United States v. Marcolynn Germaine Williams

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-13348
Non-Argument Calendar
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D.C. Docket No. 4:06-cr-00063-MW-CAS-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCOLYNN GERMAINE WILLIAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(January 23, 2020)
Before WILSON, JORDAN and TJOFLAT, Circuit Judges.
PER CURIAM:
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Marcolynn Germaine Williams appeals his 11-month sentence for violation
of the terms of his supervised release. On appeal, Williams challenges the District
Court’s finding that he (1) violated his supervision by traveling outside the
Northern District of Florida without permission (“Violation 1”), and (2) violated
his supervision when he committed a battery against his daughter (“Violation 7”).
First, Williams argues that the Government did not prove, by a preponderance of
the evidence, that he knowingly left the judicial district because it relied on
inadmissible hearsay testimony of a Highway Patrol Officer who was not subject
to cross-examination. Williams argues that the testimony was unreliable because
there was not a written report of the incident and the record does not reflect
precisely how quickly Williams’s probation officer contacted the Highway Patrol
Officer after the Highway Patrol Officer spoke to Williams. Second, Williams
argues that the District Court erred in preventing him from cross-examining his
daughter because the Government did not provide, and the District Court did not
ask for, reasons why the opportunity should be denied. Williams argues that, as a
result, the District Court failed to perform the appropriate balancing test with
regard to his confrontation rights.
We reject Williams’s arguments and affirm.
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I.
A district court may revoke supervised release and impose a prison sentence
when it finds by a preponderance of the evidence that the defendant violated a
condition of his supervised release. 18 U.S.C. § 3583(e)(3); United States v.
Cunningham, 607 F.3d 1264, 1266 (11th Cir. 2010). The preponderance standard
is met if it is “more likely than not” that the defendant violated a condition of his
supervised release. United States v. Cataldo, 171 F.3d 1316, 1322 (11th Cir.
1999).
We review a district court’s revocation of supervised release for an abuse of
discretion. Cunningham, 607 F.3d at 1266. Under the abuse of discretion
standard, we must affirm unless we find that the district court has made a clear
error of judgment or has applied the wrong legal standard. United States v.
Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc). We find a clear error of
judgment only when we are left with a definite and firm conviction that a mistake
has been committed. United States v. Crawford, 407 F.3d 1174, 1177 (11th Cir.
2005).
II.
First, we turn to Williams’s argument that that the Government did not
establish by a preponderance of the evidence that Williams had left the Northern
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District of Florida in violation of his supervised release. We disagree and hold that
the Government met its burden.
The District Court found that Williams committed Violation 1 by traveling
to Orlando, Florida on January 20, 2017. Because Orlando is outside of the
Northern District of Florida, this trip violated the condition of Williams’s
supervised release prohibiting him from traveling outside the jurisdiction without
permission. As a basis for its finding, the District Court references Probation
Officer O’Steen’s testimony that he spoke on the phone to a Florida Highway
Patrol Officer who had detained Williams in a traffic stop. According to the
testimony, the Highway Patrol Officer stated to Probation Officer O’Steen that
Williams said he was returning from Orlando at the time. On appeal, Williams
argues that it was error to admit the Highway Patrol Officer’s statement as a basis
for finding that Violation 1 occurred because the officer’s statement was hearsay
and was “unreliable.”
Williams did not object at the revocation hearing to Parole Officer O’Steen’s
testimony. Objections not raised in the district court are reviewed only for plain
error. United States v. Moriarty, 429 F.3d 1012, 1018 (11th Cir. 2005). To
establish plain error, a defendant must show that the District Court (1) made an
error that was plain, and (2) that the error affected the defendant’s substantial
rights. United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1777 (1993).
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We will only exercise our discretion to recognize a forfeited error if the error
seriously affects the fairness, integrity, or public reputation of judicial proceedings.
Moriarty, 429 F.3d at 1019.
Defendants involved in revocation proceedings are entitled to certain
minimal due process requirements. United States v. Frazier, 26 F.3d 110, 114
(11th Cir. 1994). Among these minimal requirements is the right to confront and
cross-examine adverse witnesses, “unless the court determines that the interest of
justice does not require the witness to appear.” Fed. R. Crim. P. 32.1(b)(2); see
also Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 2604 (1972) (parole
revocation context). In deciding whether 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. United States v.
Penn, 721 F.2d 762, 764 (11th Cir. 1983). While there are not any boundaries for
what constitutes sufficient good cause for denying confrontation, we have focused
on the trustworthiness and reliability of the hearsay statements. Id. at 765. For
example, statements close in time to the events at issue are more likely to be based
on fresh recollection and carry a diminished likelihood of deliberate or conscious
misrepresentation. United States v. Reme, 738 F.2d 1156, 1168 (11th Cir. 1984).
Whether the hearsay declarant’s statement is supported by other evidence in the
record is also relevant in determining reliability. Id.
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The District Court did not plainly err in finding that Probation Officer
O’Steen’s testimony regarding his conversation with the Highway Patrol Officer
about Williams traveling outside the jurisdiction was admissible. The Court found
that it could “rely on [the Highway Patrol Officer’s statement],” even though it was
hearsay, because it was made “absolutely contemporaneous almost with the stop.” 1
The District Court also considered Violation 4, another violation for traveling
outside the jurisdiction to Georgia without permission (a violation that Williams
admitted to), to be corroborative of the Highway Patrol Officer’s statements
because it indicated a “pattern of behavior” of Williams traveling where he was not
supposed to. Thus, the District Court considered the relevant evidence of
reliability and found that the statement was reliable. We cannot say that this
individualized consideration of the circumstances surrounding the hearsay
statement constituted an obvious and clear error of law. See United States v.
Dortch, 696 F.3d 1104, 1112 (11th Cir. 2012) (explaining that an error can only be
“plain” if it is “one that is obvious and is clear under current law”) (internal
1
Williams argues in his reply brief that Parole Officer O’Steen’s testimony, where
O’Steen said that “[the Highway Patrol Officer] was actually with him at the point that I called
[Florida Highway Patrol dispatch],” meant that the “him” that the Highway Patrol Officer was
“with” at the time of the call was the dispatcher, not Williams. This is contrary to the
Government’s assumption that Parole Officer O’Steen’s telephone conversation with the
Highway Patrol Officer occurred while the officer “was still roadside with [Williams].”
However, we need not resolve this potential ambiguity in Parole Officer O’Steen’s account of
the timing of the conversation in order to conclude that the District Court did not plainly err in
finding that the statements were generally reliable enough to be admitted as evidence, because
the timing was not the only factor indicating reliability.
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quotations omitted); see also Penn, 721 F.2d at 765 (“[T]here can be no fixed rules
on what would constitute good cause [for not allowing confrontation in a
revocation hearing] in every case.”)
Accordingly, because the District Court did not plainly err in admitting the
Highway Patrol Officer’s statement that Williams had left the jurisdiction to travel
to Orlando, the District Court did not abuse its discretion in finding by a
preponderance of the evidence that Williams had committed Violation 1.
III.
Next, we turn to Williams’s argument that the District Court erred in
overruling his objection to the admission of videotaped testimony in which
Williams’s daughter stated that Williams had struck her twice with a closed fist
because he was angry at her. The District Court used this evidence as a basis for
finding that Williams committed Violation 7, a battery, because it occurred while
Williams was on supervised release. Williams contends that, in admitting the
evidence, the Court “did not balance the defendant’s right to confront the adverse
witness” because it did not require the Government to provide reasons in support
of allowing the testimony. The Government argues that the District Court’s
analysis of the videotaped testimony’s reliability was sufficient to satisfy
Williams’s due process rights, and alternatively that any error would have been
harmless because dismissal of Violation 7 would not have changed the sentence
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imposed. We agree that the District Court gave thorough consideration to a
balancing of factors and properly admitted the testimony. Therefore, it did not
abuse its discretion in finding that Williams had committed Violation 7.
At the revocation hearing, the Government offered as evidence a “two-and-
a-half-minute clip” of the video of the interview of Williams’s daughter conducted
by two police officers. Williams objected to the District Court’s consideration of
the videotaped testimony based on “hearsay and reliability,” suggesting that
because the daughter had just been disciplined by Williams, the Court should have
been skeptical of the reliability of her testimony because it was a situation where
“the child can be upset with the parent.” The Court overruled Williams’s
objection, concluding that the videotaped testimony was sufficiently reliable to be
entered into evidence, and on the basis of the video, found that Williams was guilty
of Violation 7.
The District Court identified multiple grounds indicating that the daughter’s
testimony was reliable. First, the Court concluded that her testimony did not
contain any indication of “embellishment, exaggeration,” or internal
inconsistencies, and there were no “disparate views” on what had occurred.
Additionally, the Court found that nothing in the testimony suggested that the
interviewing officers were trying to “lead the witness” or that Williams’s daughter
was altering her testimony to please the officers. Finally, the Court found that
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Williams’s obstruction of the officers’ investigation of the battery by falsely telling
the officers that his daughter was not at the house (Violation 9, to which Williams
admitted) suggested that he committed the battery and was trying to hide it. The
District Court found that the factors indicating that the testimony was reliable
outweighed the fact that the daughter would not be cross-examined, and admitted
the testimony based on that conclusion.
The District Court’s consideration of whether to admit the videotaped
testimony did not violate Williams’s due process rights because it appropriately
balanced his right to confront witnesses against him with the videotaped
testimony’s indicia of reliability, which provided good cause to admit the recorded
testimony. See Penn, 721 F.2d at 765. Thus, the District Court did not err in
admitting the testimony and did not abuse its discretion in crediting the daughter’s
statements and finding that Violation 7 had occurred.
AFFIRMED.
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