United States v. Derrian Geathers

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 24, 2008
No. 07-15823 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 00-08100-CR-KLR & 04-80010-TP-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERRIAN ANTON GEATHERS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 24, 2008)
Before TJOFLAT, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Derrian Geathers appeals the revocation of his supervised release. Geathers
alleges the district court erred in admitting testimonial hearsay evidence at his
revocation hearing, because the admission of these statements violated his right to
cross-examine adverse witnesses. According to Geathers, the admission of an
expert’s statements at his revocation hearing violated Crawford v. Washington,1
because the statements were testimonial, there was no evidence that the expert was
unavailable, and he had no prior opportunity to cross-examine the expert.
We review a district court’s evidentiary decisions, as well as the revocation
of supervised release, for abuse of discretion. United States v. Novaton, 271 F.3d
968, 1005 (11th Cir. 2001) (evidentiary decisions); United States v. Frazier, 26
F.3d 110, 112 (11th Cir. 1994) (revocation of supervised release). We review de
novo the scope of a defendant’s constitutional rights. United States v. Cantellano,
430 F.3d 1142, 1144 (11th Cir. 2005).
Crawford defines protections guaranteed by the Confrontation Clause of the
Sixth Amendment, including the right to confront adverse witnesses. Crawford ,
124 S. Ct. at 1357. An individual’s Sixth Amendment right to confront adverse
witnesses is guaranteed only in “criminal prosecutions.” Id., U.S. Const. amend.
VI. The Supreme Court has held that a parole revocation hearing does not
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Crawford v. Washington, 124 S. Ct. 1354 (2004).
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constitute a “criminal prosecution,” and this Court has found “no significant
conceptual difference between the revocation of probation or parole and the
revocation of supervised release.” Morrissey v. Brewer, 92 S. Ct. 2593, 2600
(1972); Frazier, 26 F.3d at 113-14.
No authority extends the Sixth Amendment right to confront adverse
witnesses to supervised release revocation proceedings, and we have held the
Federal Rules of Evidence do not apply in such proceedings. Frazier, 26 F.3d at
114. Despite this, we have recognized revocation of supervised release
proceedings are subject to certain minimal due process requirements. Id. In
Frazier, we held that “among these minimal [due process] requirements is the right
to confront and cross-examine adverse witnesses.” Id. (citing Morrissey, 92 S. Ct.
at 2604); see also Fed. R. Crim. P. 32.1(b)(2)(C) (stating before supervised release
is revoked, “[t]he person is entitled to . . . an opportunity to . . . question any
adverse witness unless the court determines that the interest of justice does not
require the witness to appear”). The right to cross examine adverse witnesses at a
revocation of supervised release hearing is not absolute; rather, “in deciding
whether or not to admit hearsay testimony, the court must balance the defendant’s
right to confront adverse witnesses against the grounds asserted by the government
for denying confrontation.” Id. Additionally, the hearsay statement must be
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reliable. Id. However, where the properly considered evidence is sufficient to
support the district court’s conclusion, any error is harmless. Id.Geathers’s reliance on Crawford is misplaced, because that holding
interprets rights guaranteed by the Sixth Amendment, which has not been
interpreted to apply to supervised release revocation proceedings. However, the
district court erred by not applying the balancing test required by Frazier and
Federal Rule of Criminal Procedure 32.1(b)(2)(C) to ensure the admission of the
hearsay testimony would not violate Geathers’ due process rights. Although the
district court erred, the error was harmless, because the properly considered
evidence overwhelmingly demonstrated Geathers possessed counterfeit payment
instruments. The district court specifically relied on circumstantial evidence in
addition to the hearsay testimony to determine Geathers violated the terms of his
supervised release. Additionally, the district court stressed the significance of the
circumstantial evidence, namely, the possession of “phony identifications,” in
establishing the checks were counterfeit. Thus, in the absence of the hearsay
testimony, there was still sufficient evidence to find by a preponderance of the
evidence Geathers possessed counterfeit payment instruments.
AFFIRMED.
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