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SUMMARY REPORT OF U.S. MAGISTRATE JUDGE AS

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF AMERICA,

Plaintiff,

v.

MY BAN DINH,

Defendant.

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CASE NO. CR05-380-RSL

SUMMARY REPORT OF U.S.

MAGISTRATE JUDGE AS TO 

ALLEGED VIOLATIONS

OF SUPERVISED RELEASE

An evidentiary hearing on supervised release revocation in this case was scheduled before

me on August 23, 2010. The United States was represented by AUSA Marci L. Ellsworth and

the defendant by Ralph Hurvitz. The proceedings were digitally recorded.

Defendant had been sentenced on or about September 15, 2006 by the Honorable Robert

S. Lasnik on charges of Possession of Marijuana with Intent to Distribute, and sentenced to 12

months and 1 day custody, 3 years supervised release. (Dkt. 79.)

The conditions of supervised release included the standard conditions plus the

requirements that defendant submit to search and, if deported, not reenter the United States

without permission. On August 12, 2008, the conditions of supervised release were modified

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SUMMARY REPORT OF U.S. MAGISTRATE JUDGE AS

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to require defendant to participate in drug testing and treatment, abstain from alcohol, provide

his probation officer with access to financial information as requested, and be prohibited from

gambling. (Dkt. 84.)

On November 3, 2008, defendant’s probation officer reported that defendant had admitted

consuming alcohol and cocaine on several occasions. He was placed in a structured and more

frequent testing program, reprimanded, referred for professional assessment and for intensive

outpatient treatment. No further action was taken at the time. (Dkt. 85.)

In an application dated August 4, 2010 (Dkt. 86), U.S. Probation Officer Jeffery S.

Robson alleged the following violations of the conditions of supervised release:

1. Committing the crimes of: possession of a controlled substance, criminal

conspiracy, and defrauding a public utility, on or about June 15, 2010, in violation of the general

condition that he not commit another federal, state, or local crime.

2. Failing to notify the probation office within 72 hours of being arrested or

questioned by a law enforcement officer, in violation of standard condition 11.

Defendant was advised in full as to those charges and as to his constitutional rights,

denied the allegations, and requested an evidentiary hearing before a Magistrate Judge (Dkt. 90).

The hearing was held on August 23, 2010, at which time testimony was taken, exhibits were

admitted into evidence, and the argument of the parties was considered (Dkt. 92). The matter is

now ready for decision.

Findings of Fact and Recommendations

I find that the government has established by a preponderance of the evidence that

defendant has violated the conditions of supervised release as alleged in violations 1 and 2.

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SUMMARY REPORT OF U.S. MAGISTRATE JUDGE AS

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Committing the Crimes of Possession of a Controlled Substance, Criminal Conspiracy, and

Defrauding a Public Utility

The conditions of supervise release provide that “The defendant shall not commit another

federal, state or local crime.” (Dkt. 79 at 3.) Defendant is alleged to have been involved in a

marijuana grow operation in two locations in Snohomish County. In support of this allegation,

the United States offered the testimony of Detective Jarrod Seth of the Snohomish County

Regional Drug Task Force.

Detective Seth testified that he participated in the investigation of the marijuana grow

operations in which defendant is alleged to have participated. The investigation was initiated

when a neighbor at one of the locations drew the attention of law enforcement to a residence that,

although apparently uninhabited, was repeatedly visited by a number of different persons in

various vehicles at different hours of the day or night. A search warrant for the premises was

obtained, pursuant to which marijuana was seized from the location. The defendant was

observed and videotaped from the late fall 2009 through March 2010 visiting targeted residences

in Everett and Lynnwood. The detective testified that defendants’s actions appeared to show that

he was tending the marijuana plants, making short trips at various hours to the residences, using

different vehicles. A search of the Everett and Lynnwood residences showed signs of power

being diverted, consistent with a marijuana grow operation.

Defendant was arrested on or about June 15, 2010 and interviewed by Detective Seth.

Defendant was informed of his Miranda rights with Vietnamese-speaking ICE Agent Tranh

acting as an interpreter. The defendant admitted that he had been hired to water the marijuana

plants, and did so until March 2010. He stopped because he felt his parents would be

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embarrassed by his actions. Defendant was booked into the Snohomish County Jail, and released

after an initial court appearance. The state investigation of the marijuana grow operation

continues, currently involving approximately 20 defendants. The government introduced the

Incident Report of the Snohomish Regional Drug Task Force (Case No. TF10-175), which was

admitted into evidence (Ex. 1.)

Taken as a whole, the evidence as presented at the evidentiary hearing satisfies the

government’s burden of proving by a preponderance of evidence that defendant committed one

or more of the crimes of Possession of a Controlled Substance, Criminal Conspiracy, and

Defrauding a Public Utility, on or about June 15, 2010, in violation of a general condition of

supervised release that he not commit another federal, state or local crime. I recommend the

Court find that defendant committed alleged violation 1.

Failing to notify the probation office within 72 hours of being arrested or questioned 

by a law enforcement officer, in violation of standard condition 11.

I also find that the government has established by a preponderance of the evidence that

defendant violated the conditions of supervised release by failing to notify the probation office

within 72 hours of being questioned by Detective Seth, a law enforcement officer, as alleged in

violation 2.

Defendant’s United States probation officer, Jeffery Robson, testified that defendant’s

case was assigned to him for supervision when his former probation officer, Andrea Porter,

commenced her maternity leave. One of the standard conditions of supervised release required

defendant to report any contact with law enforcement within 72 hours. When defendant was

released to supervision on August 30, 2007, he was advised of this and the other conditions of

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supervision, and signed an acknowledgment to this effect. (Exs. 2 & 3.)

Defendant was arrested and questioned on June 15, 2010 by the Snohomish County Drug

Task Force. Mr. Robson was notified of the arrest on June 24, at which time he contacted the

Task Force and requested a copy of the police report. He received the report on July 28.

Defendant did not report this contact to his probation officer in any of his monthly

reports. Rather, defendant marked “no” to the question which asked if he had contact with law

enforcement during the prior month. (Ex. 4.) Having heard of the incident through the

Snohomish County Task Force, Mr. Robson met with defendant on August 3, hoping to provide

defendant with an opportunity to mentioned the incident to him. However, defendant did not do

so. No interpreter was present for the conversation. Mr. Robson testified that he did not utilize

the services of an interpreter in any of his interviews of the defendant, that the defendant did not

request an interpreter, and that he appeared to understand the conversations with Mr. Robson and

conversed with him without difficulty. Following the interview, Mr. Robson requested a warrant

and defendant was arrested and charged with violating the conditions of supervision.

The defendant testified, limiting his comments to the second alleged violation. He

testified that he was released from the Snohomish County Jail on June 17 following an video

teleconference court appearance in the jail. His court-appointed public defender told him to not

have any contact with any of the persons involved in the case and not to talk to anyone about it.

She was not specific about what persons this advice applied to, and defendant testified that he

“didn’t know” and didn’t ask if the precaution applied to the probation authorities. He admitted

that he did not tell his state public defender that he was on federal probation because he was

excited that he was being released and thought he didn’t have to mention it. 

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Defendant argues that the government has not proven this violation by a preponderance

of the evidence, because the violation must be shown to be “willful” to be sustained. The

argument is unavailing. There is no contention that defendant did not intentionally answer “no”

to the questions ”Were you questioned by any law enforcement officers?” or “Were you arrested

or named as a defendant in any criminal case?” (Ex. 4 at 2.) If defendant had inadvertently

marked the wrong answer, or misread the question, he might be found to lack the requisite intent.

However, defendant makes no such contention. Rather, as he testified, he was relieved that he

was being released from jail, and was probably hopeful his initial arrest would have no further

consequences.

Taken as a whole, the evidence as presented at the evidentiary hearing satisfies the

government’s burden of proving by a preponderance of evidence that defendant violated the

conditions of supervised release by failing to report his questioning by law enforcement to his

probation officer within 72 hours. I recommend the Court find that defendant committed alleged

violation 5.

Pending a final determination by the Court, defendant has been detained.

DATED this 25th day of August, 2010.

A

Mary Alice Theiler

United States Magistrate Judge 

cc: District Judge: Honorable Robert S. Lasnik

AUSA: Marci L. Ellsworth

Defendant’s attorney: Ralph Hurvitz

Probation officer: Jeffery S. Robson

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