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United States v. Ballew

United States District Court, W.D. North Carolina, Asheville Division

February 11, 2014



DENNIS L. HOWELL, Magistrate Judge.

THIS CAUSE came on to be heard before the undersigned upon a Violation Report (#9) 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 pretrial release. At the call of this matter on for hearing it appeared Defendant was present with his counsel, Rich Cassady, and the Government was present through Assistant United States Attorney, Richard Edwards. 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 Defendant, by and through his attorney, denied the allegation contained in the Violation Report. The Government introduced, without objection, the Violation Report into evidence.

Defendant was charged in a bill of information (#1) filed on October 29, 2013 with excavating, removing, damaging, or otherwise altering or defacing archaeological resources located upon public lands in violation of 16 U.S.C. § 470ee(a) and 470ee(d). On October 31, 2013 Defendant entered a plea of guilty. After the plea of guilty, this Court released Defendant on terms and conditions of presentence release (#5). The terms and condition of release included the following:

(1) The defendant must not violate any federal, state or local law while on release.
(8)(w) Defendant may possess a firearm for the purposes of hunting only. Firearms, destructive devices or other dangerous weapons are to be store at the home of Mr. & Mrs. Canipe. After hunting, weapons to be returned to the Canipe home.

Testimony was presented by the Government through Mark Letterman, a detective with the Yancey County Sheriff's Office. Det. Letterman testified that he was contacted by Shirley McFadyen on or about January 14, 2014 in regard to the Defendant allegedly stealing two Remington rifles and a Horton crossbow from Shirley Black McFadyen. From the investigation by Det. Letterman, it appears that Mrs. McFadyen was separated from her husband. During the separation, Mrs. McFadyen developed a romantic relationship with the Defendant. Beginning in September of 2013, Mrs. McFadyen began staying in the Defendant's dwelling place during the weekends. She brought with her to this residence two Remington rifles and a Horton crossbow. In December 2013, the Defendant and Mrs. McFadyen terminated their relationship. Thereafter, Mrs. McFadyen discovered that Defendant had taken the two Remington rifles to Cooper's Trading, Inc. in Burnsville, NC for the purpose of trading the two Remington rifles for a stainless steel rifle owned by Cooper's Trading, Inc. When the Defendant attempted to obtain approval for the sale of the stainless steel rifle, the Defendant did not qualify pursuant to Federal Regulations to the purchase of the stainless steel rifle. When the Defendant could not qualify for the purchase of the stainless steel rifle, Mr. Cooper purchased the two Remington rifles from the Defendant at a purchase price of $800. The Government introduced into evidence as Gov.'s Exhibit 2 a receipt showing that Cooper's Trading, Inc. had paid to the Defendant the sum of $800 on December 6, 2013 for two Remington rifles.

Further investigation by Det. Letterman led him to Steve Carroll, who is a friend of the Defendant. Mr. Carroll told Det. Letterman that the Defendant had come to the home of Mr. Carroll and sold to him a Horton Hawk SL Crossbow. Mr. Carroll told Det. Letterman that Defendant was alone when he came to Mr. Carroll's home with the crossbow. Later, Mr. Carroll called Det. Letterman and told him the Defendant had brought Shirley McFadyen with him and she was with him during the transaction. On January 21, 2014, Det. Letterman sought the issuance of a warrant presenting criminal charges against the Defendant from Magistrate B.G. Hensley, Jr. of the Yancey County, NC Magistrate's Office. On January 24, 2014, a warrant for arrest was issued by Magistrate Hensley charging Defendant with one count of felony larceny in violation of N.C. G.S. 14-72(A) and two counts of obtaining property by false pretense in violation of N.C. G.S. 14-100. A copy of the warrant was introduced into evidence by the Government as Gov.'s Exhibit 1.

The Defendant presented as a witness Mr. Ted Canipe, step-father of Defendant. Mr. Canipe testified that Mrs. McFadyen and the Defendant still had a relationship between them as late as January of 2014. Mr. Canipe further testified that the Defendant had sold the two Remington rifles to Mr. Cooper when he could not trade the rifles for a stainless steel rifle. Mr. Canipe stated that the Defendant had used the $800 from the sale of the two rifles to purchase jewelry for Mrs. McFadyen. Mr. Canipe also testified that Mrs. McFadyen had called Mr. Canipe's home and had left a recorded message in which she stated that she knew the Defendant had not stolen her items and she was making the allegations because she wanted to see the Defendant arrested and incarcerated. This alleged recorded message was not introduced into evidence.

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 crime while on release; or
(B) clear and convincing evidence that the person has violated any other ...

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