United States v. Yomi Balogun

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 24, 2006
No. 05-15003 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 98-00439-CR-TWT-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YOMI BALOGUN,
a.k.a. Damon Brown,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(February 24, 2006)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Yomi Balogun appeals his sentence of 24 months of imprisonment, which
was imposed for violations of the provisions of his supervised release. Balogun
makes three arguments on appeal: (1) the district court improperly admitted
hearsay evidence at his revocation hearing when the court permitted Balogun’s
probation officer to testify that Balogun had committed two offenses of identity
theft while on supervised release; (2) the district court abused its discretion in
denying Balogun’s motion for a continuance; and (3) the district court was
prejudiced against him. We reject each of Balogun’s arguments and affirm the
sentence.
I. BACKGROUND
In 1999, Balogun pleaded guilty to one court of wire fraud and was
sentenced to a term of 21 months of imprisonment followed by three years of
supervised release. In 2000, after serving his term of imprisonment, Balogun was
deported. Afterwards, Balogun illegally reentered the United States.
In 2003, Balogun’s probation officer, Donna High, petitioned the United
States District Court to issue an arrest warrant for Balogun, and the district court
issued a show cause order. The petition alleged that Balogun had violated three
provisions of his supervised release. In 2005, High amended the petition and
charged Balogun with four violations: (1) Balogun illegally reentered the United
States without the approval of the Attorney General; (2) Balogun had failed to
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report for supervised release since his return to the United States; (3) Balogun
committed identity-fraud offenses in Illinois; and (4) Balogun failed to pay
restitution since his return to the United States and was $6200 in arrears. Balogun
was arrested in Illinois in July 2005 and was transferred to the Northern District of
Georgia to answer the charges in the petition.
Before his revocation hearing, the government agreed not to proceed on the
identity-fraud charge, and Balogun agreed not to contest the other charges. At the
hearing, the parties informed the district court of the agreement. The district court
declined to accept the agreement and elected to hear evidence regarding the
identity-fraud offenses. Balogun moved for a continuance to prepare a defense to
the identity-fraud charges, which the district court denied.
The government presented testimony from High that Balogun had been
arrested in 2002 in Illinois for identity fraud, and he had been deported in 2000.
High authenticated documents submitted in support of her petition as police reports
and investigative materials in connection with the charges of identity fraud in
Illinois. Balogun objected to the testimony of High and the admission of the police
reports as hearsay. At the conclusion of the hearing, the district court concluded
that Balogun had violated the conditions of his supervised release and sentenced
him to 24 months of imprisonment.
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II. STANDARD OF REVIEW
We review the evidentiary rulings of the district court for abuse of
discretion. United States v. Wright, 392 F.3d 1269, 1276 (11th Cir. 2004); see
United States v. Frazier, 26 F.3d 110, 114 (11th Cir. 1994). Erroneous evidentiary
rulings are subject to harmless error review. Frazier, 26 F.3d at 114. We also
review the denial of a motion for a continuance for abuse of discretion. United
States v. Bowe, 221 F.3d 1183, 1189 (11th Cir. 2000).
III. DISCUSSION
“Although the Federal Rules of Evidence do not apply in supervised release
revocation hearings, the admissibility of hearsay is not automatic. Defendants
involved in revocation proceedings are entitled to certain minimal due process
requirements.” Frazier, 26 F.3d at 114. Among the due process requirements
available at a revocation hearing is the right to confront adverse witnesses. Id. To
admit hearsay, the district court “must balance the defendant’s right to confront
adverse witnesses against the grounds asserted by the government for denying
confrontation[,]” and the court must find that the hearsay is reliable. Id. Because
the district court in Balogun’s hearing did not make the finding described in
Frazier, the district court erred when it admitted the hearsay evidence. Our
conclusion that the district court erred does not end our inquiry; the Frazier court
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acknowledged that this error still may be considered harmless. Id.To establish that the sentence imposed was harmful, Balogun must satisfy a
two-part test. “If admission of hearsay evidence has violated due process, the
defendant bears the burden of showing that the court explicitly relied on the
information. The defendant must show (1) that the challenged evidence is
materially false or unreliable, and (2) that it actually served as the basis for the
sentence.” United States v. Taylor, 931 F.2d 842, 847 (11th Cir. 1991) (internal
quotations marks and citations omitted). Balogun must satisfy both elements of
Taylor to show that his sentence was harmful.
Balogun has not made either showing under Taylor. First, Balogun has
neither asserted that the police reports were false nor that he did not commit the
crimes alleged. Balogun has also not provided any sound basis for finding that the
police reports were unreliable. Second, Balogun cannot show that the hearsay
actually served as the basis for his sentence. Balogun admitted that he committed
three of the four alleged supervised release violations, which subjected him to the
maximum sentence of 24 months of imprisonment, and the district court stated that
the first reason for the sentence it imposed was Balogun’s illegal reentry. See
Taylor, 931 F.2d at 847-48; Frazier, 26 F.3d at 114.
Balogun’s remaining arguments are without merit. There is no evidence that
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the district court was improperly biased against Balogun, and the district court did
not abuse its discretion when it denied Balogun a continuance to prepare a defense
to a charge in the petition. Although the government had agreed not to proceed on
the identity-fraud charge, the district court was not bound by the agreement, and
counsel was on notice to prepare a defense. Moreover, Balogun has not
established how he was prejudiced by the denial of a continuance.
IV. CONCLUSION
Balogun’s sentence is
AFFIRMED.
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