United States v. Damien Ray ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3098
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Damien Terrell Ray, *
*
Appellant. *
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Submitted: February 11, 2008
Filed: July 8, 2008
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Before LOKEN, Chief Judge, RILEY and SMITH, Circuit Judges.
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RILEY, Circuit Judge.
Damien Terrell Ray (Ray) appeals from a final judgment entered by the district
1
court revoking his supervised release. For the reasons stated below, we affirm the
judgment of the district court.
1
The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
I. BACKGROUND
In 2005, after Ray pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1), the district court sentenced Ray to 18 months
imprisonment and further supervised release. After serving his prison sentence, Ray
was released from prison in March 2007, and began to serve his term of supervised
release. However, in July 2007, Ray’s probation officer petitioned the district court
to revoke Ray’s supervised release, claiming Ray was arrested and charged in state
court with, among other things, robbery in the first degree.
At Ray’s revocation hearing, Officer Sean Lipina (Officer Lipina) stated that,
in July 2007, he received a call concerning a robbery which took place at a gas station.
Ray objected to Officer Lipina relating any statements by the victim as hearsay and
as a violation of Ray’s Sixth Amendment right to confrontation. The district court
overruled the objections and granted Ray a continuing objection. Officer Lipina
testified the victim told him a black male offered to sell drugs, then pointed a gun at
the victim and asked him for money. Officer Lipina recalled the victim said he gave
the suspect $120 and the suspect drove away in a white Expedition. The victim
described both the Expedition’s license plate number and the suspect, identifying a
tattoo on the suspect’s left forearm. Based on the description of the car and subject,
officers later stopped a vehicle matching the description and arrested Ray. Ray
spontaneously admitted being at the gas station earlier, but declared, “I don’t know
what happened.” Officer Lipina reported the victim later positively identified Ray in
a police lineup, also identifying the tattoo on Ray’s left forearm.
Following the revocation hearing, the district court found Ray violated the
conditions of his supervised release and sentenced Ray to 18 months imprisonment
and 12 months of supervised release. Ray appeals and argues the district court erred
in admitting Officer Lipina’s hearsay testimony in violation of his Sixth Amendment
right to confrontation.
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II. DISCUSSION
We review questions arising under the constitution de novo, and we review the
admission of evidence at a revocation hearing for an abuse of discretion. United
States v. Martin, 382 F.3d 840, 844 (8th Cir. 2004) (citations omitted).
Ray contends the district court erred in admitting Officer Lipina’s “hearsay”2
testimony because, under Crawford v. Washington, 541 U.S. 36 (2004), the testimony
violates Ray’s constitutional rights under the Confrontation Clause. Ray’s argument
lacks merit. As we have previously indicated, “the Supreme Court cautioned that a
parole revocation hearing should not, for this purpose, be equated with a criminal
trial.” Martin, 382 F.3d at 844 (citing Morrissey v. Brewer, 408 U.S. 471, 489
(1972)). The Sixth Amendment only applies to “criminal prosecutions,” and a
revocation of supervised release is not part of a criminal prosecution. Id. “Revocation
deprives an individual, not of the absolute liberty to which every citizen is entitled,
but only of the conditional liberty properly dependent on observance of special parole
restrictions,” thus, the full protection provided to criminal defendants under the Sixth
Amendment right to confrontation does not apply to revocation cases. Morrissey, 408
U.S. at 480. For this reason, Crawford is not implicated in a supervised release
revocation hearing. Martin, 382 F.3d at 844 n.4; see also United States v. Hall, 419
F.3d 980, 985-86 (9th Cir. 2005); United States v. Aspinall, 389 F.3d 332, 342 (2d
Cir. 2004).
Although Ray does not have a Sixth Amendment right to examine adverse
witnesses, Ray has a limited due process 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. 32.1(b)(2)(C); see also Morrissey, 408 U.S. at 489 (declaring, at a
minimum, due process includes “the right to confront and cross-examine adverse
2
We do not decide whether all or any of the challenged statements are actually
hearsay under the Rules of Evidence.
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witnesses (unless the hearing officer specifically finds good cause for not allowing
confrontation)”); Martin, 382 F.3d at 844. The application of this “narrow” due
process protection, however, “should be flexible enough to consider evidence . . . that
would not be admissible in an adversary criminal trial.” Morrissey, 408 U.S. at 489;
see Martin, 382 F.3d at 844. Thus, Ray’s argument that the district court erred simply
by admitting “hearsay” testimony at a revocation hearing is meritless, and the district
court’s admission of such testimony constituted no abuse of discretion.
Ray does not raise a due process challenge or any other appeal issue. We do
not perceive any miscarriage of justice, and we exercise our plain error discretion by
not addressing any other issues. See Johnson v. United States, 520 U.S. 461, 466-67
(1997) (explaining plain error review); United States v. Olano, 507 U.S. 725, 731-32,
735-36 (1993) (same); United States v. Pirani, 406 F.3d 543, 549-50 (8th Cir. 2005)
(en banc) (same); see also Greenlaw v. United States, 554 U.S. __, __ S. Ct. __ , __,
2008 WL 2484861 at *5-6 (June 23, 2008) (following the principle of party
presentation).
III. CONCLUSION
For the reasons stated, we affirm.
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