NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0565n.06
FILED
No. 10-3972
Aug 12, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
MICHAEL KOKOSKI, ) SOUTHERN DISTRICT OF OHIO
)
Defendant-Appellant. )
Before: SUTTON and WHITE, Circuit Judges; STAFFORD, District Judge.*
SUTTON, Circuit Judge. Michael Kokoski appeals the district court’s judgment revoking
his supervised release and imposing a 34-month prison sentence. We affirm.
I.
In 1994, Kokoski pleaded guilty to one count of employing a minor to distribute LSD, and
in 2000 he pleaded guilty to one count of escaping from a correctional institution. For these crimes,
the district court sentenced him to a total of 181 months of imprisonment and 72 months of
supervised release. Kokoski was released from prison and began his term of supervised release in
June 2008. On March 9, 2010, the district court revoked his supervised release and sentenced
Kokoski to two months in prison after he admitted committing various state crimes and using drugs.
*
The Honorable William H. Stafford, Jr., Senior United States District Judge for the
Northern District of Florida, sitting by designation.
No. 10-3972
United States v. Kokoski
Less than a month after Kokoski began serving his second term of supervised release, his
probation officer accused him of: (1) bringing an impostor (a friend purporting to be his attorney)
to a drug-counseling session; (2) stating at a counseling session that he felt “as if [he] could get a gun
and shoot [his probation officer] in the head”; (3) disrupting group counseling sessions; and (4)
making “inappropriate comments” to staff at the drug-treatment facility, which, in combination with
his erratic behavior, made female staff members there “very uncomfortable.” SRVR II at ¶ 5–12.
The district court held a second supervised release revocation hearing, after which it found
that Kokoski had failed to engage in the drug treatment required by his terms of release. The
sentencing guidelines recommended a prison sentence in the range of 8–14 months, but the district
court concluded that an above-guidelines sentence was “fully supported by Mr. Kokoski’s history,
his characteristics, and his behavior.” R.58 at 53. On the government’s recommendation, the court
sentenced Kokoski to a term of 34 months, the statutory maximum.
II.
A.
Kokoski contends that the revocation hearing violated due process because the district court
refused to allow him to cross-examine witnesses against him. Supervised release revocation
proceedings, like their forerunners (parole revocation proceedings), are subject only to “minimum
requirements of due process,” which are less demanding than the procedural protections that
normally accompany criminal trials. Morrissey v. Brewer, 408 U.S. 471, 489 (1972) (parole
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revocation); United States v. Lowenstein, 108 F.3d 80, 85 (6th Cir. 1997) (supervised release
revocation). While these requirements generally include “the right to confront and cross-examine
adverse witnesses,” the hearing process should nonetheless be “flexible enough to consider evidence
including letters, affidavits, and other material that would not be admissible in an adversary criminal
trial.” Morrissey, 408 U.S. at 489; accord Fed. R. Crim. P. 32.1(b)(2)(C). Neither the Confrontation
Clause, see United States v. Kirby, 418 F.3d 621, 627 (6th Cir. 2005), nor the Federal Rules of
Evidence, see Fed. R. Evid. 1101(d)(3), apply in supervised release revocation hearings, permitting
the use of hearsay evidence as long as it is reliable, United States v. Waters, 158 F.3d 933, 940 (6th
Cir. 1998). We review reliability findings for abuse of discretion. United States v. Whitely, 356 F.
App’x 839, 843 (6th Cir. 2009).
A number of factors go into the reliability inquiry. “Hearsay given under oath, replete with
detail, or supported by corroborating evidence has been recognized as reliable. Conversely, out-of-
court statements reflecting an adversarial relationship with the accused, or containing multiple layers
of hearsay, have been recognized as unreliable.” United States v. Lloyd, 566 F.3d 341, 345 (3d Cir.
2009); see also United States v. Moncivais, 492 F.3d 652, 658–59 (6th Cir. 2007) (finding hearsay
reliable because it was “richly detailed” and “both internally and externally consistent”). The
evidence presented at Kokoski’s second revocation hearing satisfied this reliability requirement.
Evaluations of Kokoski by Moster and Fischer. Kokoski objected to the admission of the
evaluations by Dr. Moster and Ms. Fischer, describing them as “the real meat of the violation.” R.58
at 17. The district court reasonably concluded that both evaluations were reliable. Dr. Moster’s
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report is a discharge summary, a record kept in the ordinary course of business at the treatment
center. See Fed. R. Evid. 803(6). Ms. Fischer’s report consists of notes taken while treating a
patient, which we have recognized may be admitted as a business record. See Flood v. Phillips, 90
F. App’x 108, 117 (6th Cir. 2004). There is no reason to doubt—and thus far no one has offered any
reason to doubt—that the two reports here satisfy the requirements of business records. Because
both evaluations fall within this “firmly rooted hearsay exception,” their reliability “can be inferred
without more.” Ohio v. Roberts, 448 U.S. 56, 66 (1980), overruled on other grounds by Crawford
v. Washington, 541 U.S. 36, 67 (2004). The evaluations, moreover, are detailed accounts that
corroborate each other and indeed have been corroborated by Kokoski himself. See Crawford v.
Jackson, 323 F.3d 123, 130 (D.C. Cir. 2003) (hearsay is reliable and admissible at a revocation
hearing when corroborated by the defendant’s own statements). Kokoski’s counsel acknowledged
the truth of two of the allegations—that his client brought an impostor to counseling and had mused
about shooting his probation officer. And the allegation that Kokoski was not meaningfully
participating in drug treatment is confirmed by Kokoski’s own admission that he does not “view
[himself] as having a drug problem” and is “not interested in sobriety.” R.37 at 2. Because Kokoski
“does not specifically dispute the reliability of [these factual allegations] on appeal,” we cannot
say—indeed it would be exceedingly hard to say—that the district court abused its discretion in
considering them. United States v. Roark, 403 F. App’x 1, 5 n.6 (6th Cir. 2010).
There is some question whether a district court’s reliability finding must satisfy a procedural
requirement as well, namely that the court expressly balance on the record the government’s interest
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in relying upon the hearsay—the Moster and Fischer reports—against Kokoski’s interest in
confrontation. Compare United States v. Kelley, 446 F.3d 688, 692 (7th Cir. 2006) (no explicit
balancing required if hearsay is sufficiently reliable), with Barnes v. Johnson, 184 F.3d 451, 454 (5th
Cir. 1999) (requiring “an explicit, specific finding of good cause” to permit the use of hearsay at a
parole revocation hearing). Whether such a requirement exists and, if so, when it applies need not
detain us. Even if trial courts must spell out on the record why the balancing inquiry came out the
way it did, any such error was harmless here.
In the context of a supervised release revocation hearing, the erroneous admission of hearsay
evidence is harmless unless it “affect[ed]” the defendant’s “substantial rights,” United States v.
Whitely, 356 F. App’x 839, 843 (6th Cir. 2009), which is to say that it altered “the outcome of the
district court proceedings,” United States v. Jackson, ___ F. App’x ___, No. 10-4165, 2011 WL
1597665, at *3 (6th Cir. Apr. 28, 2011). The key factual allegations contained in the hearsay
evidence—that Kokoski threatened his probation officer, brought an impostor to counseling sessions
and was not interested in freeing himself from his drug problem—were not disputed at Kokoski’s
revocation hearing, and they are not disputed on appeal. See Whitely, 356 F. App’x at 844. All of
this by definition establishes harmlessness—that admission of the two reports did not alter the
outcome of the proceedings. See United States v. Stanfield, 360 F.3d 1346, 1360 (D.C. Cir. 2004)
(Roberts, J.).
Probation Officer Frommeyer’s Report and Statements. Nor did the district court err in
relying upon the report prepared, and the in-court statements made, by Robert Frommeyer, the
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supervising probation officer handling Kokoski’s case. Because Kokoski did not object to the
court’s consideration of Frommeyer’s report and statements, we review the district court’s decision
to consider them for plain error. Frommeyer appeared at the revocation hearing, giving Kokoski the
opportunity to question him about the contents of his report. Kokoski chose not to do so, presumably
because he did not contest the accuracy of the relevant portions of Frommeyer’s report and
statements. See supra at 4. On this record, the district court reasonably “could have concluded that
[Frommeyer’s report and statements] were fairly reliable, insofar as they were corroborated by . . .
undisputed fact[s],” defeating any possibility of plain error. Stanfield, 360 F.3d at 1360.
Notice. Kokoski argues that the pleadings filed by the government failed to give him notice
of the charges against him. He complains that the government charged him with failing to
participate in drug treatment but then “unleashed” a battery of unrelated charges against him at the
revocation hearing. Kokoski Br. at 16–17. Not true. The government presented the same factual
allegations at the hearing that it included in its initial petition for revocation: bringing a friend with
him to treatment, announcing his intention to kill his probation officer, making inappropriate
comments to staff members and not seriously engaging in treatment. And the term of the agreement
he violated—failing to participate in a drug-treatment program—is the same one the government
raised in its petition. Kokoski had notice of the charges against him.
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B.
Kokoski argues that insufficient evidence supported the supervised-release violation. We
disagree. The court acknowledged that Kokoski was physically present at treatment sessions but
found that he did not take treatment seriously, that he engaged in disruptive and threatening behavior
at treatment sessions, and that he had no sincere desire to end his drug addiction. The record amply
supports these findings, permitting the court to conclude that Kokoski did not meaningfully
participate in the treatment program.
C.
Kokoski argues that the psychotherapist–patient privilege protected statements he made to
a counselor while receiving drug treatment and should not have been considered. The issue here is
not whether the privilege—protecting “confidential communications made to licensed psychiatrists
and psychologists”—applies. Jaffee v. Redmond, 518 U.S. 1, 15 (1996). It is whether Kokoski
waived the privilege. A patient may waive the psychotherapist–patient privilege by knowingly and
voluntarily relinquishing it, such as by disclosing the substance of therapy sessions to unrelated third
parties. United States v. Hayes, 227 F.3d 578, 586 (6th Cir. 2000).
Kokoski waived the privilege, first, by signing a waiver form authorizing the release of
confidential information to the probation office. The form notified Kokoski that the information
disclosed could include the “type, frequency, and effectiveness of therapy (including psychotherapy
notes).” R.48 Ex. A. Kokoski argues that the waiver should be set aside because he had no choice
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but to sign it as a condition of his supervised release, creating a “classic Catch 22 scenario” in which
Kokoski had to attend counseling but could not share his personal thoughts without running the risk
that they would be used against him at a revocation hearing. Kokoski Br. at 25. Whatever the merits
of that claim as a matter of policy, the government was well within its rights to demand that Kokoski
surrender certain rights and privileges as a condition of supervised release, including the
psychotherapist–patient privilege. Cf. Griffin v. Wisconsin, 483 U.S. 868, 874 (1987). Kokoski at
any rate waived the privilege in another way—by disclosing the substance of his therapy sessions.
He included a copy of Dr. Moster’s report in his motion for sanctions.
D.
Kokoski claims that his sentence was procedurally unreasonable because the court failed to
consider the guidelines or justify its imposition of an above-guidelines sentence. Since Kokoski did
not object to the sentencing procedure below, despite being given an opportunity to do so, we review
this claim for plain error. United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2007) (en banc). The
district court committed no procedural error, let alone a plain one. It considered the § 3553
sentencing factors and guidelines range, properly treated the guidelines as advisory and considered
both parties’ arguments before clearly explaining its rationale for the sentence imposed.
E.
Kokoski separately claims that his 34-month prison sentence was substantively unreasonable,
a claim we review “under a deferential abuse-of-discretion standard.” Gall v. United States, 552
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U.S. 38, 41 (2007). When a district court imposes a sentence outside the guidelines range, it “must
consider the extent of the deviation and ensure that the justification is sufficiently compelling to
support the degree of the variance,” since “a major departure should be supported by a more
significant justification than a minor one.” Id. at 50.
No doubt, this sentence was well above the guidelines range—20 months over the 14-month
high end of the range. But that does not make it excessive or an abuse of discretion. The court
justified the variance based on Kokoski’s extensive criminal history (including multiple supervised
release violations in a three-month span), his lack of interest in receiving treatment and his
statements about shooting his probation officer—all legitimate grounds for this variance. See United
States v. Woodward, 638 F.3d 506, 510 (6th Cir. 2011) (extensive criminal history); United States
v. Branch, 405 F. App’x 967, 969–70 (6th Cir. 2010) (repeated violations of terms of supervised
release); United States v. Kontrol, 554 F.3d 1089, 1092–93 (6th Cir. 2009) (threatening remarks to
probation officer). No reversible error occurred.
III.
For these reasons, we affirm.
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WHITE, J., dissenting. Because Kokoski was deprived of his right to cross-examine
adverse witnesses at the revocation hearing, in violation of due process, and the error was not
harmless, I respectfully dissent.
The Government called no witnesses at the revocation hearing. Only Frommeyer,
Kokoski’s probation officer’s supervising officer who had signed the Petition for Warrant and
Supervised Release Violation Report, spoke, without having been sworn to tell the truth.
Kokoski’s counsel objected, stating “Your Honor, we would like to cross-examine the
evidence in some format. The government’s called no witnesses. I anticipated that they would
put on some type of evidence to substantiate the violation.” R. 58 at 62. Kokoski’s counsel also
objected to the district court relying on counselor Fischer’s and Dr. Moster’s reports, which were
attached to Frommeyer’s Supervised Release Violation Report.
The Government conceded at argument that Frommeyer had no first-hand knowledge of
the contents of his report, which included the statement that “It is the opinion of Kokoski’s group
treatment counselor [Melissa Fischer] that Kokoski was not engaged in treatment and his
behavior was disruptive to the group process.” Yet, as discussed below, counselor Fischer’s
group therapy notes state no such opinions.
Given Kokoski’s objection to not being able to cross-examine adverse witnesses, the
district court was obligated to balance Kokoski’s right to cross-examine counselor Fischer and
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psychologist Moster against the Government’s reasons for denying it, and to determine whether
the Government established good cause for failing to have them appear. See Fed. R. Crim. P.
32.1, Advisory Committee Notes to the 2002 Amendments:
Rule 32.1(b)(2)(C) address[es] the ability of a releasee to question adverse
witnesses at the . . . revocation hearing. [That] provision[] recognize[s] that the
court should apply a balancing test at the 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. See, e.g.,
Morrissey v. Brewer, 408 U.S. 471, 489 (1972); United States v. Comito, 177 F.3d
1166 (9th Cir. 1999); United States v. Walker, 117 F.3d 417 (9th Cir. 1997);
United States v. Zentgraf, 20 F.3d 906 (8th Cir. 1994).
See also United States v. Waters, 158 F.3d 933, 940 (6th Cir. 1998) (noting that under Rule 32.1
“the trial court may consider reliable out-of-court statements in a final revocation hearing
provided that the defendant’s need for confrontation is outweighed by the government’s ground
for not requiring confrontation”).1 Here, the district court made no such inquiry of the
1
Am Jur, Pardon & Parole § 149, states:
A parolee must be afforded the opportunity for an effective rebuttal of the
allegations presented. Although a formal hearing and formalized cross-examination
are not necessary, on the request of the parolee, a person who has given adverse
information on which parole revocation is to be based must be made available for
questioning in the parolee’s presence. The parole board may not circumvent this
requirement by declining to offer the witness’s live testimony and relying instead on
summaries of what the witness would testify to if called. Rather, only if the hearing
examiner finds good cause for not producing the witness . . . can the government be
excused from proffering the best evidence.
See also Neil P. Cohen, The Law of Probation and Parole (2d ed.), § 26.24 at 26-57:
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Government, and the Government showed no cause, good or otherwise, for failing to present any
witnesses.
The majority concludes that 1) Kokoski did not object to the court’s consideration of
Frommeyer’s report and statements, and 2) that Kokoski had the opportunity to question
Frommeyer about the contents of his report but “chose not to do so, presumably because he did
not contest the accuracy of the relevant portions of Frommeyer’s report and statements.” I
disagree with both determinations. Defense counsel stated at the revocation hearing that Kokoski
denied Frommeyer’s allegation that he had violated his supervised release, and counsel’s
objection to the Government’s failure to present witnesses included that the Government had
presented no evidence substantiating Frommeyer’s report and statements. Thus, I cannot agree
with the majority that Kokoski failed to object to Frommeyer’s report and statements standing
alone, and chose not to question Frommeyer “presumably because he did not contest the accuracy
of” Frommeyer’s report and statements. Because Frommeyer had no first-hand knowledge of any
of the contents of his report, questioning him would have yielded only repetition of the very
conclusion Kokoski sought to challenge by examining the source of the information.
The record of the final revocation hearing should . . . include the reason for any
denial of the rights of confrontation . . . Morrissey provides for a right of
confrontation unless the decisionmaker “specifically finds” good cause to disallow
it. . . .
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The majority concludes regarding counselor Melissa Fischer and psychologist Moster’s
writings, which were attached to Frommeyer’s Violation Report, that 1) the district court
“reasonably concluded that both evaluations were reliable,” 2) there is no reason to doubt that the
two reports satisfy the requirements of the business-records exception to the hearsay rule, and 3)
because both reports fall within this “firmly rooted hearsay exception” their reliability can be
inferred without more.
The district court made no such determinations on the record – it did not address the
reliability of the counselors’ reports and it did not address whether it could properly consider
them under any hearsay exception, rather, the court stated that the “Rules of Evidence do not
apply to supervised violation hearings and the Court may rely on hearsay. I am within my
authority to rely on what Mr. Frommeyer has reported this afternoon. It seems to me then the
burden shifts to the Defendant . . . to present evidence or arguments that would negate the report
and the contents of the report.” R. 58 at 22-23.
In Waters, 158 F.3d at 940-41, an appeal from a supervised-release revocation, the
defendant challenged the Magistrate’s reliance on hearsay evidence as insufficiently reliable.
This court noted that documents properly admitted under the firmly-rooted business-records
exception do not violate the Confrontation clause:
As the Magistrate Judge observed, both exhibits contain notations stating that they
are true copies of hotel records kept in the ordinary course of business. Such
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records are generally considered reliable enough to overcome exclusion from
evidence on hearsay grounds, see Fed. R. Evid. 803(6) . . . . Under the
circumstances, we hold that the Magistrate Judge acted within his discretion in
considering the hotel records without requiring the government to call the
custodians to testify.
Frommeyer, the only person who spoke at the revocation hearing, did not state that either of the
therapists’ writings were kept in the regular course of business. Neither of the reports so states,
either.
Most importantly, Fischer’s report does not support the central statement in Frommeyer’s
Supervised Release Violation Report, that “It is the opinion of Kokoski’s group treatment
counselor [Melissa Fischer] that Kokoski was not engaged in treatment, and his behavior was
disruptive to the group process.” Fischer’s report stated in its entirety:
Michael was discussing his probation requirements and expressed his anger about
his lack of freedom. He stated, “sometimes I get so mad I feel as if I could get a
gun and shoot Tom Barbeau.” [a margin edit initialed MF said “in the head”]
Other group members chuckled in response thinking that the comment was not
serious, and [Kokoski] stated, “No I am serious, I could do that.” Counselor
expressed concern, and explained to [Kokoski] that he cannot leave until it is clear
that he has no intent to harm Tom or anyone else. At this point [Kokoski] stated,
“Oh I would not hurt Tom. I have no intention of that. I am just angry about my
situation. I do not own a gun.” Just after that statement, Michael followed with,
“. . . but I could go get one if I got angry enough.” Counselor again expressed
concern, and client stated, “Oh I am not serious honey, I did not mean for you to
take it so personally.” To which counselor replied, “I am doing my job which is
to make sure everyone is safe, and I am not convinced that you (client) are safe to
leave here and will not be a threat to anyone’s safety.” Client again stated that he
would not harm anyone or himself and counselor had him sign a statement that he
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would not harm Tom Barbeau. Michael understood that his probation officer
(Tom Barbeau) would be notified. After client left, Tom [PO Barbeau] was
notified by Lisa Schneider via email of the situation.
[signed, Melissa Fischer, MA, PCCR 4/7/10]
4/8/10
9:20 a.m. Counselor spoke directly with Tom Barbeau and relayed all
information about interaction with Michael Kowkowski [sic].
Counselor shared clinical impressions that client was making
contradictory statements the day before (4/7/10) in order to test
boundaries and attempt to manipulate counselor; however, that
counselor took precautions such as a written contract and notifying
Tom of incident.
[signed Melissa Fischer, MA PCCR 4/8/10]
In sum, counselor Fischer’s report opined neither that Kokoski was not engaged in treatment nor
that Kokoski’s behavior was disruptive to the group process.
I also largely disagree with the majority’s determination that, in any event, Fischer’s and
Moster’s evaluations “are detailed accounts that corroborate each other and indeed have been
corroborated by Kokoski himself.” There is no indication that Dr. Moster ever met with or
observed Kokoski in therapy or had any first-hand knowledge of the behaviors she reported in her
discharge summary. Most importantly, however, is that Dr. Moster’s discharge summary draws
its own conclusions regarding Kokoski’s expressing violent thoughts in group therapy regarding
probation officer Barbeau, conclusions which differ greatly from counselor Fischer’s. Counselor
Fischer, who indisputably led the April 7 group therapy session, stated in her counseling notes
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her clinical impression that Kokoski’s back and forth remarks regarding PO Barbeau were him
“making contradictory statements . . . in order to test boundaries and attempt to manipulate
counselor [Fischer herself].” As defense counsel repeatedly argued at the revocation hearing,
Fischer’s clinical impression that Kokoski was testing her boundaries and attempting to
manipulate her was contradicted by Dr. Moster’s discharge summary’s clinical impressions,
which stated, inter alia, that:
In reviewing progress notes and statements from staff members regarding
his time at IKRON, it is my determination that he posed an imminent risk to
safety of other persons, moved from general expression of frustration with
probation requirements to specific and deadly threat toward his probation officer
whom he deemed responsible. He did not make a vague, ill-defined threat but
rather a clear and specific threat including reasons for the threat, a plan that was
within his range of possibility, and a designated individual. His words indicate
that his anger is at a level of homicidal ideation and plan, and could escalate to
action. . . .
Nor did Kokoski corroborate Dr. Moster’s clinical impression. Kokoski’s counsel corroborated
only that Kokoski made statements in one group therapy session led by counselor Fischer that
sometimes he got so angry that he would like to shoot P.O. Barbeau, and that Kokoski took a
friend from the residential re-entry center at which he was residing with him to his first therapy
session, whom he introduced as his attorney. Kokoski in no way corroborated that he was not
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meaningfully participating in drug treatment, he adamantly maintained at the revocation hearing
that he had participated in treatment, and had thus not violated his supervised release.2
In United States v. Whitely, 356 F. App’x 839, 842 (6th Cir. 2009) (unpublished), this
court concluded that the district court’s reliance on unsworn testimony of the probation officer
was error:
The flexible evidentiary standard that applies to revocation proceedings allows
consideration of evidence that would be inadmissible in a criminal prosecution,
United States v. Kirby, 418 F.3d 621, 628 (6th Cir. 2005)[3], including letters,
affidavits, and other documents, Morrissey, 408 U.S. at 489 [], as well as hearsay
that bears indicia of reliability, United States v. Stephenson, 928 F.2d 728, 732
(6th Cir. 1991). But despite these relaxed standards, “defendants are entitled to
minimal due process requirements, including the right to confront and cross
examine adverse witnesses.” United States v. Torrez, No. 96-1973, 1997 WL
745520, at *2 (6th Cir. Nov. 24, 1997); see also Fed. R. Crim. P. 32.1(b)(2)(C)
(providing accused the right to question adverse witnesses at supervised release
2
The majority cites a pro se filing of Kokoski’s to support that Kokoski admitted that he was
not interested in sobriety and did not view himself as having a drug problem, but the district court
had struck all of his pro se filings, its order stating that it did so because Kokoski was “ably
represented” by Federal Defender Maus, Maus did not co-sign or authorize the pro se filings, and
that “a review of the pro se pleadings reveals that each of them suffers from the same infirmity, i.e.,
lack of formal legal education that might have given Defendant a thorough understanding of the
context in which his legal snippets arise. This Court concludes that each of the pro se motions
should be stricken from the docket.” R. 44, order entered 7/22/10.
3
In Kirby, 418 F.3d at 627, this court held that the district court did not err in relying solely
on the probation officer’s (sworn) testimony to establish that the defendant had committed crimes
while on supervised release where the probation officer’s “testimony reflects that he engaged in an
independent and thorough investigation of allegations that Kirby had committed crimes while on
supervised release,” that is, the sworn PO “personally reviewed surveillance tapes from businesses
at which Kirby had passed stolen checks during five separate incidents. Based on his personal
review of the videotapes, he identified Kirby as the individual passing the stolen checks.”
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revocation hearing). Despite these limited protections, we can assume, without
deciding, that the district court’s consideration of the unsworn probation officer’s
statements violated Whitely’s rights and constituted an obvious error. We
conclude, however, that any error was harmless because it did not affect Whitely’s
substantial rights.
[] To decide the prejudice issue here we examine whether the record – without the
probation officer’s statements – independently supports the court’s findings and
withstands a sufficiency challenge. We conclude that it does, and therefore find
no prejudice to Whitely from this error.
During the pendency of this appeal, this court issued United States v. Jackson, 2011 WL 1597665
(6th Cir. Apr. 28, 2011) (unpublished), which relied on Whitely. As in Whitely, the defendant in
Jackson did not object below. As in Whitely, the court in Jackson assumed that consideration of
the probation officer’s unsworn statement and failure to offer Jackson the opportunity to cross-
examine the officer were error. The court concluded that the error did not affect Jackson’s
substantial rights because he admitted three of the alleged violations and the district court found
that those three violations alone constituted a violation that required revocation, noting “With or
without the officer’s statement, the court was required to revoke Jackson’s supervised release.”
In the instant case, unlike in Whitely and Jackson, Kokoski objected to his inability to
cross-examine adverse witnesses. Kokoski did not admit that he violated his supervised release;
rather, he maintained that he participated in treatment. An examination of the record without
Frommeyer’s report and statements, i.e., counselor Fischer’s and Dr. Moster’s reports, does not
support the district court’s finding that Kokoski failed to participate in treatment. Dr. Moster was
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not present when Kokoski made the statements at issue during a group therapy session, and from
all indications had no first-hand knowledge of any of the contents of her report. Counselor
Fischer, the only one who had first-hand knowledge of Kokoski’s behavior and statements,
opined that Kokoski was testing her boundaries and attempting to manipulate her by expressing
his thoughts about his probation officer, not, as Frommeyer’s Supervised Release Violation
Report stated, that Fischer opined “that Kokoski was not engaged in treatment, and his behavior
was disruptive to the group process.”
Assuming, as the majority concludes, that counselor Fischer’s report was reliable hearsay,
Fischer’s report did not support Frommeyer’s allegation that Kokoski failed to participate in
treatment and thereby violated his supervised release.
Under these circumstances, the district court’s finding of a supervised-release violation
and its imposition of a sentence well above the Guidelines range, in the face of its denial of
Kokoski’s right to cross-examine adverse witnesses, was not harmless error.
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