        10-3712-cr
        United States v. Jefferies

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.


 1           At a stated term of the United States Court of Appeals
 2      for the Second Circuit, held at the Daniel Patrick Moynihan
 3      United States Courthouse, 500 Pearl Street, in the City of New
 4      York, on the 15th day of September, two thousand eleven.
 5
 6      PRESENT: GUIDO CALABRESI,
 7               RICHARD C. WESLEY,
 8               GERARD E. LYNCH,
 9                        Circuit Judges.
10
11
12      UNITED STATES OF AMERICA,
13
14                             Appellee,
15
16              -v.-                                                       10-3712-cr
17
18      CLARENCE JEFFERIES,
19
20                             Defendant-Appellant.
21
22
23
24      FOR APPELLANT:                EYAL DROR (Tai Park, on the brief), Park
25                                    & Jensen, LLP, New York, NY.
26
27      FOR APPELLEE:                 REBECCA G. MERMELSTEIN, Assistant United
28                                    States Attorney (Michael E. Levy,
29                                    Assistant United States Attorney, on the
30                                    brief), for Preet Bharara, United States
31                                    Attorney for the Southern District of New
32                                    York, New York, NY.
33
 1       Appeal from judgment entered by the United States

 2   District Court for the Southern District of New York

 3   (Hellerstein, J.), which revoked Appellant’s supervised

 4   release and sentenced him to two years’ imprisonment, to be

 5   followed by a one-year term of supervised release.

 6       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 7   AND DECREED that the district court’s judgment is AFFIRMED.

 8       We assume the parties’ familiarity with the underlying

 9   facts and procedural history.       Appellant raises two primary

10   issues: (1) that the district court abused its discretion by

11   relying on hearsay to find that he violated Specifications

12   One and Two; and (2) that the district court lacked

13   jurisdiction over Specification Three because the court

14   issued the arrest warrant after Appellant’s term of

15   supervised release had expired.

16       We conclude: (a) that the district court did not rely

17   on hearsay to find that Appellant violated Specification

18   One; and (b) that the district court had good cause to rely

19   on hearsay for Specification Two, pursuant to United States

20   v. Williams, 443 F.3d 35, 45-47 (2d Cir. 2006).       With

21   respect to Specification One, the alleged hearsay statements

22   were probative only for the identification of the victim’s


                                     2
 1   assailant.     Appellant freely conceded that he struck the

 2   victim (his nephew).      Thus, the district court did not rely

 3   on any hearsay to conclude that Appellant committed the

 4   violation.

 5          The only dispute related to Specification One was

 6   whether Appellant intended to strike his nephew with a

 7   frozen water jug or accidentally struck his nephew in

 8   response to being touched with a hot spoon.          The Government

 9   established the severity of the nephew’s injury not by

10   hearsay, but through medical records, photographs, and the

11   testimony of Appellant’s probation officer.          The district

12   court found:

13          The circumstances make it clear . . . that [the
14          incident] was intentional.       This [was] not a
15          glancing blow.    This [was] a heavy water bottle,
16          either totally or partially frozen that was brought
17          to bear upon the head of the eight-year-old, causing
18          a deep laceration that required . . . more than
19          seven stitches to close. It wasn’t a superficial
20          wound that one would expect form a glancing blow.
21          It was a deep wound, a deep wound brought to bear,
22          I think, and reflecting a purposeful blow . . . .
23          [I]t was uncontrolled rage by a 43-year old man to
24          an eight-year-old child.

25   United States v. Jefferies, No. 03-cr-1436, Hr’g Tr. 157:10-19

26   (S.D.N.Y. June 19, 2010). Clearly, the district court did not

27   rely    on   hearsay   when   it   found   that   Appellant   violated

28   Specification One.

                                         3
 1       Turning to Specification Two, we do not reach the

 2   question of whether the statements in the medical records

 3   that identified Appellant as the victim’s assailant qualify

 4   as an exception to the hearsay rule.     See Fed. R. Evid.

 5   803(4).   Rather, we find that pursuant to Williams, 443 F.3d

 6   at 45-47, the district court had good cause to admit the

 7   statements.     In state court, the district attorney dropped

 8   the charges against Appellant for Specification Two because

 9   the victim and the victim’s mother (Appellant’s sister)

10   refused to cooperate with the district attorney.     These

11   facts are sufficient to allow the Government to introduce

12   the nephew’s statements identifying Appellant (his uncle) as

13   his attacker.     The only witnesses with first hand knowledge

14   were the victim and his mother; they had refused to

15   cooperate.

16       Finally, the district court had jurisdiction over

17   Specification Three because: (a) Jefferies was not punished

18   more than once for his conduct, see United States v. Amer,

19   110 F.3d 873, 884 (2d Cir. 1997); United States v. Meeks, 25

20   F.3d 1117, 1122 (2d Cir. 1994), abrogated on other grounds

21   by Johnson v. United States, 529 U.S. 694 (2000); and (b)

22   estoppel did not preclude the tolling of Jefferies’s period


                                     4
1   of supervised release, see 18 U.S.C. §§ 3583(i), 3624(e).

2       We have considered Jefferies’s other arguments and find

3   them to be without merit.   Thus, we AFFIRM the district

4   court’s judgment.

5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe, Clerk
7
8
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