           Case: 17-14545   Date Filed: 08/03/2018   Page: 1 of 9


                                                     [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-14545
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:02-cr-00380-CC-JSA-3



UNITED STATES OF AMERICA,

                                                     Plaintiff - Appellee,

                                  versus

LEWIS CLAY,

                                                     Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                             (August 3, 2018)

Before WILSON, JORDAN and JILL PRYOR, Circuit Judges.

PER CURIAM:
              Case: 17-14545       Date Filed: 08/03/2018   Page: 2 of 9


      Lewis Clay appeals the district court’s revocation of his supervised release.

On appeal, Clay argues that the district court erred by considering hearsay during

his revocation hearing. He also argues that the government failed to prove by a

preponderance of the evidence that Clay had violated the terms of his supervised

release. After careful review, we affirm.

                              I.      BACKGROUND

      Clay completed a term of incarceration in July 2016 and began a 10 year

term of supervised release. As a condition of Clay’s supervised release, he was

required to refrain from committing another federal, state, or local crime. After

Clay was arrested for being in possession of cocaine with the intent to distribute,

the probation office filed a petition to revoke Clay’s supervised release.

      The following evidence was adduced during Clay’s revocation hearing.

Jerrold Wilkerson, a detective with the Clayton Country Drug Task Force, testified

that he received information from a confidential informant (“CI”) who had

purchased cocaine. Wilkerson arranged a controlled buy between the CI and the

seller. The CI called the seller in Wilkerson’s presence and arranged to meet at a

gas station to complete the sale. At the agreed-upon time, Wilkerson saw a black

BMW with license plate number RFV0437 approach the gas station parking lot. A

man, whom Wilkerson identified during the revocation hearing as Clay, was

driving the BMW. Although Clay stayed in the car, Wilkerson had an


                                            2
                 Case: 17-14545        Date Filed: 08/03/2018        Page: 3 of 9


unobstructed view of a hand-to-hand transaction between the CI and Clay. After

the transaction, the CI gave Wilkerson a clear plastic bag containing a white

powder. The powder field tested positive for cocaine. Wilkerson ran the phone

number that the CI had called and the plate number for the BMW. Both came back

as associated with Clay.

      Wilkerson arranged a second controlled buy between the CI and Clay.

Wilkerson did not personally observe this transaction. Instead, he relied on

information from other officers, who told him that Clay arrived in the same BMW.

None of the officers, however, observed a hand-to-hand transaction.

      Finally, Wilkerson arranged a third controlled buy. The CI made contact

with Clay using the same phone number he had called during the previous buys;

Clay arrived in the same black BMW. Wilkerson observed the transaction, at no

point losing sight of Clay or the CI. The CI again turned over the substance he

purchased from Clay, which appeared to Wilkerson to be consistent with cocaine.

      After he was apprehended and had waived his Miranda rights, Clay made a

statement to Wilkerson. Clay stated that he was a “small fish” who could help

Wilkerson catch “bigger fish.” Doc. 299 at 26. 1 He explained that he could get

Wilkerson an “ounce” later in the day, but he wanted written assurance that his

assistance might help his case. Id.


      1
          Citations to “Doc #” refer to the numbered district court docket entries.
                                                  3
               Case: 17-14545     Date Filed: 08/03/2018    Page: 4 of 9


      During the revocation hearing, Clay’s probation officer testified that as a

condition of Clay’s supervised release, Clay had provided him with monthly

supervision reports. In those reports, Clay had listed a cell phone number that

matched the phone number the CI called to set up the controlled buys. Clay also

had reported owning a black BMW with the license plate number RFV0437.

      Based on this evidence, the district court found that Clay had violated the

terms of his supervised release by committing the offense of possession of cocaine

with intent to distribute on the dates of the first and third controlled buys. After

hearing argument from Clay and the government, the district court sentenced Clay

to 21 months’ imprisonment and three years of supervised release. This is Clay’s

appeal.

                        II.     STANDARDS OF REVIEW

      A district court may revoke a defendant’s supervised release and sentence

the defendant to serve all or part of the supervised release term in prison if the

court finds by a preponderance of the evidence that the defendant violated a

condition of supervised release. 18 U.S.C. § 3583(e)(3). We review the district

court’s revocation decision for an abuse of discretion, United States v.

Cunningham, 607 F.3d 1264, 1266 (11th Cir. 2010), but we review questions of

law de novo, United States v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994).




                                           4
                Case: 17-14545       Date Filed: 08/03/2018      Page: 5 of 9


Additionally, we are bound by the district court’s findings of fact unless they are

clearly erroneous. United States v. Almand, 992 F.2d 316, 318 (11th Cir. 1993).

                                     III.   ANALYSIS

       Clay raises two arguments on appeal: (1) the district court erred by

considering hearsay during the revocation hearing, and (2) the district court erred

in finding that Clay had violated his supervised release because the evidence was

insufficient to prove that Clay had committed the offense of possession of cocaine

with intent to distribute. We address each argument in turn.

A.     The District Court Committed No Reversible Error By Admitting and
       Considering Hearsay.

       Clay argues that the district court erred by considering hearsay statements

without conducting the proper balancing test and without finding that the

statements were reliable. Specifically, Clay objects to two sources of alleged

hearsay: testimony about what the CI told Wilkerson and testimony about what the

other officers told Wilkerson. 2

       Although the Federal Rules of Evidence do not apply to revocation

proceedings, the defendant nevertheless must be afforded “certain minimal due

       2
         The government argues that Clay failed to preserve his hearsay objections because he
objected to this testimony as violating his rights under the Confrontation Clause of the Sixth
Amendment, which does not apply to supervised release revocation hearings. With respect to
Wilkerson’s testimony about the CI, however, the district court appears to have treated Clay’s
objection as a hearsay objection. The court responded that it would consider the testimony only
to explain Wilkerson’s conduct. We need not decide whether Clay properly preserved a hearsay
objection to Wilkerson’s testimony about the other officers because we conclude there was no
reversible error under any standard of review.
                                               5
              Case: 17-14545     Date Filed: 08/03/2018    Page: 6 of 9


process requirements” during a revocation hearing. Frazier, 26 F.3d at 114. In

deciding whether to admit hearsay testimony in a supervised release revocation

hearing the district court therefore “must balance the defendant’s right to confront

adverse witnesses against the grounds asserted by the government for denying

confrontation” and also must find that the hearsay statement is “reliable.” Id.

Failure to apply this two part test constitutes a due process violation, but we will

not reverse if the error was harmless. Id.

      As for the testimony regarding what the CI told Wilkerson, its admission

was not erroneous because it was not hearsay. Hearsay is a statement other than

one the declarant makes while testifying that is offered to prove the truth of the

matter asserted in the statement. Fed. R. Evid. 801(c). Here, the district court did

not consider Wilkerson’s testimony regarding what the CI said for the truth of the

matter asserted; rather, the testimony’s purpose was to explain Wilkerson’s actions

in setting up the controlled buys. Accordingly, because no hearsay statement was

admitted, there was no need for the district court to apply the Frazier balancing test

or to determine whether the hearsay was reliable.

      As for the testimony regarding what the other officers told Wilkerson, even

assuming those statements amounted to impermissible hearsay, any error was

harmless. As we explain below, the non-hearsay evidence “overwhelmingly

demonstrated that [Clay] breached the terms of his supervised release.” Id. Clay


                                             6
               Case: 17-14545     Date Filed: 08/03/2018   Page: 7 of 9


thus has failed to show that the district court committed reversible error by

considering hearsay testimony without conducting a balancing test or finding that

the statements were reliable.

B.    The District Court Did Not Clearly Err By Finding that Clay
      Committed the Offense of Possession of Cocaine With Intent to
      Distribute.

      Clay next argues that the district court erred in finding that he had violated

the terms of his supervised release because the government failed to prove that he

committed the offense of possession of cocaine with intent to distribute. Clay

asserts that the evidence was insufficient for the district court to have found that

(1) Clay was the person who sold the white powdery substance to the CI and (2)

the substance was cocaine. For the following reasons, we conclude that the district

court’s findings were not clearly erroneous.

      First, Clay argues that there was insufficient evidence to prove that he was

the person selling the substance to the CI. Clay acknowledges that Wilkerson

identified him in court, but argues that the identification was unreliable because

Wilkerson only saw the seller for a short period of time and never saw him leave

the car. Clay further argues that the phone number and the BMW, both of which

were connected to him, were insufficient to establish that he was the person selling

the substance. We disagree. The government presented the following evidence to

prove that Clay was the person selling the substance to the CI: (1) Wilkerson


                                           7
              Case: 17-14545      Date Filed: 08/03/2018   Page: 8 of 9


personally observed Clay selling the substance to the CI on two occasions and

positively identified Clay in court; (2) the phone number the CI used to reach the

drug supplier was the same number that Clay gave to his probation officer; and (3)

the car used by the drug supplier was a black BMW, the same type of car that Clay

told his probation officer that he owned, with the same license plate number that

Clay had reported to his probation officer. This evidence was sufficient to prove

by a preponderance of the evidence that Clay was the person selling the substance

to the CI during the first and third controlled buys.

      Second, Clay argues that the evidence was insufficient to prove that the

substance he sold to the CI was cocaine. He notes that the substance was not

subjected to a laboratory test and that the government failed to prove what type of

field test was used. The government can establish that a substance was cocaine

based solely on circumstantial evidence, including “the uncorroborated testimony

of a person who observed a defendant in possession of a controlled substance . . . if

the person is familiar with the substance at issue.” United States v. Baggett, 954

F.2d 674, 677 (11th Cir. 1992) (internal quotation marks omitted). Here, the

evidence was sufficient to establish by a preponderance of the evidence that the

substance Clay sold was cocaine: during the first controlled buy, the substance

field tested positive for cocaine; during the third controlled buy, the substance

appeared to Wilkerson, a member of the Clayton County Drug Task Force, to be


                                           8
              Case: 17-14545     Date Filed: 08/03/2018    Page: 9 of 9


cocaine; and after Clay was apprehended, he told Wilkerson that he was a small

fish who could help Wilkerson arrest larger distributors. The district court thus did

not clearly err in finding that Clay had violated the terms of his supervised release

by committing the offense of possession of cocaine with intent to distribute.

                               IV.   CONCLUSION

      For the foregoing reasons, we affirm the district court’s revocation of Clay’s

supervised release.

      AFFIRMED.




                                          9
