United States v. Chavez Fox ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4093
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHAVEZ DEPAUL FOX, a/k/a Paul Fox,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:05-cr-00149-JAB-5)
Submitted: August 28, 2012 Decided: September 14, 2012
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John D. Bryson, WYATT, EARLY, HARRIS & WHEELER, LLP, High Point,
North Carolina, for Appellant. Ripley Rand, United States
Attorney, Sandra J. Hairston, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Chavez Depaul Fox pled guilty to one count of
conspiracy to distribute cocaine base. He was sentenced to a
term of seventy-seven months’ imprisonment to be followed by
five years of supervised release. While on supervised release,
Fox was arrested twice pursuant to traffic stops and found to be
in possession of marijuana. The district court revoked Fox’s
supervised release term and sentenced him to forty-three months’
incarceration. On appeal, Fox’s sole contention is that the
district court improperly relied on hearsay evidence in finding
that he violated the terms of his release in violation of Fed.
R. Crim. P. 32.1(b)(2)(C) and his rights under the Confrontation
Clause.
We review a district court’s decision to revoke
supervised release for abuse of discretion. United States v.
Pregent, 190 F.3d 279, 282 (4th Cir. 1999). A district court’s
ruling to admit hearsay evidence during a supervised release
revocation hearing is likewise reviewed for abuse of
discretion. United States v. Medford, 661 F.3d 746, 751 (4th
Cir. 2011), cert. denied, 132 S. Ct. 1729 (2012).
“Supervised release revocation hearings are informal
proceedings in which the rules of evidence, including those
pertaining to hearsay, need not be strictly applied.” United
States v. Doswell, 670 F.3d 526, 530 (4th Cir. 2012); see also
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Fed. R. Evid. 1101(d)(3) (excluding probation revocation
hearings from proceedings subject to the federal rules of
evidence). However, due process affords a releasee a limited
right “to confront and cross-examine adverse witnesses” at a
revocation hearing “unless the hearing officer specifically
finds good cause for not allowing confrontation.” Morrissey v.
Brewer, 408 U.S. 471, 489 (1972). Prior to admitting hearsay
evidence in a revocation hearing, “the district court must
balance the releasee’s interest in confronting an adverse
witness against any proffered good cause for denying such
confrontation.” Doswell, 670 F.3d at 530. Further, the due
process guarantee is embodied in the procedural rule that a
releasee is “entitled to . . . question any adverse witness
unless the court determines that the interest of justice does
not require the witness to appear.” Fed. R. Crim. P.
32.1(b)(2)(C).
Here Officer Hanes, who effectuated the first traffic
stop, explained to the court that his captain told him that
morning that he had received information that a “Paul Fox” was
in possession of three pounds of marijuana. When the officer
began explaining what the confidential source specifically said,
defense counsel objected and the government changed its
questioning to ask Officer Hanes what he did as a result of the
information he received.
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Upon our review, we find that the statement at issue
was not hearsay. “Fed. R. Evid. 801(c) defines an out of court
statement as hearsay if it is offered in evidence to prove the
truth of the matter asserted.” United States v. Love, 767 F.2d
1052, 1063 (4th Cir. 1985) (internal quotation marks omitted).
Out of court statements are not hearsay, however, “if [they are]
offered for the limited purpose of explaining why a government
investigation was undertaken.” Id. In Love, we rejected the
argument that a DEA agent’s testimony concerning information he
received from a fellow agent was hearsay, since the testimony
was offered “only to explain why the officers and agents made
the preparations that they did in anticipation of the
appellants’ arrest.” Id.Similarly here, Officer Hanes’ testimony concerning
the informant’s information was not offered for the truth of the
matter asserted, but rather to explain why he was looking for
Fox’s vehicle on the date in question. And even if the
statement qualified as hearsay, the two officers subsequently
testified to their first hand accounts of finding and seizing
marijuana from Fox’s vehicle. That testimony demonstrated the
reliability of the informant’s information, and reliability “is
a critical factor in the balancing test under Rule
32.1.” Doswell, 670 F.3d at 531. “If hearsay evidence is
reliable and the Government has offered a satisfactory
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explanation for not producing the adverse witness, the hearsay
evidence will likely be admissible under Rule 32.1.” Id.Because the information provided by the confidential informant
was clearly reliable, the evidence of the informant’s statement,
assuming it to be hearsay, would have been admissible in the
revocation proceeding.
We accordingly find no abuse of discretion and affirm
the district court’s judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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