Case: 11-15392 Date Filed: 11/28/2012 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________
No. 11-15392
Non-Argument Calendar
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D. C. Docket No. 1:07-cr-00228-WS-M-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES ANTHONY CAMPBELL,
Defendant-Appellant.
_________________________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________________________
(November 28, 2012)
Before MARCUS, EDMONDSON, and BLACK, Circuit Judges.
PER CURIAM:
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James Anthony Campbell appeals the revocation of his supervised release
and the resultant 24-month sentence based on his arrest for second-degree rape,
sexual abuse, and sodomy of a minor. On appeal, Campbell argues that the district
court improperly admitted hearsay evidence at his revocation hearing because the
court failed to balance his right to confront the alleged victim against the
government’s reasons for not producing her at the hearing as required by United
States v. Frazier, 26 F.3d 110 (11th Cir. 1994). No reversible error has been
shown; we affirm.
We review a district court’s evidentiary decisions, as well as the revocation
of supervised release, for abuse of discretion. United States v. Novaton, 271 F.3d
968, 1005 (11th Cir. 2001) (evidentiary decisions); Frazier, 26 F.3d at 112
(revocation of supervised release).
“Although the Federal Rules of Evidence do not apply in supervised release
revocation hearings, the admissibility of hearsay is not automatic. Defendants
involved in revocation proceedings are entitled to certain minimal due process
requirements.” Frazier, 26 F.3d at 114. Among the due process requirements
available at a revocation hearing is the right to confront and cross-examine
adverse witnesses. Id.; see also Fed.R.Crim.P. 32.1(b)(2)(C) (stating before
supervised release is revoked, “[t]he person is entitled to . . . an opportunity to . . .
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question any adverse witness unless the court determines that the interest of justice
does not require the witness to appear”).
The right to cross-examine adverse witnesses at a revocation of supervised
release hearing is not absolute; instead, “in deciding whether or not to admit
hearsay testimony, the court must balance the defendant’s right to confront
adverse witnesses against the grounds asserted by the government for denying
confrontation.” Frazier, 26 F.3d at 114. In addition, the hearsay statement must
be reliable. Id. Where the properly considered evidence -- alone -- is sufficient to
support the district court’s conclusion, any error is harmless. Id.
To establish harm, Campbell must satisfy a two-part test. “If admission of
hearsay evidence has violated due process, the defendant bears the burden of
showing that the court explicitly relied on the information. The defendant must
show (1) that the challenged evidence is materially false or unreliable, and (2) that
it actually served as the basis for the sentence.” United States v. Taylor, 931 F.2d
842, 847 (11th Cir. 1991) (internal quotations marks, citations, and emphasis
omitted).
Hearsay may be admitted at sentencing if there are “sufficient indicia of
reliability, the [district] court makes explicit findings of fact as to credibility, and
the defendant has an opportunity to rebut the evidence.” United States v.
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Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001) (quotations omitted). “[T]he focus
is upon the question of [the hearsay’s] reliability, which must be determined on a
case by case basis.” United States v. Lee, 68 F.3d 1267, 1275 (11th Cir. 1995).
“While it may be advisable and in some instances necessary for a district court to
make distinct findings regarding the reliability of hearsay statements used at
sentencing, the absence of such findings does not necessarily require reversal or
remand where the reliability of the statements is apparent from the record.”
United States v. Gordon, 231 F.3d 750, 761 (11th Cir. 2000).
At his revocation hearing, the district court overruled Campbell’s hearsay
objection and permitted the police officer assigned to investigate the alleged rape
and sexual abuse to testify about what the alleged victim told the officer about the
incident. Here, the court made no express findings about the reliability of the
hearsay statement under the required Frazier-balancing test. Even if the court
erred in this respect, other evidence was sufficient to revoke Frazier’s supervised
release: for example, Campbell’s admission to his probation officer, following his
arrest for second-degree rape, that he had no idea that the alleged victim was only
13 and that he believed that she was the age of consent. Based on Campbell’s
knowledge that he was arrested on second-degree rape charges and given the age
of the victim, the district court specifically highlighted that Campbell’s comments
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to his probation officer were sufficient to conclude that Campbell had violated the
terms and conditions of his supervised release. Frazier, 26 F.3d at 114.
About the resulting sentence, even if we assume, arguendo, that the district
court erred by not making a reliability finding before relying on hearsay
statements, remand is not necessary. Campbell has not demonstrated that the
hearsay evidence was materially false or unreliable. See Taylor, 931 F.2d at 847.
Instead, it appears that, given the context of other evidence -- including
Campbell’s statements to his probation officer, the existence of the explicit text
messages from Campbell on the victim’s phone, and the victim’s age -- the police
officer’s testimony about what the victim told the officer happened was reliable.
Gordon, 231 F.3d at 761.
If the court erred by relying on hearsay evidence in revoking Campbell’s
supervised release, the error was harmless.
AFFIRMED.
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