UNITED STATES DISTRICT COURT 

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 05-cr-142-01-SM 

Donald McMullin

O R D E R 

On today’s date, defendant appeared for a “probable cause” 

hearing under Fed. R. Crim. P. 32.1 on an alleged violation of 

conditions of supervision. 

The petition charges that defendant violated Standard 

Condition no. 3 requiring that “the defendant shall answer 

truthfully all inquiries by the probation officer and follow the 

instructions of the probation officer.” Specifically, the 

petition alleges that defendant failed to follow Probation 

Officer James Bernier’s instruction when, on July 22, 2010, 

defendant left the State of Massachusetts and traveled to the 

Ossipee New Hampshire District Court, contrary to the specific 

instruction (communicated to defendant by Mr. Bernier on July 19, 

2010) that defendant not leave the State of Massachusetts without 

Mr. Bernier’s prior express permission. 

Probation Officer James Bernier testified at the hearing 

that he gave Mr. McMullin specific instructions on July 19, 2010, 

to obtain his prior express permission before leaving the State 

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of Massachusetts. During Mr. Bernier’s conversation with Mr. 

McMullin on July 19, 2010, Mr. McMullin challenged Mr. Bernier’s 

authority to place that condition on him. Mr. Bernier explained 

to Mr. McMullin that the source of his authority was Standard 

Condition no. 3 which required Mr. McMullin to follow his 

instructions. Mr. McMullin did not agree with Mr. Bernier’s 

explanation. On July 22, 2010, Mr. Bernier learned from a member 

of the Wakefield, New Hampshire, Police Department, that Mr. 

McMullin had traveled to Ossipee District Court to seek a 

modification of his bail conditions in that court. Mr. McMullin 

did not seek Mr. Bernier’s prior permission before traveling to 

Ossipee District Court. The evidence showed that Mr. McMullin’s 

decision to travel to Ossipee without obtaining Mr. Bernier’s 

prior permission was an act of defiance rather than some sort of 

misunderstanding about either Mr. Bernier’s instructions or the 

conditions of his supervision. Indeed, in a conversation with 

Mr. McMullin on today’s date and shortly before the hearing, Mr. 

McMullin expressly stated to Mr. Bernier that he had no intention 

of abiding by the rules of supervised release. 

Having weighed the evidence, and for the reasons stated on 

the record, I find probable cause that Mr. McMullin has violated 

Standard Condition no. 3 as charged in the Petition. 

 Defendant sought bail conditions under Rule 32.1(a)(6). 

Under Rule 32.1(a)(6) defendant bears the burden of establishing 

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by clear and convincing evidence that he will not flee and that 

he poses no danger to any other person or to the community. 

Based on the evidence presented at the hearing and for the 

reasons stated on the record, I find the defendant has failed to 

meet this burden and that there are no conditions which are 

likely to assure the safety of the community. 

The defendant is committed to the custody of the Attorney 

General or his designated representative for confinement in a 

corrections facility separate, to the extent practicable, from 

persons awaiting or serving sentences or being held in custody 

pending appeal. The defendant shall be afforded a reasonable 

opportunity for private consultation with defense counsel. On 

order of a court of the United States or on request of an 

attorney for the government, the person in charge of the 

corrections facility shall deliver the defendant to the United 

States Marshal for the purpose of an appearance in connection 

with a court proceeding. 

SO ORDERED. 

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Landya B. McCafferty 

United States Magistrate Judge 

Date: July 29, 2010 

cc: William E. Christie, Esq. 

 Debra M. Walsh, Esq. 

 U.S. Probation 

 U.S. Marshal 

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