                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                                       PUBLISH
                                                                            April 5, 2016
                      UNITED STATES COURT OF APPEALS
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

        Plaintiff - Appellee

 v.                                                          Nos. 15-6119

 CAMERON TAEVON JONES,

        Defendant - Appellant.



           APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF OKLAHOMA
                      (D.C. No. 5:07-CR-00294-F-1)


Kyle Edward Wackenheim, Research and Writing Attorney (Paul Antonio Lacy,
Assistant Federal Public Defender, with him on the briefs), Office of the Federal Public
Defender for the Western District of Oklahoma, Oklahoma City, Oklahoma, appearing
for Appellant.

Timothy W. Ogilvie, Assistant United States Attorney (Sanford C. Coats, United States
Attorney, with him on the brief), Office of the United States Attorney for the Western
District of Oklahoma, Oklahoma City, Oklahoma, appearing for Appellee.


Before TYMKOVICH, Chief Judge, BRISCOE, and MATHESON, Circuit Judges.


MATHESON, Circuit Judge.
       The district court revoked Cameron Jones’s supervised release. It relied on

hearsay evidence from the Government’s only witness at the revocation hearing. On

appeal, Mr. Jones argues (1) Federal Rule of Criminal Procedure 32.1(b)(2)(C) requires

the district court to apply a balancing test to determine whether hearsay evidence may be

considered for revocation, (2) the district court abused its discretion because it did not

apply the Rule 32.1(b)(2)(C) balancing test, and (3) this error is reversible. Exercising

jurisdiction under 28 U.S.C. § 1291, we agree with Mr. Jones and reverse and remand to

the district court for a new revocation hearing.

                                   I. BACKGROUND

                                    A. Factual History

1. Mr. Jones’s Previous Convictions

       In 1998, Mr. Jones was convicted of interference with commerce by threat or

violence, in violation of 18 U.S.C. § 1951, and of using and carrying a firearm during a

crime of violence, in violation of 18 U.S.C. § 924(c)(1). In 2007, he was convicted of

possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and

sentenced to 71 months in prison and five years of supervised release. The court also

ordered the prison sentence to run consecutively to the 24-month term of incarceration

imposed as a result of the revocation of supervised release in the 1998 case.

       The 2007 presentence report stated Mr. Jones was a member of the Rolling 60s

Crips gang and goes by the alias C-Rag.
                                             -2-
2. The September 27, 2014 Murder

       On August 29, 2014, Mr. Jones was released from prison and began serving his

five-year term of supervised release for the 2007 conviction. On September 27, 2014,

Mr. Miles, a Rolling 60s Crips member, was murdered. Two days after the murder, the

United States Probation Office filed a petition to revoke Mr. Jones’s supervised release,

alleging Mr. Jones violated the following conditions: (1) “[t]he defendant shall not

commit another federal, state, or local crime;” (2) “[t]he defendant shall not possess a

firearm, destructive device, or any other dangerous weapon;” and (3) “[t]he defendant

shall not associate with any persons engaged in criminal activity and shall no[t] associate

with any person convicted of a felony unless granted permission to do so by the probation

officer.” ROA, Vol. I at 18-19. The petition asserted Mr. Jones violated these conditions

by murdering Mr. Miles, possessing a firearm, and associating with Mr. Miles, a

convicted felon.

                                   B. Procedural History

1. The Revocation Hearing

       After the Probation Office filed its petition, the district court held a revocation

hearing on April 9, 2015. The Government presented one witness: Inspector Benavides,

a homicide detective with the Oklahoma City Police Department who investigated the

murder. He testified about Ms. Palmore’s and Trenton Nguyen’s statements given during

witness interviews. He also testified about his investigation of the murder, Mr. Jones’s

arrest, and Mr. Jones’s state murder prosecution. He testified as follows.
                                             -3-
      a. Ms. Palmore’s statements

      Inspector Benavides interviewed Ms. Palmore on the day of the shooting. He

testified Ms. Palmore claimed to have seen the shooting and that she provided the

following information:

           She “had just gotten out of prison.”

           Before the murder, she was at a bar named Slick Willie’s with a group of
            people that included Mr. Jones and Mr. Miles.

           At Slick Willie’s, Mr. Miles tried to break up a fight between “some
            females” and, in the process, had a confrontation with Mr. Jones.

           Following the confrontation, she and the rest of the group left Slick
            Willie’s.

           When she arrived at her apartment, a group that included Mr. Jones was
            located in a nearby parking lot of a Cricket cell phone store.

           Ms. Palmore saw Mr. Miles walk toward the group accompanied by an
            “Asian boy,” who was later identified as Mr. Nguyen.

           Ms. Palmore went inside her apartment, but at some point heard people in
            the parking lot yelling.

           She went outside and saw Mr. Jones shooting at the car Mr. Miles was
            sitting in.

           Mr. Jones was “walking up to the car shooting into the car.”

           When Mr. Jones arrived at the driver’s side window, he shot into the car.

           Mr. Miles was trying to get out of the passenger’s side of the car during the
            shooting.

           An “entire clip” was shot.




                                           -4-
           After the shooting, Mr. Jones got into a two-door white Monte Carlo, which
            sped away from the scene, and “the bottom of the car kind of hit the asphalt
            and they drove off.”

           “She was 100 percent sure” Mr. Jones was the shooter.

           She had known Mr. Jones since she was 15 years old1 but had not seen him
            for many years before the night of the murder because she had recently
            been released from prison.

ROA, Vol. III at 20-23.

      During the interview, Inspector Benavides showed Ms. Palmore a photo lineup

consisting of six headshots of different African-American men, including Mr. Jones. Ms.

Palmore identified someone other than Mr. Jones as the shooter. Inspector Benavides

had the following exchange with Mr. Jones’s counsel on cross-examination:

      Q. And then when you took her to the police department, you did a very
      controlled photo identification?

      A. Yes, sir.

      Q. And she identified the wrong person; isn’t that correct?

      A. She -- actually, she identified -- for the first time, she identified -- for
      me, she identified two people out of one lineup. And that’s the first time
      that has ever happened to me. So once she did that, I went back inside with
      her and I verified with her that we were absolutely talking about Cameron
      Jones. And she was very adamant, 100 percent sure, that Cameron Jones
      was the shooter.

      Q. Right. But the point I’m trying to make here is she’s saying it was

      1
         On cross-examination, Mr. Jones’s counsel asked Inspector Benavides, “You
said that Ms. Palmore had known all of these people involved since she was 15. How
many years ago was that, approximately?” ROA, Vol. III at 24. Inspector Benavides
answered, “I mean, numerous years. She’s an older woman now.” Id.

                                           -5-
       [Mr. Jones].

       A. Yes, sir.

       Q. But the picture she identified was not [Mr. Jones].

        A. She identified the picture of [Mr. Jones], but she identified him as the
       person bringing the gun and giving it -- the person that she identified as the
       shooter was a random guy that I had put in the lineup. And once we looked
       at it, you know, the similarities to him and to [Mr. Jones], I mean, they’re
       similar. And the photo lineup is there, you can look at it, I’ve given it to
       you. That’s why I went back in there to reaffirm with her who we were
       talking about.

ROA, Vol. III at 38-39.

       Inspector Benavides testified that, although Ms. Palmore misidentified Mr. Jones

during the photo lineup, she was adamant that Mr. Jones was the shooter. According to

Inspector Benavides, Ms. Palmore told him “[she] could have been mistaken, [she] hadn’t

seen him in a while, [she] had just gotten out of prison, but she [was] 100 percent sure

that [Mr. Jones] was the shooter.” Id. at 40.

       b. Mr. Nguyen’s statements

          Inspector Benavides testified that Mr. Nguyen provided the following

   information:

           Mr. Jones and Mr. Miles had a confrontation at Slick Willie’s.

           After the confrontation, he and Mr. Miles left Slick Willie’s and went to
            Mr. Miles’s house.

           Mr. Miles said he was going to fight Mr. Jones because Mr. Jones was
            responsible for the altercation at Slick Willie’s.



                                            -6-
            Mr. Nguyen and Mr. Miles went to the Cricket parking lot and Mr. Miles
             “start[ed] calling [Mr. Jones] out in front of everybody.”

            Mr. Jones was on the phone when Mr. Miles was “calling him out” and did
             not respond to Mr. Miles’s provocations. Mr. Jones “decided he wasn’t
             going to fight.”

            Mr. Nguyen and Mr. Miles walked back to Mr. Miles’s house.

            Mr. Nguyen was not present when Mr. Miles went back to the Cricket
             parking lot and was shot.

Id. at 24-25.

       c. Additional investigation

       Inspector Benavides testified further about his investigation of the shooting.

When he arrived at the Cricket parking lot, he was briefed by the law enforcement

personnel already on the scene. Mr. Miles’s body was “in the parking lot on the

passenger side [of the car].” Id. at 13. The body was outside the car on the ground

because first responders had attempted to administer medical treatment. There were 11

shell casings on the ground on the driver’s side of the car. The bullet holes in the car

“were from the back to the front, indicating . . . the [shooter] was walking up when the

shots were fired.” Id. at 15.

       Two additional shell casings were found inside the car on the driver’s seat.

Inspector Benavides testified the shell casings inside the car indicated the shooter was

close, possibly arm’s length, to the driver’s side window when he fired the shots.

       The crime-scene investigator told him “two gentlemen” named “C-Rag and PK”

were involved in the shooting. Id. at 15. Mr. Jones went by C-Rag; Mr. Jones’s brother,

                                             -7-
Jacara Jones, went by PK.

       The additional eyewitnesses who were in the parking lot at the time of the

shooting “refused to talk to [the police].” Id. at 40-41.

       d. Mr. Jones’s arrest

       Inspector Benavides also testified about Mr. Jones’s arrest. The police arrested

Mr. Jones at his home the morning after the shooting. A white two-door Monte Carlo

was parked outside the house. The rear bumper on the passenger’s side was damaged and

it appeared there was “contact with the asphalt . . . you could see the scratches and the

scrape.” Id. at 28.

       After receiving a Miranda warning, Mr. Jones agreed to make a statement. He

denied any involvement in the shooting and stated he arrived home the previous night

around 12:30 to 1:00 a.m. He stated he got off work, went to the gym, and helped a

friend move furniture in an area across town from Slick Willie’s and the Cricket parking

lot.

       Cell phone records showed Mr. Jones was in the area of Slick Willie’s “about the

time that the witnesses stated they saw him there. [The records] also indicated he was in

the area of the homicide right at the time that the incident occurred.” Id. at 29-30.

       e. The state prosecution

       Inspector Benavides testified as follows about the state prosecution of Mr. Jones.

Mr. Jones was charged with first-degree murder of Mr. Miles in Oklahoma state court,

but the prosecutors dropped the charges because Ms. Palmore refused to testify. She was
                                             -8-
set to be the “main witness on the case.” Id. at 31. Mr. Miles was a gang member and a

convicted felon, Ms. Palmore was listed as a witness on public records associated with

the State’s murder prosecution, and the district attorney could refile the charge against

Mr. Jones.

       f. Ms. Palmore and the revocation hearing

       The Government did not subpoena or attempt to contact Ms. Palmore to testify at

the revocation hearing.

2. The District Court’s Rulings

       During the revocation hearing, the district court concluded the Government had

proved by a preponderance of the evidence that Mr. Jones had committed supervised-

release violations one and two—(1) the prohibition on committing any federal, state, or

local crime and (2) the prohibition on possession of firearms. The court further

concluded the Government failed to prove violation three—(3) association with a felon.2

Mr. Jones’s counsel objected at the hearing to “all of [Inspector Benavides’s] hearsay

statements,” asserting they violated Mr. Jones’s rights under the Due Process Clause,

Confrontation Clause, and Federal Rule of Criminal Procedure 32.1.

       On April 30, 2015, Mr. Jones filed a post-hearing motion to strike Inspector




       2
           The Government did not cross appeal from this ruling.


                                             -9-
Benavides’s hearsay testimony.3 On May 21, 2015, the district court denied Mr. Jones’s

motion, concluding Inspector Benavides’s testimony was sufficiently reliable and that a

preponderance of evidence established Mr. Jones violated the two conditions of

supervised release. The district court relied heavily on the testimony about Ms.

Palmore’s statements. On June 10, 2015, the court issued a separate order revoking the

remainder of Mr. Jones’s term of supervised release, resulting in a 36-month term of

imprisonment, and imposed 10 years of supervised release.

                                    II. DISCUSSION

       Mr. Jones raises three issues on appeal: (1) whether Federal Rule of Criminal

Procedure 32.1(b)(1)(C) requires the district court to apply a balancing test to determine

whether hearsay evidence may be considered for revocation, (2) whether the district court

abused its discretion because it did not apply the Rule 32.1(b)(1)(C) balancing test, and

(3) whether such error was harmless. We address these issues in turn and conclude the

district court committed reversible error when it failed to apply the Rule 32.1(b)(1)(C)

balancing test to the hearsay evidence presented at the revocation hearing. We confine

our analysis to Mr. Jones’s right to confront Ms. Palmore because Mr. Jones has not

argued on appeal that he has a right to confront any other hearsay declarant.


       3
        Mr. Jones’s in-court objection and motion to strike appeared to challenge all of
Inspector Benavides’s hearsay testimony—he does not specify any portions of the
testimony to which he objects. On appeal, he limits his challenge to Inspector
Benavides’s testimony about Ms. Palmore’s statements. He does not challenge the
testimony about Mr. Nguyen’s statements or any other out-of-court statements.

                                           -10-
       “We review the district court’s decision to revoke supervised release for abuse of

discretion. Legal questions relating to the revocation of supervised release are reviewed

de novo. A district court necessarily abuses its discretion when it makes an error of law.”

United States v. LeCompte, 800 F.3d 1209, 1215 (10th Cir. 2015) (quotations omitted).

                   A. The Rule 32.1(b)(2)(C) Balancing Test Applies

       The first issue is whether Rule 32.1(b)(2)(C) requires a district court to apply the

balancing test to determine whether hearsay evidence may be considered for revocation.

We hold that it does.

       Rule 32.1(b)(2)(C) was amended in 2002 to state that a person subject to a

revocation hearing “is entitled to,” among other things, “an opportunity to appear, present

evidence, and question any adverse witness unless the court determines that the interest

of justice does not require the witness to appear.” Fed. R. Crim. P. 32.1(b)(2)(C).

       The advisory committee notes to this provision provide:

       Rule 32.1(b)(1)(B)(iii) and Rule 32.1(b)(2)(C) address the ability of a
       releasee to question adverse witnesses at the preliminary and revocation
       hearings. Those provisions recognize that the court should apply a
       balancing test at the hearing itself when considering the releasee’s asserted
       right to cross-examine adverse witnesses. The court is to balance the
       person’s interest in the constitutionally guaranteed right to confrontation
       against the government’s good cause for denying it.

Rule 32.1 advisory committee’s note to 2002 amendment (emphasis added).

       Before the 2002 amendment to Rule 32.1, this court applied a reliability test to

determine whether hearsay evidence may be considered at a revocation hearing. The

reliability test “allows the admission of hearsay evidence without a showing of cause for
                                            -11-
the declarant’s absence if the evidence is sufficiently reliable.” Curtis v. Chester, 626

F.3d 540, 545 (10th Cir. 2010).4 Since the 2002 amendment, we have not needed to

confront the impact of amended Rule 32.1(b)(2)(C) on our pre-2002 precedent. The

closest we have come to addressing that question was in Curtis, but we determined both

the reliability test and the balancing test would produce the same outcome in that case.

       In this case, we resolve the question and hold the Rule 32.1(b)(2)(C) balancing test

governs whether hearsay evidence may be used to revoke supervised release. The

following discussion provides the background and rationale for this holding.

1. Morrissey	v. Brewer, 408 U.S. 471 (1972)

       In Morrissey, the Supreme Court stated, “the revocation of parole is not part of a

criminal prosecution and thus the full panoply of rights due a defendant in such a

proceeding does not apply to parole revocations.” 408 U.S. at 480. The Court held a

supervised releasee facing revocation of parole must receive the “minimum requirements

of due process,” including “the right to confront and cross-examine adverse witnesses

(unless the hearing officer specifically finds good cause for not allowing confrontation).”

Id. at 489. Our unpublished decisions recognize that minimum due process extends to


       4
         “Examples of evidence possessing recognized indicia of reliability include: (1)
the conventional substitutes for live testimony (e.g., affidavits, depositions, and
documentary evidence), (2) statements falling under an established exception to the
hearsay rule, (3) statements corroborated by detailed police investigative reports, and (4)
statements corroborated by the releasee’s own statements.” Curtis, 626 F.3d at 545.
“Corroborating evidence is often key to determining whether a statement is sufficiently
reliable.” United States v. Ruby, 706 F.3d 1221, 1229 (10th Cir. 2013).

                                            -12-
releasees facing revocation of supervised release, United States v. Mullane, 480 F. App’x

908, 910 (10th Cir. 2012) (unpublished); United States v. Stevens, 119 F. App’x 222, 225

(10th Cir. 2004) (unpublished), and we agree.

          Although Morrissey established a right to confrontation, that right is flexible at

revocation hearings. See Gagnon v. Scarpelli, 411 U.S. 778, 782 n.5 (1973) (“While in

some cases there is simply no adequate alternative to live testimony, we emphasize that

we did not in Morrissey intend to prohibit use where appropriate of the conventional

substitutes for live testimony, including affidavits, depositions, and documentary

evidence.”); Kell v. U.S. Parole Comm’n, 26 F.3d 1016, 1020 (10th Cir. 1994)

(“Petitioner’s right to confront adverse witnesses is not absolute.”). And Morrissey did

not provide a clear test for determining a releasee’s confrontation right. Curtis, 626 F.3d

at 545.

2. The 2002 Amendment to Rule 32.1

          Rule 32.1 “codif[ied] due process guarantees that apply to revocation hearings.”

Ruby, 706 F.3d at 1226. The rule was amended and expanded in 2002. Among other

things, Rule 32.1(b)(2)(C) grants a releasee facing revocation of supervised release “an

opportunity to appear, present evidence, and question any adverse witness unless the

court determines that the interest of justice does not require the witness to appear.”

          The advisory committee notes to the 2002 amendment direct courts to apply a

balancing test when considering a releasee’s confrontation rights at a revocation hearing

under Rule 32.1(b)(2)(C): “The court is to balance the person’s interest in the
                                               -13-
constitutionally guaranteed right to confrontation against the government’s good cause

for denying it.” Rule 32.1 advisory committee’s note to 2002 amendment.

3. Circuit Courts’ Adoption of the Balancing Test

       Every circuit court except ours has adopted the balancing test. Some circuits did

so before the 2002 amendment. United States v. Chin, 224 F.3d 121, 124 (2d Cir. 2000);

United States v. Comito, 177 F.3d 1166, 1170 (9th Cir. 1999); Barnes v. Johnson, 184

F.3d 451, 454 (5th Cir. 1999); United States v. Frazier, 26 F.3d 110, 114 (11th Cir.

1994); United States v. Bell, 785 F.2d 640, 642 (8th Cir. 1986). Other circuits did so

after. United States v. Jordan, 742 F.3d 276, 279 (7th Cir. 2014); United States v.

Doswell, 670 F.3d 526, 530 (4th Cir. 2012); United States v. Jackson, 422 Fed. App’x.

408, 410-11 (6th Cir. 2011) (unpublished); United States v. Lloyd, 566 F.3d 341, 344 (3d

Cir. 2009); United States v. Stanfield, 360 F.3d 1346, 1360 (D.C. Cir. 2004); United

States v. Taveras, 380 F.3d 532, 536 (1st Cir. 2004).

       We applied the reliability test in Kell, which was decided before the 2002

amendment. 26 F.3d at 1020. In Curtis, a 2010 case, we considered whether the

balancing test applies at a parole-revocation hearing under Rule 32.1(b)(1)(B)(iii).5 The

appellant urged us to abandon the reliability test and adopt the balancing test based on the

amendment and the advisory committee notes. 626 F.3d at 545. We left the question


       5
        The balancing test applies to both Rule 32.1(b)(1)(B)(iii) and Rule 32.1(b)(2)(C).
Rule 32.1 advisory committee’s note to 2002 amendment.


                                           -14-
open, concluding the hearsay testimony at issue was admissible under both the balancing

and reliability tests. Id. at 546-47. In doing so, we acknowledged that the 2002

amendment “cast[s] some doubt on our case law,” and that Kell is “asynchronous with

both the majority of circuit courts and the subsequent amendment to Rule 32.1.” Id. at

545-46.

4. The Balancing Test Applies

       We join the other circuits and conclude the balancing test applies when

determining a releasee’s confrontation rights at a revocation hearing. Taking the plain

language of Rule 32.1(b)(2)(C) and the advisory committee notes together, we must

determine whether the “interest of justice does not require the witness to appear” by

balancing (1) “the person’s interest in the constitutionally guaranteed right to

confrontation” against (2) “the government’s good cause for denying it.”6 Rule 32.1

advisory committee’s note to 2002 amendment. We note “reliability is a very important

factor in determining the strength of a releasee’s confrontation right.” Curtis, 626 F.3d at

546 (emphasis omitted).

       We acknowledge our departure from Kell, which applied the reliability test before

Rule 32.1 was amended. We may depart from precedent without en banc review when an


       6
         Courts give weight to the advisory committee notes unless they contradict the
plain language of the rule. See Schiavone v. Fortune, 477 U.S. 21, 31 (1986) (“Although
the Advisory Committee’s comments do not foreclose judicial consideration of the Rule’s
validity and meaning, the construction given by the Committee is of weight.” (quotations
omitted)).

                                            -15-
amendment to an applicable rule or statute creates a new standard. See United States v.

Savani, 733 F.3d 56, 62 (3d Cir. 2013) (“Although we, as a three-judge panel, are

generally bound by prior decisions of this Court, we may reevaluate a precedent in light

of intervening authority and amendments to statutes or regulations.” (quotations

omitted)); Landreth v. C.I.R., 859 F.2d 643, 648 (9th Cir. 1988) (reexamining precedent

in light of intervening amendment to controlling statute). Put differently, we may apply a

new governing standard embodied in an amended rule without en banc reversal of pre-

amendment precedent applying a different standard.

       No panel since the 2002 amendment, including the Curtis panel, has adopted the

reliability test in favor of the balancing test. Moreover, Kell was decided before the 2002

amendment and did not rely on any federal rule of criminal procedure. We therefore

adopt the Rule 32.1(b)(2)(C) balancing test without en banc review of Kell.

  B. The District Court Abused Its Discretion by Failing to Apply the Balancing Test

       The second issue is whether the district court applied the balancing test. The

Government argues that it did. Mr. Jones argues it did not. We agree with Mr. Jones and

conclude the court’s legal error was an abuse of discretion.

       The Government argues the district court applied the balancing test because the

court quoted both Rule 32.1(b)(2)(C) and the advisory committee notes and weighed the

reliability of the hearsay evidence against the “gravity of the matter.” ROA, Vol. I at 43.

We disagree. Mentioning the rule and advisory notes is not the same as applying them.

       In the order denying Mr. Jones’s motion to strike, the district court found
                                           -16-
Inspector Benavides’s testimony reliable and probative of the Government’s contention

that Mr. Jones murdered Mr. Miles. In particular, due to the corroborating physical

evidence, the court found reliable Inspector Benavides’s testimony about Ms. Palmore’s

account of the shooting and gave it “decisive effect.” Id. at 42. The court also pointed to

Inspector Benavides’s testimony about Ms. Palmore’s insistence that Mr. Jones was the

shooter and about Mr. Jones’s false alibi.

       Although the district court considered reliability and the “gravity of the matter,” it

did not apply the Rule 32.1(b)(2)(C) balancing test. ROA, Vol. I at 43. Reliability is

relevant to determine Mr. Jones’s interest in confrontation, Curtis, 626 F.3d at 546—the

first part of the balancing test—but the district court did not fully or adequately address

Mr. Jones’s interest in cross-examination or the second part of the balancing test—the

Government’s explanation for failing to present Ms. Palmore as a witness.

       Because the district court failed to apply the balancing test under Rule

32.1(b)(2)(C), it committed legal error and therefore abused its discretion. LeCompte,

800 F.3d at 1215 (“A district court necessarily abuses its discretion when it makes an

error of law.” (quotations omitted)).

                      C. The District Court’s Error Was Reversible

       The third issue is whether the district court’s error was reversible or harmless. We

conclude it was reversible.

1. Harmless Error Standard

       The harmless error doctrine requires us to disregard preserved trial errors that do
                                             -17-
not affect substantial rights. See 28 U.S.C. § 2111; Fed. R. Crim. P. 52(a). “An error is

harmless unless it had a substantial influence on the outcome or leaves one in grave doubt

as to whether it had such effect.” United States v. Stiger, 413 F.3d 1185, 1190 (10th Cir.

2005) (quotations omitted). A constitutional error is reversible unless the Government

can prove harmlessness beyond a reasonable doubt. Chapman v. Cutler, 386 U.S. 18, 24

(1967). A nonconstitutional error is reversible unless the Government can prove

harmlessness by a preponderance of the evidence. Stiger, 413 F.3d at 1190.

       In this case, we need not determine whether an error in applying

Rule 32.1(b)(2)(C) is constitutional or nonconstitutional because the Government cannot

show harmlessness under either standard.

2. Analysis

       The district court’s error is reversible. We have grave doubt as to whether the

court would have admitted the testimony under the Rule 32.1(b)(2)(C) balancing test on

the record before it. And because Inspector Benavides was the only witness and the court

gave his testimony about Ms. Palmore’s statements “decisive effect,” ROA, Vol. I at 42,

it follows that the court’s error affected Mr. Jones’s substantial rights.

       First, Mr. Jones had a strong interest in testing Ms. Palmore’s statements to

Inspector Benavides. Several textbook bases for cross-examination were present here:

            First, testing Ms. Palmore’s ability to perceive—her distance from the
             parking lot, her angle of vision, any obstructions to her view, the quality of
             the lighting, and whether she had been drinking at Slick Willie’s.


                                             -18-
           Second, exploring possible bias—whether her long-term acquaintance with
            Mr. Jones might have affected her statements to Inspector Benavides.

           Third, examining whether Ms. Palmore’s prior conviction might affect her
            credibility.

           Fourth, asking why Ms. Palmore refused to cooperate in the state
            prosecution of Mr. Jones, a matter on which the parties and the court could
            only posit educated guesses without her testimony.

           Fifth, elaborating on Ms. Palmore’s misidentification of Mr. Jones in the
            photo lineup. Despite corroborating evidence that placed Mr. Jones in the
            parking lot at the time of the shooting, Ms. Palmore pointed to someone
            else when asked to identify the shooter.

       Adding to Mr. Jones’s interest in cross-examining Ms. Palmore are the generally

recognized concerns with eyewitness testimony even when the witness appears at the

evidentiary proceeding. See, e.g., Manson v. Brathwaite, 432 U.S. 98, 119 (1977) (noting

the “high incidence of miscarriage of justice resulting from the admission of mistaken

eyewitness identification evidence at criminal trials” (quotation omitted)); United States

v. Wade, 388 U.S. 218, 228 (1967) (“The vagaries of eyewitness identification are well-

known; the annals of criminal law are rife with instances of mistaken identification.”);

United States v. Stevens, 935 F.2d 1380, 1392, 1407 (3d Cir. 1991) (noting concerns with

reliability of eyewitness testimony and holding district court erred in excluding expert

testimony “about the lack of a correlation between confidence and accuracy in eyewitness

identifications”); United States v. Smith, 736 F.2d 1103, 1106 (6th Cir. 1984)

(acknowledging “the dangers of [eyewitness] misperception in criminal cases”).




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       Second, the Government has made only a limited showing of good cause for its

failure to produce Ms. Palmore to testify. The Government argues on appeal that Ms.

Palmore risked retaliation because she was the only witness to a gang-related shooting,

her name was on public records associated with the State’s murder prosecution, and she

refused to cooperate with the State. The Government further asserts any attempt to

subpoena Ms. Palmore would have been futile.

       The Government has not adequately supported its argument. It did not even ask

Ms. Palmore to attend the revocation hearing. Nor did it issue her a subpoena. Instead, it

asks us to infer Ms. Palmore refused to testify at the state court trial based on a fear of

reprisal and would have refused to testify at the revocation hearing for the same reason.

Although we could reasonably infer as the Government suggests, we could also

reasonably infer Ms. Palmore’s refusal to testify at the state trial arose out of other

reasons. She may have doubted whether Mr. Jones was actually the shooter. Or she may

have been lying when she insisted Mr. Jones was the shooter. Or perhaps she did not

want to testify against her longtime acquaintance.

       Weighing Mr. Jones’s strong interest in confrontation and cross-examination

against the Government’s limited showing of good cause, we are left in grave doubt as to

whether the district court would have admitted Inspector Benavides’s testimony under the

balancing test on the record presented and also as to whether it would have revoked Mr.

Jones’s supervised release. We therefore conclude the district court’s error was


                                             -20-
reversible because the Government cannot show harmlessness by a preponderance of the

evidence, let alone beyond a reasonable doubt.

                      D. Sixth Amendment Right to Confrontation

      Mr. Jones also argues his inability to cross-examine Ms. Palmore violated his

Sixth Amendment rights. The parties agree our case law holds that the Sixth Amendment

does not apply to revocation hearings. Curtis, 626 F.3d at 544 (“Sixth Amendment rights

are not applicable in parole revocation hearings because those hearings are not criminal

prosecutions.” (quotation omitted)). Nevertheless, Mr. Jones raises the argument “so as

to preserve any future extension of the Sixth Amendment.” Aplt. Br. at 26. We agree

that our case law forecloses the argument.

                                   III. CONCLUSION

      For the reasons stated, we reverse the district court’s revocation of Mr. Jones’s

supervised release and remand for a new revocation hearing consistent with this opinion.




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