United States v. George Anthony Zayas ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
August 16, 2005
THOMAS K. KAHN
No. 05-10505 CLERK
Non-Argument Calendar
________________________
D.C. Docket No. 03-20658-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEORGE ANTHONY ZAYAS,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(August 16, 2005)
Before BLACK, PRYOR and FAY, Circuit Judges.
PER CURIAM:
George Anthony Zayas appeals the district court’s revocation of his term of
supervised release, pursuant to 18 U.S.C. § 3583(e). Zayas argues on appeal that
the court, in relying on testimony from his probation officer on the contents of
another officer’s arrest report, (1) relied on improper evidence, in light of the
Supreme Court’s decision in Shepard v. United States, ___ U.S. ___, 125 S. Ct.
1254, 161 L. Ed. 2d 205 (2005); (2) violated his Sixth Amendment confrontation
rights, in light of the Supreme Court’s decision in Crawford v. Washington, 541
U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); and (3) violated his Fifth
Amendment due-process rights by failing to weigh his right to confront the
arresting officer against any good cause the government had for not producing
this witness during Zayas’s revocation hearing. For the reasons set forth more
fully below, we vacate and remand for a new revocation hearing.
In December 2003, Zayas was sentenced to six months’ imprisonment and
three years’ supervised release for conspiracy to possess with intent to distribute a
detectable amount of cocaine and marijuana, in violation of 21 U.S.C.
§§ 841(b)(1)(C), (D), and 846. As a mandatory condition of Zayas’s supervised
release, the court ordered that he refrain from committing further violations of the
law. On August 4, 2004, Zayas was released from incarceration and began serving
his term of supervised release.
2
Zayas’s probation officer, Sheila Martinez, subsequently filed a “petition for
warrant or summons for offender under supervision,” seeking the revocation of
Zayas’s supervised release. Officer Martinez alleged in her petition that Zayas had
violated a mandatory condition of his release, that is, that he refrain from further
violating the law, by engaging in disorderly conduct, as evidenced by his arrest by
the City of Miami Police Department, Florida, on August 28, 2004. At an
evidentiary hearing on this petition, Zayas did not challenge the allegation that he
had been arrested. Zayas, instead, contended that (1) his conduct had not
constituted disorderly conduct, and (2) the state charge had been dismissed.
As the government’s sole witness at this hearing, Officer Martinez testified
that, after Zayas had reported his arrest on the charge of disorderly conduct within
72 hours of the arrest, Officer Martinez had reviewed the arresting officer’s report
on the alleged offense conduct.1 Officer Martinez further testified that this arrest
report reflected that Zayas was arrested based on (1) his participation in a fight in
a restaurant that consisted of “swinging of fist[s] and kicking,” and (2) his refusal
to stop fighting. This report also included that, at the time of Zayas’s arrest, he
had a strong odor of alcohol on his breath, and his eyes were bloodshot and glassy.
1
The parties agree that the arrest report at issue was not introduced into evidence
during the revocation hearing.
3
Officer Martinez further testified that, according to Zayas, his arrest resulted
from his efforts to protect his girlfriend after a waiter pushed his girlfriend on a
dance floor of a restaurant. Officer Martinez also stated that (1) she had not
personally spoken with the arresting officer; and (2) the state, subsequent to the
arrest, had decided not to prosecute the matter. Moreover, Officer Martinez
agreed that Zayas, otherwise, had complied with all of the conditions of his
supervised release. On cross-examination, Officer Martinez conceded that Zayas’s
girlfriend had informed Officer Martinez that she had viewed a videotape of the
incident in question, which showed that the waiter was at fault.
Zayas’s girlfriend, Michelle Gonzalez, also testified during this evidentiary
hearing, stating that a video-tape of the incident in question, which she had viewed
with the arresting officer, reflected that (1) an employee of the restaurant grabbed
and pushed her while she was dancing on the dance floor, and (2) no “punching of
fists” occurred. On cross-examination, Gonzalez stated that the arresting officer
was not present during the altercation, and that the restaurant employee who
initiated the confrontation also was arrested. Gonzalez also clarified that the
incident involved primarily “restraining” and “shoving,” instead of punching.
Zayas then argued that, although hearsay evidence may be admissible
during revocation hearings, the court should not determine that he violated a
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condition of his supervised release solely based on Officer Martinez’s testimony
on another officer’s arrest report. Zayas explained that the government’s reliance
on this hearsay evidence was in violation of the Supreme Court’s decision in
Crawford, and that this constitutional violation had resulted in him being unable to
establish on cross-examination of the arresting officer that no “punching” or
“striking” had occurred. He also stated that this hearsay evidence was unreliable
because it was inconsistent with Gonzalez’s testimony. When the court responded
that Zayas, himself, could have subpoenaed the arresting officer’s testimony,
Zayas replied that the government carried the burden of proof.
Rejecting Zayas’s arguments, the court determined that he violated a
condition of his release by failing to refrain from further violating the law. In
making this finding, the court explained that it (1) was relying on the arrest report
in question as testified to by Officer Martinez, and (2) was “satisfied that the
information [was] credible and reliable.” The court ultimately revoked Zayas’s
term of supervised release and sentenced him to nine months’ supervised release,
to be followed by three additional years’ supervised release.
As discussed above, Zayas is arguing on appeal that the court violated his
Fifth Amendment due-process rights by relying on Officer Martinez’s testimony
on information contained in the arrest report, without first determining if good
5
cause existed that excused the government’s failure to call the arresting officer as
a witness at the revocation hearing. Zayas also asserts that this error resulted in a
violation of his Sixth Amendment right to confrontation, in light of the Supreme
Court’s decision in Crawford. In addition, Zayas contends for the first time on
appeal that the court’s exclusive reliance on this arrest report was erroneous in
light of the Supreme Court’s decision in Shepard.
A district court’s revocation of supervised release is reviewed for abuse of
discretion. United States v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994). A court
may revoke a term of supervised release if it “finds by a preponderance of the
evidence that the person violated a condition of supervised release.” United States
v. Almand, 992 F.2d 316, 318 n.6 (11th Cir. 1993) (quoting 18 U.S.C.
§ 3583(e)(3)); see also United States v. Robinson, 893 F.2d 1244, 1245 (11th Cir.
1990) (holding in a review of a probation revocation that “all that is required is
that the evidence reasonably satisfy the judge that the conduct of the probationer
has not been as good as required by the conditions of probation; evidence that
would establish guilt beyond a reasonable doubt is not required” (quotation
6
omitted)).2 Moreover, “[a] district court’s findings of fact are binding on this
[C]ourt unless clearly erroneous.” Almand, 992 F.2d at 318 (quotation omitted).
We, however, review de novo legal questions concerning the Constitution.
United States v. Noel, 231 F.3d 833, 836 (11th Cir. 2000). Moreover, when a
defendant raises an argument for the first time on appeal, our review is only for
plain error. United States v. Peters, 403 F.3d 1263, 1270 (11th Cir. 2005). “Under
plain error review, which is authorized by Fed.R.Crim.P. 52(b), federal appellate
courts have only a limited power to correct errors that were forfeited because they
were not timely raised in the district court.” Id. at 1270-71 (internal quotations
and marks omitted). Thus, we:
may not correct an error the defendant failed to raise in the district
court unless there is: (1) error, (2) that is plain, and (3) that affects
substantial rights. . . . Even then, we will exercise our discretion to
rectify the error only if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings.
Id. at 1271 (internal quotations and marks omitted).
As a preliminary matter, to the extent Zayas is arguing that a Shepard
violation occurred, the Supreme Court recently decided in Shepard that a
sentencing court may not rely on police reports in deciding whether a prior
2
We have concluded that the analysis of the revocation proceedings relating to
probation and supervised release are “essentially the same.” See Almand, 992 F.2d at 318 n.5.
7
conviction was a “generic burglary,” in the context of determining whether the
conviction is a “violent felony” under the Armed Career Criminal Act.3 Shepard,
543 U.S. at ___, 125 S.Ct. at 1263. Instead, when it is impossible to determine
from the face of the judgment or statute whether the prior conviction satisfies the
enhancement statute, the district court’s review “is limited to the terms of the
charging document, the terms of the plea agreement or transcript of colloquy
between judge and defendant in which the factual basis for the plea was confirmed
by the defendant, or to some comparable judicial record of this information.” Id.
Zayas, however, has failed to cite to authority in support of his general
argument that Shepard is applicable to revocation proceedings. Moreover,
because Zayas failed to raise this claim in the district court, our review is only for
plain error. See Peters, 403 F.3d at 1270. An error must be “plain” for this Court
to conclude that plain error occurred. See id. “Plain error is, by its terms, error
which is so obvious and substantial that it should not have been permitted by the
trial court even absent the defendant’s timely assistance in detecting it.” United
States v. Prieto, 232 F.3d 816, 823 (11th Cir. 2000). “[W]here neither the
Supreme Court nor this Court has ever resolved an issue, and other circuits are
3
The Armed Career Criminal Act sets a mandatory minimum 15-year sentence for a
defendant who is convicted of possessing a firearm, pursuant to 18 U.S.C. § 922(g), when the
defendant has three prior convictions for drug offenses or “violent felonies.” See 18 U.S.C.
§ 924(e).
8
split on it, there can be no plain error in regard to that issue.” United States v.
Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000). Because neither the Supreme
Court nor this Court has applied the Supreme Court’s holding in Shepard to
revocation proceedings, no plain error occurred in light of Shepard.
On the other hand, to the extent Zayas is contending that the court violated
his Sixth Amendment confrontation rights in light of Crawford, he preserved this
argument by raising it during his revocation hearing. Our review of this claim,
therefore, is de novo. See Noel, 231 F.3d at 836.
The Sixth Amendment instructs that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.”
U.S. Const. amend. VI. The Supreme Court determined in Crawford that prior
testimonial statements may be admitted only if the declarant is unavailable and the
defendant had a prior opportunity to cross-examine the declarant. Crawford, 541
U.S. at 68, 124 S.Ct. at 1374. In deciding Crawford, the Supreme Court overruled
its prior holding in Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2539, 65
L. Ed. 2d 597 (1980), that, under the Sixth Amendment confrontation clause,
statements of a witness unavailable at trial may be admitted if the hearsay bore
adequate “indicia of reliability.” See Crawford, 541 U.S. at 61-67, 124 S.Ct. at
1370-74. In doing so, the Supreme Court explained that, “[w]here testimonial
9
statements are involved, we do not think the Framers meant to leave the Sixth
Amendment’s protection to the vagaries of the rules of evidence, much less to
amorphous notions of ‘reliability.’” See id. at 61, 124 S.Ct. at 1370.
The Supreme Court, however, has determined that revocation proceedings
are not a part of a criminal prosecution. See Morrissey v. Brewer, 408 U.S. 471,
480, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972) (parole revocation); Gagnon v.
Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 1759-60, 36 L. Ed. 2d 656 (1973)
(probation revocation). Indeed, applying this reasoning, we have recognized that a
defendant is not guaranteed a speedy revocation hearing because revocation
hearings are not criminal prosecutions under the Sixth Amendment. See United
States v. Taylor, 931 F.2d 842, 848 (11th Cir. 1991). Because the Supreme
Court’s decision in Crawford involved a violation of the Sixth Amendment, it
arguably should not be construed as controlling in non-criminal proceedings
involving the revocation of supervised release.4
4
We have not decided in a published opinion whether Crawford is applicable to
proceedings involving the revocation of supervised release. As persuasive authority, the Second
Circuit in United States v. Aspinall, 389 F.3d 332 (2d Cir. 2004), abrogation on other grounds
recognized, United States v. Fleming, 397 F.3d 95, 99 n.5 (2d Cir. 2005), decided that Crawford,
which involved criminal proceedings, neither altered the requirements under Morrisey or
Scarpelli, nor suggested that the principles of the confrontation clause, as enunciated in
Crawford, were applicable to probation revocation proceedings. See id. at 342-43. In reaching
this conclusion, the Second Circuit emphasized the long recognized distinction between criminal
and revocation proceedings. See id. at 342. Similarly, the Eighth Circuit in United States v.
Martin, 382 F.3d 840 (8th Cir. 2004), decided that Crawford “involv[es] the contours of the
confrontation right in criminal prosecutions,” and, thus, does not apply to a revocation of
10
Nevertheless, we need not determine this constitutional claim because, as
the government concedes, remand is necessary due to the absence in the record of
evidence showing that the district court found that due cause existed to justify the
government’s failure to present either the testimony of the arresting officer or
another witness. See Pittman v. Cole, 267 F.3d 1269, 1285 (11th Cir. 2001)
(explaining that “[i]t is axiomatic that the federal courts should, where possible,
avoid reaching constitutional questions”). A defendant facing possible revocation
of supervised release, “although not entitled to all of the procedural protections
afforded a defendant in a criminal proceeding, is entitled to certain [due process]
protections.” United States v. Copeland, 20 F.3d 412, 414 (11th Cir. 1994) (citing
Morrissey, 408 U.S. at 480-82, 92 S.Ct. at 2599-2601; Gagnon, 411 U.S. at 782-
91, 93 S. Ct. at 1760-64).
Furthermore, although the Federal Rules of Evidence do not apply in
revocation proceedings, we have concluded as follows:
[T]he admissibility of hearsay is not automatic. Defendants involved
in revocation proceedings are entitled to certain minimal due process
requirements. . . . Among these minimal requirements is the right to
confront and cross-examine adverse witnesses.
supervised release. See id. at 844 n.4.
11
United States v. Frazier, 26 F.3d 110, 114 (11th Cir. 1994) (quotations omitted).
“Thus, in deciding whether or not to admit hearsay testimony, the court must
balance the defendant’s right to confront adverse witnesses against the grounds
asserted by the government for denying confrontation.” Id. Moreover, the hearsay
statement must be reliable. Id.
In Frazier, we determined that the district court erred because it, among
other things, did not engage in this balancing test. Id. We, however, concluded in
Frazier that this error was harmless because “the properly considered evidence
overwhelmingly demonstrated that [the defendant] breached the terms of his
supervised release.” Id.
In the instant case, similar to the facts in Frazier, the district court relied on
evidence that was either hearsay or double hearsay, that is, Officer Martinez’s
testimony on the contents of another officer’s arrest report, in deciding that Zayas
had violated a condition of his release by failing to refrain from further violating
the law. See Fed.R.Evid. 801©) (defining hearsay as “a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted”); United States v. Pendas-Martinez, 845
F.2d 938, 942-43 (11th Cir. 1988) (concluding that, even if one level of double-
hearsay statement was not hearsay, second level of hearsay was not excepted from
12
the hearsay rule and, therefore, was inadmissible). Moreover, in the absence of
any reason from the government on why it did not introduce the testimony of the
arresting officer or another witness, the court implicitly did not conduct the
required balancing test in Frazier.
However, unlike Frazier, the government has failed to show that this error
was harmless. The government concedes that it cannot cite to properly admitted
evidence that overwhelmingly established that Zayas had violated a condition of
his release by committing a further violation of the law. Indeed, Officer Martinez
agreed during the revocation hearing that she had not personally spoken with the
arresting officer. Officer Martinez also testified that Zayas had reported the arrest
within 72 hours of the arrest, and that Zayas, otherwise, had complied with all of
the conditions of his supervised release. In addition, contrary to the contents of
the arrest report, Gonzalez, who was present during the offense conduct, testified
that the incident involved primarily “restraining” and “shoving,” instead of
punching. Gonzalez stated, as well, that a video-tape of the incident reflected that
the restaurant employee initially grabbed and punched her, and that the arresting
officer was not present until after the incident.
Accordingly, we conclude that the court’s error in revoking Zayas’s term of
supervised release was not harmless. We, therefore, vacate and remand for the
13
district court to conduct a new revocation hearing, during which it should balance
Zayas’s right to confront adverse witnesses against any grounds that might exist
for denying this right.
VACATED AND REMANDED.
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