United States v. Ford

• Decision Date: 20 August 2015
• Docket Number: No. 14–3452.,14–3452.
• Citation: 798 F.3d 655
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Brian FORD, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

798 F.3d 655

UNITED STATES of America, Plaintiff–Appellee

v.Brian FORD, Defendant–Appellant.

No. 14–3452.

United States Court of Appeals, Seventh Circuit.

Argued June 1, 2015.

Decided Aug. 20, 2015.

Jonathan H. Koenig, William J. Lipscomb, Office of the United States Attorney, Milwaukee, WI, for Plaintiff–Appellee.

Daniel J. Hillis, Office of the Federal Public Defender, Springfield, IL, Thomas W. Patton, Office of the Federal Public Defender, Peoria, IL, for Defendant–Appellant.

Before WOOD, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.

Opinion

WOOD, Chief Judge.

Brian Ford keeps getting into trouble. After pleading guilty to a drug offense in 2001, he was sentenced to a term of imprisonment followed by supervised release. While on supervised release, he committed an act of prostitution and other violations of the conditions of release, and he was sentenced to new terms of imprisonment and supervised release. Ford then allegedly committed a substantial battery while serving his second term of supervised release. After holding a revocation hearing, the district court found that Ford had indeed committed the battery and thus had again violated the conditions of his supervised release. Ford now appeals, claiming that the district court made a number of errors in connection with the revocation. Because Ford has waived some arguments and the rest have no merit, we affirm the district court's judgment.

I

In 2001, Ford pleaded guilty to one count of conspiracy to possess with intent to distribute more than 50 grams of crack cocaine and more than five kilograms of powder cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. After a series of sentencing reductions, he ultimately was sentenced to 97 months of imprisonment, followed by five years of supervised release. In 2009 he was released from prison and began his term of supervised release. In 2013, the district court revoked Ford's supervised release after finding that he had committed multiple violations of his supervised release conditions. The court sentenced him to a 12–month term of imprisonment and an 18–month term of supervised release. Ford was released from prison on May 30, 2014, and began his second term of supervised release.

On August 4, 2014, Ford allegedly committed a substantial battery. The district court held a revocation hearing on September 10, 2014, to determine whether the allegation was true. Such an act, if proven, would constitute a violation of the condition requiring Ford not to commit another federal, state, or local crime. Three witnesses testified at the hearing: Scott Rahoi, the alleged victim of the battery, Milwaukee Police Officer Lafayette Emmons, and Milwaukee Police Detective Andre Matthews.

The government first called Rahoi, who testified that a person he knew as “Tony” was an apartment manager at the building in which Rahoi lived. He identified Ford in court as Tony. Rahoi stated that on August 4, 2014, Ford barged into his apartment and angrily instructed him to vacate the residence. After Rahoi told Ford that he needed time to pack his belongings, Ford became more irate and began to punch and kick Rahoi, until Rahoi almost lost consciousness. Once Ford left the apartment, Rahoi called 911. Officer Emmons arrived soon thereafter, and Rahoi told him what had happened. Later, while Rahoi was at the hospital, Officer Emmons showed Rahoi a photo array, and Rahoi identified a picture of the man he knew as Tony.

Rahoi admitted that he previously had committed a felony and that he had problems with alcohol, though he later denied that he had been drinking at the time of the incident. On cross-examination, he further admitted that he had probably seen Ford only twice before August 4, 2014. He confessed that he had gotten into a fight with Jasmine Smith, another tenant in his apartment, a few days before Ford attacked him. During the cross-examination, Ford's counsel referred to a Milwaukee police report labeled Exhibit 5, in which Smith had stated that Rahoi smoked crack cocaine on the day of the incident. Rahoi denied this allegation.

Officer Emmons testified next. He stated that Rahoi had told him that Tony, the building's property manager, had attacked him. Elaborating, he said that Rahoi had given him both a description of Tony and Tony's phone number, which Rahoi had obtained from another tenant. Emmons identified Exhibit 3 as the photo array he had given to Rahoi while Rahoi was in the hospital. Emmons indicated that Rahoi had identified Ford's picture as that of his assailant. There was some confusion, however, about the order of the photographs on the original array as compared to the order displayed in Exhibit 3. For this reason, it is unclear whether Rahoi actually identified Ford or a man named Joseph Diaz.

Finally, Detective Matthews testified that he interviewed Ford a few weeks after the incident. Matthews stated that Ford had told him that he was not a property manager for Rahoi's building and that he did not know Rahoi. After being shown Exhibit 5 (the police report), Matthews testified that Smith had told him that either Brandon or Tony managed the building. He also said that Smith had identified a photo of Ford as Tony. Ford's counsel did not object to the use of Exhibit 5. On cross-examination, counsel briefly questioned Matthews about Smith's identification of Ford and Smith's statements regarding Rahoi's crack cocaine use.

The government then rested. The court asked if the government wanted to enter the police report into evidence, and it responded affirmatively. Before admitting the document into evidence, the court asked Ford's counsel if he had any objection, to which he responded, “No, sir.” The revocation hearing resumed on October 28, 2014. Ford was the only witness. Ford denied involvement in the August 4, 2014 attack and testified that he had never seen Rahoi before the revocation hearing. He swore that he had been at home on the day of the incident and further noted that he had been in the property management business before but had stopped working in that area over a year ago. During this testimony, Ford's counsel attempted to introduce Smith's statements about Rahoi's drug use, but the court sustained the government's objection on relevance grounds.

The district court concluded that the government had shown by a preponderance of the evidence that Ford had violated his supervised release conditions by committing a substantial battery against Rahoi. In coming to this decision, the court relied on each of the testifying witnesses as well as Smith's statements from the police report. The court sentenced Ford to 36 months of imprisonment with no supervised release, plus restitution in the amount of $646.84. The court noted that it considered “all of the factors” under § 3553(a)(2). In particular, it discussed the seriousness of Rahoi's injuries; it stated that “the community should be protected from [Ford's] outbursts”; and it concluded that “supervision to date has not been effective.” Finally, the court determined that the sentence was “consistent with the applicable guideline range of from [sic ] 30 to 37 months.”

Ford timely appealed the district court's judgment and sentence. He raises three arguments. First, he contends that the court violated Federal Rule of Criminal Procedure 32.1(b)(2)(C) and the Due Process Clause of the Fifth Amendment by allowing the government to introduce Smith's statements, as contained in the police report. Second, he argues that 18 U.S.C. § 3583(e)(3) and (h) dictate that his statutory maximum sentence is one year and that his 36–month sentence thus exceeds this maximum. Finally, Ford alleges that the district court committed procedural error by not adequately examining the relevant factors listed in 18 U.S.C. § 3553(a) at sentencing.

II

We begin with Ford's contention that the district court erred in admitting Smith's statements from the police report, Exhibit 5. Ford did not make this objection in the district court. In fact, Ford's counsel was the first to refer to Smith's statements, during his cross-examination of Rahoi. He again mentioned Smith's comments while cross-examining Detective Matthews, albeit after the government had elicited testimony from Matthews about his interview with Smith. Counsel also attempted to introduce the statements during Ford's testimony. The district court explicitly asked Ford's counsel whether he objected to the admission of the police report that included Smith's statements into evidence, and counsel replied that he did not.

Waiver occurs where there is an “intentional relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) ). In contrast to forfeiture, where “a defendant negligently bypasses a valid argument,” “waiver requires a calculated choice to stay silent on a particular matter.” United States v. Anderson, 604 F.3d 997, 1001 (7th Cir.2010). Ford's counsel's actions at the revocation hearing demonstrated a calculated choice to remain silent during the government's use of the police report, so that counsel could also use the report—particularly Smith's statements regarding Rahoi's drug use—to impeach Rahoi. Counsel repeatedly brought up these statements, and he—not the government—made the first reference to the report. Moreover, the court clearly brought the admissibility of the report to counsel's attention, and counsel declined to object. These actions indicate that counsel (on behalf of Ford) intentionally relinquished the right to object to the admissibility of the report and the statements contained within it.

Ford now argues that because the Federal Rules of Evidence do not apply to supervised release proceedings (and because Ford consequently had no right under those Rules to prevent the admission of the statements), he could not have waived his right to object...