                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 16-1726
                                   ________________


                            UNITED STATES OF AMERICA

                                             v.

                             DAWAAN EDWARD SMITH,
                                                 Appellant
                                ________________

                      Appeal from the United States District Court
                        for the Western District of Pennsylvania
                     (D.C. Criminal Action No. 2-07-cr-00119-001)
                       District Judge: Honorable Nora B. Fischer
                                   ________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 19, 2017

               Before: AMBRO, KRAUSE, and SCIRICA, Circuit Judges

                           (Opinion filed: September 20, 2017)
                                  ________________

                                       OPINION*
                                   ________________

AMBRO, Circuit Judge




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Is hearsay evidence allowed in a hearing to consider the revocation of supervised

release? The District Court held yes in this case, and we agree.

                                             I.

       In 2008, Dawaan Smith pled guilty to one count of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1), and the District Court sentenced him to a

term of 84 months. In addition, Smith received three years of supervised release, during

which he was instructed not to commit another federal, state, or local crime and to refrain

from any unlawful use of a controlled substance.

       However, in August 2015, Smith was charged with simple assault related to a

domestic violence incident involving his girlfriend, Candace Copeland. And in

November 2015 Smith was charged with making false reports and disorderly conduct,

again related to a domestic dispute with Copeland. In December 2015 all three charges

were reduced to non-traffic summary offenses, to which Smith pled guilty.

       In February 2016, police officers were called again regarding a domestic dispute

between Smith and Copeland. Smith was charged with simple assault, and the

Government sought to revoke his supervised release.

       At the revocation hearing, the Government called Officer Cunic, who responded to

the August 2015 domestic assault. He testified that he observed a bite mark on

Copeland’s back, blood on her chin, and scratch marks on her neck. Officer Cunic also

testified that Copeland had told him that Smith had choked her during an argument. The

Government’s next witness, Jeffrey Sciarrino, was Smith’s probation officer. Sciarrino

testified that in October 2015 Copeland told him about the August assault. Sciarrino also

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testified that Smith’s previous probation officer, Marcus White, received a report from

Copeland that Smith had thrown her to the ground. The Government also introduced a

police report from the February 2016 assault that memorialized the officer’s observations

of Copeland spitting up blood and her statements that she landed on her pregnant stomach

when Smith threw her to the ground.

       Smith testified on his own behalf. He admitted that during the August 2015

incident he “tussled” with Copeland but denied assaulting her. Smith also admitted that

he called Copeland from jail in an effort to convince her to recant her testimony.

Copeland did not testify at the revocation hearing, nor did she testify at any of Smith’s

earlier criminal proceedings. However, despite Copeland’s absence, defense counsel did

not object to any of the Government’s evidence as hearsay.

       The District Court, relying on the preceding testimony and evidence, found that

Smith committed four violations of the conditions of his release: one violation for using

controlled substances,1 and three violations for the August, November, and February

incidents involving Copeland.

                                               II.

       We review the District Court’s decision for plain error because defense counsel

did not object to the introduction of hearsay evidence of Smith’s criminal conduct.

United States v. Paladino, 769 F.3d 197, 200 (3d Cir. 2014). “For reversible plain error

to exist, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and

1
 Smith tested positive for marijuana in July 2015 and testified that he used marijuana
during his supervised release. He did not challenge this violation at the revocation
hearing and does not challenge it on appeal.
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(4) which seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 201 (internal quotation marks and citation omitted).

       “The revocation of parole is not part of a criminal prosecution and thus the full

panoply of rights due a defendant in such a proceeding does not apply to parole

revocations.” Morrissey v. Brewer, 408 U.S. 471, 480 (1972). “This limited right to

confrontation stems from the Fifth Amendment’s Due Process Clause, not from the

Confrontation Clause of the Sixth Amendment.” United States v. Lloyd, 566 F.3d 341,

343 (3d Cir. 2009). Thus, at a revocation hearing the defendant is to be provided “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.” Fed.

R. Crim. P. 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 [defendant]’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.” See also Lloyd, 566

F.3d at 343–44. We have interpreted that balancing test to “consider both the reliability

of proffered hearsay and the cause why a witness is not produced.” Id. at 344. Indicia of

reliability can include “physical evidence, independent testimony, or admissions [that]

support the statements[.]” Id. at 345.

       Smith argues that the District Court failed to provide him “the right to confront

and cross-examine adverse witnesses” at the revocation hearing because Copeland never

testified, App. Br. at 10 (quoting Morrissey, 408 U.S. at 489), and instead relied on

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“hearsay alone” that had “no corroboration at all.” App. Br. at 8. He ignores, however,

the corroborating evidence from officers and police reports that paint a reliable yet

disturbing picture of Smith’s assaultive behavior against Copeland. Officer Cunic’s

observations of Copeland’s fresh injuries corroborated her contemporaneous reporting

that Smith assaulted her. Further, by Smith’s own admission, he was in a physical

altercation with Copeland before police arrived. That abusive behavior was evident also

in the probation report of Smith throwing Copeland to the ground and officers observing

her spitting up blood. As to the Government’s good cause for denying Smith’s right to

confrontation, Smith has only himself to blame—his phone calls from jail urging

Copeland to recant her initial police statements were enough to deter her from appearing.

       In this context, the District Court’s consideration of Copeland’s out-of-court

statements was appropriate in light of the reliability of the detailed, corroborated

statements she made to law enforcement, the observations of responding police officers,

and Smith’s self-incriminating testimony. Thus we affirm.




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