United States District Court, N.D. Iowa, Western Division
REPORT AND RECOMMENDATION ON PETITION TO REVOKE SUPERVISED RELEASE
LEONARD T. STRAND, Magistrate Judge.
This case is before me on a petition (Doc. No. 73) (the Petition) to revoke defendant Ronald Rupp's supervised release. The Honorable Donald E. O'Brien has referred the Petition to me for the issuance of a report and recommended disposition. Doc. No. 78. I held an evidentiary hearing on February 12, 2015. Plaintiff (the Government) was represented by Assistant United States Attorney Jack Lammers. United States Probation Officer Dustin Lutgen was also present. Rupp appeared in person and with his attorney, R. Scott Rhinehart. During the hearing, Rupp admitted (through counsel) the violations described in the Petition as alleged Violation Nos. 1, 2, 3, 4, 5, 6, 7, 8 and 13. He denied alleged Violation Nos. 9, 10, 11(a), 11(b), 11(c) and 12.
The Government called Lutgen as a witness, as well as Sioux City Police Officer William Enockson. Rupp called Brittney Vondrak as a witness and also offered one exhibit, Defense Exhibit A, which was received into evidence with no objection. I advised Rupp of his right to make a statement but he elected not to do so.
I. FINDINGS OF FACT
On September 8, 2004, Rupp was sentenced to 92 months imprisonment and a four-year term of supervised release (TSR) based on his pleas of guilty to (a) conspiracy to distribute 50 grams or more of methamphetamine mixture and (b) distribution of 50 grams of methamphetamine mixture. See Doc. Nos. 37. After completing his prison term, Rupp began serving his TSR on February 25, 2011. He is currently serving his second TSR in this case. The circumstances that led to the revocation of his first TSR are set forth in various prior filings (Doc. Nos. 54, 56, 57, 62, 66 and 67) and are incorporated herein by reference.
Judge O'Brien revoked Rupp's first TSR on January 4, 2013, sentenced him to time served and ordered that he be released on supervision for the remainder of his original term, which is scheduled to expire February 24, 2015. Doc. No. 67. On October 21, 2013, Rupp's TSR was modified and Judge O'Brien ordered that Rupp perform sixty hours of community service prior to December 31, 2013. Doc. No. 70. On January 10, 2014, Judge O'Brien further modified his TSR by ordering him to complete ten additional hours of community service prior to February 28, 2014. Doc. No. 71. On August 14, 2014, Judge O'Brien again modified Rupp's TSR and ordered him to complete 20 additional community service hours. Doc. No. 72. These modifications were the result of the following violations: use of a controlled substance, failure to report change in employment, failure to complete community service, failure to report contact with law enforcement, travel outside the judicial district without permission and failure to complete monthly reporting. See Petition at alleged Violation Nos. 1 through 6. As noted above, Rupp admits those violations.
The new alleged violations, which are described in the Petition as Violation Nos. 7 through 13, commenced on September 3, 2014. On that date, Rupp admits that he provided false information to Lutgen about an encounter he had with law enforcement on August 29, 2014. This constitutes alleged Violation No. 7 (false statement to Probation). Because Rupp has admitted the alleged conduct, I find that this violation occurred.
On October 23, 2014, Rupp had a discussion with Lutgen about an acquaintance, Nicole Ramirez. Rupp stated that Ramirez is a drug user and acknowledged that he had been associating with her. This constitutes alleged Violation No. 8 (association with person engaged in criminal activity). Because Rupp has admitted the alleged conduct, I find that this violation occurred. During their discussion, Lutgen directed Rupp to have no further contact with Ramirez.
On October 24, 2014, Rupp reported for random urinalysis but was unable to void a sufficient amount of urine for testing. This constitutes alleged Violation No. 9 (failure to comply with drug testing). Because the Government presented no evidence that this was intentional, or that similar incidents happened on other occasions, I find that the Government did not prove this violation.
On October 27, 2014, Lutgen received separate communications from Rupp and Ramirez to the effect that Ramirez had switched Rupp's e-cigarette with one that had "dope" in it. In effect, if the communications were accurate, Ramirez set Rupp up for a violation by causing him to ingest a controlled substance. Lutgen directed Rupp to report for urinalysis. The result was positive for methamphetamine. This constitutes alleged Violation No. 10 (use of a controlled substance). Based on the evidence presented during the hearing, the Government indicated that it is not asking the court to make a finding that this incident amounted to a violation. As such (and because I agree), I find that the Government did not prove this violation.
On November 21, 2014, Rupp contacted Lutgen and advised him that he had been in a traffic accident and had been cited for failure to stop within an assured clear distance and failure to provide proof of insurance. Lutgen then confirmed that the incident had occurred on November 17, 2014, and that Rupp had been cited consistent with his report. This constitutes alleged Violation No. 11(a) (law violation). Based on Lutgen's testimony that Rupp admitted the relevant events, I find that the Government proved this violation.
On December 7, 2014, Rupp was involved in an incident that forms the basis of the most hotly-contested allegation, which is alleged Violation 11(b) (law violation). The basic facts are not in great dispute, and are established by Enockson's testimony. At approximately 2:50 a.m., Enockson was on patrol in full uniform and driving a marked police vehicle. He observed a white truck stopped on a city street with its brake lights on and the engine running. He stopped to investigate and observed the driver, who turned out to be Rupp, sleeping or otherwise unresponsive in the driver's seat, slumped slightly over to the right. Enockson also noted that the vehicle was in "Drive, " but was not moving because the brakes were being applied. Enockson called for backup from his cover officer and intended to wait for that officer to arrive. However, the vehicle began to move forward slowly, apparently due to decreased pressure being applied to the brake pedal. At that point, Enockson felt that he had no choice but to awake the driver. He knocked on the driver's window while shining his flashlight through it. He then saw Rupp awaken and look toward him. Rupp yelled "Oh shit!" and accelerated quickly, squealing the truck's tires on dry pavement.
Enockson radioed that Rupp was fleeing and then got into his squad car to give chase. The cover officer's patrol car arrived at this time, heading directly toward Rupp's direction of travel. It appeared to Enockson that the vehicles were about to collide, but Rupp suddenly swerved to the right, driving through a yard and hitting two mailboxes before swerving back onto the roadway. These actions caused items to fall from the back of Rupp's truck. Rupp continued to drive away with both squad cars in pursuit, with lights and sirens activated. Rupp traveled at a speed Enockson estimated to be roughly 40 mile per hour. He made a right turn at one intersection and a left turn at another, but lost control during the left turn and drove into an adjacent field, hitting some trees. As the cover officer approached the truck on foot, Rupp again attempted to drive away, turning and accelerating in a manner that, according to Enockson, almost caused Rupp's truck to hit the cover officer. During this process, Rupp rolled the truck down a hill, causing it to land with its driver's side down.
Rupp was apprehended at this point. When questioned, he first stated that he had no recollection as to how he ended up being asleep in his vehicle on the city street. Later, he stated that he had dropped his girlfriend's friend off in that part of town, but did not remember the address. At the law enforcement center, Rupp was booked and evaluated for possible intoxication, but was not found to be under the influence of alcohol or drugs. When booked, a burnt roach was found in one of his pockets. The remnants did not test positive for marijuana and Rupp was not charged with possession of illegal drugs. He was, however, charged with serious eluding. That charge is pending in the Iowa District Court for Woodbury County. Over $8, 000 in cash was found on Rupp's person and in his truck after the incident.
Rupp presented evidence during the hearing that he suffers from a sleeping disorder - possibly narcolepsy. His witness, Vondrak, testified that he often falls asleep unexpectedly, sometimes while driving, and that he is prone to reacting dramatically if awakened. He also presented a note (Exhibit A) from a physician dated February 4, 2015, which states that Rupp should undergo a sleep study for narcolepsy or another sleep disorder. Rupp argued, through counsel, that he did not attempt to flee during the December 7 incident but, instead, had a sudden and dramatic reaction to being awakened by Enockson. Based on the evidence presented, I reject this explanation. Rupp's verbal reaction to seeing a uniformed police officer ("Oh shit!"), followed by a series of elusive actions (including swerving around one patrol car, making multiple turns and attempting to drive away again after hitting trees), hardly indicates an involuntary, reflexive reaction. I find that Rupp intended to flee and stopped only because he rolled his vehicle during evasive maneuvers. Thus, and although he has not been convicted on the charge of serious eluding, I find the Government has proved by a preponderance of the evidence that Rupp committed the violation described in the Petition as alleged Violation No. 11(b) (law violation).
On January 6, 2015, the Sioux City Police Department investigated a complaint about two people in a Dollar Store parking lot. Upon arrival, they discovered Rupp in a vehicle with Ramirez, despite Lutgen's prior direction that Rupp have no contact with Ramirez. This constitutes alleged Violation No. 13 (failure to follow Probation's instructions). Because Rupp has admitted the alleged conduct, I find that this violation occurred.
On January 21, 2015, Rupp was involved in another traffic incident. A Sioux City Police Officer found him sleeping in his vehicle at a railroad crossing at approximately 2:00 a.m. When awakened, he drove his vehicle off the road and was cited for failure to maintain control. Rupp contacted Lutgen the following day to advise him of the incident. This constitutes alleged Violation No. 11(c) (law violation). Based on Lutgen's testimony that Rupp admitted the relevant events, I find that the Government proved this violation.
To summarize, Rupp admitted alleged Violation Nos. 1, 2, 3, 4, 5, 6, 7, 8 and 13 and I find that the Government proved Violation Nos. 11(a), 11(b) and 11(c) by a preponderance of the evidence. I further find that the ...