Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 2:09-cr-20064-1--Jon Phipps McCalla, District Judge.
Paul L. Nelson, FEDERAL PUBLIC DEFENDER, Grand Rapids, Michigan, for Appellant.
Carroll L. Andre III, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellee.
Before: BOGGS, SILER, and CLAY, Circuit Judges. BOGGS, J., delivered the opinion of the court in which SILER, J., joined. CLAY, J., delivered a separate dissenting opinion.
BOGGS, Circuit Judge.
On December 7, 2010, Defendant-Appellant Mauricio Givens pled guilty to bank fraud. On April 4, 2011, the court sentenced Givens to 18 months of imprisonment and four years of supervised release. On July 14, 2011, Givens was released and his supervised release began. In November 2013, Givens's probation officer petitioned the court to revoke his supervised release. The officer claimed that Givens attempted to drive his car into Steven Queen. During the revocation-of-release hearing that followed this petition, Givens sought to impeach Queen on the basis of hearsay evidence. The district court refused to admit that evidence and subsequently revoked Givens's supervised release. Givens timely appealed. We affirm the judgment of the district court for the reasons that follow.
" The [district] court may, after considering [certain factors] . . . revoke a term of supervised release, . . . if the court . . . finds by a preponderance of the evidence that the defendant violated a condition of supervised release . . . ." 18 U.S.C. § 3583(e)(3). Such district-court revocations of supervised release are discretionary. This court reviews those revocations for an abuse of discretion. See, e.g., United States v. Stephenson, 928 F.2d 728, 731-2 (6th Cir. 1991); see also N.L.R.B. v. Guernsey-Muskingum Elec. Co-op., Inc., 285 F.2d 8, 11 (6th Cir. 1960) (defining an abuse of discretion as " arbitrary action not justifiable in view of" the situation and circumstances affecting the individual case).
Because we review a decision to revoke a prisoner's release for an abuse of discretion, this case does not turn on whether Queen testified accurately that Givens assaulted him. Rather, it turns on whether or not the district court was within its discretion to exclude evidence that might have called Queen's testimony into question. In particular, Givens attacks the district court's exclusion of two reports about Queen: " a police report, and the follow-up Secret Service [report] of Mr. Queen." According to Givens's counsel, the report " talk[ed] about how [Queen has] tried to intimidate people," but the court, looking at the report, concluded that it was a report that a church pastor had called the police to tell them that one of his members said that Queen had harassed her; because it was " just a bunch of hearsay," the court refused to let Givens use it
as impeachment material. Givens's counsel did cross-examine Queen without that report. One question Givens's counsel asked was whether Queen had " ever been charged with harassing anyone" other than Givens.
Our task is to determine whether there was any justification for the district court to exclude the hearsay evidence that purportedly concerned Queen's reliability as a complaining witness. There was, as a brief review of the relevant doctrinal history will show.
Prior to 1970, it was not clear that the Constitution demanded any trial process in administrative proceedings. In Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), the Supreme Court applied " the template for adjudication provided by the Federal Rules . . . in some respects to the administrative context." Judith Resnik, For Owen M. Fiss: Some Reflections on the Triumph and the Death of Adjudication, 58 U. Miami L. Rev. 173, 179 (2003) (emphasis added). Despite the costs to the government, Goldberg and its sequellae afforded a non-zero but less-than-trial amount of process to participants in administrative proceedings.
The revocation of parole is an administrative proceeding, and the Court applied Goldberg to it. Morrissey v. Brewer, 408 U.S. 471, 487, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). This court, in turn, applied Morrissey to revocation-of-supervised-release cases. United States v. Lowenstein, 108 F.3d 80, 85 (6th Cir. 1997). The Morrissey Court clarified " the minimum requirements of due process," including (a) written notice, (b) disclosure of evidence, (c) opportunity to be heard in person and to present evidence, " (d) the right to confront and cross-examine adverse witnesses ( unless the hearing officer specifically finds good cause for not allowing confrontation )," (e) a neutral and detached arbiter, ...