The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
In accordance with Title 28, United States Code, Section 636(a)(3) and Title 18, United States Code, Section 3401, the undersigned has the authority and jurisdiction to conduct all proceedings in this matter, including trial.
On March 10, 2010, following a plea of guilty to possession of cocaine base, in violation of Title 21, United States Code, Section 844(a), this Court sentenced the defendant, Jody McNutt, to one (1) year probation, to include, inter alia, substance abuse testing and treatment. Presently before this Court is an Amended Petition for Offender Under Supervision seeking the revocation of defendant's term of probation. A Probation Violation hearing was held on August 24, 2011. In support of the Amended Petition for Offender Under Supervision, the government submits that it has proven the charges in the petition to the reasonable satisfaction of the Court and asserts that a term of incarceration would be appropriate in light of the factors set forth in Title 18, United States Code, Section 3553(a). For the reasons set forth below, this Court finds that the government has failed to prove the charges in the Amended Petition to this Court's reasonable satisfaction. Accordingly, the Amended Petition for Offender Under Supervision is denied and the charges in the Amended Petition are dismissed.
On March 10, 2010, this Court sentenced defendant McNutt to a one (1) year term of probation following her plea of guilty to possession of cocaine base in violation of Title 21, United States Code, Section 844(a). Dkt. #266. A special condition of defendant's term of probation was substance abuse testing and treatment. Id. As a result of continued cocaine use, on March 2, 2011, defendant's term of probation was extended one (1) year from the date of her February 16, 2011 appearance before this Court and defendant McNutt was ordered to enter the Hope Haven inpatient substance abuse treatment program. Dkt. #289. Following discharge from the inpatient treatment program, defendant was further ordered to enter a drug halfway house for at least three months. Id.
On April 15, 2011, after having been notified of circumstances preventing her from entering a drug halfway house, including the inability to pay for the cost of placement and her counselor's recommendation that she enter outpatient treatment, this Court rescinded that portion of its prior Order directing that defendant McNutt enter a drug halfway house for at least three months. Thereafter, this Court modified its prior Order and directed that defendant McNutt be placed in the United States Probation Office's random drug testing program. This Court's Order further stated, "[t]here will be ZERO tolerance for any drug use, failing to report for random drug testing and any missed substance abuse treatment appointments." Dkt. #290, p.2.
On July 18, 2011, based on a Petition for Offender Under Supervision (Dkt. #293) charging defendant McNutt with violating the terms and conditions of her probation, to wit, a June 27, 2011 positive test for cocaine, this Court directed that a Summons be issued for a violation hearing. Id. Defendant McNutt appeared before this Court on July 28, 2011 for an initial appearance on the Petition and a violation hearing was scheduled for August 24, 2011. Specifically, the Petition alleged two charges and set forth the following detail relating to the alleged conduct as it pertained to both charges:
On 6/27/11, this officer [U.S. Probation Officer Assistant Corey M. Ricca] and U.S. Probation Officer Melissa Colley made an unannounced field contact at the subject's residence. The subject was asked to provide a urine sample for drug testing but reported she was not able to provide a sample. This officer placed a sweat patch on the subject, which also tests for any use of controlled substances. On 6/29/11, the subject reported to the U.S. Probation Office as instructed and the sweat patch was removed and sent to the lad [sic] for testing. On 7/10/11, this officer received notification that the patch tested positive for cocaine.
Dkt. #295, p.2. Thereafter, on August 2, 2011, this Court directed that a further Summons be issued for a violation hearing pursuant to an Amended Petition for Offender Under Supervision. Dkt. #295. The Amended Petition added a third charge concerning missed substance abuse treatment appointments on July 21, 2011 and July 26, 2011. Dkt. #295.
The Court conducted a violation hearing on the charges set forth in the Amended Petition for Offender Under Supervision on August 24, 2011. During the hearing, United States Probation Officer Assistant Corey M. Ricca testified for the government and presented evidence that the defendant submitted to a sweat patch test for the presence of controlled substances in her system on June 27, 2011, which later tested positive for the presence of cocaine. In addition, the government presented evidence that the defendant had similar positive drug test results on August 6, 2010, October 27, 2010, November 2, 2010 and December 23, 2010. Finally, U.S. Probation Officer Assistant Corey Ricca testified that defendant's drug treatment counselor advised him that the defendant failed to attend two substance abuse treatment appointments in July 2011. In its post-hearing memorandum of law, the government submits that it has proven the charges in the [Amended] Petition for Offender Under Supervision to the reasonable satisfaction of the Court and further that the Court should revoke defendant's term of Probation and impose a term of incarceration. Dkt. #298, p.4.
Ms. McNutt testified in her own defense and presented evidence that her positive sweat patch test for cocaine in June 2011 was the result of environmental contamination, not actual drug use. In her defense, Ms. NcNutt argues that it is undisputed that her husband smokes crack cocaine in their home. In addition, Ms. McNutt has adamantly denied using cocaine, or any other drug, since her release from Hope Haven in March 2011. In fact, her prior positive drug test results submitted by the government in support of the instant charges all pre-dated her in-patient treatment at Hope Haven. The defendant further asserts that her adamant denial that she used cocaine in June 2011 is bolstered by the results of a urinalysis administered by a prospective employer on June 30, 2011, only one day after her sweat patch test was removed on June 29, 2011. The urinalysis was negative for cocaine. Indeed, the defendant was hired by this employer and is presently working for them as a health care aide. In her post-hearing memorandum of law, defendant McNutt argues, [t]he urinalysis administered by her employer shows a negative for cocaine metabolites in the urine, and uses the same cutoff value, 150 ng/ml, that Officer Ricca testified was used in the Probation Office's urinalysis drug tests. (Defendant's Exhibit A). Furthermore, since her successful completion of the Hope Haven drug treatment program, Ms. McNutt has tested negative for cocaine (and all other controlled substances) at all urine tests given by her outpatient drug counselor. (Defendant's Exhibit D, showing negative results for cocaine on March 28, 2011; April 7, 2011; June 2, 2011; and July 11, 2011).
Dkt. #297, p. 5. Finally, defendant McNutt testified that her failure to attend a July 21, 2011 substance abuse treatment appointment was inadvertent and that she had to pick up her son. With respect to the July 26, 2011 appointment, Ms. McNutt testified that she had advised her probation officer and her drug counselor that she did not have transportation to that appointment and would not be able to attend. In her post-hearing memorandum of law, Ms. McNutt maintains that she regrets having missed the two appointments, however, she submits that she had legitimate reasons for failing to attend and has made a concerted effort to attend all subsequent appointments. Id. at p.6.
Rule 32.1 of the Federal Rules of Criminal Procedure governs probation revocation proceedings, and a defendant is entitled to: written notice of the alleged violations; disclosure of the evidence against him/her; an opportunity to appear, present evidence and question adverse witnesses; a right to counsel and an opportunity to make a statement and present mitigation evidence. Disposition of the case is governed by Title 18, United States Code, Sections 3563 and 3565 and Fed. R. Cr. P. 32.1(b)(2) and (d). If the court finds that the defendant violated his/her probation, the court must consider the applicable sentencing factors recited in Title 18, United States Code, Section 3553(a), and either "(1) continue [the defendant] on probation, with or without extending the term or modifying or ...