U.S. v. Taveras

• Decision Date: 17 August 2004
• Docket Number: No. 03-2140.,03-2140.
• Citation: 380 F.3d 532
• Parties: UNITED STATES of America, Appellee, v. Jimmy TAVERAS, f/k/a Jimmy Traveras, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

380 F.3d 532

UNITED STATES of America, Appellee, v. Jimmy TAVERAS, f/k/a Jimmy Traveras, Defendant, Appellant.

No. 03-2140.

United States Court of Appeals, First Circuit.

Heard April 9, 2004.

Decided August 17, 2004.

Appeal from the United States District Court for the District of New Hampshire, Steven J. McAuliffe, J Dawn E. Caradonna, with whom The Law Office of Dawn E. Caradonna was on brief, for Appellant.

Donald A. Feith, with whom Thomas P. Colantuono, U.S. Attorney, and Peter E Papps, First Assistant U.S. Attorney, were on brief, for Appellee.

Before TORRUELLA, LYNCH, and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

Jimmy Taveras challenges the district court's revocation of his supervised release without giving him the opportunity to confront the complaining witness whose account of an alleged violation of state law was the basis of the court's revocation decision. Instead, the court relied on Taveras's probation officer to present a hearsay account of the alleged violation. Concluding that the reliance by the district court on this second-hand account violated Taveras's confrontation rights under Rule 32.1(b)(2)(C) of the Federal Rules of Criminal Procedure, we vacate the revocation of his supervised release.

I.

We draw our recitation of the facts from the district court record. On November 2, 1998, Taveras pleaded guilty to one count of conspiracy to distribute and to possess with intent to distribute cocaine and heroin in violation of 21 U.S.C. § 846 and distribution of heroin in violation of 21 U.S.C. § 841. He was sentenced to thirty-seven months of imprisonment and four years of supervised release. The sentencing court imposed a number of conditions of supervised release, including a prohibition on his possession of a firearm and a requirement that Taveras "not commit another federal, state, or local crime."

Approximately three weeks after he was released from this first period of incarceration, Taveras was arrested again and was charged with witness tampering for verbally assaulting a government witness who had testified against a Massachusetts gang with whom Taveras was allegedly associated. On October 18, 2000, the district court revoked Taveras's supervised release and sentenced him to twelve months and one day of imprisonment and thirty-six months of supervised release. He was released from this second period of incarceration on June 23, 2001, and was arrested again April 25, 2003, this time by the Lawrence, Massachusetts police for assault with a deadly weapon and possession of a firearm without a license. Although the state charges were eventually dismissed because the complaining witness refused to testify, the district court held supervised release revocation proceedings based on this arrest at the request of Taveras's probation officer, Carmen Wallace, on July 29, 2003 and August 8, 2003.¹

Claiming that the complaining witness could not be found to testify, the Government announced its intention to rely on probation officer Wallace to provide a hearsay account of the alleged assault. Taveras moved for dismissal of the proceedings just before Wallace testified, arguing that the Government violated Fed.R.Crim.P. 26.2² (because the government had not given him a copy of the statement of the complaining witness in its possession) and Rule 32.1³ (by not making the complaining witness available for cross-examination). The district court overruled the first objection, noting that Rule 26.2 only applies to witnesses and stating that the complaining witness was not going to be a witness. It overruled the second objection as well, observing that Taveras was free to call the complaining witness to the witness stand if he wanted to examine her but that Rule 32.1 did not require the Government to call a witness simply so that Taveras could cross-examine her.

Wallace took the stand and recounted two conversations that she had with the complaining witness, a woman who identified herself as Elsa Pabon. The first communication was a ten to fifteen minute telephone conversation that occurred on the morning of April 16, 2003. Pabon told her that Taveras, whom she knew because he was dating her cousin, had pulled up next to her car on the previous evening and had pointed a black semi-automatic handgun at her. She said that he was upset that Pabon's sister had broken up with Taveras's brother and told Pabon to "tell [her] sister's boyfriend this is what [he has] for him" as he pointed the gun at her. She said that she felt threatened by Taveras and was in fear for her safety. Wallace said that Pabon was highly emotional and that Pabon said that she had been trying to reach Wallace all morning because she knew that Wallace was Taveras's probation officer. Wallace encouraged Pabon to contact the police, and Pabon did so after the end of this phone conversation.

The second conversation occurred when Wallace visited Pabon and her mother at Pabon's home on April 28, 2003. Pabon told Wallace that she was very afraid of Taveras and his family and friends because she knew what they were capable of doing. She had received phone calls from Taveras's brother and Taveras's lawyer on the day that he was arrested, asking why she was pursuing the matter. Although Wallace tried to get a written statement from Pabon, she refused to give one, saying that Wallace could not guarantee her safety or the safety of her children.⁴

After Wallace visited her house, Pabon submitted a written statement to the local prosecutor, saying that the whole matter was a big misunderstanding and that she did not want to pursue any charges against Taveras. Having lost their witness, the Commonwealth dropped its charges. Although Wallace went to Pabon's house to bring her to the federal revocation proceedings, she saw that Pabon's name had been removed from the mailbox and a neighbor said that she did not believe that Pabon lived there any longer.

The Government rested after Wallace presented this account. Taveras did not present any witnesses. However, during his closing argument, he repeated his objection to the court's consideration of Wallace's hearsay testimony.

Noting that Taveras failed to object to Wallace's hearsay testimony while she was on the stand and that the testimony was admissible under the excited utterance exception to the hearsay rule, the court considered Wallace's testimony for the truth of the matter asserted in Pabon's account of her confrontation with Taveras. It found Pabon's story, as delivered by Wallace, to be credible, and found that Taveras had committed the charged crimes of assault and assault with a dangerous weapon. It then revoked his supervised release and sentenced him to 18 months of imprisonment and an additional 12 months of supervised release.⁵

II.

As noted, Taveras supported his claim to cross-examine Pabon by invoking Rule 32.1(b)(2)(C), which provides that a defendant is entitled at a revocation hearing to, inter alia, "an opportunity to appear, present evidence, and 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). The district court admitted Wallace's hearsay testimony, rejecting Taveras's Rule 32.1(b)(2)(C) cross-examination claim. Despite the district court's observation that Taveras failed to object to Wallace's hearsay testimony while she was on the stand, Taveras's objections before and after her testimony demonstrate that he did not forfeit this claim below. Accordingly, we review Taveras's argument that the district court should not have admitted the hearsay testimony for abuse of discretion, United States v. Tom, 330 F.3d 83, 92 (1st Cir.2003), rather than plain error.⁶

In conducting this review, we find some of the history of Rule 32.1 relevant to Taveras's claim of error. The Advisory Committee Notes accompanying the 1979 addition and the 2002 amendments to Rule 32.1 reveal that the procedural protections established by Rule 32.1(b)(2)(C) were designed to track the due process rights established for parolees in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). See United States v. Correa-Torres, 326 F.3d 18, 22-23 (1st Cir.2003) (applying Morrissey and Fed.R.Crim.P. 32.1 in the supervised release context). The Morrissey Court held that while "the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations," defendants at these proceedings are still entitled to basic due process protections. 408 U.S. at 480, 92 S.Ct. 2593. One of these rights is "the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)." Id. at 489, 92 S.Ct. 2593.

Citing Morrissey and its progeny, the Rules Advisory Committee stated in its 2002 Committee Note that Rule 32.1(b)(2)(C) "recognize[s] that the court should apply a balancing test at the [revocation] hearing itself when considering the releasee's asserted right to cross-examine adverse witnesses. The court is to balance the person's interest in the constitutionally guaranteed right to confrontation against the government's good cause for denying it." An important element of the good cause analysis is the reliability of the evidence that the Government seeks to introduce.⁷

In an effort to establish the reliability of Wallace's hearsay testimony, the Government argued that the court could accept it under the excited utterance/spontaneous declaration exception to the hearsay rule. Idaho v. Wright, 497 U.S. 805, 815, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) ("Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception."). That exception allows the admission of a statement relating to a startling event or condition made while the declarant was under the stress of...