United States District Court, E.D. Kentucky, Northern Division, Covington
Candace J. Smith United States Magistrate Judge
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.
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). 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.
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).
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.
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.
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)
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)
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 ...