299 F.3d 103 (2nd Cir. 2002), 01-1607, U.S. v. Jones

Docket Nº:01-1607.
Citation:299 F.3d 103
Party Name:UNITED STATES of America, Appellee, v. Larry F. JONES, Defendant-Appellant.
Case Date:August 02, 2002
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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299 F.3d 103 (2nd Cir. 2002)

UNITED STATES of America, Appellee,


Larry F. JONES, Defendant-Appellant.

No. 01-1607.

United States Court of Appeals, Second Circuit

August 2, 2002

Argued: June 25, 2002.Page 104

[Copyrighted Material Omitted]

Page 105

Martin R. Stolar, New York, NY, for Defendant-Appellant.

Sharon L. McCarthy, Assistant United States Attorney (James B. Comey, United States Attorney for the Southern District of New York and Deborah E. Landis, Assistant United States Attorney, on the brief), New York, NY, for Appellee.

Before JACOBS, LEVAL, and KATZMANN, Circuit Judges.

KATZMANN, Circuit Judge.

Defendant Larry Jones appeals from the judgment of the United States District Court for the Southern District of New York (Michael B. Mukasey, Chief Judge), revoking his supervised release and sentencing him to a term of imprisonment. Jones argues that he was deprived of his Fifth Amendment right against compelled self-incrimination by the district court's decision to proceed with a revocation hearing prior to adjudication in state court of the charges that served as the basis for the revocation request. Jones further contends that his Sixth Amendment right to confront adverse witnesses was violated by the district court's reliance on hearsay testimony. For the reasons that follow, we affirm.


On June 22, 1995, Jones pleaded guilty to charges that he participated in a racketeering enterprise through predicate acts of murder (as an accessory after the fact) and conspiracy to distribute crack cocaine. At sentencing, the district court granted the government's substantial assistance motion, see U.S. Sentencing Guidelines Manual, § 5K1.1, and departed downwards from the presumptive sentence under the Guidelines of 360 months to life imprisonment. Jones received a sentence of time served, with a five-year term of supervised release.

On May 24, 2001, the U.S. Probation Department submitted a Request for Court Action/Direction ("Request for Action"), which it subsequently amended on June 25, 2001, alleging that Jones had violated the terms of his supervised release. The Request for Action explained that Jones had been arrested twice by the

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New York City Police Department in recent weeks. The first arrest, which occurred on May 17, 2001, was on charges of menacing, criminal trespass, resisting arrest, public lewdness, and exposure, arising from an incident in which Jones was alleged to have exposed himself to a minor. The second arrest, which occurred on June 12, 2001, stemmed from a threatening phone call that Jones allegedly made to his former girlfriend. The Request for Action also stated that Jones had failed to notify his probation officer within seventy-two hours of the May 17th arrest, as required under the conditions of his supervised release.

Judge Mukasey held a preliminary hearing on the Request for Action on July 13, 2001. At the time of the hearing, Jones had been freed on bail by the Supreme Court of New York, pending resolution of the state charges against him. The government moved the district court to remand Jones to federal custody while awaiting the final revocation hearing. Jones's counsel opposed this motion and requested that the revocation hearing be delayed until after disposition of the state charges. Judge Mukasey denied the government's motion for remand, but moved ahead with the revocation proceedings and scheduled an evidentiary hearing for September 5, 2001.

At the hearing, Jones's counsel repeated his request to postpone the proceedings until the state charges were adjudicated, arguing that an evidentiary hearing would "seriously imping[e]" Jones's Fifth Amendment rights in the pending state cases. (Transcript of Evidentiary Hearing, Sept. 5, 2001 ("Tr."), 2-3). Defense counsel also noted the government's intent to rely on hearsay testimony concerning the alleged exposure incident, rather than on direct testimony from eyewitnesses. Defense counsel contended that the use of hearsay would "almost obligat[e]" Jones to testify in his own defense at the revocation hearing in order to show the unreliability of that evidence. (Tr. 3). Relying on United States v. Sackinger, 537 F.Supp. 1245, 1250 (W.D.N.Y.1982), affd 704 F.2d 29 (2d Cir. 1983), defense counsel argued that it would be a "better practice" to await resolution of the state charges before proceeding with a revocation hearing concerning those same charges. (Tr. 4). The district court rejected this view, explaining that while Jones faced a "very difficult tactical situation," the fact that he was forced to choose between asserting his Fifth Amendment right against forced self-incrimination and testifying at the revocation hearing did not mean that Jones was deprived of that Fifth Amendment right. (Tr. 6).

As for the hearsay testimony itself, defense counsel objected that the admission of such testimony would violate Jones's Sixth Amendment right to confront adverse witnesses because the testimony lacked sufficient indicia of reliability and the government had no legitimate reason for declining to call the eyewitnesses. In response, the government explained that its decision not to call the firsthand witnesses was justified by both Jones's history of violent behavior, exposing the witnesses to the risk of retribution, and the sexual nature of the testimony that would be elicited from a 15-year-old girl. The district court stated that it could "understand not putting a 15-year-old girl on the witness stand to testify to allegations of the sort involved here" (Tr. 5), and further acknowledged Jones's history of violent conduct. (Tr. 11). The district court decided to rule on the admissibility issues after hearing the testimony.

The government called two New York City police officers, Calvin Moreland and Kevin Owens, to testify regarding defendant's arrest on the exposure-related

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charges.1 Officer Moreland testified that he was off duty in the late afternoon of May 17, 2001, working in the garage at the back of his residence on 1731 Popham Avenue in the Bronx, New York. Around 5 o'clock p.m., Moreland heard his wife calling from the front of the house, "honey, honey, come to the front, quick, quick, quick." (Tr. 13). He ran around to the front and saw his daughter's fifteen-year-old friend, Karin, outside the gate to his house. Moreland stated that his wife, who was standing at a front window, told him that there was a man in the lobby of the six-story apartment building directly across from the house who had been masturbating and giving Karin "catcalls." (Tr. 13). She told Moreland that the man had run back into the building from the lobby, and described the man's clothing. Moreland also spoke to Karin. He testified that Karin told him that there had been "a guy across the street," in the doorway to the lobby, with "his pants down around his ankles," who was "masturbating" and calling to her "psst, psst, psst." (Tr. 14-15). When asked on cross-examination whether Karin had indicated that she feared "serious physical injury or death," Moreland stated that "[a]ll she told me is she was scared." (Tr. 31).

Immediately after speaking with his wife and Karin, Moreland went across the street and entered the lobby of the apartment building. He testified that he encountered the defendant coming down the stairs. According to Moreland, Jones was wearing clothing that matched the description he had received from his wife and Karin—a blue jacket and dark-colored pants. Moreland asked Jones what he was doing "in front of my home, in front of my family." (Tr. 16). Moreland testified that Jones responded that he did not know what Moreland was talking about, and that he "had people that live in this building." (Id.). Jones then turned around and went back upstairs. Rather than pursuing him, Moreland ran to his house to get his police shield, and told his wife to call 911. When Moreland returned to the apartment building, he again encountered the defendant coming down the stairs. Moreland testified that Jones "motioned to [him] like he was reaching for a weapon or something." (Tr. 17). Moreland explained, however, that he only saw a "black object" in Jones's hands (Id.), and conceded on cross-examination that he could not tell whether the object was actually a firearm or other type of weapon. (Tr. 25). When Moreland displayed his police shield, Jones ran back up the stairs, at which point Moreland left the building as uniformed officers responded to the scene. He remained outside until he was told that the officers had a suspect in custody. Moreland went inside the building to identify Jones, after which Jones was placed under arrest. According to Moreland, as Jones was being led from the building to a police car, he asked why Moreland was "doing this," and then said to Moreland, "[i]t's not over. Okay. I'll get you." (Tr. 18).

The government next called Officer Owens. He was one of the police officers who responded to the 911 call placed by Moreland's wife, searched the apartment building, and apprehended Jones. He testified that when he arrived at the scene, he was informed by Moreland that a man had

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exposed himself to one of Moreland's relatives and that the man had a gun. Owens entered the building and eventually encountered Jones leaning against a wall on the fourth floor, immediately to the right of the elevator. Owens recalled that Jones was wearing a white t-shirt, but did not have a jacket. Owens and his partner placed Jones in handcuffs and asked Jones what he was doing in the building. Owens testified that Jones explained that he was "looking for a friend" who lived in Apartment 4F. (Tr. 40). When the officers knocked on the door of that apartment, however, there was no response. A search of the fourth floor landing was then conducted, and Owens recovered a jacket in the elevator, near the top of the elevator door. Owens's...

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