United States v. Ramey

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5226
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RODNEY LEE RAMEY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:05-cr-00067)
Argued: December 7, 2007 Decided: February 15, 2008
Before WILKINSON and SHEDD, Circuit Judges, and John Preston
BAILEY, United States District Judge for the Northern District of
West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Jane Moran, Williamson, West Virginia, for Appellant.
Louise Anna Forbes, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
ON BRIEF: Charles T. Miller, United States Attorney, Stephanie L.
Haines, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rodney Lee Ramey (Ramey) appeals the district court’s order
revoking his term of supervised release and sentencing him to ten
months’ imprisonment. Ramey contends that the district court
abused its discretion by revoking his term of supervised release
because the court improperly relied upon uncorroborated hearsay
testimony that violated his Sixth Amendment right to confront
adverse witnesses. Ramey further contends that his Sixth Amendment
rights were violated by the admission into evidence of statements
he made to an investigator without the presence of counsel.
Finding that the evidence was sufficiently reliable to authorize
the revocation of supervised release, we affirm.
In May 2005, Ramey pled guilty to one count of aiding and
abetting the distribution of cocaine, in violation of 21 U.S.C. §
841(a)(1) (2000) and 18 U.S.C. § 2 (2000), and was sentenced to six
months’ imprisonment, followed by a three-year term of supervised
release. Ramey began serving his term of supervised release on
February 3, 2006. In September 2006, Ramey’s probation officer
filed a petition with the district court, asking the court to
revoke Ramey’s supervised release because he submitted a false
monthly report and failed to notify his probation officer of his
change of address. In October 2006, Ramey’s probation officer
filed an amendment to the earlier petition, alleging that Ramey had
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left the judicial district without permission and used a stolen
credit card.
At the revocation hearing, held November 13, 2006, Ramey’s
probation officer testified that Ramey, his girlfriend, and their
child had been living with Ramey’s father, Richard T. Ramey
(Richard). The officer testified that on August 28, 2006, she
received a telephone call from Richard reporting that Ramey was no
longer living at the residence. When the officer received Ramey’s
monthly report for September, Ramey indicated that he, his
girlfriend, and their daughter were still residing with Richard.
The probation officer again spoke with Richard, who confirmed that
Ramey had not been residing in his home since August 25, 2006.
Richard further explained that Ramey had been asked to leave his
home because he had stolen Richard’s credit card, activated the
card, and made $5,000 in withdrawals and purchases.
Postal Inspector Speck also testified at the revocation
hearing concerning his investigation of the credit card
allegations. He testified that, according to the credit card
company, the card was jointly issued to Richard and the defendant’s
brother, Richard Ramey II. The card was mailed to defendant’s
father at his residence on August 7, 2006, and was activated on
August 16 by someone claiming to be Richard who was calling from
Richard’s telephone number. Thereafter, the card was used on
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multiple occasions in Eleanor, West Virginia and Proctorville,
Ohio.
Inspector Speck also presented video images from a
surveillance camera at a Proctorville, Ohio bank where a cash
withdrawal was made. The surveillance video depicted both a male
and female present when the card was used. Inspector Speck
obtained photographs of Ramey, compared the images, and found them
to be “consistent.” Inspector Speck also reported that Richard
filed a police report with the Putnam County Sheriff’s Office on
August 31, 2006.
Inspector Speck interviewed Ramey on October 6, 2006,
concerning the credit card. Ramey admitted that he was residing at
his father’s home at the time of the credit card usage, but that he
had been asked to leave when Richard accused him and his girlfriend
of stealing the credit card.
Inspector Speck also interviewed Ramey’s girlfriend, who
admitted that she had used the credit card, but that Richard had
given it to her to dissuade her from reporting sexual advances made
by Richard. In the same interview, she contrarily stated that
using the credit card was “stupid” and that she should not have
done it. The girlfriend admitted that she was shown in the
surveillance video using the credit card, but that she did not know
the identity of the male in the video. She told Inspector Speck
that she and her cousin had driven Ramey’s car to the bank, but
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that Ramey was not with them. Rather, she claimed the male was an
unnamed and unknown individual that she and her cousin had “picked
up.”
Ramey also testified at the revocation hearing, confirming
that his father had asked his girlfriend and their daughter to
leave the home on August 25, 2006, but claiming that he did not
leave until September 9. Ramey stated that it was simply a
“mistake” when he indicated on his monthly report that his
girlfriend and daughter were still residing in the home on
September 4, 2006. Ramey denied ever seeing the credit card.
At the close of the hearing, the district court found that
Ramey had violated the terms of his supervised release, revoked
that release, and sentenced him to ten months’ incarceration.
This court reviews a district court’s decision to revoke a
defendant’s supervised release for an abuse of discretion. United
States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992). A district
court need only find a violation of a condition of supervised
release by a preponderance of the evidence. 18 U.S.C. § 3583(e)(3)
(2000). We do not review the district court’s assessment of
witness credibility. See United States v. Stevenson, 396 F.3d 538,
542-43 (4th Cir.), cert. denied, 544 U.S. 1067 (2005).
Ramey contends that he was denied his right to counsel when he
was questioned by Inspector Speck. The right to counsel, however,
attaches only after the commencement of formal charges against a
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defendant. See Moran v. Burbine, 475 U.S. 412, 431 (1986). This
right is “offense specific,” and even if a defendant has a right to
counsel for one offense, this right does not automatically attach
to other offenses for which he has yet to be charged. See McNeil
v. Wisconsin, 501 U.S. 171, 175 (1991); see also Texas v. Cobb, 532
U.S. 162, 172-73 (2001) (right only includes uncharged offenses
that constitute “same offense” as previously charged offense). In
this case, Inspector Speck spoke to Ramey about the credit card
theft on October 6, 2006, which was prior to the filing of the
amended violation report on October 17, 2006. While the original
violation report was filed on September 21, 2006, none of the
reported violations in that report were based on the alleged credit
card theft. Therefore, any questioning by Inspector Speck was
related to an uncharged offense for which the right to counsel had
not yet attached.
Ramey next objects to the district court’s reliance on hearsay
evidence, contending that the evidence was insufficient and that
his right to confront his accusers was violated. Supervised
release revocation hearings are informal proceedings in which the
rules of evidence need not be strictly observed. Fed. R. Evid.
1101(d)(3); United States v. McCallum, 677 F.2d 1024, 1026 (4th
Cir. 1982); see also United States v. Cates, 402 F.2d 473, 474 (4th
Cir. 1968). Thus, the hearsay nature of evidence does not render
its admission error. Instead, the inquiry focuses on whether the
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evidence was sufficiently reliable. United States v. McCallum,
supra at 1026.
While the Federal Rules of Evidence regarding hearsay do not
apply at a supervised release revocation hearing, a defendant
retains the right to “question any adverse witness unless the court
determines that the interest of justice does not require the
witness to appear.” Fed. R. Crim. P. 32.l(b)(2)(C); See also
Morrissev v. Brewer, 408 U.S. 471, 489 (1972) (minimum requirements
of due process at revocation hearing include the right to confront
and cross-examine adverse witnesses unless there is good cause for
not allowing confrontation). The 2002 Advisory Notes to Fed. R.
Crim. P. 32.1 explain that this provision “recognizes that the
court should apply a balancing test at the hearing itself when
considering the releasee’s asserted right to cross-examine adverse
witnesses.”
At the hearing, Ramey timely interposed a hearsay objection,
claiming that the Government’s presentation of the case through the
testimony of the probation officer and Inspector Speck deprived him
of the opportunity to confront all adverse witnesses. The district
court overruled the objection, noting that the rules of evidence
relating to hearsay did not apply to revocation hearings. In
making its determination, the district court did not inquire as to
the availability of the witnesses or apply any balancing test
pursuant to Fed. R. Crim. P. 32.l(b)(2)(C). The probation officer
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was permitted to testify as to her telephone conversations with
Ramey’s father, while Inspector Speck testified regarding the
statements and admissions made by Ramey’s girlfriend. Neither was
called to testify by either party.
From the record, it is clear that the Government could not
have called Ramey’s father to testify because he was deceased at
the time of the hearing. However, there was no indication as to
why Ramey’s girlfriend was not called. Despite this omission, it
does not appear that Rule 32.1(b)(2)(C) would have even applied to
her testimony, as her statements were not directly adverse to
Ramey’s claim of innocence. The girlfriend’s testimony did not
implicate Ramey as a guilty party, as she told Inspector Speck that
Ramey had not gone to the ATM with her and that he had not stolen
the credit card. Because her testimony, if believed, would not
have served to implicate Ramey, Rule 32.l(b)(2)(C) is not
applicable, as the rule only relates to adverse witnesses.*
Because Ramey’s father could not have been present and Ramey’s
girlfriend did not qualify as an adverse witness, Rule
32.l(b)(2)(C) was not applicable to the testimony regarding these
conversations.
*
It should be noted that, in the end, the girlfriend’s
testimony actually hurt Ramey’s case, as the district court relied
on her admission that she was at the ATM as circumstantial evidence
that Ramey was the other individual present. However, the mere
fact that her testimony was not beneficial to Ramey’s case does not
render her an adverse witness.
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While Rule 32.1(b)(2)(C) does not apply in this case, the
question remains as to whether the hearsay testimony that was
presented by the probation officer and Postal Inspector Speck was
reliable. See McCallum, 677 F.2d at 1026. Hearsay testimony may
be shown to be reliable by extrinsic corroborating evidence or
other indicia showing the statement to be inherently reliable. See
United States v. Scheele, 231 F.3d 492, 500, n.5 (9th Cir. 2000).
A court may not admit unsubstantiated or unreliable hearsay as
substantive evidence at revocation hearings. Crawford v. Jackson,
323 F.3d 123, 128 (D.C. Cir. 2003).
In this case, there was sufficient extrinsic evidence to
substantiate the hearsay testimony. Richard Ramey’s report that
Ramey was expelled from his home on August 25 due to his theft of
the credit card is corroborated by his report of the theft to the
credit card company, his report to the Putnam County Sheriff’s
Office, the girlfriend’s admission that she used the credit card,
and Ramey’s admission that he had been asked to leave the home on
August 25, 2006, due to the accusation of the credit card theft.
As for the statements made by Ramey’s girlfriend, who
allegedly admitted to Inspector Speck that she was one of the
individuals shown on the ATM images using Richard’s credit card,
there is little extrinsic evidence to substantiate her statements.
Her hearsay statements may be viewed as self-exculpatory, as she
contended that her use of the credit card was authorized by Richard
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to prevent her from telling anyone about his alleged sexual
advances. However, her statement that she was one of the
individuals shown on the ATM images was self-inculpatory, as it
indicates that she was, at the very least, present at the ATM when
the credit card was being used. In light of the fact that her
admission was made to Inspector Speck in the course of his
investigation into whether the card had been stolen and illegally
used, it was reasonable for the district court to conclude that
such a statement would be inherently reliable as an admission
against interest. Fed. R. Evid. 804(b)(3); see also Williamson v.
United States, 512 U.S. 594, 600 (1994). While the girlfriend’s
statements, when taken as a whole, are exculpatory, the district
court could accept the inculpatory aspects of her statements to
Inspector Speck while rejecting her explanation as to whom she was
at the ATM with and why they were using Richard’s credit card.
Based in part on her admission that she was present at the ATM, it
was within the district court’s discretion to infer that the other
individual present on the ATM security video was, in fact, Ramey,
and that he was, therefore, in violation of the conditions of his
supervised release as charged in the amended violation petition
filed in October 2006.
Accordingly, we affirm the revocation of Rodney Lee Ramey’s
supervised release.
AFFIRMED
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