United States District Court, N.D. Iowa, Western Division
ORDER ON REPORT AND RECOMMENDATION and DEFENDANT'S MOTION TO DISMISS
DONALD E. O'BRIEN, Senior District Judge.
Before the Court is a Report and Recommendation ("R&R") issued by United States Magistrate Judge Leonard T. Strand concerning the USA's Petition to Revoke Supervised Release (Docket No. 73). Docket No. 89. Following the hearing on February 12, 2015, Judge Strand issued the Report and Recommendation. On February 23, 2015, Mr. Rupp filed an Objection to the R&R. Docket No. 90.
Also presently before the Court is the Defendant's Motion to Dismiss, Docket No. 86. The Court directed the Government to file a Response to all pending matters, which it did on March 31, 2015. Docket No. 91. In its Response, the Government asks the Court to adopt Magistrate Strand's Report and Recommendation and deny the Motion to Dismiss.
The Court held a hearing on the pending matters on April 2, 2015. On that same date, the Government filed a Supplemental Petition to Revoke, Docket No. 101. In their Supplemental Petition, Docket No. 101, the Government alleges that Mr. Rupp committed various violations when he was arrested on April 1, 2015. After conferring with the parties during the hearing, the Court determined that it would not consider the Supplemental Petition, Docket No. 101, prior to ruling on the above mentioned issues. The Court stated that it would consider the Supplemental Petition, Docket No. 101, during a subsequent hearing on a date to be determined.
After listening to the parties' arguments related to the R&R and the Motion to Dismiss, the Court took the matters under advisement and now enters the following.
I. BACKGROUND AND FINDINGS OF FACT
On September 8, 2004, Rupp was sentenced to 92 months of incarceration and four years of supervised release 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 Docket No. 37. After completing his federal prison term, Rupp began serving his term of supervised release (TSR) on February 25, 2011. Judge Strand discussed Mr. Rupp's TSR history, stating:
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.
Docket No. 89, p. 2-3.
Judge Strand then set out the violations presently before the Court and his factual findings:
[t]he 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 ...