United States v. Mitchell , 429 F. App'x 271 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4083
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROYCE MITCHELL,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:09-cr-00186-RJC-DSC-1)
Argued: January 27, 2011 Decided: May 5, 2011
Before TRAXLER, Chief Judge, and KING and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Matthew Gridley Pruden, Noell Peter Tin, TIN, FULTON,
WALKER & OWEN, PLLC, Charlotte, North Carolina, for Appellant.
Mark A. Jones, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, for Appellee. ON BRIEF: Anne M. Tompkins,
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Royce Mitchell entered a guilty plea in the Western
District of New York on November 5, 2001, to Count III of an
indictment charging him with conspiracy to possess with intent
to distribute, and the actual distribution of, 500 grams or more
of cocaine. See 21 U.S.C. §§ 841(a)(1), 846. The district
court in New York accepted Mitchell’s plea on March 14, 2002,
and it sentenced him to seventy months of imprisonment, followed
by forty-eight months’ supervised release, which commenced on
April 13, 2007. On September 15, 2009, Mitchell was arrested in
Mecklenburg County, North Carolina, and charged with statutory
rape and taking indecent liberties with a child, each of which
is a felony under state law. 1
Upon the petition of the federal probation office in the
Western District of New York, the district court there issued a
1
A person eighteen or older may be convicted of statutory
rape in North Carolina by being found to have engaged in vaginal
intercourse or other sexual act outside of lawful marriage with
another person between the ages of thirteen and fifteen. See
N.C. Gen. Stat. § 14-27.7A. The crime is more serious if the
defendant is six or more years older than the minor. See § 14-
27.7A(a). A person sixteen or older commits the crime of taking
indecent liberties with a child fifteen or younger if, being at
least five years older than the child, he or she either
“[w]illfully takes or attempts to take any immoral, improper, or
indecent liberties . . . for the purpose of arousing or
gratifying sexual desire,” or “[w]illfully commits or attempts
to commit any lewd or lascivious act upon or with the [child’s]
body or any part or member of the body.” N.C. Gen. Stat. § 14-
202.1.
2
warrant for Mitchell’s arrest on September 21, 2009. On October
16, 2009, that court transferred jurisdiction over Mitchell to
the Western District of North Carolina, see 18 U.S.C. § 3605,
and he was ordered detained pending a hearing on the revocation
of his supervised release, see 18 U.S.C. § 3583(e)(3). The
hearing took place on November 25, 2009, pursuant to which the
district court entered a judgment on January 13, 2010, granting
the government’s petition and returning Mitchell to prison to
serve thirty months, to be followed by a new two-year term of
supervised release. By timely Notice filed January 15, 2010,
Mitchell appeals the district court’s judgment. For the reasons
set forth below, we affirm.
I.
A.
Fifteen-year-old Tiffany Wright was the adopted daughter of
Mitchell’s biological mother, Alma Wright. After Ms. Wright
died on January 25, 2009, Mitchell and his wife housed Tiffany
and applied to become her guardians. A few weeks after Ms.
Wright’s death, Tiffany became pregnant, and, on March 26, 2009,
Mitchell released her to a group facility, where she resided for
just a few days before being placed in a foster home on April 1,
2009. Conflict there resulted in her being transferred on May
27, 2009, to the care of a different foster parent, Susan
3
Barber. Tiffany confided to Ms. Barber that she believed
Mitchell to be the father of her child. Ms. Barber immediately
notified the state Department of Social Services, and she later
repeated the allegation to Tiffany’s therapist. Tiffany
confirmed her belief in Mitchell’s paternity to police detective
Theresa Johnson in a recorded interview on August 19, 2009.
Shortly after 6:00 a.m. on September 14, 2009, as she was
waiting on the street for her school bus, Tiffany was shot and
killed; Tiffany’s unborn daughter survived for a time before
also succumbing. Mitchell was identified as a “person of
interest” in the investigation, J.A. 574, 2 and, as mentioned
supra, he was charged with the two felonies against Tiffany.
The state dismissed both charges against Mitchell prior to his
November 25 revocation hearing in federal court.
Notwithstanding Tiffany’s representations to the contrary, DNA
testing ruled out Mitchell as the baby’s father.
B.
1.
The penalty statute applicable to Mitchell’s drug
trafficking convictions provided, in pertinent part, that “any
sentence imposed under this subparagraph shall . . . include a
2
Citations herein to “J.A. ___” refer to the contents of
the Joint Appendix filed by the parties to this appeal.
4
term of supervised release of at least 4 years.” 21 U.S.C.
§ 841(b)(1)(B). The sentence imposed in Mitchell’s case
complied fully with that requirement, and the judgment also
specified, as it was required to, see 18 U.S.C. § 3583(d), that
Mitchell “not commit another federal, state, or local crime”
while under supervision. J.A. 573, 575. Upon an allegation
that he violated that condition or any other of his supervised
release, Mitchell could be sent back to prison if the government
showed by a preponderance of the evidence that the violation
occurred. See 18 U.S.C. § 3583(e)(3); United States v. Copley,
978 F.2d 829, 831 (4th Cir. 1992).
2.
The district court so found in the case at bar, relying, in
the absence of physical evidence, on the statements Tiffany made
during her August 19, 2009 interview concerning her relationship
with Mitchell. Tiffany told Detective Johnson that, in February
2009, she had twice engaged in consensual sexual intercourse
with Mitchell, and that Mitchell was the father of her unborn
child. It is beyond dispute that Tiffany’s statements, if
credited, were amply sufficient to support a finding that
Mitchell more likely than not committed the offenses of
statutory rape and taking indecent liberties with a child, as
defined by North Carolina law. See supra note 1.
5
Tiffany’s out-of-court statements were hearsay, see Fed. R.
Evid. 801(c), and might have been excluded from the evidentiary
record had Mitchell been tried on the state charges, or had
proof of his conduct been at issue in a formal federal
proceeding. See N.C. Gen. Stat. § 8C-1, Rule 802; Fed. R. Evid.
802. Revocation hearings, however, are intended to be more
informal proceedings, at which the rules of evidence do not
strictly apply. See Fed. R. Evid. 1101(d)(3); United States v.
McCallum, 677 F.2d 1024, 1026 (4th Cir. 1982). Hearsay evidence
may be introduced at such hearings if it is “demonstrably
reliable.” McCallum, 677 F.2d at 1026 (citations omitted). The
decision to revoke Mitchell’s supervised release is committed to
the district court’s sound discretion, and, absent an abuse of
that discretion, not to be disturbed on appeal. See Copley, 978
F.2d at 831. In this case, the question of whether the district
court abused its discretion is inexorably bound to the
plausibility of its determination that Tiffany’s statements were
reliable.
3.
Mitchell contends that the statements were unreliable
because they were uncorroborated, unsworn, and inconsistent with
other statements Tiffany made, and because evidence of Tiffany’s
character detracted from her general credibility. We agree that
physical evidence or testimony from a knowledgeable third party
6
would have helped to ascertain the true extent of Tiffany’s and
Mitchell’s personal relationship, but it is hardly surprising
that such an intimate matter, especially one associated with
illegality and social taboos, would not be subject to ready
corroboration. We cannot say that, under these circumstances,
the government’s inability to independently verify Tiffany’s
statements render them inherently unreliable.
We regard in much the same fashion the inability to obtain
Tiffany’s allegations under oath. Had Tiffany been sworn prior
to her police interview, or had she been given an opportunity to
review the transcript and attest to it under penalty of perjury,
one could doubtlessly afford her statements incrementally more
credence. It does not follow, however, that the lack of oath or
affirmation renders Tiffany’s account unworthy of belief.
We need look no further than our prior decisions addressing
the proper application of the residual hearsay exception to
realize there is no per se prohibition against unsworn hearsay
statements being introduced into evidence. The evidence rules
permit the admission of such statements even at formal
proceedings insofar as they possess “circumstantial guarantees
of trustworthiness” equivalent to those embodied in the
traditional, codified exceptions. Fed. R. Evid. 807; see, e.g.,
Christopher Phelps & Assocs., LLC v. Galloway, 492 F.3d 532, 541
(4th Cir. 2007) (affirming district court’s acceptance into
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evidence of unsworn receipts for expenses and financial ledger
on ground that admission appropriate under business records or
residual exception); United States v. Dunford, 148 F.3d 385, 394
(4th Cir. 1998) (concluding that trial court did not abuse its
discretion by admitting into evidence, pursuant to residual
hearsay exception, unsworn statements of defendant’s teenage
daughters detailing abuse).
The district court explained at length why it considered
Tiffany’s statements, on balance, to be trustworthy. The court
emphasized that it listened to the audio recording itself, as
opposed to simply reviewing the bare transcript, and it found
Tiffany’s tone and demeanor to be sincere. She comported
herself as a typical teenager, according to the court, evincing
appropriate reluctance and embarrassment when discussing
sensitive topics. The court pointed out that Tiffany did not
passively signal agreement with the questions, but instead
corrected Detective Johnson’s misapprehensions and resisted
other opportunities to embellish the story. The court was
impressed with the level of detail Tiffany employed in
describing her sexual encounters with Mitchell, noting that
similarly detailed accounts of other interview topics had been
corroborated by third parties.
The district court recognized that evidence had been
presented of Tiffany’s questionable character, including “her
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hot temper, rebellious attitude, [and] occasional acts of
dishonesty.” J.A. 428. The court also acknowledged that her
statements had been impeached to a degree, with contradictory
evidence concerning “the number of sexual partners, the
frequency of sex acts, the use of condoms, the location of
sexual activity, and, importantly, whom she thought was the
father of her child.” Id. The court downplayed the latter
point, observing that “given the frequency of the sexual
activity, the changing calculation of due dates, based upon
ultrasound results, she could be wrong without knowingly being
false.” Id. at 433. Regardless of Tiffany’s vacillation on
certain matters, she consistently admitted to sexual relations
with Mitchell, 3 which, as the district court related, “lends
credibility to her statement that Mitchell had intercourse with
her twice.” Id. at 435.
The district court concluded that the evidence of Tiffany’s
character and of her occasional inconsistency in relating her
sexual history “goes to the weight the Court would assign to her
statements, and not their admissibility.” J.A. 428. The
court’s determination in that regard was clearly correct. See
3
In addition to disclosing her encounters with Mitchell to
Ms. Barber and Detective Johnson, Tiffany also told Mitchell’s
wife, precipitating the couple’s breakup, and she communicated
the same via a text message to her cousin.
9
United States v. Capers, 61 F.3d 1100, 1106 (4th Cir. 1995)
(confirming that, once proper evidentiary foundation shows
statement may be considered authentic, questions concerning
witness’s reliability “go to the weight of the evidence, not its
admissibility” (citation omitted)); Williams v. McKenzie, 576
F.2d 566, 571-72 (4th Cir. 1978) (adjudging “weak”
identification testimony of elderly crime victim in poor
physical and mental condition sufficiently reliable to be
admissible, with weight to be assessed by jury). The district
court thoroughly documented why it chose to credit Tiffany’s
statements incriminating Mitchell, and, inasmuch as the court’s
reasoning appears sound and is supported by the record, we
discern no error. The district court reasonably relied on
Tiffany’s statements to support its decision to revoke
Mitchell’s supervised release, and did not thereby abuse its
discretion.
II.
A.
Mitchell also contends that he is entitled to a new hearing
on the ground that the district court refused to consider
evidence that he passed a polygraph test wherein he denied
having engaged in sex with Tiffany, or having ever touched her
for a sexual reason. Taking the position, perhaps, that what is
10
sauce for the goose is sauce for the gander, Mitchell maintains
that the same rationale supporting the court’s consideration of
Tiffany’s statements applies to his polygraph evidence.
In accordance with our authorities construing the Federal
Rules of Evidence, which, as we have noted, do not govern
revocation hearings, “[p]olygraph results are generally
inadmissible.” United States v. Blake, 571 F.3d 331, 346 (4th
Cir. 2009) (citation omitted). Unlike hearsay statements, as to
which we made allowance for appropriate use in hearings like
Mitchell’s, see United States v. McCallum, 677 F.2d 1024 (4th
Cir. 1982), there is no similar precedent permitting the
admission of polygraph results as substantive evidence in any
proceeding. The lack of enabling authority is hardly
surprising. The Supreme Court has commented that “there is
simply no consensus that polygraph evidence is reliable,” United
States v. Scheffer, 523 U.S. 303, 309 (1998), a state of affairs
that would seem to preclude such evidence meeting the McCallum
test of “demonstrable reliability.”
The McCallum threshold would be even more difficult to meet
in this case, where the polygraph was administered outside the
government’s presence, giving it no opportunity to assist in
setting the parameters of the examination or observe the manner
of its conduct. Under those circumstances, the district court
correctly observed that Mitchell’s polygraph examination bore
11
“no indicia of reliability,” concluding that the results “would
not aid its decisional process.” J.A. 386.
Moreover, even if the polygraph results in this case could
be demonstrated reliable, they would be relevant solely as
evidence of Mitchell’s character for truthfulness, and
admissible, if at all, only after the government attacked his
character. See Fed. R. Evid. 608(b); United States v. A & S
Council Oil Co., 947 F.2d 1128, 1134 (4th Cir. 1991) (reciting
that circuit precedents “preclude . . . bolstering the
credibility of a witness through evidence that the witness has
taken a polygraph test”). No such attack occurred at the
revocation hearing, insofar as Mitchell did not testify.
Mitchell nonetheless maintains that the Supreme Court’s
decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), opened the door for us to reconsider our
precedent and develop a new framework to evaluate polygraph
evidence. In United States v. Prince-Oyibo, however, we
reaffirmed our commitment to our pre-Daubert rule barring the
admission of polygraph results in most instances. See 320 F.3d
494, 501 (4th Cir. 2003). That being the case, the district
court did not err in faithfully adhering to precedent and
declining to consider Mitchell’s polygraph evidence.
12
B.
Finally, it came to light after the revocation hearing that
the police had been issued a warrant to obtain a DNA sample from
Adrian Powell, whom police suspected in Tiffany’s murder, upon
his return to North Carolina from New York to testify on
Mitchell’s behalf. Mitchell filed a motion to reopen the
hearing on the ground that the government’s failure to provide
the defense with this information violated the disclosure
requirements of Brady v. Maryland, 373 U.S. 83 (1963), and
United States v. Bagley, 473 U.S. 667 (1985). Mitchell
contended then, as now, that the police’s scrutiny of Powell,
based on the likelihood that he was the resentful father of
Tiffany’s baby and was thus motivated to harm her, would have
served to impeach Tiffany’s assertions during her interview that
Mitchell was the child’s father.
The district court denied the motion, explaining that
“Wright’s statements regarding the paternity of the child . . .
were discredited even without hearing the additional
information.” J.A. 564. As the court aptly indicated,
“Powell’s potential paternity has no bearing on . . . whether
[Mitchell] violated his supervised release terms by also having
sex with Wright.” Id. at 565. The district court was plainly
right on both counts, and it correctly declined to reopen the
revocation hearing to receive evidence that could have no effect
13
on the ultimate disposition of the matter. See Brady, 373 U.S.
at 87 (confining prosecution’s duty of disclosure to that
favorable evidence “material either to guilt or punishment”).
III.
Pursuant to the foregoing, the judgment of the district
court is affirmed.
AFFIRMED
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