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United States v. Franklin

United States District Court, W.D. North Carolina, Bryson City Division

May 5, 2015

UNITED STATES OF AMERICA,
v.
KEITH ALAN FRANKLIN, Defendant.

ORDER

DENNIS L. HOWELL, Magistrate Judge.

THIS CAUSE came on to be heard before the undersigned upon a Violation Report (#21) and an Addendum Violation Report (#37) alleging 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, Attorney Richard E. Cassady, 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 Defendant, by and through his attorney, admitted he had tested positive for use of alcohol on October 18, 2014. The Violation Report and the Addendum to Violation Report were introduced into evidence by the Government without objection. Testimony was presented on behalf of Defendant through Mark D. Corbin, United States Probation Officer.

Defendant was charged in a bill of indictment (#1) that while being an employee of a gambling establishment of an Indian Tribe approved by the National Indian Gaming Commission, Defendant had taken money belonging to the gambling establishment having a value in excess of $1, 000., in violation of 18 U.S.C. § 1168(b). After the arrest of Defendant, Defendant was released on terms and conditions of pretrial release. In those conditions of release, there was included the following:

(1) The defendant must not violate any federal, state or local law while on release.
(8)(o) Defendant must refrain from any use of alcohol.
(8)(u) Defendant must report as soon as possible, to the pretrial services office or supervising officer any contact with any law enforcement personnel, including, but not limited to, any arrest, questioning, or traffic stop.

On October 18, 2014 Defendant was charged in Haywood County with the offense of driving while impaired. At that time, Defendant had a blood alcohol concentration of.12. Defendant did not report to his probation officer the charge of driving while impaired. Thereafter, on April 21, 2015, Defendant was charged with driving while license revoked, operating a motor vehicle on a street or highway without having in full force and effect liability insurance and improper registration. Defendant did not advise his probation officer of those charges.

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 condition of release; and
(2) finds that -
(A) based on the factors set forth in section 3142(g) of this title, there is no condition or combination of conditions of release that will assure that the person will not flee or pose a danger to ...

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