United States District Court, District of Columbia
D. BATES United States District Judge.
the Court is  Magistrate Judge Harvey's Report and
Recommendation concerning defendant's alleged violations
of his conditions of supervised release,  defendant's
objections to the Report and Recommendation, and  the
government's response. For the reasons set forth in the
Report and Recommendation and those stated below, the Court
finds that defendant violated the terms of his supervised
release. The Court accordingly adopts in full the Report and
Recommendation, revokes defendant's supervised release,
and sentences defendant to thirty months of incarceration.
Court will briefly summarize the key facts, which are
described more fully in the Report and Recommendation.
See R&R [ECF No. 47] at 1-7. In August 2014,
defendant pleaded guilty to conspiracy to distribute and
possess with intent to distribute five kilograms or more of
cocaine on board an aircraft registered in the United States.
He was sentenced to time served, approximately 39 months. Am.
Judgment [ECF No. 29] at 2. His sentence included a
three-year term of supervised release. Id. at 3.
supervised release commenced on June 24, 2016, under the
supervision of the U.S. Probation Office for the Middle
District of Florida, where defendant resided with his wife,
Amparo Perez ("Perez"). Less than three months
later, the Probation Office filed a Probation Petition
alerting the Court that the Probation Office received a call
from Perez stating that she was receiving medical treatment
for injuries sustained when defendant attacked her with a pot
of boiling water while she was in bed sleeping. See
Sept. 16, 2016, Probation Petition [ECF No. 31] at 4. The
Petition also noted that the defendant's whereabouts were
unknown and alleged that he had changed his residence without
authorization. See Id. at 1-2. On September
16, 2016, this Court issued an arrest warrant for defendant
based on the alleged battery of Perez. See
Supervised Release Warrant [ECF No. 34]. The same day, the
State of Florida issued an arrest warrant charging defendant
with Aggravated Battery. See Gov't Ex. 16.
Defendant was arrested four days later in Puerto Rico.
the Probation Office filed second and third Probation
Petitions, alleging that defendant committed Aggravated
Battery under Florida law, see Oct. 25, 2016, Probation
Petition [ECF No. 33] at 2, and that he left the Middle
District of Florida and traveled to Puerto Rico without
permission, see Dec. 8, 2016, Probation Petition [ECF No. 36]
Court referred this case to Magistrate Judge Harvey for a
preliminary revocation hearing. See Nov. 1, 2016,
Minute Order. The government represented that it did not
intend to pursue the first alleged violation, i.e., that
defendant changed his residence without authorization, and
defendant conceded the third violation, i.e., that he left
the judicial district without permission. Thus, the primary
issue was whether defendant committed aggravated battery
against Perez. If so, that is a violation of the following
condition of his supervised release: "[t]he defendant
shall not commit another federal, state, or local
crime." Am. Judgment at 3.
series of hearings during December 2016 and January 2017, the
Court considered documentary evidence; testimony from the
Orange County Sheriff's Office, a defense investigator,
and defendant's probation officer; photographs of the
scene and Perez's injuries; and Perez's out-of-court
statements about the alleged battery. See R&R at
2-18. Perez's statements established two competing
narratives. Initially, she provided several statements
contemporaneous with the alleged battery-including a 911
call, a sworn statement to police, and statements to
defendant's probation officer and mental health
provider-describing defendant attacking her with boiling
water in the bedroom. Months later, Perez made two recanting
statements-a November 10, 2016, sworn statement and a
December 20, 2016 unsworn statement to a defense
investigator-in which she attributed her injuries to a
self-inflicted kitchen accident. The government ultimately
subpoenaed Perez to testify at the hearing held on January
26, 2017, but she invoked her Fifth Amendment right to remain
silent because her inconsistent statements exposed her to
prosecution in federal court for perjury and in Florida under
a state statute penalizing knowingly giving false information
to law enforcement. Defendant has argued that the government
was obligated to provide immunity to Perez and that if the
government had done so, she would have been available for
cross-examination by defendant. The government objects to
this argument for reasons described more fully below.
Judge Harvey issued a Report and Recommendation finding
defendant committed aggravated battery against Perez, and
recommending revocation of defendant's supervised release
and a period of incarceration of not less than 30 months.
See Id. at 26-27. Defendant thereafter
filed a brief stating two objections. See Def.' s
Objections to R&R [ECF No. 48]. First, he generally
objected that "[t]here is insufficient evidence to
establish that [defendant] assaulted his wife."
Id. at 5. Second, defendant "strenuously
disagree[d] with the Magistrate Judge's finding that
'Defendant has not demonstrated that prejudice resulted
from his inability to cross-examine Perez.'"
Id. at 8. The government responded, urging the Court
to reject these objections and adopt the Report and
Recommendation. Gov't's Response to R&R [ECF No.
49] at 1.
of supervised release requires the government to prove by a
preponderance of the evidence that the defendant has violated
one or more of the conditions of his supervised release. 18
U.S.C. § 3583(e)(3). The "preponderance of the
evidence" standard requires only that the trier of fact
"believe that the existence of a fact is more probable
than its nonexistence." Concrete Pipe & Prods,
of Cal., Inc. v. Constr. Laborers Pension Tr. for S.
Cal., 508 U.S. 602, 622 (1993) (internal quotation marks
magistrate judge issues a report and recommendation, any
party may file written objections within fourteen days. L.
Crim. R. 59.2(b). Importantly, "[t]he objections shall
specifically identify the portions of the proposed findings
and recommendations to which objection is made and the basis
for the objection." Id. The district judge
"shall make a de novo determination of those portions of
a magistrate judge's findings and recommendations to
which objection is made." L. Crim. R. 59.2(c). However,
"when a party makes conclusory or general objections ..
. the Court reviews the Report and Recommendation only for
clear error." M.O. v. District of
Columbia, 20 F.Supp.3d 31, 37 (D.D.C.2013) (internal
quotation marks omitted); see also Powell v. Dep't of
Justice, 1991 WL 119598 (D.C. Cir. June 28, 1991) (per
curiam) (nonprecedential) ("[F]ailure to file specific
objections to the magistrate's report obliged the
district court to review the report only for clear
error."). "A district judge may make a
determination based solely on the record developed before the
magistrate judge, or may conduct a new hearing, receive
further evidence, and recall witnesses." L. Crim. R.
59.2(c). A district judge may accept, reject, or modify the
findings and recommendations of the magistrate judge. Id
noted above, defendant objects to the sufficiency of the
evidence of the aggravated battery charge and argues that he
was prejudiced by his inability to cross-examine ...