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United States v. Weiner

United States District Court, E.D. Kentucky, Northern Division, Covington

April 23, 2018

UNITED STATES OF AMERICA PLAINTIFF
v.
HOWARD WEINER DEFENDANT

          ORDER

          Candace J. Smith United States Magistrate Judge

         On April 12, 2018, this matter came before the Court for a Final Revocation Hearing on the United States Probation Office's Report that Defendant Howard Weiner had violated conditions of his supervised release. Defendant was present in Court and represented by court-appointed counsel F. Dennis Alerding, and the Government was represented by Assistant United States Attorney Laura K. Voorhees. Probation Officer Leanne Vonderhaar was also present for this proceeding.

         Upon call of this matter at the April 12 Final Revocation Hearing, counsel informed the Court that the parties had reached an agreement on the pending violations. Specifically, Defendant agreed to admit to all charges as alleged in the December 29, 2015 Violation Report (R. 34), as well as the Second Addendum to Supervised Release Violation Report (R. 38).[1] In exchange, the United States agreed to recommend a term of incarceration of 12 months with no new term of supervision to follow. Upon consideration, the parties' agreement is an appropriate proposed disposition of this matter. Therefore, it will be recommended that Defendant's supervised release be revoked and that he be sentenced to a 12-month term of imprisonment with no supervision to follow.

         I. PROCEDURAL BACKGROUND

         On February 11, 2011, Defendant appeared in U.S. District Court in Covington, Kentucky, before the Honorable David L. Bunning, U.S. District Judge, and pled guilty to Bank Fraud in violation of 18 U.S.C. § 1344, a Class B felony. (R. 6; R. 9). On May 20, 2011, Judge Bunning entered Judgment, sentencing Defendant to a total term of imprisonment of 4 months with a 5-year term of supervised release to follow. (R. 22). Defendant was also ordered to pay $116, 435.04 in restitution. (Id.). On November 4, 2011, Defendant was released from prison to begin his term of supervision through the United States Probation Office in the Middle District of Florida. (R. 34).

         On January 11, 2016, U.S. Probation Officer Jerry Heringer petitioned for Defendant to appear before the Court and address alleged violations of his supervision. (R. 29). An arrest warrant was issued. (Id.). Defendant was arrested over two years later on April 3, 2018, in the Dominican Republic. (R. 31). Defendant initially appeared before this Court in Covington, Kentucky, on April 6, 2018. (R. 32). The charged violations were presented to the Court via the December 29, 2015 Violation Report of the U.S. Probation Office for the Middle District of Florida. (R. 34). The violation charges were reviewed with Mr. Weiner, the potential penalties were explained based upon the April 6, 2018 Addendum prepared by the U.S. Probation Office for the Eastern District of Kentucky (R. 35), and a final revocation hearing was scheduled. (R. 32). Defendant was then remanded into federal custody. (Id.). The U.S. Probation Office subsequently submitted a Second Addendum (R. 38), reporting a further violation of Defendant's conditions of supervised release and updated penalty information given that the newly-added charge is a Grade A violation.

         Upon call of the case for the Final Revocation Hearing, the Court first reviewed the Second Addendum (R. 38) with Defendant and confirmed that he had an opportunity to review this new charge and change in potential penalties with his counsel. As noted above, counsel proceeded to inform the Court that the parties had reached an agreement: Defendant was prepared to admit to Violations 1 through 5 as set forth in the U.S. Probation Office's Violation Report and Second Addendum (R. 34; R. 38), and in exchange the Government agreed to recommend a sentence of 12 months of imprisonment with no term of supervised release to follow.

         Upon the parties' announcement that they reached an agreement, the undersigned explained to Defendant that while a recommendation of an appropriate sanction will be made to the presiding District Judge, it is ultimately Judge Bunning's decision as to the final sentence to be imposed. Defendant acknowledged his understanding and stated it was his desire to admit to the alleged violations as agreed by the parties. Specifically, Defendant admitted under oath to the following violations of supervised release and the factual circumstances set forth below:

Violation No. 1: The defendant shall not commit another federal, state or local crime. (Grade C Violation)


         Violation No. 1 of the Violation Report (R. 34) alleges that on November 30, 2015, Defendant failed to appear before the Circuit Court of Broward County, Florida, for a mandatory appearance in No. 12-4693CF10A. Defendant acknowledged that the United States could prove by a preponderance of the evidence that he failed to appear as required in the Florida Circuit Court, prompting a no-show trial capias to issue, and that such failure to appear is conduct constituting a state crime in violation of the conditions of his supervision.

Violation No. 2: The defendant shall report to the probation officer. (Grade C Violation)


         Violation No. 2 of the Violation Report (R. 34) alleges that on December 18, 2015, Defendant failed to report to the U.S. Probation Office as instructed by his probation officer through a hand-delivered letter to his residence on December 7, 2015. Defendant acknowledged that the United States could prove by a preponderance of the evidence that he failed ...


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