US v. Comito

• Decision Date: 27 May 1999
• Docket Number: No. 98-10202.,98-10202.
• Citation: 177 F.3d 1166
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Vito COMITO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

177 F.3d 1166

UNITED STATES of America, Plaintiff-Appellee, v. Robert Vito COMITO, Defendant-Appellant.

No. 98-10202.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 12, 1999.

Filed May 27, 1999.

Timothy P. O'Toole, Assistant Federal Public Defender, Las Vegas, Nevada, for the defendant-appellant.

Robert A. Bork, Assistant United States Attorney, Las Vegas, Nevada, for the plaintiff-appellee.

Before: SCHROEDER, REINHARDT, and SILVERMAN, Circuit Judges.

REINHARDT, Circuit Judge:

Robert Vito Comito appeals one of the district court's findings of a violation of the terms of his supervised release, as well as his sentence, which was based in part on the disputed violation. He does not challenge the revocation itself, because he concedes that three uncontested minor violations are legally sufficient to support that action. Because we hold that Comito's due process right to confrontation was violated with respect to the disputed violation, we reverse and remand with respect to that violation and the sentence.

I.

In 1992, Comito pled guilty to one count of cocaine distribution and was sentenced to sixty-three months' imprisonment and six years of supervised release. A year and a half after he completed serving his prison sentence, the district court revoked Comito's supervised release, finding four separate violations of the conditions of his release: the unauthorized use of his former girlfriend's bank cards, credit cards and checks (a "grade B violation") and three lesser violations ("grade Cs").

At the revocation hearing, Comito admitted the grade C violations, but contested the grade B violation. He acknowledged using Deirdre Connell's cards and checks, but contended that he had done so with her permission, and that any unauthorized charges were made by someone else. Comito concedes that the three admitted grade C violations support revocation of his supervised release, but argues persuasively that because they constitute a lower grade of violation than the alleged fraud, the finding of the fraud violation led to imposition of a far longer sentence. Comito was sentenced to thirty months' imprisonment for his violations of the conditions of supervised release. The recommended sentencing range for the grade C violations under the Sentencing Guidelines' Chapter 7 policy statements was seven to thirteen months.¹ See Williams v. United States, 503 U.S. 193, 200-01, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992) (Sentencing Guidelines' policy statements are authoritative guides); United States v. Plunkett, 94 F.3d 517, 518 (9th Cir.1996) (Chapter 7 policy statements are binding on federal courts).

The crux of the alleged fraud violation was the accusation made by Deirdre Connell, Comito's former girlfriend and roommate, to Comito's probation officer, Officer Perdue, that Comito had used her bank cards, credit cards and checks without her permission. Connell was not present to testify at the initial revocation hearing. Because her evidence was expected to be critical to the determination of that violation, the district court granted a continuance so that the government could subpoena her. However, Connell still was not present at the continued hearing. At the beginning of the hearing, counsel for the government stated his intent to offer the testimony of Officer Perdue regarding what Connell had said to him concerning Comito's use of her cards and checks. Comito's lawyer strenuously objected to the use of this hearsay testimony to prove the violation and forcefully asserted that its admission would violate his client's confrontation rights.

The court asked counsel about the circumstances surrounding Connell's absence. The Assistant United States Attorney said that the Government had been unsuccessful in its attempt to subpoena her. He alleged, based on information given to him by Comito's probation officer, that Connell was afraid that she would be harmed by an unknown associate of Comito's should she testify. Comito's counsel, on the other hand, stated that he had personally spoken to Connell as recently as half an hour prior to the hearing, during which conversation she had told him that the only reason she had made the allegations was because her romantic relationship with Comito had soured at the time, that she would not repeat the allegations at the hearing, and that her reluctance to testify was due to fear of perjury charges or other repercussions should she change her story. Moreover, Comito's counsel stressed that, to the best of his knowledge, Connell was not afraid of his client, pointing to her almost daily visits and telephone calls to Comito at the Detention Center. After hearing from counsel on this issue, the District Judge stated that his "inclination would be to see what is said and what kind of foundation is laid, but clearly, ... hearsay can be considered and it would—if this were the only violation of the defendant it might be different, but this defendant, if what has been alleged is true, has a lot of problems."²

Officer Perdue then testified to what Connell had told him about the alleged fraud. According to Officer Perdue, Connell contacted him in early January 1998, and told him that a number of unauthorized transactions had occurred involving several of her credit cards and bank accounts in December 1997 and that in her opinion Comito was responsible for all of them. Perdue said that Connell accused Comito and an unknown associate of taking her credit cards from her wallet and using and then replacing them, and also claimed that checkbooks from two different bank accounts had been stolen, and checks had been forged and sent to her credit card companies to cover some of the unauthorized transactions. He did not testify as to any efforts to secure Connell's presence, provide any explanation for her absence, or iterate the statements attributed to him earlier in the proceeding by counsel for the Government.

In addition to Officer Perdue's testimony regarding Connell's allegations, the government offered four other pieces of evidence concerning the transactions, which to varying degrees provided corroboration for certain aspects of the charge, but which collectively fell far short of the quantum of proof required to support a finding of the charged violation. This evidence consisted of: stipulated testimony of a Las Vegas Police Detective that Connell had reported unauthorized bank card transactions, that no charges had been filed, and that the case remained open;³ a memorandum written by Connell, apparently at Officer Perdue's request, listing the dates and amounts of the transactions in question;⁴ several of Comito's unemployment compensation documents and his December 1997 bank statement; and, Officer Perdue's testimony regarding his discussion with a credit card fraud investigator about the investigator's conversations with Connell and Comito. While the additional evidence may also be subject in whole or in part to valid objections based on hearsay and Comito's right to confrontation, those challenges are not raised before us. Only Officer Perdue's testimony regarding what Connell purportedly told him is at issue in this appeal.

Before Comito took the stand to contest the fraud allegation, his counsel requested a further continuance so that Connell could be present. The District Judge denied this request. Comito then testified to the following: Throughout his relationship with Connell, each had used the other's credit cards, and Connell had given him her ATM PIN number so that he could have access to her bank accounts. Toward the end of 1997 Connell noticed that one of her credit cards was missing, and he believed she had lost it in a move a few months earlier. In early January of 1998, he moved out of the house he shared with Connell because they were not getting along, and moved in with another woman. Shortly thereafter, he became aware of Connell's concerns regarding unexpectedly large charges on her credit cards and some missing checks. While he did make some purchases with Connell's credit cards during December, he had her (at least tacit) consent for these transactions, he took responsibility for these charges, and he was not responsible for the other charges or the missing checks. Other individuals, who had used Connell's cards in the past, may have had access to those cards. Following his arrest for the alleged supervised release violations, he and Connell had a reconciliation, and she then told him that she was sorry that she had made the accusations and would withdraw them. She also told him that the unauthorized charges were "still on-going" and that as he was then in jail, she knew that he was not the guilty party. As part of their reconciliation, he and Connell agreed to try to pay off her debts together, as he "felt kind of partly responsible ... because of the possibility that it was indeed anybody that he knew that used her cards or stole her checks." The conversation with the credit investigator, to which Officer Perdue referred, was in accordance with that agreement.

Following Comito's testimony, his counsel made a brief closing argument reiterating his objections to the hearsay evidence, reasserting his client's constitutional right to confrontation, and asking the court to find that only the grade C violations had been committed. Without ruling specifically on the admissibility of Officer Perdue's hearsay testimony or explaining the basis for his findings, the district court found that Comito had committed all four of the violations of supervised release alleged in Perdue's Revocation Petition. Then, without explanation or reference to the Sentencing Commission's Guidelines, the court sentenced Comito to thirty months.⁵

II.

Comito challenges the district court's reliance on Officer Perdue's hearsay testimony to establish the fraud violation—the testimony regarding Connell's verbal statements—and contends that he was denied his due...