Free Sealed Document - District Court of Colorado - Colorado

Case 1:00-cr-00245-DBS
PROB 12 (02/05-D/CO)

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

U. S. A. vs. Andre Lopez-Baker

Docket Number: 00-cr-00245-DBS-01 Petition on Supervised Release

COMES NOW, Michael Wilson, probation officer of the Court, presenting an official report upon the conduct and attitude of Andre Lopez-Baker who was placed on supervision by the Honorable Daniel B. Sparr sitting in the court at Denver, Colorado on the 9th day of November, 2000, 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 shall participate in a program of testing and treatment for drug abuse, as directed by the probation officer, until such time as the defendant 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. The defendant will be required to pay the cost of treatment as directed by the probation officer. The defendant shall participate in a program of mental health treatment, including specific focus on Post Traumatic Stress Disorder and anger management as directed by the probation officer, if deemed necessary, until such time as the defendant is released from the program by the probation officer. The defendant will be required to pay the cost of treatment as directed by the probation officer. The court authorizes the probation officer to release psychological reports and/or the presentence report to the treatment agency for continuity of treatment. On August 17, 2005, the court ordered that the defendant be placed on home detention for a period of four months, to commence within 21 days of the court' order. During this period, the defendant shall remain at his place of s residence at all times other than time spent at work or time spent on other activities approved in advance by the probation officer. This period of home detention will be enforced by electronic monitoring. To permit this monitoring, the defendant shall maintain a telephone at his place of residence without any special services, modems, answering machines, or cordless telephones. The defendant shall wear electronic devices and follow all other procedures specified by the probation officer. The defendant will be required to pay the cost of electronic monitoring as directed by the probation officer. On January 4, 2006, the court ordered that the defendant shall reside in a community corrections center for a period of no more than six months, to commence within 48 hours of a bed becoming available and shall observe the rules of that facility.

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RESPECTFULLY PRESENTING PETITION FOR ACTION OF COURT FOR CAUSE AS FOLLOWS:
(If short insert here: if lengthy write on separate sheet and attach)

See attached hereto and herein incorporated by reference.

Case 1:00-cr-00245-DBS
PROB 12 (02/05-D/CO)

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PRAYING THAT THE COURT WILL ORDER the issuance of a warrant for the arrest of the defendant for violations of supervised release and that the petition and warrant be sealed until the arrest of the defendant.

ORDER OF THE COURT Considered and ordered this 21st day of April, 2006, and ordered filed under seal 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/ Michael Wilson Michael Wilson U.S. Probation Officer Place: Denver, Colorado Date: April 21, 2006

s/ Daniel B. Sparr Daniel B. Sparr Senior U. S. District Judge

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ATTACHMENT

Attached hereto as Exhibits A , B and C and incorporated by reference are true copies of his Conditions of Supervised Release signed by the defendant November 9, 2000, August 25, 2003, and June 7, 2005. His signatures on these occasions acknowledged that the conditions had been read and explained to him, that he fully understood said conditions, and that he was provided with a copy of them. The term of supervised release commenced February 24, 2003.

The defendant has committed the following violations of supervised release:

1. FAILURE TO OBSERVE THE RULES OF THE COMMUNITY CORRECTIONS CENTER:

On April17, 2006, the defendant was under the influence of alcohol at the Independence House community corrections center at 2765 South Federal Boulevard in Denver, Colorado, in violation of House Policy 13 g) and the facility' Alcohol s Policy. This constitutes a Grade C violation of the special condition imposed by the court that the defendant shall observe the rules of the community corrections center.

This charge is based on the following facts:

The defendant began his court ordered placement at the community corrections center March 2, 2006. Subsequently, on the evening of April 17, 2006, he was late returning to Independence House and smelled of alcohol. He submitted to breath alcohol tests which produced positive results of .014 BAC, .028 BAC and .044BAC. His demeanor was described as defiant. The defendant was aware of the alcohol prohibition, having signed the rules manual and policy pertaining to same March 2, 2006.

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FAILURE TO OBSERVE THE RULES OF THE COMMUNITY CORRECTIONS CENTER:

On March 9, 2006, the defendant was under the influence of alcohol at the Independence House community corrections

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center at 2765 South Federal Boulevard in Denver, Colorado, in violation of House Policy 13 g) and the facility Alcohol Policy. This constitutes a Grade C violation of the special condition imposed by the court that the defendant shall observe the rules of the community corrections center.

This charge is based on the following facts:

On March 9, 2006, the defendant returned to Independence House at approximately 3:00pm after an approved pass and smelled strongly of alcohol. He submitted to breath alcohol tests which produced positive results of .045 BAC, .031 BAC, .036 BAC and .043 BAC. Two urine samples collected from the defendant that evening tested positive for ethanol. When confronted with his breath test results and his odor of alcohol, the defendant asserted that he had used a mouthwash containing alcohol. When next spoken to by the undersigned on March 17, 2006, the defendant then amended his statement and said he had consumed a " shot of vodka."The defendant was aware of the alcohol prohibition, having signed the rules manual and policy pertaining to same March 2, 2006.

3. FAILURE TO OBSERVE THE RULES OF THE COMMUNITY CORRECTIONS CENTER:

On April 17, 2006, at 12:05pm the defendant signed out of Independence House community corrections center at 2765 South Federal Boulevard in Denver, Colorado for the declared purpose of reporting to Aramark at Coors baseball field, his place of employment. The defendant failed to appear at his place of employment and was terminated. In so doing, he failed to receive advance permission of a location change, failed to obtain the Program Director' approval for a change in work s hours and failed to maintain employment, in violation of House Policies 1 i), and/or 3 a) and/or 3 h). This constitutes a Grade C violation of the special condition imposed by the court that the defendant shall observe the rules of the community corrections center.

This charge is based on the following facts:

On April 17, 2006, at 12:05pm the defendant signed out of Independence House community corrections center for the

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purpose of attending his job at Coors Field. His work was to commence at 2:00pm. At approximately 4:00pm, the defendant' work place supervisor, Mark Luckmann, telephoned the community corrections center with the news that the s defendant had failed to report for work. The defendant' whereabouts were unknown. Facility staff telephoned the s defendant' mother in an effort to locate him. At approximately 6:00pm, the defendant called the community corrections s center, stating that he was at his place of employment. He was directed to return to the community corrections center immediately. The defendant did not return to the facility until 8:50pm. The undersigned interviewed Mr. Luckmann who stated that the defendant did not report to or telephone the job on April 17, 2006 and was terminated. He described the defendant as habitually 20 to 30 minutes late for his work shift, with his failure to report to work being the final infraction triggering the termination. As of April 21, 2006, the defendant has failed to advise the undersigned of his termination. By signing out of the community corrections facility to attend his job and then failing to report to work, the defendant changed his destination/ location without permission, altered his work hours without permission and failed to maintain employment by causing his termination. The defendant was aware of these requirements as evidenced by his signature on the House Policies form dated March 2, 2006. From his sign out at 12:05pm until his return at 8:50 pm, the defendant' whereabouts s and activities on April 17, 2006, remain unknown.

4. FAILURE TO NOTIFY THE PROBATION OFFICER AT LEAST TEN DAYS PRIOR TO A CHANGE IN EMPLOYMENT

On March 22, 2006, the defendant failed to report for work at High School Posters, LLC at 2136 S. Platte River Drive in Englewood, Colorado. He failed to notify the probation officer of this job change until confronted April 10, 2006. This constitutes a Grade C violation of a standard condition of supervised release.

This charge is based on the following facts:

On March 17, 2006, during a meeting at the community corrections facility, the defendant told the undersigned probation officer of two new part time job opportunities, one at Coors Field and the other at High School Posters in Englewood. The defendant described the High School Posters job as primarily a morning position which would accommodate his afternoon

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and evening work hours at Coors Field. The defendant' employment plan equated full time work and was approved. As s verified by the defendant' sign out/sign in sheet at the community corrections facility and his work place time card, the s defendant worked approximately 24 hours total on March 20, 21 and 23, 2006 at High School Posters before abandoning this job without notice to the employer or the probation officer. On March 31, 2006, the defendant spoke with his supervisor to receive his paycheck. When confronted April 10, 2006, by the probation officer, the defendant acknowledged abandoning this job in favor of the Aramark job at Coors Field without notifying the probation officer.

5. FAILURE TO NOTIFY THE PROBATION OFFICER AT LEAST TEN DAYS PRIOR TO A CHANGE IN EMPLOYMENT

With probation office conditional approval, the defendant began self employment at the A-Art of War Fitness Center in Denver November 2, 2005. On February 17, 2006, it was learned that the defendant had not worked at this location for weeks. On February 22, 2006, the defendant admitted that he had not worked at the fitness center since on or about February 8, 2006 and had failed to so advise the probation officer. This is a Grade C violation of a standard condition of supervised release.

This charge is based on the following facts:

On October 24, 2005, the defendant proposed to the undersigned probation officer that he be permitted to be self employed as a fitness instructor at the A-Art of War Fitness Center 4272 Lowell Boulevard in Denver. This was approved on condition that the defendant document all income received, register his business with the Colorado Secretary of State, and set up a business bank account. The defendant was approved to commence this work November 2, 2005. On December 1, 2005, the defendant said he had earned $500 as an instructor. On January 19, 2006, the fitness center owner confirmed the defendant' continued employment. On February 17, 2006, the undersigned visited the fitness center at 4272 Lowell s Boulevard and met the owner. The defendant was absent. The owner said he had not seen or spoken to the defendant since January 22, 2006. The defendant had not worked at the facility since that time. His whereabouts and employment status were then unknown. Having received no information from the defendant regarding his cessation of work, he was

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subsequently contacted on February 22, 2006. He then admitted that he had not worked in any capacity since approximately February 8, 2006.

6. VIOLATION OF HOME CONFINEMENT WITH ELECTRONIC MONITORING:

On August 25, 2005, the defendant commenced his court ordered home confinement. His home confinement electronic monitoring schedule for November 30, 2005, required his return home not later than 8:00 pm. The defendant did not return to his home until 2:00 am the following day. This constitutes a Grade C violation of the court' special condition. s

This charge is based upon the following facts:

At 9:10 pm on November 30, 2005, the electronic monitoring vendor under contract with U. S. Probation, BI Incorporated, paged the U. S. Probation Officer assigned to cover nighttime electronic monitoring alerts. The defendant' failure to return s home as scheduled triggered this page. The responding officer checked the office voice-mail of assigned U. S. Probation Officer Hoppe in an effort to learn if the defendant had followed standard protocol which requires that he leave a voice-mail to explain his delay. There were none. The responding officer then telephoned the defendant' home and was told the s defendant was not at home. A call to the cellular number provided with which to reach the defendant went unanswered. A second telephone call to the defendant' home again yielded negative results. According to the defendant' sister, at 8:45pm s s the defendant had called the home to report he was running late. At 2:20 am December 1, 2005, the electronic monitoring nighttime coverage officer was again paged with the news that the defendant had returned home at approximately 2:00 am. The responding officer telephoned the defendant at his home at 2:25 am. The defendant was belligerent and dismissive. He stated that had relied upon his aunt to provide a ride home. The aunt was late. Further, her car was said to have suffered two flat tires. The defendant said her car was towed to her home at 3251 Meade Street in Denver. The defendant said that from there, he took a cab to his home. He said he did not call officers Hoppe or Wilson that night because he did not have those numbers on his person. He acknowledged that probation office telephone numbers were at home and available to him when he called home to report his running late. Efforts to verify his statement revealed that a car was towed to the aunt' s home address no later than 11:30 pm on November 30, 2005. Approximately three hours later, the defendant appeared

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within range at his home. According to the taxi cab company identified by the defendant, there was one fare within a two mile radius of the defendant' aunt' home address during the evening in question. It originated approximately 5-6 blocks s s from 3251 Meade and reached its destination 13 minutes later. These facts are not consistent with the defendant' version. s Thus, the defendant' whereabouts for at least three hours remain unknown. The defendant was well aware of the s scheduling requirements while on home confinement as evidenced by his signature on the home confinement participant agreement dated August 25, 2005.

7. LAW VIOLATION: DRIVING UNDER THE INFLUENCE

On or about February 27, 2004, the defendant committed the offense of Driving Under the Influence, a misdemeanor, which constitutes a Grade C violation of supervised release.

This charge is based upon the following facts:

On February 27, 2004 the defendant was arrested by City of Loganville, Georgia Police officers on charges of Driving Under the Influence, Open Container, Improper Temporary Tag, Failure to Maintain Lane, and Impeding the Flow of Traffic. On May 13, 2005, the defendant entered a plea of guilty to Driving Under the Influence in Loganville Municipal Court, case number 43157. He was sentenced to one year of probation, a $1000 fine, $400 in costs and 40 hours of community service. According to the court clerk, to date, the defendant has paid $420 toward his financial obligation.

8. USE OF A CONTROLLED SUBSTANCE:

On or about September 24, 2004, the defendant used marijuana, a controlled substance, 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:

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On or about September 24, 2004, while under the supervision of the U. S. Probation Office in Atlanta, Georgia, the defendant submitted a urine sample for substance abuse analysis. It was returned positive for metabolites of marijuana according to a report from Scientific Testing Laboratories, Inc. dated October 1, 2004. The defendant signed and dated the chain of custody form September 24, 2004.

9. FAILURE TO ATTEND SUBSTANCE ABUSE / MENTAL HEALTH COUNSELING AND TESTING :

The defendant was referred to Addiction Research and Treatment Services (ARTS) on June 7, 2005. Thereafter, he failed to attend scheduled dual diagnosis counseling appointments August 19, 2005, September 12, 2005, November 18, 2005, December 5, 2005 (psychiatrist), April 5, 2006 and failed to attend urine collections required on August 9, 2005, August 12, 2005, and February 23, 2006, each instance constituting a Grade C violation of his special conditions of supervised release.

This charge is based on the following facts:

On June 10, 2005, the defendant signed his dual diagnosis Program Plan which listed services to be provided at ARTS, including the requirements that he attend therapy sessions and submit to urine collection. The defendant regularly attended his appointments initially, but subsequently failed to attend those appointments listed above. The above listed missed appointments are all documented by incident reports, attendance logs and fax transmittals issued by ARTS and received at the probation office.

10. FAILURE TO PAY ELECTRONIC MONITORING FEES:

On August 17, 2005, your Honor ordered the defendant placed on four months home detention with electronic monitoring with the requirement that the defendant pay the cost of electronic monitoring. The defendant began his home confinement August 25, 2005, at a cost of $3.26 per day. The defendant has failed to pay $ 172.15 contrary to multiple instructions from the probation officer.

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This charge is based on the following facts:

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The defendant signed and dated the Waiver of Hearing form agreeing to electronic monitoring and the requirement to pay for same August 10, 2005. He subsequently signed his home confinement Participant Agreement August 25, 2005, which includes the wording " agree to pay monitoring costs of $3.26 per day... I will make all payments owed to BI Monitoring I by the 15th of each month."The defendant made payments of $120.62 posted October 18, 2005 and $101.69 posted December 12, 2005. On December 20, 2005 the defendant was told his electronic monitoring would end December 23, 2005, and of his responsibility for the fees incurred. On March 17, 2006, the defendant was instructed to pay his past due fees of $172.15. As verified, there have been no payments received at BI Monitoring since December 12, 2005. The outstanding balance remains $172.15.