The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
The defendant, Maurice Fisher, was charged in a Petition for Offender Under Supervision, filed on August 8, 2011 (the "Petition"), with three charges of violating a mandatory condition of his supervised release requiring that he "not commit another federal, state or local crime." The Petition specifically charged that, on July 30, 2011, defendant Fisher: (1) possessed a controlled substance with intent to sell it in violation of New York Penal Law § 220.16; (2) possessed 500 milligrams or more of cocaine in violation of New York Penal Law § 220.06; and, (3) possessed with intent to distribute cocaine base in violation of Title 21, United States Code, Section 841(a)(1).
The charges in the Petition arise from a Buffalo Police Department seizure on July 30, 2011 of 22 plastic baggies of alleged crack cocaine from inside two magnetic key holders found attached to the frame under the driver's door of a rental vehicle that defendant Fisher was driving. Based upon facts established during a violation hearing, and for the reasons stated below, the Court finds that the defendant knowingly possessed cocaine with intent to distribute it and finds the defendant guilty of Charges 1, 2 and 3 of the Petition.
A Judgment in a Criminal Case against defendant Fisher reflecting a January 24, 2008 sentencing was filed on February 6, 2008. Doc. 195. The defendant had been adjudged guilty after a plea to the offense of Conspiracy to Possess with Intent to Distribute and to Distribute Five (5) or More Grams of Cocaine Base in violation of 21 U.S.C. § 846. Id. For that offense, the defendant faced a mandatory-minimum sentence of 10 years imprisonment, but he was granted a downward departure under applicable Sentencing Guidelines and was sentenced to a term of imprisonment of 63 months to be followed by five years of supervised release. His Criminal History Category at the time of the January 24, 2008 sentencing was Category VI.
Defendant Fisher's January 24, 2008 sentence included, as a Condition of Supervised Release, the following mandatory charge:
The defendant shall not commit another federal, state or local crime.
Doc. 195, p. 3. It was also a Special Condition of Supervision that the defendant was to: "submit to a search of his person, property, vehicle, place of residence or any other property under his control, based upon reasonable suspicion, and permit confiscation of any evidence or contraband discovered." Doc. 195, p. 4. The defendant's five-year term of supervised release began on September 30, 2009. Doc. 232.
After an initial appearance on a violation arrest warrant August 19, 2011, and several adjournments requested by defendant Fisher pending the disposition of related criminal charges in a local court, and to allow the defendant time to retain and to confer with new counsel, a violation hearing was held pursuant to Fed. R. Crim. P. 32.1(b)(2) on February 13th and 14th, 2012, that lasted approximately three and a half hours. The parties submitted memoranda of proposed findings and counsel made oral summations on March 28, 2012. The defendant has been detained pending the outcome of the revocation proceedings.
The Court evaluates the evidence offered to establish a violation of supervised release by a standard of the preponderance of the evidence. 18 U.S.C. § 3583(e)(3); Johnson v. United States, 529 U.S. 694, 700 (2000). While conducting the hearing and reviewing the evidence presented at the hearing, the Court is mindful that the Federal Rules of Evidence are not applicable in revocation proceedings. Fed. R. Evid. 1101(d)(3). Certainly, however, the Federal Rules of Evidence are a useful guide to help the Court to make findings supported by "verified facts" and by "accurate knowledge." United States v. Bari, 599 F.3d 176, 179 (2d Cir. 2010) (quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972). During the approximately three and a half hour violation hearing on February 13th and 14th, 2012, the government introduced the testimony of Buffalo Police Officers Thomas F. Sercu, Jr., Donald Genovese, and David Acosta, Buffalo Police Lieutenant Michael March, and forensic chemist Kaitlin Drollette. Defendant Fisher and his girlfriend, Danielle Stallings, testified on the defendant's behalf. After carefully observing the witness' demeanor and testimony, and considering all of the exhibits admitted into evidence, and applying the preponderance of the evidence standard of proof, the Court finds the following facts.
On July 30, 2011, at approximately 4:23 p.m., Buffalo Police Officer Thomas F. Sercu, Jr., observed a black 2011 Jeep Grand Cherokee sport utility vehicle traveling north on Niagara Street in the City of Buffalo. The driver was talking on a cellular telephone and made a left turn off Niagara Street without using a turn signal.
Officer Sercu quickly caught up to the Jeep, turned on the overhead emergency lights of his patrol car, and pulled the Jeep over near the end of a northbound entrance ramp to the I-190 highway. Officer Sercu used a computer in his patrol car to check the license plate number of the Jeep and learned that it was a rental vehicle. Officer Sercu approached the driver, saw that the driver was alone in the Jeep, and that a cellular telephone was in the driver's lap.
During conversation with Officer Sercu, the defendant, Maurice Fisher, the driver of the Jeep, identified himself to Officer Sercu and handed his driver's license to the Officer. Defendant Fisher told Officer Sercu that the Jeep was a rental vehicle and that it had been rented in his girlfriend's name. The defendant told Officer Sercu that he was not named on the rental contract. He told the Officer that he was talking to his girlfriend on the cellular telephone because she had been pulled over by New York State police on the I-290 in Cheektowaga, New York, for a old traffic ticket and that she needed the defendant's help to retrieve proof from her residence that the ticket had been resolved in order to prove that a suspension of her driver's license was supposed to ...