                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 10-4083


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

           v.

ROYCE MITCHELL,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:09-cr-00186-RJC-DSC-1)


Argued:   January 27, 2011                    Decided:   May 5, 2011


Before TRAXLER, Chief Judge, and KING and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED:   Matthew Gridley Pruden, Noell Peter Tin, TIN, FULTON,
WALKER & OWEN, PLLC, Charlotte, North Carolina, for Appellant.
Mark A. Jones, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, for Appellee.      ON BRIEF: Anne M. Tompkins,
United States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Royce    Mitchell   entered   a   guilty   plea   in   the   Western

District of New York on November 5, 2001, to Count III of an

indictment charging him with conspiracy to possess with intent

to distribute, and the actual distribution of, 500 grams or more

of cocaine.     See 21 U.S.C. §§ 841(a)(1), 846.            The district

court in New York accepted Mitchell’s plea on March 14, 2002,

and it sentenced him to seventy months of imprisonment, followed

by forty-eight months’ supervised release, which commenced on

April 13, 2007.    On September 15, 2009, Mitchell was arrested in

Mecklenburg County, North Carolina, and charged with statutory

rape and taking indecent liberties with a child, each of which

is a felony under state law. 1

     Upon the petition of the federal probation office in the

Western District of New York, the district court there issued a

     1
       A person eighteen or older may be convicted of statutory
rape in North Carolina by being found to have engaged in vaginal
intercourse or other sexual act outside of lawful marriage with
another person between the ages of thirteen and fifteen.     See
N.C. Gen. Stat. § 14-27.7A.    The crime is more serious if the
defendant is six or more years older than the minor. See § 14-
27.7A(a). A person sixteen or older commits the crime of taking
indecent liberties with a child fifteen or younger if, being at
least five years older than the child, he or she either
“[w]illfully takes or attempts to take any immoral, improper, or
indecent liberties . . . for the purpose of arousing or
gratifying sexual desire,” or “[w]illfully commits or attempts
to commit any lewd or lascivious act upon or with the [child’s]
body or any part or member of the body.” N.C. Gen. Stat. § 14-
202.1.



                                   2
warrant for Mitchell’s arrest on September 21, 2009.                   On October

16, 2009, that court transferred jurisdiction over Mitchell to

the Western District of North Carolina, see 18 U.S.C. § 3605,

and he was ordered detained pending a hearing on the revocation

of    his   supervised    release,    see      18   U.S.C.   § 3583(e)(3).     The

hearing took place on November 25, 2009, pursuant to which the

district court entered a judgment on January 13, 2010, granting

the government’s petition and returning Mitchell to prison to

serve thirty months, to be followed by a new two-year term of

supervised release.         By timely Notice filed January 15, 2010,

Mitchell appeals the district court’s judgment.                   For the reasons

set forth below, we affirm.



                                          I.

                                          A.

       Fifteen-year-old Tiffany Wright was the adopted daughter of

Mitchell’s biological mother, Alma Wright.                     After Ms. Wright

died on January 25, 2009, Mitchell and his wife housed Tiffany

and applied to become her guardians.                   A few weeks after Ms.

Wright’s death, Tiffany became pregnant, and, on March 26, 2009,

Mitchell released her to a group facility, where she resided for

just a few days before being placed in a foster home on April 1,

2009.       Conflict there resulted in her being transferred on May

27,    2009,   to   the   care   of   a    different     foster    parent,   Susan

                                          3
Barber.        Tiffany    confided     to       Ms.   Barber    that   she     believed

Mitchell to be the father of her child.                   Ms. Barber immediately

notified the state Department of Social Services, and she later

repeated       the   allegation       to    Tiffany’s      therapist.           Tiffany

confirmed her belief in Mitchell’s paternity to police detective

Theresa Johnson in a recorded interview on August 19, 2009.

       Shortly after 6:00 a.m. on September 14, 2009, as she was

waiting on the street for her school bus, Tiffany was shot and

killed; Tiffany’s unborn daughter survived for a time before

also       succumbing.     Mitchell        was   identified      as    a    “person   of

interest” in the investigation,                  J.A. 574, 2 and,          as mentioned

supra, he was charged with the two felonies against Tiffany.

The state dismissed both charges against Mitchell prior to his

November        25       revocation         hearing       in     federal         court.

Notwithstanding Tiffany’s representations to the contrary, DNA

testing ruled out Mitchell as the baby’s father.

                                            B.

                                            1.

       The     penalty      statute        applicable      to    Mitchell’s        drug

trafficking convictions provided, in pertinent part, that “any

sentence imposed under this subparagraph shall . . . include a


       2
       Citations herein to “J.A. ___” refer to the contents of
the Joint Appendix filed by the parties to this appeal.



                                            4
term of supervised release of at least 4 years.”                          21 U.S.C.

§ 841(b)(1)(B).          The    sentence       imposed   in      Mitchell’s       case

complied    fully     with    that   requirement,      and    the     judgment    also

specified, as it was required to, see 18 U.S.C. § 3583(d), that

Mitchell “not commit another federal, state, or local crime”

while under supervision.             J.A. 573, 575.          Upon an allegation

that he violated that condition or any other of his supervised

release, Mitchell could be sent back to prison if the government

showed by a preponderance of the evidence that the violation

occurred.    See 18 U.S.C. § 3583(e)(3); United States v. Copley,

978 F.2d 829, 831 (4th Cir. 1992).

                                        2.

     The district court so found in the case at bar, relying, in

the absence of physical evidence, on the statements Tiffany made

during her August 19, 2009 interview concerning her relationship

with Mitchell.        Tiffany told Detective Johnson that, in February

2009, she had twice engaged in consensual sexual intercourse

with Mitchell, and that Mitchell was the father of her unborn

child.      It   is   beyond    dispute       that   Tiffany’s       statements,    if

credited,    were     amply    sufficient       to   support     a    finding     that

Mitchell    more      likely    than    not     committed      the     offenses     of

statutory rape and taking indecent liberties with a child, as

defined by North Carolina law.            See supra note 1.



                                          5
        Tiffany’s out-of-court statements were hearsay, see Fed. R.

Evid. 801(c), and might have been excluded from the evidentiary

record had Mitchell been tried on the state charges, or had

proof       of    his    conduct          been    at        issue    in    a    formal      federal

proceeding.         See N.C. Gen. Stat. § 8C-1, Rule 802; Fed. R. Evid.

802.        Revocation         hearings,         however,      are    intended         to   be   more

informal         proceedings,        at    which       the    rules       of   evidence     do   not

strictly apply.            See Fed. R. Evid. 1101(d)(3); United States v.

McCallum, 677 F.2d 1024, 1026 (4th Cir. 1982).                                 Hearsay evidence

may    be    introduced         at    such       hearings       if    it       is    “demonstrably

reliable.”         McCallum, 677 F.2d at 1026 (citations omitted).                               The

decision to revoke Mitchell’s supervised release is committed to

the district court’s sound discretion, and, absent an abuse of

that discretion, not to be disturbed on appeal.                                 See Copley, 978

F.2d at 831.            In this case, the question of whether the district

court       abused       its     discretion            is     inexorably            bound   to   the

plausibility of its determination that Tiffany’s statements were

reliable.

                                                  3.

        Mitchell        contends          that    the        statements        were     unreliable

because they were uncorroborated, unsworn, and inconsistent with

other statements Tiffany made, and because evidence of Tiffany’s

character detracted from her general credibility.                                    We agree that

physical evidence or testimony from a knowledgeable third party

                                                   6
would have helped to ascertain the true extent of Tiffany’s and

Mitchell’s personal relationship, but it is hardly surprising

that such an intimate matter, especially one associated with

illegality      and   social    taboos,     would     not   be    subject    to      ready

corroboration.          We cannot say that, under these circumstances,

the    government’s      inability    to        independently     verify    Tiffany’s

statements render them inherently unreliable.

       We regard in much the same fashion the inability to obtain

Tiffany’s allegations under oath.                 Had Tiffany been sworn prior

to her police interview, or had she been given an opportunity to

review the transcript and attest to it under penalty of perjury,

one could doubtlessly afford her statements incrementally more

credence.       It does not follow, however, that the lack of oath or

affirmation renders Tiffany’s account unworthy of belief.

       We need look no further than our prior decisions addressing

the    proper    application     of   the       residual    hearsay      exception      to

realize there is no per se prohibition against unsworn hearsay

statements being introduced into evidence.                       The evidence rules

permit    the     admission      of   such        statements      even     at     formal

proceedings insofar as they possess “circumstantial guarantees

of     trustworthiness”        equivalent        to   those      embodied       in     the

traditional, codified exceptions.                 Fed. R. Evid. 807; see, e.g.,

Christopher Phelps & Assocs., LLC v. Galloway, 492 F.3d 532, 541

(4th    Cir.    2007)    (affirming    district       court’s      acceptance        into

                                            7
evidence of unsworn receipts for expenses and financial ledger

on ground that admission appropriate under business records or

residual exception); United States v. Dunford, 148 F.3d 385, 394

(4th Cir. 1998) (concluding that trial court did not abuse its

discretion    by     admitting       into    evidence,       pursuant      to    residual

hearsay    exception,       unsworn     statements         of   defendant’s        teenage

daughters detailing abuse).

     The district court explained at length why it considered

Tiffany’s statements, on balance, to be trustworthy.                            The court

emphasized that it listened to the audio recording itself, as

opposed to simply reviewing the bare transcript, and it found

Tiffany’s    tone     and    demeanor       to    be     sincere.       She      comported

herself as a typical teenager, according to the court, evincing

appropriate       reluctance         and     embarrassment          when      discussing

sensitive topics.           The court pointed out that Tiffany did not

passively     signal    agreement          with    the     questions,      but    instead

corrected     Detective       Johnson’s          misapprehensions       and      resisted

other   opportunities        to     embellish      the     story.      The      court    was

impressed     with     the     level       of     detail     Tiffany       employed      in

describing    her     sexual      encounters       with     Mitchell,      noting       that

similarly detailed accounts of other interview topics had been

corroborated by third parties.

     The     district       court     recognized         that   evidence        had     been

presented    of    Tiffany’s      questionable         character,      including        “her

                                             8
hot   temper,      rebellious       attitude,         [and]    occasional       acts       of

dishonesty.”       J.A. 428.           The court also acknowledged that her

statements had been impeached to a degree, with contradictory

evidence     concerning         “the     number       of     sexual     partners,        the

frequency    of    sex    acts,    the    use    of    condoms,       the    location     of

sexual    activity,      and,     importantly,        whom    she     thought      was   the

father of her child.”              Id.      The court downplayed the latter

point,     observing      that     “given       the    frequency       of    the    sexual

activity,    the    changing       calculation        of   due   dates,      based       upon

ultrasound results, she could be wrong without knowingly being

false.”     Id. at 433.           Regardless of Tiffany’s vacillation on

certain matters, she consistently admitted to sexual relations

with Mitchell, 3 which, as the district court related, “lends

credibility to her statement that Mitchell had intercourse with

her twice.”       Id. at 435.

      The district court concluded that the evidence of Tiffany’s

character and of her occasional inconsistency in relating her

sexual history “goes to the weight the Court would assign to her

statements,       and    not    their    admissibility.”              J.A.   428.        The

court’s determination in that regard was clearly correct.                                See


      3
       In addition to disclosing her encounters with Mitchell to
Ms. Barber and Detective Johnson, Tiffany also told Mitchell’s
wife, precipitating the couple’s breakup, and she communicated
the same via a text message to her cousin.



                                            9
United States v. Capers, 61 F.3d 1100, 1106 (4th Cir. 1995)

(confirming         that,       once    proper        evidentiary        foundation          shows

statement        may    be   considered          authentic,       questions       concerning

witness’s reliability “go to the weight of the evidence, not its

admissibility”          (citation       omitted));       Williams    v.     McKenzie,             576

F.2d       566,        571-72      (4th        Cir.      1978)      (adjudging              “weak”

identification          testimony         of    elderly     crime        victim        in        poor

physical      and       mental     condition          sufficiently       reliable           to     be

admissible, with weight to be assessed by jury).                                The district

court thoroughly documented why it chose to credit Tiffany’s

statements incriminating Mitchell, and, inasmuch as the court’s

reasoning     appears        sound      and     is    supported     by    the    record,           we

discern     no     error.        The    district        court    reasonably          relied        on

Tiffany’s         statements       to       support      its     decision         to        revoke

Mitchell’s supervised release, and did not thereby abuse its

discretion.



                                                II.

                                                A.

       Mitchell also contends that he is entitled to a new hearing

on   the    ground       that     the     district      court     refused       to     consider

evidence     that       he   passed     a      polygraph    test    wherein          he     denied

having engaged in sex with Tiffany, or having ever touched her

for a sexual reason.              Taking the position, perhaps, that what is

                                                10
sauce for the goose is sauce for the gander, Mitchell maintains

that the same rationale supporting the court’s consideration of

Tiffany’s statements applies to his polygraph evidence.

       In accordance with our authorities construing the Federal

Rules   of   Evidence,     which,      as     we   have    noted,     do    not   govern

revocation       hearings,       “[p]olygraph            results     are     generally

inadmissible.”      United States v. Blake, 571 F.3d 331, 346 (4th

Cir. 2009) (citation omitted).               Unlike hearsay statements, as to

which we made allowance for appropriate use in hearings like

Mitchell’s, see United States v. McCallum, 677 F.2d 1024 (4th

Cir.    1982),    there    is    no    similar          precedent    permitting       the

admission of polygraph results as substantive evidence in any

proceeding.         The    lack       of    enabling        authority       is    hardly

surprising.       The   Supreme       Court      has    commented    that    “there    is

simply no consensus that polygraph evidence is reliable,” United

States v. Scheffer, 523 U.S. 303, 309 (1998), a state of affairs

that would seem to preclude such evidence meeting the McCallum

test of “demonstrable reliability.”

       The McCallum threshold would be even more difficult to meet

in this case, where the polygraph was administered outside the

government’s presence, giving it no opportunity to assist in

setting the parameters of the examination or observe the manner

of its conduct.         Under those circumstances, the district court

correctly    observed     that    Mitchell’s           polygraph    examination     bore

                                            11
“no indicia of reliability,” concluding that the results “would

not aid its decisional process.”                        J.A. 386.

       Moreover, even if the polygraph results in this case could

be   demonstrated          reliable,         they       would       be     relevant    solely    as

evidence       of        Mitchell’s          character          for        truthfulness,        and

admissible, if at all, only after the government attacked his

character.       See Fed. R. Evid. 608(b); United States v. A & S

Council Oil Co., 947 F.2d 1128, 1134 (4th Cir. 1991) (reciting

that    circuit          precedents         “preclude           .     .    .      bolstering    the

credibility of a witness through evidence that the witness has

taken    a    polygraph         test”).          No      such       attack      occurred   at   the

revocation hearing, insofar as Mitchell did not testify.

       Mitchell       nonetheless           maintains         that        the    Supreme   Court’s

decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S.    579    (1993),      opened         the     door      for      us    to    reconsider    our

precedent      and       develop      a    new     framework         to     evaluate    polygraph

evidence.           In    United          States        v.   Prince-Oyibo,           however,   we

reaffirmed our commitment to our pre-Daubert rule barring the

admission of polygraph results in most instances.                                   See 320 F.3d

494, 501 (4th Cir. 2003).                     That being the case, the district

court    did    not       err    in       faithfully         adhering        to    precedent    and

declining to consider Mitchell’s polygraph evidence.




                                                   12
                                            B.

       Finally, it came to light after the revocation hearing that

the police had been issued a warrant to obtain a DNA sample from

Adrian Powell, whom police suspected in Tiffany’s murder, upon

his    return    to     North    Carolina       from    New       York     to    testify     on

Mitchell’s      behalf.          Mitchell      filed    a     motion       to    reopen     the

hearing on the ground that the government’s failure to provide

the    defense        with   this      information       violated         the     disclosure

requirements      of     Brady    v.    Maryland,       373       U.S.    83     (1963),    and

United       States    v.    Bagley,     473     U.S.       667     (1985).         Mitchell

contended then, as now, that the police’s scrutiny of Powell,

based on the likelihood that he was the resentful father of

Tiffany’s baby and was thus motivated to harm her, would have

served to impeach Tiffany’s assertions during her interview that

Mitchell was the child’s father.

       The    district       court     denied    the     motion,          explaining       that

“Wright’s statements regarding the paternity of the child . . .

were     discredited           even     without         hearing          the      additional

information.”           J.A.     564.       As    the       court        aptly    indicated,

“Powell’s potential paternity has no bearing on . . . whether

[Mitchell] violated his supervised release terms by also having

sex with Wright.”            Id. at 565.         The district court was plainly

right on both counts, and it correctly declined to reopen the

revocation hearing to receive evidence that could have no effect

                                            13
on the ultimate disposition of the matter.          See Brady, 373 U.S.

at   87   (confining   prosecution’s    duty   of   disclosure   to   that

favorable evidence “material either to guilt or punishment”).



                                 III.

      Pursuant to the foregoing, the judgment of the district

court is affirmed.

                                                                 AFFIRMED




                                  14
