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December 17, 2004.

ALAN CLARK, Defendant.

The opinion of the court was delivered by: CHARLES HAIGHT, District Judge


The Probation Department has petitioned the Court for an early termination of defendant Alan Clark's supervised release. The government opposes the Petition. The question falls within the discretion of this Court, which sentenced Clark and imposed the term of supervised release now under consideration.

Alan Clark and Todd McLean were indicted on two counts of violating the narcotics laws. Count One charged them with conspiring to violate 21 U.S.C. § 846. Count Two charged them with possessing approximately 75 gallons of PCP with the intent to distribute that controlled substance to others, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A).

  The scheme involved the acquisition of PCP in Los Angeles and its transportation by truck to New York City, where it was distributed. A confidential informant kept the DEA advised. Clark was arrested in Los Angeles on June 7, 1994. According to the Presentence Investigation Report ("PSR") at ¶ 18, on the next day, June 8, "Clark provided the DEA with a voluntary statement detailing his participation in this case," and signed a voluntary consent to search form authorizing the DEA to search his apartment in the Bronx," where incriminating materials were subsequently found. Clark pled guilty to Count One in satisfaction of the indictment. His co-defendant, McLean, stood trial and was convicted by the jury.

  On January 5, 1996, I sentenced Clark on his plea of guilty to a term of imprisonment of 108 months, to be followed by a five-year term of supervised release. It appears from the Probation Department's Petition that Clark was released from the custodial portion of his sentence on February 22, 2002, moved in with his fiancee in a Bronx apartment, and obtained employment as a dispatcher at a Bronx trucking company. The Probation Department's Petition, dated October 7, 2004, says at page 1 that "[t]o date, Mr. Clark has maintained both his residence and employment." The Petition goes on to praise Clark as "a responsible, hard-working individual who regrets and has learned from his past indiscretions," has "a solid support system at home and at work," has "never submitted a positive urinalysis" during the course of both random and scheduled drug testing, and has paid off his Court-ordered special assessment. The Probation Department's Petition concludes:
We find Mr. Clark to be an intelligent, engaging, and conscientious individual. Conversations over the years with his employers have invariably supported our impressions of Mr. Clark as a valued and integral part of their operation. In light of all the above, we believe Mr. Clark has an excellent prognosis for continued positive adjustment in the community. As such, we feel Alan Clark is a good candidate for early termination from supervision.
Petition at page 1.

  The Probation Department properly sent a copy of its Petition to the government for comment. According to the Petition at page 1, the AUSA who had succeeded to responsibility for the case (the AUSA who prosecuted it was no longer with the government) responded that "despite Mr. Clark's personal achievements, his office does not support early termination from supervision."

  I sent a letter to the government, directing it to advise the Court whether "this is, in fact, invariably the policy of the U.S. Attorney's Office, and, if so, fully explaining the reasons underlying this policy." In a letter response dated October 28, 2004, the AUSA now in charge of the case advised the Court that he had told the Probation Officer that "we cannot approve early termination of supervised release in drug cases such as this one" (emphasis added), and then recounted the nature and facts of the case. It appears from the government's letter that the AUSA had retrieved the case file from storage to answer the Probation Department's inquiry and then sent it back again. The AUSA concludes by saying that "[i]f the Court would like a more detailed description of the facts of this case, then I respectfully request more time in order to retrieve the files from storage." October 28, 2004 letter at 1.

  I conclude that the PSR gives me a sufficient description of the facts of the case, and that the Probation Department's Petition for early termination of Clark's supervised release should be granted.

  This was a serious drug case, as the government points out in opposing Clark's early termination of supervision. But the PSR makes it apparent that Clark's co-defendant, McLean, was the architect and chief operating officer of the scheme. Thus the PSR states that "in June of 1992, Clark was initially approached by McLean in order that he make a series of trips to Los Angeles, California to pick up PCP." ¶ 11. Clark was "given $700 for expenses by McLean" for the first trip in February 1993. ¶ 12. It was McLean who wired the confidential informant in Los Angeles funds for the purchase of PCP, the transaction that resulted in Clark's arrest. ¶ 17. The PSR summarizes Clark's participation in the conspiracy by saying that "Clark made a total of between 8 and 10 trips to Los Angeles, California on behalf of McLean to pick up PCP." ¶ 21 (emphasis added), and that "Clark reportedly received between $5,000 and $10,000 from McLean for his role in transporting and storing the PCP." Id. (emphasis added). (The PCP was initially stored in Clark's apartment.)

  The PSR declined to recommend a downward adjustment for Clark under the Sentencing Guidelines on the basis of a lesser role in the conspiracy, reasoning at ¶ 31: "In this case, the defendant [Clark] made between 8 and 10 trips to California at the direction of McLean in order to receive PCP. The PCP was then transported back to New York City by Clark, who also became responsible for its distribution" (emphasis added).

  I have no quarrel with the PSR's declination of a lesser role adjustment for Clark, although one searches the PSR in vain for a factual predicate for the statement that Clark "became responsible for [the PCP's] distribution." But no matter; it is clear in any event that McLean was the mastermind of the conspiracy and Clark the laborer. I think it is appropriate to consider an individual's relative contribution to a narcotics conspiracy when the government takes the seemingly blanket position that it "cannot approve early termination of supervised release in drug cases such as this one."

  When I consider Clark's particular role in the offense of conviction, his prompt acknowledgment of guilt and cooperation with law enforcement officers, his exemplary conduct while on supervised release, and the assessments and recommendations of able and experienced Probation Officers, I conclude that the case is made for an early termination of Clark's supervised release, and grant the Petition. I have endorsed the Order to that effect which accompanied the Petition.


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