United States v. Chavez

1

UNITED STATES OF AMERICA, Plaintiff, v. PETE PASQUAL CHAVEZ, Defendant.

No. CR 15-3557 JB

United States District Court, D. New Mexico

September 1, 2023

Alexander M. M. Uballez United States Attorney Jack Burkhead Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

Michael R. Jones Clark, Jones & Ruyle, LLC Santa Fe, New Mexico Attorney for the Defendant

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Petition for Revocation of Supervised Release, filed December 20, 2022 (Doc 50)(“Petition”). In the Petition, the United States Probation Office (“USPO”) alleges that Defendant Pete Pasqual Chavez has violated two of his mandatory supervised release conditions: (i) that he not commit another federal, state, or local crime; and (ii) that he not unlawfully possess a controlled substance. See Petition at 1-2. The Court held a hearing on March 14, 2023. See Violation of Supervision Proceedings Minute Sheet at 1, filed March 14, 2023 (Doc 67)(“Clerk's Minutes”). At the hearing, Chavez denied that he violated the two mandatory supervised release conditions. See Clerk's Minutes at 1. The primary issue is whether Plaintiff United States of America has met its burden to prove by a preponderance of the evidence that Chavez violated each of the mandatory supervised release conditions. The Court concludes that Chavez violated both supervised release conditions. Accordingly, Chavez' revocation range of imprisonment is 24 months.

FINDINGS OF FACT

Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d) (“When factual issues are involved in deciding a motion, the court must state its essential findings on the record.”). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for rule 12(d)'s purposes. The Court makes these findings by a preponderance of the evidence. See 18 U.S.C. § 3583(e)(3). Rule 32.1(b)(2)(C) of the Federal Rules of Criminal Procedure afford defendants “an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear.” Fed. R. Crim. P. 32.1(b)(2)(C). The Federal Rules of Evidence do not apply to revocation proceedings. See United States v. Henry, 852 F.3d 1204, 1206 (10th Cir. 2017). Instead, in making these findings, the Court does not consider any evidence or testimony from the hearing that violates the balancing test that the United States Court of Appeals for the Tenth Circuit adopted in United States v. Jones, 818 F.3d 1091, 1098 (10th Cir. 2016). “When applying the balancing test, the Court must weigh the defendant's interest in cross-examining and confronting [a] witness with the government's good cause for not presenting the witness.” United States v. Hernandez, 428 F.Supp.3d 775, 788 (D.N.M. 2019)(Browning, J.)(citing United States v. Jones, 818 F.3d at 1098).

1. Chavez' Supervised Release.

1. On March 23, 2016, the Court sentenced Chavez to 84 months of imprisonment, followed by a supervised release term of 2 years, after Chavez pled guilty to a violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) for being a felon in possession of a firearm and ammunition. See Sentencing Minute Sheet at 1, filed March 23, 2016 (Doc. 33); Plea Agreement ¶ 3, at 2, filed December 23, 2015 (Doc. 26).

2. Chavez began his supervised release term on December 30, 2021. See Violation Report, filed December 20, 2022 (Doc. 51).

3. One of Chavez' mandatory supervised release conditions was that he not commit another federal, State, or local crime. See Draft Transcript of Hearing at 80:24-81:2 (taken March 14, 2023)(“Tr.”)(Burkhead, Villalobos).^[1]

4. Another of Chavez' mandatory supervised release conditions was that he not unlawfully possess a controlled substance. See Tr. at 81:3-5 (Burkhead, Villalobos).

5. Chavez' conditions also included that he submit to drug testing. See Tr. at 83:1418 (Gallegos, Villalobos).

6. Until this incident in December, 2022, Chavez had been in compliance with his conditions of supervised release. See Tr. at 83:11-13 (Gallegos, Villalobos).

7. The United States Probation Officer (“USPO”) assigned to Chavez, Karina Villalobos, conducted approximately seven home visits with Chavez, during which she did not observe anything concerning. See Tr. at 83:21-84:12 (Gallegos, Villalobos); id. at 87:22-25 (Burkhead, Villalobos).

8. In March, 2022, Chavez moved into a residence at 210 Arizona Street, in Belen, New Mexico. See Tr. at 88:3-7 (Burkhead, Villalobos).

9. Belen is in Valencia County. See Municipalities, Valencia County, NM, https://www.co.valencia.nm.us/260/Municipalities (last visited August 1, 2023).

10. Villalobos' most recent home visit with Chavez was on October 25, 2022. See Tr. at 86:9-16 (Gallegos, Villalobos).

2. The Investigation into 210 Arizona Street.

11. Beginning in the summer of 2022, law enforcement officers from the Belen Police Department and the Valencia County Sheriff's Office became aware of Chavez through numerous community complaints associated with his address, 210 Arizona Street. See Tr. at 34:10-36:25 (Burkhead, Robinson).

12. The complaints include that 210 Arizona Street “was a problem house or a nuisance house,” and that “there was traffic in and out of this house all hours of the night, and unwanted visitors from the public.” Tr. at 34:13-16 (Robinson).

13. Officers from the Belen Police Department, in collaboration with the Valencia County Sheriff's Community Response Impact Team, opened a narcotics investigation on 210 Arizona Street. See Tr. at 35:15-23 (Robinson).

14. Officer Christopher Robinson, a police officer with the Belen Police Department, was the lead officer on the case. See Tr. at 11:4-7 (Burkhead, Fillmore); id. at 37:21-23 (Burkhead, Robinson).

15. Part of the investigation included making controlled buys from 210 Arizona Street. See Tr. at 54:10-14 (Gallegos, Robinson).

16. Chavez never conducted any of the controlled buys. See Tr. at 54:15-17 (Gallegos, Robinson).

17. On December 14, 2022, the officers obtained a State search warrant for 210 Arizona Street. See Tr. at 37:1-9 (Burkhead, Robinson).

18. The search warrant authorized the officers to search for narcotics equipment or paraphernalia, for substances used to make or manufacture narcotics, for money, and for identifying documents. See Tr. at 37:12-15 (Robinson).

3. The High-Speed Pursuit.

19. On December 16, 2022, at approximately 6:30 a.m., Robinson and Officer Andrew Fillmore, a police officer with the Belen Police Department, were involved in executing a search warrant at 210 Arizona Street. See Tr. at 6:24-8:14 (Burkhead, Fillmore); Id. at 9:1-3 (Burkhead, Fillmore); id. at 16:24-25 (Fillmore).

20. Sheriff's deputies from the Valencia County Sheriff's Department also were involved in executing the search warrant. See Tr. at 9:25-10:1 (Fillmore).

21. Robinson and Fillmore's roles were to provide perimeter support for the search warrant team. See Tr. at 9:18-21 (Burkhead, Fillmore); id. at 38:25-39:3 (Robinson).

22. Fillmore was in a marked police vehicle and in his duty uniform. See Tr. at 10:24 (Fillmore).

23. As the officers approached 210 Arizona Street, a black truck passed the officer, turning off Arizona Street and onto Wisconsin Street. See Tr. at 9:25-10:13 (Burkhead, Fillmore).

24. Chavez was driving the black truck. See Tr. at 11:24-12:3 (Burkhead, Fillmore); id. at 39:21-34 (Burkhead, Robinson).

25. Robinson advised Fillmore that the black truck might have been their target and directed Fillmore to locate the truck. See Tr. at 10:4-7 (Fillmore); id. at 10:21-11:3 (Burkhead, Fillmore); id. at 40:18-24 (Robinson).

26. Fillmore turned around to begin following the black truck, but lost visibility of the truck. See Tr. at 11:18-20 (Fillmore).

27. Fillmore began to attempt to locate the black truck. See Tr. at 12:6-7 (Fillmore).

28. The other officers continued the search warrant's execution by clearing the house at 210 Arizona Street, conducting a protective sweep, and conducting a secondary sweep of the house. See Tr. at 41:9-12 (Robinson).

29. Once the residence was secure and the officers had formed a perimeter around the house, Robinson asked Chief James Harris for permission to join in the pursuit of the black truck. See Tr. at 41:12-19 (Robinson).

30. Harris gave Robinson permission to pursue and instructed that Robinson would become the secondary officer and take over communications. See Tr. at 41:19-23 (Robinson).

31. As Fillmore traveled southbound on East Frontage Road in Belen's north end, the black truck passed him going the other direction. See Tr. at 12:7-11 (Fillmore).

32. Upon seeing the black truck, Fillmore turned around and ran the truck's license plate. See Tr. at 12:12-15 (Buckhead, Fillmore).

33. The black truck's license plate was registered to Chavez and to 210 Arizona Street, which indicated to Fillmore that the truck belonged to Chavez, whom the officers were seeking. See Tr. at 12:14-18 (Fillmore).

34. Upon identifying the black truck, Fillmore advised Harris that Fillmore was conducting a traffic stop of the truck. See Tr. at 12:25-13:3 (Fillmore).

35. Up to this point, Fillmore had not observed Chavez engage in any traffic violations. See Tr. at 27:19-21 (Fillmore).

36. When Fillmore initiated the stop at approximately 6:57 a.m., “the vehicle didn't stop right away.” Tr. at 13:3 (Fillmore). See id. at 17:10-11 (Fillmore).

37. The black truck stopped eventually near Highway 314 and Tijeras Road in Belen. See Tr. at 13:25-14:10 ...