Court Committed No Error At Revocation Hearing

U.S. v. Ruby, 2013 WL 323216 (1/29/13) (Col.) (Published) - Rule 32.1(b)(2)(C), which requires that at a supervised release revocation hearing the defendant be given "an opportunity to question any adverse witness unless the court determines that the interest of justice does not require the witness to appear," applies only to the revocation guilt determination, not the revocation sentencing. This conclusion conflicts with a 3rd Circuit decision. The 10th saw no reason to treat hearsay differently at revocation sentencings than it's treated at initial sentencings. In this case, the defendant admitted a violation, but questioned the seriousness of his conduct. A state jury had found him guilty of assault for throwing his girlfriend to the ground, but acquitted him of the girlfriend's charges that he committed a much more brutal assault. The district court adopted the girlfriend's version and denied the defendant's variance request. The violation report repeating the hearsay of a police statement detailing witnesses' accounts was reliable enough for the district court to rely on. There were corroborating statements directly to a police officer by 3 "relatively" neutral people. It was also okay for the district court to consider the defendant's punching of the girlfriend 6 years before his violation. Evidence Rule 404(a) is not strictly applicable and the prior incident just helped "establish another piece of the minimal indicia of reliability necessary to consider hearsay at sentencing." Of course, the acquittal means "little" because the burdens are different at trial and at sentencing.

On the preservation front, the 10th reviewed for plain error, [but found there was no error, plain or otherwise] where counsel complained: "we are hamstrung where the facts are basically decided by a probable cause statement with no safeguards against that, no testimony, no things like that." This apparent hearsay objection did not preserve the issues because counsel didn't mention Rule 32.1(b)(2)(C) or make a "specific" hearsay challenge. Nor did the defendant attempt to show the evidence was flawed through any testimony or the police report, which was not introduced into evidence.