United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
CHRISTINA ARMIJO, CHIEF UNITED STATES DISTRICT JUDGE
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]
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
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.
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.
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.
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).
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
MOTION TO DISMISS
The Court May Revoke Defendant's Supervised Release
Regardless of the fact that the State Court Charges Have Been
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.”).
Defendant Received Adequate Notice to Satisfy Due ...