IN THE UNITED STATES MAGISTRATE COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, )

)

v. )

) Criminal No. 91-274 (RCL)

xxxxxxxxxxxx )

Defendant. )

____________________________________)

MOTION TO MODIFY SUPERVISED RELEASE CONDITIONS

Defendant xxxxxxx, through counsel and pursuant to Rule 32.1 of the Federal Rules of Criminal Procedure ("Rule 32.1"), 18 U.S.C. § 3583 (e)(3) and U.S.S.G. § 5F1.2 (e)(2) and the additional authorities cited below, moves the Court to modify the special conditions of his supervised release because home detention, in this case is unauthorized, and he has fulfilled his obligation to the Baltimore authorities by testifying in the murder trial of Ronald Darden. In support of this motion, Mr. xxxxxxx states:

1. On August the 3, 1998, Mr. xxxxxxx appeared before this Court on a violation of supervised release. At the time of Mr xxxxxxx' hearing on violation his policy statement guidelines were 3-9 months incarceration based upon a criminal history I and a grade C violation. Mr. xxxxxxx admitted most of the alleged violations and was found to be in violation of his supervised release.

2. The government advised the Court that Mr. xxxxxxx was cooperating in a murder investigation in the City of Baltimore and in consideration of his cooperation in Baltimore requested the Court to sentence Mr. xxxxxxx to a period of Supervised Release with the special condition that he be placed in a halfway house for thirteen months.

3. At the August 3, 1998 hearing the government, without objection from Mr. xxxxxxx, proffered that he was one of two victims of a shooting in Baltimore, wherein the other victim was killed. The government informed the court that Mr. xxxxxxx had been debriefed by the Baltimore City authorities twice. Further, the government, with Mr. xxxxxxx' consent and agreement requested that the Court sentence him to thirteen months in a halfway house in lieu of incarceration in order to facilitate his ongoing cooperation in the murder investigation in Baltimore.

4. Mr. xxxxxxx was found to be in violation of his supervised release was revoked and he was sentenced to a new three year term of supervised release with a special condition that he reside in a half way house for 13 months with credit for the time served prior to the hearing.⁽¹⁾

5. On February 17, 1999, Mr. xxxxxxx appeared before the Court because the probation office was not able to effectuate the special condition of thirteen months in a half way house despite numerous attempts because Baltimore would not accept Mr. xxxxxxx. Further the Court was advised that Mr. xxxxxxx was in full compliance with all his conditions of supervised release.

6. The Court ordered home detention to be substituted for community confinement with credit dating back to August 3, 1998.

7. On March 9, 1999, Mr. xxxxxxx testified for the State in the murder trial of Ronald Darden.

ARGUMENT

18 U.S.C. § 3583 (e)(4) provides that home detention should only be required as a substitution to incarceration. (also see. U.S.S.G. § 5F1.2 (e)(2)).

U.S.S.G. § 5F1.1 authorizes community confinement to be imposed as a special condition of supervised release, however, home detention can only be a substitute for imprisonment. In the instant case Mr. xxxxxxx was initially, sentenced three years supervised release with the special condition of thirteen months community confinement. This sentence is authorized by the guidelines. The probation office was not able to place Mr. xxxxxxx in a community confinement center and therefore, the court modified Mr. xxxxxxx' sentence to require home detention. It does not appear that this is an authorized sentence because home detention was substituted for community confinement and not imprisonment and while community confinement may be a special condition of supervised release home detention cannot.

Mr. xxxxxxx also requests modification of the order of home detention because the purpose for this condition has been fulfilled. 18 U.S.C. § 3583 (e)(3) provides -- in pertinent part -- that the Court "may... modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release. The request that Mr. xxxxxxx be placed in a half way house, and when that proved impossible home detention, was to insure Mr. xxxxxxx' continued cooperation with the Baltimore authorities. Additionally, the government wanted insure that Mr. xxxxxxx would be easily, physically, accessible to the Baltimore authorities. It was contemplated that the prosecution in Baltimore may not occur for another year and, as such, the thirteen-month time period was requested. Mr. xxxxxxx has since fulfilled his obligations to the State of Maryland. He has met with the Baltimore State's attorney when requested and was called to testify and did testify at the trial.⁽²⁾ Additionally, Mr. xxxxxxx' family has been threatened as a result of his cooperation in this case.

It is unnecessary to order Mr. xxxxxxx to home detention because it is not necessary to deter criminal conduct, protect the public, or provide him with any training care or treatment. U.S.S.G. § 5D1.3 specifically, provides that "[t]he court may impose other conditions of supervised release to the extent that such conditions involve no greater deprivation of liberty that is reasonably necessary for the purposes" identified in the guidelines⁽³⁾. In light of Mr. xxxxxxx' personal risk, the fact that he has fulfilled the purpose of the special condition and is no longer needed by the Baltimore State's attorney office, and his continued compliance with the remaining terms of his Supervised Release, he requests the Court to modify his conditions of supervised release deleting the requirement of home detention for the remaining approximately six ½ months.

Rule 32.1 provides -- in pertinent part -- that: a hearing is required before the terms or conditions of supervised release can be modified unless the relief request is favorable to the person and the attorney for the government has not objected. Rule 32.1, Fed. R. Crim. P.

Counsel has not had an opportunity to speak with the government, however if the government does not oppose this modification, Mr. xxxxxxx is not specifically, requesting a hearing.

CONCLUSION

For the reasons stated above, and for any other reasons that the Court may deem just and proper, the defendant James xxxxxxx respectfully requests the court to modify his conditions of release to not require that he be placed on home detention.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

_______________________________

Maria Jankowski

Assistant Federal Public Defender 625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF SERVICE

I hereby certify that on this ___day of March 1999, a copy of the foregoing Defendant's Sentencing Memorandum was served upon (1) United States Probation Officer Fatoumata Thiam, Second Floor, United States Courthouse, 333 Constitution Avenue, N.W., Washington, D.C., and (2) Assistant United States Barry Wiegand, 555 Fourth Street, N.W. Washington, D.C. 20001, by hand delivering a copy to a receptacle at the U.S. District Courthouse, 3rd and Constitution Avenue, N.W., Washington, D.C. provided for serving pleadings upon the Office of the U.S. Attorney.

Maria Jankowski

Assistant Federal Public Defender

1. Mr. xxxxxxx had been held without bond from June 12, 1998 until his hearing on August 3, 1998.

2. Additionally, Mr. xxxxxxx met with the defense attorney at the State's attorney request as part of either the discovery process or in a effort to induce a plea.

3. To deter criminal conduct, protect the public, and the need to provide educational or vocational training, medical care or other treatment. U.S.S.G. § 5D1.3 (b)(1).