United States v. Johnson

• Decision Date: 25 March 2013
• Docket Number: No. 12–2438.,12–2438.
• Citation: 710 F.3d 784
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Ricky Lee JOHNSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

710 F.3d 784

UNITED STATES of America, Plaintiff–Appellee

v.Ricky Lee JOHNSON, Defendant–Appellant.

No. 12–2438.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 18, 2013.

Filed: March 25, 2013.

Chelsea Wilson Cash, FPD, argued, Little Rock, AR, Angela Lorene Pitts, FPD, on the brief, Fayetteville, AR, for Appellant.

Kristin Huntington Bryant, AUSA, argued, Marsha Wardlaw Clevenger, AUSA, on the brief, Little Rock, AR, for Appellee.

Before WOLLMAN, GRUENDER, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Ricky Lee Johnson appeals from a final judgment entered by the district court revoking his supervised release and sentencing him to 21 months imprisonment. He argues that the district court's consideration of a police report, which a probation officer read into evidence, violated his limited due process rights to question adverse witnesses at a revocation hearing. For the following reasons, we vacate Johnson's sentence and remand the case.

I.

In 2007, Johnson was convicted of conspiracy to possess stolen mail and sentenced to fifteen months imprisonment followed by a three-year term of supervised release. His supervised release began on March 17, 2009. The probation office subsequently filed a Petition for Warrant for Offender Under Supervision, alleging Johnson had, among other violations, been arrested for second-degree forgery and theft of property, failed a drug test, and failed to complete drug treatment.

At his revocation hearing, Johnson admitted that he left a rehabilitation facility and that “he submitted a urine sample for testing and it returned positive for marijuana.” Johnson refused to admit to the pending state charges. The government's attorney informed the court that the government had “no witnesses subpoenaed,” but suggested that the probation officer could “basically read from the police report” to prove the allegations of second-degree forgery and theft of property. The police report recounted Johnson's confession to the officers regarding the crimes of check theft and forgery in and around Jonesboro, Arkansas. After the district court considered the issue, the government recommended either having the probation officer read the police report on the record, or continuing the hearing. The district court decided to proceed. Johnson's attorney objected:

Your Honor, we would—if they don't have any witnesses—and I understand this is a revocation proceeding, but the Constitution still applies. He's got a right to confront and cross-examine the witnesses against him. And if [the probation officer] is—all he's going to do is produce a police report, then Mr. Johnson's constitutional right is being violated.

The district court overruled the objection, and the government's attorney agreed, stating: “I don't think that applies here, Your Honor.” The district court acknowledged that Mr. Johnson's attorney made the argument to “preserve her record to appeal” the issue, but found that “the rules of evidence ... are relaxed in a revocation hearing because it's not the same thing as being charged with the underlying offense.”

The probation officer then read the police report into the record. After hearing the evidence, the district court acknowledged that it “didn't have direct evidence from the officers or the people or the victims at the stores where the checks were passed.” But despite that, the court found that Johnson violated his supervised release by violating a state law and sentenced him to twenty-one months imprisonment with an additional three-year supervised release term. After the court made its ruling, Johnson's attorney again renewed the objection to the police report because it was testimonial in nature and violated Johnson's “right to confront and cross-examine those witnesses against him,” citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The district court acknowledged that “the record is very clear that the defendant's position is that I can't give you the sentence that I gave you, it's just illegal. And so you have that argument on appeal.”

Johnson now appeals the district court's judgment.

II.

Johnson contends that the district court's consideration of the police report violated his limited due process rights and the Federal Rules of Criminal Procedure. SeeFed.R.Crim.P. 32.1(b)(2)(C). “We review questions arising under the constitution de novo, but we review the claim of a Rule 32.1(b)(2)(C) violation for an abuse of discretion.” United States v. Martin, 382 F.3d 840, 844 (8th Cir.2004) (internal citation omitted). The government responds that the underlying merits of Johnson's claim are irrelevant because (1) any error was harmless, (2) the issue was not raised in the district court, and (3) even if the argument was raised, the police report was sufficiently reliable to outweigh Johnson's right to cross-examine the arresting officers. We address the government's arguments of harmless error and waiver before discussing the merits of Johnson's appeal.

A.

First, the government argues that any error was harmless because on remand the government would merely subpoena the officers who arrested Johnson, follow the proper procedure, and the officers would testify in conformity with the report. But whether any officers would testify consistently with the police report is not established in the record and cannot be known until the officers testify and are subjected to cross-examination. Moreover, this argument assumes that the government is entitled to a second opportunity to prove Johnson violated his supervised release by introducing the officer's testimony on remand, and as discussed below, we remand the case without expansion of the record.¹

Next, the government contends Johnson did not raise the due process issue below. According to the government, Johnson failed to raise the issue based on Rule 32.1 because he focused on Crawford v. Washington, instead of specifying a limited due process right to cross-examine adverse witnesses. Objections generally must be specific and timely. United States v. Pirani, 406 F.3d 543, 549 (8th Cir.2005) (en banc). “Preserving an issue is a matter of making a timely objection to the trial court and clearly stating the grounds for the objection, so that the trial court has an opportunity to prevent or correct the error in the first instance.” United States v. Williams, 994 F.2d 1287, 1294 (8th Cir.1993) (internal quotation marks omitted).

Based on our review of the sentencing transcript and as the district court recognized, Johnson's attorney preserved the due process issue for appeal. The objection was not based solely on Crawford v. Washington. At the beginning of the hearing, counsel objected to a separate constitutional violation of Johnson's right to cross-examine an adverse witness, before later referencing Crawford. Further, Johnson's attorney objected to the evidence throughout the hearing, arguing it violated the Constitution because Johnson had a right to cross-examine adverse witnesses, and even emphasized that the argument was not an evidentiary one. The district court responded, “I think the record is very clear that the defendant's position is that I can't give you the sentence that I gave you, it's just illegal. And so you have that argument on appeal.”

Reviewing the record, we conclude Johnson's attorney raised specific and timely objections throughout the hearing and the trial court had “an opportunity to prevent or correct the error in the first instance.” See Williams, 994 F.2d at 1294. Therefore, Johnson's objection was sufficient to preserve the issue for appeal, even if it did not explicitly cite Rule 32.1, because it adequately referenced the right to cross-examine adverse witnesses. See United States v. Zentgraf, 20 F.3d 906, 909 (8th Cir.1994) (finding that Rule 32.1 essentially codified the minimal due process requirements recognized by the Supreme Court that allow for cross-examination of adverse witnesses at a revocation hearing).

B.

With respect to the merits of his argument, Johnson contends the probation officer's testimony deprived him of his right to question adverse witnesses. A defendant is not entitled to a trial during a revocation hearing; the rules of evidence do not apply and the government's burden of proof is lowered. United States v. Black Bear, 542 F.3d 249, 253–55 (8th Cir.2008). A defendant is entitled to “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). Moreover, the Supreme Court has held that “the minimum requirements of due process ... include ... the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” Morrissey v. Brewer, 408 U.S. 471, 488–89, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

These requirements outlined in Morrissey are not absolute: a district court should “balance the probationer's right to confront a witness against the grounds asserted by the government for not requiring confrontation.” United States v. Bell, 785 F.2d 640, 642 (8th Cir.1986). While Bell acknowledged that any balancing test precludes articulating “fixed rules,” a court should evaluate several factors. Id. at 642–43. “First, the court should assess the explanation the government offers of why confrontation is undesirable or impractical.” Id. at 643. Second, a trial court should consider “the reliability of the evidence which the government offers in place of live testimony.” Id. Ultimately, if “the government neither shows that presenting live testimony would be unreasonably burdensome nor offers hearsay evidence that bears indicia of reliability, the probationer is entitled to confrontation.” Id. Although the district court did not consider the factors outlined in Bell, we may weigh the factors on appeal because the...