United States v. Ramey , 264 F. App'x 293 ( 2008 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 06-5226
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    RODNEY LEE RAMEY,
    Defendant - Appellant.
    Appeal from the United States District Court for the Southern
    District of West Virginia, at Huntington.  Robert C. Chambers,
    District Judge. (3:05-cr-00067)
    Argued:   December 7, 2007              Decided:     February 15, 2008
    Before WILKINSON and SHEDD, Circuit Judges, and John Preston
    BAILEY, United States District Judge for the Northern District of
    West Virginia, sitting by designation.
    Affirmed by unpublished per curiam opinion.
    ARGUED: Jane Moran, Williamson, West Virginia, for Appellant.
    Louise Anna Forbes, Assistant United States Attorney, OFFICE OF THE
    UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
    ON BRIEF: Charles T. Miller, United States Attorney, Stephanie L.
    Haines, Assistant United States Attorney, OFFICE OF THE UNITED
    STATES ATTORNEY, Charleston, West Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Rodney Lee Ramey (Ramey) appeals the district court’s order
    revoking his term of supervised release and sentencing him to ten
    months’ imprisonment.        Ramey contends that the district court
    abused its discretion by revoking his term of supervised release
    because the court improperly relied upon uncorroborated hearsay
    testimony that violated his Sixth Amendment right to confront
    adverse witnesses. Ramey further contends that his Sixth Amendment
    rights were violated by the admission into evidence of statements
    he   made   to   an   investigator   without   the   presence   of   counsel.
    Finding that the evidence was sufficiently reliable to authorize
    the revocation of supervised release, we affirm.
    In May 2005, Ramey pled guilty to one count of aiding and
    abetting the distribution of cocaine, in violation of 
    21 U.S.C. § 841
    (a)(1) (2000) and 
    18 U.S.C. § 2
     (2000), and was sentenced to six
    months’ imprisonment, followed by a three-year term of supervised
    release.     Ramey began serving his term of supervised release on
    February 3, 2006.        In September 2006, Ramey’s probation officer
    filed a petition with the district court, asking the court to
    revoke Ramey’s supervised release because he submitted a false
    monthly report and failed to notify his probation officer of his
    change of address.        In October 2006, Ramey’s probation officer
    filed an amendment to the earlier petition, alleging that Ramey had
    2
    left the judicial district without permission and used a stolen
    credit card.
    At the revocation hearing, held November 13, 2006, Ramey’s
    probation officer testified that Ramey, his girlfriend, and their
    child   had   been   living    with   Ramey’s       father,    Richard     T.   Ramey
    (Richard).     The officer testified that on August 28, 2006, she
    received a telephone call from Richard reporting that Ramey was no
    longer living at the residence.         When the officer received Ramey’s
    monthly   report     for   September,       Ramey    indicated      that    he,    his
    girlfriend, and their daughter were still residing with Richard.
    The probation officer again spoke with Richard, who confirmed that
    Ramey had not been residing in his home since August 25, 2006.
    Richard further explained that Ramey had been asked to leave his
    home because he had stolen Richard’s credit card, activated the
    card, and made $5,000 in withdrawals and purchases.
    Postal    Inspector      Speck   also    testified       at    the   revocation
    hearing   concerning       his   investigation         of     the     credit      card
    allegations.       He testified that, according to the credit card
    company, the card was jointly issued to Richard and the defendant’s
    brother, Richard Ramey II.            The card was mailed to defendant’s
    father at his residence on August 7, 2006, and was activated on
    August 16 by someone claiming to be Richard who was calling from
    Richard’s telephone number.            Thereafter, the card was used on
    3
    multiple occasions in Eleanor, West Virginia and Proctorville,
    Ohio.
    Inspector     Speck    also     presented     video     images    from    a
    surveillance camera at a Proctorville, Ohio bank where a cash
    withdrawal was made.       The surveillance video depicted both a male
    and female present when the card was used.                   Inspector Speck
    obtained photographs of Ramey, compared the images, and found them
    to be “consistent.”        Inspector Speck also reported that Richard
    filed a police report with the Putnam County Sheriff’s Office on
    August 31, 2006.
    Inspector    Speck     interviewed    Ramey    on     October    6,   2006,
    concerning the credit card. Ramey admitted that he was residing at
    his father’s home at the time of the credit card usage, but that he
    had been asked to leave when Richard accused him and his girlfriend
    of stealing the credit card.
    Inspector   Speck     also    interviewed   Ramey’s     girlfriend,      who
    admitted that she had used the credit card, but that Richard had
    given it to her to dissuade her from reporting sexual advances made
    by Richard.     In the same interview, she contrarily stated that
    using the credit card was “stupid” and that she should not have
    done it.      The girlfriend admitted that she was shown in the
    surveillance video using the credit card, but that she did not know
    the identity of the male in the video.           She told Inspector Speck
    that she and her cousin had driven Ramey’s car to the bank, but
    4
    that Ramey was not with them.         Rather, she claimed the male was an
    unnamed and unknown individual that she and her cousin had “picked
    up.”
    Ramey also testified at the revocation hearing, confirming
    that his father had asked his girlfriend and their daughter to
    leave the home on August 25, 2006, but claiming that he did not
    leave until September 9.         Ramey stated that it was simply a
    “mistake”    when   he   indicated    on   his   monthly    report     that    his
    girlfriend    and   daughter   were    still     residing   in   the    home    on
    September 4, 2006.       Ramey denied ever seeing the credit card.
    At the close of the hearing, the district court found that
    Ramey had violated the terms of his supervised release, revoked
    that release, and sentenced him to ten months’ incarceration.
    This court reviews a district court’s decision to revoke a
    defendant’s supervised release for an abuse of discretion.               United
    States v. Copley, 
    978 F.2d 829
    , 831 (4th Cir. 1992).                 A district
    court need only find a violation of a condition of supervised
    release by a preponderance of the evidence. 
    18 U.S.C. § 3583
    (e)(3)
    (2000).     We do not review the district court’s assessment of
    witness credibility. See United States v. Stevenson, 
    396 F.3d 538
    ,
    542-43 (4th Cir.), cert. denied, 
    544 U.S. 1067
     (2005).
    Ramey contends that he was denied his right to counsel when he
    was questioned by Inspector Speck.         The right to counsel, however,
    attaches only after the commencement of formal charges against a
    5
    defendant. See Moran v. Burbine, 
    475 U.S. 412
    , 431 (1986).    This
    right is “offense specific,” and even if a defendant has a right to
    counsel for one offense, this right does not automatically attach
    to other offenses for which he has yet to be charged.   See McNeil
    v. Wisconsin, 
    501 U.S. 171
    , 175 (1991); see also Texas v. Cobb, 
    532 U.S. 162
    , 172-73 (2001) (right only includes uncharged offenses
    that constitute “same offense” as previously charged offense).   In
    this case, Inspector Speck spoke to Ramey about the credit card
    theft on October 6, 2006, which was prior to the filing of the
    amended violation report on October 17, 2006.   While the original
    violation report was filed on September 21, 2006, none of the
    reported violations in that report were based on the alleged credit
    card theft.   Therefore, any questioning by Inspector Speck was
    related to an uncharged offense for which the right to counsel had
    not yet attached.
    Ramey next objects to the district court’s reliance on hearsay
    evidence, contending that the evidence was insufficient and that
    his right to confront his accusers was violated.        Supervised
    release revocation hearings are informal proceedings in which the
    rules of evidence need not be strictly observed.     Fed. R. Evid.
    1101(d)(3); United States v. McCallum, 
    677 F.2d 1024
    , 1026 (4th
    Cir. 1982); see also United States v. Cates, 
    402 F.2d 473
    , 474 (4th
    Cir. 1968).   Thus, the hearsay nature of evidence does not render
    its admission error.   Instead, the inquiry focuses on whether the
    6
    evidence was sufficiently reliable.    United States v. McCallum,
    
    supra at 1026
    .
    While the Federal Rules of Evidence regarding hearsay do not
    apply at a supervised release revocation hearing, a defendant
    retains the right 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.l(b)(2)(C); See also
    Morrissev v. Brewer, 
    408 U.S. 471
    , 489 (1972) (minimum requirements
    of due process at revocation hearing include the right to confront
    and cross-examine adverse witnesses unless there is good cause for
    not allowing confrontation).   The 2002 Advisory Notes to Fed. R.
    Crim. P. 32.1 explain that this provision “recognizes that the
    court should apply a balancing test at the hearing itself when
    considering the releasee’s asserted right to cross-examine adverse
    witnesses.”
    At the hearing, Ramey timely interposed a hearsay objection,
    claiming that the Government’s presentation of the case through the
    testimony of the probation officer and Inspector Speck deprived him
    of the opportunity to confront all adverse witnesses. The district
    court overruled the objection, noting that the rules of evidence
    relating to hearsay did not apply to revocation hearings.       In
    making its determination, the district court did not inquire as to
    the availability of the witnesses or apply any balancing test
    pursuant to Fed. R. Crim. P. 32.l(b)(2)(C).   The probation officer
    7
    was permitted to testify as to her telephone conversations with
    Ramey’s father, while Inspector Speck testified regarding the
    statements and admissions made by Ramey’s girlfriend.                     Neither was
    called to testify by either party.
    From the record, it is clear that the Government could not
    have called Ramey’s father to testify because he was deceased at
    the time of the hearing.                However, there was no indication as to
    why Ramey’s girlfriend was not called.                   Despite this omission, it
    does not appear that Rule 32.1(b)(2)(C) would have even applied to
    her testimony, as her statements were not directly adverse to
    Ramey’s claim of innocence.                The girlfriend’s testimony did not
    implicate Ramey as a guilty party, as she told Inspector Speck that
    Ramey had not gone to the ATM with her and that he had not stolen
    the credit card.            Because her testimony, if believed, would not
    have       served    to    implicate      Ramey,    Rule    32.l(b)(2)(C)    is   not
    applicable,         as    the    rule   only   relates     to   adverse   witnesses.*
    Because Ramey’s father could not have been present and Ramey’s
    girlfriend          did    not    qualify      as   an     adverse   witness,     Rule
    32.l(b)(2)(C) was not applicable to the testimony regarding these
    conversations.
    *
    It should be noted that, in the end, the girlfriend’s
    testimony actually hurt Ramey’s case, as the district court relied
    on her admission that she was at the ATM as circumstantial evidence
    that Ramey was the other individual present. However, the mere
    fact that her testimony was not beneficial to Ramey’s case does not
    render her an adverse witness.
    8
    While Rule 32.1(b)(2)(C) does not apply in this case, the
    question remains as to whether the hearsay testimony that was
    presented by the probation officer and Postal Inspector Speck was
    reliable.   See McCallum, 
    677 F.2d at 1026
    .       Hearsay testimony may
    be shown to be reliable by extrinsic corroborating evidence or
    other indicia showing the statement to be inherently reliable. See
    United States v. Scheele, 
    231 F.3d 492
    , 500, n.5 (9th Cir. 2000).
    A court may not admit unsubstantiated or unreliable hearsay as
    substantive evidence at revocation hearings.        Crawford v. Jackson,
    
    323 F.3d 123
    , 128 (D.C. Cir. 2003).
    In this case, there was sufficient extrinsic evidence to
    substantiate the hearsay testimony.        Richard Ramey’s report that
    Ramey was expelled from his home on August 25 due to his theft of
    the credit card is corroborated by his report of the theft to the
    credit card company, his report to the Putnam County Sheriff’s
    Office, the girlfriend’s admission that she used the credit card,
    and Ramey’s admission that he had been asked to leave the home on
    August 25, 2006, due to the accusation of the credit card theft.
    As   for   the   statements   made   by   Ramey’s   girlfriend,   who
    allegedly admitted to Inspector Speck that she was one of the
    individuals shown on the ATM images using Richard’s credit card,
    there is little extrinsic evidence to substantiate her statements.
    Her hearsay statements may be viewed as self-exculpatory, as she
    contended that her use of the credit card was authorized by Richard
    9
    to   prevent    her    from    telling    anyone    about     his   alleged    sexual
    advances.      However,       her    statement    that   she    was   one     of   the
    individuals shown on the ATM images was self-inculpatory, as it
    indicates that she was, at the very least, present at the ATM when
    the credit card was being used.                 In light of the fact that her
    admission      was    made    to    Inspector    Speck   in   the   course    of   his
    investigation into whether the card had been stolen and illegally
    used, it was reasonable for the district court to conclude that
    such a statement would be inherently reliable as an admission
    against interest. Fed. R. Evid. 804(b)(3); see also Williamson v.
    United States, 
    512 U.S. 594
    , 600 (1994).                 While the girlfriend’s
    statements, when taken as a whole, are exculpatory, the district
    court could accept the inculpatory aspects of her statements to
    Inspector Speck while rejecting her explanation as to whom she was
    at the ATM with and why they were using Richard’s credit card.
    Based in part on her admission that she was present at the ATM, it
    was within the district court’s discretion to infer that the other
    individual present on the ATM security video was, in fact, Ramey,
    and that he was, therefore, in violation of the conditions of his
    supervised release as charged in the amended violation petition
    filed in October 2006.
    Accordingly, we affirm the revocation of Rodney Lee Ramey’s
    supervised release.
    AFFIRMED
    10