             IN THE UNITED STATES COURT OF APPEALS

                                FOR THE FIFTH CIRCUIT
                                             _______________

                                               m 99-30522
                                             Summary Calendar
                                             _______________



                                    UNITED STATES OF AMERICA,
                                                                Plaintiff-Appellee,
                                                  VERSUS

                                          MARIO CAWTHORNE,
                                                                Defendant-Appellant.

                                      _________________________

                              Appeal from the United States District Court
                                 for the Western District of Louisiana
                                         (95-CR-50046-ALL)
                                    _________________________
                                             July 5, 2000




Before SMITH, BARKSDALE, and                            18 U.S.C. § 922(o)(1), and was sentenced to
  PARKER, Circuit Judges.                               imprisonment followed by supervised release.
                                                        The supervised release included the condition
JERRY E. SMITH, Circuit Judge:*                         that he not possess a firearm. A few months
                                                        into the period of release, the district court, at
   Mario Cawthorne appeals the revocation of            the request of the probation office, issued an
his supervised release pursuant to 18 U.S.C.            order to show cause why Cawthorne’s super-
§ 3583(e). We vacate the sentence and re-               vised release should not be revoked.
mand.
                                                           The probation office alleged that
                    I.                                  Cawthorne had violated several conditions of
  Cawthorne pleaded guilty to unlawful                  his supervised release by failing to report to a
possession of a machine gun in violation of             probation officer, by being unemployed, and
                                                        by failing to report a change in his residence.
                                                        Following a preliminary probable cause
    *
                                                        hearing, the probation office filed a
      Pursuant to 5TH CIR. R. 47.5, the court has       supplemental-violation report alleging that
determined that this opinion should not be pub-         Cawthorne had violated the conditions of his
lished and is not precedent except under the limited    supervised release by possessing a firearm.
circumstances set forth in 5TH CIR. R. 47.5.4.
    At that hearing, Cawthorne admitted failure                On cross-examination, Cox testified that
to report and unemployment but denied the                   Cawthorne’s mother, Lola Cawthorne, had
change of residence and possession of a                     informed Cox that she believed the police
firearm.     Probation Officer Steven Cox                   officers planted the gun, because she had never
testified regarding the firearm allegation.                 seen it before they “found” it. She also
When Cox reviewed Cawthorne’s file in                       informed Cox that the room in which the gun
preparation for the preliminary hearing, he                 was found was a “junk room.”
noticed a “partial offense report” from the
police department (“the Report”).                              Ms. Cawthorne also testified at the hearing,
                                                            stating that she had not given police
   According to Cox, the Report indicates1                  permission to search and that the gun was
that when Cawthorne was arrested at his                     found in a “junk room,” not in Cawthorne’s
mother’s home on a state warrant for                        bedroom.        She admitted that some of
attempted homicide, the officers found a                    Cawt horne’s belongings and family
semiautomatic handgun in plain view on a bed.               photographs were stored in the “junk room”
According to Cox’s testimony, the Report                    but testified that there was another bedroom in
states that (1) Cawthorne’s mother both                     which Cawthorne lived. She testified that
consented to the search and told police that                neither she nor her mother had told the police
the room in which the gun was found belonged                that the “junk room” was Cawthorne’s
to Cawthorne; (2) the bedroom contained mail                bedroom, and she denied telling the police that
addressed to Cawthorne and numerous                         the gun belonged to Cawthorne.
photographs of him and other family members;
and (3) Cawthorne’s mother stated that the                     At the close of the evidence, the
gun belonged to Cawthorne.                                  government suggested a continuance to enable
                                                            the court to hear the testimony of the officers
   Cawthorne did not object to Cox’s                        who made the Report:
testimony regarding the contents of the
Report. When the government attempted to                       Government: If Your Honor wishes I’d
introduce the Report into evidence,2 however,                  ask for a continuance to bring the police
Cawthorne objected on the ground that it was                   officers who made the SS
not a self-authenticating document, that the
persons who had prepared it were not present,                  The Court: No.
and that the state charges it concerned had
been dismissed.3 The court did not rule on the                 Government: If required, if needed.
objection but instead stated, “Well, I don’t feel
I need it,” to which the government replied                    The Court:        No, I find that the
“Very well, Your Honor.”                                       defendant, Mr. Cawthorne, violated the
                                                               terms of his probation by not reporting
                                                               and failing to tell the probation office
                                                               where he was, where he could be
   1
                                                               reached, all class C. And more probably
    Because, as noted below, the Report was not                than not possession of a MAC 11
admitted into evidence, all information regarding its          handgun. Therefore, your client has
content comes from Cox’s testimony.                            committed both grade A and grade C
   2                                                           violations, violations establishing an
     It is not evident whether the government had
obtained a complete copy of the Report or was                  imprisonment range of 12 to 18 months,
trying to introduce only the portion relied upon by            so I’m going to order the three-year
Cox.                                                           term of supervised release imposed back
                                                               in ‘95 set aside and order Mr.
       3
      Cox testified that the underlying homicide               Cawthorne committed to the custody of
charge and a charge of being a felon in possession             the Bureau of Prisons for a term of 18
were dismissed.                                                months.

                                                        2
Cawthorne objected to the finding of a Grade               791.6
A violation.4
                                                               All state charges resulting from the police
                      II.                                  report were dismissed, for reasons we do not
   A court may revoke supervised release if it             know. While hearsay is not prohibited in
finds, by a preponderance of the evidence, that            revocation proceedings, we are not unmindful
the releasee violated a condition of that                  of the reasons that we place restrictions on the
release. See 18 U.S.C. § 3583(e)(3); United                use of hearsay in criminal trials. Without some
States v. Alaniz-Alaniz, 38 F.3d 788, 792 (5th             corroboration, it is not reasonable to find a
Cir. 1994). We review factual findings for                 third person’s testimony regarding the content
clear error, and in a challenge to the                     of a portion of a police report that never led to
sufficiency of the evidence we view the                    any trial or conviction more believable than the
evidence and all reasonable inferences                     testimony of an in-court witness, where that
therefrom in a light most favorable to the                 witness’s testimony is internally consistent and
government. See id., at 790, 792. The                      conceivably correct (e.g., does not violate any
evidence is sufficient if a reasonable trier of            laws of nature).
fact could reach the conclusion being
challenged. See id. at 792.                                    We do not hold that a third party’s
                                                           recollection of the contents of a police report
    The only evidence of the Grade A firearm               alone may never satisfy a preponderance
violation, or lack thereof, consists of the                burdenSSthat case is not before us. Rather, we
testimony of Cox and Ms. Cawthorne. We                     conclude that where a live witness, based on
first note that Cox’s testimony of what the                personal knowledge, consistently and directly
“partial police report” contained is hearsay,              contradicted Cox’s testimony; Cox’s testimony
but because revocation proceedings are not                 was based solely on his reading a portion of a
criminal prosecutions and are not formal trials,           police report; all charges based on that report
the rules of evidence are not applied. See                 were dismissed; and neither Cox’s recollection
United States v. Grandlund, 71 F.3d 507, 509               of, nor the content of, the report was
(5th Cir. 1995), clarified by 77 F.3d 811 (5th             corroborated in any manner or to any degree,
Cir. 1996); FED. R. EVID. 1101(d)(3); FED. R.              no trier of fact reasonably could reach the
CRIM. P. 32.1(a)(2) (advisory committee                    conclusion that the government had satisfied
notes).5 We also recognize that the district               its burden of proof by a preponderance of the
court necessarily made a credibility                       evidence.7 Thus, the evidence is insufficient to
determination regarding Ms. Cawthorne, and                 establish that Cawthorne more likely than not
“[i]t is not this [c]ourt’s function to pass on a          possessed a firearm.8
district court’s determination regarding the
credibility of the witness.” Alaniz, 38 F.3d at
                                                             6
                                                               It would be illogical, however, to presume that
                                                           the credibility of one who does testify is less than
    4
      Upon a finding that Cawthorne possessed a            that of one who does not even appear before the
firearm, revocation of his supervised release was          court.
mandatory under 18 U.S.C. § 3583(g) and
                                                                   7
U.S.S.G. § 7B1.3(a)(1), p.s. If the court had found                 Neither of the two cases cited by the
only Grade C violations, it would have had                 government for the proposition that police reports
discretion to revoke, extend, or modify the                can be sufficiently reliable for sentencing purposes
conditions of the supervised release. See 18 U.S.C.        involved similar circumstances. See United States
§ 3583(e); U.S.S.G. § 7B1.3(a)(2), p.s.                    v. Tucker, 20 F.3d 242, 244-45 (7th Cir. 1994);
                                                           United States v. Silverman, 976 F.2d 1502, 1514
   5
     The releasee’s due process rights can render          (6th Cir. 1992) (en banc).
some hearsay inadmissible, but Cawthorne did not
                                                                   8
raise that issue in the district court or on appeal.               We recognize that possession may be
See Grandlund, 71 F.3d at 509-10; Alaniz,                  constructive, but the requisite elements of
38 F.3d at 791-92.                                                                    (continued...)

                                                       3
   VACATED and REMANDED.




(...continued)
constructive possession are contained only in Cox’s
double hearsay testimony. See United States v.
Mergerson, 4 F.3d 337, 348-49 (5th Cir. 1993).

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