United States District Court, E.D. New York
MEMORANDUM AND ORDER ADOPTING REPORT &
L. IRIZARRY Chief Judge.
January 5, 2001, James Thomas (“Defendant”) was
convicted, upon his plea of guilty, of conspiracy to possess
with intent to distribution cocaine base. After completing
the custodial portion of a sentence, Defendant commenced a
five-year term of supervised release that he was scheduled to
complete on October 23, 2013. However, Defendant violated the
terms of his sentence of supervised release. On March 7,
2013, the Court sentenced Defendant to an additional year of
supervised release. (See Violation of Supervised
Release Order as to James Thomas, Dkt. Entry No. 17.)
February 14, 2014, Defendant was charged with seven
violations of the conditions of his supervised release
(“VOSR”), stemming from his arrest for various
narcotics offenses after the execution of a search warrant by
the Binghamton City, New York Police Department. (See
generally Violation of Supervised Release Report
(“VOSR Report”), Dkt. Entry No. 29.) On May 14,
2014, the Court referred the matter to the Honorable Marilyn
D. Go, United States Magistrate Judge, for a hearing and to
issue a report and recommendation.
15, 2014, the magistrate judge conducted a hearing on the
alleged violations. (See July 15, 2014 Hearing
Transcript (“Tr.”).) On August 29, 2014, the
magistrate judge issued a Report and Recommendation (the
“R & R”), recommending that the Court find
Defendant guilty of Charges Two through Seven of the VOSR
Report. (See generally R & R, Dkt. Entry No.
52.) Defendant timely objected to the R & R (see
Defendant’s Objections to R & R (“Def.
Obj.”), Dkt. Entry No. 53), which the Government
opposed (see Government’s Opp’n. to Def.
Obj., Dkt. Entry No. 54).
November 15, 2015, the government advised the Court that, on
October 9, 2015, Defendant was found guilty by jury trial of
all counts in the state case brought for the conduct
underlying the seven VSOR charges at issue here. (Report on
Offender Under Supervision (“ROUS”), Dkt. Entry
No. 66.) In the ROUS, the government noted that the
state jury found Defendant guilty for the state offense
underlying VOSR Charge One, which the magistrate judge had
recommended this Court find the government had not
established by a preponderance of the evidence.
October 28, 2016, after the Court scheduled a conference on
the VOSR, Defendant filed a letter, pro se,
enclosing what appears to be a draft of his attorney’s
brief appealing his state conviction. (See Letter
from J. Thomas to the Court, Dkt. Entry No. 68.) The
arguments contained in the draft appellate brief consist of
the following: (i) the evidence presented at trial was
insufficient; (ii) the state failed to establish a proper
chain of custody for certain evidence admitted and other
evidence admitted was unduly prejudicial; (iii) the police
withheld Brady material until the start of trial; (iv) trial
counsel was ineffective; and (v) prosecutors committed
misconduct in their preparation of a key witness.
(See Draft Mem. in Support of State Appeal, Dkt.
Entry No. 68-1, 68-2.)
reviewed the R & R, Defendant’s timely objections
thereto, and the additional aforementioned materials, the
Court adopts the recommendations contained in the R & R
in their entirety for the reasons set forth below.
Accordingly, Defendant’s supervised release is revoked,
and a sentencing hearing shall be scheduled by separate
party objects to a report and recommendation, a district
judge must make a de novo determination with respect
to those portions of the report and recommendation to which
the party objects. See Fed. R. Crim. P. 59(b)(3);
United States v. Male Juvenile, 121 F. 3d 34, 38 (2d
Cir. 1997). If, however, a party makes conclusory or general
objections, or attempts to relitigate the party’s
original arguments, the court will review the report and
recommendation for clear error. See Robinson v.
Superintendent, Green Haven Corr. Facility, 2012 WL
123263, at *1 (E.D.N.Y. Jan. 17, 2012) (quoting Walker v.
Vaughan, 216 F.Supp.2d 290, 292 (S.D.N.Y. 2002)). The
district court may then “accept, reject, or modify the
recommendation, receive further evidence, or return the
matter to the magistrate judge with instructions.” Fed.
R. Crim. P. 59(b)(3); see also 28 U.S.C. §
Burden of Proof
magistrate judge correctly set forth the standard as to the
government’s burden of proof. (See R & R
at 7.) It is well settled that “[r]evocation
proceedings are not deemed part of a criminal prosecution,
and, therefore, defendants in such proceedings are not
entitled to ‘the full panoply of rights’ that
criminal defendants generally enjoy.” United States
v. Carthen, 681 F.3d 94, 99 (2d Cir. 2012) (quoting
Morrissey v. Brewer, 408 U.S. 471, 480 (1972)). At a
violation of supervised release hearing, the government must
prove the alleged violations of supervised release by a
preponderance of the evidence. 18 U.S.C. § 3583(e)(3);
Fed. R. Crim. P. 32.1(d); see also Carthen, 681 F.3d
Court incorporates the recitation of the facts as provided in
the R & R, and will recite the facts of this case only to
the extent necessary to explain the Court’s ruling. In
light of Defendant’s timely objections, the Court has