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

Case 1:03-cr-00214-WDM
PROB 12M (10/01-D/CO)

Document 323

Filed 08/29/2008

Page 1 of 2

UNITED STATES DISTRICT COURT
for DISTRICT OF COLORADO

U. S. A. vs. EMILIO HERRERA-MACIAS

Docket No. 03-cr-00214-WDM-03

Petition for Issuance of Summons Due to Violation of Supervised Release COMES NOW, Kurt Pierpont, PROBATION OFFICER OF THE COURT presenting an official report upon the conduct and attitude of Emilio Herrera-Macias who was placed on supervision by the Honorable Walker D. Miller sitting in the court at Denver, Colorado, on the 2nd day of November, 2005, who fixed the period of supervision at five (5) years, commencing September 25, 2007 , and imposed the general terms and conditions theretofore adopted by the court and also imposed special conditions and terms as follows: 1. If the defendant is not deported, he shall participate in a program of testing and treatment for drug abuse, as directed by the probation officer, until he is released from the program by the probation officer. The defendant shall 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. If the defendant is deported, he shall not thereafter re-enter the United States illegally. If the defendant re-enters the United States legally, he shall report to the nearest United States Probation Office within seventy-two hours of his return. RESPECTFULLY PRESENTING PETITION FOR ACTION OF COURT FOR CAUSE AS FOLLOWS: Petitioner states there is probable cause to believe that the Defendant has violated a condition of his supervised release as more particularly described in the attachment which is incorporated by reference. Pursuant to FRCRP § 32.1 (c)(1), Petitioner requests that the Court issue a summons for the defendant to appear at a supervised release modification hearing. I state under penalty of perjury that the foregoing matters are true and correct to the best of my knowledge and belief. Executed this 28th day of August , 2008. s/Kurt Pierpont Kurt Pierpont, Senior U.S. Probation Officer ORDER OF THE COURT Based upon the foregoing, I find probable cause exists to believe the Defendant has violated a condition of his supervised release. I order that a summons issue for the defendant to appear at a supervised release modification hearing. Dated this 29th day of August, 2008 s/ Walker D. Miller __________________________________________ WALKER D. MILLER, Senior U. S. District Judge

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Case 1:03-cr-00214-WDM

Document 323

Filed 08/29/2008

Page 2 of 2

ATTACHMENT On September 27, 2007, the conditions of supervised release were read and explained to the defendant. On that date, he acknowledged in writing that the conditions had been read to him, that he fully understood the conditions, and that he was provided a copy of them. The term of supervised release commenced on September 25, 2007. On November 21, 2007, Case Number 2007T16597 was filed against the defendant in Adams County Court alleging Failure to Display Proof of Insurance, Driving Under Suspension, Registration-Fictitious Plates, and Permitting Unauthorized Minor to Drive. On May 1, 2008, the defendant entered a plea of guilty to the Permitting Unauthorized Minor to Drive charge (Class B traffic infraction) and the remaining charges were dismissed. The defendant's fines and costs total $72. On May 30, 2008, Case Number 2008T4364 was filed against the defendant in Weld County Court alleging Driving Under the Influence (unclassified misdemeanor). The defendant is at liberty on a $2,500 bond and this matter is currently scheduled for jury trial on October 15, 2008, 8 a.m., in Courtroom 5. On June 26, 2008, Case Number 2008T9090 was filed against the defendant in Adams County Court alleging Driving Under the Influence, DUI Per Se, Driving Under Restraint, and Fail to Stop at Stop Sign. The defendant was issued a Summons in this matter, which is currently scheduled for a pretrial conference on September 30, 2008, 1:30 p.m., in Courtroom 6. On August 18, 2008, Case Number 2008M3703 was filed against the defendant in Adams County Court alleging Driving Under the Influence, DUI Per Se, Obstructing a Peace Officer, and Driving Under Restraint. The defendant is at liberty on a $10,000 bond and this matter is currently scheduled for arraignment on September 19, 2008, 8:30 a.m., in Courtroom 4. I am seeking a modification of the defendant's conditions of supervised release to result in his placement into the Independence House Residential Reentry Center (RRC) for a period of up to one (1) year in response to the above violation of supervised release. I attempted to have the defendant sign off on a "Waiver of Hearing to Modify Conditions of Probation/Supervised Release or Extend Term of Supervision" which waives the right to a hearing and agrees to the proposed modification of the conditions of supervised release; however, defendant's attorney, Harvey Steinberg, disagreed with the portion of the form which states: To whatever extent this modification or extension arises from a possible violation of a condition of my probation or supervised release, I understand that even after agreeing to the below listed modification, this conduct could still be considered in the future by the Court as the basis for possible revocation of my probation or supervised release. On August 19, 2008, defendant acknowledged that he was guilty of one of the DUI cases but said he did not commit the other two. The defendant did not acknowledge which of the three DUI cases he was guilty of. I have spoken to Chief Assistant U.S. Attorney James Allison who has no objection with this proposed modification for placement in a residential reentry center. Accordingly, we are requesting that a summons issue for a supervised release modification hearing.