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United States v. Domenech

United States District Court, District of Columbia

May 2, 2017



          JOHN D. BATES United States District Judge.

         Before the Court is [47] Magistrate Judge Harvey's Report and Recommendation concerning defendant's alleged violations of his conditions of supervised release, [48] defendant's objections to the Report and Recommendation, and [49] 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.

         I. BACKGROUND

         The 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.

         Defendant's 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.[1] See Gov't Ex. 16. Defendant was arrested four days later in Puerto Rico.

         Thereafter, 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] at 2.

         The 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.

         In a 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.

         Magistrate 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.[2] 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.


         Revocation 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 omitted).

         Once a 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


         As 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 ...

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