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United States v. Kelley

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

May 23, 2017

UNITED STATES OF AMERICA,
v.
HEATHER TRAYWICK KELLEY, Defendant.

          ORDER

          Dennis L. Howell United States Magistrate Judge.

         THIS CAUSE coming on before the undersigned pursuant to a Violation Report (#13) filed by the United States Probation Office alleging that Defendant had violated terms and conditions of her pretrial release. At the call of this matter on for hearing it appeared that Defendant was present with her counsel, Emily M. Jones, and the Government was present through AUSA Tom Kent. 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 her attorney, admitted the allegation contained in the Violation Report. The Government introduced without objection, the Violation Report, into evidence.

         The Defendant was charged in a bill of indictment (#1) dated February 8, 2017 with stealing and carrying away from the premises of a person who is licensed to engage in the business of dealing in firearms, certain firearms, in violation of 18 U.S.C. § 922(u) and also a second count in which Defendant was charged with being an unlawful user of and being addicted to a controlled substance, knowingly possessed in and affecting interstate commerce firearms, in violation of 18 U.S.C. § 922(g)(3). On February 15, 2017, the undersigned entered an Order releasing Defendant on terms and conditions of pretrial release and further set conditions of release which included 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 is to refrain from use or unlawful possession of a narcotic drug or other controlled substance as defined in 21 USC § 802, unless prescribed by a licensed medical practitioner.

         On March 17, 2017, Defendant tested positive for use of oxycodone for which she did not have a prescription for. Defendant is now pregnant with child. Through the efforts of her counsel, Emily Jones, Defendant has been successful in being admitted to the Community Choices, Inc. Drug Treatment Center which is designed specifically to assist pregnant females. Defendant began participating in the inpatient treatment program on May 16, 2017 and will continue to be in the program until at least the birth of her child which is predicted to be sometime in July 2017.

         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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