Opinion
CR 21-01070-TUC-JCH(EJM)
01-25-2024
United States of America, Plaintiff, v. Omar Pomposo Garcia, Defendant.
REPORT AND RECOMMENDATION
ERIC J. MARKOVICH, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is a Petition alleging that the defendant, Omar Pomposo Garcia, violated conditions of supervised release. The defendant is charged with three violations: (1) the commission of new crimes on November 2, 2023 - i.e, possession of fentanyl and possession of drug paraphernalia (Allegation A in the supervised release petition); (2) possession of fentanyl on the same date (Allegation B in the petition); and (3) use of marijuana in late July 2023 (Allegation C in the petition). Based on the testimony presented at an evidentiary hearing, the Court concludes that the government has not proven by a preponderance of the evidence that the defendant committed new crimes or possessed fentanyl. As such, it is recommended that the District Court dismiss these allegations in the supervised release petition. However, the Court concludes that the government has proven by a preponderance of the evidence that the defendant knowingly used marijuana in violation of his supervised release condition. As a result, it is recommended that the District Court revoke the defendant' supervised release based on that violation.
FACTUAL BACKGROUND
On July 29, 2021, the defendant was sentenced to eight months in prison and three years of supervised release as a result of his conviction for Conspiracy to Transport Illegal Aliens for Profit. The defendant's term of supervised release began on November 19, 2021. A petition alleging supervised release violations was filed on June 5, 2022. The defendant admitted to a supervised release violation on November 7, 2022. On January 9, 2023, the defendant's supervised released was ordered revoked and he was sentenced to one-hundred and twenty days in prison and an additional thirty-months of supervised release. The defendant's second supervised release term started on January 25, 2023. The instant supervised release petition was filed on November 9, 2023, alleging the violations noted above.
The supervised release petition incorrectly alleges that: (1) the defendant was sentenced on June 5, 2019; and (2) his original sentence was forty-seven months imprisonment and eighteen months of supervised. However, the defendant has not sought dismissal of the petition based on these errors.
An evidentiary hearing on the supervised release violations was held on January 12, 2024. Two witnesses testified at that hearing: U.S. Probation Officer Amanda Jensen and the defendant's girlfriend, Destiny Mendoza. Their testimony is set forth below.
U.S. Probation Officer Amanda Jensen
Direct examination:
Amanda Jensen is a United States Probation Officer based in Tucson, Arizona. Hr'g Tr. 1/12/2024 (Doc. 98) at 6. Jensen supervises individuals who are on probation and supervised release. Id. Jensen has been supervising the defendant for about a year. Id. She reviewed the defendant's supervised release conditions with him at their first meeting. Id. at 7.
One of the conditions of supervision was that the defendant shall not commit a federal, state, or local crime. Id. Jensen received information that on November 2, 2023, the defendant was charged with a crime by the Yavapai County Sheriff's Office. Hr'g Tr. 1/12/2024 (Doc. 98) at 7. The defendant was encountered at a gas station in a vehicle. Id. at 8. He appeared to be sleeping. Id. A fentanyl pill and drug paraphernalia were found in the vehicle. The defendant was charged with narcotic possession and possession of drug paraphernalia. Id. at 9. That case has not yet been resolved. Id. These criminal charges are the basis for Allegation A in the supervised release petition.
Another condition of the defendant's supervised release is that he must not use or possess a controlled substance. Hr'g Tr. 1/12/2024 (Doc. 98) at 9. The defendant's possession of the fentanyl pill on November 2, 2023, is the basis for Allegation B in the petition. Id.
Allegation C in the petition stems from a positive urinalysis test conducted on August 2, 2023. Id. at 10. The defendant's urine sample tested “positive for marijuana or THC.” Id. Jensen told the defendant that the test was positive. Id. The defendant told her that he had taken a THC gummy “because his back hurt and he received it from his girlfriend and that he just wanted to get some sleep.” Hr'g Tr. 1/12/2024 (Doc. 98) at 10-11.
Cross-examination:
Jensen obtained a copy of the police report from the defendant's arrest on November 2, 2023. Id. at 11. Jensen's knowledge of the circumstances surrounding the defendant's arrest comes from that report. The report reflects that the defendant was arrested at 8:11 p.m. at 35942 South Old Black Canyon Highway in Black Canyon City. Id. at 13. The report states that there was “a half a fentanyl pill that was found in plain view in the vehicle” that the defendant “was in possession of[.]” Id. Jensen was told that the pill tested positive for fentanyl, but she did not obtain a copy of the test results. Id. at 16. The report also states that drug paraphernalia was also found in plain view in the vehicle. Hr'g Tr. 1/12/2024 (Doc. 98) at 16. The report does not note the registered owner of the vehicle or if anyone else was present in the vehicle. Id. at 14. The report also does not note where the pill and paraphernalia were found in the vehicle. Id. Jensen does not know if the defendant has a vehicle. Id. at 16. But she is aware that the defendant does not have a valid driver's license. Id. In response to a question from the Court, Jensen testified that the defendant “was in the driver's seat, from what I was told.” Id. at 17.
The police report states that the fentanyl pill was“[f]ound in plain view in the vehicle he was in possession of.” Probation Office Memorandum, Ex. 1, p.11. Jensen either had a conversation with the arresting officer about where the defendant was sitting in the vehicle or deduced his location based on the language in the report.
Jensen did not have the defendant sign an admission form documenting his admission that he ate the edible gummy. Hr'g Tr. 1/12/2024 (Doc. 98) at 19. Jensen's notes from her meeting with the defendant on August 2, 2023, reflect that the defendant told her that he took the edible gummy because he had back pain. Id.
The Court's examination:
The Court asked Jensen to look over her notes and testify about the conversation that she had with the defendant on August 2, 2023. Id. at 31. Jensen explained that she had asked the defendant to come into the office to submit his third mandatory urinalysis (“UA”). Id. She testified that “[w]hen we were getting ready to walk him back to administer the UA, he had said ‘I think my test might be positive” for marijuana. Id. at 32. The defendant “said that he had used a marijuana gummy or THC gummy three days prior.” Hr'g Tr. 1/12/2024 (Doc. 98) at 32. When asked why he did that, the defendant stated that “he was having back pain and he figured the THC could help him sleep.” Id.
The UA came back positive for marijuana. Id. Jensen explained to the defendant that he cannot use marijuana edibles and he would have to use “over-the-counter medication or a prescription medication that does not include marijuana.” Id.
The defendant did not call Ms. Jensen prior to their meeting on August 2, 2023, to tell her that he ate a marijuana edible. Id.
Follow-up Examination by Defense Counsel:
Jensen likely set the August 2, 2023, appointment about a week out. Hr'g Tr. 1/12/2024 (Doc. 98) at 33. That is her general practice, but she also wanted to set the appointment “when he's got time off work and when he's got a ride” to the office. Id. She recalls setting the appointment for 4:00 p.m. so the defendant could get home from work. Id.
Destiny Mendoza:
Direct examination:
The defendant is Mendoza's boyfriend. Id. at 21. They have been dating for a year and live together. Id. They live on the south side of Phoenix. Hr'g Tr. 1/12/2024 (Doc. 98) at 21. They are expecting a child in about two months. Id. Mendoza is a pharmacy technician. Id. Prior to his arrest on the supervised release violations, the defendant had been working for a demolition company. Id.
Mendoza is aware that the defendant consumed an edible gummy on August 2, 2023. Id. at 22. The gummies belonged to Mendoza. Hr'g Tr. 1/12/2024 (Doc. 98) at 22. She bought the gummies from a licensed dispensary in Arizona. Id. at 23. The packaging did not say “marijuana;” it just said “sour gummies and the flavor. Id. at 22-23. Mendoza uses the edible gummies to help her sleep. Id. She was not pregnant when she was using the gummies. Hr'g Tr. 1/12/2024 (Doc. 98) at 22.
On August 2, 2023, the defendant told her that he “was feeling off, feeling a little dizzy.” Id. at 23. He did not say that he was “high.” Id. at 24. The defendant suffers from migraines so she told him to lie down. Id. Mendoza noticed that the bag of gummies had been moved from the corner of her dresser where she kept them to the middle of the dresser. Id. She asked the defendant if he ate a gummy. Hr'g Tr. 1/12/2024 (Doc. 98) at 24. She testified that he responded: “Yeah, I did eat one, but I thought they were candies[.]” Id. Mendoza added that they keep candy in the room and the defendant loves candy. Id.
Mendoza made the defendant aware that the gummy was a marijuana edible. Id. at 26. She testified that he was “surprised to find out that he had eaten a marijuana edible[.]” Id. He had never eaten a marijuana edible before or after August 2, 2023. Hr'g Tr. 1/12/2024 (Doc. 98) at 26. Mendoza testified that she told the defendant that “we're going to have to tell your probation officer about that. And he agreed.” Id. at 24.
The Court's examination:
Mendoza believes that the defendant told her that he ate one gummy. Id. at 27. The defendant was aware that Mendoza used edible gummies to help her sleep. Id. In response to the Court's question of if she knew whether the defendant called his probation officer to tell her that he ate the marijuana edible, Mendoza testified: “No. I believe he already had - she already asked him to come in, so we were just planning to tell her when he went in.” Id. at 27-28.
Cross-examination:
The defendant's job involves hard physical work. Hr'g Tr. 1/12/2024 (Doc. 98) at 28. He sometimes talked to her about his back hurting, but not frequently. Id. When the defendant eats candy, for instance a bag of Skittles, he eats the whole bag. Id.
DISCUSSION
A district court may revoke a defendant's supervised release violation if it finds by a preponderance of the evidence that the defendant violated one or more of the conditions of supervised release. United States v. Jeremiah, 493 F.3d 1042, 1045 (9th Cir. 2007). It is the government's burden to demonstrate that a defendant has violated a condition of supervised release. United States v. Weber, 451 F.3d 552, 559 (9th Cir. 2006). Although the burden is only a preponderance of the evidence, to prove a violation “there must still be credible evidence the releasee actually violated the terms of supervised release.” United States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008).
The Federal Rules of Evidence do not strictly apply in supervised release revocation hearings. United States v. Verduzco, 330 F.3d 1182, 1185 (9th Cir. 2003); Fed.R.Evid. 1101(d)(3). A court may therefore consider hearsay evidence, provided the court's ultimate determination is based on “credible evidence” and “verified facts.” Perez, 526 F.3d at 547. Although there is no absolute right at a revocation hearing to confront testimonial witnesses under Crawford v. Washington, 541 U.S. 36, 68-69 (2004), a defendant is entitled to “a fair and meaningful opportunity to impeach the evidence” offered to establish an alleged violation to assure that any finding of a violation is based on verified facts and reliable information. United States v. Martin, 984 F.2d 308, 310 (9th Cir. 1993).
The New Crimes and Possession of Fentanyl
The Court finds that the testimony of Officer Jensen does not establish that the defendant committed new crimes or possessed fentanyl. The failure to call the arresting officer as a witness denied the defendant a fair and meaningful opportunity to impeach the evidence offered to establish the alleged violations. Officer Jensen did not provide verified facts and reliable information to establish that the fentanyl pill and drug paraphernalia belonged to the defendant. Her testimony consisted only of reading the police report prepared in connection with the defendant's arrest. That report is insufficient in several significant respects to establish the commission of new crimes and possession of fentanyl.
As discussed earlier, the violations based on the commission of new crimes and possession of fentanyl stems from a fentanyl pill and drug paraphernalia found “in plain view” in a car in which the defendant was an occupant. However, the police report does not note: (1) who owned the car; (2) whether there were other people in the car; (3) whether the defendant had the key for the car; or (4) where the pill and drug paraphernalia were found in the car. Ms. Jensen has no knowledge of these facts because she relied only on the police report in preparing the petition and for her testimony. Ms. Jensen does know that the defendant does not have a valid driver's license. However, there is no mention of that in the police report, which is odd if the defendant was in the driver's seat of the vehicle.
If the government had called the arresting officer to testify about any of the facts discussed above (e.g., the defendant was the only occupant of the car; the drugs were in the front passenger area) which presumably established probable cause for the defendant's arrest and the new criminal charges, it likely would have proven that the allegations at issue. But given the factual vacuum that exists, the Court concludes that the government has not proven by a preponderance of the evidence that the defendant knowingly possessed drugs or drug paraphernalia. It is therefore recommended that the District Court dismiss these allegations in the supervised release petition.
Marijuana Use
At their meeting on August 2, 2023, the defendant told Ms. Jensen that he took a THC gummy about three days prior. He said that he thought the gummy would help him sleep because he was having trouble sleeping and his back was hurting. The defense has not contested that the defendant made those statements. The defense also does not contest that the defendant's urine sample tested positive for marijuana or THC. Rather, defense counsel argues that the defendant took the gummy by accident and therefore did not knowingly use marijuana. The testimony does not support that argument.
Ms. Mendoza testified that the defendant was aware that she used THC gummies, which she kept on the corner of the dresser, to help her sleep. That fact undercuts the argument that the defendant accidentally ate a gummy from the bag of gummies on her dresser. More importantly, the defendant never told Officer Jensen that he accidentally took a THC gummy. Ms. Mendoza testified that after the defendant became aware that the gummy contained THC, she told him that they were going to have to tell his probation officer that he accidentally ate the gummy. However, he did not tell Ms. Jensen before his meeting with her on August 2, 2023. He also did not tell Ms. Jensen that he accidentally took the THC gummy when he met with her on August 2, 2023. Officer Jensen's notes from her meeting with the defendant reflect that she asked him: “what was he thinking when he took the gummy and why he would take something that isn't his.” It stands to reason that if the defendant accidentally took the gummy, he would have explained that to Officer Jensen. The explanation that the defendant provided for taking the gummy -difficulty sleeping and back pain - shows that he knowingly and intentionally took the THC gummy in violation of a condition of his supervised release. Accordingly, it is recommended that the District Court conclude that the defendant violated a condition of supervised.
CONCLUSION
It is recommended that the District Court find that the government has not proven by a preponderance of the evidence that the defendant committed new crimes or possessed fentanyl, and therefore, dismiss Allegation A and Allegation B in the supervised release petition.
It is further recommended that the District Court find that the government proved Allegation C in the petition (marijuana use) by a preponderance of the evidence and revoke the defendant's supervised release.
Pursuant to 28 U.S.C. §636(b) and Rule 59(b)(2) of the Federal Rules of Criminal Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. No reply shall be filed unless leave is granted from the District Court. If objections are filed, the parties should use the following case number: CR-21-01070-TUC-JCH.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge in accordance with Fed. R. Crim. P. 59 may result in waiver of the right of review.