              Case: 18-15005     Date Filed: 10/18/2019    Page: 1 of 8


                                                               [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 18-15005
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 1:10-cr-00232-JB-C-1



UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                        versus

TAVARIS LAMON BODY,

                                                                Defendant-Appellant.

                           ________________________

                    Appeal from the United States District Court
                       for the Southern District of Alabama
                           ________________________

                                 (October 18, 2019)

Before MARCUS, ROSENBAUM, and GRANT, Circuit Judges.

PER CURIAM:

      Tavaris Lamon Body appeals the revocation of his supervised release based

on the district court’s determination that he violated the conditions of his
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supervised release by trafficking marijuana. He argues that the district court erred

by admitting hearsay evidence at his revocation hearing without first balancing his

right to confront adverse witnesses against the government’s reasons for not

producing the witnesses as required by United States v. Frazier, 26 F.3d 110 (11th

Cir. 1994), and by applying the wrong standard of proof.

                                          I.

      Body was serving a term of supervised release as part of his sentence for

possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1), when he was

arrested in Alabama for allegedly trafficking marijuana. At the supervised release

revocation hearing, the government presented the testimony of Detective Kevin

Naman of the Mobile Police Department. Detective Naman testified that he

received information from three “confidential sources” that multiple pounds of

marijuana were located in a shed attached to a house at 926 Nellie Street in

Mobile. The sources referred to the residence as “Mr. Body’s house,” but it

actually belonged to some of Body’s relatives. One or more of the sources

informed Detective Naman that Body was selling large amounts of marijuana from

a blue duffel bag in his white Ford parked in front of the house.

      Detective Naman testified that he obtained a search warrant for 926 Nellie

Street and the attached shed (and, presumably, the white Ford). Upon executing

the search warrant, police discovered a lock box in the shed containing a blue


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duffel bag and 17 pounds of marijuana. A white Ford vehicle registered to Body

was parked in the middle of the drive between 926 Nellie Street and the house next

door. There were no drugs in the car, although police detected the odor of

marijuana.

       Body was not present and did not own the house. Police did not find any

mail or other belongings that would indicate that Body lived there. Detective

Naman encountered one of Body’s family members, who told him that Body had

left just before police arrived to execute the warrant. 1

       Body objected on the ground that “the only witnesses or only evidence that

they have that says that this was Tavaris Lemon Body and not anybody related to

the residence where it was located are unnamed confidential informant sources.

And Mr. Body cannot cross-examine those. We cannot delve into the veracity of

that.” He further objected on the ground that, “although hearsay is clearly allowed

in these revocation hearings, that the factual basis for which the revocation is based

upon cannot be solely upon hearsay. And the only identification of Tavaris Body

is through hearsay.”




1
 It is not entirely clear from the record whether Detective Naman encountered Body’s family
member at the house that was the subject of the search warrant or—as indicated in the probation
officer’s warrant petition—at the house next door, 928 Nellie Street.
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      The district court overruled Body’s objection without explanation. The

court revoked Body’s supervised release and sentenced him to 18 months’

imprisonment followed by 18 months’ supervised release. This appeal followed.

                                          II.

      We generally review a district court’s revocation of supervised release for an

abuse of discretion. Frazier, 26 F.3d at 112. “A district court abuses its discretion

if it ‘fails to apply the proper legal standard or to follow proper procedures in

making the determination, or makes findings of fact that are clearly erroneous.’”

United States v. Izquierdo, 448 F.3d 1269, 1276 (11th Cir. 2006) (citation omitted).

                                          III.

                                          A.

      Under 18 U.S.C. § 3583, a district court can revoke a defendant’s supervised

release and sentence him to a term of imprisonment or additional supervised

release, or both, upon finding by a preponderance of the evidence that the

defendant violated a condition of supervised release. 18 U.S.C. § 3583(e)(3); see

United States v. Cunningham, 607 F.3d 1264, 1268 (11th Cir. 2010). The Federal

Rules of Criminal Procedure provide that the district court must hold a hearing in

connection with the revocation proceedings. Fed. R. Crim. P. 32.1(b)(2). At that

hearing, the defendant must be given (among other things) the opportunity to

“question any adverse witness unless the court determines that the interest of


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justice does not require the witness to appear.” Fed. R. Crim. P. 32.1(b)(2)(C); see

also 18 U.S.C. § 3583(e)(3) (incorporating the requirements of the relevant rules of

criminal procedure). This requirement reflects the principle that, although “the full

panoply of rights” applicable in criminal prosecutions does not apply to supervised

release revocation proceedings, the defendant has the right to certain minimum due

process protections, including “the right to confront and cross-examine adverse

witnesses (unless the hearing officer specifically finds good cause for not allowing

confrontation).” Morrissey v. Brewer, 408 U.S. 471, 480, 489 (1972) (discussing

constitutional protections applicable to parole revocation proceedings); Frazier, 26

F.3d at 114 (applying Morrissey in the context of a supervised release revocation).

“Thus, in deciding whether or not to admit hearsay testimony, the court must

balance the defendant’s right to confront adverse witnesses against the grounds

asserted by the government for denying confrontation.” Frazier, 26 F.3d at 114.

Although the Federal Rules of Evidence do not apply in supervised release

revocation proceedings, the court must also determine that any hearsay evidence

that it admits is reliable. Id.

       By objecting to the district court’s consideration of hearsay on the ground

that he was denied the opportunity to cross-examine the witnesses against him,

Body triggered the district court’s obligation to weigh his right to confront and

cross-examine Detective Naman’s “sources” against the government’s reasons for


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not presenting the witnesses at the hearing, and adequately preserved the issue for

appeal. The government did not offer any explanation for its failure to present the

witnesses who informed Detective Naman that Body was selling marijuana, nor

did the court make any determination regarding the reliability of the hearsay

evidence introduced through the detective. The district court’s failure to conduct

the required analysis before overruling Body’s objection was error. See Frazier,

26 F.3d at 114. And as discussed below, the error was not harmless.

                                         B.

      A district court’s error in considering improperly admitted hearsay evidence

may be harmless if the remaining evidence, standing alone, is sufficient to support

the court’s conclusion that the defendant violated the conditions of his supervised

release. See id. The non-hearsay evidence presented at Body’s revocation hearing

established only that Detective Naman found marijuana at an address in Mobile

where Body’s relatives lived, and that he detected the odor of marijuana in Body’s

car, which was parked nearby. This was insufficient to establish by a

preponderance of the evidence that Body had committed the crime of marijuana

trafficking, as the probation officer’s petition alleged. Under the circumstances,

the district court abused its discretion by revoking Body’s supervised release.




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                                          IV.

      Body also argues that the district court applied the wrong standard of proof

at the revocation hearing. The district court stated that “the burden for the Court is

to be reasonably satisfied that the – that you have violated the conditions of your

release. And I am reasonably satisfied that you have violated those conditions.”

The district court may have considered this standard to be equivalent to proof by a

preponderance of the evidence, but it did not make any statement to that effect on

the record. In any event, the statute is explicit in its requirement that the

government must prove a violation of supervised release by a preponderance of the

evidence. 18 U.S.C. § 3583(e)(3). This standard requires proof “that the existence

of a fact is more probable than its nonexistence.” United States v. Trainor, 376

F.3d 1325, 1331 (11th Cir. 2004) (citation omitted). And the “district court must

ensure that the Government carries its burden by presenting reliable and specific

evidence.” United States v. Almedina, 686 F.3d 1312, 1315 (11th Cir. 2012). On

remand, therefore, the district court is instructed to determine by a preponderance

of the evidence whether Body violated the conditions of his supervised release.

                                           V.

      The district court abused its discretion by relying on hearsay evidence

without balancing Body’s right to confront his accusers against the government’s

reasons for not producing the witnesses at the hearing, and by applying a different


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standard of proof than that specified by law. We therefore REVERSE the district

court’s revocation of supervised release, VACATE the sentence imposed upon

revocation, and REMAND for a new revocation hearing.




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