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 Kurtis Lee Bristow's ("Defendant") Supplemental Briefing Regarding his Motion to Dismiss Supervised Release Revocation Proceedings ("Motion"). [Doc. No. 273.] Plaintiff United States of America ("the Government") has filed Supplemental Briefing in Opposition of Defendant's Motion. 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.) District Court 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 to 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.] On September 10, 2007, the Court held an evidentiary hearing on the allegations that Defendant had violated the terms of his supervised release. [Doc. No. 267.] At the evidentiary hearing, Defendant argued that the Probation Office had exceeded the Court's delegation of authority with regard to urinalysis testing. Specifically, as a special condition of supervised release, Judge Enright had ordered Defendant to "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.) Citing United States v. Stephens, 424 F.3d 876 (9th Cir. 2005), Defendant argued that because the Court did not set a maximum number of urinalysis tests to which he could be subjected, the Probation Office was limited to three total tests under 18 U.S.C. § 3583(d). (Id.) Defendant further argued that the Probation Office exceeded its authority by testing him more than three times. Defendant filed a Motion to Dismiss Supervised Release Revocation Proceedings. [Doc. No. 273.] The Government filed an Opposition. [Doc. No. 274.] Defendant filed a Reply. [Doc. No. 276.] On September 14, 2007, the Court denied Defendant's Motion to Dismiss Supervised Release Revocation Proceedings on the grounds that Stephens did not apply to drug testing that was administered as a part of treatment and not penological reasons. (Order Denying Def's Mot. to Dismiss at 8.) The Court held that although testing pursuant to the second condition of Judge Enright's order would violate Stephens, the drug testing was actually conducted pursuant to the first condition of Judge Enright's order prescribing treatment and was thus permissible. (Id. at 7.)
At a hearing on September 17, 2007, Defendant argued that he had recently received evidence showing that the drug testing was not a part of a drug treatment program as the Court understood it to be at the time of the Court's Order. Defendant argued that since testing was done before treatment began and probation officers, instead of treatment professionals, were making decisions about when to test Defendant, the testing was for penological purposes rather than treatment. The Court ordered the Parties to submit supplemental briefing on the issue of whether the drug testing was done as a part of a treatment program or for penological reasons. Defendant submitted the instant ...