Free Order Modifying Conditions of Supervision - District Court of Colorado - Colorado

Case 1:04-cr-00435-MSK
PROB 12 (02/05-D/CO)

Document 105

Filed 09/11/2008

Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO U. S. A. vs. ERNESTO MANUEL HERNANDEZ Docket Number: 04-cr-00435-MSK-02

Petition for Modification of Conditions of Supervised Release COMES NOW, Edward C. Gadden, probation officer of the court, presenting an official report upon the conduct and attitude of Ernesto Manuel Hernandez who was placed on supervision by the Honorable Marcia S. Krieger, sitting on the court in Denver, Colorado, on the 20th day of March, 2006, who fixed the period of supervision at five years and imposed the general terms and conditions theretofore adopted by the court and also imposed special conditions and terms as follows: 1) The defendant will participate in a program of testing and treatment for drug abuse, as directed by the probation officer, until such time as he is released from the program by the probation officer. He'll abstain from the use of alcohol or other intoxicants during the course of treatment and shall pay the cost of treatment as directed by the probation officer.

RESPECTFULLY PRESENTING PETITION FOR ACTION OF COURT FOR CAUSE AS FOLLOWS: Petitioner states there is probable cause to believe that the defendant has violated one or more conditions of supervised release, as more particularly described in the attachment which is incorporated by reference. PRAYING THAT THE COURT WILL ORDER the modification of the defendant's conditions of supervised release to include a special condition requiring that: 1) the defendant shall be placed on home detention for a period of four (4) months, to commence within 21 days of the court order. During this time, the defendant shall remain at his place of residence except for employment and other activities approved in advance by the probation officer. The defendant shall maintain a telephone at his place of residence without any special services, modems, answering machines, or cordless telephones for the above period. The defendant shall wear an electronic device and shall observe the rules specified by the probation officer. The defendant will be required to pay the cost of electronic monitoring as directed by the probation officer.

ORDER OF THE COURT Considered and ordered this 11th day of September, 2008, and ordered filed and made a part of the record in the above case. I declare under penalty of perjury that the foregoing is true and correct. s/ Edward C. Gadden Edward C. Gadden U.S. Probation Officer s/ Marcia S. Krieger Marcia S. Krieger U.S. District Judge Place: Denver, Colorado Date: September 9, 2008

Case 1:04-cr-00435-MSK

Document 105

Filed 09/11/2008

Page 2 of 2

ATTACHMENT The period of supervision commenced January 18, 2007. On January 19, 2007, the conditions of supervision were read and explained to the defendant and on that date, the defendant acknowledged that the conditions were fully understood and that a copy of the conditions was provided. Since the beginning of supervision, the defendant's residence and employment situations have been stable. Police contacts have been limited to minor traffic matters only. Monthly fine payments have not always been consistent, although the defendant has usually supplemented any missing payments by submitting larger payments on later dates. The defendant was compliant with substance abuse testing and treatment from January 2007, until he was successfully discharged from treatment in February of 2008. At that time, he was taken off of the phase urine testing program and placed on random urine testing. On July 24, 2008, the probation officer instructed the defendant to submit a random urine sample at Correctional Management Inc. (CMI). This random sample tested positive for metabolites of marijuana. The defendant apologized for using marijuana. Additional positive marijuana urine samples were collected on August 7, 15, and 19, 2008. The defendant admitted that he had resumed using marijuana on a daily basis immediately after he was discharged from the phase urine testing program. It was determined that there was a potential third party risk if the defendant continues to use drugs, as he operates company vehicles and hazardous equipment for his current employer. The Court granted permission to notify the defendant's employer if additional drug usage was confirmed. The defendant's employer was made aware of the defendant's drug use. Drug testing since August 19, 2008, has been negative. On September 2, 2008, the defendant voluntarily signed a Waiver of Hearing to Modify Conditions of Supervised Release form agreeing to add the aforementioned period of home detention. This probation officer witnessed his signature. The defendant received assistance of counsel in this matter from Assistant Federal Public Defender Rick Williamson, who further signed the form. Following final approval from the Court, the defendant will be placed on the home detention program.