ORDER REGARDING PRELIMINARY HEARING AND VACATING CONDITIONS OF RELEASE SET ON NOVEMBER 19, 2013
KANDIS A. WESTMORE, Magistrate Judge.
On December 20, 2010, Agusto Cesare Ghidoni was sentenced to 18 months in custody and three years of supervised release for conspiracy to transport illegal aliens. The United States District for the Western District of Texas retained jurisdiction over the underlying criminal action. Jurisdiction over Defendant's supervision was transferred to this district.
On October 29, 2013, Defendant's probation officer filed a petition, alleging that Defendant had violated the conditions of his supervised release. Specifically, the probation officer alleged that Defendant had violated the following conditions: Defendant shall not commit another federal, state, or local crime during the term of supervision; Defendant shall not unlawfully possess a controlled substance, shall refrain from any unlawful use of a controlled substance, and shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the court; and Defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substance, except as prescribed by a physician.
Defendant's arrest is the basis for the first violation alleged in the petition, i.e., that Defendant committed another federal, state, or local crime during the term of his supervised release. On September 7, 2013, two Bay Area Rapid Transit ("BART") police officers responded to a call regarding a domestic battery. The officers arrived at the scene. They were advised that Defendant had spit on the victim, choked her, and punched her in the face as she was screaming and attempting to get away from him. The officers observed Defendant screaming at the victim and holding her in a "bear hug." Defendant was distraught, apparently screaming and crying. Witnesses confirmed the events. Defendant was arrested under California Penal Code § 243(e)(1) (battery against a spouse).
The District Judge found probable cause and issued a warrant for Defendant's arrest on October 29, 2013. The warrant reads: "Bond is set in the amount of $ detain cash/surety with supervision by the United States Probation Office to continue as a condition of release."
Defendant was arrested, and on November 19, 2013, the court held a preliminary hearing on whether there was probable cause to believe that Defendant violated the conditions of his release by committing another federal, state, or local crime during the term of supervision. The court also heard the Government's motion to detain Defendant pending his supervised release revocation hearing. Defendant was present, in custody, and represented by Public Defender Angela Hansen. Assistant United States Attorney Rodney Villazor appeared on behalf of the Government. The court heard testimony from Probation Supervisor Mark Messner,  who supervises Defendant's probation officer, and Brittany Martin, the alleged victim.
After a full hearing, the court found that there was no probable cause to believe that Defendant committed a battery on the victim. The court also found that Defendant showed that he is not a flight risk or a danger to the community by clear and convincing evidence. For the reasons stated below, however, the court now vacates the conditions of release fashioned on November 19, 2013. The court hereby orders Defendant remanded to custody and transferred immediately to the Western District of Texas, the charging district, for further proceedings.
II. LEGAL ANALYSIS
A. The court found that there was no probable cause to believe that Defendant committed another federal, state, or local crime in violation of the conditions of his release.
The court held a preliminary hearing pursuant to Federal Rule of Criminal Procedure 32.1(b). That rule specifically affords a defendant the right to a preliminary hearing in the district of arrest when an alleged supervised release violation occurs in that district. FED. R. CRIM. P. 32.1(a)(5) ("If the person is arrested or appears in a district that does not have jurisdiction to conduct a revocation hearing, the magistrate judge must (A) if the alleged violation occurred in the district of arrest, conduct a preliminary hearing under Rule 32.1(b)....") (emphasis supplied). That rule further provides that where the alleged violation occurred in the district of arrest, the magistrate judge must either: "(i) transfer the person to the district that has jurisdiction, if the judge finds probable cause to believe that a violation occurred; or (ii) dismiss the proceedings and so notify the court that has jurisdiction, if the judge finds no probable cause to believe that a violation occurred." FED. R. CRIM. P. 32.1(a)(5)(A) (emphasis supplied). In this district, the criminal calendar Magistrate Judge may conduct a preliminary hearing to determine whether there is probable cause to believe that a supervised release violation has occurred. CRIM. L.R. 32.1-1.
At the hearing, the Government referenced portions of the BART police report in support of its argument that there was probable cause to believe Defendant committed a federal, state, or local crime based on the events culminating in the September 7, 2013 arrest. Officer Torres, one of the responding officers, reported that Defendant was screaming and holding the victim in a bear hug. Officer Torres noted that the victim was trying to break free from Defendant's grasp. He also indicated that it did not appear as though Defendant was attempting to hurt the victim at that point in time. The officer also reported that Defendant was extremely distraught and crying.
The Government also referenced the police report description of statements made to the reporting officer by Alana Brooks. Ms. Brooks stated that she observed Defendant and the victim sitting on a curb, arguing. She stated to the officer that she saw Defendant spit in the victim's face. The victim proceeded to stand up and walk away, but Defendant grabbed her by the throat and hit her in the face. Ms. Brooks could not discern whether Defendant had struck the victim with an open hand or a closed fist. According to Ms. Brooks, the victim attempted to walk away from Defendant, but he continued to grab and pull her, as the victim screamed "get away from me, " "you're crazy, " "let me go."
The Government also highlighted the portions of the police report containing the account of another witness, Jesse Chapman. Mr. Chapman indicated that Defendant and the victim were screaming at each other, that Defendant kept grabbing the victim to prevent her from leaving, and that the victim kept screaming "let me go." Mr. Chapman did not see Defendant strike the victim, but did observe "aggressive shoving." Mr. Chapman indicated that ...