United States v. Ward ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 1 1999
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-8006
JAMES KENNETH WARD, a/k/a Ken Ward, (D. Wyo.)
a/k/a Dean Connelly, a/k/a Jack Riemer, (D.Ct. No. 95-CR-45)
Defendant-Appellant,
____________________________
ORDER AND JUDGMENT *
Before BALDOCK, BARRETT, and BRORBY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant-Appellant, James Kenneth Ward, appeals the district court's
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
decision to revoke his supervised release and impose a new term of imprisonment
and supervised release. We exercise jurisdiction pursuant to 28 U.S.C. § 1291,
and affirm.
BACKGROUND
Mr. Ward was convicted in December 1995 for stealing and reselling farm
equipment and vehicles. The court sentenced him to three concurrent terms of
twenty-five months in prison, followed by a three-year supervised release. Mr.
Ward served the prison term and began his supervised release October 27, 1997.
Almost one year later, Idaho authorities charged him with felony domestic
violence in an Idaho state court. After learning of the alleged offense, Mr.
Ward’s federal probation officer filed a Petition on Supervised Release informing
the district court of Mr. Ward’s state domestic violence charge and requesting the
court revoke his supervised release. At the revocation hearing, the district court
heard testimony from several witnesses regarding the events surrounding the
alleged domestic violence incident. We provide the following summary of the
relevant testimony.
On the morning of October 17, 1998, Sergeant James Walker, a police
officer in St. Anthony, Idaho, responded to a disturbance reported at a house
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where Mr. Ward resided with his girlfriend, Jeanni Kollander. When Officer
Walker arrived at the scene, he first encountered Bert Flamm, the landlord and
neighbor who made the call to the police. Mr. Flamm testified that earlier that
morning, his wife told him about some commotion and yelling at the residence
next door. Mr. Flamm also explained that Payton Carlson, a young friend of his
son who was staying with them, told him he heard a disturbance next door and
saw a woman – later identified as Ms. Kollander – outside near a vehicle calling
for help and apparently in distress. According to Mr. Flamm, Mr. Carlson also
reported seeing a man exit the neighbor’s residence and carry Ms. Kollander back
inside. Based on this information, Mr. Flamm went next door to see if everything
was all right, but Ms. Kollander refused to let him in the house or come outside
to speak with him. This strange response, coupled with earlier reports of what
transpired, caused Mr. Flamm to fear for Ms. Kollander’s safety and prompted his
call to the police.
After talking with Mr. Flamm, Officer Walker approached the neighbor’s
residence and knocked on the door. Several minutes passed before Ms.
Kollander responded. However, she still refused to open the door or come
outside, and talked from behind the closed door. Concerned with her safety, and
not knowing whether someone was holding Ms. Kollander against her will,
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Officer Walker persisted in his request for her to open the door. Finally, she
opened it slightly. ( Id. at 19, 48.) Through the opening, Officer Walker saw Mr.
Ward standing directly behind Ms. Kollander. Officer Walker also noticed a
vertical gash in Ms. Kollander’s forehead. Fearing she was in danger, he pushed
the door open, took Ms. Kollander by the arm, and asked her to step outside. Mr.
Ward immediately objected and attempted to physically restrain Ms. Kollander
from leaving the residence. In response, Officer Walker drew his “pepper mace”
spray and commanded Mr. Ward not to interfere. He then escorted Ms. Kollander
to his waiting patrol car. As they left the house, she thanked Officer Walker
profusely and begged him not to make her go back.
Leaving Ms. Kollander in the patrol car with Mr. Flamm, Officer Walker
returned to the house to question Mr. Ward. He approached the house and
knocked, but Mr. Ward refused to open the door. Concerned Mr. Ward might be
trying to secure a weapon, Officer Walker opened the door himself. He found
Mr. Ward standing just inside the entryway and immediately noticed blood on
both Mr. Ward’s arms and scratch marks on his shoulders. Officer Walker asked
Mr. Ward what happened. Receiving no response to his questions and believing
Mr. Ward committed some act of violence against Ms. Kollander, Officer Walker
placed him under arrest for domestic battery.
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Based on this testimony, the district court found the government
established by a preponderance of the evidence that Mr. Ward committed a
material violation of the conditions of his supervised release. The court then
revoked his supervised release and ordered Mr. Ward to serve an additional term
of fifteen months in prison followed by a nine-month term of supervised release.
In addition to reiterating the previous conditions of supervised release, the court
prohibited Mr. Ward from being employed in the sale, procurement, or
transportation of heavy equipment or farm equipment while on supervised
release. 1
DISCUSSION
Mr. Ward raises three challenges to the district court’s revocation of
supervised release and resentencing. First, he contends the district court violated
his due process rights by relying on certain hearsay testimony at the revocation
hearing. Second, he claims the court improperly based its finding that he
violated the conditions of his supervised release on insufficient evidence.
1
Mr. Ward filed a motion to supplement the record on appeal to include an Order
dated January 8, 1999, from the Seventh Judicial District Court for the State of Idaho,
dismissing the domestic violence charges against him without prejudice. Because the
Idaho court’s decision to dismiss did not occur until after the revocation hearing before
the district court, we find the order of dismissal has no bearing on our review of the
district court’s prior, independent findings. For this reason, Mr. Ward’s motion to
supplement the record is denied.
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Finally, he argues the court erred when it sentenced him to a new term of
imprisonment and supervised release which included the additional employment-
related condition. We address these contentions in turn.
A. Hearsay – Due Process
Mr. Ward challenges the admission of several out-of-court declarations
during the revocation hearing, claiming the court’s decision to admit this
testimony violated his due process rights to confront and cross-examine adverse
witnesses. He identifies the inappropriately admitted hearsay as: (1) Mr.
Flamm’s testimony regarding the statement Payton Carlson made to him about
seeing Ms. Kollander outside her house crying for help and then seeing a man
carry her back inside the house; (2) the testimony of Officer Walker regarding
what the police dispatcher told him about the substance of Payton Carlson’s
statement to Mr. Flamm; and (3) Officer Walker’s testimony that Dr. Blackburn,
Ms. Kollander’s treating physician, told him Ms. Kollander stated her injuries
occurred from falling down stairs.
Although Mr. Ward acknowledges the district court’s discretion to admit
such testimony, he contends the court nevertheless denied him due process
because he was never afforded the opportunity to confront and cross-examine
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Payton Carlson or the doctor. He also claims that before admitting the out-of-
court statements, the court should have balanced the importance of this evidence
with (1) the court’s own findings, (2) his opportunity to refute the evidence, (3)
the consequences of the court’s findings, (4) the difficulty and expense of
procuring witnesses, and (5) the traditional indicia of reliability borne by the
evidence. See United States v. Walker , 117 F.3d 417, 420 (9th Cir.), cert. denied ,
118 S. Ct. 394 (1997).
We emphasize at the outset of our analysis that the Federal Rules of
Evidence do not strictly apply in proceedings to revoke supervised release, and
the admission of hearsay evidence is permissible so long as it is otherwise
reliable and the court balances Mr. Ward’s right to confront adverse witnesses
against the government’s grounds for denying confrontation. United States v.
Frazier , 26 F.3d 110, 114 (11th Cir. 1997); see also United States v. Waters , 158
F.3d 933, 940 (6th Cir. 1998) (ruling that a district court can consider reliable
hearsay testimony in a hearing regarding revocation of supervised release); . We
review the alleged due process violations de novo , United States v. Clark , 84
F.3d 378, 381 (10th Cir. 1996), and the district court’s assessment of reliability
for abuse of discretion. Waters , 158 F.3d at 940. However, the findings are
subject to a harmless error analysis. Frazier , 26 F.3d at 114.
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A review of the record in this case shows the district court properly simply
determined the Federal Rules of Evidence do not strictly apply to supervised
release hearings. However, when faced with hearsay objections, the court
neglected to make specific findings of reliability or explicitly balance Mr. Ward’s
confrontation rights against the government’s reasons for not producing the
witness. Such omission constitutes error. Nevertheless, we find the error
harmless in light of the overwhelming weight of the evidence presented to the
district court demonstrating Mr. Ward violated the terms of his supervised
release, see Frazier , 26 F.3d at 114 (finding harmless the district court's error in
failing to make findings on the record concerning the reliability of hearsay
testimony or to weigh the defendant's right of confrontation against the
government's reasons for not producing the witness), the reliability of the hearsay
evidence, and Mr. Ward’s failure to show prejudice see Walker, 117 F.3d at 420-
21.
The reliability of that evidence is apparent from other corroborating
uncontested evidence. For example, Mr. Flamm’s testimony regarding what
Payton Carlson told him about seeing Ms. Kollander outside her house in
apparent distress corroborated Ms. Kollander’s admission that she had a
disagreement with Mr. Ward and ran outside in front of the house while yelling.
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Moreover, Officer Walker’s testimony about blood on Mr. Ward’s arms at the
time of arrest is consistent with Payton Carlson’s statement about Mr. Ward
carrying, or at least touching, Ms. Kollander, who was bleeding from a wound on
her forehead. With regard to Officer Walker’s testimony containing Dr.
Blackburn’s statement about what Ms. Kollander reported to hospital staff as the
cause of her injuries, we find the record contains no basis for doubting his ability
as a law enforcement officer to accurately report what he learned in the course of
his investigation, see Taylor v. United States Parole Comm’n , 734 F.2d 1152,
1156 (6th Cir. 1984) (dissenting opinion), and Mr. Ward does not present any
serious challenge to the reliability of the statement.
Finally, we believe, given the weight of the non-hearsay evidence
establishing Mr. Ward violated his supervised release, it is unlikely the admission
of the hearsay testimony prejudiced Mr. Ward’s case and produced a different
result than would have occurred without it. This absence of prejudice, combined
with the weight of the evidence, convinces us that although the district court
failed to make specific findings of reliability or conduct the required balancing
test, such error was harmless.
B. Challenge to Supervised Release Revocation
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Mr. Ward argues that insufficient evidence supports the district court’s
finding he committed an act of domestic violence in violation of the terms of his
supervised release. In support, he disregards the overwhelming inculpatory
evidence in the record and relies solely on evidence favorable to him.
We review the district court’s decision to revoke a term of supervised
release for abuse of discretion, United States v. McAffee , 998 F.2d 835, 837 (10th
Cir. 1993), and its subsidiary factual findings for clear error, United States v.
Hall , 984 F.2d 387, 389 (10th Cir.), cert. denied , 508 U.S. 965 (1993). In order
to revoke Mr. Ward’s term of supervised release, the trial court must find by a
preponderance of the evidence that he violated a condition of his release. 18
U.S.C. § 3583(e)(3). The trial court, as the trier of facts, has the exclusive
function of appraising credibility, determining the weight to give testimony,
drawing inferences from the facts established, and reaching ultimate conclusions
of facts. United States v. Leach , 749 F.2d 592, 600 (10th Cir. 1984); see also
Thunder Basin Coal Co. v. Southwestern Pub. Serv. Co. , 104 F.3d 1205, 1212
(10th Cir. 1997). In reviewing the sufficiency of the evidence, we must view all
of the evidence, both direct and circumstantial, and all reasonable inferences to
be drawn therefrom, in the light most favorable to the government. Leach , 749
F.2d at 600.
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As an initial matter, we acknowledge no direct evidence shows Mr. Ward
committed an act of domestic violence against Ms. Kollander. In fact, the only
witnesses to Ms. Kollander’s injury – Mr. Ward and Ms. Kollander – testified the
gash on her forehead resulted from an accident in the home. However, sufficient
and highly persuasive circumstantial evidence clearly contradicts Mr. Ward’s and
Ms. Kollander’s innocent explanations of the events leading to the domestic
violence charge. For instance, the evidence shows Ms. Kollander suffered the
significant injury to her head around the same time she argued with Mr. Ward
and ran outside crying and in distress. In addition, the hearing testimony
establishes that during this incident, a man – presumably Mr. Ward – came out
and carried her back inside the house. This coincides with the blood on Mr.
Ward’s arms and scratch marks on his shoulders, and indicates some sort of
physical struggle had taken place shortly before his arrest. The record indicates
Ms. Kollander refused to open the door to talk to Mr. Flamm when he went to
check on her, and he testified that “[s]he did not sound like she was okay” when
she spoke to him through the door. The record also contains highly persuasive
evidence of Ms. Kollander’s immediate, profuse, and repeated thanks to Officer
Walker for removing her from the house and her urgent plea not to make her
return. Further testimony indicated that Ms. Kollander profusely thanked Mr.
Flamm immediately after the incident and warned him Mr. Ward was extremely
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violent and dangerous when he was angry, and would hurt him and his family if
he saw him helping her. Finally, even though Ms. Kollander testified on Mr.
Ward’s behalf and denied he committed any act of physical violence against her,
her earlier conflicting statements and other evidence show she lacks credibility
and most likely lied to protect him. 2
For instance, at the hearing, Ms. Kollander testified the gash on her
forehead resulted from her angrily turning around and hitting her head on a door
jamb. This contradicts her statement to hospital staff that it resulted from falling
down some stairs.
This circumstantial evidence, and the reasonable inferences drawn
therefrom, together with the district court’s apparent credibility determinations,
form a sufficient basis for the district court’s conclusion. Thus, we affirm the
2
When considering Ms. Kollander’s testimony, the district court was no doubt
aware of the unfortunate, but frequent tendency of domestic abuse victims to refuse to
cooperate in the prosecution of the abusers after the incident has passed and to even lie to
protect them in some cases. This phenomenon is evident in this case from Ms.
Kollander’s conduct. She initially thanked Mr. Flamm and the officer for removing her
from the house and begged not to go back; then suddenly she changed her demeanor and
requested to return to the house. In situations like this, the court must often discredit the
potentially fabricated testimony of the victim exonerating the perpetrator, and focus on
other evidence in order to accurately assess what occurred.
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district court’s finding that the government met its burden of showing, by a
preponderance of the evidence, that Mr. Ward committed an act of domestic
violence in breach of the conditions of his supervised release.
C. Resentencing
Mr. Ward argues the district court improperly sentenced him to another
term of imprisonment, a new term of supervised release, and a new condition of
his supervised release. We review de novo the district court's sentencing decision
following revocation of supervised release. See United States v. Rockwell , 984
F.2d 1112, 1114 (10th Cir.), cert. denied , 508 U.S. 966 (1993).
The guidelines for the imposition and revocation of supervised release,
provide in relevant part that the district court may “revoke a term of supervised
release, and require the defendant to serve in prison all or part of the term of
supervised release ... without credit for time previously served on post-release
supervision” on a finding by a preponderance of the evidence that the defendant
“violated a condition of supervised release.” 18 U.S.C. § 3583(e)(3). In
addition, “[w]hen a term of supervised release is revoked and the defendant is
required to serve a term of imprisonment ..., the court may include a requirement
that the defendant be placed on a term of supervised release after imprisonment.”
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18 U.S.C. § 3583(h). These provisions plainly validate the district court’s
decision to impose both a prison term and another term of supervised release
following revocation.
We review separately, however, the court’s imposition of a new condition
of supervised release prohibiting Mr. Ward from being employed in the sale,
procurement, or transportation of farm or heavy equipment. A special condition
of supervised release prohibiting a defendant from engaging in a specified
occupation or profession must satisfy the following general requirements: (1) the
condition must reasonably relate to the circumstances of the offense and the
history and characteristics of the defendant; (2) the condition must involve no
greater deprivation of liberty than is reasonably necessary, and (3) the condition
must be consistent with any pertinent policy statements by the Sentencing
Commission. See 18 U.S.C. § 3583(d); U.S.S.G. § 5F1.5; United States v. Edgin ,
92 F.3d 1044, 1048 (10th Cir.1996), cert. denied, 519 U.S. 1069 (1997)
(interpreting § 3583(d) and § 5F1.5).
Our review of this case persuades us that the court’s decision to impose the
additional condition prohibiting Mr. Ward from selling farm or heavy equipment
is authorized by § 3583(h) and meets all the necessary requirements. Mr. Ward
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was originally convicted on various charges stemming from stealing and re-
selling farm and heavy equipment. A new condition of supervised release
limiting his involvement with this type of equipment is clearly a wise
preventative measure bearing a direct relationship to the nature and
circumstances of his original offense. It also involves no greater deprivation of
liberty than necessary to meet the needs of deterring future criminal conduct and
protecting the public. Accordingly, we affirm the sentence in its entirety.
CONCLUSION
For the reasons stated above, we AFFIRM the decision of the district
court.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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