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United States v. Thomas

United States District Court, E.D. New York

February 16, 2017

UNITED STATES OF AMERICA,
v.
JAMES THOMAS, Defendant.

          MEMORANDUM AND ORDER ADOPTING REPORT & RECOMMENDATION

          DORA L. IRIZARRY Chief Judge.

         On January 5, 2001, James Thomas (“Defendant”) was convicted, upon his plea of guilty, of conspiracy to possess with intent to distribution cocaine base.[1] 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.)

         On 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.

         On July 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).

         On 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.)[2] 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. (Id.)

         On 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.)

         Having 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 order.

         STANDARD OF REVIEW

         When a 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. § 636(b)(1).

         DISCUSSION

         I. Burden of Proof

         The 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 at 99-100.

         II. Analysis

         The 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 ...


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