UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA F I l- E D
DEC -8 2014

Clark, U.S. District & Bankruptcy
Courts for the District at Columbia

UNITED STATES OF AMERICA,)

V.

Criminal Case NO. 07-94 (PLF/AK)

KIRK B. BROOKS,
Defendant.

__.__________)

REPORT AND RECOMMENDATION AND ORDER
This matter was referred to the undersigned United States Magistrate Judge by the
Honorable Paul L. Friedman for a Hearing on Violation of Defendant’s supervised release and a

Report and Recommendation.

W

On August 7, 2007, the Defendant was sentenced to 120 months imprisonment and 60
months supervised release for the Unlawful Possession with Intent to Distribute 5 Grams or
more Of Cocaine Base in violation of 21 USC §§ 841 (A)l and 841(b)(l)(B)(iii). On August ll,

2012,“ the term of imprisonment was reduced to 71 months with the remaining part of the

sentence remaining in effect. In addition to a $ 100 special assessment, the trial court imposed the

following Special Conditions for the Defendant:

0 Submit DNA

0 Forfeit $9,165

0 Drug treatment

0 Mental Health

Defendant’s supervision began on August 16, 2012 and is scheduled to terminate on October 31,

2017.

By memorandum dated November 18, 2013, the Probation Ofﬁcer notiﬁed the trial judge
that on October 29, 2013, Mr. Brooks was arrested by the Police Department of Prince William
County and charged with Grand Larceny. Mr. Brooks and his wife were apprehended after
shoplifting groceries and baby items from Walmart in Woodbridge, Virginia. Mr. Brooks told the
Probation Ofﬁcer he made a “foolish mistake,” but denied attempting to steal anything. Both Mr.
Brooks and his wife explained that the family was having ﬁnancial difﬁculties because their
moving company had several customer cancellations, and Mrs. Brooks’ real estate business was
suffering since the birth of their four month daughter Mrs. Brooks acknowledged a picture
shown to her by the police of the items alleged to have been shoplifted consisting of diapers,
baby formula, baby bottles, and other groceries for the household.

The Probation Ofﬁcer noted that since January l8, 2013 Mr. Brooks was being
supervised by the US. Probation Ofﬁce in the Eastern District of Virginia and Mr, and Mrs.
Brooks owned and operated Superb Movers, a Virginia based company. As of November 14,
2013, the Brooks family no longer lived in Virginia; they had moved into the District of
Columbia and Mr. Brooks was looking for employment. Other than the pending charges, Mr.
Brooks was in compliance with his supervision conditions.

By memorandum to the trial judge and the undersigned, the Probation Ofﬁcer updated

Mr. Brooks’ c‘ase since his last memorandum. The Probation Ofﬁcer obtained more details of
Mr. Brooks’ conduct since the November 18, 2013 charges were ﬁled. On the date of the

offense, a Walmart security ofﬁcer observed Mr. Brooks placing food items in the store

shopping bags. He then placed the bags in a shopping cart and attempted to leave the store

without paying for the items. Mr. Brook refused to cooperate with the security ofﬁcer and

proceeded to leave the store. Mr. Brooks was subsequently apprehended at his residence. The

total value ofthe items was $355.00.

Hearing on Violation

A hearing on the alleged violation of the conditions of Defendant’s supervised release was
held on November 7, 2014. At the hearing, Mr. Books was represented by Counsel and did not
dispute the violation. The Probation Officer noted for the record that the Defendant pled guilty to
Petty Larceny on July 10, 2014, in the District Court of Prince William County, Virginia.
Defendant was sentenced to a period of 12 months with 7 months suspended. On September 25,
20l4, Mr. Brooks completed his sentence. He was scheduled to resume outpatient substance
abuse counseling on October 7, 2014 at the Renaissance Treatment Center.

The Probation Officer recommended that Mr. Brooks’ supervision should not be violated
nor have his supervised release revoked but rather that he be sanctioned for the petty larceny by
modifying his current conditions of supervision by placing him in home conﬁnement with
electronic monitoring and a curfew from 8 pm until 5 am for a period of 60 days. Mr. Brooks is
now self-employed with his moving company operating in the District of Columbia and within a
50 mile radius, which can, on occasion, cause him to make deliveries that are beyond the 8 pm
curfew. For Defendant to avoid violating his curfew, the Probation Officer requests he have the

discretion to shorten the curfew to permit Mr. Brooks to complete his deliveries. Both the

Government and Mr. Brooks concur with the recommendation ofthe Probation Ofﬁcer. The

Defendant, through Counsel, consents to the trial judge signing the Report and Recommendation.

3

One caveat of the parties’ agreement to the modiﬁcation is the requirement of the

Probation Ofﬁce that because the petty larceny involved the theft of goods, the Defendant or the

Probation Ofﬁce must so advise Mr. Brooks’ clients to address the so-callcd third party risk.

Recommendation

The undersigned recommends that Defendant’s supervised release be modiﬁed to sanction
Mr. Brooks to 60 days of home detention with an 8pm to 5am curfew and electronic monitoring.
The undersigned does not concur with the Probation Ofﬁce’s recommendation that Mr. Brooks’
petty larceny conviction should trigger the third party risk, which necessitates telling Mr.
Brooks’ moving clients that Mr. Brooks was convicted ofthe theft of goods It appears to this
Court that telling the clients of Mr. Brooks who are seeking his services for moving their goods
will inhibit their using Mr. Brooks as their mover and frustrate his ability to maintain earning a
living. Unlike the more usual situation where a releasee is seeking employment which entails
handling an employer’s money, Mr. Brooks handles his client’s goods, which if stolen by Mr.
Brooks would cause his clients to notify the police or they could sue him. The likelihood ofa

self— employed mover such as Mr Brooks stealing from his clients while on supervised release

appears to this Court to be remote.

DATED:  kggﬁmggg S 30 lg;

     
 
 

ALAN
UNITED STATES M

SEEN AND APPROVED: J ‘
DATED: (Q, ‘5’ i  gawk. W
UNITED STATES lST OURT JUDGE

PAUL L. FRIEDMAN

STRAT < JUDGE

 

