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United States v. Wagley

United States District Court, W.D. Louisiana, Lafayette Division

October 24, 2018

UNITED STATES OF AMERICA
v.
ARTHUR CRAIG WAGLEY

          HANNA, MAGISTRATE JUDGE

          MEMORANDUM RULING

          ELIZABETH ERNY FOOTE, UNITED STATES DISTRICT JUDGE

         On August 31, 2018, this Court revoked the probation of Defendant Arthur Wagley (“Wagley”) for violating multiple conditions of his probation. [Record Document 89]. Wagley now files a motion for a new trial or, in the alternative, a motion for reconsideration. [Record Document 90]. For the reasons given below, the motion is DENIED.

         I. Background

         Wagley was charged in an eleven-count indictment related to his telephone harassment of his estranged wife. [Record Document 1]. The Court originally placed Wagley on unsupervised pretrial release subject to standard conditions, including not using controlled substances. [Record Document 9 at 2]. He tested positive for marijuana at a drug test on October 27, 2014. [Record Document 19 at 1]. After an appearance before Magistrate Judge Hanna, Wagley was placed under supervision, but allowed to remain free on bond. [Record Document 26 at 2].[1] He then completed an outpatient drug treatment program. [Record Document 39 at 1].

         On July 23, 2015, Wagley pleaded guilty to one count of making harassing telephone calls in violation of 47 U.S.C. § 223(a)(1)(C). [Record Documents 35 and 37 at 2-3]. The Court lifted Wagley's travel restrictions, but maintained all other conditions of pretrial release supervision. [Record Document 39 at 1]. On August 20, 2015, Wagley tested positive for marijuana a second time. [Id.]. When confronted on September 10, 2015, he denied using marijuana and submitted a diluted sample for testing. [Id.]. He made an initial appearance on the revocation of his supervised release; at that time Judge Hanna ordered that all previous conditions of supervised release remain in effect. [Record Document 46 at 1].

         At sentencing on December 8, 2015, the Court found that the Sentencing Guidelines suggested a sentence of two to eight months imprisonment, one year of supervised release, and a $5, 000 fine. [Record Document 52 at 4]. Judge Haik sentenced Wagley to five years probation and a $20, 000 fine. [Record Document 54 at 2, 4].[2]

         Less than six months later, the Court issued a summons based on allegations that Wagley had failed to pay two monthly installments on his fine and had tested positive for marijuana for a third time. [Record Document 60 at 1-2]. After the summons on revocation was issued but before his initial appearance, Wagley paid the entire balance of the fine. [Record Document 84 at 14]. Although he admitted to using marijuana, [Record Document 65 at 1], he blamed his continued use on particularly stressful family situations and disrupted sleep caused by the curfew monitoring system, which required him to wake up several times during the night to answer automated calls checking that he was, in fact, at home, [Record Document 67 at 3-8, 15]. At the revocation hearing, Judge Doherty noted that Wagley personally selected that system in lieu of an ankle monitor that would not have disturbed his sleep. [Record Document 84 at 33]. Rather than set a final revocation hearing, Judge Doherty deferred adjudication for six months. [Record Document 65 at 1]. She made it clear that any violations of the conditions of his probation would result in his imprisonment. [Record Document 84 at 66-67]. A final revocation hearing was never held, leading the Court to now conclude that Wagley was compliant for those six months.

         On March 29, 2018, Wagley again tested positive for marijuana for a fourth time. [Record Document 72 at 2]. After he agreed to participate in more outpatient treatment, Judge James concurred with the Probation Office's recommendation of no action. [Record Document 92 at 59]. On April 19, 2018, he tested positive yet again and admitted to his treatment counselor that he had been using marijuana for the past year and using substances to circumvent drug testing. [Record Document 72 at 2]. This timeline establishes that Wagley, by his own admission, resumed marijuana use soon after the end of the six-month period during which the Court had threatened prison for any further violations.[3] After Wagley agreed to enter inpatient treatment, Judge James again approved the Probation Office's recommendation of no adverse action. [Record Document 92 at 60].

         Wagley completed inpatient treatment on June 11, 2018. [Record Document 72 at 2]. He missed a required outpatient group treatment session and, on June 25, 2018, tested positive for marijuana for a third time in as many months, bringing him to a total of six positive drug tests. [Id.]. On July 9, 2018, the Court issued a summons based on these most recent allegations. [Id. at 1]. Wagley was again released pending a final revocation hearing and ordered to abide by all conditions of his probation. [Record Document 81 at 1].

         At the final revocation hearing, the Court heard testimony from Wagley and Dr. David Lejeune (“Lejuene”), a licensed addiction counselor. [Record Documents 87 and 92 at 31].[4]Wagley attempted to excuse his delinquent payments on his fine by explaining that he had initially anticipated receiving a loan to pay the fine, but when the loan was denied, he had to liquidate an asset at a loss in order to pay. [Record Document 92 at 10-14]. Lejeune testified that Wagley had not been engaged in a sufficiently “seamless” treatment program, thereby causing repeated relapses. [Id. at 34-38].

         Wagley admitted to the alleged six violations of the conditions of his probation. [Id. at 5]. Based on this admission, the Court found that Wagley violated these conditions and determined that his highest-grade violation was grade C and that his original criminal history category was III. [Record Documents 86 at 1 and 92 at 7, 56]. For a defendant with that record, the Sentencing Guidelines recommend five to eleven months imprisonment. [Record Documents 86 at 1 and 92 at 63]. The Guidelines also authorize up to a year of supervised release. U.S.S.G. §§ 5D1.1(b), 5D1.2(a)(3), 7B1.3(g)(1). The Court sentenced Wagley to six months imprisonment and one year of supervised release. [Record Document 89 at 3-4]. Although the Court typically does not order supervised released when revoking probation, the Court found in this case that the term of supervised release was necessary so as to more closely approximate the original five-year term of supervision to which Wagley was sentenced. [Record Document 92 at 64]. Otherwise, he would effectively be rewarded for his illegal conduct with a shorter term of supervision. [Id.].

         II. Motion for a New Trial

         Federal Rule of Criminal Procedure 33 provides that, “[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Although a district court has the discretion to grant a new trial, Rule 33 motions are disfavored and only granted with great caution. United States v. O'Keefe, 128 F.3d 885, 898 (5th Cir. 1997) (citing United States v. Hamilton, 559 F.2d 1370, 1373 (5th Cir. 1977)). In addition, the grounds for a new trial are limited to those that the defendant raises. United States v. Nguyen, 507 F.3d 836, 839 (5th Cir. 2007). “The remedy of a new trial . . . is warranted only where there would be a miscarriage of justice . . . .” O'Keefe, 128 F.3d at 898 (internal quotation marks omitted) (quoting United States v. Andrade, 94 F.3d 9, 14 (1st Cir. 1996)).

         In support of his motion, Wagley argues that his attorney lacked adequate time to prepare for the hearing and that the Court misconstrued Lejeune's testimony. [Record Document 90-3 at 5-6]. Wagley's counsel represents that he was unable to adequately prepare due to commitments to other clients and to his role as an elected school board member. [Id. at 6-7]. Counsel first raised these concerns on August 14, 2018, two weeks before the scheduled hearing, and did so informally in an aside to an email to the Court. Although the Court's law clerk replied that the Court “is currently disinclined to continue the hearing, ” this response in no way implies, as counsel suggests, that a motion to continue would have been “frivolous.” [Id. at 6]. The Court's observation merely implied that the motion would require significant justification to warrant resetting a hearing which was to take place in two weeks and for which the Court was traveling. Counsel now lists a number of items that he represents were already calendared prior to his being notified on July 13, 2018 of the date and time of the revocation hearing. [Id.]. What the instant motion fails to explain is why, if counsel knew of these commitments at the time the Court set the revocation hearing, counsel then waited a month to even raise these scheduling issues.

         It was only after the Court noted its preliminary position that counsel “decided to devote his attention to attempting to prepare for said hearing” and “[u]pon doing so, . . . determined that more information, interaction with treatment team members, and preparation would be necessary.” [Id.]. Taking these words at face value, they suggest that Wagley and his attorney did not begin to prepare for the hearing until slightly more than two weeks before. Lejeune's testimony corroborates this reading. Lejeune testified that he first met with Wagley on August 26, 2018-five days before the hearing. [Record Document 92 at 42]. Wagley has never explained why he waited until the eve of his revocation hearing to begin developing a new treatment plan. The threat of revocation for marijuana use is not a new one for Wagley or for this attorney, who appeared on Wagley's behalf in the prior revocation proceeding before Judge Doherty. [Record Document 84 at 4]. Given these facts, it is unclear why counsel failed to realize in a more timely fashion that a defense to revocation on the basis of drug use might require testimony from treatment team members and a fully elaborated alternative to incarceration.

         Counsel suggests that he needed additional time to “present a comprehensive treatment plan, including inpatient rehab, follow up, accountability, monitoring, and alternatives to incarceration, through the use of counselors and expert witnesses.” [Record Document 90-3 at 7]. Having had two additional weeks in which to prepare the instant motion, Wagley has produced only a single piece of additional evidence: a one-page report by Tootie Landry (“Landry”), the treatment counselor assigned by the Probation Office. [Record Document 90-1]. This minuscule additional production suggests that delaying the hearing would not have substantially altered the evidence presented. As this evidence relates to the treatment ordered by the Probation Office, it also fails to establish or even suggest the sort of “seamless” plan involving an enlarged treatment team that counsel now asserts he lacked time to prepare before the hearing.

         At the hearing, Wagley and Lejeune both testified that despite following the treatment plans laid out by the Probation Office, Wagley had relapsed. [Record Document 92 at 15, 34-38]. Wagley expressed his opinion that he relapsed because

there was a lack of continuum in the care in that I didn't have additional aftercare support, and when I went to the court-mandated outpatient, it was one hour a week as opposed to anything more intensive that involved me to be involved more often ..... I relied on them to tell me what I should do, and actually the one hour a week was court mandated through Mr. Melancon's office.

[Id. at 15]. The Court noted that this testimony at the very least implied that Wagley believed that the Probation Office was at fault for not requiring additional treatment, despite the fact that it was in Wagley's power at any time to ask his probation officer for assistance in locating additional treatment or to seek additional treatment on his own. [Id. at 62]. Although Wagley maintains that he has “accepted responsibility for his conduct and has never blamed his probation officer, ” [Record Document 90-3 at 5], the Court cannot draw this conclusion from the evidence and testimony presented at the hearing. The Probation Office required Wagley to engage in a minimum amount of substance abuse treatment. No. evidence suggests that the Probation Office ever forbade Wagley from seeking additional treatment nor does any evidence suggest that he ever even expressed to the Probation Office any desire for additional treatment.

         Simply put, once Wagley relapsed he could have sought out a therapist like Lejeune who then could have worked with the Probation Office to design the “seamless” recovery plan that Wagley asserts that he needs.[5] Wagley did not do this. Rather, he used marijuana for over a year while on probation, used substances to conceal the marijuana use, and continued to test positive after engaging in treatment programs that he himself selected. The Court reaffirms its finding that Wagley only seeks treatment when he either has been or is about to be caught. [Record Document 92 at 61]. His motion for a new trial is denied.

         III. Motion for Reconsideration

         On the basis of persuasive authority from other circuits, Wagley argues that the Court has authority to reconsider its judgment and that the standards from Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure should be employed. [Record Document 90-3 at 2-4]. The Fifth Circuit has not addressed this question, and the district courts within the circuit are divided. Compare United States v. CITGO Petroleum Corp., 908 F.Supp.2d 812, 820 (S.D. Tex. 2012) (holding that district courts can adopt civil standards for reconsideration in criminal cases) with United States v. Griffin, No. CR. A. 93-491, 2001 WL 540997, at *3 (E.D. La. May 21, 2001) (rejecting application of Rule 60(b) in the criminal context). The Court ...


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