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United States v. Romero

United States District Court, D. New Mexico

August 25, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
KIMBERLY ROMERO, Defendant.

          MEMORANDUM OPINION AND ORDER

          M. CHRISTINA ARMIJO, CHIEF UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on Defendant's Motion to Dismiss Petition for Revocation of Supervised Release, to Release Defendant From Custody, and for Defendant to be Reinstated to Underlying Term of Supervised Release, filed June 16, 2017. [Doc. 172]

         THIS MATTER is further before the Court upon the Petition for Revocation of Supervised Release [Doc. 154] The Court heard oral argument on the Motion and held an evidentiary hearing on the Petition on July 11, 2017. The Court also invited extensive briefing on the legal issues raised in Defendant's Motion to Dismiss.

         At the conclusion of the hearing on July 11, 2017, the Court took under advisement the legal issues raised in the Motion to Dismiss and proceeded to take evidence on the Petition. Having considered the parties' submissions, the evidence presented at the hearing, the record, and the relevant law, the Court concludes that the Motion is not well taken and shall be denied. The Court further concludes that the Government has proven, by a preponderance of the evidence, that Defendant violated the mandatory condition that she not commit another federal, state or local crime, all as explained below.

         BACKGROUND

         Defendant was serving a term of supervised release when a criminal complaint was filed against her by the Bernalillo County Sheriff's Department alleging that she had committed the crime of Abuse of a Child resulting in great bodily harm, contrary to NMSA 1978, Section 30-6-1(D) (a first degree felony), and the crime of Conspiracy to Commit Abuse of a Child resulting in great bodily harm, contrary to NMSA 1978 Section 30-28-2 (a second degree felony). In connection with that complaint, Defendant was arrested by the Sheriff's Department on April 5, 2017; she was released the next day. The Court was advised of these circumstances when the United States Probation Office (USPO) filed a Petition for Revocation of Supervised Release on April 7, 2017. [Doc. 154] In the Petition for Revocation, the USPO alleged that Defendant had violated a mandatory condition of supervised release-namely the prohibition against committing “another federal, state, or local crime.” [Doc. 154] A copy of the state court criminal complaint was not attached to the Petition, but was tendered as an exhibit at the July 11, 2017 evidentiary hearing.

         Based upon the Petition for Revocation and an attached supplement (entitled Violation Report) in which the conduct alleged to underlay the state charges was described, this Court issued a warrant upon which Defendant was arrested on April 11, 2017. [Doc. 154; Doc. 154-1] After an initial appearance before a Magistrate Judge on April 12, 2017, Defendant was remanded to the custody of the United States Marshall's service; and on April 13, 2017, a preliminary detention revocation/detention hearing held by a Magistrate Judge resulted in an Order of Detention Pending Revocation Hearing. [Doc. 163] Defendant was subsequently released to a halfway house on July 12, 2017. Before a final revocation hearing could be held, Defendant filed the present Motion to Dismiss.

         In support of her Motion, Defendant alerted the Court to the fact that the state charges were dismissed without prejudice on June 12, 2017. [Doc. 172 ¶ 8] It remains unclear to this Court exactly why the state charges were dismissed, but it is suggested by Defendant that the state prosecutors were not prepared to proceed to a preliminary hearing within the time mandated by applicable state court rules. [Doc. 182 p. 2] The actual reason for the dismissal of the state charges is immaterial to this Court's analysis under the circumstances of this case. However, this Court is nonetheless concerned about the Petition's failure (on its face) to recite any facts which would support the alleged violations of a local, state or federal law. It is the experience of this Court in more than fifteen years that a petition alleging violations of conditions contain on its face, at minimum, a statement of factual allegations supporting the alleged violation. This requirement is simply good and proper pleading practice. Rarely, if at all, has the government ever asked the Court to rely on statements contained in a Violation Report in support of the alleged violation. In this case, what the Government relies upon for factual support is the document appended to the Petition, - a two page narrative prepared by the assigned Probation Officer titled Violation Report. [Doc. 183 p. 1-2] The Government contends that the statements set forth in the Violation Report are sufficient to satisfy the requirement that sufficient facts be pled so as to place Defendant on notice as to the basis for the alleged violation. [Doc. 183 p. 4] On the other hand, Defendant asserts that as a consequence of the dismissal, there “no longer exists” a basis for concluding that she violated the conditions of supervised release by committing a federal, state or local crime. [Doc. 172 ¶ 10] Defendant does not argue that facts set forth in the Violation Report should not be considered part of the Petition for purposes of pleading a basis for the alleged violation(s).

         Rather, Defendant relies on the fact of the state court dismissal and the consequent lack of any pending criminal charges. [Doc. 172 p. 3] At the Court's July 11, 2017, evidentiary hearing, and in written closing arguments, Defendant advanced two additional theories in support of her Motion: (1) a due process argument that, by omitting a specific “statutory reference” from the Petition for Revocation, the U.S. Probation Office did not provide Defendant with adequate notice of the basis for revocation; and (2) an attack on the sufficiency of the evidence presented by the Government to support revocation. [Doc. 182] In the ensuing analysis, each of these arguments is addressed in turn.

         ANALYSIS

         THE MOTION TO DISMISS

         1. The Court May Revoke Defendant's Supervised Release Regardless of the fact that the State Court Charges Have Been Dismissed

         Under 18 U.S.C. Section 3563(a)(1), which governs conditions of probation, and Section 3583(d), which governs the conditions of supervised release, “a mandatory condition of probation and supervised release is that the defendant not commit another federal, state, or local crime. A violation of this condition may be charged whether or not the defendant has been the subject of a separate federal, state, or local prosecution for such conduct.” U.S.S.G. § 7B1.1 cmt. n.1. In other words, “[a] conviction is not a prerequisite to the revocation of probation[, ]” and “a district court may revoke probation when [it is] reasonably satisfied that the probationer has violated a condition of [her] probation.” United States v. Fleming, 9 F.3d 1253, 1254 (7th Cir. 1993). Accordingly, the fact that the charges brought against Defendant in state court were dismissed without prejudice does not, as a matter of law, preclude the Court from revoking Defendant's supervised release if supported by the evidence. See United States v. Malloy, 394 Fed.Appx. 550, 551 (11th Cir. 2010) (“[D]istrict courts may revoke a defendant's supervised release based on conduct that state officials choose not to prosecute.”).

         2. Defendant Received Adequate Notice to Satisfy Due ...


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