United States v. Kelley, Lamond ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1884
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LAMOND D. KELLEY,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 01 CR 37—James T. Moody, Judge.
____________
ARGUED SEPTEMBER 22, 2005—DECIDED MAY 2, 2006
____________
Before EASTERBROOK, EVANS, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Following a final revocation
hearing, the district court found Lamond Kelley guilty
of battery, aggravated assault, and unlawful use of a
weapon—all Grade A violations1 of the conditions of his
supervised release. These Grade A violations combined with
Kelley’s criminal history category of IV to produce
an advisory guidelines sentencing range of 24-30 months’
incarceration, U.S.S.G. § 7B1.4(a), which was limited to
1
Grade A violations of conditions of supervised release are the
most serious kind and produce the longest advisory sentenc-
ing ranges. U.S.S.G. § 7B1.4(a).
2 No. 05-1884
24 months by operation of 18 U.S.C. § 3583(e)(3). The
district court revoked Kelley’s supervised release and
sentenced him to 24 months’ imprisonment. Had the
court held Kelley responsible only for the lesser Grade B
and C violations that he admitted, his advisory sentenc-
ing range would have been 12-18 months.
On appeal, Kelley argues the district court could not have
found him guilty of the Grade A violations without the
hearsay-laden testimony and police report of the investigat-
ing officer. He argues that the court’s consideration of that
hearsay—over his timely objection—violated his Sixth
Amendment right of confrontation as recently construed in
Crawford v. Washington, 541 U.S. 36 (2004), and his more
limited due process right of confrontation as applicable to
revocation proceedings under Morrissey v. Brewer, 408 U.S.
471 (1972).
We affirm. Supervised release revocation hearings are not
criminal prosecutions, so the Sixth Amendment right of
confrontation and Crawford do not apply. Kelley’s due
process rights were not violated because the hearsay
evidence at issue was substantially reliable and its admis-
sion did not undermine the fundamental fairness of the
revocation hearing.
I. Background
Lamond Kelley pleaded guilty to felony escape and was
sentenced to four months’ imprisonment and four months
of home detention, followed by three years of supervised
release. On August 25, 2003—during Kelley’s term of
supervised release—Officer Joseph Morency of the
Burnham, Illinois police department responded to a dis-
patch about “a man with a gun.” Officer Morency was the
government’s only witness at Kelley’s supervised release
revocation hearing and testified to what occurred when he
responded to the dispatch. The district court permitted
No. 05-1884 3
Officer Morency’s testimony and also admitted his initial
police report, over Kelley’s hearsay, Fifth Amendment, and
Sixth Amendment objections.
Officer Morency’s testimony and police report established
the following: When the officer arrived at the scene, he saw
Kelley and Kelley’s brother Ronald, and arrested both of
them. Officer Morency then spoke with Daniel and Terra
Patterson, brother and sister, who were also at the scene;
the Pattersons said they had been in an altercation with
Kelley and his brother, and that Kelley had punched them
both in the face with closed fists. The Pattersons said
Kelley’s brother then started punching them, and Kelley
produced a black, .22-caliber rifle from the trunk of his car,
which was parked nearby. Officer Morency noted that
Daniel Patterson had suffered a broken tooth.
Officer Morency asked Kelley if he could look inside the
trunk of his car, and Kelley responded, “I don’t care[,]
I don’t have the keys.” The trunk lock was punched out, so
Officer Morency opened the trunk with a screwdriver
later at the police station. Inside the trunk he found a
black, .22-caliber, Marlin semiautomatic rifle loaded with
eight .22-caliber rounds; he also found a black rifle case
containing numerous .22-caliber rounds. The vehicle was
registered to Kelley.
Officer Morency had no personal knowledge regarding
Kelley’s alleged assault, battery, or display of the rifle. He
testified to the Pattersons’ statements, his personal obser-
vation that Daniel Patterson had suffered a broken tooth,
and his discovery of the rifle and ammunition in the trunk
of Kelley’s car.
The district judge found Kelley had committed the
Grade A violations of battery, aggravated assault, and
unlawful use of a weapon as alleged in the Summary Report
of Supervised Release Violations. The judge did not make
explicit findings as to the reliability of the hearsay evidence
4 No. 05-1884
or whether the government had shown good cause for not
producing hearsay declarants Daniel and Terra Patterson
as live witnesses. Kelley admitted to several Grade B and
C violations that would have supported revocation and an
advisory sentencing range of 12-18 months; with the Grade
A violations, however, the range was 24-30 months. The
district court revoked Kelley’s supervised release and
sentenced him to 24 months’ imprisonment. See 18 U.S.C.
§ 3583(e)(3) (limiting imprisonment after revocation of
supervised release to two years where the underlying crime
is a Class C or D felony; Kelley’s underlying crime of escape
is a Class D felony).
II. Discussion
A. Sixth Amendment—Crawford v. Washington
Kelley asks us to hold that the admission of Daniel and
Terra Patterson’s hearsay statements at his revocation
hearing violated his Sixth Amendment right to be con-
fronted with the witnesses against him. But by its own
terms, the Sixth Amendment applies only in “criminal
prosecutions,” U.S. CONST. amend. VI, and the Supreme
Court long ago held that revocation hearings are not
criminal prosecutions for purposes of the Sixth Amendment.
Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (“Probation
revocation, like parole revocation, is not a stage of a
criminal prosecution.”); Morrissey, 408 U.S. at 480 (“revoca-
tion of parole is not part of a criminal prosecution and thus
the full panoply of rights due a defendant in such a proceed-
ing does not apply to parole revocations”). Morrissey held
that due process requires a flexible notice-and-hearing
procedure—including a limited right of confrontation—in
the revocation context. Morrissey, 408 U.S. at 488-90.
Morrissey and Gagnon involved parole and probation
revocations, respectively, but their holdings apply to
supervised release revocations as well. See, e.g., United
No. 05-1884 5
States v. Colt, 126 F.3d 981, 986 (7th Cir. 1996) (revocation
of supervised release was merely a modification of defen-
dant’s original sentence); United States v. Pratt, 52 F.3d
671, 675 (7th Cir. 1995) (“a revocation hearing is not part of
a criminal prosecution”) (citing Morrissey, 408 U.S. at 480).
Kelley argues that the Supreme Court’s decision in
Crawford v. Washington, 541 U.S. 36 (2004), undermines
Morrissey and Gagnon and makes the Sixth Amendment’s
Confrontation Clause applicable at revocation hearings.
He suggests that when the Morrissey Court identified a
“right to confront and cross-examine adverse witnesses” as
one of the “minimum requirements of due process” at
state parole revocation hearings, Morrissey, 408 U.S. at 489,
it had in mind a confrontation right rooted in the Sixth
Amendment and applied to the states by the Fourteenth
Amendment’s Due Process Clause. Kelley thus invites us
now to apply the Sixth Amendment to revocation hearings
and conclude that Crawford2 prohibits admission of testimo-
nial hearsay of the sort on which the district court relied to
find him guilty of Grade A supervised release violations.
We decline this invitation. Crawford changed nothing
with respect to revocation hearings. Morrissey held un-
equivocally that revocation hearings are not “criminal
prosecutions” for purposes of the Sixth Amendment, so
the “full panoply of rights due a defendant in such a proceed-
ing” does not apply. Morrissey, 408 U.S. at 480. This “full
panoply of rights” is precisely the list of protections found
in the Sixth Amendment, which by its terms applies only to
criminal prosecutions. U.S. CONST. amend. VI. Because
2
Crawford held that the Sixth Amendment generally prohibits
the admission of testimonial hearsay at criminal trials unless
the witness is unavailable and the defendant had a prior opportu-
nity to cross-examine the witness. Crawford v. Washington, 541
U.S. 36, 68 (2004).
6 No. 05-1884
revocation proceedings are not criminal prosecutions, Sixth
Amendment rights are not implicated. Morrissey, 408 U.S.
at 480. Morrissey’s articulation of a limited confrontation
right in revocation proceedings was explicitly grounded in
considerations of due process, not the Sixth Amendment. Id.
at 485-90.
Crawford dealt with the introduction of testimonial
hearsay at a criminal trial—a “criminal prosecution[ ],” as
that term is used in the Sixth Amendment. The Supreme
Court did not mention revocation hearings or Morrissey
in Crawford; nothing in the case can be read to suggest that
Morrissey and Gagnon have been implicitly altered or that
revocation proceedings should now be characterized as
“criminal prosecutions” within the meaning of the Sixth
Amendment. Several other circuits have declined to extend
Crawford to revocation proceedings. See, e.g., United States
v. Rondeau, 430 F.3d 44, 47-48 (1st Cir. 2005); United
States v. Aspinall, 389 F.3d 332, 342-43 (2d Cir. 2004);
United States v. Kirby, 418 F.3d 621, 627 (6th Cir. 2005);
United States v. Martin, 382 F.3d 840, 844 n.4 (8th Cir.
2004); United States v. Hall, 419 F.3d 980, 985-86 (9th Cir.
2005); Ash v. Reilly, 431 F.3d 826, 829-30 (D.C. Cir. 2005).3
We now join them. Because supervised release revocation
hearings are not criminal prosecutions for purposes of the
Sixth Amendment, Crawford does not apply.
B. Fifth Amendment—Due Process
Kelley also argues that the admission of the Pattersons’
hearsay statements at his revocation hearing violated his
more limited due process right of confrontation. Morrissey
3
The only contrary authority cited by Kelley was a district
court opinion that has since been reversed by the D.C. Circuit
in Ash v. Reilly, 431 F.3d 826, 829-30 (D.C. Cir. 2005).
No. 05-1884 7
held that due process requires an informal notice-and-
hearing procedure prior to parole revocation, and that
this includes (among other things) the “right to confront
and cross-examine witnesses (unless the hearing officer
specifically finds good cause for not allowing confronta-
tion)[.]” Morrissey, 408 U.S. at 489. Kelley argues that the
district court violated his due process rights under
Morrissey by failing to find good cause to deny confrontation
of Daniel and Terra Patterson.
The government responded to Kelley’s objection below
by simply asserting that all hearsay is admissible at
revocation hearings and the court could give the Pattersons’
hearsay statements whatever weight it wanted. The district
court apparently agreed and did not make an explicit
finding of good cause. This was an incorrect view of the law
in this circuit; we have interpreted Morrissey and Gagnon
to permit the admission of reliable hearsay at revocation
hearings without a specific showing of good cause, Pratt, 52
F.3d at 675; Egerstaffer v. Israel, 726 F.2d 1231, 1234 (7th
Cir. 1984); Prellwitz v. Berg, 578 F.2d 190, 192 (7th Cir.
1978), and the district court did not evaluate the reliability
of the Pattersons’ hearsay statements. Any error in this
regard was harmless, however, because the hearsay in
Officer Morency’s testimony and police report bore substan-
tial indicia of reliability so that its admission was not
fundamentally unfair.
Officer Morency was dispatched to the scene on a report
of a “man with a gun,” and his personal observations and
investigation corroborated the Pattersons’ version of events.
The parties to the altercation were still at the scene, and
the officer noted that Daniel Patterson had sustained a
mouth injury, suffering a broken tooth. Kelley’s car (later
confirmed to be registered to him) was parked nearby, and
in the trunk of that car, just as the Pattersons had indi-
cated, was a black, .22-caliber rifle, a rifle case, and numer-
ous rounds of .22-caliber ammunition. The physical evi-
8 No. 05-1884
dence and the officer’s personal observations and investiga-
tion corroborated the Pattersons’ accusations that Kelley
punched them in the face and confronted them with a rifle
that he produced from the trunk of his car.
Where hearsay evidence sought to be admitted at a
revocation hearing “bears substantial guarantees of trust-
worthiness, then the need to show good cause vanishes.”
Egerstaffer, 726 F.2d at 1234; see also Pratt, 52 F.3d at 675;
Prellwitz, 578 F.2d at 192. This circuit essentially treats a
finding of “substantial trustworthiness” as the equivalent of
a good cause finding for the admission of hearsay in the
revocation context. Kelley makes a one-sentence fallback
argument in his reply brief suggesting that this circuit’s
interpretation of Morrissey’s “good cause” requirement is
incorrect and that we should henceforward require an
explicit finding of good cause before the admission of
hearsay in a revocation hearing. Kelley’s argument is both
too late and too cursory to merit serious consideration in
this case.4 United States v. Adamson, 441 F.3d 513, 521 n.2
4
We are aware that some circuits interpret Morrissey to re-
quire an explicit finding of good cause before admission of hearsay
at a revocation hearing, and others have adopted a balancing test
that requires the court to weigh the confrontation interest of the
parolee/probationer against the interests of the government. E.g.,
United States v. Rondeau, 430 F.3d 44, 47-48 (1st Cir. 2005)
(hearsay was admissible at revocation hearing only because court
determined the hearsay was reliable, and that the government
had a good reason not to produce declarants); Barnes v. Johnson,
184 F.3d 451, 454 (5th Cir. 1999) (“[T]o fall within the good-cause
exception to the right of confrontation at a parole revocation
hearing[,] the hearing officer must make an explicit, specific
finding of good cause and state the reasons for that finding. . . .
The hearing officer must weigh the parolee’s interest in confront-
ing the witness with the government’s interest in denying the
parolee that right.”); United States v. Martin, 382 F.3d 840, 844
(continued...)
No. 05-1884 9
(7th Cir. 2006) (“Arguments made for the first time in a
reply brief are waived . . . and in any event the argument is
not developed.”) (internal citation omitted). In any event,
Morrissey emphasized the flexible and informal nature of
revocation procedures, 408 U.S. at 489-90, and Gagnon
clarified that the Court did not intend Morrissey “to prohibit
use where appropriate of the conventional substitutes for
live testimony, including affidavits, depositions, and
documentary evidence.” Gagnon, 411 U.S. at 782 n.5.
Even in light of the flexible nature of revocation hearings,
however, the district court ideally should have explained on
the record why the hearsay was reliable and why that
reliability was substantial enough to supply good cause for
not producing the Pattersons as live witnesses. Still, we
have not strictly required district courts to make explicit
reliability and good cause findings. See Pratt, 52 F.3d at 675
4
(...continued)
(8th Cir. 2004) (“[T]o comport with Morrissey v. Brewer, the
district court must balance the probationer’s right to confront a
witness against the grounds asserted by the government for not
requiring confrontation.”) (quotation marks and citation omitted);
United States v. Hall, 419 F.3d 980, 986 (9th Cir. 2005) (“To
determine whether the admission of hearsay evidence violates the
releasee’s right to confrontation in a particular case, the court
must weigh the releasee’s interest in his constitutionally guaran-
teed right to confrontation against the Government’s good cause
for denying it.”) (quotation and citation omitted); United States v.
Frazier, 26 F.3d 110, 114 (11th Cir. 1994) (in deciding whether to
admit hearsay testimony at a revocation hearing, “the court must
balance the defendant’s right to confront adverse witnesses
against the grounds asserted by the government for denying
confrontation”). Other circuits follow our approach and do not
require an explicit good cause finding or a balancing test. See
United States v. McCallum, 677 F.2d 1024, 1025-26 (4th Cir.
1982); Kell v. United States Parole Comm’n, 26 F.3d 1016, 1019-20
(10th Cir. 1994).
10 No. 05-1884
(affirming revocation based on hearsay evidence because
the “district court could find that [the] hearsay testimony
was reliable” and “the government could have shown good
cause why the witnesses need not be present”) (emphasis
added). The record here is sufficiently clear for us to
conclude that the Pattersons’ hearsay was substantially
trustworthy so as to establish good cause for not producing
them as live witnesses. In light of the officer’s independent
corroboration, the admission of the Pattersons’ hearsay
statements did not undermine the fundamental fairness of
Kelley’s revocation hearing and did not violate his right to
due process. See Pratt, 52 F.3d at 676-77.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-2-06