Opinion
CR. No. 91-518 (TFH).
March 15, 2005
REPORT AND RECOMMENDATION
This matter was referred to a United States Magistrate Judge by the Honorable Thomas F. Hogan, Chief Judge, for a Hearing on Violation of Supervised Release and a Report and Recommendation.
Background
The Defendant, Michael Mitchell, was found guilty on August 31, 1992, of Unlawful Distribution of 5 Grams or More of Cocaine Base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii), and Unlawful Distribution of 5 Grams or More of Cocaine Base Within 1000 Feet of a School, in violation of 21 U.S.C. § 860(a). The Honorable Charles R. Richey sentenced Mr. Mitchell to 87 months imprisonment on each count, to run concurrently. Defendant was also placed on four years of supervised release, on Count One, and eight years of supervised release, on Count Two, both periods of supervised release to run concurrently. Special conditions of supervised release included a payment of $50 special assessment on each Count, and participation in substance abuse treatment as directed by the Probation Officer. Supervised release commenced on May 16, 1997, and is scheduled to terminate on May 15, 2005. On October 24, 2002, a Memorandum was submitted by the Probation Office advising the trial court of Mr. Mitchell's arrest for Assault on September 11, 2002. It was recommended to the trial court at that time that Mr. Mitchell be required to submit a letter of apology to the victim and the trial court acquiesced in that recommendation.
On May 26, 2004, the Probation Office was notified that Mr. Mitchell had been arrested in the District of Columbia for Possession of Cocaine, on May 8, 2004. No action was recommended at that time pending final disposition of the case then pending in D.C. Superior Court.
On October 28, 2004, the Probation Office filed a Form 12 Request for Course of Action, alleging that, on May 8, 2004, Mr. Mitchell had consented to a search by members of the Metropolitan Police Department and was found to be in possession of crack cocaine in violation of the terms and conditions of his supervised release.
The events leading up to the filing of the Form 12 Request for Course of Action are set forth in The Probation Officer's Memorandum dated August 19, 2004. It appears that, on May 12, 2004, the D.C. Pretrial Services advised the Supervising Probation Officer that Mr. Mitchell had been arrested on May 8, 2004, for Possession of Cocaine in Washington, D.C. Following his arrest, Defendant was released on his personal recognizance pending trial. On July 14, 2004, Mr. Mitchell appeared in D.C. Superior Court and his case was dismissed because the Government was not ready to proceed at that time.
According to the Assistant United States Attorney, the dismissal of Mr. Mitchell's case in Superior Court was the result of the failure of an essential police officer to be present at the hearing because the officer had not been previously notified. According to the Assistant United States Attorney, the dismissal of the case did not in any way relate to the lack of merit of the charges brought against Mr. Mitchell.
Hearing on Violation of Supervised Release
A hearing on the alleged violations of the conditions of Mr. Mitchell's supervised release was held by the undersigned on February 25, 2005. At the hearing, the Defendant was represented by counsel. The Probation Officer proffered to the Court the allegations set forth in the Form 12 dated August 20, 2004, and the Memorandum to the trial court dated August 19, 2004.
The Government, in support of the facts giving rise to Mr. Mitchell's arrest on May 4, 2004, and the charge of Possession With Intent to Distribute Cocaine, called Officer Brett Brown, a M.P.D. Vice Officer. Officer Brown testified that, on May 8, 2004, at approximately 4:00 p.m., in the 1600 block of Marion Street, N.W., a known high drug activity area, Mr. Mitchell was arrested. Officer Brown identified Mr. Mitchell in the courtroom and stated that a consensual search of Mr. Mitchell resulted in a bag being found on Defendant's person. This bag was located in Defendant's waistband area and it contained 15 small ziplocks, each of which contained a small white rocklike substance, which subsequently field tested positive for cocaine base. The Government introduced in evidence as Government Exhibits 1A and 1B, the Form PD 163, which is a brief memorialization of the events leading up to Mr. Mitchell's arrest. The PD 163 reflects that, at approximately 3:56 p.m. on May 8, 2004, police officers were patrolling in the area of the 700 block of Rhode Island Avenue, N.W., in Washington, D.C., following the receipt of numerous drug trafficking complaints for that area. During this patrol, officers saw Mr. Mitchell walking through the 1600 block of Marion Street, N.W., with a known drug user. Mr. Mitchell and the individual came together briefly in an alley and then separated. The police, believing such action was consistent with a narcotics transaction, made contact with Mr. Mitchell. Mr. Mitchell was asked by the police officers whether he had any contraband on his person and stated "no." Mr. Mitchell was then asked for permission to search his person and he gave his consent. From his waistband the police officer removed a clear piece of plastic containing 15 clear ziplocks containing a white rocklike substance. A portion of the sample was field tested and resulted in a positive reaction for cocaine base. Also taken from the Defendant was $74.24 in U.S. currency. Mr. Mitchell was placed under arrest for Possession With Intent to Distribute Cocaine Base and was taken to the Third District for processing. The field test was subsequently confirmed by Government Exhibit 2, which was the lab report and analysis, which indicated the total quantity of crack cocaine to be 1.7 grams.
At the hearing, Mr. Mitchell denied that he had any drugs on his person at the time of his arrest. Instead, he indicated that, while waiting for a bus at 7th and Rhode Island Avenue, N.W., he was approached by Officer Brown and other police officers, and he told them that he was in this area, having come downtown to purchase a mother's day gift for his mother. He stated also that he was searched and the police did not find any drugs on his person. He also denied being in the 1600 block of Marion Street, N.W., on the afternoon in question.
The undersigned found the testimony of Officer Brown to be more credible and also found that Mr. Mitchell, at the time of his arrest, was in possession of the crack cocaine retrieved from the waistband of his trousers.
Recommendation
Based upon the allegations of the Probation Office and the testimony of Officer Brown, the Court finds that Mr. Mitchell, while on supervised release, was in possession of 15 small rocks of crack cocaine, with a total weight of 1.7 grams. The undersigned also believes that the quantity of crack cocaine possessed by Mr. Mitchell indicates an intent by Defendant to sell the cocaine. Accordingly, the Court finds by a preponderance of the evidence that Mr. Mitchell is in violation of the terms and conditions of his supervised release. In his Memorandum dated August 19, 2004, the Supervising Probation Officer noted that, other than his arrests, Mr. Mitchell's adjustment to supervision had been satisfactory, in that he had reported when instructed and provided no evidence of illegal drug use. He also met his monthly supervision requirements and maintained a stable residence with his mother. He also actively participated in the care of his son and is employed as a laborer on a regular basis.The Probation Officer also noted that Mr. Mitchell has been on supervision since 1997 and has not been found guilty of any new charges. However, the amount of drugs found on his person at the time of his arrest in May 2004 reflects that Mr. Mitchell has returned to drug distribution. Mr. Mitchell has two prior convictions for drug possession and two for drug distribution.
Options available to the Court
The Probation Office notes that in determining the sentencing options, they utilize the 2004 edition of the U.S. Criminal Code and 2003 edition of the Guidelines Manual. Pursuant to U.S.S.C. § 7B1.4(a), the revocation guidelines are 4 to 10 months for a Criminal History Category of II and a Grade C violation. It should be noted that if the trial court were to find that the facts surrounding the May 8, 2004 arrest of Mr. Mitchell gave rise to Possession of Cocaine With Intent to Distribute, that the violation would then be elevated to a Grade A violation. The statutory maximum term of imprisonment available upon revocation is not more than three years, pursuant to U.S.C. § 3583(e)(3). Pursuant to 8 U.S.C. § 3583(g), if the defendant is found to have possessed a controlled substance, the trial court shall revoke the term of supervised release and require the defendant to serve a term of imprisonment. Following revocation, the trial court may order a period of supervised release of at least eight years, less any term of imprisonment, pursuant to 18 U.S.C. § 3583(h).