Opinion
Criminal Action No. 3:01CR-59-C.
March 24, 2005
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION
INTRODUCTION
This matter came before the Magistrate Judge on March 22, 2005, for a hearing on a petition filed by the United States Probation Office to revoke the supervised release of Defendant Allen E. Zetko, Jr. The petition alleged that on four occasions during the term of his supervised release Zetko failed to appear for drug aftercare counseling and urine collection in violation of condition no. 14 of his supervised release. The petition also alleged that on four other occasions during the same time Defendant Zetko unlawfully possessed controlled substances as established by his four positive drug tests for cocaine use in violation of condition no. 1 of his supervised release.
Because Defendant Zetko has admitted these violations in open court, while reserving his right to allocution, and based on the mandatory revocation provision of 18 U.S.C. § 3583(g)(1) and (4), the Magistrate Judge shall recommend to the District Court that the supervised release of Defendant Zetko be revoked and that he be imprisoned for a term of twelve months in accordance with policy statements §§ 7B1.3 and 7B1.4 of the United States Sentencing Guidelines.
FINDINGS OF FACT
On May 21, 2002, United States District Judge Jennifer B. Coffman entered a judgment of conviction against Zetko based on his plea of guilty on one court of unlawfully impersonating an officer or employee of the United States in violation of 18 U.S.C. § 912. Judge Coffman sentenced Defendant Zetko to 24 months of imprisonment to be followed by a 1-year term of supervised release by the United States Probation Office. In addition to the standard conditions of supervision which included the requirement that Zetko not commit another federal, state or local crime, the Court imposed special conditions that required Zetko to:
(1) participate in a drug treatment program approved by the U.S. Probation Office, to include testing for detection of substance use or abuse;
(2) refrain from incurring any new credit charges or opening additional lines of credit without the approval of his supervising probation officer; and
(3) provide the same probation officer with access to any financial information.
Defendant Zetko signed an acknowledgment on May 21, 2002, and again on March 24, 2004, that the conditions of supervision had been read to him and that he understood that the Court may revoke his supervised release upon finding a violation of such conditions. On March 26, 2004, Zetko was released from custody and began his 12-month term of supervised release under the supervision of U.S. Probation Officer Kevin Vaughn.
On January 4, 2005, Probation Officer Vaughn filed a petition on probation and supervised release that requested the Court to issue a summons to conduct a hearing to determine if Defendant Zetko had violated the conditions of his supervised release. Probation officer Vaughn alleged in the petition that Defendant Zetko had violated special condition #14 by his failure to attend drug after-care appointments for counseling and urine testing on four different occasions beginning on July 19, 2004. Officer Vaughn further alleged that Defendant Zetko had unlawfully possessed/used controlled substances as shown by four positive laboratory tests for cocaine use beginning on June 17, 2004, in violation of the standard condition that he not commit another crime.
Judge Coffman entered an order of court on January 6, 2005 that summons be issued for Defendant Zetko to appear on January 24, 2005 (DN 33). Defendant Zetko appeared before the undersigned Magistrate Judge on that date and was appointed counsel from the Office of the Federal Defender to represent him. A preliminary revocation and detention hearing was set for January 25, 2005, and Defendant Zetko was remanded to the custody of the U.S. Marshal at that time.
On January 25, 2005, Defendant Zetko again appeared before the Court with counsel, Jamie Haworth, Assistant Federal Defender. The United States was represented on that occasion by AUSA Larry Fentress. At the outset of the proceedings, both counsel announced to the Court that the parties had reached an agreement for an appropriate disposition of the revocation proceedings. The terms of such agreement are as follows: In return for the agreement of Defendant Zetko to stipulate that probable cause exists to order the revocation of his supervised release, the United States agreed that the preliminary revocation and detention hearing could be continued by the Court until 9:30 a.m. on March 14, 2005. The United States voiced its concern that Zetko had not met his obligation to pay restitution to his grandmother and its preference that Zetko maintain employment to meet that obligation. There was evidence presented to the Court regarding Zetko's continued failure to maintain regular contact with the probation office and failure to take advantage of the many opportunities for drug treatment made available to him. In an effort to provide Mr. Zetko yet another opportunity to make proper restitution and enter a drug treatment program, the Court approved the agreement and released Zetko. During the interim, Defendant Zetko was to remain upon supervised release subject to the original conditions of his release with the following agreed upon modifications:
(1) Defendant Zetko shall maintain employment throughout the remaining time of his supervision;
(2) Defendant Zetko shall report to his supervising probation officer, Kevin Vaughn, at 7:45 a.m., on January 26, 2005, to obtain a referral for inpatient treatment at the Jefferson Alcohol and Drug Abuse Center (JADAC), where he shall immediately report after his meeting with Officer Vaughn;
(3) Defendant Zetko shall, no later than March 14, 2005, pay all arrearages due on the order of restitution originally imposed by the Court with the amount of such arrearage to be calculated by Officer Vaughn;
(4) Defendant Zetko shall not initiate any contact with his grandmother, Mrs. Lucy Zetko, the victim of his original offense, directly in person or by telephone or mail.
The Magistrate Judge entered an order on January 31, 2005, that reflected the terms of the agreement between the parties. This order cautioned Defendant Zetko that "[a]ny violation of the above conditions, or the original conditions of supervised release, shall result in this matter being immediately brought before the undersigned for resumption of the revocation and detention hearing." (DN 37, p. 3). The order then continued to add "[t]his order represents Defendant Zetko's last and best opportunity to avoid the revocation of his supervised release, accompanied by a return to jail." (Id.).
Defendant Zetko was set to appear before the Court for a final revocation hearing again on March 14, 2005. The hearing, however, was continued to March 22, 2005, at the request of Defendant Zetko who had been admitted to a 30-day residential drug treatment program at JADAC on February 21, 2005. Zetko successfully completed the program on March 21, 2005.
Defendant Zetko appeared in open court with his attorney, Federal Defender Scott T. Wendelsdorf, for a final revocation hearing on March 22, 2005. Assistant United States Attorney Larry Fentress appeared on behalf of the United States. A court reporter recorded the proceedings. At the outset of the hearing, the Court restated the procedural history of the case including the continuation of the original revocation hearing of January 25, 2005, and the conditions placed upon Defendant Zetko during the agreed-upon two-month "grace period." The Court then noted that during this additional time, United States Probation Officer Vaughn reported to the Court that Defendant Zetko had once again tested positive for drug use.
A Kroll drug test report provided to the Court and the Defendant revealed that on February 12, 2005, a urine sample was collected from the Defendant. This urine sample tested positive for amphetamine and cocaine use. The drug report also indicated that the urine specimen provided by Defendant Zetko had been diluted and was "not consistent with normal human urine." This most recent drug test report did not reveal the quantitative amount of cocaine and amphetamine detected in the Defendant's urine.
Probation officer Vaughn acknowledged that he had not amended his original petition on probation and supervised release to include the fifth positive drug test among the four prior positive tests for cocaine mentioned in the petition. Counsel for Defendant Zetko advised the Court that while his client would acknowledge and admit the four positive drug tests and four missed drug aftercare appointments identified on the petition, he steadfastly denied any drug use that would have resulted in the positive drug test of February 12, 2005. In this regard, Defendant Zetko suggested through his counsel that the positive test results might well be merely residual drugs or some other form of false positive. Defense counsel requested the opportunity to further argue the matter after reviewing the full Kroll drug test report containing the amounts of controlled substances suspected.
The Court agreed that the most recent positive drug test was not included in the petition. Accordingly, the Court determined that this final positive drug test would not be considered in its recommendation on the question of revocation, but would be taken into account for the purposes of deciding whether to detain Defendant Zetko pending the final outcome of the petition.
Defendant Zetko testified during the hearing. He acknowledged that he was not impaired, that he had conferred with his attorney adequately concerning the violations alleged in the petition, and that he was satisfied with the advice of his counsel. Defendant Zetko then acknowledged in open court that, as charged in the petition, he had failed to attend four drug aftercare appointments on the dates identified in the petition. He further admitted that he had tested positive for cocaine use on the four dates listed in the petition.
Defendant Zetko's counsel acknowledged that based upon the violations admitted in the petition the Court had more than adequate grounds on which to recommend mandatory revocation pursuant to 18 U.S.C. § 3583(g). Defendant had possessed a controlled substance and tested positive for illegal controlled substances more than three times during the prior year while on supervised release. See 18 U.S.C. § 3583(g)(1) and (4)(2004). Counsel argued, however, that mandatory revocation did not eliminate the discretion of the District Court to consider alternatives to imprisonment under 18 U.S.C. § 3583(d) based upon the availability of appropriate substance abuse treatment programs to the Defendant.
On this final point, Defendant Zetko's counsel noted that his client had recently completed the above referenced in-patient 30-day drug treatment program administered by JADAC. The Defendant's counselor at JADAC had developed a continuing treatment plan. This plan included voluntary participation in weekly group therapy meetings combined with regular daily attendance at 12-step meetings. Zetko's counsel urged that these circumstances, successful treatment combined with a structured ongoing treatment plan, militated the exercise of the Court's discretion pursuant to 18 U.S.C. § 3583(d)(2004). Counsel reserved the opportunity of the Defendant for allocution before the District Court to discuss this matter and the circumstances and impact of the most recent positive drug test of February 12, 2005.
The United States argued that Defendant Zetko had already received a rare opportunity in the form of the continuance of the January 25, 2005 revocation hearing. In the government's view, Defendant Zetko had demonstrated that he will not comply with the conditions of supervised release no matter how many chances he is given. Therefore, the only issue was whether the Defendant should be detained pending a hearing before the District Court. The United States noted that Defendant Zetko had been sternly warned during his prior appearance that any violation of the conditions imposed by the Court would have dire consequences. Nevertheless, Defendant Zetko had not only continued his use of cocaine, but apparently had also begun to use a new controlled substance, methamphetamine, not previously detected by drug testing. Although the amounts of controlled substances were not revealed by the most recent Kroll drug test report, the United States argued that the amount of cocaine and methamphetamine detected was not determinative, rather the existence of the violation of conditions was the significant fact.
Based upon Defendant Zetko's admissions in open court, the Magistrate Judge found that the Defendant had violated the terms and conditions of his supervised release. The United States then requested that the Defendant be detained pending his hearing before the District Court. Defendant Zetko's counsel argued that the Defendant did not present a risk of flight, as he had voluntarily appeared for the hearing, and had successfully completed in-patient drug treatment. The United States countered that Defendant Zetko's continued drug use immediately prior to his admission to residential drug treatment indicated that he is unable to control his use of controlled substances and therefore represents a danger to the community. Defense counsel replied that this argument ignored the recent history of successful treatment after the latest positive drug test, as well as the structured plan for ongoing follow-up treatment. Accordingly, the defense requested that Defendant Zetko remain at liberty pending his appearance before the District Court.
The Magistrate Judge ultimately determined that Defendant Zetko had not overcome the presumption of his risk of flight or danger to the community. The Court noted that Defendant Zetko was clearly advised as to the requirements imposed upon him during the grace period. Defendant Zetko nevertheless ignored this final opportunity and continued to engage in drug use. The most recent positive drug test was simply the latest incident in an ongoing history of noncompliance. In this regard, the Magistrate Judge noted the comments of probation officer Vaughn that Defendant Zetko had repeatedly been offered the opportunity for inpatient drug treatment from the time that he began supervised release in March of 2004. Despite being aware of his opportunity for such treatment, Defendant Zetko had made absolutely no effort to seek treatment until faced with the petition on probation and supervised release in January of 2005.
Further, probation officer Vaughn noted that Defendant Zetko had repeatedly failed to return calls from the probation office in the past. Accordingly, Vaughn offered his opinion that placing the Defendant on bond would be fruitless. The Court agreed. It was apparent that only the threat of revocation motivated Zetko to finally participate in a drug treatment program at the eleventh hour. Based on his past conduct while on supervised release, there was no reason to believe that Zetko would voluntarily complete the rehabilitation program outlined by the JADAC counselor. The strong likelihood of flight or further drug abuse was readily apparent.
CONCLUSIONS OF LAW
This matter is before the Magistrate Judge to made a recommendation on whether the supervised release of Defendant Zetko should be revoked and the Defendant returned to prison. The authority of the Magistrate Judge to conduct hearings to modify, revoke or terminate supervised release is established by 18 U.S.C. § 3401(i)(2004). Subsection (i) of § 3401 provides that "[a] District Judge may designate a Magistrate Judge to conduct hearings to modify, revoke or terminate supervised release, including evidentiary hearings, and to submit to the Judge proposed findings of fact and recommendations for such modification, revocation or termination by the Judge, including, in case of revocation, a recommended disposition under section 3583(e) of this title." 18 U.S.C. § 3401(i)(2004).
This statutory authority applies not only in those criminal cases involving misdemeanors, but to cases involving felony convictions as well. See, United States v. Waters, 158 F.3d 933, 936-39 (6th Cir. 1998). When conducting such hearings, the Magistrate Judge may in accordance with Rule 32.1 of the Federal Rules of Criminal Procedure consider reliable hearsay evidence in a final revocation of supervised release hearing.Waters, 158 F.3d at 940. The duty of the Magistrate Judge at such a hearing is to determine in light of the standard set forth in 18 U.S.C. § 3583, and the policy statements of §§ 7B1.3 and 7B1.4 of the United States Sentencing Guidelines, whether probable cause exists to believe that a defendant has violated the conditions of his supervised release and whether such violations require that the defendant serve all or part of the term of supervised release in prison. See, United States v. Jackson, 70 F.3d 874, 878-79 (6th Cir. 1995) (Courts must consider the applicable policy statements, criminal rules and statutes when revoking a defendant's supervised release).
The District Court, upon receiving the recommendation of the Magistrate Judge, shall made a de novo determination and act on the proposed findings of fact as provided by 28 U.S.C. § 636(b)(1). See, Waters, 158 F.3d at 938 (citing H.R. Rep. 102-1006 at 18 (1992), reprinted in 1992 U.S.C.C.A.N. 3921, 3927-28).
Revocation of Defendant Zetko's supervised release is required in this instance. In fact, Defendant Zetko acknowledges as much, although he reserves his right to argue for a disposition other than imprisonment. The controlling language is found in the mandatory revocation provisions of 18 U.S.C. § 3583(g). Subsections (1) and (4) of § 3583(g) require the Court to revoke a term of supervised release and impose imprisonment if a Defendant possesses a controlled substance in violation of the condition of his supervised release, or, as part of drug testing, tests positive for illegal controlled substances more than three times over the course of one year. See, 18 U.S.C. § 3583(g)(1) and (4)(2004).
No question exists that Defendant Zetko has violated both these conditions of his supervised release. He has acknowledged as much in open court. Further, the law in this circuit is now well established that the use of controlled substances constitutes "possession" for the purpose of the mandatory revocation provisions of 18 U.S.C. § 3583(g). See, United States v. Hancox, 49 F.3d 223, 224-25 (6th Cir. 1995) (Use of drugs constitutes "possession" for the purposes of § 3583(g)); United States v. Jackson, 70 F.3d 874, 877 (6th Cir. 1995) (same).
By virtue of his possession of cocaine on four separate occasions in 2004, Defendant Zetko repeatedly committed a felony offense as defined by KRS § 218A. 1415(1) (Mitchie 2002). Defendant Zetko's use and possession of cocaine on these occasions would constitute Grade B violation of the conditions of his supervised release as determined by U.S.S.G. § 7B1.1(a)(2). His failure on four occasions to attend drug aftercare and submit to testing would constitute a Grade C violation of the conditions of his release under § 7B1.1(a)(3) of the Guidelines. U.S.S.G. § 7B1.1(a)(3)(2004).
The case law in this circuit clearly provides that mandatory revocation of supervised release is required under 18 U.S.C. § 3583(g) for the possession of a controlled substance or refusal to comply with drug testing. See, United States v. Kingsley, 241 F.3d 828, 835 (6th Cir.) cert denied, 534 U.S. 859 (2001). Accordingly, the Magistrate Judge recommends that Defendant Zetko's supervised release be revoked. This result is required by the above statute and case law of the Sixth Circuit.
The question now becomes whether Defendant Zetko, pursuant to 18 U.S.C. § 3583(e)(3), should be required to serve a term of imprisonment, or whether the terms of his supervised release should be modified or enlarged pursuant to 18 U.S.C. § 3583(e)(2) due to the alleged availability of appropriate substance abuse treatment. When a defendant violates the conditions of his supervised release by testing positive for illegal use of controlled substances, the Court is required by 18 U.S.C. § 3583(d) to consider the availability of substance abuse treatment programs in determining whether an exception should be granted from the mandatory revocation provisions of 18 U.S.C. § 3583(g).See, United States v. Crace, 207 F.3d 833, 835-36 (6th Cir. 2000) ("For individuals like [the defendant] . . . who have failed a drug test, the District Court must consider whether an appropriate substance abuse program was available, and whether enrollment in such a program was an option preferable to prison.")
Defendant Zetko maintains that the District Court should exercise its discretion under § 3583(d) to continue his supervised release under conditions of further drug treatment rather than imprison him. The primary impetus for this request is the Defendant's recent successful completion of inpatient drug treatment at JADAC and the availability of ongoing outpatient treatment. The Magistrate Judge has considered this recent history. While the Defendant's successful completion of inpatient treatment is a positive factor, this recent history cannot be divorced from what has occurred during the entire course of his supervised release.
Defendant Zetko's motivation for drug treatment has been questionable at best. Upon his release from prison in March of 2004, Defendant Zetko was advised by his probation officer of the availability of such treatment. Defendant Zetko made absolutely no attempt to obtain any form of inpatient drug treatment during the ten months that followed. Only when he was faced with a petition for the revocation of his supervised release in January of 2005, did Defendant Zetko suddenly develop an interest in obtaining some form of treatment for his cocaine abuse.
Prior to his admission to JADAC in February of 2005, Defendant Zetko exhibited an ongoing, chronic abuse of cocaine as established by his four positive drug tests. His four confirmed failures to submit to drug testing during the same time suggest that his illegal drug use in 2004 was far more substantial than that confirmed by the four positive drug tests for cocaine. Further, Defendant Zetko's efforts to remain in regular contact with probation officer Vaughn, whose telephone messages to Zetko went unreturned on numerous occasions, were highly questionable. Such conduct does not suggest an individual who is highly motivated to become clean and sober.
While the magistrate Judge has not considered the most recent positive drug test in February of 2005, as a basis for revocation, this positive test is relevant to the recommendation for the disposition of Defendant Zetko upon revocation. See, United State v. Jackson, 70 F.3d 874, 879-80 (6th Cir. 1995) (Court may consider rehabilitative goals and efforts when imposing sentence following mandatory revocation of supervised release). Apart from the unknown quantities of methamphetamine and cocaine detected in Defendant Zetko's urine, the presence of any controlled substances casts a shadow over the genuineness of the Defendant's efforts at drug rehabilitation.
Further, the drug test report of February 12, 2005, specifically noted that the sample was not a normal urine sample, but was diluted. Probation officer Vaughn testified that such dilution could be the result of Defendant drinking excessive amounts of water immediately prior to testing, or by water being added to the testing sample itself. In either case, the presence of a diluted sample suggests that the Defendant was well aware that he might test positive for controlled substance use and that he hoped to avoid a positive result by diluting the sample. These efforts strongly suggest guilty knowledge and further undermine the possibility that Defendant Zetko can be successfully treated for his severe cocaine addiction on an out-patient basis outside the setting of prison.
The fact that these test results were obtained during the grace period itself underscores this point. Even when given a last and best chance, Defendant Zetko apparently could not refrain from using controlled substances. While Defendant Zetko must be given the opportunity before the District Court to advance his position that the test results were a false positive, and were obtained based upon residual amounts of drugs found in his system, the presence of any controlled substance in Defendant Zetko's system weighs heavily against continuing his release for outpatient drug treatment.
It is highly doubtful that Defendant Zetko would be compliant with outpatient treatment. If Defendant Zetko cannot maintain regular contact with his probation officer, he almost certainly would not regularly attend group counseling or attend daily 12-step meetings or other support groups. His prior history, viewed in its entirety, militates strongly against continued release for outpatient treatment. It was only after threat of revocation that Zetko sought to cooperate and take advantage of available drug treatment. It is sheer folly to suggest that Zetko would now voluntarily comply with the regiment of counseling and meetings proposed by his JADAC counselor.
The Magistrate Judge shall instead recommend a 12-month term of imprisonment. The nonbinding policy statements of § 7B1.3 and § 7B1.4 indicate that a range of imprisonment of eight to twelve months is available based upon § 7B1.4(b)(3)(A). As noted by the probation office, Defendant's criminal history category at the time of his original sentencing was Category III. This criminal history category combined with the Grade B violations would indicate a potential range of imprisonment of eight to fourteen months. This potential range, however, is limited by operation of 18 U.S.C. § 3583(e)(3) to no more than 12 months in custody in accordance with § 7B1.4(b)(3)(A) of the Sentencing Guidelines.
At present, the Magistrate Judge believes that a term of imprisonment of twelve months is reasonable and appropriate in light of the Defendant's history upon supervised release. Defendant Zetko's best opportunity for a successful drug rehabilitation is to be found in a prison setting. While the District Court cannot order that the Federal Bureau of Prisons place Defendant Zetko in drug rehabilitation treatment, the District Court retains the authority to so recommend. See, United States v. Jackson, 70 F.3d 874 (6th Cir. 1995). Such treatment while incarcerated would go far to promoting the Defendant's potential success at remaining clean and sober. If released to his own means, the outcome of his rehabilitative efforts would appear to be glum at best.
Accordingly, the Magistrate Judge shall recommend that Defendant Zetko's supervised release be revoked and that he be returned to prison for 12 months with a recommendation for drug rehabilitation treatment while incarcerated. Whether the District Court chooses to impose a lesser term of imprisonment, the Magistrate Judge remains convinced that incarceration is essential for his own recovery. He simply has not demonstrated the ability to rehabilitate in a less restrictive environment.