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United States v. Kiser

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

June 29, 2015

UNITED STATES OF AMERICA,
v.
JOSHUA SCOTT KISER, Defendant.

ORDER

DENNIS L. HOWELL, District Judge.

THIS CAUSE came on to be heard before the undersigned pursuant to a Violation Report (#14) filed by the United States Probation Office alleging that Defendant had violated terms and conditions of his pretrial release. At the call of this matter on for hearing it appeared that Defendant was present with his counsel, Fredilyn Sison, and the Government was present through Assistant United States Attorney, David Thorneloe. From the evidence offered and from the statements of the Assistant United States Attorney and the attorney for the Defendant, and the records in this cause, the Court makes the following findings.

Findings: At the call of this matter, Defendant, by and through his attorney, denied the allegations contained in the Violation Report.

Defendant was charged in a bill of indictment (#1) with four counts of criminal conduct, each involving either the receipt, distribution or possession of child pornography. A hearing was held before the undersigned in regard to detention of Defendant on May 11, 2015. On that date, the undersigned entered an Order (#7) setting conditions of release. In the conditions of release, the undersigned ordered the following:

(1) Defendant shall not commit any offense in violation of federal, state or local law while on release in this case.
(8)(p) Defendant must refrain from use or unlawful possession of a narcotic drug or other controlled substance defined in 21 USC § 802 unless prescribed by a licensed medical practitioner.

After the undersigned had released Defendant, Defendant was processed by the United States Probation Office. At that time, Defendant was asked by U.S. Probation Officer Mark Corbin about any illegal drug use. Defendant told Officer Corbin he had used marijuana approximately one month ago. (Gov. Exhibit #1) Later, Defendant stated to Officer Corbin he had used marijuana a week before May 11, 2015. Defendant was given a drug test at that time which tested positive for the use of marijuana. The result of the test showed that the normalized THCA value of the sample had a value of 134 ng THCA/mg Creatinine. Three days later on May 14, 2015 Defendant was required to provide urine for another drug test. At that time the normalized THCA value was 61 ng THCA/mg Creatinine. (Gov. Exhibit #10) On June 4, 2015, Defendant was required to submit a urine sample for a third drug test. At that time the normalized THCA value was found to be 42 mg THCA/mg Creatinine.

Testimony was presented through Jenny Leiser, an expert drug analyst who is employed by the United States Probation Office. Ms. Leiser testified that marijuana has a half-life of 48 hours in the human body. She explained her testimony by advising that if a person had 134 ng THCA value immediately after smoking marijuana, that within 48 hours the level of the marijuana should be at 67 ng THCA; in 96 hours the value should be 33 ng THCA, and within twelve days, there should be no measurable ng THCA value. It was the opinion of Ms. Leiser that the Defendant had used marijuana during the period between May 14, 2015 and June 4, 2015 for the Defendant to still have a 42 ng THCA value on June 4, 2015. There was 24 days between May 11, 2015 and June 4, 2015.

There was introduced into evidence by the Government (Gov. Exhibits #1-9) which show test result reports for the test of May 11, 2015, May 14, 2015 and June 4, 2015 of Defendant's urine. The Government also introduced into evidence (Gov. Exhibit #10). This exhibit is a letter from Pat Pizzo, Director of Toxicology of Alere Toxicology Services, Inc. Ms. Leiser had sent all three urine samples for the urine tests of May 11, 2015, May 14, 2015 and June 4, 2015 to Alere and requested an interpretation of the three specimens. In responding to Ms. Leiser's request, in the letter of June 17, 2015, it was the opinion of Pat Pizzo as follows:

The results of the specimen collected on 5/14/15 appear to be residual elimination.
It is my opinion that this offender reused marijuana prior to the collection of 6/4/15. I base this opinion on moderate use, the lack of significant decrease in the normalized level of drug present in the urine specimen collected on 6/4/15 and a urine half-life of 48 hours.

In twelve days from and after May 11, 2015, there should have been no evidence of any use of a controlled substance by the Defendant. Thus, by May 23, 2015 there should not have been any evidence of any use of a controlled substance in the body of the Defendant.

The Defendant presented evidence through Cathy Kiser who is Defendant's mother. She testified that Defendant has been residing with her and she has seen no evidence whatsoever that Defendant had been using marijuana during the period from May 11, 2015 through June 4, 2015. Mr. David Evans, who is a friend of Ms. Kiser and who resides in Ms. Kiser's home, also testified that he had been residing with the Defendant and he had seen no evidence of the Defendant's use of marijuana. Joan Hodges, maternal grandmother of the Defendant, testified that she had visited regularly in the home of her daughter, Cathy Kiser, and she saw no evidence of any drug use of Defendant. Also introduced into evidence by the Defendant are Defendant's Exhibits # 1 & 2, showing that Defendant, of his own violation, took a drug screening test on June 22, 2015 and the test was negative for the use of marijuana or any other controlled substance.

Discussion. 18 U.S.C. § 3148(b)(1) provides as follows: The judicial officer shall enter an order of revocation and detention if, ...


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