                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0565n.06
                                                                                           FILED
                                           No. 10-3972
                                                                                      Aug 12, 2011
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
MICHAEL KOKOSKI,                                  )   SOUTHERN DISTRICT OF OHIO
                                                  )
       Defendant-Appellant.                       )


       Before: SUTTON and WHITE, Circuit Judges; STAFFORD, District Judge.*


       SUTTON, Circuit Judge. Michael Kokoski appeals the district court’s judgment revoking

his supervised release and imposing a 34-month prison sentence. We affirm.


                                                 I.


       In 1994, Kokoski pleaded guilty to one count of employing a minor to distribute LSD, and

in 2000 he pleaded guilty to one count of escaping from a correctional institution. For these crimes,

the district court sentenced him to a total of 181 months of imprisonment and 72 months of

supervised release. Kokoski was released from prison and began his term of supervised release in

June 2008. On March 9, 2010, the district court revoked his supervised release and sentenced

Kokoski to two months in prison after he admitted committing various state crimes and using drugs.

       *
         The Honorable William H. Stafford, Jr., Senior United States District Judge for the
Northern District of Florida, sitting by designation.
No. 10-3972
United States v. Kokoski

        Less than a month after Kokoski began serving his second term of supervised release, his

probation officer accused him of: (1) bringing an impostor (a friend purporting to be his attorney)

to a drug-counseling session; (2) stating at a counseling session that he felt “as if [he] could get a gun

and shoot [his probation officer] in the head”; (3) disrupting group counseling sessions; and (4)

making “inappropriate comments” to staff at the drug-treatment facility, which, in combination with

his erratic behavior, made female staff members there “very uncomfortable.” SRVR II at ¶ 5–12.


        The district court held a second supervised release revocation hearing, after which it found

that Kokoski had failed to engage in the drug treatment required by his terms of release. The

sentencing guidelines recommended a prison sentence in the range of 8–14 months, but the district

court concluded that an above-guidelines sentence was “fully supported by Mr. Kokoski’s history,

his characteristics, and his behavior.” R.58 at 53. On the government’s recommendation, the court

sentenced Kokoski to a term of 34 months, the statutory maximum.


                                                   II.


                                                   A.


        Kokoski contends that the revocation hearing violated due process because the district court

refused to allow him to cross-examine witnesses against him. Supervised release revocation

proceedings, like their forerunners (parole revocation proceedings), are subject only to “minimum

requirements of due process,” which are less demanding than the procedural protections that

normally accompany criminal trials. Morrissey v. Brewer, 408 U.S. 471, 489 (1972) (parole

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United States v. Kokoski

revocation); United States v. Lowenstein, 108 F.3d 80, 85 (6th Cir. 1997) (supervised release

revocation). While these requirements generally include “the right to confront and cross-examine

adverse witnesses,” the hearing process should nonetheless be “flexible enough to consider evidence

including letters, affidavits, and other material that would not be admissible in an adversary criminal

trial.” Morrissey, 408 U.S. at 489; accord Fed. R. Crim. P. 32.1(b)(2)(C). Neither the Confrontation

Clause, see United States v. Kirby, 418 F.3d 621, 627 (6th Cir. 2005), nor the Federal Rules of

Evidence, see Fed. R. Evid. 1101(d)(3), apply in supervised release revocation hearings, permitting

the use of hearsay evidence as long as it is reliable, United States v. Waters, 158 F.3d 933, 940 (6th

Cir. 1998). We review reliability findings for abuse of discretion. United States v. Whitely, 356 F.

App’x 839, 843 (6th Cir. 2009).


       A number of factors go into the reliability inquiry. “Hearsay given under oath, replete with

detail, or supported by corroborating evidence has been recognized as reliable. Conversely, out-of-

court statements reflecting an adversarial relationship with the accused, or containing multiple layers

of hearsay, have been recognized as unreliable.” United States v. Lloyd, 566 F.3d 341, 345 (3d Cir.

2009); see also United States v. Moncivais, 492 F.3d 652, 658–59 (6th Cir. 2007) (finding hearsay

reliable because it was “richly detailed” and “both internally and externally consistent”). The

evidence presented at Kokoski’s second revocation hearing satisfied this reliability requirement.


       Evaluations of Kokoski by Moster and Fischer. Kokoski objected to the admission of the

evaluations by Dr. Moster and Ms. Fischer, describing them as “the real meat of the violation.” R.58

at 17. The district court reasonably concluded that both evaluations were reliable. Dr. Moster’s

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United States v. Kokoski

report is a discharge summary, a record kept in the ordinary course of business at the treatment

center. See Fed. R. Evid. 803(6). Ms. Fischer’s report consists of notes taken while treating a

patient, which we have recognized may be admitted as a business record. See Flood v. Phillips, 90

F. App’x 108, 117 (6th Cir. 2004). There is no reason to doubt—and thus far no one has offered any

reason to doubt—that the two reports here satisfy the requirements of business records. Because

both evaluations fall within this “firmly rooted hearsay exception,” their reliability “can be inferred

without more.” Ohio v. Roberts, 448 U.S. 56, 66 (1980), overruled on other grounds by Crawford

v. Washington, 541 U.S. 36, 67 (2004). The evaluations, moreover, are detailed accounts that

corroborate each other and indeed have been corroborated by Kokoski himself. See Crawford v.

Jackson, 323 F.3d 123, 130 (D.C. Cir. 2003) (hearsay is reliable and admissible at a revocation

hearing when corroborated by the defendant’s own statements). Kokoski’s counsel acknowledged

the truth of two of the allegations—that his client brought an impostor to counseling and had mused

about shooting his probation officer. And the allegation that Kokoski was not meaningfully

participating in drug treatment is confirmed by Kokoski’s own admission that he does not “view

[himself] as having a drug problem” and is “not interested in sobriety.” R.37 at 2. Because Kokoski

“does not specifically dispute the reliability of [these factual allegations] on appeal,” we cannot

say—indeed it would be exceedingly hard to say—that the district court abused its discretion in

considering them. United States v. Roark, 403 F. App’x 1, 5 n.6 (6th Cir. 2010).


       There is some question whether a district court’s reliability finding must satisfy a procedural

requirement as well, namely that the court expressly balance on the record the government’s interest


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United States v. Kokoski

in relying upon the hearsay—the Moster and Fischer reports—against Kokoski’s interest in

confrontation. Compare United States v. Kelley, 446 F.3d 688, 692 (7th Cir. 2006) (no explicit

balancing required if hearsay is sufficiently reliable), with Barnes v. Johnson, 184 F.3d 451, 454 (5th

Cir. 1999) (requiring “an explicit, specific finding of good cause” to permit the use of hearsay at a

parole revocation hearing). Whether such a requirement exists and, if so, when it applies need not

detain us. Even if trial courts must spell out on the record why the balancing inquiry came out the

way it did, any such error was harmless here.


        In the context of a supervised release revocation hearing, the erroneous admission of hearsay

evidence is harmless unless it “affect[ed]” the defendant’s “substantial rights,” United States v.

Whitely, 356 F. App’x 839, 843 (6th Cir. 2009), which is to say that it altered “the outcome of the

district court proceedings,” United States v. Jackson, ___ F. App’x ___, No. 10-4165, 2011 WL

1597665, at *3 (6th Cir. Apr. 28, 2011). The key factual allegations contained in the hearsay

evidence—that Kokoski threatened his probation officer, brought an impostor to counseling sessions

and was not interested in freeing himself from his drug problem—were not disputed at Kokoski’s

revocation hearing, and they are not disputed on appeal. See Whitely, 356 F. App’x at 844. All of

this by definition establishes harmlessness—that admission of the two reports did not alter the

outcome of the proceedings. See United States v. Stanfield, 360 F.3d 1346, 1360 (D.C. Cir. 2004)

(Roberts, J.).


        Probation Officer Frommeyer’s Report and Statements. Nor did the district court err in

relying upon the report prepared, and the in-court statements made, by Robert Frommeyer, the

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United States v. Kokoski

supervising probation officer handling Kokoski’s case. Because Kokoski did not object to the

court’s consideration of Frommeyer’s report and statements, we review the district court’s decision

to consider them for plain error. Frommeyer appeared at the revocation hearing, giving Kokoski the

opportunity to question him about the contents of his report. Kokoski chose not to do so, presumably

because he did not contest the accuracy of the relevant portions of Frommeyer’s report and

statements. See supra at 4. On this record, the district court reasonably “could have concluded that

[Frommeyer’s report and statements] were fairly reliable, insofar as they were corroborated by . . .

undisputed fact[s],” defeating any possibility of plain error. Stanfield, 360 F.3d at 1360.


        Notice. Kokoski argues that the pleadings filed by the government failed to give him notice

of the charges against him. He complains that the government charged him with failing to

participate in drug treatment but then “unleashed” a battery of unrelated charges against him at the

revocation hearing. Kokoski Br. at 16–17. Not true. The government presented the same factual

allegations at the hearing that it included in its initial petition for revocation: bringing a friend with

him to treatment, announcing his intention to kill his probation officer, making inappropriate

comments to staff members and not seriously engaging in treatment. And the term of the agreement

he violated—failing to participate in a drug-treatment program—is the same one the government

raised in its petition. Kokoski had notice of the charges against him.




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United States v. Kokoski

                                                  B.


        Kokoski argues that insufficient evidence supported the supervised-release violation. We

disagree. The court acknowledged that Kokoski was physically present at treatment sessions but

found that he did not take treatment seriously, that he engaged in disruptive and threatening behavior

at treatment sessions, and that he had no sincere desire to end his drug addiction. The record amply

supports these findings, permitting the court to conclude that Kokoski did not meaningfully

participate in the treatment program.


                                                  C.


        Kokoski argues that the psychotherapist–patient privilege protected statements he made to

a counselor while receiving drug treatment and should not have been considered. The issue here is

not whether the privilege—protecting “confidential communications made to licensed psychiatrists

and psychologists”—applies. Jaffee v. Redmond, 518 U.S. 1, 15 (1996). It is whether Kokoski

waived the privilege. A patient may waive the psychotherapist–patient privilege by knowingly and

voluntarily relinquishing it, such as by disclosing the substance of therapy sessions to unrelated third

parties. United States v. Hayes, 227 F.3d 578, 586 (6th Cir. 2000).


        Kokoski waived the privilege, first, by signing a waiver form authorizing the release of

confidential information to the probation office. The form notified Kokoski that the information

disclosed could include the “type, frequency, and effectiveness of therapy (including psychotherapy

notes).” R.48 Ex. A. Kokoski argues that the waiver should be set aside because he had no choice

                                                 -7-
No. 10-3972
United States v. Kokoski

but to sign it as a condition of his supervised release, creating a “classic Catch 22 scenario” in which

Kokoski had to attend counseling but could not share his personal thoughts without running the risk

that they would be used against him at a revocation hearing. Kokoski Br. at 25. Whatever the merits

of that claim as a matter of policy, the government was well within its rights to demand that Kokoski

surrender certain rights and privileges as a condition of supervised release, including the

psychotherapist–patient privilege. Cf. Griffin v. Wisconsin, 483 U.S. 868, 874 (1987). Kokoski at

any rate waived the privilege in another way—by disclosing the substance of his therapy sessions.

He included a copy of Dr. Moster’s report in his motion for sanctions.


                                                  D.


        Kokoski claims that his sentence was procedurally unreasonable because the court failed to

consider the guidelines or justify its imposition of an above-guidelines sentence. Since Kokoski did

not object to the sentencing procedure below, despite being given an opportunity to do so, we review

this claim for plain error. United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2007) (en banc). The

district court committed no procedural error, let alone a plain one. It considered the § 3553

sentencing factors and guidelines range, properly treated the guidelines as advisory and considered

both parties’ arguments before clearly explaining its rationale for the sentence imposed.


                                                  E.


        Kokoski separately claims that his 34-month prison sentence was substantively unreasonable,

a claim we review “under a deferential abuse-of-discretion standard.” Gall v. United States, 552

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No. 10-3972
United States v. Kokoski

U.S. 38, 41 (2007). When a district court imposes a sentence outside the guidelines range, it “must

consider the extent of the deviation and ensure that the justification is sufficiently compelling to

support the degree of the variance,” since “a major departure should be supported by a more

significant justification than a minor one.” Id. at 50.


       No doubt, this sentence was well above the guidelines range—20 months over the 14-month

high end of the range. But that does not make it excessive or an abuse of discretion. The court

justified the variance based on Kokoski’s extensive criminal history (including multiple supervised

release violations in a three-month span), his lack of interest in receiving treatment and his

statements about shooting his probation officer—all legitimate grounds for this variance. See United

States v. Woodward, 638 F.3d 506, 510 (6th Cir. 2011) (extensive criminal history); United States

v. Branch, 405 F. App’x 967, 969–70 (6th Cir. 2010) (repeated violations of terms of supervised

release); United States v. Kontrol, 554 F.3d 1089, 1092–93 (6th Cir. 2009) (threatening remarks to

probation officer). No reversible error occurred.


                                                 III.


       For these reasons, we affirm.




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United States v. Kokoski

        WHITE, J., dissenting. Because Kokoski was deprived of his right to cross-examine

 adverse witnesses at the revocation hearing, in violation of due process, and the error was not

 harmless, I respectfully dissent.


        The Government called no witnesses at the revocation hearing. Only Frommeyer,

 Kokoski’s probation officer’s supervising officer who had signed the Petition for Warrant and

 Supervised Release Violation Report, spoke, without having been sworn to tell the truth.


        Kokoski’s counsel objected, stating “Your Honor, we would like to cross-examine the

 evidence in some format. The government’s called no witnesses. I anticipated that they would

 put on some type of evidence to substantiate the violation.” R. 58 at 62. Kokoski’s counsel also

 objected to the district court relying on counselor Fischer’s and Dr. Moster’s reports, which were

 attached to Frommeyer’s Supervised Release Violation Report.


        The Government conceded at argument that Frommeyer had no first-hand knowledge of

 the contents of his report, which included the statement that “It is the opinion of Kokoski’s group

 treatment counselor [Melissa Fischer] that Kokoski was not engaged in treatment and his

 behavior was disruptive to the group process.” Yet, as discussed below, counselor Fischer’s

 group therapy notes state no such opinions.


        Given Kokoski’s objection to not being able to cross-examine adverse witnesses, the

 district court was obligated to balance Kokoski’s right to cross-examine counselor Fischer and


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No. 10-3972
United States v. Kokoski

 psychologist Moster against the Government’s reasons for denying it, and to determine whether

 the Government established good cause for failing to have them appear. See Fed. R. Crim. P.

 32.1, Advisory Committee Notes to the 2002 Amendments:


           Rule 32.1(b)(2)(C) address[es] the ability of a releasee to question adverse
           witnesses at the . . . revocation hearing. [That] provision[] recognize[s] 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. See, e.g.,
           Morrissey v. Brewer, 408 U.S. 471, 489 (1972); United States v. Comito, 177 F.3d
           1166 (9th Cir. 1999); United States v. Walker, 117 F.3d 417 (9th Cir. 1997);
           United States v. Zentgraf, 20 F.3d 906 (8th Cir. 1994).


 See also United States v. Waters, 158 F.3d 933, 940 (6th Cir. 1998) (noting that under Rule 32.1

 “the trial court may consider reliable out-of-court statements in a final revocation hearing

 provided that the defendant’s need for confrontation is outweighed by the government’s ground

 for not requiring confrontation”).1 Here, the district court made no such inquiry of the


       1
           Am Jur, Pardon & Parole § 149, states:

               A parolee must be afforded the opportunity for an effective rebuttal of the
       allegations presented. Although a formal hearing and formalized cross-examination
       are not necessary, on the request of the parolee, a person who has given adverse
       information on which parole revocation is to be based must be made available for
       questioning in the parolee’s presence. The parole board may not circumvent this
       requirement by declining to offer the witness’s live testimony and relying instead on
       summaries of what the witness would testify to if called. Rather, only if the hearing
       examiner finds good cause for not producing the witness . . . can the government be
       excused from proffering the best evidence.

See also Neil P. Cohen, The Law of Probation and Parole (2d ed.), § 26.24 at 26-57:

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United States v. Kokoski

 Government, and the Government showed no cause, good or otherwise, for failing to present any

 witnesses.


        The majority concludes that 1) Kokoski did not object to the court’s consideration of

 Frommeyer’s report and statements, and 2) that Kokoski had the opportunity to question

 Frommeyer about the contents of his report but “chose not to do so, presumably because he did

 not contest the accuracy of the relevant portions of Frommeyer’s report and statements.” I

 disagree with both determinations. Defense counsel stated at the revocation hearing that Kokoski

 denied Frommeyer’s allegation that he had violated his supervised release, and counsel’s

 objection to the Government’s failure to present witnesses included that the Government had

 presented no evidence substantiating Frommeyer’s report and statements. Thus, I cannot agree

 with the majority that Kokoski failed to object to Frommeyer’s report and statements standing

 alone, and chose not to question Frommeyer “presumably because he did not contest the accuracy

 of” Frommeyer’s report and statements. Because Frommeyer had no first-hand knowledge of any

 of the contents of his report, questioning him would have yielded only repetition of the very

 conclusion Kokoski sought to challenge by examining the source of the information.




       The record of the final revocation hearing should . . . include the reason for any
       denial of the rights of confrontation . . . Morrissey provides for a right of
       confrontation unless the decisionmaker “specifically finds” good cause to disallow
       it. . . .

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United States v. Kokoski

        The majority concludes regarding counselor Melissa Fischer and psychologist Moster’s

 writings, which were attached to Frommeyer’s Violation Report, that 1) the district court

 “reasonably concluded that both evaluations were reliable,” 2) there is no reason to doubt that the

 two reports satisfy the requirements of the business-records exception to the hearsay rule, and 3)

 because both reports fall within this “firmly rooted hearsay exception” their reliability can be

 inferred without more.


        The district court made no such determinations on the record – it did not address the

 reliability of the counselors’ reports and it did not address whether it could properly consider

 them under any hearsay exception, rather, the court stated that the “Rules of Evidence do not

 apply to supervised violation hearings and the Court may rely on hearsay. I am within my

 authority to rely on what Mr. Frommeyer has reported this afternoon. It seems to me then the

 burden shifts to the Defendant . . . to present evidence or arguments that would negate the report

 and the contents of the report.” R. 58 at 22-23.


        In Waters, 158 F.3d at 940-41, an appeal from a supervised-release revocation, the

 defendant challenged the Magistrate’s reliance on hearsay evidence as insufficiently reliable.

 This court noted that documents properly admitted under the firmly-rooted business-records

 exception do not violate the Confrontation clause:


        As the Magistrate Judge observed, both exhibits contain notations stating that they
        are true copies of hotel records kept in the ordinary course of business. Such


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No. 10-3972
United States v. Kokoski

           records are generally considered reliable enough to overcome exclusion from
           evidence on hearsay grounds, see Fed. R. Evid. 803(6) . . . . Under the
           circumstances, we hold that the Magistrate Judge acted within his discretion in
           considering the hotel records without requiring the government to call the
           custodians to testify.



 Frommeyer, the only person who spoke at the revocation hearing, did not state that either of the

 therapists’ writings were kept in the regular course of business. Neither of the reports so states,

 either.


           Most importantly, Fischer’s report does not support the central statement in Frommeyer’s

 Supervised Release Violation Report, that “It is the opinion of Kokoski’s group treatment

 counselor [Melissa Fischer] that Kokoski was not engaged in treatment, and his behavior was

 disruptive to the group process.” Fischer’s report stated in its entirety:


           Michael was discussing his probation requirements and expressed his anger about
           his lack of freedom. He stated, “sometimes I get so mad I feel as if I could get a
           gun and shoot Tom Barbeau.” [a margin edit initialed MF said “in the head”]
           Other group members chuckled in response thinking that the comment was not
           serious, and [Kokoski] stated, “No I am serious, I could do that.” Counselor
           expressed concern, and explained to [Kokoski] that he cannot leave until it is clear
           that he has no intent to harm Tom or anyone else. At this point [Kokoski] stated,
           “Oh I would not hurt Tom. I have no intention of that. I am just angry about my
           situation. I do not own a gun.” Just after that statement, Michael followed with,
           “. . . but I could go get one if I got angry enough.” Counselor again expressed
           concern, and client stated, “Oh I am not serious honey, I did not mean for you to
           take it so personally.” To which counselor replied, “I am doing my job which is
           to make sure everyone is safe, and I am not convinced that you (client) are safe to
           leave here and will not be a threat to anyone’s safety.” Client again stated that he
           would not harm anyone or himself and counselor had him sign a statement that he

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United States v. Kokoski

        would not harm Tom Barbeau. Michael understood that his probation officer
        (Tom Barbeau) would be notified. After client left, Tom [PO Barbeau] was
        notified by Lisa Schneider via email of the situation.


                                                       [signed, Melissa Fischer, MA, PCCR 4/7/10]


        4/8/10
        9:20 a.m.      Counselor spoke directly with Tom Barbeau and relayed all
                       information about interaction with Michael Kowkowski [sic].
                       Counselor shared clinical impressions that client was making
                       contradictory statements the day before (4/7/10) in order to test
                       boundaries and attempt to manipulate counselor; however, that
                       counselor took precautions such as a written contract and notifying
                       Tom of incident.
                                                       [signed Melissa Fischer, MA PCCR 4/8/10]


 In sum, counselor Fischer’s report opined neither that Kokoski was not engaged in treatment nor

 that Kokoski’s behavior was disruptive to the group process.


        I also largely disagree with the majority’s determination that, in any event, Fischer’s and

 Moster’s evaluations “are detailed accounts that corroborate each other and indeed have been

 corroborated by Kokoski himself.” There is no indication that Dr. Moster ever met with or

 observed Kokoski in therapy or had any first-hand knowledge of the behaviors she reported in her

 discharge summary. Most importantly, however, is that Dr. Moster’s discharge summary draws

 its own conclusions regarding Kokoski’s expressing violent thoughts in group therapy regarding

 probation officer Barbeau, conclusions which differ greatly from counselor Fischer’s. Counselor

 Fischer, who indisputably led the April 7 group therapy session, stated in her counseling notes

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No. 10-3972
United States v. Kokoski

 her clinical impression that Kokoski’s back and forth remarks regarding PO Barbeau were him

 “making contradictory statements . . . in order to test boundaries and attempt to manipulate

 counselor [Fischer herself].” As defense counsel repeatedly argued at the revocation hearing,

 Fischer’s clinical impression that Kokoski was testing her boundaries and attempting to

 manipulate her was contradicted by Dr. Moster’s discharge summary’s clinical impressions,

 which stated, inter alia, that:


                 In reviewing progress notes and statements from staff members regarding
         his time at IKRON, it is my determination that he posed an imminent risk to
         safety of other persons, moved from general expression of frustration with
         probation requirements to specific and deadly threat toward his probation officer
         whom he deemed responsible. He did not make a vague, ill-defined threat but
         rather a clear and specific threat including reasons for the threat, a plan that was
         within his range of possibility, and a designated individual. His words indicate
         that his anger is at a level of homicidal ideation and plan, and could escalate to
         action. . . .


 Nor did Kokoski corroborate Dr. Moster’s clinical impression. Kokoski’s counsel corroborated

 only that Kokoski made statements in one group therapy session led by counselor Fischer that

 sometimes he got so angry that he would like to shoot P.O. Barbeau, and that Kokoski took a

 friend from the residential re-entry center at which he was residing with him to his first therapy

 session, whom he introduced as his attorney. Kokoski in no way corroborated that he was not




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No. 10-3972
United States v. Kokoski

 meaningfully participating in drug treatment, he adamantly maintained at the revocation hearing

 that he had participated in treatment, and had thus not violated his supervised release.2


           In United States v. Whitely, 356 F. App’x 839, 842 (6th Cir. 2009) (unpublished), this

 court concluded that the district court’s reliance on unsworn testimony of the probation officer

 was error:


           The flexible evidentiary standard that applies to revocation proceedings allows
           consideration of evidence that would be inadmissible in a criminal prosecution,
           United States v. Kirby, 418 F.3d 621, 628 (6th Cir. 2005)[3], including letters,
           affidavits, and other documents, Morrissey, 408 U.S. at 489 [], as well as hearsay
           that bears indicia of reliability, United States v. Stephenson, 928 F.2d 728, 732
           (6th Cir. 1991). But despite these relaxed standards, “defendants are entitled to
           minimal due process requirements, including the right to confront and cross
           examine adverse witnesses.” United States v. Torrez, No. 96-1973, 1997 WL
           745520, at *2 (6th Cir. Nov. 24, 1997); see also Fed. R. Crim. P. 32.1(b)(2)(C)
           (providing accused the right to question adverse witnesses at supervised release


       2
         The majority cites a pro se filing of Kokoski’s to support that Kokoski admitted that he was
not interested in sobriety and did not view himself as having a drug problem, but the district court
had struck all of his pro se filings, its order stating that it did so because Kokoski was “ably
represented” by Federal Defender Maus, Maus did not co-sign or authorize the pro se filings, and
that “a review of the pro se pleadings reveals that each of them suffers from the same infirmity, i.e.,
lack of formal legal education that might have given Defendant a thorough understanding of the
context in which his legal snippets arise. This Court concludes that each of the pro se motions
should be stricken from the docket.” R. 44, order entered 7/22/10.
       3
        In Kirby, 418 F.3d at 627, this court held that the district court did not err in relying solely
on the probation officer’s (sworn) testimony to establish that the defendant had committed crimes
while on supervised release where the probation officer’s “testimony reflects that he engaged in an
independent and thorough investigation of allegations that Kirby had committed crimes while on
supervised release,” that is, the sworn PO “personally reviewed surveillance tapes from businesses
at which Kirby had passed stolen checks during five separate incidents. Based on his personal
review of the videotapes, he identified Kirby as the individual passing the stolen checks.”

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No. 10-3972
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        revocation hearing). Despite these limited protections, we can assume, without
        deciding, that the district court’s consideration of the unsworn probation officer’s
        statements violated Whitely’s rights and constituted an obvious error. We
        conclude, however, that any error was harmless because it did not affect Whitely’s
        substantial rights.


        [] To decide the prejudice issue here we examine whether the record – without the
        probation officer’s statements – independently supports the court’s findings and
        withstands a sufficiency challenge. We conclude that it does, and therefore find
        no prejudice to Whitely from this error.


 During the pendency of this appeal, this court issued United States v. Jackson, 2011 WL 1597665

 (6th Cir. Apr. 28, 2011) (unpublished), which relied on Whitely. As in Whitely, the defendant in

 Jackson did not object below. As in Whitely, the court in Jackson assumed that consideration of

 the probation officer’s unsworn statement and failure to offer Jackson the opportunity to cross-

 examine the officer were error. The court concluded that the error did not affect Jackson’s

 substantial rights because he admitted three of the alleged violations and the district court found

 that those three violations alone constituted a violation that required revocation, noting “With or

 without the officer’s statement, the court was required to revoke Jackson’s supervised release.”


        In the instant case, unlike in Whitely and Jackson, Kokoski objected to his inability to

 cross-examine adverse witnesses. Kokoski did not admit that he violated his supervised release;

 rather, he maintained that he participated in treatment. An examination of the record without

 Frommeyer’s report and statements, i.e., counselor Fischer’s and Dr. Moster’s reports, does not

 support the district court’s finding that Kokoski failed to participate in treatment. Dr. Moster was


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No. 10-3972
United States v. Kokoski

 not present when Kokoski made the statements at issue during a group therapy session, and from

 all indications had no first-hand knowledge of any of the contents of her report. Counselor

 Fischer, the only one who had first-hand knowledge of Kokoski’s behavior and statements,

 opined that Kokoski was testing her boundaries and attempting to manipulate her by expressing

 his thoughts about his probation officer, not, as Frommeyer’s Supervised Release Violation

 Report stated, that Fischer opined “that Kokoski was not engaged in treatment, and his behavior

 was disruptive to the group process.”


        Assuming, as the majority concludes, that counselor Fischer’s report was reliable hearsay,

 Fischer’s report did not support Frommeyer’s allegation that Kokoski failed to participate in

 treatment and thereby violated his supervised release.


        Under these circumstances, the district court’s finding of a supervised-release violation

 and its imposition of a sentence well above the Guidelines range, in the face of its denial of

 Kokoski’s right to cross-examine adverse witnesses, was not harmless error.




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