United States v. Bjorn Jamal Green

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-13854
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-00398-TCB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BJORN JAMAL GREEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(July 25, 2014)
Before HULL, MARCUS, and ANDERSON, Circuit Judges.
PER CURIAM:
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Bjorn Jamal Green appeals his sentences imposed following the revocation
of his supervised release based on Georgia state convictions. In August 2013, the
probation office filed a second amended petition alleging the following new
violations of law: (A) driving on a suspended license in April 2012; (B) an
additional instance of driving on a suspended license in April 2012; (C) battery
against a pregnant female and family violence battery in May 2012; (D) giving a
false name to a policeman in September 2012; and (E) two instances of cruelty to
children and one instance of family violence battery in July 2013.
At the revocation hearing, Green contended that none of his alleged new
violations of law constituted anything higher than a Grade C violation of his
supervised release. He characterized the July 2013 convictions as being for third-
degree cruelty to children and simple battery. Green conceded that the July 2013
conviction would have been his second family violence battery conviction, but he
argued that it was reduced to a simple battery, so the district court would have to
establish the underlying conduct amounted to family violence battery in order to
find a Grade A violation.
Officer M.S. Bailey and Detective H.C. Amos both testified that they spoke
to Korlus Freeman (“Korlus”) and Amanda Freeman (“Amanda”) in response to an
emergency call. Both of their testimonies were based on statements that Korlus
and Amanda had made immediately after the incident, and Bailey described Korlus
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and Amanda as frantic when she arrived. Their testimony was that Green got into
an argument with Korlus outside of Amanda’s apartment and eventually began
choking Korlus and threatening to throw her over the balcony. After Korlus yelled
to Amanda for help, Green went into the apartment, threw his and Korlus’s baby
into the air, and let the baby bounce off the sofa and onto the floor. It was
subsequently determined that the baby had a fractured skull.
Amanda testified that she was grabbing Green, which caused him to
accidentally drop the baby. However, she conceded that she told police that Green
had thrown the baby up in the air. She stated that she was very angry and had
trouble focusing when she spoke with the police. At the revocation hearing, she
admitted that she did not clearly remember what happened on the night of the
incident.
The district court concluded that a Grade A violation had occurred, based on
its conclusions that Green’s relevant conduct constituted first-degree cruelty to
children and family violence battery. The court relied on the testimonies of Bailey
and Amos, and explained that Amanda’s testimony was less reliable because she
admitted that she could not clearly remember what happened. The court then
imposed a total sentence of 21 months’ imprisonment that was to be followed by
an additional 3-month term of supervised release to be served in a half-way house.
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On appeal, Green argues that the district court’s conclusion that he had
committed a Grade A violation was based upon clearly erroneous factual findings.
For the first time on appeal, he contends that Bailey and Amos’s testimonies
consisted of impermissible hearsay statements from Korlus and Amanda. He
asserts that the district court was required to make findings with regard to the
reliability or credibility of the hearsay statements before relying upon them.
Further, he argues, the court’s disqualification of Amanda’s testimony casts further
doubt on the reliability of the officers’ statements because their statements were
based in part on their respective interviews of Amanda. Finally, he concludes that
the government failed to satisfy its burden of establishing that Green had
committed first-degree cruelty to children or family violence battery to substantiate
the court’s finding of a Grade A violation.
We generally review a sentence imposed upon revocation of supervised
release for reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07
(11th Cir. 2006). We review findings of fact under the clearly erroneous standard.
United States v. Almand, 992 F.2d 316, 318 (11th Cir. 1993). Evidentiary
objections that are not specifically raised at trial are reviewed for plain error only.
United States v. Williford, 764 F.2d 1493, 1502 (11th Cir. 1985).
A sentence may be procedurally unreasonable if the court fails to properly
calculate the appropriate guidelines range. Gall v. United States, 552 U.S. 38, 50,
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128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). The guideline range applicable upon
revocation of supervised release is set forth in U.S.S.G. § 7B1.4(a). The guideline
range is affected by what Grade the violation is classified as. U.S.S.G. § 7B1.4(a).
Under plain error review, the defendant must show: “‘(1) error, (2) that is
plain, and (3) that affects substantial rights.’” United States v. Rodriguez, 398 F.3d
1291, 1298 (11th Cir. 2005) (citation omitted). We may then exercise our
discretion to notice a forfeited error, but only if “‘the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.’” Id. (citation
omitted). Under the plain error standard, error affects a defendant’s substantial
rights where that error affected the outcome of the case. United States v. Olano,
507 U.S. 725, 734, 113 S.Ct. 1770, 1778, 123 L.Ed.2d 508 (1993). There can be
no plain error where there is no statute, rule, or binding precedent in this Court
directly resolving the issue. United States v. Lejarde-Rada, 319 F.3d 1288, 1291
(11th Cir. 2003).
A defendant facing possible revocation of supervised release is entitled to
some, but not all, of the procedural protections afforded a defendant in a criminal
proceeding. United States v. Copeland, 20 F.3d 412, 414 (11th Cir. 1994). In
Frazier, we held that the Federal Rules of Evidence do not apply in revocation of
supervised release proceedings. United States v. Frazier, 26 F.3d 110, 114 (11th
Cir. 1994). Nevertheless, defendants are still entitled to certain minimal due
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process requirements, and the admissibility of hearsay is not automatic. Id. In
deciding whether or not to admit hearsay, the court must balance the defendant’s
right to confront adverse witnesses against the grounds asserted by the government
for denying confrontation. Id. Failure to conduct this balancing test constitutes a
violation of due process. Id.Once it is established that the admission of hearsay violated due process, the
defendant bears the burden of showing that the court explicitly relied on the
hearsay in revoking his supervised release. United States v. Taylor, 931 F.2d 842,
847 (11th Cir. 1991). The defendant must show: (1) that the challenged hearsay is
materially false or unreliable; and (2) that the challenged hearsay served as the
basis for the sentence. Id. We have stated that the absence of a district court’s
findings regarding the reliability of hearsay statements does not necessarily require
reversal or remand where the reliability of the statements is apparent from the
record. United States v. Gordon, 231 F.3d 750, 761 (11th Cir. 2000).
Rule 803(2) of the Federal Rules of Evidence creates an exception for
“excited utterances,” which are statements “relating to a startling event or
condition, made while the declarant was under the stress of excitement that it
caused.” Fed.R.Evid. 803(2). We have explained that the excited utterance
exception does not require that the statement be made contemporaneously with the
startling event. United States v. Belfast, 611 F.3d 783, 817 (11th Cir. 2010).
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Rather, courts ruling on the exception should consider the totality of the
circumstances to determine if the declarant was still under the stress or excitement
of the startling event at the time she made the statement. Id.Green’s sentences are procedurally reasonable. Bailey described Korlus and
Amanda as frantic and Amanda admitted that she was very angry and had trouble
focusing when she spoke with the police. As Korlus and Amanda were both still
under the stress of the incident with Green, their statements would have been
admissible as excited utterances even under the stricter trial rules of admissibility.
See Fed.R.Evid. 803(2); see also Frazier, 26 F.3d at 114 (explaining that the
Federal Rules of Evidence do not apply in supervised release revocation
proceedings). As such, the district court did not plainly err in admitting the
statements or in relying upon them.
Even assuming that a Frazier balancing test was appropriate in these
proceedings, there is no controlling authority that states that the district court must
explicitly engage in a Frazier balancing test in the absence of a contemporaneous
objection. See Lejarde-Rada, 319 F.3d at 1291. Thus, Green has not established
that the district court erred in admitting Bailey and Amos’s testimonies. As a
result, the district court correctly concluded that Green had committed a Grade A
violation, and his guideline range was properly calculated. Accordingly, Green’s
sentences are reasonable, and we affirm the district court.
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AFFIRMED.
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