United States Court of Appeals
For the First Circuit
No. 05-1054
UNITED STATES OF AMERICA,
Appellee,
v.
COREY RONDEAU,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Howard, Circuit Judge.
Beverly Chorbajian for appellant.
Cynthia A. Young, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief,
for appellee.
November 23, 2005
HOWARD, Circuit Judge. Asserting that the district court
erroneously permitted the government to present hearsay evidence at
his revocation hearing, Corey Rondeau appeals from a final judgment
revoking his supervised release. We affirm.
I.
In May 1999, Rondeau pleaded guilty to conspiracy to
possess and distribute cocaine base and possession of cocaine base
with the intent to distribute. See 21 U.S.C. §§ 841(a)(1) & 846.
He was sentenced to 65 months of imprisonment and five years of
supervised release.
On July 17, 2004, after Rondeau had served his initial
prison sentence and while on supervised release, he was arrested by
the Worcester, Massachusetts police for committing an assault with
a dangerous weapon. The United States Probation Office petitioned
the district court to revoke Rondeau's supervised release, alleging
that Rondeau had committed two grade A violations (the assault and
illegally possessing a firearm) and two grade C violations (failing
to participate in a drug test and failing to meet with a probation
officer as scheduled).1
1
Under the relevant provisions of the United States Sentencing
Guidelines, violations of supervised release are classified into
three grades: A, B, and C. Grade A violations include the
commission of a violent felony. Grade C violations include
violations of drug testing and reporting conditions. If the court
finds a grade A violation, it must revoke the defendant's release,
but it need not to do so for a grade C violation. If two or more
separate violations have occurred, the more (or most) serious
violation controls the punishment. See U.S.S.G. §§ 7B1.1 & 7B1.3
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In December 2004, the district court held an evidentiary
hearing on the government's motion to revoke Rondeau's supervised
release. Rondeau admitted the grade C violations but denied the
grade A violations. The district court thus only heard evidence
related to the assault and the unlawful possession of a firearm.
The government relied on the testimony of Sergeant
Michael McKiernan of the Worcester Police Department. McKiernan
testified that, on July 17, 2004, he became involved in the
investigation of an incident at 128 Chino Street in Worcester. In
the early morning hours of July 17th, the police received two 911
calls. Several officers, not including McKiernan, responded to the
calls and, on arriving at the scene, were informed by Marsha
Williams, one of the callers, that Rondeau had come to her
apartment building looking for his girlfriend. According to
Williams, when she told Rondeau that his girlfriend was not there,
he began arguing with her, held a gun to her head, threatened to
kill her, and then left in a dark-colored Ford Expedition.
Williams then gave the police a handwritten statement
matching her verbal account. Subsequent to obtaining the written
statement, McKiernan spoke with Williams more than a dozen times,
and she never changed her account of the altercation with Rondeau.
(2004).
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McKiernan also testified to the other 911 call that the
police received about the incident. This call had been placed by
Vanessa Estrada, a thirteen-year-old girl who lived in the
apartment that Rondeau attempted to enter. As the assault was
occurring, Estrada called to report that Rondeau was holding a gun
to Williams' head. In a handwritten statement to the police,
Estrada explained that Rondeau had banged on the door of her
apartment but that another occupant of the apartment had refused to
open the door. According to Estrada, Williams approached Rondeau
to tell him that his girlfriend was not present. At that point,
Rondeau pulled the gun and pointed it at Williams.
Several minutes after the assault, the police stopped a
black Ford Expedition a few blocks from Chino Street. There were
six people in the car, including Rondeau, who was in the rear on
the passenger side. The officers found two handguns, each loaded
with one round in the chamber. One was a 9 mm Luger found in the
closed console in the middle of the rear seat. The other was a .25
caliber Colt found on the floor on the driver's side of the rear
seat. Williams later identified the Colt the gun that Rondeau had
pointed at her.
The government rested after McKiernan's testimony, the
introduction of Williams' and Estrada's written statements, and the
introduction of the relevant police reports. Rondeau did not
present evidence but objected to the government's proof on the
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ground that he did not have an opportunity to confront the
witnesses against him. The government responded that it did not
call Williams or the thirteen-year old Estrada in light of
Williams' expressed safety concern, based in part on her knowledge
that Rondeau was a "gang member." The government argued that their
live testimony was unnecessary because the hearsay evidence
presented was reliable. The district court agreed and admitted the
evidence. It then concluded that the government had established,
by a preponderance of the evidence, that Rondeau had assaulted
Williams with a deadly weapon and was a felon unlawfully in
possession of a firearm. The court imposed an additional twenty-
four months of incarceration.
II.
Rondeau argues that the presentation of hearsay evidence,
through the testimony of Sergeant McKiernan, violated both his
Sixth Amendment right to confront witnesses, as recognized in
Crawford v. Washington, 541 U.S. 36 (2004), and his rights under
Fed. R. Crim. P. 32.1(b)(2)(C). We begin with the constitutional
question, which we consider de novo. See United States v. Cianci,
378 F.3d 71, 101 (1st Cir. 2004).
In Crawford, the Supreme Court held that, in a criminal
prosecution, the Sixth Amendment forbids the introduction of an
out-of-court testimonial statement unless the witness is
unavailable and the defendant has previously had an opportunity to
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cross-examine her. See 541 U.S. at 68. Even if Williams' and
Estrada's statements constituted testimonial hearsay, we hold that
Crawford does not apply to supervised release revocation
proceedings.2
The Confrontation Clause provides defendants with the
right to confront adverse witnesses "[i]n criminal prosecutions."
U.S. Const. amend. VI. The Supreme Court has long recognized that
a parole revocation hearing, which for present purposes is
analogous to a supervised release hearing, see United States v.
Correa-Torres, 326 F.3d 18, 22 (1st Cir. 2003), is not equivalent
to "a criminal prosecution." Morrissey v. Brewer, 408 U.S. 471,
480 (1972). Therefore, "the full panoply of rights due a defendant
in such a proceeding does not apply to parole revocations." Id.
Rather, the proceeding "should be flexible enough to consider
evidence including letter affidavits, and other material that would
not be admissible in an adversary criminal trial." Id. at 489.
Given that the Confrontation Clause focuses on "criminal
prosecutions," we have not found the Clause to be applicable to
post-conviction proceedings. See United States v. Luciano, 414
F.3d 174, 179 (1st Cir. 2005) (holding that the Confrontation
Clause does not apply to sentencing hearings); see also United
States v. Work, 409 F.3d 484, 491 (1st Cir. 2005) ("The law is
2
We reserved this issue in United States v. Taveras, 380 F.3d
532, 538 n.8 (1st Cir. 2004).
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clear that once the original sentence has been imposed in a
criminal case, further proceedings with respect to that sentence
are not governed by Sixth Amendment protections."). Nothing in
Crawford indicates that the Supreme Court intended to extend the
Confrontation Clause's reach beyond the criminal prosecution
context. See Luciano, 414 F.3d at 179; United States v. Aspinall,
389 F.3d 332, 342-43 (2d Cir. 2004). We therefore join several
other circuits in concluding that, because a supervised release
revocation hearing is not a "criminal prosecution," Crawford does
not apply. See Hall, 419 F.3d 980, 985-86 (9th Cir. 2005); United
States v. Kirby, 418 F.3d 621, 627-28 (6th Cir. 2005); Aspinall,
389 F.3d at 342-43; United States v. Martin, 382 F.3d 840, 844 n.4
(8th Cir. 2004).3
Although Rondeau does not have a Sixth Amendment right to
examine adverse witnesses, he does have a limited confrontation
right under Fed. R. Crim. P. 32.1(b)(2)(C). This Rule provides
that a defendant subject to supervised release revocation "is
entitled to an opportunity 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).
The Advisory Committee Notes to Rule 32.1(b)(2)(C)
3
Rondeau cites Ash v. Reilly, 354 F. Supp. 2d 1, 8-9 (D.D.C.
2004),to argue that Crawford should apply in these circumstances.
For the reasons discussed above, we do not find Ash persuasive.
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explain that a court should apply this Rule by balancing the
releasee's right to confront witnesses with the government's good
cause for denying confrontation. See Taveras, 380 F.3d at 536
(applying the relevant Advisory Committee Notes under similar
circumstances). In conducting this analysis, a court should
consider the reliability of the hearsay testimony and the
government's reason for declining to produce the declarant.
See id. at 536 ("An important element of the good cause analysis is
the reliability of the evidence that the Government seeks to
introduce."); Martin, 382 F.3d at 845 (stating that a court should
consider "the explanation the government offers of why live
testimony is undesirable or impracticable") (internal citation and
quotation marks omitted). We review the district court's decision
to admit hearsay evidence under Rule 32.1(b)(2)(C) for an abuse of
discretion. See Taveras, 380 F.3d at 536.
The district court was within its discretion in
concluding that the hearsay evidence against Rondeau was reliable.
First, Williams' and Estrada's 911 calls were made as or
immediately after Rondeau threatened Williams with the gun. Given
the volatility of the situation, these statements qualify as
excited utterances. See Fed. R. Evid. 803(2); United States v.
Brito, 427 F.3d 53, 62-63 (1st Cir. 2005). Second, Williams' and
Estrada's accounts of the assault were offered to the police
separately, but were materially identical. See United States v.
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Washington, 38 Fed. Appx. 522, 524 (10th Cir. 2002) (statements by
two witnesses were considered reliable where the statements were
given to the police separately but were consistent). Third,
Williams and Estrada reduced their verbal statements to writing.
Compare United States v. Comito, 177 F.3d 1166, 1171 (9th Cir.
1999) (concluding that "verbal allegations are . . . the least
reliable type of hearsay") with United States v. Pratt, 52 F.3d
671, 677 (7th Cir. 1995) (concluding that officer's hearsay
testimony was reliable because it was consistent with the written
statements of the victim). Fourth, McKiernan discussed the
incident with Williams over a dozen times, and she never changed
her description of the assault. See Hall, 419 F.3d at 987
(statement deemed reliable, in part, because declarant provided
same account several times). Finally, the police corroborated
Williams' statement by locating Rondeau near Williams' building in
a car that matched Williams' description and in which they also
discovered the gun that Williams later identified. See United
States v. Waters, 158 F.3d 933, 941 (6th Cir. 1998) (admitting
hearsay statement of a co-conspirator at revocation hearing where
the government had confirmed some of the details in the statement).
In challenging the district court's reliability
determination, Rondeau relies on Taveras. That case does not help
him. In Taveras, the government sought to introduce a hearsay
statement from the victim of an alleged assault through the
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testimony of the releasee's probation officer. 380 F.3d at 535.
The victim made the statement to the probation officer verbally,
the day after the alleged incident, but later recanted in a written
statement. Id. We concluded that the district court abused its
discretion in deeming the victim's verbal statement reliable for
three reasons: (1) the statement was not an excited utterance
because the victim made it the day after the alleged assault; (2)
the victim's statement was not reduced to writing and was later
recanted; and (3) the probation officer had limited contact with
the victim and therefore could not reasonably assess her
credibility. Id. at 537-38. None of these factors is present
here.
We turn next to the adequacy of the government's reason
for not presenting the declarants' live testimony. The government
focused on Williams' concern about testifying, based in part on her
knowledge of Rondeau's gang membership. McKiernan supported the
government's approach by testifying that, in his discussions with
Williams, she had expressed fear for her safety in the event she
were to testify. This safety concern applied equally to Estrada,
who also knew Rondeau and was only thirteen. Because the safety
concern was supported by record evidence, it was within the
district court's discretion to conclude that there was good reason
for the declarants not to testify. See United States v. Jones,
299 F.3d 103, 113 (2d Cir. 2002) (the government provided an
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adequate reason for not presenting the declarants to testify where
the releasee's "history of violent conduct made reprisal against
them a possibility").
The hearsay evidence presented against Rondeau was
reliable, and the government presented a sufficient reason for not
calling the declarants to testify. Consequently, the district
court did not abuse its discretion under Rule 32.1(b)(2)(C) in
admitting the hearsay evidence at Rondeau's revocation hearing.
Rondeau also claims that there was insufficient evidence
to conclude that he committed an assault or illegally possessed a
firearm. We consider this argument de novo, taking the facts in
the light most favorable to the government, to determine whether
there was proof, by a preponderance of the evidence, that Rondeau
violated his supervised release conditions. See United States v.
Portalla, 985 F.2d 621, 622 (1st Cir. 1993). Rondeau challenges
the sufficiency of the evidence by discounting Williams' and
Estrada's statements as unreliable and then claiming that the
remaining evidence was insufficient. But, as discussed above,
Williams' and Estrada's statements were properly considered and,
when taken into account, there is no question that this evidence
supports the conclusion that Rondeau assaulted Williams while
illegally possessing a gun.
Affirmed.
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