Free Sealed Document - District Court of Colorado - Colorado

Case 1:00-cr-00526-WDM
PROB 12M (10/01-D/CO)

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Filed 07/31/2008

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UNITED STATES DISTRICT COURT
for DISTRICT OF COLORADO

U. S. A. vs. DOMINICK SWABACKER

Docket No. 00-cr-00526-WDM-08

Petition for Issuance of Arrest Warrant Due to Violation of Supervised Release COMES NOW, Thomas Meyer, PROBATION OFFICER OF THE COURT, presenting an official report upon the conduct and attitude of Dominick Swabacker who was placed on supervision by the Honorable Walker D. Miller sitting in the court at Denver, Colorado, on the 6th day of November, 2003, who fixed the period of supervision at five (5) years, commencing September 12, 2007, and imposed the general terms and conditions theretofore adopted by the court and also imposed special conditions and terms as follows: 1. The defendant 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.

Conditions were modified on June 3, 2008, to include the following special condition: 2. The defendant shall reside in a Residential Reentry Center for a period of up to 180 days, to commence as directed by the probation officer, and shall observe the rules of that facility.

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 18 U.S.C. § 3606, Petitioner requests that the Court issue a warrant for the arrest of the Defendant who violated a condition of supervised release and that this petition and the warrant be sealed until after Defendant's arrest. I state under penalty of perjury that the foregoing matters are true and correct to the best of my knowledge and belief. Executed this 30th day of July, 2008. s/Thomas Meyer Thomas Meyer, 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 warrant for Defendant's arrest be issued and that this Petition and Order, as well as the warrant, be sealed until Defendant's arrest. Dated this 31st day of July, 2008.

s/ Walker D. Miller
WALKER D. MILLER, Senior United States District Judge

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ATTACHMENT On September 14, 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 12, 2007. The defendant has committed the following violations of supervised release: 1. FAILURE TO PARTICIPATE IN SUBSTANCE ABUSE TREATMENT AS DIRECTED BY THE PROBATION OFFICER:

On September 24, 2007, October 16, 2007, and February 20, 2008, the defendant failed to keep his counseling appointments at Correctional Management, Inc. (CMI), the testing and treatment program in which the probation officer had directed him to participate, which constitutes a Grade C violation of supervised release. This charge is based on the following facts: On September 24, 2007, the defendant arrived 20 minutes late to his initial drug treatment evaluation with CMI which then had to be rescheduled for October 16, 2007. On October 16, 2007, I received notification that the defendant failed to attend his initial drug treatment evaluation at CMI on that date and the appointment was rescheduled a second time. The defendant stated that he thought the appointment was scheduled for October 18, 2008. On February 21, 2008, I received notification that the defendant failed to attend his drug treatment counseling session at CMI on February 20, 2008. He arrived late for group and was not admitted. 2. FAILURE TO PARTICIPATE IN SUBSTANCE ABUSE TREATMENT AS DIRECTED BY THE PROBATION OFFICER:

On March 26, 2008, the defendant failed to keep his counseling appointment at Correctional Management, Inc. (CMI), the testing and treatment program in which the probation officer had directed him to participate, which constitutes a Grade C violation of supervised release. This charge is based on the following facts: On March 27, 2008, I received notification that the defendant failed to attend his drug treatment counseling session at CMI on March 26, 2008. The defendant stated he had attended a rosary for a family friend and had not obtained my permission beforehand to be excused from attending class on that date. I told the defendant I would not consider this to be a violation if he provided me with written documentation of the rosary. He has failed to provide any such documentation. 3. FAILURE TO PARTICIPATE IN DRUG TESTING AS DIRECTED BY THE

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PROBATION OFFICER: On or about October 27, 2007, February 10, 2008, and April 7, 2008, the defendant failed to submit urine specimens as required at CMI, the testing and treatment program in which probation officer had directed him to participate, which constitute Grade C violations of supervised release. This charge is based on the following facts: On October 27, 2007, I received notification from CMI that the defendant failed to provide a urine specimen at CMI on October 27, 2007. On October 29, 2007, the defendant told me that he had arrived too late at CMI to provide a urine specimen. On February 11, 2008, I received written notification from CMI that the defendant failed to provide a urine specimen at CMI on February 10, 2008. On February 10, 2008, while conducting a home contact with the defendant, he stated that he had arrived one to two minutes prior to closing time at CMI to provide a urine specimen but that the facility was closed. On April 7, 2008, I received notification from CMI that the defendant failed to provide a urine specimen at CMI on that same date. On April 7, 2008, the defendant told me that he had fallen asleep and thus had failed to provide a urine specimen. 4. POSSESSION AND USE OF A CONTROLLED SUBSTANCE:

On or about December 20, 2007, January 20, 2008, and February 13, 2008, the defendant used or administered a controlled substance, marijuana, which had not been prescribed for him by a physician, which constitutes a Grade C violation of supervised release. This charge is based on the following facts: On March 17, 2008, I met with the defendant to discuss a number of urine specimens that showed indications of possible flushing attempts by the defendant to conceal the use of illegal drugs. He reported that he had used marijuana three times since the onset of supervised release. He stated that on or around December 20, 2007, he smoked marijuana at a party. On or around January 20, 2008, he smoked marijuana again after purchasing a joint for $2.00. Finally, on or around February 13, 2008, he obtained one marijuana joint and smoked it that same day. He stated that he was unhappy over the fact that he was not providing an adequate source of income for his family. The defendant was instructed to cease the use of marijuana and any other illegal drugs. 5. VIOLATION OF LAW:

On or about March 28, 2008, the defendant committed Criminal Mischief in violation of Colorado Revised Statute 18-4-501. This is a felony offense, which constitutes a Grade B violation of supervised release.

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This charge is based on the following facts: The defendant was arrested and charged with felony Criminal Mischief by the Adams County, Colorado, Sheriff's Department on March 28, 2008. The defendant reported that he had been driving his vehicle with a female friend when he noted another vehicle following them and that someone from that vehicle threw two bottles at his vehicle. The two vehicles collided and he stated that the other driver then fled. According to the police report, Adams County sheriff's deputies were dispatched in regards to an alleged felony menacing and hit and run incident that occurred on March 28, 2008. The victim stated that he had argued with the defendant in the parking lot of a bar and that the defendant told the victim that the defendant had a gun in his vehicle although no firearm was seen by the victim nor recovered by police. The victim told police that he drove out of the parking lot with the defendant following him and that the defendant rammed his vehicle into the victim's car. The victim fled to a convenience store and called police. The defendant was subsequently stopped by Adams County deputies and the victim identified him as the suspect in the above incident. This case remains pending in Adams County District Court (Case No. 08-CR-875). The defendant has not yet entered a plea and the next court date is scheduled for October 1, 2008. 6. FAILURE TO COMPLY WITH RULES OF RESIDENTIAL RE-ENTRY CENTER:

On or about July 18, 2008, the defendant possessed a cell phone, which constitutes a Grade C violation of supervised release. This charge is based on the following facts: On July 23, 2008, I received notification from the Independence House RRC that the defendant was found in possession of a cell phone on July 18, 2008, inside the RRC facility. An initial patdown check by RRC staff members of the defendant found no contraband items. However, the defendant then walked into the RRC office where he was observed to have reached down on a chair and place something in his pocket. When RRC staff asked what he had placed in his pocket, he stated that it was a piece of paper that had fallen out of his pocket. The defendant then handed staff members a cell phone which was a prohibited item. The defendant was fully aware that he was not allowed to possess a cell phone without prior approval. He was given 75 hours of extra duty in response to this violation. 7. FAILURE TO COMPLY WITH RULES OF RESIDENTIAL RE-ENTRY CENTER:

On or about July 18, 2008, the defendant provided a false statement to a RRC staff member, which constitutes a Grade C violation of supervised release.

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This charge is based on the following facts: On July 23, 2008, I received notification from the Independence House RRC that the defendant was found in possession of an unauthorized cell phone on July 18, 2008. Staff members had observed the defendant placing something in his pocket and the defendant lied by his having reported that it had been a piece of paper that had fallen out of his pocket. However, when the defendant was told that he would be patted down again he handed over a cell phone that was in his possession and had not been authorized by RRC staff for him to possess. I met with the defendant on July 24, 2008, at which time he stated that he lied to RRC staff members about possessing a cell phone as he did not want to have to stay in the RRC for the entire six month duration. 8. FAILURE TO RESIDE IN/COMPLY WITH RULES OF RESIDENTIAL REENTRY CENTER:

On or about July 19, 2008, the defendant failed to return to the RRC on time, which constitutes a Grade C violation of supervised release. This charge is based on the following facts: On July 22, 2008, I received notification from the Independence House RRC reporting that on July 19, 2008, the defendant signed out of the facility for the purpose of going to work at Ortiz Custom, 5555 West Colfax Avenue, Lakewood, Colorado, with a stipulated return time of 7:00 p.m.. At approximately 7:22 p.m., the defendant notified RRC staff that he would be returning to the facility. Case manager Anthony Gonzalez specifically prohibited the defendant from any time extension past 7:00 p.m. and the defendant has been informed of this condition by Gonzalez. I met with the defendant on July 24, 2008, and he stated that he contacted an unknown female, RRC staff employee at about 7:20 p.m. on July 19, 2008, to request a time extension as he was working overtime. The defendant stated that the staff member granted the time extension and that it was mutually agreed upon that the defendant would call the RRC when he was ready to depart his place of employment to return to the RRC. The defendant added that the RRC staff told him that he had reportedly stated that he needed an extra 40 minutes to complete his work and would then report back to the RRC although the defendant does not recall having made such a statement. The defendant stated that he contacted the RRC at about 11:00 p.m. on July 19, 2008, to report that he was on his way back to the facility. He stated that he did not arrive at the RRC until 1:19 a.m. because there were fewer buses to get him back to the facility at that early hour of the morning. On July 28, 2008, I contacted Allie Svacina, security counselor, who stated that she was the only female staff member working the evening of July 19, 2008. She reported that the defendant had contacted her at about 7:22 p.m. and told her he would be leaving work in 40 minutes to return to the RRC. She stated that he did not ask for permission for a time extension, rather, simply told her that this was what he intended to do. Svacino told me that the defendant was already in

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violation of RRC rules and regulations in that he called the RRC after the previously stipulated 7:00 p.m. return time. When he failed to return, the defendant was placed on abscond status at 10:45 p.m. and a hospital/jail search by RRC staff failed to locate him. Svacina said that the defendant finally returned to the RRC on July 20, 2008, at 1:19 a.m. 9. FAILURE TO COMPLY WITH RULES OF RESIDENTIAL RE-ENTRY CENTER:

On or about July 20, 2008, the defendant provided a positive breathalyser for alcohol, which constitutes a Grade C violation of supervised release. This charge is based on the following facts: On July 21, 2008, I received notification from the Independence House RRC reporting that on July 19, 2008, the defendant departed the facility for the purpose of going to work. He returned to the facility on July 20, 2008, at approximately 1:19 a.m. and provided a positive breathalyser sample. The first sample obtained at approximately 1:30 a.m. reflected a positive BAC of 0.020. The second sample obtained at approximately 1:40 a.m. reflected a positive BAC of 0.017. The third sample obtained at approximately 1:50 a.m. reflected a positive BAC of 0.024. On July 24, 2008, I met with the defendant who denied having consumed any alcohol after departing the RRC on July 19, 2008. Rather, he stated that he had used some mouthwash when he left his place of employment to return to the RRC. 10. FAILURE TO COMPLY WITH RULES OF RESIDENTIAL RE-ENTRY CENTER:

On or about July 20, 2008, the defendant attempted to bribe an RRC staff member, which constitutes a Grade C violation of supervised release. This charge is based on the following facts: On July 22, 2008, I received written notification from the Independence House RRC reporting that on July 20, 2008, the defendant asked RRC security counselor Antonio Loriga not to report the fact that the defendant had provided a positive breathalyser sample on that date. The defendant stated that he would get Loriga anything he wanted as long as Loriga did not report the positive breathalyser sample. Loriga responded by stating that he would not accept a bribe. On July 24, 2008, the defendant stated that he had not attempted to bribe any RRC staff member. He stated that he had asked a RRC staff member whom he knows only by the name of "Tony" to consider the option of allowing the defendant to perform extra duty in lieu of receiving a "writeup" or incident report.

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11.

FAILURE TO COMPLY WITH RULES OF RESIDENTIAL RE-ENTRY CENTER:

On or about July 25, 2008, the defendant traveled to an unauthorized location, which constitutes a Grade C violation of supervised release. This charge is based on the following facts: On July 25, 2008, I received written notification from the Independence House RRC reporting that on July 25, 2008, the defendant had departed the Independence House RRC to go to court in Brighton, Colorado, with a stipulated return time of 2:00 p.m. At approximately 12:30 p.m., the defendant contacted RRC staff member Anthony Gonzalez and asked for an extension because he stated he was still in Brighton. Gonzalez denied his request for an extension and informed him that he would need to be back to the facility by 2:00 p.m. When Gonzalez looked at the caller ID on the telephone, he realized that the defendant had called him from a 7-11 store. The defendant had already hung up the telephone before Gonzalez could speak to him about where the defendant was calling from. Gonzalez then conducted an internet search of the telephone number that the defendant was calling from and it originated from a 7-11 store in the vicinity of Colfax Avenue and Cherokee Street in Denver. The defendant was not authorized to be in that location.