F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 27 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 01-3169
v. (D.C. No. 95-CR-10060-JTM)
DALEY DECOVEN WASHINGTON (D. Kansas)
III, a/k/a Salim Siddiq El-Fahim,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR , ALARCON, **
and ANDERSON , Circuit Judges.
Daley D. Washington III, a/k/a Salim Siddiq El-Fahim (“Defendant”),
appeals the revocation of his supervised release and subsequent imposition of a
sentence of 24 months imprisonment followed by a new period of 22 months of
supervised release. The only question raised on appeal is whether the district
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
The Honorable Arthur L. Alarcon, Circuit Judge, U.S. Court of Appeals,
**
Ninth Circuit, sitting by designation.
court violated the Defendant’s Sixth Amendment right to confront witnesses
against him by relying on hearsay testimony which the Defendant asserts did not
contain “sufficient indicia of reliability.” Br. of Appellant at 12. Exercising
jurisdiction pursuant to 28 U.S.C. §1291, we affirm.
The government and the Defendant are well aware of the facts, including
the Defendant’s history of criminal behavior, incarceration, supervised release,
re-incarceration, further supervised release, and further criminal behavior leading
to the instant revocation proceeding. Accordingly, we will not repeat those facts
in detail here. In short, however, the record establishes, and the district court
found, that in March 2001, Defendant conspired to pass counterfeit checks.
The critical evidence in this proceeding came from the testimony of
Detective Bradley Tuzicka regarding statements he received from two individuals
who actually passed counterfeit checks on March 9 and March 13, 2001, Mr.
Aslan Saulers (“Saulers”) and Ms. Shayla Jones (“Jones”). Both of these
individuals told Detective Tuzicka that they had been recruited to participate in a
check cashing scheme by Defendant, and that Defendant had provided them with
the counterfeit checks. Both indicated that Defendant was the leader and
mastermind of the counterfeit check cashing scheme they were involved in.
On appeal, Defendant contends that this hearsay testimony was unreliable
and that the district court erroneously relied upon it in revoking his supervised
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release, in violation of his Sixth Amendment right to confront the witnesses
against him. Ordinarily, we would review a district court’s decision to revoke a
defendant’s supervised release for abuse of discretion. United States v. Disney ,
253 F.3d 1211, 1213 (10th Cir. 2001) (citing United States v. Reber , 876 F.2d 81,
83 (10th Cir. 1989). However, since Defendant failed to object to the admission
of Detective Tuzicka’s hearsay testimony, we review his arguments only for plain
error. 1 United States v. LaHue , 261 F.3d 993, 1009 (10th Cir. 2001). “Under
[plain error] review, relief is not warranted unless there has been (1) error, (2)
that is plain, and (3) affects substantial rights. . . . An appellate court should
exercise its discretion to correct plain error only if it seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.” Jones v. United
States , 527 U.S. 373, 389 (1999) (internal citations and quotations omitted).
Defendant made no hearsay or Sixth Amendment objections during the
1
testimony of Detective Tuzicka. Although Defendant’s counsel stated during his
closing statement that “if this were really a strong case the government would
bring these people in here for us to have a chance to have a meaningful Fifth
Amendment confrontation,” R. Vol. II, Tr. of Revocation Proceedings at 101, this
statement does not qualify as a sufficient objection to preserve the issue for
appeal. Defendant’s counsel did not ask the district court to strike Detective
Tuzicka’s hearsay testimony or otherwise indicate that he wanted the court to
protect Defendant’s Sixth Amendment rights. At most, counsel’s statement
constituted an attempt to diminish the credibility of the evidence and the overall
strength of the government’s case, not an objection to the admission of the
evidence itself.
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Our analysis begins with the recognition that the Federal Rules of Evidence
do not strictly apply in proceedings to revoke supervised release, and that hearsay
is admissible in revocation proceedings so long as it is sufficiently reliable and
the court balances the defendant’s right to confront adverse witnesses against the
government’s grounds for denying confrontation. United States v. Frazier , 26
F.3d 110, 114 (11th Cir. 1994); United States v. Waters , 158 F.3d 933, 940 (6th
Cir. 1998). On appeal, Defendant challenges only the reliability of the hearsay
testimony, and we therefore analyze only that issue. 2
The district court did not make any express finding that the statements of
Saulers and Jones were sufficiently reliable. The record fairly demonstrates,
however, that the district court conducted the functional equivalent of a reliability
analysis, concluding, for example, that the statements of Saulers and Jones were
independent and consistent. R. Vol. II, Tr. of Revocation Proceedings at 104-05.
In any event, the record supports the conclusion that the hearsay testimony was
2
While the government did not articulate a reason for not calling Saulers
and Jones to testify, the Defendant did not assert an adequate objection.
Presumably, therefore, the district court did not proceed to balance the
Defendant’s right to confront adverse witnesses against the government’s grounds
for denying confrontation. Even assuming arguendo that the district court should
have conducted such a balancing prior to admitting the hearsay testimony,
however, its failure to do so did not constitute plain error, especially considering
defense counsel’s agreement with the district court’s assumption that Saulers and
Jones probably would have invoked their Fifth Amendment rights against self-
incrimination, R. Vol. II, Tr. of Revocation Proceedings at 101, and the overall
reliability of the hearsay. See infra.
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sufficiently reliable, and we therefore hold that the district court did not commit
plain error.
To begin with, the circumstances surrounding the statements evidence their
inherent reliability. Detective Tuzicka testified that he interviewed Saulers and
Jones separately, that neither were told about the other’s statement, and that both
gave detailed and consistent stories about Defendant’s involvement in their illegal
activities. Id. at 67-73, 75. These independent statements contained a detailed
description of a counterfeit check cashing scheme involving the Defendant that
closely paralleled a scheme Defendant was found to be involved with in February
2000, despite the fact that, by his own testimony, Defendant never told Saulers or
Jones any details surrounding his prior illegal activities. Id. at 99-100, 105.
Although not dispositive, the fact that Saulers’ and Jones’ statements were highly
incriminating to themselves is further evidence of the inherent reliability of their
statements. Id. at 103-04. 3
Relying on Idaho v. Wright, 497 U.S. 805 (1990), and Lee v. Illinois, 476
3
U.S. 530 (1986), Defendant asserts that in considering the reliability of Detective
Tuzicka ’s hearsay testimony, we cannot rely on the fact that Jones and Saulers
acted against their penal interest in making their statements. Br. of Appellant at
9-10. We disagree. As a threshold mater, Lee and Wright apply only to the
admission of hearsay evidence during the guilt phase of a criminal trial. They do
not apply in supervised release revocation proceedings. See Morrissey v. Brewer,
408 U.S. 471, 489 (1972) (holding that although defendants have minimal due
process rights in revocation proceedings, including “the right to confront and
cross-examine adverse witnesses,” the revocation proceedings can not be equated
(continued...)
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External corroboration gives further credence to the reliability of the
statements made by Saulers and Jones. 4
First, Defendant’s car was seen by a
security officer at one of the locations where Saulers attempted to pass one of the
counterfeit checks, id. at 63-65, supporting the claims by both Saulers and Jones
that Defendant was instrumental in their efforts to pass the counterfeit checks.
Second, Detective Tuzicka and Agent Marr testified that the checks passed by
Saulers and Jones on March 9 and13, respectively, were both produced in the same
3
(...continued)
to “a criminal prosecution in any sense,” and courts are given greater flexibility in
admitting hearsay in such proceedings). See also United States v. Walker, 117
F.3d 417, 420 (9th Cir. 1997) (noting that a defendant’s right to confront
witnesses against him in a revocation hearing does “‘not rise to the level of
similar rights at criminal trial’”) (quoting United States v. Martin, 984 F.2d 308,
311 (9th Cir. 1993). Moreover, we have previously recognized that even under
Lee, the fact that hearsay constituted a statement against penal interest may be
considered as one of the non-dispositive factors in the reliability analysis. See
Earnest v. Dorsey, 87 F.3d 1123, 1133 (10th Cir. 1996) (“[I]n light of Lee we
view a hearsay statement’s adverse effect on the declarant’s penal interest not as
dispositive of reliability, but as ‘one factor entitled to some consideration.”)
(quoting United States v. Gomez, 810 F.2d 947, 954 n. 8 (10th Cir. 1987)).
4
Again relying on Wright, Defendant asserts, on appeal, that we cannot
consider extrinsic corroborating evidence in our reliability analysis. Br. of
Appellant at 10. He suggests that we must determine reliability solely from the
circumstances surrounding the making of the statement by Saulers and Jones, and
argues that because the police interrogation is inherently suspect, we must find
their statements unreliable. Id. As we have already discussed, however, Wright
has no application in this case. See supra note 3. Moreover, courts have
previously considered extrinsic evidence of corroboration in determining whether
hearsay evidence was sufficiently reliable to be admitted and considered in
revocation proceedings. See, e.g., United States v. Chin, 224 F.3d 121, 124 (2nd
Cir. 2000); United States v. Waters, 158 F.3d 933, 941 (6th Cir. 1998); United
States v. Huckins, 53 F.3d 276, 279 (9th Cir. 1995).
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manner, on the same type of stock, and pursuant to the same computer program as
that utilized in Defendant’s previous check cashing scheme in February 2000. Id.
at 76, 79-80.
CONCLUSION
Based on the foregoing discussion, we hold that the district court did not
commit reversible error in relying on the hearsay testimony of Detective Tuzicka
in revoking Defendant’s supervised release, or in ordering the revocation of
Defendant’s supervised release. Accordingly, the judgment is AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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