United States v. Martinez Gishie ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 4 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10135
Plaintiff-Appellee, D.C. No.
3:08-cr-00897-GMS-4
v.
MARTINEZ JASON GISHIE, AKA MEMORANDUM*
Martinez J Gishie,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 19-10136
Plaintiff-Appellee, D.C. No.
2:15-cr-00741-GMS-1
v.
MARTINEZ JASON GISHIE, AKA
Martinez J Gishie,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Submitted March 2, 2020**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes these cases are suitable for decision
Phoenix, Arizona
Before: CLIFTON, OWENS, and BENNETT, Circuit Judges.
Martinez Gishie appeals from the district court’s revocations of his
supervised release. We have jurisdiction under 28 U.S.C. § 1291. As the parties
are familiar with the facts, we do not recount them here. We dismiss No. 19-10135
as moot. We vacate and remand in No. 19-10136.
1. The parties agree that No. 19-10135 is moot because for that
revocation of supervised release Gishie has been released from custody and has no
further supervised release. See United States v. King, 891 F.3d 868, 869-70 (9th
Cir. 2018) (holding that the defendant’s unconditional release from custody
mooted his challenge to his allegedly erroneous revocation of supervised release).
Thus, we dismiss No. 19-10135.
2. For No. 19-10136, Gishie argues that the revocation of his supervised
release violated his due process right to confront witnesses against him. A
defendant has a due process right to confront and cross-examine adverse witnesses
at a supervised released revocation hearing, unless the government shows good
cause for not producing the witnesses. See United States v. Comito, 177 F.3d
1166, 1170 (9th Cir. 1999). On appeal, the government concedes that the district
without oral argument. See Fed. R. App. P. 34(a)(2).
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court failed to conduct the requisite balancing test, and Gishie’s right to
confrontation outweighed the government’s good cause for denying it.
Contrary to the government’s contention, the due process violation was not
“harmless beyond a reasonable doubt.” Id. The district court found that Gishie
violated his supervised release based on Gishie’s probation officer’s testimony
regarding hearsay statements by (1) Gishie’s prior probation officer, (2) Gishie’s
girlfriend, (3) the owner of the Squawberry house, and (4) police officers. Without
the hearsay evidence, there was insufficient support that Gishie was living at the
Squawberry house and had therefore violated his supervised release condition to
notify probation of a change in his living arrangement. See id. at 1170-71, 1173.
Thus, for No. 19-10136, the district court’s order revoking Gishie’s
supervised release is vacated, and the case is remanded for further proceedings.
No. 19-10135: DISMISSED AS MOOT.
No. 19-10136: VACATED AND REMANDED.
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