Crawford, Curtis v. Jackson, Patricia ( 2003 )

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 7, 2003 Decided March 28, 2003
No. 02-7009
CURTIS E. CRAWFORD,
APPELLANT
v.
PATRICIA A. JACKSON,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 99cv01272)
Nicholas G. Terris, appointed by the court, argued the
cause as amicus curiae on behalf of appellant. With him on
the briefs were Glenn R. Reichardt and Stephen W. Graf-
man.
Curtis E. Crawford filed pro se briefs.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Mary L. Wilson, Assistant Corporation Counsel, argued
the cause for appellee. With her on the brief were Charles L.
Reischel, Deputy Corporation Counsel, and Edward E.
Schwab, Assistant Corporation Counsel. John R. Fisher,
Assistant U.S. Attorney, entered an appearance.
Before: EDWARDS, HENDERSON and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Curtis E. Crawford appeals the
denial of his petition for a writ of habeas corpus challenging
the revocation of his parole. We hold, in light of the United
States’ waiver of any objection to lack of personal jurisdiction,
that the court has jurisdiction to hear this appeal. We
further hold, in light of the strong indicia of reliability of the
police investigative report, that the D.C. Parole Board’s reli-
ance on hearsay evidence did not violate Crawford’s due
process rights. The police investigative report was detailed,
Crawford’s admissions corroborated portions of the report,
and the report was internally corroborative of the complain-
ant’s claim that Crawford had assaulted her. In the absence
of contrary evidence, which Crawford had an opportunity to
present, and Crawford’s far-fetched and incomplete explana-
tion of how the complainant suffered her injuries, the report
provided sufficiently reliable evidence of Crawford’s culpabili-
ty for aggravated assault, and thus of his violation of parole.
Accordingly, we affirm.
I.
Since being convicted by a jury of second degree murder in
1972, Crawford has violated parole on numerous occasions.
As relevant here, Crawford was paroled on November 14,
1996, and arrested on February 4, 1999, by the Metropolitan
Police Department for aggravated assault in October 1998.
At a parole revocation hearing in July 1999, the Board
considered as grounds for revocation the aggravated assault
charge as well as Crawford’s use of marijuana and cocaine.
The Report of July 7, 1999, on the revocation hearing
focuses primarily on the October 1998 assault. After sum-
3
marizing the Arrest Prosecution Report of the Metropolitan
Police Department (‘‘police investigative report’’), the Hearing
Report states that Crawford ‘‘adamantly denies his involve-
ment’’ in the aggravated assault, claiming that the complain-
ant instead had a disagreement with a third person inside of
the house, had left the premises, and then fallen while
attempting to climb a fence and injured herself. The Report
noted that Crawford had not been indicted for aggravated
assault although he was scheduled to return to court for a
felony conference. However, as the Report further noted,
Crawford did not deny his drug use on two different occasions
while on parole. The Report also recounted that Crawford
had violated parole ‘‘at least four (4) times,’’ continued to get
arrested and to use drugs, had a history of serious assaultive
behavior and illegal drug use, and had been diagnosed in 1987
as having a severe antisocial personality. Nonetheless, Craw-
ford’s probation officer recommended that his parole be rein-
stated. The Hearing Official disagreed, recommending to the
Board that it revoke Crawford’s parole and reconsider Craw-
ford for parole by May 11, 2000. The Board concurred in the
Hearing Official’s recommendation and, based on the aggra-
vated assault and two drug-use violations of the conditions of
his parole, revoked Crawford’s parole on July 21, 1999.
Crawford filed a petition for a writ of habeas corpus in May
1999 challenging his detention pending a parole revocation
hearing; after the July revocation, he amended his petition to
challenge the revocation. Following denial of the petition,
Crawford appealed, contending that his due process rights
were violated at the revocation hearing because, among other
claims, the Board (1) did not allow him to cross-examine the
author of the police investigative report; (2) denied him the
opportunity to call witnesses; and (3) relied solely on the
police investigative report containing hearsay to revoke his
parole. The court summarily affirmed denial of the writ
except with respect to Crawford’s challenge to the Board’s
reliance on the police report. Crawford v. Jackson, No. 02–
7009 (Order of April 10, 2002).
4
II.
The threshold question of our jurisdiction has been re-
solved by the United States’ waiver of any objection to lack of
personal jurisdiction. See Chapman–Bey v. Thornburgh, 864
F.2d 804, 813 (D.C. Cir. 1988). When Crawford originally
filed his petition for a writ of habeas corpus, he was confined
as a D.C. prisoner at the District of Columbia’s Correctional
Complex in Lorton, Virginia, where his custodian was Warden
Patricia Jackson. At that point there is no question that the
court had jurisdiction to consider the petition. As the court
stated in Blair–Bey v. Quick, 151 F.3d 1036, 1039 (quotation
omitted), reh’g granted in part on other grounds, 159 F.3d
591 (D.C. Cir. 1998), ‘‘the appropriate defendant in a habeas
action is the custodian of the prisoner,’’ which would have
been the warden of Lorton, over whom we have jurisdiction,
id. at 1043; McCall v. Swain, 510 F.2d 167, 177 (D.C. Cir.
1975).
Pursuant to section 11201(b) of the National Capital Revi-
talization and Self–Government Improvement Act of 1997
(‘‘1997 Revitalization Act’’), Pub. L. 105–33, 111 Stat. 251, 734,
however, Crawford was subsequently removed in June 2000
from the Lorton Correctional Complex, and was eventually
transferred to the Federal Correctional Institution at Peters-
burg, Virginia. Section 11201(b) required the District of Co-
lumbia to close its Correctional Complex in Lorton, Virginia
by December 31, 2001, and directed that ‘‘the felony popula-
tion sentenced pursuant to the District of Columbia Code
residing at the Lorton Correctional Complex shall be trans-
ferred to a penal or correctional facility operated or contract-
ed for by the Bureau of Prisons.’’ Crawford’s transfer thus
raised the question whether the court lacks jurisdiction to
consider his petition.
Although the transfer of a prisoner from one correctional
facility to another would not ordinarily deprive the court of
jurisdiction over the habeas petition, see Blair–Bey, 151 F.3d
at 1039 n.1, the transfer here was not simply a transfer
between correctional facilities, but also a transfer of responsi-
bility for the imprisonment of D.C. felons from the District of
5
Columbia to the United States, such that the District of
Columbia asserted that it is ‘‘now powerless to comply with
any court order that [Crawford] should be released TTT or
have a new parole revocation hearing.’’ Appellee’s Br. at 5.
Given both the fact that Crawford is currently housed in the
federal Petersburg correctional facility in Virginia and the
questions surrounding the continued applicability of this cir-
cuit’s precedent to the transfer of such a D.C. prisoner, the
court ordered the United States to enter a limited appearance
to advise the court whether it may substitute the United
States as appellee in this case. Crawford v. Jackson, No. 02–
7009 (Order of February 7, 2003). In light of a pending
appeal involving D.C. prisoners transferred pursuant to the
1997 Revitalization Act, the court granted leave to file an
amicus curiae response to the Public Defender Service for the
District of Columbia. Id. (Order of March 12, 2003).
The court need not now address the complex issues that
may arise regarding the effect of the 1997 Revitalization Act
on this circuit’s preexisting habeas corpus precedent. See,
e.g., Blair–Bey, 151 F.3d at 1039 n.1; Chatman–Bey, 864 F.2d
at 806 n.1; Fed. R. App. P. 23(a). The United States has
entered an appearance and advised that it is waiving any
objection to lack of personal jurisdiction in this case, and that
the court ‘‘may substitute the Warden at FCI Petersburg,
Stephen M. Dewalt, as the custodian of appellant/petitioner
Curtis E. Crawford.’’ Entry of Appearance and Response to
Court Order of February 19, 2003, at 1. The United States
also adopted, except as to an argument regarding Federal
Rule of Appellate Procedure 23, the brief filed by the District
of Columbia pursuant to D.C. Code § 24–132(h)(1)(c). While
Crawford claims, in addressing the Response of the United
States, that he is being unlawfully held because his transfer
violated Rule 23, to the extent that Crawford claims that he
therefore should be released from confinement, he never
made such a claim in his opening brief although he had raised
the claim in the district court. Because the jurisdictional
question has been resolved by the United States’ waiver and
Crawford has not preserved any other Rule 23 claim, the
court need not address whether, as the United States main-
6
tains in its February 13, 2003 Response, Rule 23 is inapplica-
ble to a transfer under the 1997 Revitalization Act. See
Benkelman Tel. Co. v. FCC, 220 F.3d 601, 607 n.10 (D.C. Cir.
2000)
Accordingly, we substitute Stephen M. Dewalt as the re-
spondent, and in view of the United States’ waiver of objec-
tion to lack of personal jurisdiction, we hold that the court has
jurisdiction to address the merits of Crawford’s appeal.
III.
The essence of Crawford’s remaining challenge to the D.C.
Parole Board’s revocation of his parole is that the Board
impermissibly relied solely on an uncorroborated police inves-
tigative report containing hearsay evidence. He contends
that under the standards set forth by the Supreme Court in
Morrisey v. Brewer, 408 U.S. 471 (1972), revocation requires
more than a finding of probable cause and must be based on
verified facts. For this question of law, our review is de novo.
See Maddox v. Elzie, 238 F.3d 437, 446 (D.C. Cir), cert.
denied, 534 US 836 (2001).
A.
As a preliminary matter, we reject the government’s posi-
tion, relying on Duckett v. Quick, 282 F.3d 844 (D.C. Cir.)
cert. denied, 123 S. Ct. 247 (2002), that Crawford waived his
right to challenge the Board’s reliance on a single piece of
hearsay evidence.
Prior to the hearing, Crawford received written notice of
the procedural rights that he would receive at the revocation
hearing. Crawford indicated, by checking appropriate boxes
on the Notice Form, that he wished to present witnesses and
requested that ‘‘persons be present at the hearing who have
given information against me on which the Board may rely to
revoke my parole.’’ Another form, titled ‘‘Opening Statement
at Revocation Hearing Without Attorney’’ and dated July 7,
1999, indicates that Crawford did not have ‘‘any adverse
7
witnesses whose presence you requested’’ and that Crawford
was ‘‘ready to go forward with the hearing.’’
Because Crawford indicated prior to the revocation hearing
that he wished to cross-examine adverse witnesses, and the
Opening Statement form that the government maintains
shows waiver was never signed by Crawford and only reflects
a notation, presumably by the Board official who presided at
the hearing, that Crawford did not wish to call additional
adverse witnesses, the government’s waiver theory fails. The
Opening Statement also shows that Crawford had unspecified
procedural matters that he wished to raise before the revoca-
tion hearing began, procedural matters that could have in-
cluded an objection to exclusive reliance on hearsay evidence
with regard to the aggravated assault charge. Further, while
the government states that Crawford orally waived continu-
ance of the revocation hearing so that he could call additional
witnesses, that is a different issue from whether there was
constitutionally sufficient evidence to revoke parole where the
Board relied solely on the police report as evidence of Craw-
ford’s culpability in the aggravated assault. Therefore, unlike
Duckett, where the defendant ‘‘was represented by counsel at
the revocation hearing,’’ 282 F.3d at 848, we hold that Craw-
ford, a pro se petitioner, provided sufficient indication that he
had concerns with the Board’s reliance on the hearsay evi-
dence. We turn to the merits of Crawford’s challenge.
B.
Crawford raises no objection to the admissibility of the
police investigative report, and the court has held that the
Board’s regulations do not limit the information that it may
consider. Maddox, 238 F.3d at 444, citing D.C. Mun. Regs.
tit. 28 §§ 219.1–219.12 (1987). Rather, Crawford challenges
the Board’s exclusive reliance on the police investigative
report to find a violation of the conditions of parole inasmuch
as it is unsworn, prepared months after relevant events, and
apparently consisted not of the author’s personal observations
or conversations with the complainant but instead was a
summary of an affidavit prepared by another police officer
8
who responded to the scene. Further, Crawford notes the
general unreliability of police reports in light of the adversari-
al relationship between the arresting officer and the arrestee.
Crawford also points out that the report writer concluded
only that there was probable cause to believe Crawford had
committed the assault, and not that a preponderance of the
evidence supported the accusation, as he asserts was required
by the Board’s regulations. As further indication of the
Board’s error in relying on the police investigative report,
Crawford points out that in December 1999 the aggravated
assault charge was dismissed for failure to prosecute and in
June 2001 the D.C. Superior Court granted his motion pursu-
ant to Superior Court Criminal Rule 118 to seal and expunge
his arrest record for that charge.
Reliance on hearsay in parole revocation proceedings is not
per se impermissible, Morrisey, 408 U.S. at 489; cf. Gagnon
v. Scarpelli, 411 U.S. 778, 782 n.5 (1973), as this court has
acknowledged, Maddox, 238 F.3d at 443. But just as clearly
the reliability of hearsay evidence can vary greatly. As the
Seventh Circuit has observed, the use of ‘‘unsubstantiated or
unreliable hearsay TTT would certainly eviscerate the safe-
guards guaranteed TTT by Morrisey and Gagnon.’’ Egerstaf-
fer v. Israel, 726 F.2d 1231, 1235 (7th Cir. 1984). Similarly, in
the context of reviewing a U.S. Parole Commission decision
for abuse of discretion, the Fourth Circuit stated in Marshall
v. Garrison, 659 F.2d 440 (4th Cir. 1981), that ‘‘[s]hort of
some relevant, reasonably reliable evidence of the commission
of another crime, the district court may not permit the Parole
Commission to deny or postpone the granting of parole on the
basis of a prisoner’s commission of other crimes.’’ Id. at 446.
Courts are properly more concerned with whether the
evidence considered as a whole, including the hearsay evi-
dence, was both sufficient in quantity and reliability to ensure
fundamental due process rights. For example, in Taylor v.
U.S. Parole Commission, 734 F.2d 1152 (6th Cir. 1984), the
Sixth Circuit eschewed any concern about the admissibility or
consideration of the hearsay per se in reviewing a Parole
Commission decision for abuse of discretion. Id. at 1155.
Rather, the court’s concern arose from ‘‘the paucity of reliable
9
evidence of [the parolee’s] criminal conduct’’ when based
solely on a probation officer’s summary of an arrest report.
Id. at 1155–56. Such a finding ‘‘is but a step away from a
finding of criminal conduct based solely upon evidence of a
parolee’s arrest with no account of the underlying circum-
stances.’’ Id. at 1156. The court expressed no opinion,
however, on whether the Commission could properly have
made a finding of new criminal conduct based solely on a copy
of the actual investigative report. Id. at 1156 n.3. Again, in
another abuse of discretion case, United States v. Stephenson,
928 F.2d 728 (6th Cir. 1991), the Sixth Circuit concluded that
the paucity of reliable evidence was too great where the only
reliable evidence of the assault was ‘‘the meager testimony of
the probation officer and [the parolee’s] admission that
‘[t]here was some pushing in there.’ ’’ Id. at 732. No evi-
dence by any witness established the extremely offensive or
provocative conduct required to show a violation of state law.
Id. at 732–33. In more extreme circumstances, the Second
Circuit held in Birzon v. King, 469 F.2d 1241 (2d Cir. 1972),
that due process was violated when parole was revoked on the
basis of a parole violation report that relied on statements by
several confidential informants. Id. at 1244. The infirmity in
the hearing and determination arose from the fact that the
Board resolved a credibility issue solely on the basis of the
report without itself taking statements from the informants.
Id. Hence, the court stated, ‘‘the board had no way of
knowing how reliable the informants were and had no real
basis on which to resolve the credibility issue against the
parolee and conclude that he did in fact violate [a] condition
TTT of his parole.’’ Id. The extreme nature of the circum-
stances was revealed by the Board’s refusal to provide the
defendant with a copy of the report or with the substance of
the informants’ statements or their identity. Id.This court has not addressed whether it is appropriate for a
parole authority to rely exclusively on a police investigative
report in revoking parole. However, in evaluating whether
there is sufficient evidence to support a parole revocation, the
court has examined whether the decision was ‘‘either totally
lacking in evidentiary support or [was] so irrational as to be
10
fundamentally unfair.’’ Duckett, 282 F.3d at 847. That stan-
dard matches well with the focus by other circuits on the
quantity and reliability of hearsay evidence in similar cases,
and appears, therefore, to be the appropriate one to apply in
the instant case. Thus, in the context of hearsay evidence,
we follow other circuits that have examined the reliability of
the particular hearsay evidence, condemning reliance on it
when the court reaches a negative evaluation. Compare
United States v. Comito, 177 F.3d 1166, 1171, 1173 (9th Cir.
1999) with United States v. Kindred, 918 F.2d 485, 487 (5th
Cir. 1990). This approach raises a red flag for parole authori-
ties to ensure, before relying on hearsay, that there are
sufficient indicia of reliability under the circumstances at
hand to protect the prisoner’s due process rights.
With respect to the use of police reports as hearsay evi-
dence in parole revocation hearings, other circuits have ex-
pressed the readily apparent concerns regarding the dangers
of relying on uncorroborated police reports. In United States
v. Bell, 785 F.2d 640 (8th Cir. 1986), the Eighth Circuit noted
the relative unreliability of police reports as compared to
laboratory reports of drug tests, and that the ‘‘relationship
between police officers and those whom they arrest is much
more personal and adversarial in nature than that between
chemists and those whose urine they test.’’ Id. at 643–44. In
the court’s view, ‘‘Congress exhibited similar doubts about the
reliability of such reports when it specifically excluded them
from the public records exception to the hearsay rule in
criminal cases.’’ Id. at 644. In Farrish v. Mississippi State
Parole Board, 836 F.2d 969, 978 (5th Cir. 1988), the Fifth
Circuit viewed hearsay testimony most damaging when pre-
sented through police officers, stating that ‘‘[t]he use of TTT
unreliable hearsay undermines the accuracy of the fact-
finding process’’ where the crucial testimony was provided by
a police officer’s recounting of ‘‘self-serving’’ statements by an
informant. In addition, police statements are less reliable to
the extent that they are unsworn, Comito, 177 F.3d at 1172
n.9, or contain multiple layers of hearsay, see Bell, 785 F.2d at
644.
11
We join the other circuits in expressing concern about the
reliance in parole revocation hearings on hearsay in police
reports, particularly as many revocation hearings likely will
involve pro se prisoners with limited resources to obtain
independent witnesses. To this extent, given judicial concern
in light of the protections guaranteed by Morrisey, a parole
authority takes a certain risk that its decision to revoke
parole will not be judicially sustained where it relies solely on
hearsay contained in a police investigative report as the basis
for its decision. As the circuits’ expressions of concern
suggest, that risk is measurably lessened only in circum-
stances that demonstrate the strong reliability of the hearsay
evidence.
Crawford’s case presents the issue not decided by the Sixth
Circuit in Taylor. The D.C. Parole Board relied on a police
investigative report charging Crawford with aggravated as-
sault. The report was prepared as the basis for an affidavit
for an arrest warrant. As such it was quite detailed. The
police investigative report recounted that while celebrating
Crawford’s birthday the complainant sustained a laceration to
the top of her head and on her lip, and that the complainant’s
face was swollen on the right side, and her left rib and back
were bruised. According to the complainant, Crawford had
been drinking and had slammed her against the living room
wall several times. The responding police officer stated that
he observed ‘‘deep indentations in the wall that [were] consis-
tent with [Crawford] slamming the complainant’s head
against the wall in the living room several times. The
indentations were also bloody.’’ The writer of the report
sought an arrest warrant for Crawford for ‘‘intentionally,
knowingly, viciously beat[ing] the complainant to a point of
unconsciousness,’’ stating that ‘‘[t]he attack was unprovoked
by the complainant.’’
The hearsay relied on by the D.C. Parole Board in revoking
Crawford’s parole is significantly different from that con-
demned in the parole revocation cases that we have discussed.
First, the report is a police investigative report, and not
merely a probation officer’s summary of a police report. As
such, the report is quite detailed, an indicia of reliability.
12
See, e.g., United States v. Chin, 224 F.3d 121, 124 (2d Cir.
2000); Bell, 785 F.2d at 644 (8th); Egerstaffer, 726 F.2d at
1235 (7th). It provides a fairly full account of the circum-
stances surrounding the aggravated assault. Missing only is
Crawford’s version of events.
Second, Crawford’s admissions at the revocation hearing
corroborate portions of the report recounting an altercation
and its underlying circumstances. Key facts are undisputed:
Crawford was celebrating his birthday, he had been drinking,
and he had vomited inside the house; thereafter, the com-
plainant was injured. According to the complainant, Craw-
ford had beaten her up. Thus, much of what the police
report states with regard to what the complainant said is
conceded as accurate by Crawford, who challenges only the
complainant’s credibility in accusing him as her attacker.
Third, the report contains internal corroboration of the
complainant’s version of events. The responding officer stat-
ed that he saw the bloody indented walls inside the house.
This observation undercuts Crawford’s claim that the com-
plainant was injured when she fell while climbing a fence
outside of the house. Crawford never disputed the condition
of the living room walls or explained their bloody appearance.
The report itself thus provided the Board with a basis for
evaluating and crediting the complainant’s credibility. In-
deed, the far-fetched explanation offered by Crawford to
explain the complainant’s injuries and his failure to explain
the condition of the living room wall provided reasonable
cause for the Board to doubt his denial of culpability.
Fourth, Crawford had an opportunity at the revocation
hearing to present evidence contesting the hearsay police
report but did not. Unlike the parolee in Birzon who was
unaware of the contents of a report based on information
provided by anonymous informants, Crawford was not denied
access to the police investigative report and knew the identity
of the complainant as well as the identity of a third person
who was present at the premises at the pertinent time. Yet,
despite the obvious incentive to present supporting evidence,
13
he did not call any witness or present evidence other than his
own testimony to support his version of events.
Fifth, neither the claimed double or triple hearsay in the
police investigative report nor its writer’s legal conclusion
diminish the reliability of the report. It is unclear whether
the writer of the report was the responding police officer,
referring to himself as the affiant. But assuming he was not,
the writer is reporting what the responding officer saw.
Crawford’s admissions were corroborative of much of the
report and he presented no evidence other than his own
testimony to show that he was not the complainant’s attacker,
much less that there were no bloody indentations on the
living room wall or that there was another explanation for the
condition of the walls. Thus, the usual suspicion of sec-
ond/third-hand hearsay is considerably lessened. The fact
that the writer of the report reached the legal conclusion that
there was probable cause to believe Crawford was guilty of
aggravated assault is irrelevant; the Board could read the
report in light of Crawford’s denial and explanation of the
complainant’s injuries and conclude that there was a prepon-
derance of evidence of his culpability.
Under the circumstances, given the indicia of reliability of
the police investigative report, the Board’s reliance on the
hearsay evidence did not render its revocation decision so
lacking in support that it was fundamentally unfair. In a
different context, this court has cautioned the government
against relying on hearsay at sentencing where the defendant
‘‘vigorously dispute[s]’’ allegations supported by hearsay evi-
dence. United States v. Lemon, 723 F.2d 922, 934 & n.35
(D.C. Cir. 1983). Here the report provided the Board with a
basis on which to credit the complainant, Crawford had an
opportunity to present evidence, and the Board could reason-
ably reject Crawford’s denial of culpability based on its
assessment of his testimony. Cf. United States v. Yunis, 859
F.2d 953, 960 (D.C. Cir. 1988). Moreover, as the court has
already concluded, Crawford failed to show any prejudice
from his inability to cross-examine the police officer who
wrote the report or to call the complainant at the revocation
14
hearing. Crawford v. Jackson, No. 02–7009 (Order of April
10, 2002).
Contrary to Crawford’s position, the expungement of the
record of his arrest for aggravated assault by the Superior
Court of the District of Columbia, two years after the Board
revoked his parole, does not undermine the reliability of the
police investigative report. Cf. Teachey v. Carver, 736 A.2d
998, 1007 (D.C. 1999). The expunging court made no findings
of fact based on clear and convincing evidence as required by
Superior Court Criminal Rule 118(e), see Dist. of Columbia v.
Davis, 811 A.2d 800, 802 (D.C. 2002), and in reaching its
conclusion summarily stated that it relied on Crawford’s
motion and the government’s lack of opposition. United
States v. Crawford, Criminal No. F–796–99 (D.C. Sup. Ct.
Aug. 21, 2002). Under District of Columbia law, the movant
is not entitled to relief under Rule 118 based on the default of
the government unless the petitioner has made a prima facie
showing that he was entitled to relief, see Davis, 811 A.2d at
804, and the D.C. Superior Court never made such a finding,
U.S. v. Crawford, Criminal No. F–796–99. Although appel-
late courts will presume that trial courts applied the correct
law, the expunging court never made any findings of the
‘‘factual circumstances of the challenged arrest and any post-
arrest occurrences that it deems relevant,’’ as required by
Rule 118(f)(2)(c). Even to establish that the expungement
collaterally estops the government from continuing to enforce
the Board’s revocation of Crawford’s parole, Crawford has
‘‘the burden of showing that any issue in the present litigation
as to which he seeks preclusion is identical to the one that
was decided’’ earlier. Hogue v. Hopper, 728 A.2d 611, 615
(D.C. 1999). Absent findings by the expunging court, the
basis of the expungement is unclear and Crawford therefore
cannot show that the expunging court credited his version of
events. Id.Finally, while Crawford maintains that the Board’s decision
to revoke parole is not necessarily supported solely by what
he characterizes as his two non-criminal drug violations of the
conditions of his parole, violations that he views as ‘‘little
more than an afterthought,’’ Crawford’s admission of his
15
illegal drug use on two occasions while on parole does lend
further support for the Board’s decision. His parole officer
advised the Board that the two tests of Crawford’s urine
indicated the presence of unlawful drugs. Crawford does not
contest that his drug use violated conditions of his parole.
However, because we hold that the Board permissibly relied
on the police investigative report, there is no occasion to
address whether the Board’s reliance would have been harm-
less in view of the drug violations. Compare Egerstaffer, 726
F.2d at 1237–38, with United States v. Zentgraf, 20 F.3d 906,
910 (8th Cir. 1994); Nixon v. Quick, 781 A.2d 754, 763–64
(D.C. 2001).
Accordingly, we affirm the judgment of the district court
denying the petition for a writ of habeas corpus.