                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-27-2009

USA v. Ashbert Lloyd, Jr.
Precedential or Non-Precedential: Precedential

Docket No. 08-2513




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                                           PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                       No. 08-2513


             UNITED STATES OF AMERICA

                            v.

                ASHBERT S. LLOYD, Jr.,
                              Appellant


      On Appeal from the United States District Court
           for the District of the Virgin Islands
                  (D.C. No. 98-cr-00223)
        District Judge: Honorable Juan R. Sanchez


                Argued April 21, 2009
Before: BARRY, HARDIMAN and COWEN, Circuit Judges.

                   (Filed: May 27, 2009)

Jason T. Cohen [Argued]
Office of United States Attorney
United States Courthouse
5500 Veterans Building, Suite 260
Charlotte Amalie, St. Thomas
USVI, 00802-6924
      Attorney for Appellee

Jesse A. Gessin [Argued]
Office of Federal Public Defender
P.O. Box 1327, 51B Kongens Gade
Charlotte Amalie, St. Thomas
USVI, 00804-0000
       Attorney for Appellant


                 OPINION OF THE COURT


HARDIMAN, Circuit Judge.

       At issue in this appeal is hearsay evidence presented
during Appellant Ashbert Lloyd’s supervised release revocation
hearing.
                              I.

       While on supervised release for a crime he committed in
the United States Virgin Islands, Lloyd pleaded guilty in Duval
County, Florida to possession of a firearm by a convicted felon
in violation of Florida law. After the Virgin Islands probation
office was notified of Lloyd’s guilty plea, the District Court
summoned Lloyd to St. Thomas for a revocation hearing.




                               2
       At the hearing, Lloyd refused to stipulate that he had
violated his conditions of supervised release. Accordingly, the
Government offered the following into evidence: (1) a violation
report prepared by a Duval County probation officer; (2) a
petition for a warrant to arrest Lloyd for violating the terms of
his supervised release; (3) the testimony of the Virgin Islands
probation officer who received the violation report; and (4) the
judgment and plea agreement from Lloyd’s state conviction.

       The violation report relied on information provided by an
officer of the Duval County Sheriff, who described a physical
altercation between Lloyd and his pregnant girlfriend during
which Lloyd brandished a gun at a passerby. Neither the
probation officer who authored the report nor any representative
of the Duval County Sheriff testified at Lloyd’s revocation
hearing.

       Lloyd objected to both the violation report and the
warrant petition, arguing that they were inadmissible hearsay.
Without analysis or explanation, the District Court overruled
Lloyd’s objections after the Government’s attorney responded
that “this is a revocation hearing, and I think hearsay is
permitted.” App. 33.

       Based on the evidence presented at the hearing, the
District Court found that Lloyd violated the terms of his
supervised release by: (1) committing aggravated domestic
battery; (2) possessing a firearm; and (3) failing to notify his
probation officer within 72 hours after arrest or questioning by
a law enforcement officer. The aggravated domestic battery is
a Grade A violation under the United States Sentencing

                               3
Guidelines (USSG); possession of the firearm is a Grade B
violation; and the failure to notify is a Grade C violation.1

        Section 7B1.4 of the Guidelines establishes imprisonment
ranges upon revocation of supervised release that take into
account the grade of violation and the violator’s criminal
history. Because one who commits multiple violations is
sentenced based on the most severe violation, see USSG §
7B1.1, Lloyd’s Guidelines range of 12-18 months was dictated
by his Grade A violation for aggravated domestic battery. The
District Court imposed an 18-month sentence and Lloyd filed
this timely appeal.2

                                II.

        The question presented is whether Lloyd’s sentence was
based on improper hearsay evidence. Since the Federal Rules of
Evidence do not apply in revocation hearings, see F ED. R. E VID.
1101(d)(3), hearsay that would be inadmissible at a criminal trial
may support a judge’s decision to revoke supervised release.
This does not mean, however, that hearsay evidence is ipso facto
admissible. Due process requires that supervised releasees
retain at least a limited right to confront adverse witnesses in a



       1
         The District Court erroneously classified the firearm
violation as Grade A. On appeal, the Government concedes
that this was a mistake.

       2
           We have jurisdiction pursuant to 28 U.S.C. § 1291.

                                 4
revocation hearing. See Morrissey v. Brewer, 408 U.S. 471,
488-89 (1972).

        In Morrissey, the Supreme Court held that a parolee’s
liberty cannot be revoked without due process and the minimum
requirements of a revocation proceeding include “the right to
confront and cross-examine adverse witnesses (unless the
hearing officer specifically finds good cause for not allowing
confrontation).” 408 U.S. at 489.        This limited right to
confrontation stems from the Fifth Amendment’s Due Process
Clause, not from the Confrontation Clause of the Sixth
Amendment. See Gagnon v. Scarpelli, 411 U.S. 778, 782
(1973).

        Morrissey’s requirements have been incorporated into
Federal Rule of Criminal Procedure 32.1(b), which governs
revocation proceedings. See United States v. Maloney, 513 F.3d
350, 356 (3d Cir. 2008). Subsection (2)(c) of Rule 32.1(b)
guarantees “an opportunity to appear, present evidence, and
question any adverse witness unless the court determines that
the interest of justice does not require the witness to appear.”
F ED. R. C RIM. P ROC. 32.1(b)(2)(C). The Advisory Committee
Notes state that Rule 32.1(b)(2)(C) “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.”

                              III.


                               5
        Lloyd’s firearm violation is supported by non-hearsay
evidence (the Duval County judgment and plea agreement) and
is not in dispute. This violation suffices to justify revocation of
Lloyd’s supervised release, so the only issue on appeal is the
proper calculation of his Guidelines range and the length of his
new sentence. Lloyd’s 12-18 month Guidelines range was based
on his most severe relapse, a Grade A violation for aggravated
domestic battery. Absent this violation, his Guidelines range
would have been 4-10 months (based on his Grade B firearm
violation). The issue is therefore whether the out-of-court
statements supporting Lloyd’s aggravated domestic battery
violation were properly admitted.

       The admissibility of hearsay evidence under Rule
32.1(b)(2)(C) is generally reviewed for abuse of discretion,
United States v. Williams, 443 F.3d 35, 46 (2d Cir. 2006), but in
this case the District Court made no attempt to conduct the
analysis required by Rule 32.1(b). At the Government’s
suggestion, the Court erroneously assumed that hearsay is
categorically admissible in revocation proceedings.
Accordingly, our review is de novo. See United States v.
Martin, 382 F.3d 840, 845-46 (8th Cir. 2004) (in light of district
court’s utter failure to analyze hearsay evidence, conducting
independent assessment based on the record).

        Most of our sister circuit courts of appeals have
interpreted Morrissey and Rule 32.1(b) to require a balancing
test similar or identical to the Advisory Committee Notes, which
consider both the reliability of proffered hearsay and the cause
why a witness is not produced. See United States v. Taveras,
380 F.3d 532, 537 (1st Cir. 2004) (unreliable hearsay

                                6
inadmissible under Rule 32.1(b)(2)(C)); United States v.
Williams, 443 F.3d 35, 46 (2d Cir. 2006) (no abuse of discretion
in admission of hearsay after balancing reliability and cause);
Barnes v. Johnson, 184 F.3d 451, 454 (5th Cir. 1999) (district
court must balance reliability and cause); United States v.
Martin, 382 F.3d 840, 846 (8th Cir. 2004) (hearsay admissible
because reliable and cause shown for declarant’s absence);
United States v. Comito, 177 F.3d 1166, 1171-72 (9th Cir. 1999)
(hearsay inadmissible because unreliable and Government failed
to prove the cause asserted for declarant’s absence); United
States v. Frazier, 26 F.3d 110, 114 (11th Cir. 1994) (district
court erred in failing to establish both reliability and cause).

       A few courts of appeals allow sufficiently reliable
hearsay evidence without a showing of cause for the declarant’s
absence. See United States v. Kelley, 446 F.3d 688, 692 (7th
Cir. 2006) (no need to show cause for absence to admit
substantially trustworthy hearsay); Crawford v. Jackson, 323
F.3d 123, 131 (D.C. Cir. 2003) (hearsay admissible because
reliable, no cause analysis); Kell v. United States Parole
Comm’n, 26 F.3d 1016, 1020 (10th Cir. 1994) (suggesting that
sufficiently reliable hearsay may be admissible without a
showing of cause). The Seventh Circuit “treats a finding of
‘substantial trustworthiness’ as the equivalent of a good cause
finding for the admission of hearsay in the revocation context.”
Kelley, 446 F.3d at 692.

       We now hold that a district court “should apply a
balancing test [in revocation hearings] when considering the
releasee’s asserted right to cross-examine adverse witnesses,”
and that “[t]he court is to balance the person’s interest in the

                               7
constitutionally guaranteed right to confrontation against the
government’s good cause for denying it.” F ED. R. C RIM. P ROC.
32.1(b)(2)(C) advisory committee’s note. The reliability of
proffered hearsay is a principal factor, although not the sole
factor, relevant to the releasee’s interest in confrontation. To
outweigh this interest, the Government must, in the typical case,
provide good cause for a hearsay declarant’s absence. As the
language of the Advisory Committee Notes indicates, the
releasee’s interest in confrontation — which encompasses
reliability — is an independent factor that should be analyzed
separately from cause.

        In some cases, the releasee’s interest in confrontation
may be overwhelmed by the hearsay’s reliability such that the
Government need not show cause for a declarant’s absence.
Accordingly, we reject a per se rule that a district court’s failure
to explicitly address cause amounts to reversible error in all
cases. Nevertheless, a releasee may have a legitimate interest
in confrontation and cross-examination even when a declarant’s
out-of-court statement bears some indicia of reliability, and
district courts should normally address both factors when ruling
on the admissibility of hearsay evidence in a revocation hearing.

                                IV.

       We turn now to apply the standard we have articulated to
the facts of this appeal. Hearsay given under oath, Comito, 177
F.3d at 1171; Crawford, 323 F.3d at 129, replete with detail,
United States v. Bell, 785 F.2d 640, 644 (8th Cir. 1986);
Crawford, 323 F.3d at 129, or supported by corroborating
evidence, Kelley, 446 F.3d at 692; Martin, 382 F.3d at 846, has

                                 8
been recognized as reliable. Conversely, out-of-court statements
reflecting an adversarial relationship with the accused, Comito,
177 F.3d at 1171, or containing multiple layers of hearsay,
United States v. Fennell, 65 F.3d 812, 813 (10th Cir. 1995);
Crawford, 323 F.3d at 129, have been recognized as unreliable.

        Here, the violation report and warrant petition regarding
Lloyd’s aggravated domestic battery violation are clearly
unreliable. The violation report states in relevant part that Lloyd
“became involved in a verbal argument with his pregnant
girlfriend . . . which escalated into a physical altercation,” and
Lloyd “allegedly pulled out a firearm when another person
attempted to intervene.” A firearm was subsequently discovered
by police in Lloyd’s residence. According to the report, Lloyd
was combative and uncooperative after his arrest, but
subsequently admitted ownership of the gun.

       The foregoing statements are unsworn and lack detail.
The description of the alleged battery is cursory, and the facts
surrounding Lloyd’s subsequent arrest for the firearm possession
shed no light on whether Lloyd battered his girlfriend.
Moreover, the record is devoid of independent evidence
corroborating the version of events described in the violation
report. Courts have admitted similar hearsay in revocation
proceedings when the out-of-court statements were bolstered by
physical evidence, Martin, 382 F.3d at 846, independent
testimony, Kelley, 446 F.3d at 692, or the defendant’s own
admissions, Crawford, 323 F.3d at 130. In stark contrast to
those cases, here no physical evidence, independent testimony,
or admissions support the statements regarding the aggravated


                                9
domestic battery offense contained in the violation report. In
short, not a single indicium of reliability is present here.

       Even worse, two indicia of unreliability cast further
doubt on the utility of the violation report and warrant petition.
First and foremost, the documents contain multiple levels of
hearsay. The warrant petition was based on a violation report
written by a non-testifying probation officer who relied
(ostensibly) on information provided by unidentified officers of
the Duval County Sheriff’s office, who (apparently) interviewed
Lloyd’s ex-girlfriend. The fact that this evidence consists of
layer upon layer of unsubstantiated, out-of-court statements
passed through at least four different people raises a very large
red flag. See id. at 129; Bell, 785 F.2d at 644.

        Second, the violation report is based at least in part on
statements given by Lloyd’s ex-girlfriend. The adversarial
nature of a hearsay declarant’s relationship with the accused
prompts courts to scrutinize out-of-court statements made by
former lovers. See Comito, 177 F.3d at 1171 (finding that out-
of-court statements made by the releasee’s ex-girlfriend soon
after their romance ended were the “least reliable form of
hearsay”). Although police reports are neither “inherently
reliable [nor] . . . inherently unreliable,” United States v.
Leekins, 493 F.3d 143, 149 (3d Cir. 2007), the reports at issue
in this case are uncorroborated and rely on an account given by
Lloyd’s ex-girlfriend that may have been colored by animus
against Lloyd. This is another factor weighing against
reliability.



                               10
        We also note that the Government fails to proffer a single
legitimate indicium of reliability for the statements supporting
Lloyd’s aggravated domestic battery violation. Rather, the
Government unpersuasively argues that unrelated statements in
the violation report demonstrate its reliability. Although it is
true that Lloyd claimed ownership of the gun found in his home
and admitted that his girlfriend was pregnant, these facts shed
no light on whether Lloyd was guilty of aggravated domestic
battery. For all of the foregoing reasons, we conclude that the
violation report and warrant petition are unreliable hearsay.

        Finally, we address the Government’s justification for
denying Lloyd the right to confront the hearsay declarants. Our
analysis is brief because the Government makes no attempt to
show cause for the declarants’ absence from the revocation
hearing, either in the District Court or on appeal. Courts have
recognized that a declarant’s refusal to testify or threats made
against a declarant may be good cause for his absence and
justify the admission of hearsay. See Williams, 443 F.3d at 46-
47; Comito, 177 F.3d at 1172. Neither factor is present here.
The cost and inconvenience of transporting witnesses from
Florida to the Virgin Islands could conceivably have been a
factor, but the Government does not make this argument. Had
the Government done so, it is doubtful that travel considerations
alone could suffice to outweigh Lloyd’s right to confrontation,
given the utter unreliability of the hearsay, and the fact that it
was the sole basis for the critical violation. See Barnes v.
Johnson, 184 F.3d 451, 456 (5th Cir. 1999).




                               11
                             V.

       In sum, because Lloyd’s aggravated domestic battery
violation was supported solely by unreliable hearsay and the
Government makes no attempt to show cause for the declarants’
absence, we will vacate Lloyd’s sentence and remand for
resentencing.




                             12
