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United States v. Fredrick

United States District Court, E.D. Kentucky, Southern Division, London

August 27, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES EDWARD FREDRICK, Defendant.

          RECOMMENDED DISPOSITION

          EDWARD B. ATKINS UNITED STATES MAGISTRATE JUDGE.

         On referral from District Judge Van Tatenhove (D.E. 82), the Court considers reported violations of supervised release conditions by Defendant James Edward Fredrick. This District entered a judgment against Defendant in June 2010[1] for failure to register as a sex offender, in violation of 18 U.S.C. § 2250(a). D.E. 28. Defendant was sentenced to 37 months of imprisonment followed by a life term of supervised release. Id. at 2-3.

         I.

         Defendant began his first supervised release term on March 28, 2012. On November 7, 2012, Defendant's terms of supervised release were modified to require Defendant to serve eight consecutive weekends in jail. D.E. 29. The United States Probation Office (“USPO”) requested this modification due to two instances of “unauthorized contact with minors and his failure to follow the instructions of the probation office (by being present with his girlfriend's children)[.]” Id. at 2.

         In 2013, Defendant's supervised release was revoked for violating the condition that he not consume any alcoholic beverages. D.E. 39, 42, 43. The Court adopted the jointly recommended sentence of four months' imprisonment followed by re-imposition of a life term of supervision. See Id. Defendant's second term of supervised release began on June 13, 2013.

         In July 2013, the USPO charged Defendant with violating his release conditions by using marijuana and thereby also committing the crime of marijuana possession. See D.E. 55. Defendant admitted the violations, and, by Judgment entered in October 2013, he was sentenced to eighteen months of imprisonment, followed by reimposition of lifetime supervised release. D.E. 59. Defendant's third term of supervised release began on November 21, 2014.

         In March 2015, the USPO issued a new violation report which alleged that Defendant had created a Facebook page. This report charged three violations: (1) using a computer with online access, (2) violating a Kentucky law prohibiting sex offender registrants from using social media websites, and (3) violating a Kentucky law prohibiting sex offender registrants from creating an email address. D.E. 67. Defendant stipulated to the violations, and was sentenced to 21 months of imprisonment, followed by 60 months of supervised release. D.E. 71. Defendant's fourth term of supervised release began on October 6, 2016.

         In September 2017, the USPO issued a violation report informing the Court that Defendant had been arrested and charged with child abuse and endangering the welfare of a minor. In October 2018, while the charges were pending, Defendant was released on the additional conditions that he have no contact with his teenage stepchildren and that he submit to a polygraph examination. D.E. 77. In May 2018, the parties filed a joint motion to dismiss the charge in the report (D.E. 80), and that motion was granted (D.E. 81).

         II.

         On July 17, 2018, the USPO issued the Supervised Release Violation Report (“the Report”) that initiated these proceedings. According to the Report,

[Probation Officer Scott Greiwe] contacted Fredrick at his residence on July 6, 2018, for the purpose of obtaining a urine specimen for drug testing. After approximately one hour, Fredrick provided a small amount of urine that was tested via instant testing device and returned positive results for marijuana. Fredrick was advised of the preliminary results, which he denied, and advised that he could not produce the minimum amount of urine to be tested at the laboratory for confirmation. Fredrick later reported to the emergency room at Baptist Health Corbin, which was confirmed by the undersigned. Fredrick later provided discharge paperwork from Baptist Health Corbin which noted diagnoses for urinary tract infection, generalized abdominal pain, diarrhea, and abscesses. He was released from Baptist Health Corbin later on the evening on July 6, 2018.
On July 9, 2018, [Officer Greiwe] contacted Fredrick at his residence and he provided a urine specimen that was sealed and sent to Alere Toxicology Services, Inc. for confirmation of marijuana. Fredrick denied the use of any controlled substances. Alere returned positive results for marijuana metabolite on July 16, 2018. The specimen was also diluted.

         The Report charges two violations. Violation #1 charges a failure to comply with the condition prohibiting the use of any controlled substance, except as prescribed by a physician. Based the positive test result for marijuana metabolite, this is a Grade C violation.

         Relying on the same conduct, Violation #2 charges a violation of the condition requiring that Defendant not commit another federal, state, or local crime. Noting the Sixth Circuit's decision that use of a controlled substance includes possession, the report characterizes Defendant's marijuana use as a violation of 21 U.S.C. § 844(a). Due to Defendant's prior controlled substance conviction, this is a Class E felony, rendering Violation #2 a Grade B violation.

         Magistrate Judge Ingram conducted an initial appearance pursuant to Rule 32.1 on August 6, 2018, and set a final hearing following a knowing, voluntary, and intelligent waiver of the right to a preliminary hearing. D.E. 85. The United States moved for interim detention; Defendant argued for release. Id. The Court found that detention was ...


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