U.S. v. Meyer
| Decision Date | 07 July 2006 |
| Docket Number | No. 04-CR-0010-LRR.,04-CR-0010-LRR. |
| Citation | 485 F.Supp.2d 1001 |
| Parties | UNITED STATES of America, Plaintiff, v. Mark Lou MEYER, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Patrick J. Reinert, U.S. Attorney's Office, Northern District of Iowa, Cedar Rapids, IA, for Plaintiff.
TABLE OF CONTENTS
I. INTRODUCTION .................................................1003
II. PROCEDURAL BACKGROUND ........................................1003
III. FACTUAL FINDINGS .............................................1004
A. Urine Samples .............................................1005
B. Sweat Patch Specimen Program ..............................1005
1. Protocol for application and removal ...................1005
2. Defendant's sweat patch results ........................1006
3. Expert testimony .......................................1007
C. Interstate Travel .........................................1009
IV. LEGAL ANALYSIS ...............................................1009
A. Standard of Review for Probation Revocation ...............1009
B. Violations ................................................1009
1. Interstate travel ......................................1009
2. Sweat patches ..........................................1010
C. Disposition ...............................................1012
1. Revocation of probation ................................1012
2. A new sentence .........................................1013
V. CONCLUSION ...................................................1014
The matter before the court is the government's Petition for Revocation of Probation ("Petition") (docket no. 51).
On January 22, 2004, Defendant Mark Lou Meyer was charged in a one-count indictment with being an unlawful user of a controlled substance in possession of firearms, in violation of 18 U.S.C. § 922(g)(3). On February 17, 2004, Defendant was placed on pretrial supervision (see docket no. 5). Defendant failed to report for drug testing on March 1, 2 and 3, 2004, and on April 4, 5, 11, 12 and 13, 2004.
On March 6, 2004, Defendant tested positive for cocaine use via urinalysis. The court referred Defendant for treatment at the Sedlacek Treatment Center and the Abbe Center for Behavioral Services ("Abbe Center"). On April 12, 2004, Defendant's United States Probation Officer ("Probation Officer") directed Defendant to assent to a drug test. Defendant failed to report and gave the excuse that he was with a horse that was giving birth. On April 13, 2004, Defendant's Probation Officer directed Defendant to appear that evening to give a urine sample. Defendant failed to appear on April 13, 2004, but he did appear on April 14, 2004. His urine tested positive for cocaine.
On April 19, 2004, Defendant appeared before United States Magistrate Judge John A. Jarvey and pled guilty to count one of the indictment. On May 5, 2004, the undersigned accepted Defendant's guilty plea. Defendant remained on supervision pending sentencing.
Defendant failed to report to his Probation Officer four different times between April and June of 2004. On May 13, 14, 15, 17, 18 and 19, 2004, and June 2, 2004 Defendant failed to appear for drug testing.
On May 26, 2004, the government filed a Petition for Revocation of Pretrial Release. On June 3, 2004, Defendant's pretrial release was revoked. Prior to the June 3, 2004 hearing on the government's petition to revoke Defendant's pretrial release status, Defendant's urine again tested positive for cocaine.
During his pre-sentence interview, Defendant lied to the Probation Officer. Defendant stated that he had not used controlled substances since his arrest on February 17, 2004. On September 1, 2004, the undersigned sentenced Defendant to three years probation. Defendant was prohibited from possessing and using illegal controlled substances while on probation. (docket no. 46). The first Standard Condition of Defendant's probation provides that "the defendant shall not leave the judicial district without the permission of the court or probation officer." (Id.). The second Special Condition of Defendant's probation provides that "[t]he defendant shall participate in a program of testing and treatment for substance abuse, as directed by the probation officer, until such time as the defendant is released from the program by the probation officer." (Id.).
On May 24, 2006, the undersigned signed a Petition for Warrant or Summons for Offender Under Supervision ("Petition for Warrant") (docket no. 48) presented by the United States Probation Office ("USPO"). The Petition for Warrant alleges that Defendant violated the terms of his probation in seven respects. The USPO alleges Defendant violated Special Condition 2 of his probation conditions by testing positive for cocaine six times in a one year span. It also alleges Defendant violated Standard Condition 1 of his probation conditions by traveling outside the Northern District of Iowa without the permission of his Probation Officer.
On June 7, 2006, the undersigned signed a Supplemental Petition for Warrant or Summons for Offender. Under Supervision ("Supplemental Petition for Warrant") (docket no. 59) presented by the USPO. The Supplemental Petition for Warrant alleges that Defendant again violated Special Condition 2 of his probation conditions by testing positive for cocaine. On June 15, 2006, the undersigned signed another Supplemental Petition for Warrant or Summons for Offender Under Supervision ("Second Supplemental Petition for Warrant") (docket no. 67). In the Second Supplemental Petition for Warrant, the USPO alleges that Defendant violated Special Condition 2 of his probation conditions by testing positive for cocaine yet again.
Defendant denies violating these conditions of probation, and, therefore, evidentiary hearings were held on June 6, 2006, June 7, 2006, and July 5, 2006. Assistant United States Attorney Patrick Reinert represented the government. Defendant was personally present at each hearing. Attorney Cory Goldensoph represented Defendant at the first two hearings. Attorney Michael Mailman represented Defendant at the July 5, 2006 hearing. At the request of Defendant, the court left the record open between June 7, 2006, and July 5, 2006, so that Defendant could locate an expert and present expert testimony.
On September 1, 2004, Defendant began his sentence of probation. That, same day, the USPO referred him to substance abuse treatment programming at the Area Substance Abuse Council ("ASAC") in Cedar Rapids. After attending approximately four outpatient groups, Defendant quit going to treatment because he wanted to go to truck driving school.
Also in September of 2004, the USPO referred Defendant to the Abbe Center for a mental health evaluation. The treating professional opined that Defendant was doing better than he had been on pretrial release and was making adjustments in his behavior.
While on probation, Defendant participated in two different drug testing programs: urinalysis and the sweat patch specimen program.
During the period from March 6, 2006, to May 16, 2006, Defendant submitted a number of urine samples, both at the USPO and the Gary Hinzman Center. All of these samples tested negative for controlled substances, including cocaine. The urine samples were submitted on March 2, 20 and 30, 2006; April 6, 17 and 24, 2006; May 3, 6, 11, 16, 22, 26, 27, 29 and 30, 2006; and June 1, 3, 4 and 5, 2006. Defendant testified that, on April 13, 2006, he submitted an additional urine sample as part of his employment. He testified that the sample tested negative for cocaine. Defendant submitted two urine samples on June 7, 2006. The first sample from June 7, 2006 was negative for controlled substances and the second urine sample that day tested borderline for dilution. The government does not dispute that each of Defendant's urine samples tested negative for cocaine.
Defendant began participation in the sweat patch specimen program in November of 2005. The USPO uses PharmChek sweat patches which are manufactured by PharmChem, Inc. ("PharmChem"). The sweat patches are composed of an absorbent pad and an outer membrane. In some cases, a "window frame" is placed over the outer membrane to ensure that the pad and membrane remain in place. The skin is cleansed with alcohol, the patch is applied to the wearer's arm and, over the following week, the absorbent pad collects the wearer's sweat. The pad is removed after a week or more and sent to a laboratory for testing.
At the June 6, 2006 evidentiary hearing, Supervising United States Probation Officer and drug specialist John Zielke ("Officer Zielke") testified that he received specialized training, for which he received a certificate, on methods to apply and remove PharmChem's sweat patches. (Gov't Ex. 1). Officer Zielke also testified that he trained the USPO staff in the Northern and Southern Districts of Iowa to do the same. Officer Zielke testified that the USPO staff were required to take an examination on the application and removal procedures. United States Probation Officer Michael Mims ("Officer Mims") participated in that training. In 2002, United States Probation Officer Jim Paul ("Officer Paul") received similar training in Omaha, Nebraska. Officers Zielke, Mims and Paul were the only officers who applied patches to and removed patches from Defendant.1
Officer Zielke also described the protocol that the USPO uses for the sweat patch specimen program. Before a sweat patch is applied to the donor's skin, the collecting officer completes a specimen log (an in-house record keeping mechanism). The collecting officer then applies the sweat patch, wearing gloves...
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