United States v. Bari

09-1074-cr
United States v. Bari

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term 2009

(Argued: February 23, 2010 Decided: March 22, 2010)

Docket No. 09-1074-cr

UNITED STATES OF AMERICA ,

Appellee,

v.

ANTHONY BARI,

Defendant-Appellant.

Before: CABRANES and PARKER , Circuit Judges, and UNDERHILL, District Judge.*

We consider whether the District Court for the Southern District of New York (Denny

Chin, Judge) erred in considering during a supervised release revocation hearing information

confirmed by its own Internet search. Defendant Anthony Bari (“Bari”) appeals from the District

Court’s March 11, 2009 judgment revoking Bari’s term of supervised release, imposed after an earlier

conviction for bank robbery and, after revocation, sentencing him principally to a term of thirty-six

months’ imprisonment. During the supervised release revocation hearing, Judge Chin noted that his

chambers “did a Google search” to confirm that “there are also lots of different rain hats . . . that

one could buy.” On appeal, Bari argues that this independent Internet search violated Rule 605 of

the Federal Rules of Evidence. We now consider (1) to what extent the Federal Rules of Evidence

*
The Honorable Stefan R. Underhill, of the United States District Court for the District of
Connecticut, sitting by designation.

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apply in supervised release revocation hearings, and (2) whether the use of an Internet search to

confirm a judge’s intuition about a fact not subject to reasonable dispute is grounds for reversal. We

conclude that the Federal Rules of Evidence do not apply with their full force in supervised release

revocation hearings. We also conclude that the District Court did not commit reversible error in

conducting an Internet search to confirm his intuition regarding a matter of common knowledge.

Affirmed.

DAVID S. HAMMER , New York, NY,
for Defendant-Appellant.

PETER M. SKINNER , Assistant United States Attorney (Preet
Bharara, United States Attorney, on the brief, and
Andrew L. Fish, Assistant United States Attorney, of
counsel) United States Attorney for the District of
Connecticut, for Appellee.

PER CURIAM :

We consider whether the District Court for the Southern District of New York (Denny

Chin, Judge) erred in considering during a supervised release revocation hearing information

confirmed by its own Internet search. Defendant Anthony Bari appeals from the District Court’s

March 11, 2009 judgment revoking Bari’s term of supervised release, imposed after an earlier

conviction for bank robbery, and sentencing him principally to a term of thirty-six months’

imprisonment. During the supervised release revocation hearing, Judge Chin noted that his

chambers “did a Google search” to confirm that “there are also lots of different rain hats . . . that

one could buy.” A. 89a. On appeal, Bari argues that this independent Internet search violated Rule

605 of the Federal Rules of Evidence (“Rule 605”). We therefore consider (1) the extent to which

the Federal Rules of Evidence (the “Rules”) apply in supervised release revocation hearings, and (2)

whether the use of an Internet search to confirm the judge’s intuition about a fact not subject to

2
reasonable dispute is grounds for reversal.

BACKGROUND

Unless stated otherwise, the following facts are not in dispute.

Bari pleaded guilty to, and was convicted of, one count of bank robbery. In a judgment

entered on October 18, 1995, he was sentenced principally to 188 months’ imprisonment to be

followed by five years’ supervised release. In May 2008, Bari was released from custody and began

serving his term of supervised release.

On October 24, 2008, the United States Probation Office submitted to the District Court an

Amended Request for Court Action alleging that Bari had violated the terms of his supervised

release. The Amended Request alleged several violations of the terms of Bari’s supervised release,

including that on September 9, 2008 Bari had committed bank robbery in violation of 18 U.S.C. §

2113 (a).1

On November 18 and 19, 2008, the District Court held a hearing on the charged violations.

At the conclusion of the hearing, the District Court found Bari not guilty of some of the violations

alleged, but guilty of the bank robbery violation and a firearms violation. With respect to the bank

robbery violation, the District Court based its finding that Bari had indeed violated the terms of his

supervised release on the cumulative effect of multiple items of evidence. Specifically, Judge Chin

1
This statute provides, in relevant part, as follows:

Whoever, by force and violence, or by intimidation, takes, or attempts to take, from
the person or presence of another, or obtains or attempts to obtain by extortion any
property or money or any other thing of value belonging to, or in the care, custody,
control, management, or possession of, any bank, credit union, or any savings and
loan association . . . Shall be fined under this title or imprisoned not more than
twenty years, or both.

18 U.S.C. § 2113(a).

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observed that a bank employee’s identification of Bari’s voice was “worth something,” A. 91,

because Bari “speaks in a loud, aggressive manner,” and “that his voice is recognizable.” A. 92. He

also noted that numerous witnesses estimated the robber’s height and weight, which were similar to

Bari’s height and weight. Moreover, the height, weight, and posture captured on the video footage

taken by the security cameras matched Bari’s height, weight, and posture. A. 92-93. Judge Chin was

also persuaded by similarities between Bari’s car and a car that drove by the bank shortly after the

robbery. A. 94. Additionally, he considered the evidence of “Mr. Bari’s suspicious conduct at the

bank or in the vicinity of the bank” in the days before and after the robbery. A. 96. He also found

“troubling” the evidence that a stolen license plate was found in Bari’s car. A. 98. In addition, he

concluded that there was evidence to show that Bari was in the area of the bank on the day of the

robbery. A. 98.

Most relevant to this appeal, Judge Chin considered evidence that the bank’s surveillance

footage showed that the robber wore a yellow rain hat and that a yellow rain hat was found in the

garage of Bari’s landlord. He stated as follows:

In addition, and I think this is the strongest piece of evidence frankly, we have the
yellow hat. I am convinced from looking at the surveillance video [from the bank] of
September 9 that [the hat found in the garage] is the same type of hat as appears in
the video. It may not be precisely the actual hat, but it is the same type of hat. It is
just too much of a coincidence that the bank robber would be wearing the same hat
that we find in [his landlord’s] garage.

A. 93. Judge Chin then noted several similarities between the hat found in the landlord’s garage and

the hat worn by the robber. To emphasize the similarity between the hats, he stated that “there are

clearly lots of yellow hats out there,” and that “[o]ne can Google yellow rain hats and find lots of

different yellow rain hats.” Id. Earlier in the proceeding, he had also stated that “[w]e did a Google

search, and you can find yellow hats, yellow rain hats like this. But there are also lots of different

rain hats, many different kinds of rain hats that one could buy.” A. 89a.

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 Taking all of the evidence together, he concluded that there were “too many coincidences,”

and, accordingly, found “by a preponderance of the evidence and plus some” that the government

had met its burden to establish that Bari had violated the terms of his supervised release by robbing

a bank. A. 99.

On February 27, 2009, the District Court reversed its ruling with respect to the firearms

violation and sentenced Bari to a term of 36 months’ imprisonment, to be followed by two years’

supervised release, in connection with the bank robbery violation.

Bari now appeals.

DISCUSSION

On appeal, Bari argues that the District Court violated Rule 6052 by conducting its own

Internet search and relying on the results of that search in making its decision to revoke Bari’s

supervised release. The government argues that the Federal Rules of Evidence do not apply to

supervised release revocation proceedings. Alternatively, the government argues that if the Federal

Rules of Evidence apply to this proceeding, the District Court took proper judicial notice of a fact

not subject to reasonable dispute, as allowed by Rule 201 of the Federal Rules of Evidence.

We consider first to what extent the Federal Rules of Evidence apply in supervised release

revocation proceedings. We then consider whether the use of an Internet search to confirm the

judge’s intuition about a fact not subject to reasonable dispute is grounds for reversal.

A. Federal Rules of Evidence in Supervised Release Revocation Proceedings

The government argues that the Federal Rules of Evidence are not applicable in supervised

release revocation hearings. Because this is a question of law, we review it de novo. See, e.g., In re

2
Rule 605 states that “[t]he judge presiding at the trial may not testify in that trial as a witness. No
objection need be made in order to preserve the point.” Fed. R. Evid. 605.

5
N.Y. Times Co. to Unseal Wiretap & Search Warrant Materials, 577 F.3d 401, 405 (2d Cir. 2009). As a

general matter, we agree with the government that the Federal Rules of Evidence, except those

governing privileges, do not apply in supervised release revocation proceedings. It is well settled

that the Federal Rules of Evidence do not apply in full in probation revocation proceedings. See, e.g.,

United States v. Aspinall, 389 F.3d 332, 344 (2d Cir. 2004) (concluding that the Federal Rules of

Evidence, except those governing privileges, do not apply at probation revocation proceedings); see

also United States v. Carlton, 442 F.3d 802, 809 (2d Cir. 2006) (“The full panoply of procedural

safeguards does not attach to revocation proceedings,” because a “probationer already stands convicted

of a crime.” (internal quotations omitted)). Moreover, the Rules expressly state that they are

inapplicable in proceedings “granting or revoking probation.” Fed. R. Evid. 1101(d)(3). We have

also previously established that “the constitutional guarantees governing revocation of supervised

release are identical to those applicable to revocation of parole or probation.” United States v. Jones,

299 F.3d 103, 109 (2d Cir. 2002). Accordingly, we have no difficulty concluding that the Federal

Rules of Evidence do not apply in full at supervised release revocation hearings.3

Although we conclude that the Federal Rules of Evidence do not apply with their normal

force in supervised release revocation hearings, the Rules nevertheless provide some useful

guidelines to ensure that any findings made by a district court at such hearings are based on “verified

facts” and “accurate knowledge.” See generally Morrissey v. Brewer, 408 U.S. 471, 489 (1972) (discussing

the “flexible” evidentiary guidelines in parole revocation proceedings before state parole boards). As

we observed in Aspinall, “in revocation proceedings the normal evidentiary constrictions should be

3
We note that several of our sister Circuits have also concluded that the Federal Rules of Evidence
do not apply at supervised release revocation hearings. See, e.g., United States v. Lloyd, 566 F.3d 341,
343 (3d Cir. 2009); United States v. Black Bear, 542 F.3d 249, 255 (8th Cir. 2008); United States v.
Verduzco, 330 F.3d 1182, 1185 (9th Cir. 2003); United States v. Armstrong, 187 F.3d 392, 394 (4th Cir.
1999).

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relaxed.” 389 F.3d at 344 (emphasis added). We emphasize that the evidentiary constraints in such

proceedings should be loosened, although not altogether absent. Furthermore, in relaxing those

constraints, we consider “verified facts” and “accurate knowledge” to be the touchstones of our

inquiry. See Morrissey, 408 U.S. at 489. Put differently, district courts need not comply with the

Federal Rules of Evidence during supervised release revocation proceedings, so long as their

findings are based on “verified facts” and “accurate knowledge.”

B. Independent Internet Searches and Judicial Notice

Applying relaxed evidentiary constraints to the instant case, we now consider whether the

District Court committed reversible error when it conducted an independent Internet search to

confirm its intuition that there are many types of yellow rain hats for sale. Bari argues that the

District Court’s search violates Rule 605 of the Federal Rules of Evidence; the government argues

that the search is permissible under Rule 201 of the Federal Rules of Evidence. We agree with the

government that Rule 201—in some relaxed form—governs this inquiry.4 Because Bari did not

object to the District Court’s statement that “there are lots of different rain hats . . . that one could

4
First, a few words on the relationship between Rules 605 and 201. Rule 605 prohibits the judge
presiding at the trial from testifying in that trial as a witness. Rule 201 permits a judge to take
judicial notice of certain types of facts. Logically, then, if a fact is of a kind that a judge may
properly take judicial notice of it, then he is not improperly “testifying” at trial by noting that fact.
Any other conclusion would lead to Rule 605 effectively subsuming Rule 201. If, after all, a judge
was improperly testifying at trial each time he took judicial notice of a fact, it would be effectively
impermissible to take judicial notice of any fact. Accordingly, we must first consider whether the
judge was taking permissible judicial notice of a fact, pursuant to Rule 201. If he could not have
taken judicial notice of that fact within the bounds of Rule 201—because, for example, it was not a
“matter[ ] of common knowledge”—then we consider whether the judge violated Rule 605. Here,
we conclude that Judge Chin did permissibly take judicial notice of the fact that there are many kinds
of rain hats for sale, and therefore we need not consider whether he “testified” at a trial over which
he was presiding.

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buy,” A. 89a, we review Judge Chin’s decision to consider that fact as evidence for plain error.5

Under Rule 201, “[a] court may take judicial notice, whether requested or not” of a fact that

is “not subject to reasonable dispute in that it is either (1) generally known within the territorial

jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources

whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)-(c); see also Black’s Law

Dictionary 923 (9th ed. 2009) (defining judicial notice as “[a] court’s acceptance, for purposes of

convenience and without requiring a party’s proof, of a well-known and indisputable fact”). More

generally, the “traditional textbook treatment” of Rule 201 has included two categories for judicial

notice: “matters of common knowledge” and “facts capable of verification.” Fed. R. Evid. 201,

Advisory Committee Notes, Note to Subdivision (b).

Here, the District Court made a statement on a “matter[ ] of common knowledge.” Id.; cf.

Kaggen v. IRS, 71 F.3d 1018, 1019 (2d Cir. 1995) (holding that “[t]his Court may appropriately take

judicial notice of the fact that banks send customers monthly bank statements”). Common sense

leads one to suppose that there is not only one type of yellow rain hat for sale. Instead, one would

imagine that there are many types of yellow rain hats, with one sufficient to suit nearly any taste in

brim-width or shade. The District Court’s independent Internet search served only to confirm this

common sense supposition.

Bari argues in his reply brief6 that “Judge Chin undertook his internet search precisely

because the fact at issue . . . was an open question whose answer was not obvious.” Reply Br. 8. We

5
We note, however, that plain error review would not apply if Rule 605 governed our inquiry
because “[n]o objection need be made in order to preserve the point.” Fed. R. Evid. 605.
6
We note that although we normally will not consider issues raised only in reply briefs, see, e.g.,
Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009); Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.
1998), we will consider arguments raised in response to arguments made in appellee’s brief.

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do not find this argument persuasive. As broadband speeds increase and Internet search engines

improve, the cost of confirming one’s intuitions decreases. Twenty years ago, to confirm an

intuition about the variety of rain hats, a trial judge may have needed to travel to a local department

store to survey the rain hats on offer. Rather than expend that time, he likely would have relied on

his common sense to take judicial notice of the fact that not all rain hats are alike. Today, however,

a judge need only take a few moments to confirm his intuition by conducting a basic Internet search.

See Reno v. ACLU, 521 U.S. 844, 853 (1997) (“The Web is . . . comparable . . . to both a vast library

including millions of readily available and indexed publications and a sprawling mall offering goods

and services.”).

As the cost of confirming one’s intuition decreases, we would expect to see more judges

doing just that. More generally, with so much information at our fingertips (almost literally), we all

likely confirm hunches with a brief visit to our favorite search engine that in the not-so-distant past

would have gone unconfirmed. We will not consider it reversible error when a judge, during the

course of a revocation hearing where only a relaxed form of Rule 201 applies, states that he

confirmed his intuition on a “matter[ ] of common knowledge.”

CONCLUSION

In summary, we hold as follows:

(1) The Federal Rules of Evidence, except those governing privileges, do not apply with their

full force in supervised release revocation hearings; and

(2) In the circumstances presented here, it was not reversible error for a judge to employ an

Internet search to confirm a reasonable intuition on a matter of common knowledge.

For the foregoing reasons, the judgment of the District Court is AFFIRMED.

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