revoke Supervised Release was filed. (Doc. 109.) On November 21, 2022, a Superseding Petition was filed. (Doc. 117.)
On March 8, 2023, this Court conducted an evidentiary hearing. The government proceeded on only one allegation in the Superseding Petition:
On February 17, 2023, the parties gave consent, in writing, for this Court to issue a Report and Recommendation. (Doc. 139.) On March 8, 2023, Defendant reaffirmed his consent on the record at the commencement of the hearing.
Allegation B: Special Condition #1 which states, you must participate as instructed by the probation officer in a program of substance abuse treatment (outpatient and/or inpatient) which may include testing for substance abuse. You must contribute to the cost of treatment in an amount to be determined by the probation officer.
Fowler failed to participate in substance abuse treatment as instructed, to wit:
On or about October 19, 2022, Probation contacted the Navajo Nation Department of Behavioral Health counselor, Stephan Klain, who informed Fowler had not attending treatment since August 2022, and efforts to reach him to re-establish services have been unsuccessful, as evidenced by a treatment letter and officer testimony. Grade C violation §7B1.1(a)(3).(Doc. 117 at 2.)
Defendant was in custody and assisted by counsel. The Government called Stephan Klain and Probation Officer Murphy. Government's Exhibits 1-2 were admitted into evidence. The Defendant did not testify.
“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)).
II. Findings of Fact.
The Court submits the following findings of fact.
a. Mr. Stephan Klain.
Mr. Klain testified that he works as a principal substance abuse counselor for the Navajo Nation Behavioral Health Services. He provided services to Defendant as a part of a referral from the United States Probation Office. Defendant attended treatment services as required, but in August of 2022, Defendant completely failed to attend treatment services. Mr. Klain mailed a letter to Defendant on October 19, 2022. The letter informed Defendant that if he did not attend treatment by November 2022, Defendant's treatment case would be closed. Defendant failed to reinitiate services as directed in the letter. In short, Defendant stopped attending services as required in August, September, and October of 2022.
The letter was mailed to a P.O. Box address provided by Defendant. Mr. Klain did not know if Defendant received the letter.
b. Probation Officer Scott Murphy.
United States Probation Officer Scott Murphy testified that he supervised Defendant. Officer Murphy identified Defendant in the courtroom. Defendant's supervised release began on September 13, 2021. Officer Murphy met with Defendant and reviewed his supervised release terms on September 14, 2021. Defendant signed a form listing the terms of supervised release. (Exhibit 2.) Those conditions included Special Condition 1. Officer Murphy instructed Defendant to participate substance abuse treatment with the Navajo Nation Department of Behavioral Health. Defendant began services with Behavioral Health in November 2021. Officer Murphy verified Defendant began those services as directed. Officer Murphy had subsequent home visits with Defendant to confirm Defendant was attending treatment as directed. In October 2022, Officer Murphy contacted Mr. Klain to determine if Defendant was attending services as directed. Officer Murphy was advised by Mr. Klain that Defendant stopped attending services beginning in August 2022.
The Court asked Officer Murphy if he attempted to contact Defendant after learning Defendant stopped treatment as directed. Officer Murphy testified he had no contact with Defendant in late October 2022 or early November 2022 because Defendant had been in custody in the Navajo Nation subsequent to an alleged domestic violence incident on October 20, 2022.
III. Conclusions of Law.
The Court recommends a finding of a violation of supervised release as contained in Allegation B. Special Condition #1 required Defendant “participate as instructed by the probation officer in a program of substance abuse treatment (outpatient and/or inpatient) which may include testing for substance abuse.” The evidence before the Court demonstrates that Defendant attended services as required at the Navajo Nation Department of Behavioral Health from November 2021 to early August 2022. But in August, September, and October of 2022, Defendant voluntarily failed to attend services as required under Special Condition 1.
The Court finds this allegation has been established by a preponderance of the evidence.
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 Steven P. Logan, United States District Judge, after an independent review of the record, find Defendant violated the terms of supervised release contained in Allegation B.
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.
IT IS ORDERED setting a final disposition hearing for April 24, 2023, at 1:30 p.m. before the Honorable Steven P. Logan, United States District Judge, in Courtroom 501, Sandra Day O'Connor U.S. Courthouse, 401 West Washington Street, Phoenix, Arizona.
IT IS FURTHER ORDERED that the U.S. Probation Department shall prepare a Disposition Report and the Defendant shall cooperate 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); 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.