United States v. Cancer (Perry) ( 2019 )

18‐1975
United States v. Cancer (Perry)
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 13th day of December, two thousand nineteen.
PRESENT: DENNIS JACOBS,
ROBERT D. SACK,
PETER W. HALL,
Circuit Judges.
_____________________________________
United States of America,
Appellee,
v. No. 18‐1975
Elijah Cancer, AKA Sleeze, AKA Sleezy, Mundhir
Connor, AKA Montana, AKA Major, Wister Farmer,
AKA Wisk, AKA Wist Daddy, AKA Wister, Eric
Foster, AKA E‐Nasty, Owen Furthman, AKA Diz,
Justin Gaddy, AKA J‐Black, Ladawn Harris, AKA
Nana, AKA Nash, Anairian Kittle, AK, Michelle
Knickerbocker, Kwon Lillard, AKA Killah, Kolby
Martin, AKA HG, AKA Hollywood, AKA Holly G,
AKA H, Holla Day, Jomeek McNeal, AKA Streets,
AKA Meek Meek, Winfield C. Nicholson, AKA
Champ, AKA Bamp, Alfonzo Parker, AKA Phat Phat,
AKA Fat Fat, AKA Phatz14, Kenyan Poole, AKA KP,
Dushawn Pough, AKA Sixx, AKA Six, Derrick Ruffin,
AKA D‐Black, Elijah Sims, AKA E‐Head, AKA E,
Nahmel Stratton, AKA Kid, AKA Kidco, AKA Biddy,
Nakeem Stratton, AKA Bayshawn, AKA Little Bay,
Dyjuan Tatro, AKA Dy, Kanan Tatro, AKA Kanya,
AKA Kane, AKA BK, Charles Thompson, AKA
Chuck, AKA Bula, Terrence Anthony, AKA T‐Black,
AKA Blacc,
Defendants,
Marcel Perry, AKA Juxx, AKA Jooks,
Defendant‐Appellant.
_____________________________________
For Appellant: JOHN B. CASEY, Casey Law LLC, Cohoes,
New York.
For Appellee: PAUL D. SILVER, Richard D. Belliss, Assistant
United States Attorneys, for Grant C.
Jaquith, United States Attorney for the
Northern District of New York, Albany,
New York.
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Appeal from a judgment of the United States District Court for the Northern
District of New York (Sharpe, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Defendant‐Appellant Marcel Perry was found to have violated a condition
of his supervised release by possessing over two ounces of marijuana, in violation
of N.Y. Penal Law § 221.15. The district court revoked Perry’s term of supervised
release, sentencing him to 12 months and a day imprisonment, to run concurrent
with Perry’s state imprisonment for a related parole violation, followed by 47
months of supervised release. Perry challenges the district court’s violation
holding on the basis that the court improperly relied on hearsay testimony in
reaching its conclusion. Perry further challenges his 47‐month term of
supervised release as substantively unreasonable because it will not begin to run
until he is released from state custody. We assume the parties’ familiarity with
the underlying facts, the procedural history of the case, and the issues on appeal.
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I.
Perry contends that the district court abused its discretion in finding that he
violated a condition of his supervised release by engaging in new criminal
conduct. In support, Perry argues that the testimony of Detective Regan, the sole
substantive witness for the government at the revocation hearing, included
inadmissible hearsay and that without those statements the evidence was
insufficient to prove it was more likely than not that Perry committed criminal
possession of marijuana in the fourth degree.
A district court may revoke supervised release and impose a term of
imprisonment if it finds by a preponderance of the evidence that the defendant
violated a condition of supervised release. 18 U.S.C. § 3583(e)(3); United States v.
Glenn, 744 F.3d 845, 847‐48 (2d Cir. 2014). “The preponderance of the evidence
standard requires proof that the defendant’s violation of supervision was more
likely than not.” United States v. Edwards, 834 F.3d 180, 199 (2d Cir. 2016). “We
review such a preponderance finding only for abuse of discretion, which can
consist of an error of law or a clearly erroneous assessment of the facts.” Id. (citing
Glenn, 744 F.3d at 847).
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We also “accord strong deference to a district court’s credibility
determinations, particularly where that court based its findings on such
determinations.” United States v. Carlton, 442 F.3d 802, 811 (2d Cir. 2006). In
overruling one of Perry’s objections on hearsay grounds, the district court
commented that “[o]rdinary rules of evidence do not apply for revocation hearing
[sic]. All that’s essential is some sense of reliability which is a judicial
determination as to basis, among others, for my ruling this morning.” Appellant
App. at 36. The record is not clear what the district court’s rationale for
admissibility was, but we see two possibilities: that the challenged statements
were not hearsay, or that even if they were hearsay, they were admissible.
We need not speculate as to whether the district court thought Detective
Regan’s testimony was or was not hearsay. If it was hearsay, as Perry insists, the
district court was permitted to rely upon it. The Federal Rules of Evidence do
not apply at supervised release revocation hearings, but a district court’s findings
must still be based on “verified facts” and “accurate knowledge.” United States v.
Bari, 599 F.3d 176, 178‐79 (2d Cir. 2010) (in relaxing evidentiary constraints in
revocation hearings, “verified facts” and “accurate knowledge” are the
touchstones of our inquiry). Hearsay evidence may be admissible in a violation
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of supervised release hearing if the district court determines that “good cause”
exists, balancing the defendant’s interest in confronting a declarant against the
government’s reasons for not producing the declarant‐witness and the reliability
of the proffered statement. See Fed. R. Crim. P. 32.1(b)(2)(C); United States v.
Williams, 443 F.3d 35, 45 (2d Cir. 2006); see also Morrisey v. Brewer, 408 U.S. 471, 489
(1972) (due process right to confront and cross‐examine adverse witnesses excused
where “the hearing officer specifically finds good cause for not allowing
confrontation”).
In explaining that its ruling was based on “some sense of reliability . . .
among other[] [bases],” Appellant App. at 36, we understand the district court
may be saying that, even if the objected‐to statements were hearsay, they would
be admissible under the lowered standard that applies to revocation proceedings.
It is not clear from the record that the district court admitted Detective Regan’s
testimony after balancing the precise factors we have mandated be considered.
See United States v. Chin, 224 F.3d 121, 124 (2d Cir. 2000) (“We hold that the district
court must balance the defendant’s right of confrontation with the government’s
grounds for not allowing confrontation, and with the reliability of the evidence
offered by the government.”) (internal citations omitted). “In any event, a district
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court’s failure to comply with the interest‐of‐justice‐determination requirement of
Rule 32.1(b)(2)(C) and Morrissey/ [Gagnon v.] Scarpelli[, 411 U.S. 778, 782, 93 S. Ct.
1756, 36 L. Ed. 2d 656 (1973)] is subject to harmless‐error analysis.” United States
v. Aspinall, 389 F.3d 332, 346 (2d Cir. 2002), abrogated on other grounds by United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), as recognized in
United States v. Fleming, 397 F.3d 95, 99 & n. 5 (2d Cir. 2005).
While it would have been helpful if the district court walked through the
good cause analysis that due process and Rule 32.1(b)(2)(C) require, even if the
district court abused its discretion by not explicitly engaging in this interest‐
balancing, any error would be harmless. See United States v. Williams, 443 F.3d 35,
46 (2d Cir. 2006) (“We review the court’s balancing of the Rule 32.1 factors for
abuse of discretion.”). The balance of interests comes out in favor of admissibility
– while Perry’s interest in confronting Chromczak is substantial and the
government’s interest, from this record, in not calling Chromczak to testify
appears to be minimal, the reliability of Detective Regan’s testimony as to the
results of the field‐testing and weighing is strong since he was present at the site
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of the testing.1 See Aspinall, 389 F.3d at 346 (holding that any error by failure to
engage in interest balancing was “entirely harmless” given the “strong evidence”
of the reliability of documents that outweighed the defendant’s interest in cross‐
examination).
In holding that Detective Regan’s testimony is admissible, we wish to
emphasize that it is generally not our position to engage in “good cause” balancing
in the first instance and that district courts would be well advised to undertake a
careful analysis when admitting testimony that may be inadmissible hearsay if not
for the fact that the proceeding is a revocation hearing. Nor do we suggest that
hearsay with “some sense of reliability” will always outweigh a defendant’s right
in confronting an adverse witness in his revocation hearing. Indeed, this is a rare
case where the reliability of the statement (if it is hearsay) is so strong that it is
admissible absent a material government interest. We simply hold that, in this
particular context, the district court did not err in admitting Detective Regan’s
testimony, and we cannot say that it was an abuse of discretion for the district
1 It is worth noting that Perry had a full opportunity to cross‐examine Detective Regan
to determine whether he was testifying as to his own observations or to elicit further
explanation of the circumstances surrounding the field‐testing and weighing but failed
to do so.
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court to rely on it to find that Perry violated a condition of supervised release by
engaging in new criminal conduct.2
II.
Second, Perry contends that it was error for the district court to admit into
evidence a police report authored by a non‐testifying detective without first
finding good cause to admit the hearsay testimony. Any error in the district
court’s admission of the police report into evidence was harmless, because the
admissible testimony of Detective Regan was sufficient to support the district
court’s revocation of supervised release.
2 In his reply brief, Perry argues that the government did not offer evidence to
demonstrate that he knew the weight of the marijuana he possessed and contends that
this is fatal to the government’s case, asserting a violation of New York State law.
“[A]rguments not made in an appellant’s opening brief are waived even if the appellant
pursued those arguments in the district court or raised them in a reply brief.” JP
Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 428 (2d Cir.
2005). Perry’s argument is nonetheless foreclosed by amendments to New York’s drug
laws, which make clear that a defendant is not required to have knowledge of the
weight of a substance, see Dixon v. Miller, 293 F.3d 74, 79 n.2 (2d Cir. 2002) (“The New
York legislature . . . amend[ed] the law [for crimes committed after June 10, 1995] to
eliminate knowledge of weight as an element of any drug offense. See N.Y. Penal Law §
15.20(4) (1997).”), nor does it matter to the extent his violation is also one of federal law.
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III.
Third, Perry argues that his 47‐month term of supervised release is
substantively unreasonable because it will not begin until he is released from
state custody, where he is serving a term of imprisonment for a related parole
violation. Perry contends that, without getting credit for this concurrent state
custody, his term of supervised release will essentially exceed the maximum
number of months that can be imposed for his supervised release following a
revocation under 18 U.S.C. § 3583(e)––here, sixty months––and is therefore
unreasonable.
“A term of supervised release does not run during any period in which the
person is imprisoned in connection with a conviction for a Federal, State, or local
crime unless the imprisonment is for a period of less than 30 consecutive days.”
18 U.S.C. § 3624(e); see also United States v. Johnson, 529 U.S. 53, 57 (2000) (“[A]
supervised release term does not commence until an individual ‘is released from
imprisonment’.”). In United States v. Bussey, we explained that a term of
incarceration that results from a revocation of parole in New York is served “‘in
connection with’ [a defendant’s] conviction for a state crime” for the purposes of
18 U.S.C. § 3624(e). 745 F.3d 631, 633 (2d Cir. 2014) (citation omitted). We will
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not create a conflict between 18 U.S.C. § 3583, which governs the length of
supervised release the district court may impose, and 18 U.S.C. § 3624(e), which
requires tolling of the term of supervised release while Perry is imprisoned, by
finding that the latter imposes an implicit limitation on the district court’s
authority under 18 U.S.C. § 3583. Perry’s term of supervised release is not
substantively unreasonable solely because it comports with applicable federal
statutes.
The 47‐month term of supervised release is not otherwise unreasonable.
“We will . . . set aside a district court’s substantive determination only in
exceptional cases where the trial court’s decision cannot be located within the
range of permissible decisions.” United States v. Cavera, 550 F.3d 180, 189 (2d
Cir. 2008) (en banc) (internal quotation marks and citation omitted). “A
sentencing judge has very wide latitude to decide the proper degree of
punishment for an individual offender and a particular crime.” Id. at 188.
Here, the district court, after considering the sentencing factors under 18 U.S.C. §
3553(a), Perry’s arguments in favor of reducing the supervised release term to
account for the time he will be imprisoned for his state parole revocation, and the
federal interest that has to be accommodated for the supervised release violation,
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imposed a reasonable sentence which did not exceed the statutory maximum
under 18 U.S.C. § 3583. There is no indication that the district court’s decision
was outside of the range of permissible decisions, id. at 189, and we find no
substantive error in the sentence imposed.
***
We have considered Appellant’s remaining arguments and find them to be
without merit. We hereby AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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