United States v. Eric Norton , 603 F. App'x 83 ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 14-3183
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UNITED STATES OF AMERICA
v.
ERIC C. NORTON,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 4-07-cr-00075-001)
District Judge: Honorable Matthew W. Brann
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Submitted Under Third Circuit LAR 34.1(a)
January 16, 2015
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Before: HARDIMAN, SCIRICA and BARRY, Circuit Judges
(Opinion Filed: March 13, 2015)
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OPINION*
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BARRY, Circuit Judge
Eric C. Norton appeals from a judgment revoking his supervised release;
sentencing him to six months’ incarceration, which term he has served; and reimposing a
*
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
lifetime term of supervised release. Norton’s primary argument is that his right to
confrontation was violated when, at the revocation hearing, the District Court relied on
unreliable hearsay evidence. We will affirm.
I.
In January 2008, after pleading guilty to possession of child pornography, Norton
was sentenced to 78 months’ incarceration, followed by lifetime supervised release. In
addition to the standard conditions of supervision, Norton was subject to nine additional
conditions. The special condition relevant to this appeal provided that Norton
shall participate, at [his] expense, in a sex offender treatment program,
which may include risk assessment testing, counseling and therapeutic
polygraph examinations, and shall comply with all requirements of the
treatment provider. The treatment is to be conducted by a therapist
approved by the probation officer.
(App. 103.)
Norton was released from prison in October 2012 and began a treatment program
in May 2013, attending 45 counseling sessions with John Youngman, a licensed clinical
social worker, between May 2013 and April 2014. In connection with this treatment,
Norton underwent the first of two polygraph examinations on December 2, 2013. The
polygraph examiner’s report indicated “[s]ignificant [r]eactions” to certain questions
relating to past victims. (App. 95.) The report recommended that Norton be given another
exam in several months “assuming that YOUNGMAN was able to break down
[Norton’s] denials regarding past victim(s).” (Id.) Further, the examiner wrote, “a
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maintenance/monitoring exam should be given in approx. 6 months to assist [Mark]
KEHLER [Norton’s probation officer], unless of course something else arises.” (Id.) The
District Court was informed of the results on January 28, 2014, and permitted Norton to
continue under supervision “pending further treatment and a second polygraph
examination.” (App. 7.)
Norton was tested again on March 20, 2014. The examiner’s report states that he
“could not determine the result of the examinee’s polygraph charts” because “the
examinee employed Countermeasures/being Purposely Non-Cooperative (PNC) during
his entire exam.” (App. 97.) The examiner suggested that Probation Officer Kehler “may
want to [be] more vigilant” with Norton, and that Youngman “may have to determine
whether or not to continue with treatment . . . because [Norton] is being non-compliant
with his therapy ([he] is not being honest about his past & therefore unmanageable).”
(App. 98.) Both polygraphs were administered by a Pennsylvania state trooper who was
working as an independent contractor for purposes of the polygraph examinations here.
On April 30, 2014, Youngman sent Kehler a letter indicating that while Norton
was “generally compliant and engaging” in their sessions and had shown “improved
insight into the dynamics of his past sexual offending,” he also had “demonstrated non-
compliance w[ith] directives and probable deceptive responses during his two polygraph
examinations.” (App. 92.) Youngman wrote that he had been unsuccessful in convincing
Norton to be more transparent, and was discharging Norton because he “failed to
adequately manage his risk factors for re-offense.” (Id.)
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On May 9, 2014, a petition to revoke Norton’s supervised release on the ground
that he violated a condition of that release was filed. Norton contested the charged
violation, and the District Court held a revocation hearing on June 17, 2014. The
Government relied on the polygraph reports and Youngman’s letter. Norton called Kehler
to testify. The Court found that Norton had violated the condition at issue, sentenced him
to six months’ incarceration, and reimposed lifetime supervised release. Norton timely
appealed.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231 and 18 U.S.C.
§ 3583(e)(3). Under 18 U.S.C. § 3583(e)(3), supervised release may be revoked if a
district court “finds by a preponderance of the evidence that the defendant violated a
condition of supervised release.” The Government has the burden of proof. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. “The District Court’s decision
to revoke supervised release is reviewed for abuse of discretion,” while the “factual
findings supporting that decision are reviewed for clear error” and “legal issues are
subject to de novo review.” United States v. Maloney, 513 F.3d 350, 354 (3d Cir. 2008).
III.
Norton contends that by permitting the Government to meet its burden at the
hearing with “unreliable hearsay evidence,” his right to confrontation was violated.1
1
Before the District Court and before us, Norton incorrectly identified the source of his
claimed right to confrontation as the Sixth Amendment, rather than the Fifth
Amendment’s Due Process Clause.
4
(Appellant’s Br. 10.) The Government counters that the Court “properly deemed reliable
the Youngman Letter and Polygraph Reports because they were detailed, were written by
people who did not have adversarial relationships with Norton, did not contain multiple
levels of hearsay, and were corroborated by the independent testimony of Kehler.” (Gov’t
Br. 10.)
As the parties recognize, hearsay evidence can be used to support a revocation of
supervised release. Fed. R. Evid. 1101(d)(3); United States v. Lloyd, 566 F.3d 341, 343
(3d Cir. 2009). A releasee does, however, retain a limited right of confrontation at the
revocation hearing as a matter of due process. Lloyd, 566 F.3d at 343. Fed. R. Crim. P.
32.1(b)(2)(C), embodying this principle, provides that the releasee 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.” In
applying Rule 32.1(b)(2)(C), a district court must balance the releasee’s interest in his
right of confrontation against the Government’s reason for denying it. Lloyd, 566 F.3d at
344-45.
It is difficult to see how any right of confrontation enjoyed by Norton was violated
and, more specifically, how he was denied the “opportunity to . . . question any adverse
witness.” When, on Norton’s behalf, his attorney invoked that right, the District Court
responded that he could subpoena Youngman and the polygraph examiner, the witnesses
Norton claims he needed to call, and the Court could evaluate that testimony. (App. 22.)
Indeed, the Government had earlier stated that “If [Norton] prefers to have an
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adjournment to bring these witnesses in, we would have no objection to that . . . .” (Id. at
19.) Norton did not seek an adjournment, and, although he called Kehler to testify, he
made no effort to subpoena any other witness. He surely had the “opportunity” to do so.
That forfeited opportunity clearly undermined Norton’s asserted interest in
“confrontation” and enabled the District Court to strike the balance it did in favor of the
reliability of the relatively detailed polygraph reports and the Youngman letter.
IV.
The order of the District Court will be affirmed.2
2
We have reviewed Norton’s subsidiary arguments and reject them. In brief, the
condition Norton was found to have violated was not vague and the discretion of the
probation officer was appropriately limited thereunder. Moreover, the revocation was
based not on the results of the polygraphs, but on Norton’s violation of the condition that
he participate in treatment and comply with the provider’s requirements.
6