PER CURIAM:
Royce Mitchell entered a guilty plea in the Western District of New York on November 5, 2001, to Count III of an indictment charging him with conspiracy to possess with intent to distribute, and the actual distribution of, 500 grams or more of cocaine.
Upon the petition of the federal probation office in the Western District of New York, the district court there issued a warrant for Mitchell's arrest on September 21, 2009. On October 16, 2009, that court transferred jurisdiction over Mitchell to the Western District of North Carolina,
Fifteen-year-old Tiffany Wright was the adopted daughter of Mitchell's biological mother, Alma Wright. After Ms. Wright died on January 25, 2009, Mitchell and his wife housed Tiffany and applied to become her guardians. A few weeks after Ms. Wright's death, Tiffany became pregnant, and, on March 26, 2009, Mitchell released her to a group facility, where she resided for just a few days before being placed in a foster home on April 1, 2009. Conflict there resulted in her being transferred on May 27, 2009, to the care of a different foster parent, Susan Barber. Tiffany confided to Ms. Barber that she believed Mitchell to be the father of her child. Ms. Barber immediately notified the state Department of Social Services, and she later repeated the allegation to Tiffany's therapist. Tiffany confirmed her belief in Mitchell's paternity to police detective Theresa Johnson in a recorded interview on August 19, 2009.
Shortly after 6:00 a.m. on September 14, 2009, as she was waiting on the street for her school bus, Tiffany was shot and killed; Tiffany's unborn daughter survived for a time before also succumbing. Mitchell was identified as a "person of interest" in the investigation, J.A. 574,
The penalty statute applicable to Mitchell's drug trafficking convictions provided, in pertinent part, that "any sentence imposed under this subparagraph shall ... include a term of supervised release of at least 4 years." 21 U.S.C. § 841(b)(1)(B). The sentence imposed in Mitchell's case complied fully with that requirement, and the judgment also specified, as it was required to,
The district court so found in the case at bar, relying, in the absence of physical evidence, on the statements Tiffany made during her August 19, 2009 interview concerning her relationship with Mitchell. Tiffany told Detective Johnson that, in February 2009, she had twice engaged in consensual sexual intercourse with Mitchell, and that Mitchell was the father of her unborn child. It is beyond dispute that Tiffany's statements, if credited, were amply sufficient to support a finding that Mitchell more likely than not committed the offenses of statutory rape and taking indecent liberties with a child, as defined by North Carolina law.
Mitchell contends that the statements were unreliable because they were uncorroborated, unsworn, and inconsistent with other statements Tiffany made, and because evidence of Tiffany's character detracted from her general credibility. We agree that physical evidence or testimony from a knowledgeable third party would have helped to ascertain the true extent of Tiffany's and Mitchell's personal relationship, but it is hardly surprising that such an intimate matter, especially one associated with illegality and social taboos, would not be subject to ready corroboration. We cannot say that, under these circumstances, the government's inability to independently verify Tiffany's statements render them inherently unreliable.
We regard in much the same fashion the inability to obtain Tiffany's allegations under oath. Had Tiffany been sworn prior to her police interview, or had she been given an opportunity to review the transcript and attest to it under penalty of perjury, one could doubtlessly afford her statements incrementally more credence. It does not follow, however, that the lack of oath or affirmation renders Tiffany's account unworthy of belief.
We need look no further than our prior decisions addressing the proper application of the residual hearsay exception to realize there is no per se prohibition against unsworn hearsay statements being introduced into evidence. The evidence rules permit the admission of such statements even at formal proceedings insofar as they possess "circumstantial guarantees of trustworthiness" equivalent to those embodied in the traditional, codified exceptions. Fed. R. Evid. 807;
The district court explained at length why it considered Tiffany's statements, on balance, to be trustworthy. The court emphasized that it listened to the audio recording itself, as opposed to simply reviewing the bare transcript, and it found Tiffany's tone and demeanor to be sincere. She comported herself as a typical teenager, according to the court, evincing appropriate reluctance and embarrassment when discussing sensitive topics. The court pointed out that Tiffany did not passively signal agreement with the questions, but instead corrected Detective Johnson's misapprehensions and resisted other opportunities to embellish the story. The court was impressed with the level of detail Tiffany employed in describing her sexual encounters with Mitchell, noting that similarly detailed accounts of other interview topics had been corroborated by third parties.
The district court recognized that evidence had been presented of Tiffany's questionable character, including "her hot temper, rebellious attitude, [and] occasional acts of dishonesty." J.A. 428. The court also acknowledged that her statements had been impeached to a degree, with contradictory evidence concerning "the number of sexual partners, the frequency of sex acts, the use of condoms, the location of sexual activity, and, importantly, whom she thought was the father of her child."
The district court concluded that the evidence of Tiffany's character and of her occasional inconsistency in relating her sexual history "goes to the weight the Court would assign to her statements, and not their admissibility." J.A. 428. The court's determination in that regard was clearly correct.
Mitchell also contends that he is entitled to a new hearing on the ground that the district court refused to consider evidence that he passed a polygraph test wherein he denied having engaged in sex with Tiffany, or having ever touched her for a sexual reason. Taking the position, perhaps, that what is sauce for the goose is sauce for the gander, Mitchell maintains that the same rationale supporting the court's consideration of Tiffany's statements applies to his polygraph evidence.
In accordance with our authorities construing the Federal Rules of Evidence, which, as we have noted, do not govern revocation hearings, "[p]olygraph results are generally inadmissible."
The
Moreover, even if the polygraph results in this case could be demonstrated reliable, they would be relevant solely as evidence of Mitchell's character for truthfulness, and admissible, if at all, only after the government attacked his character.
Mitchell nonetheless maintains that the Supreme Court's decision in
Finally, it came to light after the revocation hearing that the police had been issued a warrant to obtain a DNA sample from Adrian Powell, whom police suspected in Tiffany's murder, upon his return to North Carolina from New York to testify on Mitchell's behalf. Mitchell filed a motion to reopen the hearing on the ground that the government's failure to provide the defense with this information violated the disclosure requirements of
The district court denied the motion, explaining that "Wright's statements regarding the paternity of the child ... were discredited even without hearing the additional information." J.A. 564. As the court aptly indicated, "Powell's potential paternity has no bearing on ... whether [Mitchell] violated his supervised release terms by also having sex with Wright."
Pursuant to the foregoing, the judgment of the district court is affirmed.