United States v. Sherman Lavan Douglas ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 30, 2007
No. 06-12770 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 96-00022-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHERMAN LAVAN DOUGLAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 30, 2007)
Before TJOFLAT, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
In this appeal, we consider whether the district court abused its discretion in
revoking Sherman Lavan Douglas’s supervised release for engaging in criminal
activity while under supervision, where the court relied upon an electronic record
of Douglas’s judgment of conviction—generated by the court’s own electronic
filing system—rather than requiring the Government to produce a certified paper
copy of the judgment. We hold that it did not. Accordingly, we affirm the
judgment of the district court.
I.
On April 25, 2005, following 63-month federal prison sentence and while
serving a 36-month term of supervised release, Sherman Lavan Douglas was
arrested by Miami, Florida, police officers on state-law charges of burglary and
robbery. He allegedly committed those crimes on February 9, 2005.
Also on April 25, 2005, acting on the news of Douglas’s arrest, the United
States Probation Office filed in the district court a petition to revoke Douglas’s
supervised release. Douglas’s probation officer alleged that Douglas’s conduct on
February 9th violated the condition of his supervised release forbidding him from
committing a crime while under supervision.
On May 9th, the district court granted the probation officer’s petition for
action and issued a warrant for Douglas’s arrest. He was arrested on June1st.
Meanwhile, on June 17th, after the State of Florida had dismissed the burglary and
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robbery charges against him, a federal grand jury returned a two-count indictment
against Douglas for alleged Hobbs Act violations arising out of his February 9th
conduct. As a result of the federal indictment, Douglas’s probation officer filed a
superceding petition for revocation on June 30th, referencing the new indictment
and again alleging that Douglas had violated a condition of his probation by
“failing to refrain from violation of the law.” The district court scheduled a
revocation hearing, but the hearing was continued several times.
Before the revocation hearing could be held, Douglas was tried on the
federal charges. On March 27, 2006, a jury acquitted Douglas of conspiring to
violate the Hobbs Act, but convicted him of substantively violating it. Douglas
was not immediately sentenced.
Several weeks after his conviction, on April 19, 2006, the district court held
the scheduled revocation hearing to determine if Douglas had violated a condition
of his supervised release and, if so, to determine whether and how long he should
be incarcerated for the violation. At the revocation hearing, Douglas’s counsel
stated that Douglas denied having violated the Hobbs Act; nevertheless, Douglas’s
counsel conceded that the Hobbs Act charges had been the subject of a lengthy trial
and that Douglas had been convicted by a jury.
Probation Officer Stanley Branch testified at the hearing that he had filed the
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superceding petition to revoke Douglas’s supervised release on the basis of the
two-count federal indictment, which was returned against Douglas on June 17,
2005, and which was based upon an incident that had occurred on February 9,
2005. Branch testified that, in preparing to file the petition, he had viewed the
indictment and other documents related to the case on the district court’s electronic
filing system. According to Branch, the electronic docket sheet indicated that
Douglas had been convicted of the substantive Hobbs Act violation on March 27,
2006. The Government did not produce at the hearing a certified paper copy of the
judgment against Douglas.
Douglas objected to Branch’s testimony about the March 27th conviction on
the ground that such testimony constituted “hearsay” or “double hearsay” because
the Government could not produce a certified copy of the judgment. The district
court overruled Douglas’s hearsay objections.
The district judge then requested that her law clerk access the electronic
docket sheet in the case involving the 2005 Hobbs Act indictment.1 The judge
reviewed the indictment and the jury verdict, which reflected that Douglas had
been convicted of violating the Hobbs Act. On the basis of that information, the
1
Douglas had previously pleaded guilty to one substantive Hobbs Act violation in 1998
and was on supervised release for that crime when he was arrested in April 2005, thus giving rise
to the revocation proceedings that are the subject of this appeal.
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district court determined that the preponderance of the evidence established that
Douglas had violated a condition of his supervised release, as alleged in Branch’s
petition. The court sentenced Douglas to 24 months in prison, to be served
consecutively to the sentence imposed on Douglas for violating the Hobbs Act.2
II.
We review for abuse of discretion a district court’s determination that a
defendant has violated a condition of his supervised release. See United States v.
Frazier, 26 F.3d 110, 112 (11th Cir. 1994); see also United States v. Copeland, 20
F.3d 412, 413 (11th Cir. 1994). We are bound by the district court’s findings of
fact unless those findings are clearly erroneous. See United States v. Almand, 992
F.2d 316, 318 (11th Cir. 1993).
III.
Relying solely on our decision in United States v. Hofierka, 83 F.3d 357
(11th Cir. 1996), Douglas argues that, in order to find by a preponderance of the
evidence that a releasee has violated a condition of his supervised release, where
2
Four months after the revocation hearing, Douglas was sentenced to serve 124 months
in prison for the Hobbs Act violation. At the conclusion of the revocation hearing, Douglas
asked the district court to give him credit against his 24-month sentence to reflect the time that
he had spent incarcerated since his arrest in June 2005. The district court denied Douglas’s
request, and Douglas objected. To the extent that Douglas attempts to challenge the district
court’s ruling on that issue in this appeal, any such challenge has been waived by his failure to
address the issue in his opening brief. See Peebles v. Merrill Lynch, Pierce, Fenner & Smith
Inc., 431 F.3d 1320, 1326 n.4 (11th Cir. 2005).
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the Government and the district court rely exclusively on a judgment of conviction,
it is mandatory that the Government tender into evidence a certified copy of the
conviction. In Hofierka, we upheld the revocation of the appellant’s supervised
release, concluding that a judgment of conviction against the appellant on state-law
charges, stemming from conduct the appellant engaged in while on supervised
release, was sufficient evidence from which the district court could find a violation
of the supervised release condition forbidding the appellant from committing a
federal, state, or local crime. In so concluding, we stated: “A certified copy of a
conviction is proper evidence that a defendant violated a state or federal law and,
thereby, violated a condition of his or her supervised release.” Hofierka, 83 F.3d at
363. By not tendering into evidence in this case a “certified copy” of his
conviction, Douglas argues that “[t]he government failed to substantiate its claim
and meet its burden of proof that Appellant violated the terms and conditions of his
supervised release.” We disagree.
A.
Every term of supervised release ordered by a federal district court carries
with it, as a mandatory condition, a requirement that the defendant “not commit
another Federal, State, or local crime during the term of supervision.” 18 U.S.C.
§ 3583(d). If the district court finds by a preponderance of the evidence that the
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defendant has violated a condition of his supervised release, the court may revoke
the defendant’s release and sentence him to prison. 18 U.S.C. § 3583(e)(3).
“Evidence of a probation violation presented by the government must ‘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.’” United States v. Holland, 874 F.3d 1470,
1472-73 (11th Cir. 1989) (quoting United States v. Rice, 671 F.2d 455, 458 (11th
Cir. 1982)).
B.
According to Douglas, Branch’s testimony regarding Douglas’s indictment
and conviction was hearsay and thus inadmissible in the revocation hearing. We
have held that “[a]though the Federal Rules of Evidence do not apply in supervised
release revocation hearings, the admissibility of hearsay is not automatic” because
“[d]efendants involved in revocation proceedings are entitled to certain minimal
due process requirements.” United States v. Frazier, 26 F.3d 110, 114 (11th Cir.
1994). After overruling Douglas’s hearsay objection to Branch’s testimony, and
after the Government indicated that it did not have a certified copy of Douglas’s
judgment of conviction, the district judge asked to look at the electronic docket
sheet in the case against Douglas involving the Hobbs Act conviction. It is not
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clear from the record whether Douglas objected on hearsay grounds to the court’s
reliance on the judgment of conviction displayed on the electronic docket sheet,
but we need not determine whether an electronic judgment of conviction is hearsay
or whether it falls within a hearsay exception under the Federal Rules of Evidence.
That is because, even assuming that an electronic record of a judgment of
conviction is hearsay, the admissibility of such evidence depends not on an
application of the Federal Rules of Evidence (which are inapplicable to revocation
hearings) but on the district court’s consideration of two factors: (1) the balance
between the defendant’s Sixth Amendment right to confront witnesses against him
and the Government’s reasons for denying the defendant that right; and (2) the
reliability of the hearsay statement.3 Id.
C.
Douglas does not argue on appeal, and did not argue in the district court,
that the electronic record of his judgment of conviction is in any way unreliable.
He argues only that the judgment relied upon by the court was not a “certified
copy” and that in this Circuit, under Hofierka, the Government in a revocation
hearing must introduce into evidence a certified copy of the judgment of
conviction. We disagree with Douglas’s reading of Hofierka and hold that a
3
Douglas does not argue that he was deprived of his Sixth Amendment right of
confrontation.
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judgment of conviction recorded in a district court’s electronic filing system is a
presumptively reliable indication of a defendant’s prior conviction in the absence
of evidence to the contrary.
IV.
Because Douglas has offered no evidence to the contrary, we have no
trouble concluding the electronic judgment relied upon by the district court in this
case was sufficiently reliable to demonstrate that Douglas violated a mandatory
condition of his supervised release. Accordingly, the judgment of the district court
revoking Douglas’s supervised release is
AFFIRMED.
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