                                                      [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                             MAY 2, 2006
                                No. 05-15537               THOMAS K. KAHN
                            Non-Argument Calendar              CLERK
                          ________________________

                     D. C. Docket No. 00-00255-CR-6-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

DEMARCO STATHAM,
a.k.a. Hebrew McDonald,
a.k.a. Calvin Baker,


                                                          Defendant-Appellant.


                          ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                                (May 2, 2006)

Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
      Demarco Statham appeals the revocation of his supervised release and

imposition of a term of imprisonment. His supervised release was initially

imposed after he pled guilty to conspiracy to counterfeit securities, in violation of

18 U.S.C. § 371. Statham asserts the district court denied him the right to confront

and cross-examine his accuser by allowing the Government to rely on hearsay

evidence at the revocation hearing.

      The applicability of evidentiary rules in supervised release revocation

proceedings is a question of law subject to de novo review. United States v.

Frazier, 26 F.3d 110, 112 (11th Cir. 1994). We have held although the Federal

Rules of Evidence do not apply in supervised release revocation proceedings,

defendants are entitled to certain minimal due process requirements, including the

right to confront and cross-examine adverse witnesses. Id. at 114. In deciding

whether 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.” Id. This includes making a finding the hearsay testimony

was reliable and weighing the defendant's right of confrontation against the

government’s reasons for not producing the witness. Id. The district court’s

failure to make such findings, although erroneous, is subject to harmless error

review. Id.



                                           2
      Here, the district court did not conduct the required balancing test, finding

only that the hearsay statements of Penny Brown had a high level of reliability.

While the court erred by not expressly balancing Statham’s right to cross-examine

against the Government’s reasons for failing to produce Brown, any error was

harmless “because the properly considered evidence overwhelmingly demonstrated

that [the defendant] breached the terms of his supervised release.” Id.

       Aside from the identification made by Brown, as testified to by Detective

Norton, there was other, non-hearsay testimony. An internal investigator from

Suntrust Bank testified Brown had, for a non-legitimate business purpose, accessed

and copied around 6,000 checks, and her personal employee number could be

traced to the illegal computer access. After police arrested Statham, they did a

search of the car, where they found the identifications of several other people in the

trunk, receipts with other people’s names, and information stolen from Suntrust,

confirmed by the batches of checks taken by Brown. Further, Howard, an

investigator, testified the information from the images taken by Brown would be

sufficient to counterfeit checks, and he spoke with customers and merchants to

verify their accounts had been compromised. There was also evidence the gift card

Statham used to pay his bondsman was purchased fraudulently. Finally, Williams

identified a driver’s license, with the name of Barbara Walker, that had been left at



                                          3
a store, as one she had used and explained that she, per Statham’s instructions,

would run out and leave the false identifications and checks behind if the store

took them into the back. There was also Statham’s own admission, after he was

arrested, that he had bought stolen checks from Brown. All of this evidence

supports the testimony Detective Norton gave regarding Brown’s implication of

Statham. Any error the district court may have committed in this case by admitting

the contested hearsay evidence was harmless, since the uncontested evidence was

sufficient to establish that Statham violated the conditions of his supervised

release.1

       AFFIRMED.




       1
           In Crawford v. Washington, 124 S. Ct. 1354, 1374 (2004), the Supreme Court held
prior testimonial statements may be admitted only if the declarant is unavailable, and the
defendant had an earlier opportunity to cross-examine the declarant. We have not addressed the
issue of whether the Supreme Court's holding in Crawford applies to supervised release
revocation hearings, but other circuits have held Crawford inapplicable to probation or
supervised release revocation hearings. See United States v. Rondeau, 430 F.3d 44, 47-48 (1st
Cir. 2005); United States v. Hall, 419 F.3d 980, 985 (9th Cir. 2005); United States v. Kirby, 418
F.3d 621, 627-28 (6th Cir. 2005); United States v. Aspinall, 389 F.3d 332, 342-43 (2d Cir. 2004),
abrogation on other grounds recognized, United States v. Fleming, 397 F.3d 95, 99 n.5 (2d Cir.
2005); United States v. Martin, 382 F.3d 840, 844 n.4 (8th Cir. 2004). We do not address
Statham’s argument the Supreme Court's holding in Crawford should be applied to revocation
hearings because any error the district court may have committed in this case by admitting the
contested hearsay evidence was harmless.

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