United States v. Taveras

United States Court of Appeals
For the First Circuit

No. 03-2140

UNITED STATES OF AMERICA,

Appellee,

v.

JIMMY TAVERAS, f/k/a JIMMY TRAVERAS,

Defendant, Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Torruella, Lynch, and Lipez, Circuit Judges.

Dawn E. Caradonna, with whom The Law Office of Dawn E.
Caradonna was on brief, for Appellant.

Donald A. Feith, with whom Thomas P. Colantuono, U.S.
Attorney, and Peter E. Papps, First Assistant U.S. Attorney, were
on brief, for Appellee.

August 17, 2004
 LIPEZ, Circuit Judge. Jimmy Taveras challenges the

district court's revocation of his supervised release without

giving him the opportunity to confront the complaining witness

whose account of an alleged violation of state law was the basis of

the court's revocation decision. Instead, the court relied on

Taveras's probation officer to present a hearsay account of the

alleged violation. Concluding that the reliance by the district

court on this second-hand account violated Taveras's confrontation

rights under Rule 32.1(b)(2)(C) of the Federal Rules of Criminal

Procedure, we vacate the revocation of his supervised release.

I.

We draw our recitation of the facts from the district

court record. On November 2, 1998, Taveras pleaded guilty to one

count of conspiracy to distribute and to possess with intent to

distribute cocaine and heroin in violation of 21 U.S.C. § 846 and

distribution of heroin in violation of 21 U.S.C. § 841. He was

sentenced to thirty-seven months of imprisonment and four years of

supervised release. The sentencing court imposed a number of

conditions of supervised release, including a prohibition on his

possession of a firearm and a requirement that Taveras "not commit

another federal, state, or local crime."

Approximately three weeks after he was released from this

first period of incarceration, Taveras was arrested again and was

charged with witness tampering for verbally assaulting a government

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witness who had testified against a Massachusetts gang with whom

Taveras was allegedly associated. On October 18, 2000, the

district court revoked Taveras's supervised release and sentenced

him to twelve months and one day of imprisonment and thirty-six

months of supervised release. He was released from this second

period of incarceration on June 23, 2001, and was arrested again

April 25, 2003, this time by the Lawrence, Massachusetts police for

assault with a deadly weapon and possession of a firearm without a

license. Although the state charges were eventually dismissed

because the complaining witness refused to testify, the district

court held supervised release revocation proceedings based on this

arrest at the request of Taveras's probation officer, Carmen

Wallace, on July 29, 2003 and August 8, 2003.1

Claiming that the complaining witness could not be found

to testify, the Government announced its intention to rely on

probation officer Wallace to provide a hearsay account of the

alleged assault. Taveras moved for dismissal of the proceedings

just before Wallace testified, arguing that the Government violated

Fed. R. Crim. P. 26.22 (because the government had not given him a

1
The court suspended the proceedings on July 29 to allow the
court and the parties to research the definition of "assault with
a deadly weapon" and "possession of a firearm" under Massachusetts
law.
2
Fed. R. Crim. P. 26.2(a) states:

After a witness other than the defendant has testified on
direct examination, the court, on motion of a party who

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copy of the statement of the complaining witness in its possession)

and Rule 32.13 (by not making the complaining witness available for

cross-examination). The district court overruled the first

objection, noting that Rule 26.2 only applies to witnesses and

stating that the complaining witness was not going to be a witness.

It overruled the second objection as well, observing that Taveras

was free to call the complaining witness to the witness stand if he

wanted to examine her but that Rule 32.1 did not require the

Government to call a witness simply so that Taveras could cross-

examine her.

Wallace took the stand and recounted two conversations

that she had with the complaining witness, a woman who identified

herself as Elsa Pabon. The first communication was a ten to

fifteen minute telephone conversation that occurred on the morning

of April 16, 2003. Pabon told her that Taveras, whom she knew

did not call the witness, must order an attorney for the
government or the defendant and the defendant's attorney
to produce, for the examination and use of the moving
party, any statement of the witness that is in their
possession and that relates to the subject matter of the
witness's testimony.
3
Taveras mis-spoke during the hearing, claiming that Rule
32.1(a)(2)(D) entitled him to confront adverse witnesses. That
provision, which establishes the defendant's rights at a supervised
release revocation hearing, was moved to 32.1(b)(2)(C) in 2002 and
currently reads: "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."

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because he was dating her cousin, had pulled up next to her car on

the previous evening and had pointed a black semi-automatic handgun

at her. She said that he was upset that Pabon's sister had broken

up with Taveras's brother and told Pabon to "tell [her] sister's

boyfriend this is what [he has] for him" as he pointed the gun at

her. She said that she felt threatened by Taveras and was in fear

for her safety. Wallace said that Pabon was highly emotional and

that Pabon said that she had been trying to reach Wallace all

morning because she knew that Wallace was Taveras's probation

officer. Wallace encouraged Pabon to contact the police, and Pabon

did so after the end of this phone conversation.

The second conversation occurred when Wallace visited

Pabon and her mother at Pabon's home on April 28, 2003. Pabon told

Wallace that she was very afraid of Taveras and his family and

friends because she knew what they were capable of doing. She had

received phone calls from Taveras's brother and Taveras's lawyer on

the day that he was arrested, asking why she was pursuing the

matter. Although Wallace tried to get a written statement from

Pabon, she refused to give one, saying that Wallace could not

guarantee her safety or the safety of her children.4

After Wallace visited her house, Pabon submitted a

written statement to the local prosecutor, saying that the whole

4
When asked how many children Pabon has, Wallace responded: "I
believe she has two or three. I'm not too sure."

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matter was a big misunderstanding and that she did not want to

pursue any charges against Taveras. Having lost their witness, the

Commonwealth dropped its charges. Although Wallace went to Pabon's

house to bring her to the federal revocation proceedings, she saw

that Pabon's name had been removed from the mailbox and a neighbor

said that she did not believe that Pabon lived there any longer.

The Government rested after Wallace presented this

account. Taveras did not present any witnesses. However, during

his closing argument, he repeated his objection to the court's

consideration of Wallace's hearsay testimony.

Noting that Taveras failed to object to Wallace's hearsay

testimony while she was on the stand and that the testimony was

admissible under the excited utterance exception to the hearsay

rule, the court considered Wallace's testimony for the truth of the

matter asserted in Pabon's account of her confrontation with

Taveras. It found Pabon's story, as delivered by Wallace, to be

credible, and found that Taveras had committed the charged crimes

of assault and assault with a dangerous weapon. It then revoked

his supervised release and sentenced him to 18 months of

imprisonment and an additional 12 months of supervised release.5

5
Generally, supervised release revocation proceedings follow
a two-step process. The court first determines whether the
defendant violated his or her conditions of release and then it
considers whether that violation merits revocation. See 18 U.S.C.
§ 3583(e).

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 II.

As noted, Taveras supported his claim to cross-examine

Pabon by invoking Rule 32.1(b)(2)(C), which provides that a

defendant is entitled at a revocation hearing to, inter alia, "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 district court admitted Wallace's hearsay

testimony, rejecting Taveras's Rule 32.1(b)(2)(C) cross-examination

claim. Despite the district court's observation that Taveras

failed to object to Wallace's hearsay testimony while she was on

the stand, Taveras's objections before and after her testimony

demonstrate that he did not forfeit this claim below. Accordingly,

we review Taveras's argument that the district court should not

have admitted the hearsay testimony for abuse of discretion, United

States v. Tom, 330 F.3d 83, 92 (1st Cir. 2003), rather than plain

error.6

In conducting this review, we find some of the history of

Rule 32.1 relevant to Taveras's claim of error. The Advisory

6
On appeal, Taveras frames his argument in terms of the
requirements of constitutional due process rather than the
requirements of Rule 32.1(b)(2)(C). The grounding of Rule 32.1 in
constitutional due process (as we explain in the text above) makes
our consideration of the rule appropriate on appeal despite the
labels used by Taveras. Moreover, we have a strong preference for
avoiding constitutional grounds when another ground of decision is
available. See, e.g., Santoni v. Potter, 369 F.3d 594, 598 n.5
(1st Cir. 2004).

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Committee Notes accompanying the 1979 addition and the 2002

amendments to Rule 32.1 reveal that the procedural protections

established by Rule 32.1(b)(2)(C) were designed to track the due

process rights established for parolees in Morrissey v. Brewer, 408

U.S. 471 (1972). See United States v. Correa-Torres, 326 F.3d 18,

22-23 (1st Cir. 2003) (applying Morrissey and Fed. R. Crim. P. 32.1

in the supervised release context). The Morrissey Court held that

while "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," defendants

at these proceedings are still entitled to basic due process

protections. 408 U.S. at 480. One of these rights is "the right

to confront and cross-examine adverse witnesses (unless the hearing

officer specifically finds good cause for not allowing

confrontation)." Id. at 489.

Citing Morrissey and its progeny, the Rules Advisory

Committee stated in its 2002 Committee Note that Rule 32.1(b)(2)(C)

"recognize[s] that the court should apply a balancing test at the

[revocation] hearing itself when considering the releasee'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." An important element of the good cause analysis is

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the reliability of the evidence that the Government seeks to

introduce.7

In an effort to establish the reliability of Wallace's

hearsay testimony, the Government argued that the court could

accept it under the excited utterance/spontaneous declaration

exception to the hearsay rule. Idaho v. Wright, 497 U.S. 805, 815

(1990) ("Reliability can be inferred without more in a case where

the evidence falls within a firmly rooted hearsay exception.").

That exception allows the admission of a statement relating to a

startling event or condition made while the declarant was under the

stress of excitement caused by the event or condition. See United

States v. Bailey, 834 F.2d 218, 227-28 (1st Cir. 1987); Fed. R.

Evid. 803(2). "The rationale underlying the 'excited utterance'

exception is that excitement suspends the declarant's powers of

reflection and fabrication, consequently minimizing the possibility

that the utterance will be influenced by self interest and

therefore rendered unreliable." United States v. Alexander, 331

F.3d 116, 122 (D.C. Cir. 2003) (citation and internal quotation

marks omitted); see also United States v. Joy, 192 F.3d 761, 766

(7th Cir. 1999) ("This exception is premised on the belief that a

7
The Government's burden in producing the witness for cross-
examination is also frequently cited as part of the "good cause"
analysis. See, e.g., United States v. Zentgraf, 20 F.3d 903, 909
(8th Cir. 1994). Since we conclude that the hearsay testimony was
wholly unreliable and prejudicial, we need not consider the
government's burden of producing the witness in this case.

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person is unlikely to fabricate lies (which presumably takes some

deliberate reflection) while his mind is preoccupied with the

stress of an exciting event."). The time lapse in most excited

utterance cases is usually a few seconds, see, e.g., United States

v. Vazquez, 857 F.2d 857, 864 (1st Cir. 1988), or a few minutes,

see, e.g., Bailey, 834 F.2d at 228. In extreme circumstances, we

have even accepted a delay of a few hours, see United States v.

Cruz, 156 F.3d 22, 30 (1st Cir. 1998) (accepting testimony from a

woman four hours after the shocking incident based on the

assumption that she was still suffering trauma after she was beaten

by the defendant).

The delay here extended well beyond the limits

established by our excited utterance precedents. The alleged

assault occurred on the night of April 15, but Pabon did not call

Wallace until the next morning. Furthermore, while Wallace did not

testify to the precise time that Pabon called, she did say that the

witness had been trying to reach her all morning, suggesting that

the two talked late in the morning. Thus, the extended delay in

this case was long enough to allow Pabon to reflect on the alleged

events of the previous night and possibly to fabricate or alter the

story that she related to Wallace. Wallace's hearsay testimony did

not meet the requirements of the excited utterance exception to the

hearsay rule.

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 Furthermore, the hearsay testimony presented at the

revocation hearing lacked other indicia of reliability. Pabon's

statement was neither written nor sworn, see United States v.

Comito, 177 F.3d 1166, 1171 (9th Cir. 1999) ("Unsworn verbal

allegations are, in general, the least reliable type of hearsay .

. . ."), and the Government failed to provide any corroborating

evidence to support Pabon's accusation that Taveras pointed a gun

at her. Cf. United States v. Pratt, 52 F.3d 671, 675 (7th Cir.

1995) (accepting a police officer's hearsay testimony at a

supervised release revocation hearing that was corroborated by

written reports and statements of the victims, surveillance

photographs, and other physical evidence); United States v.

Kindred, 918 F.2d 485, 486-87 (5th Cir. 1990) (accepting hearsay

testimony regarding a drug test when the defendant neither

contested the allegations of drug use nor the accuracy of the

urinalysis); United States v. McCallum, 677 F.2d 1024, 1026-27 (4th

Cir. 1982) (accepting written report from a defendant's caseworker

at a revocation hearing that was partially corroborated by the

defendant's admissions). Moreover, the Government did not provide

any background details about Pabon or her relationship with

Taveras. This exchange between Taveras and Wallace at trial

underscores these deficiencies:

Q: You don't have any background history with
Elsa Pabon; do you?
A: No, I do not.

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 Q: All right. Do you know whether she's got a
criminal history?
A: I do not.
Q: Do you know whether she has a habit of
lying?
A: I do not.
Q: And you also don't know whether there's any
history between her and the Taveras family,
any reason for her to lie about these charges?
A: I do not.

Wallace's involvement with Pabon was limited to a fifteen minute

phone conversation and a short personal interview in which Pabon

said that she did not wish to pursue charges against Taveras.

Given the unreliable nature of Wallace's hearsay

testimony, we conclude that the "interest of justice" did not

justify the district court's decision to override Taveras's

qualified right to confrontation and that the court abused its

discretion by admitting the hearsay testimony. Wallace's testimony

was the only evidence presented in support of the Government's

case, and the prejudice to Taveras from the absence of

confrontation is unmistakable. Rule 32.1(b)(2)(C) mandates the

exclusion of such unsupported hearsay under these circumstances.

Without the hearsay testimony, there was no case; therefore, we

must vacate the district court's judgment.8

Vacated.

8
Our disposition of this case does not require us to consider
the applicability of Crawford v. Washington, 124 S. Ct. 1354 (2004)
to supervised release revocation proceedings (an argument made by
appellant for the first time at oral argument), nor does it require
us to consider Taveras's argument that the government failed to
prove all the necessary elements of an assault as that crime is
defined under Massachusetts law.

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