Opinion
No. CR 17-00291-09-TUC-RCC(LAB)
12-18-2020
United States of America, Plaintiff, v. Antonio Pasqual Aguilar-Sanchez, Defendant.
Report and Recommendation
The District Court referred this case to the Magistrate Judge for an evidentiary hearing on a petition alleging that the defendant violated Mandatory Condition #1 and Special Condition #1 of his conditions of supervised release. (Doc.386, Ex. 2) Mandatory Condition #1 states, "You must not commit another federal, state or local crime." Special Condition #1 states, "You must participate as instructed by the probation officer in a program of substance abuse treatment."
The defendant, Antonio Pasqual Aguilar-Sanchez, argues that the conduct listed in Allegation A(1), (2), (3), (4) and (5) constitutes police contact but the evidence does not prove by a preponderance of the evidence that he committed any crime. He also acknowledges that he was unsuccessfully terminated from the Phoenix Oasis treatment program but claims that the termination does not violate Special Condition #1, as listed in Allegation B, because he participated as instructed by the probation officer in the program. The defendant asks the Court to dismiss the petition and allow him to be released to participate in mental health and substance abuse treatment programs.
An evidentiary hearing was held on 12/7/20. The U.S. Probation Officer (USPO), Chelsea Opper, and the defendant each testified. Government's exhibits 1 through 8, and defense exhibits 10 through 12 were admitted for purposes of this hearing only.
A transcript of the hearing was ordered and prepared. It is identified as Tr.
The Court finds that the government has proven by a preponderance of the evidence that the defendant violated conditions of supervised release and there is sufficient evidence to revoke him. Background :
On 1/17/18 the defendant was convicted of Conspiracy to Possess with Intent to Distribute Marijuana and sentenced to 20 months in the Bureau of Prisons followed by 36 months of supervised release. (Doc. 304, Ex. 1) On 8/14/19 the supervised release was revoked, and he was sentenced to 11 months in the Bureau of Prisons followed by 30 months of supervised release. (Doc. 386, p. 6; Ex. 3) That term of supervised release began to run on 2/28/20, when he was released from prison. It was set to expire on 3/27/22.
Allegation A(1) - On 7/26/20 the defendant was cited by the Phoenix Police Department (Phoenix PD) with disorderly conduct (fighting). (Doc. 386, pp. 11-29, Ex. 4) The probable cause statement describes the defendant violently banging on McDonalds' windows and doors, disrupting service, and physically fighting with customers outside the restaurant. The incident report states that the defendant was contacted and taken into custody. At that time the "defendant admitted he was given bad service in the drive thru which is [t]hat (sic) caused for him to act the way he did." The narrative explains that the defendant returned to McDonalds a second time. The first time he drove through the drive thru and cursed at the clerk. He refused to leave the drive thru, blocking customers behind him. When he finally left he parked in the lot, exited his vehicle and began physically fighting with other customers. He tried to open several vehicle car doors in the parking lot, trying to start a fight with customers who were outside waiting for their food.
The defendant's fiancé called McDonalds to advise an employee that he might be having a psychological episode. The police contacted the fiancé and she stated that the defendant has a history of sniffing carb cleaner and other unknown drugs. When he was arrested, he complained of nausea and not feeling well. He was cited and driven to the hospital.
Allegation A(2) - On 8/19/20 at 10:55 pm the Phoenix PD responded to a call regarding a vehicle running and parked behind the Target with a person inside.(Doc. 386, pp. 23-34; Ex. 5) The defendant was sitting in the driver's seat asleep with the keys in the ignition. The responding officer woke the defendant up commanding him to turn off and exit the vehicle. The defendant was incoherent and unable to follow commands. The vehicle and the defendant's person had a strong odor of aerosol. There were two cans of break cleaner on the center console. The defendant was screaming incoherently, had trouble breathing and standing. His mood swung from calm to extremely upset. A DUI investigation was initiated. The defendant refused to complete field sobriety testing. He was arrested and booked into jail for aggravated DUI. The defendant's driving privileges had previously been suspended for a DUI conviction. He refused to consent to a blood draw, but a warrant was obtained. Two vials of blood were submitted for testing.
Allegation A(3) - On 9/1/20 at 8:38 pm Phoenix police were dispatched to a trespassing call at a Chevron gas station.(Doc. 386, pp. 35-37; Ex. 6) The report described a man with pruning shears in his backpack who was "huffing some type of fluid out of a bag." When police arrived, the defendant was disoriented and had a spray can in his hand. He began walking across the street but stopped in front of a car and appeared ready to spray the vehicle. The police brought the defendant back to the parking lot. He had difficulty maintaining balance, was lethargic and made hand gestures instead of answering questions. There was no odor of alcohol. The defendant appeared to be under the influence of fumes. He was involuntarily transported to Community Bridges.
Allegation A(4) - On 9/24/20 a Mesa Police Officer was called to BTHCS after the defendant was found in the garage "huffing something through a bandana." (Doc. 386, pp. 43-44; Ex. 7) The staff member, Donte Sagere, asked the defendant to hand him the bandana and exit the garage. The defendant obeyed. Later Mr. Sagere returned to the garage with another client and saw the defendant with a rag up to his face. When confronted, the defendant opened the trunk of his car and pulled out a tire iron stating that it was his tool and nobody could take it from him. Mr. Sagere asked the defendant to put the tire iron down. The defendant obeyed but then grabbed a bigger pipe and said that if Mr. Sagere came any closer, he would hit him. Police officers escorted the defendant off the property.
Allegation A(5) - On 9/25/20 at 1:29 am Scottsdale Police responded to a Circle K and arrested the defendant for inhaling dangerous/toxic vapors. (Doc. 386, pp. 45-54; Ex. 8) He was booked into the jail with charges to be filed by the Maricopa County Attorney's Office. The caller stated that a man was inhaling a substance from an aerosol can at the Circle K. The caller explained that a man was pumping gas into a gray Nissan and was pacing around, yelling and inhaling from a duster can by spraying it into a napkin and then inhaling from the napkin. When the officer arrived, he saw the man with a large can of Auto Zone "carb cleaner" and a white rag. The officer could smell the overpowering odor of the carb cleaner from 15 to 20 feet away. The man was very disoriented. He walked slowly with a heavy sway. The man failed to respond to commands. His eyes were glassy, and he had a very distant gaze.
Allegation B - According to USPO Opper and the defendant, he was instructed by the probation officer to participate in the Phoenix Oasis treatment program. After the incident described in Allegation A(4) above, the defendant was unsuccessfully terminated from the program. (Tr p. 15, lns.22-25; p. 48, lns. 9-12) EVIDENCE :
USPO Chelsea Opper - USPO Opper testified that she has been a federal probation officer for over 9 years with the last two years in Arizona. (Tr p.8, lns.16-18) She identified the defendant as the person she was charged with supervising, beginning in May 2020. (Tr pp. 8, lns. 19-21; 9, lns.5-9; 10, ln.12) USPO Opper described the incidents listed above in Allegation A(1) (Tr pp. 10-11), (2) (Tr pp. 11-13), (3) (Tr pp. 13-14), (4) (Tr p. 15) and (5) (Tr p. 16) USPO Opper clarified that the defendant was only formally cited for the McDonald's incident. (Tr p. 19, lns.1-2) She also described the services that the probation department arranged for the defendant, and the mental health concerns that she tried to address. (Tr pp. 11, lns.20-23; 13, lns. 10-15; 14, lns. 13-15; 14-15, lns. 13-25, 1-7)
USPO Opper testified that mental health was a factor with the defendant (Tr p. 18, lns.4-6), and he was under a lot of stress (Tr p. 22, lns. 2-3). Even so he was working, going to treatment, reporting as directed, and communicative. (Tr p. 22, lns. 4-5, 11-16) The defendant was taking medication, trying to put his life back together, living with his mother and asked for mental health treatment. (Tr p. 24, lns. 2-8, 12-15) The defendant admitted that he was involved in the incidents listed in allegation A but he provided justifications. (Tr p. 28, lns.6-8)
Defendant Antonio Pasqual Aguilar-Sanchez - Mr. Aguilar-Sanchez testified that the McDonalds' incident occurred after he found out his fiancé had COVID and he was asked to pick up food for the family. (Tr p. 32, lns. 7-10) He described the incident in detail from his point of view. (Tr pp. 32-36) He explained that he was cited for disorderly conduct and appeared in court for his hearing. (Tr pp. 35-36, lns.24-25, 1-3) Nothing has happened with the case. (Tr p. 36, lns.8-9) He has not been charged in any of the other incidents. (Tr p. 36, lns.10-16)
Mr. Aguilar-Sanchez testified about his mental health struggles. He was diagnosed with bipolar schizophrenia. (Tr pp. 38-39, lns. 25, 1) Exhibits 10 - 12 document the defendant's mental health treatment, diagnoses and medications. His medications and diagnosis were changed by the various facilities that treated and evaluated him. (Tr pp. 40-41, lns. 16-23, 7-12; p. 42, lns. 4-11) The defendant testified that he would like to go back on supervised release and engage in intensive inpatient substance abuse and mental health treatment. (Tr p. 47, lns. 13-17) FINDINGS OF FACT AND CONCLUSIONS OF LAW :
A court may revoke a defendant's supervised release if it finds by a preponderance of the evidence that the defendant violated a condition of his supervised release. United States v. Musa, 220 F.3d 1096, 1100 (9th Cir.), cert. denied, 531 U.S. 999, 121 S.C. 498 (2000); see also 18 U.S.C. § 3583(e)(3). Preponderance of the evidence has been defined as proof that leads the finder of fact to the conclusion that "the contested fact is more probable than its nonexistence." Coyle v. Compton, 940 P.2d 404, 409 (Ct. App 1997); see People v. Miller 154 P. 468 (1916) (defining preponderance of the evidence as evidence on one side that outweighs the evidence on the other side) The Federal Rules of Evidence do not apply to a revocation hearing. Fed.R.Evid. 1101(d)(3); United States v. Martin, 984 F.2d 308, 310-11 (9th Cir.1993). The Court is satisfied that the government proved by a preponderance of the evidence that Mr. Aguilar-Sanchez committed new crimes and did not participate as instructed in the substance abuse program.
Allegation A - The defendant argues that he was only charged in one of the five police encounters and has no new convictions. The Ninth Circuit addressed this argument in U.S. v. Williams, 741 F.3d 1057, 1059-60 (9th Cir. 2014). Williams was on supervised release when he took an Alford plea. The government relied on the conviction documents to revoke Williams' supervised release, without an evidentiary hearing.
The Ninth Circuit held that the condition that no new crime be committed required that the government prove, by a preponderance of the evidence, that the defendant committed a new offense, as specifically stated in the condition. The government could not rely on the factual basis in the Alford plea because the defendant did not admit guilt. There was no evidence that Williams committed a new offense.
Title 18 U.S.C. § 3583(d) allows a court to order any further conditions it considers appropriate. If it had chosen to do so the court could have ordered that the defendant not be convicted of a new crime. It did not in Williams nor in the present case.
The defendant did not contest the facts of the five incidents. He explained them from his perspective, in light of his mental health and substance abuse challenges. Based on the testimony of both the USPO and the defendant, and the police reports admitted as Exhibits 4 - 8, the Court finds by a preponderance of the evidence that Mr. Aguilar-Sanchez committed the offenses in Allegation A of the petition.
Allegation B - The defendant argues that he did not violate Special Condition #1 because he attended and participated in the treatment program at Phoenix Oasis, as instructed by the probation officer. He admits that he was unsuccessfully terminated from the program on 9/24/20. Mr. Aguilar-Sanchez neither admitted nor denied that he was using an inhalant on the program's premises. Neither did he admit or deny threatening the treatment provider verbally or with a pipe. The only evidence comes from the incident report, which was not disputed. (Ex. 7) Violating the program requirements, being unsuccessfully terminated and being removed by police from the premises does not meet the requirement of participating as instructed. The Court finds by a preponderance of the evidence that the defendant violated Special Condition #1. RECOMMENDATION :
Based on the foregoing and pursuant to 28 U.S.C. § 636 (b) and Local Rule 1.7(d)(2), Rules of Practice of the United States District Court, District of Arizona, the Magistrate Judge RECOMMENDS that the District Court, after an independent review of the record, find that the Defendant violated his conditions of supervised release.
Pursuant to 28 U.S.C. § 636 (b), defense counsel may serve and file written objections within 14 days. If objections are not timely filed, the party's right to de novo review may be waived. No reply to objections shall be filed unless leave is granted from the District Court.
The Clerk of the Court is directed to send a copy of this Report and Recommendation to all parties.
Dated this 18th day of December, 2020.
/s/_________
Honorable Leslie A. Bowman
United States Magistrate Judge