838 F.3d 98 (2nd Cir. 2016), 15-1774-cr, United States v. Harris
|Citation:||838 F.3d 98|
|Opinion Judge:||Reena Raggi, Circuit Judge|
|Party Name:||UNITED STATES OF AMERICA, Appellee, TROY HARRIS, AKA GUNNY, Defendant-Appellant, TRACY HARRIS, AKA SHORTY, AKA TRAY, YVONNE DANIELS, AKA ZIP, SAMUEL HENLEY, AKA POP, AKA SAM, WILLIAM COLE, AKA WILL, MICHAEL CHANEY, AKA MIKE, AKA MICK, JAMES BROADWAY, AKA PORK, CLAUDE DAVIS, AKA CAHUNA, BOBBY WAINWRIGHT, SHARIEFF GRANT, LOUIS NIEVES, AKA LOUIS R...|
|Attorney:||MATTHEW W. BRISSENDEN, Matthew W. Brissenden, P.C., Garden City, New York, for Defendant-Appellant. JENNIFER L. GACHIRI, Assistant United States Attorney (Thomas McKay, Karl N. Metzner, Assistant United States Attorneys, on the brief), for Preet Bharara, United States Attorney for the Southern Di...|
|Judge Panel:||Before: NEWMAN, CALABRESI, RAGGI, Circuit Judges.|
|Case Date:||September 22, 2016|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued August 29, 2016
On appeal from a judgment of the United States District Court for the Southern District of New York (Preska, C.J.) revoking supervised release, defendant challenges (1) the district court's statutory authority under 18 U.S.C. § 3583(e) to revoke supervision based on conduct that had already prompted a modification in the conditions of his supervision; and (2) its decision, pursuant to Fed. R. Crim. P. 32.1(b)(2)(C), to consider victim hearsay statements in adjudicating a violation charge of new criminal conduct.
MATTHEW W. BRISSENDEN, Matthew W. Brissenden, P.C., Garden City, New York, for Defendant-Appellant.
JENNIFER L. GACHIRI, Assistant United States Attorney (Thomas McKay, Karl N. Metzner, Assistant United States Attorneys, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, for Appellee.
Before: NEWMAN, CALABRESI, RAGGI, Circuit Judges.
Reena Raggi, Circuit Judge
Following a guilty plea, defendant Troy Harris was convicted in 2001 in the United States District Court for the Southern District of New York (Robert P. Patterson, Judge ) of conspiracy to traffic in narcotics, see 21 U.S.C. § § 841(b)(1)(A), 846, for which crime he was sentenced to 188 months' imprisonment and five years' supervised release. See United States v. Harris, No. 00-CR-00105 (RPP) (S.D.N.Y. Feb. 14, 2001), ECF No. 191.1 Harris now appeals from a judgment of the same court (Loretta A. Preska, Chief Judge ) entered on May 14, 2015, revoking his supervised release and imposing an additional prison term of 27 months based on a finding that he had engaged in new criminal conduct while on federal supervision, specifically, assault, as proscribed by New York Penal Law § 120.00(1), and narcotics distribution, in violation of New York Penal Law § 220.39. Harris challenges both grounds for revocation.
As to narcotics trafficking, Harris does not dispute the alleged conduct. Instead, for the first time on appeal, he challenges the district court's statutory authority to revoke supervision based on conduct that had already prompted it to modify the terms of his supervision. Harris argues that 18 U.S.C. § 3583(e) confers modification and revocation authority in the disjunctive, so that once a court exercises one (here, modification) in response to particular conduct, it cannot exercise the other (revocation) with respect to that same conduct.
As to assault, Harris argues that the district court impermissibly considered victim
hearsay in making its preponderance finding tat he engaged in such new criminal conduct while on federal supervision.
Because we conclude that both arguments fail on the merits, we affirm the challenged revocation judgment.
Harris began serving the five-year supervision component of his 2001 federal sentence on March 18, 2011. That supervision was subject to certain conditions, three of which are relevant here: that Harris (1) not commit another federal, state, or local crime; (2) truthfully answer all probation inquiries; and (3) notify his probation officer ten days prior to any change in residence.
A. Initial Noncompliance Report: Assault
On August 26, 2014, three years into Harris's supervision term, the United States Probation Department for the Southern District of New York (" Probation" ) filed a report notifying Judge Patterson that Harris had been arrested by the New York City Police Department (" NYPD" ) based on a recent complaint filed by a woman who stated that Harris had " struck her in the face with a closed fist after she confronted him for smacking her on her buttocks during an event they were attending." App'x 26.2 Probation reported that the offense--third-degree assault, see N.Y. Penal Law § 120.00(1)--represented a Class A misdemeanor and a Grade C violation of supervised release. Nevertheless, because the state case had been dismissed when the complainant declined to press criminal charges, Probation recommended that no action be taken with respect to Harris's federal supervision. The district court accepted the recommendation the following day, August 27, 2014.
B. Second Noncompliance Report: Narcotics Trafficking
Less than three weeks later, on September 11, 2014, Probation filed a second noncompliance report notifying Judge Patterson of Harris's September 2, 2014 NYPD arrest, this time for third-degree criminal sale of a controlled substance, see N.Y. Penal Law § 220.39, based on police observations of Harris exchanging crack cocaine for money. Probation recommended, and Harris agreed to, a modification of supervision to add a search condition, which the district court ordered on September 15, 2014.
C. Violation Warrant and Revocation Petition
Two months later, on November 14, 2014, Probation determined that Harris was in violation of the supervision condition requiring that he provide advance notice of any change in residence. On that day, Probation conducted an unannounced visit to Harris's reported residence, the apartment of his maternal aunt. Not only was Harris not present, but a search also revealed that he had " little to no belongings in the apartment." App'x 57. When Probation reached Harris by phone, he stated that he was at his uncle's apartment. After some initial hesitation, he provided the building's address but refused to identify the apartment number.
Judge Patterson was advised of these facts the same day, and promptly issued an arrest warrant based on four alleged violations of supervised release: (1) failure truthfully to answer Probation inquiries,
(2) failure to notify Probation of a change in residence, (3) selling narcotics in violation of state law, and (4) committing third-degree assault in violation of state law. The United States Marshal executed the warrant and produced Harris in court later that day. On consent, Harris was released pending a hearing on the violation charges, subject to additional supervision conditions of home detention and electronic monitoring.
On November 17, 2014, Probation formally petitioned for revocation of Harris's supervised release based on the four alleged violations. The petition advised that, insofar as one of the violations involved possession of narcotics, revocation was mandatory under 18 U.S.C. § 3583(g). Further, because (1) Harris had pleaded guilty to a Class A felony, (2) the alleged narcotics offense constituted a Grade A supervision violation, and (3) Harris had a Criminal History Category of II, his recommended Guidelines sentencing range for that violation was 27 to 33 months' imprisonment, see U.S.S.G. § 7B1.4--approximately half the statutory 5-year maximum, see 18 U.S.C. § 3583(e)(3). Probation explained that the other three allegations pertained to Grade C violations of supervision, which--given Harris's Criminal History Category of II--corresponded to a recommended Guidelines sentencing range of 4 to 10 months' imprisonment. See U.S.S.G. § 7B1.4. Probation recommended that Harris be sentenced to 4 months' imprisonment, the low end of this lesser range, to be followed by an additional one-year term of supervised release.
D. Revocation Hearing
In February 2015, Harris's case was reassigned to Chief Judge Preska, who conducted a revocation hearing on the narcotics-and assault-based charges on April 2, 2015.3
1. Government's Motion To Admit Victim Hearsay Statements
At the outset, the government moved to allow out-of-court statements by the victim of the alleged assault to be admitted through three law enforcement witnesses: (1) NYPD Officer Efrain Ayala, who first responded to the victim's 911 call on the night of the assault; (2) NYPD Detective Jose Chevere, who interviewed the victim two weeks later; and (3) United States Attorney's Office Criminal Investigator Antoinette Guzman, who interviewed the victim six months after the incident. The government stated that the victim herself refused to testify--notwithstanding receipt of a subpoena and an offer of appointed counsel and immunity--based on her professed fear of...
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