                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 04-16186                      FILED
                                                        U.S. COURT OF APPEALS
                            Non-Argument Calendar         ELEVENTH CIRCUIT
                          ________________________             July 11, 2005
                                                           THOMAS K. KAHN
                       D.C. Docket No.   02-20494-CR-DLG         CLERK


UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

      versus

GEORGE MORRIS,

                                                              Defendant-Appellant.

                         __________________________

               Appeal from the United States District Court for the
                          Southern District of Florida
                         _________________________
                                (July 11, 2005)


Before BIRCH, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

      George Morris, a federal prisoner, appeals the district court’s revocation of

his probation for his underlying conviction for uttering and possessing counterfeit
obligations of the United States with intent to defraud. Although the district court

erred in failing to expressly determine the reliability of the hearsay evidence and

weigh Morris’s confrontation rights against the government’s reasons for failing to

produce the witness, the error, if any, was harmless. The record also contained a

written report concerning the same subject matter that, as a business record, bears

significant indicia of reliability. Accordingly, we AFFIRM.

                               I. BACKGROUND

      In 2002, Morris, pursuant to a written plea agreement, pleaded guilty to one

count of uttering and possessing counterfeit obligations of the United States, with

intent to defraud, in violation of 18 U.S.C. § 472. The district court sentenced

Morris to four years of probation. The conditions of the probation included, inter

alia, that: (1) Morris was not to use any controlled substance, except as prescribed

by a physician; and (2) Morris was to reside at and participate in the Community

Corrections Center (“CCC” or “halfway house”) for a period not to exceed 120

days, or until otherwise released at the direction of the U.S. Probation Officer.

      On 31March 2004, the probation office notified the district court that Morris

had violated the terms of his probation by unlawfully possessing or using a

controlled substance. The probation office noted that Morris’s urine sample had

tested positive for cocaine and that, upon questioning, Morris had admitted to

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using cocaine on 16 and 23 February 2004. The probation officer recommended

that Morris’s probation be modified to require 30 days in a comprehensive

sanction center, followed by 90 days in the CCC, followed by 60 days on

electronic monitoring. The court authorized the modification.

      On 18 August 2004, the probation office notified the court that Morris had

again violated the terms of his probation. The report included the February 2004

positive urine sample, and also stated that Morris had failed to participate in the

CCC. It stated that, on 15 July 2004, Morris was unsuccessfully discharged from

the center for being “unaccountable.” R1-25 at 1. The probation officer

recommended that the court revoke Morris’s probation. The court issued a

summons.

      A hearing was held regarding the revocation of Morris’s probation. The

court noted that the violations included (1) Morris’s admission that he used

cocaine on two occasions in February, and (2) his alleged failure to participate in

the CCC. At first, Morris stated that he admitted the violations and wished to

proceed to sentencing. However, when asked whether he had any questions,

Morris stated that officials had just decided that he should be expelled from the

halfway house and that it was “kind of like an open and shut case on my part.” R1

at 5. When the district court asked Morris whether he was saying that he wanted

                                          3
to contest the violations, Morris stated that he wanted to admit to the positive

urine test violation but contest the violation concerning his discharge from the

CCC.

       The government called to the stand U.S. Probation Officer Donald Harrell,

who had been Morris’s probation officer since he was sentenced. Harrell testified

that he was notified by Melissa Bohler, Harrell’s case manager at the CCC, that on

14 July 2004, Morris was allowed to sign out to go to a doctor’s appointment. The

CCC had a requirement that all participants must call the center upon their arrival

at and before their departure from the office. Bohler informed Harrell that, on 14

July, Morris signed off for his doctor’s appointment and was supposed to report to

work at 12:30. Bohler stated that Morris failed to call upon his arrival at the

doctor’s office and upon his departure from the doctor’s office. He also failed to

call upon his arrival at work. Bohler told Harrell that she placed a random call to

his employer at 3:00 and was advised that Morris was not there and was due back

to work at 4:00. Bohler told Harrell that Morris was “unaccountable” during the

time he left the CCC. R1 at 8.

       Harrell further testified that Bohler told him about a subsequent incident on

15 July 2004. Morris was signed out to go to work at 12:00 noon and was to

attend a treatment session after work. At 12:30, it was discovered that Morris had

                                          4
not called upon his arrival at work and had not called to report that he left work to

attend his treatment session. A random call was placed to his employer at 12:35,

and the employer advised that Morris had already left for the day. Bohler stated

that, at 2:15, Morris called the case manager and stated that he was still at work

and that his treatment session had been cancelled. Bohler ordered Morris back to

the CCC. Upon his arrival, the CCC terminated him from the program. Bohler

indicated to him that Morris was discharged from the CCC on 15 July. Harrell

testified that Morris had not completed his court-ordered term at the CCC at that

time.

        On cross-examination, Harrell testified that he did not have personal

knowledge of the events that occurred on 14 and 15 July 2004, and that his

information came from what Bohler had told him and from a written report that

she submitted. The written report was entered into evidence.1 When asked

whether he knew who Bohler spoke to when she called to “check up” on Morris’s

location, Harrell stated that he did not know the specific person, but that Bohler

stated that she had called Morris’s employer. R1 at 12.



        1
        It appears that the written report was not included in the record on appeal. See generally
R1. However, the government has attached the report to its brief. See Appellee’s Brief at Appendix
A. Morris has not submitted a reply brief challenging the authenticity of the appended report.
Bohler’s report was consistent with Officer Harrell’s testimony. See id.

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      The government rested its case, and the defense rested without presenting

any evidence or witnesses. Morris then argued that the hearsay testimony of the

probation officer, who admittedly had no personal knowledge of the events in

question, was not sufficient to satisfy the government’s burden to prove Morris

guilty of the violations. He asserted that “there was some successful time in the

halfway house and it appears to be just a misunderstanding that could have been

resolved that didn’t need to result in a violation.” R1 at 13.

      The district court noted that it had only the evidence presented by the

government to base its decision on, stating, “There was no evidence challenging

what happened.” The court found that the government had met its burden of

proving the violations by a preponderance of the evidence. The court noted,

“When the evidence is not challenged, the matter of hearsay is not really that

significant. If he took the stand and testified to facts [to the] contrary, then we’d

have to consider the weight of the hearsay, but in this case there was no such

challenge.” R1 at 14.

      The court stated that the guideline imprisonment range was 4 to 10 months.

Morris requested a sentence that did not include incarceration, perhaps including

electronic monitoring instead. The government requested a sentence of four

months’ imprisonment, noting that there were two violations, one admitted and

                                           6
one contested. The district court revoked Morris’s probation and sentenced him to

6 months’ imprisonment, followed by 30 months of supervised release. This

appeal followed.

                                 II. DISCUSSION

      On appeal, Morris argues that the district court denied him due process

when it found that he violated the terms of his probation based upon “unreliable

hearsay.” Appellant’s Brief at 9. Morris does not dispute that the district court

was permitted to consider hearsay evidence in the probation revocation hearing,

but rather claims that its discretion was not unlimited and that the hearsay in his

case was unreliable. Morris notes that the Supreme Court recently addressed the

reliability of hearsay evidence in Crawford v. Washington, 541 U.S. 36, 124 S.Ct.

1354, 158 L.Ed.2d 177 (2004). Morris asserts that the hearsay evidence was

unreliable because the only evidence before the court was the testimony of Harrell,

who admitted that he had no personal knowledge of the facts and who based his

entire testimony on information he received from Bohler. He argues that Bohler

was not called as a witness and there was no evidence that she was unavailable.

He further argues that the information Bohler related to Harrell was received by a

“completely unidentified” third party at Morris’s office. Id. at 10. Finally, Morris




                                          7
asserts that the district court “improperly relied upon the fact that [he] did not

testify during the proceedings. Id. at 10-11.

       We review a district court’s decision to revoke a defendant’s probation for

an abuse of discretion. United States v. Frazier, 26 F.3d 110, 112 (11th Cir.

1994).2

       The Federal Rules of Evidence do not apply in supervised release

revocation hearings. Id. at 114. However, defendants in probation and supervised

release revocation proceedings are entitled to “certain minimal due process

requirements” including the right to confront and cross-examine witnesses. Id. In

determining whether to admit hearsay testimony, the district court “must balance

the defendant’s right to confront adverse witnesses against the grounds asserted by

the government for denying confrontation.” Id. This includes making a finding

that the hearsay was reliable and weighing the defendant’s right of confrontation

against the government’s reasons for not producing the witness. Id. However, the

district court’s failure to make such findings, although erroneous, is subject to

harmless error review. Id.




       2
        Although Frazier deals with the revocation of supervised release, probation revocation and
supervised release revocation are “so analogous as to be interchangeable” and there is “no significant
conceptual difference” between the two. Frazier, 26 F.3d at 113-14.

                                                  8
      This case is very similar to United States v. Lora, No. 00-15420 (11th Cir.

2001), See Appellee’s Brief, Appendix B. Although the opinion is unpublished

and, therefore, not binding on us it is useful for purposes of consistency. In Lora,

the defendant’s probation officer testified that Lora had violated the conditions of

his supervised release by, inter alia, failing to participate in the Comprehensive

Sanction Center. The district court admitted the probation officer’s testimony that

Lora did not complete the program, failed to follow the procedures of the program,

and was discharged from the program. The probation officer’s testimony relied

upon a summary report provided to him by Lora’s case manager at the

Comprehensive Sanction Center.

      In Lora, we held that, although the district court erred in failing to make

express findings on the record under the Frazier balancing test, the error was

harmless. We held that the case manager’s report to the probation officer, which

was an official report regularly kept in the course of the center’s business, bore

significant indicia of reliability and was admissible as a business records

exception to the hearsay rule under Fed.R.Evid. 803(6). We also noted that Lora

never disputed that he was terminated from the Comprehensive Sanction Center

before completing the program.




                                          9
      The instant case is indistinguishable from Lora. Although the district court

in the instant case made no specific findings concerning the reliability of the

hearsay and did not expressly balance Morris’s right to cross-examination against

the government’s reasons for failing to produce the witness, the error, if any, was

harmless. Bohler’s written report on the violation, which provided the basis for

and was essentially the same as Officer Harrell’s testimony, was entered as

evidence at the hearing without objection. See R2 at 11; see also Appellee’s Brief

at Appendix A. This report, like the report in Lora, “bears significant indicia of

reliability” and, even in a criminal proceeding where the Federal Rules of

Evidence apply, would have been admissible as a business records exception to

the hearsay rule under Fed.R.Evid. 803(6). See Lora, Appellee’s Brief, Appendix

B at 4. Additionally, Morris, like Lora, never disputed that he was terminated

from the CCC before completing the program. See id. at 5; see generally R2.

      To the extent that Morris relies upon the Supreme Court’s Crawford

decision, that decision is inapplicable to his situation. Crawford dealt with an

initial criminal proceeding, not a revocation of probation or supervised release,

and was based upon the defendant’s Sixth Amendment Confrontation Clause right.

Crawford, 541 U.S. at 38, 124 S.Ct. at 1357. However, the Sixth Amendment

right to confrontation is specifically limited to “criminal prosecutions.” Id.; see

                                          10
also U.S. CONST., amend. VI. The Supreme Court previously has held that the

revocation of parole is not a part of a criminal prosecution. Morrissey v. Brewer,

408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). Although we

have not had an opportunity to address the issue, two Circuits have held Crawford

inapplicable to probation or supervised release revocation hearings. See United

States v. Aspinall, 389 F.3d 332, 342-43 (2d Cir. 2004); United States v. Martin,

382 F.3d 840, 844 & n.4 (8th Cir. 2004).

      Finally, we conclude that Morris’s argument that the district court

improperly relied upon the fact that he did not testify is without merit. Although

the court commented that Morris had not taken the stand, an examination of this

comment in context reveals that the district court was saying that Morris had not

presented any evidence at all to dispute the evidence that the government had

presented and, therefore, the government had met its burden to prove the violation

by a preponderance of the evidence. The court was not focused on Morris’s

failure to testify, but rather his failure to present any evidence at all to refute the

government’s claims.




                                           11
                              III. CONCLUSION

      Based on our review of the record and Morris’s arguments, we cannot

conclude that the district court erred in revoking his probation. Accordingly, we

AFFIRM.




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