United States v. Jones , 818 F.3d 1091 ( 2016 )

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
April 5, 2016
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v. Nos. 15-6119
CAMERON TAEVON JONES,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 5:07-CR-00294-F-1)
Kyle Edward Wackenheim, Research and Writing Attorney (Paul Antonio Lacy,
Assistant Federal Public Defender, with him on the briefs), Office of the Federal Public
Defender for the Western District of Oklahoma, Oklahoma City, Oklahoma, appearing
for Appellant.
Timothy W. Ogilvie, Assistant United States Attorney (Sanford C. Coats, United States
Attorney, with him on the brief), Office of the United States Attorney for the Western
District of Oklahoma, Oklahoma City, Oklahoma, appearing for Appellee.
Before TYMKOVICH, Chief Judge, BRISCOE, and MATHESON, Circuit Judges.
MATHESON, Circuit Judge.
The district court revoked Cameron Jones’s supervised release. It relied on
hearsay evidence from the Government’s only witness at the revocation hearing. On
appeal, Mr. Jones argues (1) Federal Rule of Criminal Procedure 32.1(b)(2)(C) requires
the district court to apply a balancing test to determine whether hearsay evidence may be
considered for revocation, (2) the district court abused its discretion because it did not
apply the Rule 32.1(b)(2)(C) balancing test, and (3) this error is reversible. Exercising
jurisdiction under 28 U.S.C. § 1291, we agree with Mr. Jones and reverse and remand to
the district court for a new revocation hearing.
I. BACKGROUND
A. Factual History
1. Mr. Jones’s Previous Convictions
In 1998, Mr. Jones was convicted of interference with commerce by threat or
violence, in violation of 18 U.S.C. § 1951, and of using and carrying a firearm during a
crime of violence, in violation of 18 U.S.C. § 924(c)(1). In 2007, he was convicted of
possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and
sentenced to 71 months in prison and five years of supervised release. The court also
ordered the prison sentence to run consecutively to the 24-month term of incarceration
imposed as a result of the revocation of supervised release in the 1998 case.
The 2007 presentence report stated Mr. Jones was a member of the Rolling 60s
Crips gang and goes by the alias C-Rag.
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2. The September 27, 2014 Murder
On August 29, 2014, Mr. Jones was released from prison and began serving his
five-year term of supervised release for the 2007 conviction. On September 27, 2014,
Mr. Miles, a Rolling 60s Crips member, was murdered. Two days after the murder, the
United States Probation Office filed a petition to revoke Mr. Jones’s supervised release,
alleging Mr. Jones violated the following conditions: (1) “[t]he defendant shall not
commit another federal, state, or local crime;” (2) “[t]he defendant shall not possess a
firearm, destructive device, or any other dangerous weapon;” and (3) “[t]he defendant
shall not associate with any persons engaged in criminal activity and shall no[t] associate
with any person convicted of a felony unless granted permission to do so by the probation
officer.” ROA, Vol. I at 18-19. The petition asserted Mr. Jones violated these conditions
by murdering Mr. Miles, possessing a firearm, and associating with Mr. Miles, a
convicted felon.
B. Procedural History
1. The Revocation Hearing
After the Probation Office filed its petition, the district court held a revocation
hearing on April 9, 2015. The Government presented one witness: Inspector Benavides,
a homicide detective with the Oklahoma City Police Department who investigated the
murder. He testified about Ms. Palmore’s and Trenton Nguyen’s statements given during
witness interviews. He also testified about his investigation of the murder, Mr. Jones’s
arrest, and Mr. Jones’s state murder prosecution. He testified as follows.
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a. Ms. Palmore’s statements
Inspector Benavides interviewed Ms. Palmore on the day of the shooting. He
testified Ms. Palmore claimed to have seen the shooting and that she provided the
following information:
 She “had just gotten out of prison.”
 Before the murder, she was at a bar named Slick Willie’s with a group of
people that included Mr. Jones and Mr. Miles.
 At Slick Willie’s, Mr. Miles tried to break up a fight between “some
females” and, in the process, had a confrontation with Mr. Jones.
 Following the confrontation, she and the rest of the group left Slick
Willie’s.
 When she arrived at her apartment, a group that included Mr. Jones was
located in a nearby parking lot of a Cricket cell phone store.
 Ms. Palmore saw Mr. Miles walk toward the group accompanied by an
“Asian boy,” who was later identified as Mr. Nguyen.
 Ms. Palmore went inside her apartment, but at some point heard people in
the parking lot yelling.
 She went outside and saw Mr. Jones shooting at the car Mr. Miles was
sitting in.
 Mr. Jones was “walking up to the car shooting into the car.”
 When Mr. Jones arrived at the driver’s side window, he shot into the car.
 Mr. Miles was trying to get out of the passenger’s side of the car during the
shooting.
 An “entire clip” was shot.
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 After the shooting, Mr. Jones got into a two-door white Monte Carlo, which
sped away from the scene, and “the bottom of the car kind of hit the asphalt
and they drove off.”
 “She was 100 percent sure” Mr. Jones was the shooter.
 She had known Mr. Jones since she was 15 years old1 but had not seen him
for many years before the night of the murder because she had recently
been released from prison.
ROA, Vol. III at 20-23.
During the interview, Inspector Benavides showed Ms. Palmore a photo lineup
consisting of six headshots of different African-American men, including Mr. Jones. Ms.
Palmore identified someone other than Mr. Jones as the shooter. Inspector Benavides
had the following exchange with Mr. Jones’s counsel on cross-examination:
Q. And then when you took her to the police department, you did a very
controlled photo identification?
A. Yes, sir.
Q. And she identified the wrong person; isn’t that correct?
A. She -- actually, she identified -- for the first time, she identified -- for
me, she identified two people out of one lineup. And that’s the first time
that has ever happened to me. So once she did that, I went back inside with
her and I verified with her that we were absolutely talking about Cameron
Jones. And she was very adamant, 100 percent sure, that Cameron Jones
was the shooter.
Q. Right. But the point I’m trying to make here is she’s saying it was
1
On cross-examination, Mr. Jones’s counsel asked Inspector Benavides, “You
said that Ms. Palmore had known all of these people involved since she was 15. How
many years ago was that, approximately?” ROA, Vol. III at 24. Inspector Benavides
answered, “I mean, numerous years. She’s an older woman now.” Id.-5-
[Mr. Jones].
A. Yes, sir.
Q. But the picture she identified was not [Mr. Jones].
A. She identified the picture of [Mr. Jones], but she identified him as the
person bringing the gun and giving it -- the person that she identified as the
shooter was a random guy that I had put in the lineup. And once we looked
at it, you know, the similarities to him and to [Mr. Jones], I mean, they’re
similar. And the photo lineup is there, you can look at it, I’ve given it to
you. That’s why I went back in there to reaffirm with her who we were
talking about.
ROA, Vol. III at 38-39.
Inspector Benavides testified that, although Ms. Palmore misidentified Mr. Jones
during the photo lineup, she was adamant that Mr. Jones was the shooter. According to
Inspector Benavides, Ms. Palmore told him “[she] could have been mistaken, [she] hadn’t
seen him in a while, [she] had just gotten out of prison, but she [was] 100 percent sure
that [Mr. Jones] was the shooter.” Id. at 40.
b. Mr. Nguyen’s statements
Inspector Benavides testified that Mr. Nguyen provided the following
information:
 Mr. Jones and Mr. Miles had a confrontation at Slick Willie’s.
 After the confrontation, he and Mr. Miles left Slick Willie’s and went to
Mr. Miles’s house.
 Mr. Miles said he was going to fight Mr. Jones because Mr. Jones was
responsible for the altercation at Slick Willie’s.
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 Mr. Nguyen and Mr. Miles went to the Cricket parking lot and Mr. Miles
“start[ed] calling [Mr. Jones] out in front of everybody.”
 Mr. Jones was on the phone when Mr. Miles was “calling him out” and did
not respond to Mr. Miles’s provocations. Mr. Jones “decided he wasn’t
going to fight.”
 Mr. Nguyen and Mr. Miles walked back to Mr. Miles’s house.
 Mr. Nguyen was not present when Mr. Miles went back to the Cricket
parking lot and was shot.
Id. at 24-25.
c. Additional investigation
Inspector Benavides testified further about his investigation of the shooting.
When he arrived at the Cricket parking lot, he was briefed by the law enforcement
personnel already on the scene. Mr. Miles’s body was “in the parking lot on the
passenger side [of the car].” Id. at 13. The body was outside the car on the ground
because first responders had attempted to administer medical treatment. There were 11
shell casings on the ground on the driver’s side of the car. The bullet holes in the car
“were from the back to the front, indicating . . . the [shooter] was walking up when the
shots were fired.” Id. at 15.
Two additional shell casings were found inside the car on the driver’s seat.
Inspector Benavides testified the shell casings inside the car indicated the shooter was
close, possibly arm’s length, to the driver’s side window when he fired the shots.
The crime-scene investigator told him “two gentlemen” named “C-Rag and PK”
were involved in the shooting. Id. at 15. Mr. Jones went by C-Rag; Mr. Jones’s brother,
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Jacara Jones, went by PK.
The additional eyewitnesses who were in the parking lot at the time of the
shooting “refused to talk to [the police].” Id. at 40-41.
d. Mr. Jones’s arrest
Inspector Benavides also testified about Mr. Jones’s arrest. The police arrested
Mr. Jones at his home the morning after the shooting. A white two-door Monte Carlo
was parked outside the house. The rear bumper on the passenger’s side was damaged and
it appeared there was “contact with the asphalt . . . you could see the scratches and the
scrape.” Id. at 28.
After receiving a Miranda warning, Mr. Jones agreed to make a statement. He
denied any involvement in the shooting and stated he arrived home the previous night
around 12:30 to 1:00 a.m. He stated he got off work, went to the gym, and helped a
friend move furniture in an area across town from Slick Willie’s and the Cricket parking
lot.
Cell phone records showed Mr. Jones was in the area of Slick Willie’s “about the
time that the witnesses stated they saw him there. [The records] also indicated he was in
the area of the homicide right at the time that the incident occurred.” Id. at 29-30.
e. The state prosecution
Inspector Benavides testified as follows about the state prosecution of Mr. Jones.
Mr. Jones was charged with first-degree murder of Mr. Miles in Oklahoma state court,
but the prosecutors dropped the charges because Ms. Palmore refused to testify. She was
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set to be the “main witness on the case.” Id. at 31. Mr. Miles was a gang member and a
convicted felon, Ms. Palmore was listed as a witness on public records associated with
the State’s murder prosecution, and the district attorney could refile the charge against
Mr. Jones.
f. Ms. Palmore and the revocation hearing
The Government did not subpoena or attempt to contact Ms. Palmore to testify at
the revocation hearing.
2. The District Court’s Rulings
During the revocation hearing, the district court concluded the Government had
proved by a preponderance of the evidence that Mr. Jones had committed supervised-
release violations one and two—(1) the prohibition on committing any federal, state, or
local crime and (2) the prohibition on possession of firearms. The court further
concluded the Government failed to prove violation three—(3) association with a felon.2
Mr. Jones’s counsel objected at the hearing to “all of [Inspector Benavides’s] hearsay
statements,” asserting they violated Mr. Jones’s rights under the Due Process Clause,
Confrontation Clause, and Federal Rule of Criminal Procedure 32.1.
On April 30, 2015, Mr. Jones filed a post-hearing motion to strike Inspector
2
The Government did not cross appeal from this ruling.
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Benavides’s hearsay testimony.3 On May 21, 2015, the district court denied Mr. Jones’s
motion, concluding Inspector Benavides’s testimony was sufficiently reliable and that a
preponderance of evidence established Mr. Jones violated the two conditions of
supervised release. The district court relied heavily on the testimony about Ms.
Palmore’s statements. On June 10, 2015, the court issued a separate order revoking the
remainder of Mr. Jones’s term of supervised release, resulting in a 36-month term of
imprisonment, and imposed 10 years of supervised release.
II. DISCUSSION
Mr. Jones raises three issues on appeal: (1) whether Federal Rule of Criminal
Procedure 32.1(b)(1)(C) requires the district court to apply a balancing test to determine
whether hearsay evidence may be considered for revocation, (2) whether the district court
abused its discretion because it did not apply the Rule 32.1(b)(1)(C) balancing test, and
(3) whether such error was harmless. We address these issues in turn and conclude the
district court committed reversible error when it failed to apply the Rule 32.1(b)(1)(C)
balancing test to the hearsay evidence presented at the revocation hearing. We confine
our analysis to Mr. Jones’s right to confront Ms. Palmore because Mr. Jones has not
argued on appeal that he has a right to confront any other hearsay declarant.
3
Mr. Jones’s in-court objection and motion to strike appeared to challenge all of
Inspector Benavides’s hearsay testimony—he does not specify any portions of the
testimony to which he objects. On appeal, he limits his challenge to Inspector
Benavides’s testimony about Ms. Palmore’s statements. He does not challenge the
testimony about Mr. Nguyen’s statements or any other out-of-court statements.
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“We review the district court’s decision to revoke supervised release for abuse of
discretion. Legal questions relating to the revocation of supervised release are reviewed
de novo. A district court necessarily abuses its discretion when it makes an error of law.”
United States v. LeCompte, 800 F.3d 1209, 1215 (10th Cir. 2015) (quotations omitted).
A. The Rule 32.1(b)(2)(C) Balancing Test Applies
The first issue is whether Rule 32.1(b)(2)(C) requires a district court to apply the
balancing test to determine whether hearsay evidence may be considered for revocation.
We hold that it does.
Rule 32.1(b)(2)(C) was amended in 2002 to state that a person subject to a
revocation hearing “is entitled to,” among other things, “an opportunity to appear, present
evidence, and question any adverse witness unless the court determines that the interest
of justice does not require the witness to appear.” Fed. R. Crim. P. 32.1(b)(2)(C).
The advisory committee notes to this provision provide:
Rule 32.1(b)(1)(B)(iii) and Rule 32.1(b)(2)(C) address the ability of a
releasee to question adverse witnesses at the preliminary and revocation
hearings. Those provisions recognize that the court should apply a
balancing test at the hearing itself when considering the releasee’s asserted
right to cross-examine adverse witnesses. The court is to balance the
person’s interest in the constitutionally guaranteed right to confrontation
against the government’s good cause for denying it.
Rule 32.1 advisory committee’s note to 2002 amendment (emphasis added).
Before the 2002 amendment to Rule 32.1, this court applied a reliability test to
determine whether hearsay evidence may be considered at a revocation hearing. The
reliability test “allows the admission of hearsay evidence without a showing of cause for
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the declarant’s absence if the evidence is sufficiently reliable.” Curtis v. Chester, 626
F.3d 540, 545 (10th Cir. 2010).4 Since the 2002 amendment, we have not needed to
confront the impact of amended Rule 32.1(b)(2)(C) on our pre-2002 precedent. The
closest we have come to addressing that question was in Curtis, but we determined both
the reliability test and the balancing test would produce the same outcome in that case.
In this case, we resolve the question and hold the Rule 32.1(b)(2)(C) balancing test
governs whether hearsay evidence may be used to revoke supervised release. The
following discussion provides the background and rationale for this holding.
1. Morrissey v. Brewer, 408 U.S. 471 (1972)
In Morrissey, the Supreme Court stated, “the revocation of parole is not part of a
criminal prosecution and thus the full panoply of rights due a defendant in such a
proceeding does not apply to parole revocations.” 408 U.S. at 480. The Court held a
supervised releasee facing revocation of parole must receive the “minimum requirements
of due process,” including “the right to confront and cross-examine adverse witnesses
(unless the hearing officer specifically finds good cause for not allowing confrontation).”
Id. at 489. Our unpublished decisions recognize that minimum due process extends to
4
“Examples of evidence possessing recognized indicia of reliability include: (1)
the conventional substitutes for live testimony (e.g., affidavits, depositions, and
documentary evidence), (2) statements falling under an established exception to the
hearsay rule, (3) statements corroborated by detailed police investigative reports, and (4)
statements corroborated by the releasee’s own statements.” Curtis, 626 F.3d at 545.
“Corroborating evidence is often key to determining whether a statement is sufficiently
reliable.” United States v. Ruby, 706 F.3d 1221, 1229 (10th Cir. 2013).
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releasees facing revocation of supervised release, United States v. Mullane, 480 F. App’x
908, 910 (10th Cir. 2012) (unpublished); United States v. Stevens, 119 F. App’x 222, 225
(10th Cir. 2004) (unpublished), and we agree.
Although Morrissey established a right to confrontation, that right is flexible at
revocation hearings. See Gagnon v. Scarpelli, 411 U.S. 778, 782 n.5 (1973) (“While in
some cases there is simply no adequate alternative to live testimony, we emphasize that
we did not in Morrissey intend to prohibit use where appropriate of the conventional
substitutes for live testimony, including affidavits, depositions, and documentary
evidence.”); Kell v. U.S. Parole Comm’n, 26 F.3d 1016, 1020 (10th Cir. 1994)
(“Petitioner’s right to confront adverse witnesses is not absolute.”). And Morrissey did
not provide a clear test for determining a releasee’s confrontation right. Curtis, 626 F.3d
at 545.
2. The 2002 Amendment to Rule 32.1
Rule 32.1 “codif[ied] due process guarantees that apply to revocation hearings.”
Ruby, 706 F.3d at 1226. The rule was amended and expanded in 2002. Among other
things, Rule 32.1(b)(2)(C) grants a releasee facing revocation of supervised release “an
opportunity to appear, present evidence, and question any adverse witness unless the
court determines that the interest of justice does not require the witness to appear.”
The advisory committee notes to the 2002 amendment direct courts to apply a
balancing test when considering a releasee’s confrontation rights at a revocation hearing
under Rule 32.1(b)(2)(C): “The court is to balance the person’s interest in the
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constitutionally guaranteed right to confrontation against the government’s good cause
for denying it.” Rule 32.1 advisory committee’s note to 2002 amendment.
3. Circuit Courts’ Adoption of the Balancing Test
Every circuit court except ours has adopted the balancing test. Some circuits did
so before the 2002 amendment. United States v. Chin, 224 F.3d 121, 124 (2d Cir. 2000);
United States v. Comito, 177 F.3d 1166, 1170 (9th Cir. 1999); Barnes v. Johnson, 184
F.3d 451, 454 (5th Cir. 1999); United States v. Frazier, 26 F.3d 110, 114 (11th Cir.
1994); United States v. Bell, 785 F.2d 640, 642 (8th Cir. 1986). Other circuits did so
after. United States v. Jordan, 742 F.3d 276, 279 (7th Cir. 2014); United States v.
Doswell, 670 F.3d 526, 530 (4th Cir. 2012); United States v. Jackson, 422 Fed. App’x.
408, 410-11 (6th Cir. 2011) (unpublished); United States v. Lloyd, 566 F.3d 341, 344 (3d
Cir. 2009); United States v. Stanfield, 360 F.3d 1346, 1360 (D.C. Cir. 2004); United
States v. Taveras, 380 F.3d 532, 536 (1st Cir. 2004).
We applied the reliability test in Kell, which was decided before the 2002
amendment. 26 F.3d at 1020. In Curtis, a 2010 case, we considered whether the
balancing test applies at a parole-revocation hearing under Rule 32.1(b)(1)(B)(iii).5 The
appellant urged us to abandon the reliability test and adopt the balancing test based on the
amendment and the advisory committee notes. 626 F.3d at 545. We left the question
5
The balancing test applies to both Rule 32.1(b)(1)(B)(iii) and Rule 32.1(b)(2)(C).
Rule 32.1 advisory committee’s note to 2002 amendment.
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open, concluding the hearsay testimony at issue was admissible under both the balancing
and reliability tests. Id. at 546-47. In doing so, we acknowledged that the 2002
amendment “cast[s] some doubt on our case law,” and that Kell is “asynchronous with
both the majority of circuit courts and the subsequent amendment to Rule 32.1.” Id. at
545-46.
4. The Balancing Test Applies
We join the other circuits and conclude the balancing test applies when
determining a releasee’s confrontation rights at a revocation hearing. Taking the plain
language of Rule 32.1(b)(2)(C) and the advisory committee notes together, we must
determine whether the “interest of justice does not require the witness to appear” by
balancing (1) “the person’s interest in the constitutionally guaranteed right to
confrontation” against (2) “the government’s good cause for denying it.”6 Rule 32.1
advisory committee’s note to 2002 amendment. We note “reliability is a very important
factor in determining the strength of a releasee’s confrontation right.” Curtis, 626 F.3d at
546 (emphasis omitted).
We acknowledge our departure from Kell, which applied the reliability test before
Rule 32.1 was amended. We may depart from precedent without en banc review when an
6
Courts give weight to the advisory committee notes unless they contradict the
plain language of the rule. See Schiavone v. Fortune, 477 U.S. 21, 31 (1986) (“Although
the Advisory Committee’s comments do not foreclose judicial consideration of the Rule’s
validity and meaning, the construction given by the Committee is of weight.” (quotations
omitted)).
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amendment to an applicable rule or statute creates a new standard. See United States v.
Savani, 733 F.3d 56, 62 (3d Cir. 2013) (“Although we, as a three-judge panel, are
generally bound by prior decisions of this Court, we may reevaluate a precedent in light
of intervening authority and amendments to statutes or regulations.” (quotations
omitted)); Landreth v. C.I.R., 859 F.2d 643, 648 (9th Cir. 1988) (reexamining precedent
in light of intervening amendment to controlling statute). Put differently, we may apply a
new governing standard embodied in an amended rule without en banc reversal of pre-
amendment precedent applying a different standard.
No panel since the 2002 amendment, including the Curtis panel, has adopted the
reliability test in favor of the balancing test. Moreover, Kell was decided before the 2002
amendment and did not rely on any federal rule of criminal procedure. We therefore
adopt the Rule 32.1(b)(2)(C) balancing test without en banc review of Kell.
B. The District Court Abused Its Discretion by Failing to Apply the Balancing Test
The second issue is whether the district court applied the balancing test. The
Government argues that it did. Mr. Jones argues it did not. We agree with Mr. Jones and
conclude the court’s legal error was an abuse of discretion.
The Government argues the district court applied the balancing test because the
court quoted both Rule 32.1(b)(2)(C) and the advisory committee notes and weighed the
reliability of the hearsay evidence against the “gravity of the matter.” ROA, Vol. I at 43.
We disagree. Mentioning the rule and advisory notes is not the same as applying them.
In the order denying Mr. Jones’s motion to strike, the district court found
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Inspector Benavides’s testimony reliable and probative of the Government’s contention
that Mr. Jones murdered Mr. Miles. In particular, due to the corroborating physical
evidence, the court found reliable Inspector Benavides’s testimony about Ms. Palmore’s
account of the shooting and gave it “decisive effect.” Id. at 42. The court also pointed to
Inspector Benavides’s testimony about Ms. Palmore’s insistence that Mr. Jones was the
shooter and about Mr. Jones’s false alibi.
Although the district court considered reliability and the “gravity of the matter,” it
did not apply the Rule 32.1(b)(2)(C) balancing test. ROA, Vol. I at 43. Reliability is
relevant to determine Mr. Jones’s interest in confrontation, Curtis, 626 F.3d at 546—the
first part of the balancing test—but the district court did not fully or adequately address
Mr. Jones’s interest in cross-examination or the second part of the balancing test—the
Government’s explanation for failing to present Ms. Palmore as a witness.
Because the district court failed to apply the balancing test under Rule
32.1(b)(2)(C), it committed legal error and therefore abused its discretion. LeCompte,
800 F.3d at 1215 (“A district court necessarily abuses its discretion when it makes an
error of law.” (quotations omitted)).
C. The District Court’s Error Was Reversible
The third issue is whether the district court’s error was reversible or harmless. We
conclude it was reversible.
1. Harmless Error Standard
The harmless error doctrine requires us to disregard preserved trial errors that do
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not affect substantial rights. See 28 U.S.C. § 2111; Fed. R. Crim. P. 52(a). “An error is
harmless unless it had a substantial influence on the outcome or leaves one in grave doubt
as to whether it had such effect.” United States v. Stiger, 413 F.3d 1185, 1190 (10th Cir.
2005) (quotations omitted). A constitutional error is reversible unless the Government
can prove harmlessness beyond a reasonable doubt. Chapman v. Cutler, 386 U.S. 18, 24
(1967). A nonconstitutional error is reversible unless the Government can prove
harmlessness by a preponderance of the evidence. Stiger, 413 F.3d at 1190.
In this case, we need not determine whether an error in applying
Rule 32.1(b)(2)(C) is constitutional or nonconstitutional because the Government cannot
show harmlessness under either standard.
2. Analysis
The district court’s error is reversible. We have grave doubt as to whether the
court would have admitted the testimony under the Rule 32.1(b)(2)(C) balancing test on
the record before it. And because Inspector Benavides was the only witness and the court
gave his testimony about Ms. Palmore’s statements “decisive effect,” ROA, Vol. I at 42,
it follows that the court’s error affected Mr. Jones’s substantial rights.
First, Mr. Jones had a strong interest in testing Ms. Palmore’s statements to
Inspector Benavides. Several textbook bases for cross-examination were present here:
 First, testing Ms. Palmore’s ability to perceive—her distance from the
parking lot, her angle of vision, any obstructions to her view, the quality of
the lighting, and whether she had been drinking at Slick Willie’s.
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 Second, exploring possible bias—whether her long-term acquaintance with
Mr. Jones might have affected her statements to Inspector Benavides.
 Third, examining whether Ms. Palmore’s prior conviction might affect her
credibility.
 Fourth, asking why Ms. Palmore refused to cooperate in the state
prosecution of Mr. Jones, a matter on which the parties and the court could
only posit educated guesses without her testimony.
 Fifth, elaborating on Ms. Palmore’s misidentification of Mr. Jones in the
photo lineup. Despite corroborating evidence that placed Mr. Jones in the
parking lot at the time of the shooting, Ms. Palmore pointed to someone
else when asked to identify the shooter.
Adding to Mr. Jones’s interest in cross-examining Ms. Palmore are the generally
recognized concerns with eyewitness testimony even when the witness appears at the
evidentiary proceeding. See, e.g., Manson v. Brathwaite, 432 U.S. 98, 119 (1977) (noting
the “high incidence of miscarriage of justice resulting from the admission of mistaken
eyewitness identification evidence at criminal trials” (quotation omitted)); United States
v. Wade, 388 U.S. 218, 228 (1967) (“The vagaries of eyewitness identification are well-
known; the annals of criminal law are rife with instances of mistaken identification.”);
United States v. Stevens, 935 F.2d 1380, 1392, 1407 (3d Cir. 1991) (noting concerns with
reliability of eyewitness testimony and holding district court erred in excluding expert
testimony “about the lack of a correlation between confidence and accuracy in eyewitness
identifications”); United States v. Smith, 736 F.2d 1103, 1106 (6th Cir. 1984)
(acknowledging “the dangers of [eyewitness] misperception in criminal cases”).
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Second, the Government has made only a limited showing of good cause for its
failure to produce Ms. Palmore to testify. The Government argues on appeal that Ms.
Palmore risked retaliation because she was the only witness to a gang-related shooting,
her name was on public records associated with the State’s murder prosecution, and she
refused to cooperate with the State. The Government further asserts any attempt to
subpoena Ms. Palmore would have been futile.
The Government has not adequately supported its argument. It did not even ask
Ms. Palmore to attend the revocation hearing. Nor did it issue her a subpoena. Instead, it
asks us to infer Ms. Palmore refused to testify at the state court trial based on a fear of
reprisal and would have refused to testify at the revocation hearing for the same reason.
Although we could reasonably infer as the Government suggests, we could also
reasonably infer Ms. Palmore’s refusal to testify at the state trial arose out of other
reasons. She may have doubted whether Mr. Jones was actually the shooter. Or she may
have been lying when she insisted Mr. Jones was the shooter. Or perhaps she did not
want to testify against her longtime acquaintance.
Weighing Mr. Jones’s strong interest in confrontation and cross-examination
against the Government’s limited showing of good cause, we are left in grave doubt as to
whether the district court would have admitted Inspector Benavides’s testimony under the
balancing test on the record presented and also as to whether it would have revoked Mr.
Jones’s supervised release. We therefore conclude the district court’s error was
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reversible because the Government cannot show harmlessness by a preponderance of the
evidence, let alone beyond a reasonable doubt.
D. Sixth Amendment Right to Confrontation
Mr. Jones also argues his inability to cross-examine Ms. Palmore violated his
Sixth Amendment rights. The parties agree our case law holds that the Sixth Amendment
does not apply to revocation hearings. Curtis, 626 F.3d at 544 (“Sixth Amendment rights
are not applicable in parole revocation hearings because those hearings are not criminal
prosecutions.” (quotation omitted)). Nevertheless, Mr. Jones raises the argument “so as
to preserve any future extension of the Sixth Amendment.” Aplt. Br. at 26. We agree
that our case law forecloses the argument.
III. CONCLUSION
For the reasons stated, we reverse the district court’s revocation of Mr. Jones’s
supervised release and remand for a new revocation hearing consistent with this opinion.
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