United States v. Marvin Edward Ross ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14113 ELEVENTH CIRCUIT
MARCH 15, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 02-00128-CR-T-30-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARVIN EDWARD ROSS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 15, 2010)
Before CARNES, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Marvin Edward Ross appeals the district court’s revocation of his supervised
release, pursuant to 18 U.S.C. § 3583(e)(3). On appeal, Ross argues that, in
admitting hearsay testimony at the revocation hearing, the district court failed to
balance his right to confrontation with the government’s asserted reasons for
denying confrontation. He also argues that this error was not harmless because the
hearsay testimony was unreliable and the district court based its decision solely on
the hearsay evidence.
A district court’s decision to revoke supervised release is reviewed for abuse
of discretion. United States v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994). We also
review evidentiary decisions for abuse of discretion. United States v. Novaton, 271
F.3d 968, 1005 (11th Cir. 2001).
“Although the Federal Rules of Evidence do not apply in supervised release
revocation hearings, . . . [d]efendants involved in revocation proceedings are
entitled to certain minimal due process requirements,” including “the right to
confront and cross-examine adverse witnesses.” Frazier, 26 F.3d at 114. “[I]n
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. Failure to perform the balancing test
violates the defendant’s due process rights. Id. “If admission of hearsay evidence
has violated due process, the defendant bears the burden of showing that the court
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explicitly relied on the information. The defendant must show (1) that the
challenged evidence is materially false or unreliable, and (2) that it actually served
as the basis for the sentence.” United States v. Taylor, 931 F.2d 842, 847 (11th
Cir. 1991) (quotation and citation omitted; emphasis in original). Thus, when the
properly considered evidence sufficiently supports the district court’s conclusion,
any failure to engage in the proper balancing test is harmless error. Frazier, 26
F.3d at 114.
Ross correctly asserts that the district court violated his due process rights by
failing to balance his right to confrontation with the government’s asserted reason
for denying confrontation. However, we conclude that this error was harmless
because the properly considered evidence, including Ross’s own admission,
supports the district court’s conclusion that Ross committed felony battery on his
girlfriend, Larisa Faye Gamble. Accordingly, we affirm the district court’s
revocation of Ross’s supervised release.
AFFIRMED.
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