Filed: Sep. 17, 2013
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4449 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL BANKS, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:05-cr-00030-FPS-JSK-1) Submitted: September 10, 2013 Decided: September 17, 2013 Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges. Vacated and remanded by unpublished per curiam
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4449 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL BANKS, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:05-cr-00030-FPS-JSK-1) Submitted: September 10, 2013 Decided: September 17, 2013 Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges. Vacated and remanded by unpublished per curiam ..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4449
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL BANKS,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:05-cr-00030-FPS-JSK-1)
Submitted: September 10, 2013 Decided: September 17, 2013
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Michael F. Smith, Victoria S. Palmer, THE SMITH APPELLATE LAW
FIRM, Washington, D.C., for Appellant. William J. Ihlenfeld,
II, United States Attorney, David J. Perri, Assistant United
States Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel Banks appeals from the judgment of the district
court revoking his term of supervised release and sentencing him
to five months of imprisonment and nineteen months of supervised
release. Because the district court plainly erred by failing to
comply with Rule 32.1(b)(2)(C) of the Federal Rules of Criminal
Procedure and United States v. Doswell, 670 F.3d 526 (4th Cir.
2012), when it admitted and relied on hearsay evidence at Banks’
revocation hearing, we vacate and remand for further proceedings
consistent with this opinion.
Banks was convicted of possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)
(2006), and was sentenced in 2006 to ninety-two months’
imprisonment and a two-year term of supervised release. Banks
began serving his term of supervised release on May 16, 2012.
In March 2013, Banks’ probation officer filed a petition for a
warrant and revocation against Banks, alleging that he had
violated the terms of his supervised release by possessing
cocaine and selling the drug on one occasion in November 2012
and on another occasion in December 2012 to a confidential
informant working for the Martins Ferry, Ohio police department.
Banks’ revocation hearing occurred in May and June
2013. Banks denied the violations alleged in the revocation
petition, and a Martins Ferry police officer testified regarding
2
the drug purchases forming the basis of the petition. With
respect to the November 2012 purchase, as the officer was about
to testify that the informant told him the identity of the
person from whom he purchased the drug, Banks lodged an
objection. After ascertaining that the officer felt the
informant’s statement was reliable, the district court overruled
the objection. The officer then testified that the informant
stated he had purchased the drug from Banks. With respect to
the December 2012 purchase, the officer testified that the
informant stated he had purchased the drug from Banks. Banks
objected, and, after ascertaining that the officer considered
the informant reliable with respect to this transaction, the
district court overruled the objection.
On cross-examination, the officer testified that the
telephone calls made to the informant to set up the controlled
purchases were not recorded, that no audio or video recordings
of the purchases existed, that he did not observe the
hand-to-hand exchanges of money for drugs and was not present in
the vehicle where the exchanges took place, and that he relied
on the informant’s statements that he purchased the drug from
Banks. The informant did not appear at the May 2013 hearing,
and neither the officer nor counsel for the Government knew of
his whereabouts. The revocation hearing resumed in June 2013.
Based on the officer’s hearing testimony, the district court
3
revoked Banks’ supervised release and sentenced him to five
months’ imprisonment and nineteen months of supervised release.
On appeal, Banks argues that the district court
improperly relied on evidence admitted in violation of Fed. R.
Crim. P. 32.1(b)(2)(C) (providing that a releasee “is entitled
to . . . question any adverse witness unless the court
determines that the interest of justice does not require the
witness to appear”) and Doswell, 670 F.3d at 530-31 (holding
that the rule requires a district court to balance the
releasee’s interest in confronting an adverse witness against
any proffered good cause for denying confrontation prior to
admitting hearsay evidence in a revocation hearing and
emphasizing that reliability is a “critical factor” in the
balancing test) in revoking his supervised release.
Specifically, Banks argues that the district court erred by
failing to balance his interest in confronting the informant
against the interest of justice and by not assessing the
reliability of the informant’s statements to the officer
regarding the controlled purchases.
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), cert. denied,
132 S. Ct. 1729 (2012), and this standard also applies to the
district court’s admission of hearsay evidence under Rule
4
32.1(b)(2)(C). Doswell, 670 F.3d at 529. However, after review
of the record and the parties’ briefs, we agree with the
Government that our review is for plain error only. Although
Banks objected to the admission of the informant’s statements
identifying him as the seller, his objections were not based on
his inability to question the informant or the court’s alleged
failure to comply with Rule 32.1(b)(2)(C) or the Doswell
decision. As Banks’ objections were not “sufficiently specific
to bring into focus the precise nature” of the errors he alleges
on appeal,
id. at 530 (internal quotation marks omitted), our
review is for plain error. To prevail under this standard,
Banks must show that an error was made, is plain, and affected
his substantial rights. Henderson v. United States,
133 S. Ct.
1121, 1126 (2013). Moreover, the correction of plain error lies
within our discretion, which we do not exercise unless the error
“seriously affects the fairness, integrity or public reputation
of judicial proceedings.”
Id. at 1127 (internal quotation marks
and alteration omitted).
“Supervised release revocation hearings are informal
proceedings in which the rules of evidence, including those
pertaining to hearsay, need not be strictly applied.” Doswell,
670 F.3d at 530. However, due process affords a releasee a
limited right “to confront and cross-examine adverse witnesses”
at a revocation hearing “unless the hearing officer specifically
5
finds good cause for not allowing confrontation.” Morrissey v.
Brewer, 408 U.S. 471, 489 (1972). Prior to admitting hearsay
evidence in a revocation hearing, “the district court must
balance the releasee’s interest in confronting an adverse
witness against any proffered good cause for denying such
confrontation.”
Doswell, 670 F.3d at 530. Reliability of the
hearsay evidence is a “critical factor” in this balancing test.
Id. at 531. Further, the due process guarantee is embodied in
the procedural rule that a releasee 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).
Here, the informant did not appear or testify at the
revocation hearing. The Government neither put forward any
explanation for the informant’s failure to appear nor proffered
its lack of knowledge of the informant’s whereabouts as cause
for denying Banks’ right to confrontation, and there is no
indication from the record that the district court balanced
Banks’ confrontation right against any good cause for denying
confrontation. Further, the informant’s statement was the sole
evidence admitted at the revocation hearing connecting Banks to
the violations alleged in the revocation petition. Although the
district court ascertained the testifying officer’s assessments
of the reliability of the informant’s statements, the court did
6
not adopt those assessments as its own or otherwise conduct on
the record its own assessment of the reliability of the
informant’s statements. In admitting the informant’s statements
without a reliability assessment or any attempt to engage in the
balancing required by Rule 32.1, the district court erred.
Doswell, 670 F.3d at 531.
Turning to the next step of our analysis, we conclude
that the error—which occurred in 2013, well over a year after
the issuance of the opinion in Doswell—was plain. See United
States v. Carthorne, ___ F.3d ___, No. 11–4870, 2013 WL 4056052,
at *9 (4th Cir. Aug. 13, 2013) (noting that “[t]he term plain
error is synonymous with clear or obvious error” and that an
error qualifies as “plain if the settled law of the Supreme
Court or this circuit establishes that an error has occurred”
(internal quotation marks omitted)). We further conclude that
the error affected Banks’ substantial rights because the
district court’s revocation decision was based on the
determination that the cocaine sales alleged in the revocation
petition had been established by the officer’s testimony.
See United States v. Greene,
704 F.3d 298, 312 (4th Cir. 2013)
(noting that the phrase “affecting substantial rights in most
cases means that the error was prejudicial” (internal quotation
marks, alteration, and ellipsis omitted)), petition for cert.
filed, ___ U.S.L.W. ___ (U.S. Apr. 29, 2013) (No. 12-9965);
7
United States v. Basham, 561 F.3d 302, 334 (4th Cir. 2009)
(recognizing that an error prejudices substantial rights when it
affects the outcome of the hearing at issue).
Finally, we conclude that the district court’s plain
error is one we should notice because a failure to correct the
error would seriously affect the integrity or public reputation
of the judiciary. Viewing the record as a whole, the revocation
proceedings did not result in a fair and reliable determination
that Banks had violated the terms of his supervised release.
Accordingly, we exercise our discretion to notice the error.
Accord United States v. Cedelle, 89 F.3d 181, 185-86 (4th Cir.
1996) (stating that this court is to view a district court’s
plain error “against the entire record” in determining whether
the circumstances present an appropriate occasion to notice the
error and declining to correct the district court’s plain error
in failing to instruct the jury because review of the entire
record revealed that the proceedings resulted in a fair and
reliable determination of guilt (internal quotation marks
omitted)).
We therefore vacate the district court’s judgment
revoking Banks’ supervised release and remand this case to the
district court for further proceedings. We deny Banks’ motion
to expedite decision and dispense with oral argument because the
facts and legal contentions are adequately presented in the
8
materials before this court and argument would not aid the
decisional process.
VACATED AND REMANDED
9
