                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                     UNITED STATES CO URT O F APPEALS
                                                               September 23, 2008
                                                    Elisabeth A. Shumaker
                         FO R TH E TENTH CIRCUIT        Clerk of Court




    U N ITED STA TES O F A M ER ICA,

                Plaintiff-Appellee,

    v.                                                   No. 08-7003
                                             (D.C. No. 6:02-CR -00047-001-FHS )
    ELM ER VER NO N G RIFFIN ,                           ( E.D. Okla.)

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before TA CH A, PO RFILIO, and TYM KOVICH, Circuit Judges.




         Defendant appeals from an order revoking his supervised release, based on

possession of a dangerous weapon, after he used a pocketknife “in a threatening

manner directed towards a DHS [department of humans services] employee and

others.” R. Vol. 1 at 27. Defendant contends that the district court’s reliance on

hearsay statements violated due process. W e affirm.



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       There is little dispute about the basic historical facts. On October 30, 2007,

DHS caseworker Vivian Stout and nurse Renee Foust together made a home visit

to defendant’s mother-in-law, Lillian Crane, who lived with one of her daughters

and defendant. Another daughter, Carolyn Barnett, and a grandson, James Davis,

were present at the time. The state w orkers observed bruises on M s. Crane’s

limbs and swelling on her face and legs. W hen they said she needed to go to the

hospital and have x-rays done, defendant became very angry. The state w orkers

saw defendant pull a knife from his pocket in a threatening manner and order

them out of the house. M r. D avis then stepped between defendant and the two

frightened workers, who hurriedly left followed by M s. Barnett. The police later

arrived, arrested defendant, and took statements from the w itnesses. Defendant’s

probation officer, Jeff Skaggs, also came to the scene and interviewed the

witnesses.

       M s. Barnett’s written statement to the police did not mention that defendant

had a knife, but the statements given by the other three witnesses did:

       [Defendant] immediately became angered and stated “Nobody is
       taking my mother-in-law anywhere. If she needs to go to the
       hospital, I’ll take her.” Then he pulled out a knife from his pocket
       and told us to leave and leave now. . . . [M r. Davis] entered the
       room and stood between me and [defendant], asking him to stop.
       [Defendant] pulled the knife on [him] and I quickly followed
       [M s. Stout] out the bedroom door to outside.

Defendant/Appellant’s Addendum of Exhibits (Add.), Ex. 2 (Statement of Vivian

Stout), at 1-2.

                                          -2-
      [Defendant] became very angry [and] pulled a knife from his pocket
      and told me to leave now. I again tried to explain to him that
      [M rs. Crane] needed medical attention (x-ray). [H]e told me he
      w ould get her the care she needed and he again told me to leave. He
      still had the knife in his hand. So I did as he requested and left the
      apartment.

Add., Ex. 3 (Statement of Renee Foust), at 1.

             [Defendant] pulled a pocket knife and told them to “get out of
      my house.” [He] then with the knife in hand made a move towards
      the state w orkers. It was then that I ended up between [defendant]
      and the DHS workers. The women then left and went outside.

Add., Ex. 1 (Statement of James Davis), at 1.

      On the basis of these events, defendant was arrested for violating a

mandatory condition of his supervised release, which prohibited possession of a

dangerous weapon. Specifically, the warrant alleged that “defendant possessed a

dangerous weapon, to wit; a pocket knife, using said knife in a threatening

manner, threatening Department of Human Service officials in the performance of

their duties.” R. Vol. 1 at 23.

      The government’s case at the revocation hearing consisted of the written

statements the witnesses gave to the police and testimony from Officer Skaggs

relating what the witnesses told him in person at the scene. Defendant complains

that admission of this hearsay evidence denied him the opportunity to question

these adverse witnesses, without any determination that the interest of justice did

not require them to appear, as directed by Fed. R. Crim. P. 32.1(b)(2)(C) and




                                         -3-
dictated by the guaranties of due process recognized as applicable to revocation

proceedings in M orrissey v. Brewer, 408 U.S. 471, 488-89 (1972). 1

      Appellate review regarding the written statements is foreclosed by the

invited-error doctrine. W e recently summarized the nature and effect of invited

error, which is a species of waiver, distinguishing it from the related principle of

plain error, which is associated, rather, with the idea of forfeiture:

             W aiver is different from forfeiture. W hereas forfeiture is the
      failure to make the timely assertion of a right, waiver is the
      intentional relinquishment of a known right. In other words, waiver
      is accomplished by intent, [but] forfeiture comes about through
      neglect. Given this distinction, we have held that a party that has
      forfeited a right by failing to make a proper objection may obtain
      relief for plain error; but a party that has waived a right is not
      entitled to appellate relief.

United States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th Cir. 2007)

(citations and quotations omitted). In short, plain-error review is available for

forfeited issues, but “waiver bars a defendant from appealing an invited error.”

Id. Here, when the government offered the witness statements, the court asked

whether the defense had any objection, counsel replied in the negative, and the



1
       Although it recognized a qualified right to question adverse witnesses,
M orrissey also held that the protections afforded in a revocation hearing under the
Due Process Clause w ere not of the same magnitude as the constitutional rights a
defendant has at trial. 408 U.S. at 480, 489. Intent on keeping the analysis here
within M orrissey’s limited due-process parameters, the government argues that
the Sixth Amendment right of confrontation later enforced with respect to
out-of-court statements admitted at trial in Crawford v. Washington, 541 U.S. 36
(2004), does not apply in revocation proceedings. W e need not decide that
question, as defendant explicitly limits his claim to due process.

                                          -4-
exhibits were “admitted without objection.” R. Vol. 2 at 8. This was not an

inadvertent failure to object but rather an explicit and deliberate disavowal of an

objection, relied on by the court to admit the statements without further

scrutiny— a clear invited-error scenario. See United States v. Thayer, 204 F.3d

1352, 1355 (11th Cir. 2000); United States v. Ahmad, 974 F.2d 1163, 1165

(9th Cir. 1992); see also Carrasco-Salazar, 494 F.3d at 1272-73 (holding

counsel’s statement that defense “had no objection” to calculation of sentence

abandoned prior objection thereto, barring review under waiver/invited-error

principle).

      Defendant complains that Officer Skaggs supplemented the w itnesses’

written statements by relating a key detail that they only provided during his

interviews. In cross-examining Officer Skaggs, defense counsel touched on the

absence of any reference in the written statements as to whether, assuming

defendant brandished a pocketknife, its blade was exposed. This prompted

Officer Skaggs to reply that the witnesses had told him that defendant had

threatened them w ith an open pocketknife. R. Vol. 2 at 17-18. Defendant

contends, again, that admission of this hearsay testimony, without any

determination under Rule 32.1(b)(2)(C) that the witnesses’ absence from the

hearing was consistent with the interest of justice, violated his due process rights

under M orrissey. He made no objection when this testimony was elicited,




                                         -5-
however, so we review only for plain error, 2 i.e., “(1) error, (2) that is plain,

which (3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” United States v. Cordova,

461 F.3d 1184, 1186 (10th Cir. 2006) (internal quotation omitted). No such error

has been made out here.

      Indeed, on closer inspection this hearsay argument, based on the asserted

“conflict” between the witnesses’ written and oral statements, 3 is simply a red

herring. The district court did not base its revocation decision on a particular

finding about the position of the knife blade when defendant threatened the state

workers. In its decision from the bench, the court never referred to the blade but

simply held that defendant violated the dangerous-weapon condition by using the

pocketknife to threaten state workers. R. Vol. 2 at 35-36. The later written order


2
       This might even fall within the invited-error bar. There is authority
holding that “the admission of out of court statements by a government witness,
when responding to an inquiry by defense counsel, creates ‘invited error.’”
United States v. Parikh, 858 F.2d 688, 695 (11th Cir. 1988). As we deny relief on
plain-error review in any event, we need not decide whether a party’s failure to
object to hearsay testimony constitutes invited error if that party inadvertently
elicited the hearsay.
3
       Actually, we see no conflict between the state workers’ oral and written
statements. An open pocketknife is clearly a knife, and the interchangeable use of
the terms is hardly cause for concern (unless a witness were specifically pressed
on one term and used the other by way of distinction— which is speculation with
no basis in our record). In contrast, M r. Davis’ testimony, for the defense, was in
conflict with his prior written statement. In his statement he said unequivocally
that defendant “pulled a pocket knife” and “with the knife in hand made a move
towards the state w orkers,” Add. Ex. 1 at 1, while at the hearing he said he could
not say for sure whether defendant even had a knife. R. Vol. 2 at 24-25.

                                           -6-
did, in its summary of Officer Skaggs’ testimony, recite that he testified the

witnesses had told him the pocketknife was open, see R. Vol. 1 at 27, but when

setting out its actual findings in support of revocation the court again spoke only

in broad terms of defendant using the pocketknife to threaten the state w orkers

and did not specifically find whether the blade was open, id. Defendant does not

argue that using a pocketknife (open or closed) to threaten someone is a legally

insufficient basis for revocation— nor would w e gainsay the district court’s

determination in that regard— and the record certainly supports the court’s finding

that defendant engaged in such conduct, under the preponderance-of-the-evidence

standard applicable to revocation proceedings pursuant to 18 U.S.C. § 3583(e)(3),

see also Cordova, 461 F.3d at 1186-88 (upholding constitutionality of standard in

revocation proceedings). Under the circumstances, whether defendant had opened

the pocketknife when he brandished it to threaten the state workers is immaterial.

      W e hasten to add that had the district court specifically found on the basis

of Officer Skaggs’ testimony that the pocketknife was open during the incident

and relied on that fact in revoking his supervised release, we still would not

reverse its decision on plain-error review even if we held that Officer Skaggs’

testimony should have been excluded on hearsay grounds. Given the undeniably

threatening and dangerous nature of defendant’s use of the knife as described in

the (unchallengeable) written statements, we could not conclude that revoking his




                                         -7-
supervised release for possession of a dangerous weapon would undermine the

fairness, integrity, or public reputation of the proceedings.

      In sum, the written statements admitted with defendant’s approval are not

now subject to challenge, and they are sufficient, without Officer Skaggs’ hearsay

testimony, to support the decision to revoke his supervised release.

      The judgment of the district court is AFFIRM ED.


                                                     Entered for the Court



                                                     John C. Porfilio
                                                     Circuit Judge




                                          -8-
