Thursday, March 23, 2006

Revocation Based on Hearsay Upheld Where Defendant Caused Declarant's Absence by Intimidation

United States v. Paul Williams, Docket No. 05-0458-cr (2d Cir. March 22, 2006) (Kearse, Miner, Hall): This interesting opinion affirms a judgment revoking Williams's supervised release and imprisoning him for three years (the statutory maximum). The district court found that Williams violated supervised release by committing a new crime -- i.e., by shooting and then robbing one Ryan. The principal issue on appeal concerned whether the court erred in basing this finding upon hearsay evidence, since no eyewitness testified at the revocation hearing. The hearsay evidence consisted of testimony by an NYPD detective and by the probation officer, as well as a sworn complaint by Ryan, regarding conversations with Ryan in which Ryan identified Williams, on at least three separate occasions, as his assailant. Ryan also made several out-of-court statements denying that Williams was his attacker, however, and refused to testify against him.

The Circuit upheld the district court's finding, concluding that because Williams was responsible for Ryan's unavailability -- the evidence showed that Ryan was threatened by Williams's associates and feared reprisal if he appeared in court -- and because Williams had pleaded guilty to a misdemeanor in state court arising from the same incident (and admitted during his plea allocution that he "recklessly engaged in conduct which created a substantial serious physical physical injury to another person"), the district court did not err in denying Williams the opportunity to confront Ryan at the revocation hearing.

The Confrontation Clause of the Sixth Amendment does not apply at revocation proceedings. United States v. Aspinall, 389 F.3d 332, 342-43 (2d Cir. 2004). However, the Supreme Court has held that "minimum requirements of due process" in a parole revocation hearing include the right of the defendant "to confront and cross-examine witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)." Morrissey v. Brewer, 408 U.S. 471, 489 (1972). Rule 32.1(b)(2)(c) of the Federal Rules of Criminal Procedure enshrines this minimum requirement: the court must give the defendant "an opportunity . . . to question any adverse witness, unless the judge determines that the interests of justice does not require the witness to appear."

To deny a defendant the opportunity to confront, the district court must show "good cause." Op. 19. And in making that determination, the court "must balance, on the one hand, the defendant's interest in confronting the declarant, against, on the other hand, the government's reasons for not producing the witness and the reliability of the proffered hearsay." Op. 19 (citing United States v. Chin, 224 F.3d 121, 124 (2d Cir. 2000)).

The Circuit had no trouble upholding the district court's reliance on hearsay under this balancing test. First, it concluded that Williams essentially forfeited his interest in confrontation because Ryan's absence was "the result of intimidation by the defendant." Op. 19 (citing United States v. Mastrangelo, 693 F.2d 269, 272-73); see also Fed. R. Evid. 804(b)(6) (out-of-court statement by unavailable declarant is "not excluded by the hearsay rule" when "offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness"). Ample evidence showed that Ryan refused to come to court because of threats levied by Williams's associates and his general fear of Williams. Second, on the same reasoning, the Government had good cause not to force Ryan to appear at the hearing. Finally, Ryan's hearsay statements were reliable considering the circumstances under which they were made and given Williams's subsequent plea allocution in state court. Op. 21-23. Similarly, evidence showed that Ryan's contrary hearsay statements (exculpating Williams) were made when he feared reprisal by Williams.

Williams also argued on appeal that his sentence must be vacated because the district court erred in evoking concerns about "the seriousness of the offense" to justify the three-year sentence. This clever argument is based on the fact that 18 U.S.C. § 3583, which governs supervised release, lists certain subsections of § 3553(a) that a court is expressly required to consider in determining punishment upon revocation (indeed, § 3583(e) lists most of § 3553(a)), but omits Section 3553(a)(2)(A) (requiring a court to consider, among other things, "the seriousness of the offense").

The Circuit rejected this argument on two grounds. First, it interpreted § 3583(e) "simply as requiring consideration of the enumerated subsections of § 3553(a), without forbidding consideration of other pertinent factors." Op. 24-25. Second, it ruled that "§ 3583(e) cannot reasonably be interpreted to exclude consideration of the seriousness of the releasee's violation, given the other factors that must be considered." Op. 25. For instance, § 3583(e) explicitly requires the court to consider "the nature and circumstances of the offense" (§ 3553(a)(1)) and the need for the sentence imposed to "afford adequate deterrence" (§ 3553(a)(2)(B)) and to "protect the public from further crimes of the defendant" (§ 3553(a)(2)(C)). The Court thus concluded: "We cannot see how, in order to impose a sentence that will provide 'adequate deterrence' and protection of the public from 'further crimes of the defendant' in light of 'the nature and circumstances of the offense,' the [revocation] court could possibly ignore the seriousness of the offense." Op. 25-26.

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