U.S. v. Waters

• Decision Date: 28 September 1998
• Docket Number: No. 97-5513,97-5513
• Citation: 158 F.3d 933
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles C. WATERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 933

158 F.3d 933

UNITED STATES of America, Plaintiff-Appellee, v. Charles C. WATERS, Defendant-Appellant.

No. 97-5513.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 6, 1998.

Decided Sept. 28, 1998.

David Bunning (argued and briefed), Office of the U.S. Attorney, Covington, KY, for Plaintiff-Appellee.

Thomas M. Dawson (briefed), David V. Ayres (argued and briefed), Leavenworth, KS, for Defendant-Appellant.

Before: MERRITT, KENNEDY, and GILMAN, Circuit Judges.

OPINION

MERRITT, Circuit Judge.

In this criminal case, Charles Waters appeals the revocation of his term of supervised release. Waters contends that the revocation proceedings were invalid because the District Court improperly allowed a magistrate judge to conduct the final hearing. Waters also argues that the Magistrate Judge erred by considering hearsay evidence during the hearing and that the District Court erred by sentencing him in absentia following revocation. We conclude that the controlling statute authorizes magistrate judges to conduct final revocation-of-supervised-release hearings subject to de novo review by a district judge. We also conclude that the Magistrate Judge properly considered the corroborated out-of-court statement of Waters's alleged co-conspirator. Nevertheless, we hold that the District Court failed to carry out the required de novo review when he adopted Magistrate Judge's report and recommendation without taking into account the fact that Waters's alleged co-conspirator was no longer unavailable to testify. We also hold that the District Court erred by sentencing Waters for violating the terms of his supervised release without allowing him to be present. Accordingly, we vacate the District Court's order revoking Waters's term of supervised release, and we remand the case for further proceedings.

I.

In August 1991, a jury convicted Waters of various offenses relating to the possession and distribution of marijuana, and the District Court sentenced him to 120 months in prison followed by an eight year term of supervised release. This Court affirmed the conviction and sentence in 1992. United States v. Waters, No. 91-6450, 978 F.2d 1260, 1992 WL 322367, (6th Cir. Nov.5, 1992). In April 1994, Waters filed a motion to vacate his conviction and sentence under 28 U.S.C. § 2255, alleging ineffective assistance of trial counsel. After an evidentiary hearing on the motion, Waters and the United States Attorney signed an agreed order setting aside the conviction and sentence and allowing Waters to enter a plea of guilty to one count of using a communication facility in connection with the sale of marijuana. The plea agreement provided that Waters faced a prison term of up to eight years followed by a maximum supervised release term of three years. Following Waters's plea, the District Court sentenced him to sixty-three months in prison followed by a supervised release term of three years.

Waters was released from prison in August 1995 and began to serve his term of supervised release. In May 1996, Waters's probation officer filed a Probation Violator Summons stating that Waters had violated the terms of his supervised release by traveling outside the district, associating with a known felon, and engaging in a conspiracy to sell marijuana. At a hearing before the United States Magistrate Judge, the government offered the written hearsay statement of Waters's alleged co-conspirator in the scheme to sell marijuana, Robert Alexander, who was not available to testify because he was a fugitive at the time of the hearing. Alexander's probation officer testified that Alexander was not in custody at the time he made the statement and that he was not coerced or offered anything in return for making the statement.

According to Alexander's statement, Waters contacted him to propose a drug deal, and he agreed. Waters flew to Orlando on April 13, 1996, to discuss the deal. After Alexander picked him up at the airport, they drove to a Holiday Inn in Melbourne Beach, where Waters showed Alexander a sample of the marijuana they would attempt to sell. Waters flew back to his home in Chicago the following day. Alexander then contacted a potential buyer in Jamaica, New York, who agreed to buy forty pounds of marijuana. According to Alexander, Waters then arranged to have the drugs sent to New York. Alexander met Waters again on April 20, at a Hilton Hotel in Manhattan, where Waters delivered to him "suitcases full of marijuana." After the deal with the buyer in Jamaica fell through because they could not agree on a price, Alexander claims he agreed to rent a car, drive the marijuana back to Chicago, and deliver it to Waters. Alexander was caught with the drugs in Pennsylvania and agreed to cooperate with the police in an attempt to make a controlled delivery to Waters in Chicago. The delivery attempt failed.

The government offered other evidence, including hotel records from Florida and New York, to corroborate Alexander's story. Waters objected to Alexander's statement and the hotel records on the ground that their admission would violate Rule 32.1(a)(2)(D) of the Federal Rules of Criminal Procedure, which provides that a "person shall be given ... the opportunity to question adverse witnesses" at the revocation hearing. The Magistrate Judge overruled the objection, concluding that the government had established good cause for not calling Alexander or the custodians of the hotel records to testify and that the contested hearsay evidence was sufficiently corroborated by other reliable evidence for him to consider it. Based on this and other corroborating evidence, the Magistrate Judge decided that the government had established by a preponderance of the evidence that Waters conspired to distribute marijuana, associated with known felon Alexander, and traveled to New York and Florida without the permission of his probation officer. The Magistrate Judge recommended that Waters be sentenced to twenty-four months in prison for his violations. Two months later, the District Court adopted these conclusions over Waters's objections and sentenced him without a hearing.

II.

Waters contends that the revocation proceedings were invalid because the Magistrate Judge lacked the statutory authority to conduct his final revocation hearing. The government argues that Waters has waived this claim by failing to challenge the Magistrate Judge's authority before filing his objections to the report and recommendation. See Hill v. Duriron Co., 656 F.2d 1208, 1213 (6th Cir.1981) ("Ordinarily a party who objects to a reference to a magistrate must make his objections known either at the time of reference or soon thereafter."); see also Marshall v. Chater, 75 F.3d 1421, 1426-27 (10th Cir.1996) (collecting cases holding that issues raised for first time in objections to magistrate judge's report and recommendation are deemed waived). Waters has offered no explanation for his failure to assert this claim prior to the hearing before the Magistrate Judge.

Notwithstanding this apparent waiver, we find Waters's claim regarding the Magistrate Judge's authority to be without merit. Although we have yet to address this question, at least one circuit has implicitly rejected Waters's claim by assuming that magistrate judges possess the authority to conduct the final revocation hearing in a felony case. See United States v. Rodriguez, 23 F.3d 919, 920 & n. 1 (5th Cir.1994) (underlying offense was theft of government-owned van in violation of 18 U.S.C. § 641, which at the time of his conviction made theft of public property worth at least $100 a felony). The relevant statute, 18 U.S.C. § 3401(i), reads as follows:

Misdemeanors; application of probation laws--

...

(i) A district judge may designate a magistrate judge to conduct hearings to modify, revoke, or terminate supervised release, including evidentiary hearings, and to submit to the judge proposed findings of fact and recommendations for such modification revocation, or termination by the judge, including, in the case of revocation, a recommended disposition under section 3583(e) of this title. The magistrate judge shall file his or her proposed findings and recommendations.

Waters argues that § 3401(i) does not apply in his case because the term "misdemeanor" in the statute's title limits the application of all subsections to misdemeanor cases. We reject this reading of the statute based on the language and structure of the provision, and on its legislative history. See Brotherhood of R.R. Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 528-29, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947) (although "the title of a statute and the heading of a section" are "tools available for the resolution of a doubt" about the meaning of a statute, they "cannot undo or limit that which the text makes plain"). At the outset, we note that Waters's argument regarding the title of the statute is weakened by the semicolon in the title between the term "misdemeanors" and the words "application of probation laws," which strongly suggests that the statute addresses the authority of magistrate judges in separate areas rather than in the single area of "application of probation laws in misdemeanor cases." The language of subsection (i) supports the conclusion that it is intended to apply in both felony and misdemeanor cases. Subsection (i), unlike other portions of the statute, contains no limitation--either explicitly or by reference--to misdemeanor cases. In fact, it explicitly allows a magistrate to make a recommended disposition under 18 U.S.C. § 3583(e), which, in turn, provides the procedures for the modification and revocation of supervised release in both misdemeanor and felony cases. The statute's overall structure supports this conclusion. While subsections (a) through (g) address the authority of magistrates to conduct trials and probation hearings in certain misdemeanor cases, subsections (h) and (i), added to ...