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United States v. Ross

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

May 24, 2017

UNITED STATES OF AMERICA,
v.
ROBERT KEITH ROSS, Defendant.

          ORDER

          Dennis L. Howell United States Magistrate Judge.

         THIS CAUSE came before the undersigned pursuant to a Violation Report (#67) 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 May 19, 2017, it appeared that Defendant was present with his counsel, Howard W. Anderson, III, 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 his attorney, denied the allegations contained in the Violation Report (#67). The Government introduced, without objection, the Violation Report into evidence. Testimony was then presented by the Government through Jordan Horton, United States Probation Officer. On March 20, 2017, a Petition (#58) was filed alleging Defendant had violated terms and conditions of his supervised release by testing positive for the use of marijuana and methamphetamine. Defendant is serving a term of supervised release as a result of his conviction for manufacturing and possessing with intent to distribute methamphetamine. On March 31, 2017, the undersigned entered an Order (#63) releasing the Defendant on terms and conditions of prehearing release. The undersigned further set conditions of release which included the following:

(1) The defendant must not violate any federal, state or local law while on release.
(8)(p) Defendant is to 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.

         Defendant submitted urine samples on March 3, 2017 and March 10, 2017 that tested positive for Defendant's use of marijuana. Copies of the tests results were introduced into evidence by the Government through Exhibits 1, 2, 3, 4 and 5. The records of the various tests of Defendant showed that the concentration of THCA and creatinine was increasing. The report of Pat Pizzo, Director of Toxicology at Alere Toxicology (Gov. Exhibit #5) is of the opinion that Defendant had reused marijuana prior to each of the collections of April 3, 2017 and April 10, 2017. This was based upon the increased and normalized level of the marijuana drug present in the urine specimen collected on April 3, 2017 and April 10, 2017 as compared to the collection of the sample on March 31, 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 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 the ...

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