USA v. Blanchette et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. 	Case No. 18-cr-187-SM-3
Amy Patch
REPORT AND RECOMMENDATION
On October 19, 2020, defendant Amy Blanchette 1 entered a
guilty plea to the charge of conspiracy to distribute and to
possess with the intent to distribute a controlled substance,
specifically, fentanyl, a Schedule II controlled substance, in
violation of 21 U.S.C. §§ 846, 841(a)(1), and (b)(1)(C). 	Doc.
no. 55. 	At the change of plea hearing, Judge McAuliffe ordered
that the defendant remain on release, pending sentencing, on the
same terms and conditions that were already in place. 	On
January 29, 2021, U.S. Probation filed a Report of Bail
Violation requesting that the court issue a summons for the
defendant to be brought before the court to “show cause as to
why her bail should not be revoked.” 	Doc. no. 73. 	A summons
was issued the same day. 	A bail revocation hearing was
conducted before the undersigned magistrate judge by
1 The defendant indicated a preference of being referred to
as Amy Blanchette, so the court will do so.
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videoconference on February 16, 2021. 2 	At the conclusion of that
hearing, the matter was taken under advisement. 	The hearing was
continued on February 26, 2021. 	For the reasons that follow,
the court recommends that the district judge revoke the
defendant’s release and order her detention pending sentencing.
I. 	Applicable Legal Standard
Pursuant to 18 U.S.C. § 3143(a), for defendants “who
pleaded guilty and are awaiting sentence, the statute reverses
the presumption of release in § 3142 and generally requires a
court to incarcerate a defendant pending the imposition of
sentence.” 	United States v. Cain, No. 1:16-cr-00103-JAW, 2018
WL 2470724, at *6 (D. Me. June 1, 2018) (citing 18 U.S.C. §
3143(a)). 	Where the defendant “has been found guilty of an
offense in a case described in subparagraph (A), (B), or (C) of
subsection (f)(1) of section 3142 and is awaiting imposition or
execution of sentence,” as is the case here, there are two
exceptions to the presumption of detention: if “the judicial
officer finds there is a substantial likelihood that a motion
2 An in-person hearing was not possible on February 16, 2021
due to the health and safety precautions taken in response to
the COVID-19 pandemic. 	See Standing Order ADM-1, 20-25.
Defendant waived her right to an in-person hearing and consented
to a video hearing. 	The hearing was listed on the public docket
on the court’s website and public access to the hearing was
available by video in accordance with the court’s Standing Order
ADM-1, 20-7. 	The court made findings regarding the limitations
on in-person public access on the record.
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for acquittal or new trial will be granted” or if “an attorney
for the Government has recommended that no sentence of
imprisonment be imposed on the person” and the court “finds by
clear and convincing evidence that the person is not likely to
flee or pose a danger to any other person or the community.” 	18
U.S.C. § 3143(a)(2). 	It does not appear that either exception
applies in this case.
The bail revocation statute, in pertinent part, provides:
The judicial officer shall enter an order of
revocation and detention if, after a hearing, the
judicial officer--
(1) finds that there is--
(A) probable cause to believe that the person has
committed a Federal, State, or local crime while
on release; or
(B) clear and convincing evidence that the person
has violated any other condition of release; and
(2) finds that--
(A) based on the factors set forth in section
3142(g) of this title, there is no condition or
combination of conditions of release that will
assure that the person will not flee or pose a
danger to the safety of any other person or the
community; or
(B) the person is unlikely to abide by any
condition or combination of conditions of
release.
18 U.S.C. 3148(b).
“The government has the initial burden to establish the
violation under 18 U.S.C. § 3148(b)(1).” 	United States v.
Barnett, No. 05-cr-095-01-SM, 2012 WL 6552797, at *1 (D.N.H.
Dec. 14, 2012). 	The government then “has the burden to prove by
a preponderance of the evidence the requirements of section
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3148(b)(2)(A) or (B).” 	Id. (citing United States v. Aron, 904
F.2d 221, 224 (5th Cir. 1990); United States v. Poinsett, 953 F.
Supp. 37, 38 (N.D.N.Y. 1997)).
II. 	Discussion
As an initial matter, under the circumstances in this case,
there is a presumption of detention pending sentencing. 	See 18
U.S.C. 3143(a). 	At the first hearing, on February 16, 2021, the
government made clear that it was not seeking bail revocation,
instead asserting that it would support allowing Blanchette an
additional opportunity to comply with her conditions of release.
However, after the defendant’s violations of conditions
following that hearing, the government moved for detention at
the February 26, 2021 bail review hearing.
The probation officer, in her Report of Bail Violation
(Doc. no. 73) and at both hearings, detailed bail violations
that fall into two main categories: failure to submit to
substance use testing required by the supervising officer and
substance use. 	The defendant did not contest the violations
documented in the report and stipulated to their accuracy. 	In
the report, the officer represented that since June 30, 2020,
the defendant had missed 32 required daily calls for drug
testing instructions and scheduled drug tests on November 12,
2020, November 16, 2020, and January 15, 2021. 	Doc. no. 73.
Additionally, at the hearing, the probation officer represented
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that the defendant missed another drug test on February 23,
2021.
In the report, the probation officer indicated that the
defendant tested positive for amphetamine and/or methamphetamine
use on September 23, 2020, October 12, 2020, October 29, 2020,
December 3, 2020, and January 6, 2021. 	At the hearing, the
officer indicated that the defendant also tested positive for
substance use on February 16, 2021, February 18, 2021, and
February 25, 2021. 	This testimony from probation regarding the
defendant’s missed drug tests and substance use constitutes
clear and convincing evidence that she violated her conditions
of release.
Additionally, the court finds that Blanchette is unlikely
to abide by conditions of release going forward. 	On several
occasions, Blanchette, when confronted about the positive test
results, denied any substance use. 	After one positive test, she
stated that she believed the test result was caused by the
environment in which she works doing construction. 	In response
to one of the positive test results in February, the defendant
indicated her belief that it was caused by drinking coffee
before the test. 	The court does not find these explanations
believable. 	Moreover, probation reports that the defendant has
displayed a lack of honesty about her counseling meetings, her
substance use, and her ongoing struggles with addiction. 	The
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court finds this lack of candor troubling. 	See United States v.
Patterson, No. 119-cr-00230-DAD-BAM-1, 2020 WL 6200164, at *11
n.2 (E.D. Cal. Oct. 22, 2020) (finding that “the evidence
demonstrates that [the defendant] cannot be supervised due to
his lack 	of candor with his pretrial services office and law
enforcement”); see also United States v. Ojo, Crim. No. SAG-20-
0369, 2020 WL 7707341, at *2 (D. Md. Dec. 29, 2020) (considering
the defendant’s “lack of candor with Pretrial Services” in
finding that there were no conditions that could mitigate
dangerousness).
As of today, there are only 30 days until the defendant’s
sentencing on March 31, 2021. 	The fact that she is continuing
to consistently engage in substance use, continuing to be
untruthful with probation, and failing to take full and
meaningful advantage of treatment options, so far into her
supervised release, weighs in favor of detention. 	“The best
predictor of how [the defendant] will behave if [s]he were to be
released is how [s]he has behaved when released in the past . .
. .” 	United States v. Martin, 447 F.Supp.3d 399, 403 (D. Md.
Mar. 17, 2020). 	Blanchette has failed time and again to comply
with conditions, and is likely to continue that pattern of
behavior. 3
3 The defendant’s behavior while on pre-sentencing release –
especially her continued drug use - also suggests that she is a
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III. Conclusion
Based on the foregoing, the court recommends that the
district judge revoke the defendant’s supervised release and
detain her pending sentencing.
Any objections to this Report and Recommendation must be
filed within fourteen days of service of this notice. See Fed.
R. Crim. P. 59(b)(2). 	The fourteen-day period may be extended
upon motion. 	Failure to file specific written objections to the
Report and Recommendation within the specified time waives the
right to appeal the district court's order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016) (citations
omitted); Fed. R. Crim. P. 59(b)(2).
SO ORDERED.
__________________________
Andrea K. Johnstone
United States Magistrate Judge
March 1, 2021
cc: 	Patrick J. Richard, Esq.
Jennifer C. Davis, Esq.
U.S. Probation
U.S. Marshal
danger to herself and the community. 	See United States v.
McIntosh, No. 02-CR-20049-02, 2012 WL 762614, at *1 (E.D. Mich.
Mar. 9, 2012) (citation omitted) (“I further find that
Defendant['s] continued controlled substance use, after having
been previously convicted of drug trafficking, poses added
danger to the community.”).
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