United States District Court, D. Alaska
FINAL REPORT AND RECOMMENDATION REGARDING MOTION TO
MODIFY CONDITIONS OF SUPERVISED RELEASE TO ALLOW TRAVEL
OUTSIDE THE DISTRICT
SCOTT
A. ORAVEC, UNITED STATES MAGISTRATE JUDGE
Introduction
Defendant moved the Court for an order modifying his
conditions of supervised release to allow him to travel to
the Dominican Republic from August 13-28, 2019.[1] The United States
opposed the requested travel based on the inability of the
United States Probation Office to monitor the defendant's
alcohol consumption while outside the United
States.[2] The matter was referred to the undersigned
magistrate judge who conducted a hearing on August 1,
2019.[3]Upon due consideration of the arguments and
evidence adduced at the hearing, the magistrate judge
recommends increasing randomized testing of the Defendant
through the Soberlink device from August 13-28, 2019 and
GRANTING the Defendant's motion at Dkt. 71.
Applicable
Law
Federal
Rule of Criminal Procedure 32.1(c) authorizes the sentencing
court to modify the terms of supervised release it previously
imposed.
Facts
This
court finds the following facts:
On
November 16, 2016, Defendant was sentenced for violating 42
U.S.C. § 408(a)(3)&(4), Social Security Fraud, to
ten months incarceration followed by three years supervised
release. He was also ordered to pay $37, 304.00 restitution.
On November 27, 2017, he began his supervised release and has
been steadily making restitution payments while on release.
Defendant
traveled and returned to the Dominican Republic without
incident on multiple occasions throughout the trial and
release process. The district judge permitted the defendant
to travel to the Dominican Republic prior to sentencing,
after sentencing from October 25 to November 12, 2018, and
then again from February 8-26, 2019.
On June
25, 2019, the Defendant was charged with Operating Under the
Influence in violation of Anchorage Municipal Code
9.28.020(A). The case is pending and scheduled for a
pre-trial conference on August 12, 2019. As a result of this
incident, Defendant agreed to modification of his conditions
of supervised release adding a prohibition on the consumption
and possession of alcohol, and a requirement of participation
in an alcohol monitoring program for up to 90 days. The
United States Probation Office outfitted the Defendant with a
Soberlink device as a primary means to monitor him for
alcohol consumption on or about July 9, 2019.
While
the Defendant has complied with the additional conditions
since July 9, 2019, the Soberlink device has limited
capabilities when utilized in the Dominican Republic. In the
United States, the Soberlink device monitors the Defendant
for alcohol consumption in two ways. First, the Probation
Officer can program the device to administer random or
scheduled tests per day and per week. The defendant is
currently scheduled for testing on the device twice a day,
Monday through Friday, and then three times daily on
weekends. Second, the Probation Officer can send a text
message to the defendant at any time and require the device
to administer an immediate test. In the Dominican Republic,
the immediate testing option is not available, however the
random/scheduled tests are active. To mitigate risk of
non-compliance, the Probation Officer can increase the amount
of random or scheduled tests per day.
The
Defendant will be provided a cell phone while he is in the
Dominican Republic and the Defendant will reside in areas
with cellular service. Regardless of cellular service
accessibility, the SoberLink system is based on GPS, so even
a lack of cell service would not render the Soberlink unit
inactive. Defendant requests to go to the Dominican Republic
in part because of paid employment.
Conclusion
This
court recommends allowing the Defendant to travel to the
Dominican Republic as requested from August 13-28, 2019. The
Defendant's continued adherence to the release
conditions, previous trips to the Dominican Republic without
violation, and the relationship of this trip to his continued
employment were key to this court's recommendation. The
ability to increase the alcohol testing through the Soberlink
device will ...