Probation and Supervised Release Revocation Hearings and Hearsay

Chicago – the Seventh Circuit Court of Appeals Addresses Probation and Supervised Release Revocation Hearings and Hearsay

Defendant Keith D. Jordan, United States v. Jordan, (No. 13-1488 January 28, 2014) was sentenced to federal prison, released and began serving his three years of supervised release on June 28, 2011. The conditions of his supervised release included that he could not leave the judicial district without permission, associate with a felon or a person engaged in criminal activity, commit a crime, and report any arrest or questioning by law enforcement within 72 hours. Sometime after being placed on supervised release, Defendant was arrested in Texas and charged with marijuana possession. On December 7, 2012, the probation officer filed a petition to revoke Jordan’s supervised release alleging four violations. First, that he left the judicial district without permission, second, that he associated with a felon, third that he committed a new offense, that being possession of 30 pounds of marijuana, and fourth that he failed to report his arrest in 72 hours.

The Federal Sentencing Guidelines categorizes violations of supervised release based on the seriousness of the violation as Grades A, B, or C, with A being the most serious.

The Federal Sentencing Guidelines §7B1.1 states:

(a) There are three grades of probation and supervised release violations:

(1) Grade A Violations — conduct constituting (A) a federal, state, or local offense punishable by a term of imprisonment exceeding one year that (i) is a crime of violence, (ii) is a controlled substance offense, or (iii) involves possession of a firearm or destructive device of a type described in 26 U.S.C. § 5845(a); or (B) any other federal, state, or local offense punishable by a term of imprisonment exceeding twenty years;

(2) Grade B Violations — conduct constituting any other federal, state, or local offense punishable by a term of imprisonment exceeding one year;

(3) Grade C Violations — conduct constituting (A) a federal, state, or local offense punishable by a term of imprisonment of one year or less; or (B) a violation of any other condition of supervision.

At the Defendant’s revocation hearing, he admitted to the three Grade C violations, that being leaving the judicial district without permission, associating with a felon, and failing to report his arrest within 72 hours. He however disputed his Grade A violation, that being possession of marijuana with intent to distribute.

At the revocation hearing, the government presented the Texas officer’s police reports, video of a person, not the defendant, fleeing from the police, and the Texas grand jury indictment of Defendant. The probation officer testified about the Texas arrest, and when the defense attorney began asking about why the arresting officer was not there testifying the government objected and that objection was sustained by the court. The court however did not make a finding that the police reports were reliable, or that good cause existed for the admission of those reports, and did not refer to Federal Rule of Criminal Procedure 32.1(b)(2)(C), which states, “[u]nless waived by the person, the court must hold the revocation hearing within a reasonable time in the district having jurisdiction. The person is entitled to: . . . 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.”

The district court found Defendant possessed marijuana with intent to distribute and sentenced him to 24 months in prison. Defendant appealed, claiming that the district court erred in admitting the police reports without making a determination under section 32.1(b)(2)(C), and violated his right to confront witnesses under the Due Process Clause of the Fifth Amendment, although this right is limited at a probation revocation hearing.

The 7^th Circuit joined other circuits that have addressed this issue, (1^st, 2^nd, 3^rd, 4^th, 8^th, 9^th, 11^th and D.C.) and ruled that a balancing test must be performed before admitting hearsay evidence at a revocation hearing. The 7^th Circuit stated, “When liberty is at stake, the limited right to confront and cross-examine adverse witnesses should not be denied without a strong reason.” The 7^th Circuit also noted that police reports are not to be presume to be unconditionally reliable and that police reports can be written as advocacy pieces for prosecutors and it should not be assumed that they are presented in a neutral way, which is a reason why police reports are excluded from the public records exception to the hearsay rule, F.R.E. 803(8).

The 7^th Circuit found that Federal Rule of Criminal Procedure 32.1(b)(2)(C) was violated and vacated the district court’s finding that Jordan possessed marijuana with intent to distribute and remanded the case for further proceedings.

Unfortunately, for Mr. Jordan it appears from the opinion that he was convicted of the possession of marijuana with intent to distribute charge out of Texas and will not likely find any relief on remand.