United States District Court, W.D. North Carolina, Asheville Division
DENNIS L. HOWELL, Magistrate Judge.
THIS CAUSE came on to be heard before the undersigned upon a Violation Report (#54) filed in the above entitled cause by the United States Probation Office. In the Violation Report, the United States Probation Office alleges that Defendant had violated terms and conditions of his presentence release. At the call of this matter on for hearing it appeared Defendant was present with his counsel, Al Messer, and the Government was present through Assistant United States Attorney, Don Gast. From the evidence offered and from the statements of the Assistant United States Attorney and the attorney for Defendant, and the records in this cause, the Court makes the following findings.
Findings: At the call of the matter, the Government moved to amend paragraph 1 of the Violation Report to read as follows:
The defendant has violated the condition of bond that states "the defendant must refrain from use or unlawful possession of a narcotic drug or other controlled substances defined in 21 U.S.C. § 802, unless prescribed by a licensed medical practitioner, " in that on 11/26/13 the defendant admitted to taking Xanax.
The Defendant, after the amendment was allowed, admitted with explanation that violation and further admitted the allegations contained in allegation No. 2. The Government introduced, without objection, the amended Violation Report into evidence. Testimony was then presented by the Government through Officer Gerald L. Patton, United States Probation Officer.
Defendant was charged in a bill of information (#1) filed on September 14, 2013 with public corruption conspiracy in violation of 18 U.S.C. § 371 and in count two with embezzlement in violation of 18 U.S.C. § 666(a)(1)(A). On September 24, 2012 Defendant entered a plea of guilty to both offenses and was released by the undersigned pursuant to terms and conditions of release (#15). The terms and condition of release included the following:
(8)(p) Defendant shall refrain from use or unlawful possession of a narcotic drug or other controlled substances defined in 21 U.S.C. § 802, unless prescribed by a licensed medical practitioner.
(8)(q) Defendant is to submit to any testing required by the pretrial services office or the supervising officer to determine whether the defendant is using a prohibited substance. Any testing may be used with random frequency and include urine screening, the wearing of a sweat patch, a remote alcohol testing system, and/or any form of prohibited substance screening or testing. The defendant must refrain from obstructing or attempting to obstruct or tamper, in any fashion, with the efficiency and accuracy of any prohibited substance testing or monitoring which is (are) required as a condition of release.
On November 26, 2013, the Defendant admitted to taking Xanax. Defendant advised his U.S. Probation Officer that he had a prescription for this medication but he never produced the prescription. In his Presentence Report, Defendant had advised the reporting U.S. Probation Officer that the only medication he had been taking was methadone. On November 26, 2013 the Defendant, while giving a urine sample, it was discovered that Defendant had concealed in his underwear a small bottle that was wrapped in duct tape in which was located urine that Defendant had stored and which he was attempting to provide to the U.S. Probation Officer as his urine sample. His intent in doing so was so his use of Xanax would be undetected.
Discussion. 18 U.S.C. § 3148(b)(1) provides as follows: The judicial officer shall enter an order of revocation and detention if, after a hearing, the judicial officer -
(1) finds that there is -
(A) probable cause to believe that the person has committed a Federal, State, or local ...