Opinion
6:21-po-234-HBK-1
07-06-2021
UNITED STATES OF AMERICA, Plaintiff, v. MYRNA SANDOVAL, Defendant.
ORDER PERMITTING GOVERNMENT TO AMEND VIOLATION, RECALLING WARRANT AND RESETTING INITIAL APPEARANCE
(DOC. NO. 1)
HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court upon pro se Defendant's request to place this matter back on the Court's calendar. See docket entry dated June 25, 2021. Defendant was issued a Notice of Violation (No. F- 5200233) for failing to pay a recreation fee on or about January 24, 2021 in violation of 36 C.F. R. § 261.17. (Doc. No. 1). According to the Statement of Probable Cause in support of the violation, Defendant's vehicle was found parked and unattended without a displayed permit at the Highway 108 Sno-Park, located in Stanislaus National Forest. (Id.). On April 16, 2021, a Notice to Appear was mailed to Defendant setting this matter for an Initial Appearance on May 3, 2021. (See docket entry dated May 3, 2021; Doc. No. 2). Defendant failed to appear at the Initial Appearance and a warrant issued consistent with Fed. R. Crim. P. 58(d)(3). (See docket entry dated May 24, 2021; Doc. No. 3).
A review of the Notice of Violation reveals it failed to advise Defendant whether the offense required a Mandatory Appearance or permitted collateral to be posted and forfeited in lieu of appearance. (See generally Doc. No. 1.) According to the 2021 Collateral Forfeiture Schedule, a “[f]ailure to pay any recreation fee is prohibited” and is subject to a fine of “$100 or 3x use Actual Fee, whichever is greater.” General Order No. 627; see also 36 C.F. R. § 261.17 (prohibiting the “[f]ailure to pay any recreation fee” and providing “[notwithstanding 18 U.S.C. § 3571(e), the fine imposed for the first offense of nonpayment shall not exceed $100.”). Thus, the charged violation is not subject to a Mandatory Appearance and the violation should have provided notice that Defendant could post collateral in the amount indicated for the offense ($100 plus $30 processing fee for a total amount of $130), and consent to forfeiture of collateral in lieu of appearance. Fed. R. Crim. P. 58(d)(1). Alternatively, Defendant has the right to make an appearance to plead guilty or not guilty to the violation. Fed. R. Crim. P. 58(b)(3).
The Rules of Criminal Procedure provide that “[u]nless an additional or different offense is charged or a substantial right of the defendant is prejudiced, the court may permit [a violation notice] to be amended at any time before the verdict or finding.” Fed. R. Crim. P. 7(e). Therefore, the Court will afford the government the opportunity to amend the violation notice. In order to permit service of the amended violation on Defendant, the Court will reschedule this matter for the Court's September 14, 2021 calendar. The Court also will recall the warrant.
Accordingly, it is ORDERED:
1. The government may file an amended notice of violation as set forth above within twenty-one (21) days of the date of this Order.
2. The Court resets the Initial Appearance in this matter for September 14, 2021 at 2:00 P.M and recalls the warrant is this case.
IT IS SO ORDERED.