               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 08a0692n.06
                         Filed: November 13, 2008

                                       No. 07-1796

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                    )
                                             )
       Plaintiff-Appellee,                   )
                                             )
v.                                           )   ON APPEAL FROM THE UNITED
                                             )   STATES DISTRICT COURT FOR THE
DEON ANTONIO THOMPSON,                       )   EASTERN DISTRICT OF MICHIGAN
                                             )
       Defendant-Appellant.                  )




       Before: MARTIN, DAUGHTREY, and KETHLEDGE, Circuit Judges.




       PER CURIAM. The defendant, Deon Antonio Thompson, appeals the district court’s

revocation of supervised release, contending that the evidence relied upon by the court

was insufficient to support revocation. We find no error and affirm.


       The defendant was originally sentenced in February 1997, to a term of 80 months

in prison, to be followed by a 60-month supervised release period, which he began serving

in April 2003. In September 2006, officers from the Detroit Police Department arrested the

defendant for felony firearms possession. The arrest occurred in a residence located at

437 Jefferson Court, Detroit, Michigan. Both the police investigation report and the

arresting officer’s testimony at the defendant’s state court trial indicated that, as police
No. 07-1796
United States v. Thompson

entered the residence, Thompson was either in or near the northeast bedroom. A search

of that room revealed two loaded handguns, one on top of a dresser and the other inside

a closet. According to the trial court testimony, officers recovered United States mail

bearing the defendant’s name from the same dresser top as one of the guns. According

to the investigation report, Thompson admitted to police that he resided at the address.


       Thompson was tried to the bench in state court and, at the conclusion of the

prosecution’s case, the trial judge granted his motion for a directed verdict, ruling that the

state had failed to establish the element of possession beyond a reasonable doubt. In a

subsequent opinion entitled “reason for dismissal,” the trial judge summarized the

testimony presented by the prosecution and stated the reasons for dismissal, finding that

because no witness testified that the defendant was inside the bedroom when the weapon

was recovered, and because a third-party was seen in proximity to the bedroom at the

time, the state had not sufficiently established that the gun was the defendant’s. Further,

the judge ruled that the presence of the defendant’s “junk mail” on the dresser was not

enough to establish proof of residency and referred to the 25 caliber gun found on the

dresser as a “chick” gun (i.e., a gun that a woman would own).


       Despite the defendant’s acquittal on the state charge, the probation department

sought revocation of the defendant’s supervised release based upon these same facts.

At the supervised release revocation hearing, the prosecution introduced both the

investigation report and the testimony summarized in the state court’s opinion without


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objection. Probation Officer Timothy Genyk further testified that the probation department’s

request for revocation was based upon the investigation report and that neither Genyk nor

other members of the department conducted any independent investigation.


       Thompson and his girlfriend, Charlene Clark, testified for the defense. Clark

admitted to being the person seen in proximity to the northeast bedroom immediately

before the police entered the home; disclaimed ownership of the guns; and denied that

there had ever been a gun on the dresser at all. In his testimony, Thompson initially

denied any connection to the 437 Jefferson Court residence, other than visiting the house

on a few occasions. Later, however, Thompson admitted that he received mail, including

employment checks, at the address. He also insisted that the mail found by police had not

been seized from the dresser top but had, instead, been removed from his pockets.


       Following the revocation hearing, the district court entered an order revoking Deon

Thompson’s supervised release. Relying on the investigation report, the summary of the

officers’ trial testimony, and the incredibility of the defendant’s testimony, the district court

found by “at least a preponderance of the evidence that the defendant did possess a

firearm at the Jefferson House.” The court also found the defendant guilty of the three

other supervised release violations and sentenced him to 36 months’ imprisonment.1


       1
        The district court found four violations of the conditions for supervised release; it
found that (1) Thompson committed the crime of felony firearms possession; (2) he did
not report to probation as required; (3) he failed to notify the probation department of a
change in residence; and (4) he failed to notify the probation department of his arrest in a
timely manner. The defendant was acquitted of a fifth charge alleging that he did not

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United States v. Thompson

       On appeal, Thompson challenges only the determination that he committed a new

crime while on supervised release. He raises no challenge to the other findings of guilt or

to the reasonableness of his sentence.


       We review a district court's revocation of supervised release for an abuse of

discretion. See United States v. Kirby, 418 F.3d 621, 626 (6th Cir. 2005). To reverse the

lower court’s revocation order, we must have a “definite and firm conviction that the court

below committed a clear error of judgment in the conclusion it reached upon a weighing

of the relevant factors.” United States v. Stephenson, 928 F.2d 728, 732 (6th Cir. 1991)

(quoting Balani v. INS, 669 F.2d 1157, 1160 (6th Cir. 1982)).


       The district court may revoke a term of supervised release if it finds “by a

preponderance of the evidence that the defendant violated a condition of supervised

release.” 18 U.S.C. § 3583(e)(3); see also United States v. Webb, 30 F.3d 687, 688-689

(6th Cir. 1994). The preponderance standard requires a lesser quantum of proof and

enables the trier of fact to make a determination of guilt that it could not make if the

standard were that at trial, i.e., guilt beyond a reasonable doubt. See In re Winship, 397

U.S. 358, 368 (1970). Moreover, “revocation hearings are more flexible” than criminal

trials. Stephenson, 928 F.2d at 732. As a result, the district court may rely upon

“reasonably reliable evidence,” including hearsay. Id.




maintain consistent employment.

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United States v. Thompson

       The defendant asserts on appeal that the evidence presented at the revocation

hearing was insufficiently reliable to support the finding that he committed a new criminal

offense. The defendant’s primary argument is that the district court erred by basing its

finding solely on the probation officer’s testimony summarizing the original Detroit police

investigation report. Relying upon Kirby and Stephenson, the defendant argues that

because the probation officer lacked personal knowledge about the events described in

the report, because he failed to conduct an independent investigation into those events,

and because he was newly assigned to the defendant’s case, his testimony provided an

insufficient basis for the court’s finding.


       In Kirby, we upheld the district court’s revocation of supervised release where the

evidence consisted of just one probation officer’s testimony. See 418 F.3d at 626.

However, we emphasized in that case that the officer had personally reviewed surveillance

tapes showing the defendant committing the crime at issue and had also spoken with the

investigating police officers. See id. In Stephenson, we reversed the district court’s

revocation of the defendant’s supervised release, noting that the probation officer’s

testimony was “meager” and contained “very few facts” concerning the allegations in

dispute. See 928 F.2d at 731. There, the only evidence supporting the court’s finding that

Stephenson committed a new assault was the probation officer’s testimony that the

defendant had been arrested and the defendant’s admission that “[t]here was some

pushing in there.” Id.



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       In this case, the defendant cites these precedents for the proposition that in a

revocation proceeding, a probation officer’s testimony about the defendant’s new crimes

must be based upon the officer’s own thorough and independent investigation of the

allegations. In the alternative, suggests the defendant, a witness with personal knowledge

must submit an affidavit or offer live testimony at the revocation proceeding.            This

proposition, however, is plainly not consonant with the cases cited to support it. Rather,

the thoroughness of the testifying witness’s own investigation or the extent of his personal

knowledge are simply factors to be weighed by the district judge. See Kirby, 418 F.3d at

626-27 (discussing importance of “indicia of reliability”). Clearly, Kirby did not establish an

independent investigation requirement for supervised release revocation cases. Similarly,

in Stephenson, we explained that our concern was “not with the nature of the evidence

considered but with the paucity of reliable evidence.” 928 F.2d at 732 (internal quotations

omitted). Contrary to the defendant’s implicit suggestion, therefore, a witness need not

have firsthand knowledge of the underlying facts in order to testify competently at a

revocation hearing. See id. at 732 (permitting use of hearsay evidence).


       We conclude that the district court’s decision in this case was, in fact, based on

sufficiently reliable evidence. Despite the defendant’s claims to the contrary, the district

court did not base its findings solely on the investigator’s report or the probation officer’s

summary of its contents. In addition to the report, the district court cited the summarized

testimony of three police officers at the state court proceeding and the “increasingly

incredible” testimony offered by the defendant at the revocation hearing as reasons for its

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finding. The police officers’ testimony, as summarized in the state court’s opinion, linked

the defendant to the guns and to the places in which they were discovered. Moreover, the

defendant offered testimony that was at times both inconsistent and detrimental to his

case. For example, the defendant claimed that he had been to the 437 Jefferson Court

residence only “a couple of times,” but he later admitted that he received important mail,

including his paychecks, at the residence. The district court appropriately weighed this

testimony in determining that the defendant’s testimony was not credible. Of course, false

testimony may be considered “affirmative evidence of guilt” by the trier of fact. Wright v.

West, 505 U.S. 277, 296 (1992) (plurality opinion by Thomas, J.); see also Dyer v.

Macdougal, 201 F.2d 265, 269 (2nd Cir. 1952) (L. Hand, J.) (“[T]here is no alternative but

to assume the truth of what [a fabricating witness] denies”). Furthermore, the report itself

offered a detailed account of the events and alone would have been sufficient evidence

for the court’s finding. As the district court noted:


       [T]he Investigator’s Report reflects, (a) Defendant admitted he resided at 437
       Jefferson Ct., Detroit, Michigan (the “Jefferson house”), where the guns were
       found, (b) mail at the house was addressed to Defendant at the Jefferson
       house address, and (c) the guns were found in the Northeast bedroom where
       the police found Defendant.


       Neither the police report nor the summarized trial testimony lacks the indicia of

reliability found to be so essential in Kirby and in similar cases decided by this court. See

e.g. United States v. Lowenstein, 108 F.3d 80, 83-84 (6th Cir. 1997). Nor does the

evidence relied upon raise the concerns cited in Stephenson, in which barely any evidence


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of guilt was presented. Here, the evidence provided a factual basis both for the probation

officer’s testimony and for the court’s finding that the defendant violated the supervised

release conditions by committing a new offense. The district court’s reasonably-derived

factual determinations are entitled to deference. The defendant has not made a showing

sufficient to support a “definite and firm conviction that the court below committed a clear

error.” Therefore, we conclude that the district court did not abuse its discretion, and its

judgment must be upheld.


       AFFIRMED.




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