United States v. Damien Ray ( 2008 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 07-3098
    ___________
    United States of America,               *
    *
    Appellee,                 *
    * Appeal from the United States
    v.                             * District Court for the
    * Eastern District of Missouri.
    Damien Terrell Ray,                     *
    *
    Appellant.                *
    __________
    Submitted: February 11, 2008
    Filed: July 8, 2008
    ___________
    Before LOKEN, Chief Judge, RILEY and SMITH, Circuit Judges.
    ___________
    RILEY, Circuit Judge.
    Damien Terrell Ray (Ray) appeals from a final judgment entered by the district
    1
    court revoking his supervised release. For the reasons stated below, we affirm the
    judgment of the district court.
    1
    The Honorable Catherine D. Perry, United States District Judge for the Eastern
    District of Missouri.
    I.     BACKGROUND
    In 2005, after Ray pled guilty to being a felon in possession of a firearm, in
    violation of 
    18 U.S.C. § 922
    (g)(1), the district court sentenced Ray to 18 months
    imprisonment and further supervised release. After serving his prison sentence, Ray
    was released from prison in March 2007, and began to serve his term of supervised
    release. However, in July 2007, Ray’s probation officer petitioned the district court
    to revoke Ray’s supervised release, claiming Ray was arrested and charged in state
    court with, among other things, robbery in the first degree.
    At Ray’s revocation hearing, Officer Sean Lipina (Officer Lipina) stated that,
    in July 2007, he received a call concerning a robbery which took place at a gas station.
    Ray objected to Officer Lipina relating any statements by the victim as hearsay and
    as a violation of Ray’s Sixth Amendment right to confrontation. The district court
    overruled the objections and granted Ray a continuing objection. Officer Lipina
    testified the victim told him a black male offered to sell drugs, then pointed a gun at
    the victim and asked him for money. Officer Lipina recalled the victim said he gave
    the suspect $120 and the suspect drove away in a white Expedition. The victim
    described both the Expedition’s license plate number and the suspect, identifying a
    tattoo on the suspect’s left forearm. Based on the description of the car and subject,
    officers later stopped a vehicle matching the description and arrested Ray. Ray
    spontaneously admitted being at the gas station earlier, but declared, “I don’t know
    what happened.” Officer Lipina reported the victim later positively identified Ray in
    a police lineup, also identifying the tattoo on Ray’s left forearm.
    Following the revocation hearing, the district court found Ray violated the
    conditions of his supervised release and sentenced Ray to 18 months imprisonment
    and 12 months of supervised release. Ray appeals and argues the district court erred
    in admitting Officer Lipina’s hearsay testimony in violation of his Sixth Amendment
    right to confrontation.
    -2-
    II.    DISCUSSION
    We review questions arising under the constitution de novo, and we review the
    admission of evidence at a revocation hearing for an abuse of discretion. United
    States v. Martin, 
    382 F.3d 840
    , 844 (8th Cir. 2004) (citations omitted).
    Ray contends the district court erred in admitting Officer Lipina’s “hearsay”2
    testimony because, under Crawford v. Washington, 
    541 U.S. 36
     (2004), the testimony
    violates Ray’s constitutional rights under the Confrontation Clause. Ray’s argument
    lacks merit. As we have previously indicated, “the Supreme Court cautioned that a
    parole revocation hearing should not, for this purpose, be equated with a criminal
    trial.” Martin, 
    382 F.3d at
    844 (citing Morrissey v. Brewer, 
    408 U.S. 471
    , 489
    (1972)). The Sixth Amendment only applies to “criminal prosecutions,” and a
    revocation of supervised release is not part of a criminal prosecution. 
    Id.
     “Revocation
    deprives an individual, not of the absolute liberty to which every citizen is entitled,
    but only of the conditional liberty properly dependent on observance of special parole
    restrictions,” thus, the full protection provided to criminal defendants under the Sixth
    Amendment right to confrontation does not apply to revocation cases. Morrissey, 
    408 U.S. at 480
    . For this reason, Crawford is not implicated in a supervised release
    revocation hearing. Martin, 
    382 F.3d at
    844 n.4; see also United States v. Hall, 
    419 F.3d 980
    , 985-86 (9th Cir. 2005); United States v. Aspinall, 
    389 F.3d 332
    , 342 (2d
    Cir. 2004).
    Although Ray does not have a Sixth Amendment right to examine adverse
    witnesses, Ray has a limited due process right to “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); see also Morrissey, 
    408 U.S. at 489
     (declaring, at a
    minimum, due process includes “the right to confront and cross-examine adverse
    2
    We do not decide whether all or any of the challenged statements are actually
    hearsay under the Rules of Evidence.
    -3-
    witnesses (unless the hearing officer specifically finds good cause for not allowing
    confrontation)”); Martin, 
    382 F.3d at 844
    . The application of this “narrow” due
    process protection, however, “should be flexible enough to consider evidence . . . that
    would not be admissible in an adversary criminal trial.” Morrissey, 
    408 U.S. at 489
    ;
    see Martin, 
    382 F.3d at 844
    . Thus, Ray’s argument that the district court erred simply
    by admitting “hearsay” testimony at a revocation hearing is meritless, and the district
    court’s admission of such testimony constituted no abuse of discretion.
    Ray does not raise a due process challenge or any other appeal issue. We do
    not perceive any miscarriage of justice, and we exercise our plain error discretion by
    not addressing any other issues. See Johnson v. United States, 
    520 U.S. 461
    , 466-67
    (1997) (explaining plain error review); United States v. Olano, 
    507 U.S. 725
    , 731-32,
    735-36 (1993) (same); United States v. Pirani, 
    406 F.3d 543
    , 549-50 (8th Cir. 2005)
    (en banc) (same); see also Greenlaw v. United States, 554 U.S. __, __ S. Ct. __ , __,
    
    2008 WL 2484861
     at *5-6 (June 23, 2008) (following the principle of party
    presentation).
    III.   CONCLUSION
    For the reasons stated, we affirm.
    ______________________________
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