PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 11-4190
ANTHONY CURTIS DOSWELL,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, Senior District Judge.
(1:93-cr-00483-WMN-2)
Argued: January 24, 2012
Decided: March 2, 2012
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Vacated and remanded by published opinion. Judge Motz
wrote the opinion, in which Judge Niemeyer and Judge King
joined.
COUNSEL
ARGUED: Joanna Beth Silver, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Baltimore, Maryland, for Appellant.
Paul Nitze, OFFICE OF THE UNITED STATES ATTOR-
NEY, Greenbelt, Maryland, for Appellee. ON BRIEF: James
2 UNITED STATES v. DOSWELL
Wyda, Federal Public Defender, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Robert
R. Harding, Assistant United States Attorney, Michael
Schelpp, Law Student Intern, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Anthony Doswell appeals the judgment of the district court
revoking his term of supervised release and sentencing him to
twenty–four months of incarceration. Because the court failed
to comply with Federal Rule of Criminal Procedure
32.1(b)(2)(C) when it admitted and relied on hearsay evidence
at Doswell’s revocation hearing, we vacate and remand for
further proceedings consistent with this opinion.
I.
In July 1994, Doswell was convicted of robbery and sen-
tenced to 210 months of incarceration, followed by a three
year term of supervised release. His supervised release began
on May 11, 2009.
On August 26, 2010, Doswell’s probation officer filed a
Notice of Violation ("Original Notice") alleging six violations
of the conditions of Doswell’s supervised release. Specifi-
cally, the Original Notice asserts that, while on release, Dos-
well (1) failed to attend mental health treatment appointments
on multiple occasions; (2) absconded from supervision and
failed to provide his probation officer with his current where-
abouts; (3) failed to submit two required written monthly
reports; (4) failed to report a marijuana arrest to his probation
officer; (5) provided a urine sample that tested positive for
heroin; and (6) had been charged with possession of mari-
juana.
UNITED STATES v. DOSWELL 3
Three months later, on November 15, 2010, the probation
officer filed a "Notice of Violation to Supplement the
8/26/2010 Petition" ("Supplemental Notice"), which alleges
an additional violation of the conditions of Doswell’s super-
vised release. The Supplemental Notice asserts that, on Octo-
ber 26, 2010, Doswell was charged with "Attempted CDS
Distribution of Narcotics and CDS Possession Not Mari-
juana," i.e., attempted distribution and possession of heroin.
Doswell’s revocation hearing occurred on January 11,
2011. At the outset of the hearing, the district court asked
whether Doswell admitted any of the alleged violations. Dos-
well’s counsel stated that Doswell admitted that he had been
convicted of possession of marijuana as set forth in the Origi-
nal Notice. Defense counsel explained that the parties dis-
agreed as to whether this marijuana violation constituted a
Grade A violation, which would require revocation of Dos-
well’s supervised release, or only a Grade C violation, which
would not. See U. S. Sentencing Guidelines Manual
§ 7B1.3(a).
Before the district court could resolve the parties’ dispute
on this point, the Government stated that Doswell had com-
mitted another offense that independently required revocation
of Doswell’s supervised release—the heroin violation alleged
in the Supplemental Notice. The Government acknowledged
that the heroin charge had been nolle prossed in state court
because the chemist, who authored the drug analysis report
stating that the seized capsules contained heroin, failed to
appear in court on two occasions. Nevertheless, the Govern-
ment asserted that the nolle prossed heroin charge mandated
revocation of Doswell’s supervised release. The Government
offered two pieces of evidence to support the contention that
the heroin violation had in fact occurred: (1) the statement of
probable cause sworn by the police officer who arrested Dos-
well; and (2) the drug analysis report itself.
Doswell’s counsel immediately responded that he and his
client had not received the Supplemental Notice. The district
4 UNITED STATES v. DOSWELL
court then allowed defense counsel the opportunity to exam-
ine the Supplemental Notice and discuss the additional charge
with Doswell. After conferring with Doswell, defense counsel
reported to the court that Doswell did "dispute th[e] [heroin]
violation." Counsel pointed out that, as the prosecutor had
conceded, the heroin "case was actually dismissed" and noted
that there was "a dispute . . . as to what the underlying sub-
stance was." Doswell’s counsel contended that the substance
in the capsules seized from Doswell was actually pain medi-
cation and "object[ed] to th[e] Court considering the drug
[analysis] report without further testimony to support what the
substance is." Defense counsel explained that the defense
"certainly would want to be able to investigate and show that
potentially that the drug report is incorrect, . . . which could
be clarified through the witness who didn’t show up on two
occasions in state court to establish what, in fact, the sub-
stance was and whether it was something that [Doswell] could
legally possess pursuant to a prescription." Counsel empha-
sized that the state court had found the drug analysis report
"insufficient to sustain a conviction."
Without explanation, the district court concluded that, "not-
withstanding the objection," the drug analysis report was "suf-
ficient to support the [heroin] violation alleged." Accordingly,
the court found Doswell guilty of the heroin violation set forth
in Supplemental Notice, a violation that the court concluded,
"in itself, [wa]s sufficient for . . . a mandatory revocation [of
Doswell’s supervised release]." The court then sentenced
Doswell to the statutory maximum, twenty-four months of
imprisonment.
Doswell noted a timely appeal.
II.
We resolve at the outset certain preliminary matters.
Doswell argues that his rights under Federal Rule of Crimi-
nal Procedure 32.1(b)(2) and the Fifth Amendment were vio-
UNITED STATES v. DOSWELL 5
lated in two respects. First, Doswell challenges the failure to
provide him notice of the alleged heroin offense in advance
of his revocation hearing. Second, he challenges the district
court’s reliance on the Government’s hearsay evidence to find
that he had violated the conditions of his supervised release.
We need not reach Doswell’s first argument—the notice
contention—because we agree with him that the district
court’s error in failing adequately to assess the hearsay evi-
dence requires a remand. Clearly, he now has notice of the
alleged heroin violation and so has adequate time to prepare
a defense to it on remand.
Moreover, with regard to Doswell’s second contention—
improper admission of hearsay—because we conclude that
the district court failed to comply with Federal Rule of Crimi-
nal Procedure 32.1(b)(2)(C) when admitting hearsay evidence
at the revocation hearing, we do not reach Doswell’s constitu-
tional argument. See Norfolk S. Ry Co. v. City of Alexandria,
608 F.3d 150, 156-57 (4th Cir. 2010) (noting that the "princi-
ple of constitutional avoidance . . . . requires the federal courts
to strive to avoid rendering constitutional rulings unless abso-
lutely necessary").
The final preliminary matter is determination of the proper
standard of review with respect to the contention we do
address—admission of hearsay evidence at a supervised
release revocation hearing. We ordinarily review a district
court’s decision to admit evidence for abuse of discretion.
United States v. Medford, 661 F.3d 746, 751 (4th Cir. 2011).
That same standard applies to a district court’s admission of
hearsay evidence under Federal Rule of Criminal Procedure
32.1(b)(2)(C). See United States v. Williams, 443 F.3d 35, 46
(2d Cir. 2006). Nevertheless, the Government maintains that,
in this case, we should review for plain error. The Govern-
ment maintains that Doswell did not object to the admission
of the hearsay evidence with sufficient specificity to preserve
6 UNITED STATES v. DOSWELL
his argument on appeal that the district court erred in admit-
ting the hearsay evidence.
We must reject this argument. Counsel did not need to
invoke Rule 32.1(b)(2)(C) by name in order to preserve the
claim on appeal, as long as the objection was "sufficiently
specific to bring into focus the precise nature of the alleged
error." Duty v. East Coast Tender Service, Inc., 660 F.2d 933,
941 (4th Cir. 1981). Here, defense counsel clearly and force-
fully objected to the admission of the hearsay drug analysis
report based, at least in part, on the inability to question the
author of the report. See Fed. R. Crim. P. 32.1(b)(2)(C) (pro-
viding that a releasee "is entitled to . . . question any adverse
witness . . ."). That certainly sufficed to preserve the argument
for appellate review.
With these preliminary matters established, we turn to the
asserted Rule 32.1 violation.
III.
Supervised release revocation hearings are informal pro-
ceedings in which the rules of evidence, including those per-
taining to hearsay, need not be strictly applied. Fed. R. Evid.
1101(d)(3); United States v. McCallum, 677 F.2d 1024, 1026
(4th Cir. 1982). The Supreme Court, however, has held that
a person facing revocation of release possesses a due process
"right to confront and cross-examine adverse witnesses
(unless the hearing officer specifically finds good cause for
not allowing confrontation)." Morrissey v. Brewer, 408 U.S.
471, 489 (1972); see also Gagnon v. Scarpelli, 411 U.S. 778,
781-82 (1973).
Rule 32.1 sets forth the parameters of this limited right. In
its original form, Rule 32.1 provided only the general instruc-
tion that a releasee subject to revocation proceedings "shall be
given . . . the opportunity to question witnesses against him."
Fed. R. Crim. P. 32.1(a)(2)(D) (1980). Based on this version
UNITED STATES v. DOSWELL 7
of Rule 32.1, we held in 1982 that hearsay was admissible at
a revocation hearing if it was "demonstrably reliable." McCal-
lum, 677 F.2d at 1026.
Twenty years later, in 2002, Rule 32.1 was substantially
amended to provide that a releasee subject to revocation pro-
ceedings "is entitled to . . . 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)
(emphases added). The Advisory Committee explained that
this amendment "recognize[s] that the court should apply a
balancing test at the hearing itself when considering the relea-
see’s asserted right to cross-examine adverse witnesses." Fed.
R. Crim. P. 32.1 advisory committee’s note (2002). Specifi-
cally, "[t]he court is to balance the person’s interest in the
constitutionally guaranteed right to confrontation against the
government’s good cause for denying it." Id. (emphasis
added).
Despite the clear language of Rule 32.1, as revised in 2002,
the Government argues that we should maintain the McCal-
lum reliability test for the admission of hearsay at revocation
hearings. We decline to do so. We believe that the language
of Rule 32.1(b)(2)(C), not McCallum, which interpreted an
outdated version of that rule, controls. Rule 32.1(b)(2)(C) spe-
cifically requires that, prior to admitting hearsay evidence in
a revocation hearing, the district court must balance the relea-
see’s interest in confronting an adverse witness against any
proffered good cause for denying such confrontation. Our
holding that Rule 32.1(b)(2)(C) requires a balancing of inter-
ests accords with that of many of our sister circuits that have
addressed the question. See, e.g., United States v. Lloyd, 566
F.3d 341, 344-45 (3d Cir. 2009); United States v. Williams,
443 F.3d 35, 46 (2d Cir. 2006); United States v. Martin, 382
F.3d 840, 844-45 (8th Cir. 2004); United States v. Taveras,
380 F.3d 532, 536-38 (1st Cir. 2004).1
1
Some circuits have held that Morrissey itself requires a balancing test.
See, e.g., United States v. Minnitt, 617 F.3d 327, 332-33 (5th Cir. 2010);
8 UNITED STATES v. DOSWELL
We note, however, that our holding does not signal a dra-
matic shift in legal analysis. Reliability is a critical factor in
the balancing test under Rule 32.1. Cf. Curtis v. Chester, 626
F.3d 540, 546 (10th Cir. 2010) (noting that "all circuit courts
agree reliability is a very important factor in determining the
strength of a releasee’s confrontation right") (emphasis omit-
ted). If hearsay evidence is reliable and the Government has
offered a satisfactory explanation for not producing the
adverse witness, the hearsay evidence will likely be admissi-
ble under Rule 32.1. On the other hand, hearsay evidence of
questionable reliability will of course provide a far less firm
basis for denying a releasee the opportunity to "question any
adverse witness." Fed. R. Crim. P. 32.1(b)(2)(C).
In this case, the chemist who authored the drug analysis
report failed to appear in state court on two occasions to ver-
ify the reliability of the report, requiring dismissal of the her-
oin charge in state court. Even so, and notwithstanding the
Supreme Court’s recognition of the potential unreliability of
drug analysis reports, see Melendez-Diaz v. Massachusetts,
129 S. Ct. 2527, 2537 (2009), the Government did not provide
testimony from the chemist at the revocation hearing. Nor did
the Government put forward any explanation for its failure to
do so or offer any other evidence that Doswell had committed
a violation involving heroin.2 Yet the district court admitted
the drug analysis report without any reliability finding or any
attempt to engage in the balancing test required by Rule 32.1.
In doing so, the court abused its discretion. United States v.
Delfino, 510 F.3d 468, 470 (4th Cir. 2007) ("A district court
abuses its discretion when it . . . fails to consider judicially
United States v. Hall, 419 F.3d 980, 986 (9th Cir. 2005). But see, e.g.,
United States v. Kelley, 446 F.3d 688, 692 (7th Cir. 2006); Crawford v.
Jackson, 323 F.3d 123, 131 (D.C. Cir. 2003).
2
The Government did offer the arresting officer’s statement of probable
cause as evidence. That statement, however, provides no evidence of the
chemical nature of the substance seized from Doswell or the manner in
which Doswell described the substance to the alleged purchaser.
UNITED STATES v. DOSWELL 9
recognized factors constraining its exercise of discretion
. . . .").
This abuse of discretion does not, as the Government sug-
gests, constitute harmless error. The Government maintains
that any error was harmless because the district court could
have revoked Doswell’s supervised release on the basis of his
conceded marijuana violation and then considered the drug
analysis report in determining a sentence. Perhaps so, but in
fact the district court did not base its revocation order on this
theory. Rather, the court clearly regarded the heroin violation
as its sole basis for revoking Doswell’s supervised release. As
the court explained: "My conclusion is that Mr. Doswell is
guilty of that [heroin] violation which, in itself, is sufficient
for the conclusion reached by [the probation officer] on the
work sheet and sufficient for a mandatory revocation."
(emphasis added).3
IV.
For the reasons set forth above, the district court’s judg-
ment revoking Doswell’s supervised release is vacated and
this case is remanded for further proceedings.
VACATED AND REMANDED
3
The Government notes that the district court issued a subsequent writ-
ten judgment finding Doswell guilty of additional alleged violations,
including the marijuana violation. But the oral pronouncement of sentence
controls. See, e.g., United States v. Osborne, 345 F.3d 281, 283 n.1 (4th
Cir. 2003); United States v. Handakas, 329 F.3d 115, 117 (2d Cir. 2003).