United States District Court, E.D. Kentucky, Southern Division, London
B. ATKINS UNITED STATES MAGISTRATE JUDGE.
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
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.
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.
2013, Defendant's supervised release was revoked for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.
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.
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.
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).
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.
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.
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
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 ...