818 F.3d 1091 (10th Cir. 2016), 15-6119, United States v. Jones
|Citation:||818 F.3d 1091|
|Opinion Judge:||MATHESON, Circuit Judge.|
|Party Name:||UNITED STATES OF AMERICA, Plaintiff - Appellee v. CAMERON TAEVON JONES, Defendant - Appellant|
|Attorney:||Kyle Edward Wackenheim, Research and Writing Attorney (Paul Antonio Lacy, Assistant Federal Public Defender, with him on the briefs), Office of the Federal Public Defender for the Western District of Oklahoma, Oklahoma City, Oklahoma, appearing for Appellant. Timothy W. Ogilvie, Assistant United ...|
|Judge Panel:||Before TYMKOVICH, Chief Judge, BRISCOE, and MATHESON, Circuit Judges.|
|Case Date:||April 05, 2016|
|Court:||United States Courts of Appeals, Court of Appeals for the Tenth Circuit|
In 1998, Cameron Jones was convicted of interference with commerce by threat or violence, and of using and carrying a firearm during a crime of violence. In 2007, he was convicted of possession with intent to distribute cocaine and sentenced to 71 months in prison and five years of supervised release. The court also ordered the prison sentence to run consecutively to the 24-month term of... (see full summary)
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA. (D.C. No. 5:07-CR-00294-F-1).
Kyle Edward Wackenheim, Research and Writing Attorney (Paul Antonio Lacy, Assistant Federal Public Defender, with him on the briefs), Office of the Federal Public Defender for the Western District of Oklahoma, Oklahoma City, Oklahoma, appearing for Appellant.
Timothy W. Ogilvie, Assistant United States Attorney (Sanford C. Coats, United States Attorney, with him on the brief), Office of the United States Attorney for the Western District of Oklahoma, Oklahoma City, Oklahoma, appearing for Appellee.
Before TYMKOVICH, Chief Judge, BRISCOE, and MATHESON, Circuit Judges.
MATHESON, Circuit Judge.
The district court revoked Cameron Jones's supervised release. It relied on hearsay evidence from the Government's only witness at the revocation hearing. On appeal, Mr. Jones argues (1) Federal Rule of Criminal Procedure 32.1(b)(2)(C) requires the district court to apply a balancing test to determine whether hearsay evidence may be considered for revocation, (2) the district court abused its discretion because it did not apply the Rule 32.1(b)(2)(C) balancing test, and (3) this error is reversible. Exercising jurisdiction under 28 U.S.C. § 1291, we agree with Mr. Jones and reverse and remand to the district court for a new revocation hearing.
Mr. Jones's Previous Convictions
In 1998, Mr. Jones was convicted of interference with commerce by threat or violence, in violation of 18 U.S.C. § 1951, and of using and carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1). In 2007, he was convicted of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and sentenced to 71 months in prison and five years of supervised release. The court also ordered the prison sentence to run consecutively to the 24-month term of incarceration imposed as a result of the revocation of supervised release in the 1998 case.
The 2007 presentence report stated Mr. Jones was a member of the Rolling 60s Crips gang and goes by the alias C-Rag.
The September 27, 2014 Murder
On August 29, 2014, Mr. Jones was released from prison and began serving his five-year term of supervised release for the 2007 conviction. On September 27, 2014, Mr. Miles, a Rolling 60s Crips member, was murdered. Two days after the murder, the United States Probation Office filed a petition to revoke Mr. Jones's supervised release, alleging Mr. Jones violated the following conditions: (1) " [t]he defendant shall not commit another federal, state, or local crime; " (2) " [t]he defendant shall not possess a firearm, destructive device, or any other dangerous weapon; " and (3) " [t]he defendant shall not associate with any persons engaged in criminal activity and shall no[t] associate with any person convicted of a felony unless granted permission to do so by the probation officer." ROA, Vol. I at 18-19. The petition asserted Mr. Jones violated these conditions by murdering Mr. Miles, possessing a firearm, and associating with Mr. Miles, a convicted felon.
The Revocation Hearing
After the Probation Office filed its petition, the district court held a revocation hearing on April 9, 2015. The Government presented one witness: Inspector Benavides, a homicide detective with the Oklahoma City Police Department who investigated the murder. He testified about Ms. Palmore's and Trenton Nguyen's statements given during witness interviews. He also testified about his investigation of the murder, Mr. Jones's arrest, and Mr. Jones's state murder prosecution. He testified as follows.
Ms. Palmore's statements
Inspector Benavides interviewed Ms. Palmore on the day of the shooting. He testified Ms. Palmore claimed to have seen the shooting and that she provided the following information: o She " had just gotten out of prison."
o Before the murder, she was at a bar named Slick Willie's with a group of people that included Mr. Jones and Mr. Miles.
o At Slick Willie's, Mr. Miles tried to break up a fight between " some females" and, in the process, had a confrontation with Mr. Jones.
o Following the confrontation, she and the rest of the group left Slick Willie's.
o When she arrived at her apartment, a group that included Mr. Jones was located in a nearby parking lot of a Cricket cell phone store.
o Ms. Palmore saw Mr. Miles walk toward the group accompanied by an " Asian boy," who was later identified as Mr. Nguyen.
o Ms. Palmore went inside her apartment, but at some point heard people in the parking lot yelling.
o She went outside and saw Mr. Jones shooting at the car Mr. Miles was sitting in.
o Mr. Jones was " walking up to the car shooting into the car."
o When Mr. Jones arrived at the driver's side window, he shot into the car.
o Mr. Miles was trying to get out of the passenger's side of the car during the shooting.
o An " entire clip" was shot.
o After the shooting, Mr. Jones got into a two-door white Monte Carlo, which sped away from the scene, and " the bottom of the car kind of hit the asphalt and they drove off."
o " She was 100 percent sure" Mr. Jones was the shooter.
o She had known Mr. Jones since she was 15 years old1 but had not seen him for many years before the night of the murder because she had recently been released from prison.
ROA, Vol. III at 20-23.
During the interview, Inspector Benavides showed Ms. Palmore a photo lineup consisting of six headshots of different African-American men, including Mr. Jones. Ms. Palmore identified someone other than Mr. Jones as the shooter. Inspector Benavides had the following exchange with Mr. Jones's counsel on cross-examination: Q. And then when you took her to the police department, you did a very controlled photo identification?
A. Yes, sir.
Q. And she identified the wrong person; isn't that correct?
A. She -- actually, she identified -- for the first time, she identified -- for me, she identified two people out of one lineup. And that's the first time that has ever happened to me. So once she did that, I went back inside with her and I verified with her that we were absolutely talking about Cameron Jones. And she was very adamant, 100 percent sure, that Cameron Jones was the shooter.
Q. Right. But the point I'm trying to make here is she's saying it was [Mr. Jones].
A. Yes, sir.
Q. But the picture she identified was not [Mr. Jones].
A. She identified the picture of [Mr. Jones], but she identified him as the person bringing the gun and giving it -- the person that she identified as the shooter was a random guy that I had put in the lineup. And once we looked at it, you know, the similarities to him and to [Mr. Jones], I mean, they're similar. And the photo lineup is there, you can look at it, I've given it to you. That's why I went back in there to reaffirm with her who we were talking about.
ROA, Vol. III at 38-39.
Inspector Benavides testified that, although Ms. Palmore misidentified Mr. Jones during the photo lineup, she was adamant that Mr. Jones was the shooter. According to Inspector Benavides, Ms. Palmore told him " [she] could have been mistaken, [she] hadn't seen him in a while, [she] had just gotten out of prison, but she [was] 100 percent sure that [Mr. Jones] was the shooter." Id. at 40.
Mr. Nguyen's statements
Inspector Benavides testified that Mr. Nguyen provided the following information: o Mr. Jones and Mr. Miles had a confrontation at Slick Willie's.
o After the confrontation, he and Mr. Miles left Slick Willie's and went to Mr. Miles's house.
o Mr. Miles said he was going to fight Mr. Jones because Mr. Jones was responsible for the altercation at Slick Willie's.
o Mr. Nguyen and Mr. Miles went to the Cricket parking lot and Mr. Miles " start[ed] calling [Mr. Jones] out in front...
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