                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 00-4540
VICTOR PERKINS,
               Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                Petitioner-Appellee,
                 v.                              No. 00-7003
VICTOR PERKINS,
             Respondent-Appellant.
                                       
           Appeals from the United States District Court
       for the Eastern District of North Carolina, at Raleigh.
                W. Earl Britt, Senior District Judge.
                  (CR-92-654, CA-92-654-5-BR)

                      Submitted: March 30, 2001

                       Decided: April 27, 2001

     Before NIEMEYER and MICHAEL, Circuit Judges, and
              HAMILTON, Senior Circuit Judge.



No. 00-4540 vacated and remanded and No. 00-7003 affirmed by
unpublished per curiam opinion.
2                      UNITED STATES v. PERKINS
                              COUNSEL

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Michael D. Bredenberg,
Special Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   In December 1999, Victor Perkins was conditionally released pur-
suant to 18 U.S.C.A. § 4246(e) (West 2000). Based on the representa-
tions of Perkins’ probation officer, Dennis Roy, the government
moved in the district court to revoke Perkins’ conditional release.
Prior to the scheduled hearing, Perkins filed a motion for summary
judgment and a motion to expedite. The court’s denial of these
motions is the subject of No. 00-7003. After hearing the evidence
presented, at the conclusion of the hearing, the district court, by order
entered July 12, 2000, revoked Perkins’ conditional release and
remanded Perkins to the custody of the Attorney General for place-
ment in a suitable facility pursuant to 18 U.S.C.A. § 4246. Perkins’
appeal of this order is the subject of No. 00-4540. We find no error
in the court’s denial of Perkins’ motion for summary judgment and
the denial of his motion to expedite hearing as moot, and accordingly,
we affirm the district court’s order in No. 00-7003. However, for the
following reasons, we vacate the revocation of Perkins’ conditional
release and remand for a new hearing in No. 00-4540.

   According to 18 U.S.C.A. § 4246(f) (West 2000), regarding the
revocation of conditional discharge, after a hearing, the district court
                       UNITED STATES v. PERKINS                       3
shall determine whether the person should be remanded to a suitable
facility on the ground that, in light of his failure to comply with the
prescribed regimen of medical, psychiatric, or psychological care or
treatment, his continued release would create a substantial risk of
bodily injury to another person or serious damage to property of
another. Hence, a district court may revoke a conditional discharge if
the following two conditions are met: (1) the person must have failed
to comply with his prescribed regimen of medical, psychiatric, or psy-
chological treatment; and (2) the court must conduct a hearing and
determine whether in light of this failure the person’s continued
release would pose a risk to society. United States v. Woods, 995 F.2d
894, 896 (9th Cir. 1993). The district court’s findings of fact are
reviewed under the clearly erroneous standard, but the district court’s
interpretation of 18 U.S.C. § 4246 is reviewed de novo. Id.; see also
United States v. Cox, 964 F.2d 1431, 1433 (4th Cir. 1992) (indicating
similar standard in the review of the denial of unconditional release).

   A revocation hearing is not a part of a criminal prosecution, and the
full panoply of rights due a defendant under the Federal Rules of Evi-
dence does not apply. Morrissey v. Brewer, 408 U.S. 471, 489 (1972).
Thus, hearsay testimony is admissible so long as it is reliable. Fed. R.
Evid. 1101(d)(3); United States v. McCallum, 677 F.2d 1024, 1026
(4th Cir. 1982) (permitting demonstrably reliable hearsay). Hearsay
testimony may be shown to be reliable either by extrinsic corroborat-
ing evidence or indicia of reliability showing the statement to be
inherently reliable. United States v. Huckins, 53 F.3d 276, 279 (9th
Cir. 1995). However, a court may not admit unsubstantiated or unreli-
able hearsay as substantive evidence at revocation hearings. Egerstaf-
fer v. Israel, 726 F.2d 1231, 1235 (7th Cir. 1984).

   In addition, some courts have required a process of balancing the
defendant’s right to confrontation against the government’s reasons
for denying it. United States v. O’Meara, 33 F.3d 20, 21 (8th Cir.
1994) (revocation of supervised release vacated where district court
failed to engage in balancing test before admitting challenged hearsay
evidence); United States v. Frazier, 26 F.3d 110, 114 (11th Cir. 1994)
(finding error, albeit harmless, where district court failed to make
findings as to reliability of hearsay and good cause for not producing
the witness); United States v. Martin, 984 F.2d 308, 310-14 (9th Cir.
1993) (holding government’s good cause did not outweigh Martin’s
4                       UNITED STATES v. PERKINS
right to confrontation). Other courts have focused on the reliability of
the hearsay at issue, not requiring the government to show good cause
for not producing the declarant if the hearsay is reliable. Prellwitz v.
Berg, 578 F.2d 190, 192 (7th Cir. 1978).

   Here, the district court relied almost exclusively on a letter submit-
ted by Perkins’ probation officer, Dennis Roy. In the letter, Roy main-
tained that the director of the group home where Perkins was residing,
Austin Smith, contacted Roy and reported that Perkins "left the facil-
ity without authorization." We find that the hearsay presented in the
letter bore no indicia of reliability. Roy did not testify as to his asser-
tions in the letter, nor did Smith testify regarding any house rule vio-
lated by Perkins. The only basis for the court’s finding that Perkins
violated the house rules is the statement itself, which was unverified
by either declarant, Roy or Smith. In addition, there was no extrinsic
evidence corroborating these statements. Further, the statement con-
stituted double hearsay as Roy was stating what Smith allegedly said.
Cases that have found hearsay sufficiently reliable in revocation pro-
ceedings concerned evidence that contained substantially more indicia
of reliability and did not contain double hearsay. See United States v.
Pratt, 52 F.3d 671, 675 (7th Cir. 1995) (officer’s hearsay testimony
of the investigation was reliable because it was corroborated by police
reports, written statements of the victims, photographs, and other doc-
uments); Egerstaffer, 726 F.2d at 1235 (taped interview admissible,
because, besides being internally consistent and detailed and having
been repeated several times, it was corroborated by eyewitness testi-
mony and defendant’s admissions); McCallum, 677 F.2d at 1026 (let-
ter from Salvation Army was reliable as it resembled an official report
and was corroborated by defendant’s testimony); Prellwitz, 578 F.2d
at 192-93 (hearsay report from Department of Social Services reliable
because kept in the ordinary course of business, a recognized hearsay
exception).

   Furthermore, the Government offered no reason why it could not
produce the live witnesses at the hearing, thereby tipping any balanc-
ing test towards exclusion of the hearsay testimony. Based on the
inherent unreliability of the hearsay statements, the lack of corrobora-
tion, the failure of the Government to make even a minimal showing
of good cause, and the absence of any non-hearsay evidence, we find
the unsworn, out-of-court statement in Roy’s letter was insufficient to
                      UNITED STATES v. PERKINS                      5
support revocation of Perkins’ conditional release. Additionally, the
district court failed to make any factual findings as to how Perkins’
alleged failure to comply with the rules of his conditional release
would pose a risk to society, as required under 18 U.S.C.A. § 4246(f).

   Based on the foregoing, we vacate the revocation of Perkins’ con-
ditional release in No. 00-4540 and remand for another hearing. We
affirm the court’s order in 00-7003. We further deny as moot Perkins’
motion to expedite and for oral argument. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

                       No. 00-4540 - VACATED AND REMANDED

                                          No. 00-7003 - AFFIRMED
