The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
Before the Court is Defendant Kurtiss Lee Bristow's ("Defendant") Motion to Dismiss Supervised Release Revocation Proceedings. [Doc. No. 273.] For the reasons stated below, the Court DENIES this Motion.
On April 23, 1990, Defendant was sentenced to 163 months in custody and five years of supervised release for conspiracy to manufacture methamphetamine and possession of methamphetamine with intent to distribute. (Pet. for Warrant at 1.) Judge Enright ordered several conditions of supervised release, including the following:
/X/ That he participate in an alcohol or drug counseling program as directed by the Probation Officer.
/X/ That he submit to tests from time to time at the direction of his Probation Officer to determine his use of narcotics. (Mot. to Dismiss Ex. A.)
On April 18, 2002, Defendant began serving his five-year term of supervised release. Mot. to Dismiss at 2.) On April 26, 2002, Defendant authorized Mental Health Systems, Inc. ("MHS") to release confidential information to the Probation Office. (Opp'n to Mot. to Dismiss Ex. 2.) The confidential information to be released included "date of entrance to the program, attendance records, urine testing results, type, frequency and effectiveness of therapy, general adjustment to program rules, type and dosage of medication(s), response to treatment, test results (psychological, vocational, etc.), and date of and reason for withdrawal from program, prognosis." (Id.) The release stated that the information was "to be used in connection with my participation in the aforementioned program which has been made a condition of my supervision." (Id.)
On May 12, 2003, Probation Officer Martin A. Andrews issued a Report on Offender Under Supervision ("Report"). (Opp'n to Mot. to Dismiss Ex. 3.) Officer Andrews noted that Defendant had been referred to MHS's "drug aftercare program." (Id.) According to the Report, Defendant violated the special condition of supervision that he participate in this program. (Id. at 2.) Specifically, the Report alleged that on May 16, 2002, Defendant "failed to report to Mental Health Systems, Inc. to submit a urine sample, as required, as evidenced by report of stall." (Id.) The Report also alleged that Defendant had consumed alcohol prior to reporting for urine testing in violation of MHS program rules. (Id.) According to the Report, Defendant was advised that "should he continue to violate MHS program rules, he would be terminated from the drug aftercare program and be required to submit urine samples at the U.S. Probation Office."
The Report also noted that Defendant was temporarily working in the Eastern District of California and was required to submit regular urine samples at the direction of the Probation Office for that District. (Id.) The Report stated that once Defendant returned to this District, he would be required to participate in formal drug abuse counseling as offered through MHS and would be retained in the most frequent phase of testing. (Id.) The Court adhered to the Report's recommendation and did not take action on the allegations of noncompliance. (Id. at 3.)
Defendant's term of supervised release was set to expire on April 18, 2007. (Id. at 4.) However, on September 30, 2004, United States Probation Officer Andrews filed a Petition for Warrant alleging that Defendant had violated conditions of his supervised release. (Pet. for Warrant at 2.) The Petition for Warrant was unsworn. (See id.) The Petition for Warrant alleged that Petitioner violated the Special Condition that he "[p]articipate in a program of drug or alcohol abuse treatment." (See id.) Specifically, the Petition for Warrant alleged the following:
1. On September 24, 2004, Mr. Bristow failed to comply with drug testing by using a device to submit a fraudulent urine sample.
2. On April 15 and 19, June 21, August 30, September 13 and 23, 2004, Mr. Bristow failed to submit urine samples at Mental Health Systems, Inc. as evidenced by reports of stall.
Records from MHS titled "Monthly Treatment Report" and "MHS Stalls Report" indicate that in 2004, Defendant stalled on April 15, April 19, June 21, August 30, September 13, and September 23. (Mot. to Dismiss Ex. C.)
On January 7, 2005, Officer Andrews filed an Amended Petition for Warrant. [Doc. No. 242.] Unlike the original Petition for Warrant, the Amended Petition was sworn. (See Am. Pet. for Warrant.) The Amended Petition did not state the basis for probable cause on its face, but rather stated that probable cause was based on attached documents. However, the record did not show that any documents establishing probable cause accompanied the Amended Petition at the time the warrant was issued. On June 29, 2007, the Court concluded that the Amended Petition was insufficient to support a finding of probable cause, but ordered the parties to brief the issue of whether Defendant's term of supervised release had been tolled. [See Doc. No. 262.] On August 16, 2007, the Court determined that it still had jurisdiction to revoke supervised release. ...