United States v. Alfredo Cespedes , 470 F. App'x 804 ( 2012 )


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  •                                                                    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________                FILED
    U.S. COURT OF APPEALS
    No. 11-14108             ELEVENTH CIRCUIT
    Non-Argument Calendar            APRIL 26, 2012
    ________________________            JOHN LEY
    CLERK
    D.C. Docket No. 1:09-tp-20005-FAM-1
    UNITED STATES OF AMERICA,
    llllllllllllllllllllllllllllllllllllllll                         Plaintiff - Appellee,
    versus
    ALFREDO CESPEDES,
    llllllllllllllllllllllllllllllllllllllll                       Defendant - Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (April 26, 2012)
    Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.
    PER CURIAM:
    Alfredo Cespedes appeals the revocation of his supervised release on the
    ground that the district court violated his Sixth Amendment rights at his revocation
    hearing when it admitted a testimonial hearsay statement from an unavailable
    witness. He contends that the district court erred in applying United States v.
    Frazier, 
    26 F.3d 110
     (11th Cir. 1994), as controlling precedent for the admission of
    hearsay evidence in revocation hearings. He argues that the district court should
    have followed the more recent Supreme Court cases of Crawford v. Washington,
    
    541 U.S. 36
    , 
    124 S. Ct. 1354
     (2004), and Davis v. Washington, 
    547 U.S. 813
    , 
    126 S. Ct. 2266
     (2006). Cespedes does not argue that the district court misapplied
    Frazier. After reviewing the record and the parties’ briefs, we affirm the district
    court.
    We review a district court’s decision to revoke supervised release only for
    abuse of discretion. United States v. Copeland, 
    20 F.3d 412
    , 413 (11th Cir. 1994)
    (per curiam). “We review de novo the scope of constitutional rights.” United
    States v. Cantellano, 
    430 F.3d 1142
    , 1144 (11th Cir. 2005) (per curiam).
    The Supreme Court has explained that the “full panoply of rights due a
    defendant” at trial does not apply in a supervised release revocation hearing.
    Morrissey v. Brewer, 
    408 U.S. 471
    , 480, 
    92 S. Ct. 2593
    , 2600 (1972) (discussing a
    revocation of parole); Copeland, 
    20 F.3d at 414
     (applying Morrissey to revocation
    of supervised release). Federal Rule of Criminal Procedure 32.1(b)(2)(C) also
    provides that a defendant is entitled to question an adverse witness in a revocation
    hearing unless the court determines that the interest of justice does not require the
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    witness to appear. The revocation hearing should be informal and flexible enough
    for the court “to consider evidence including letters, affidavits, and other material
    that would not be admissible in an adversary criminal trial.” Morrissey, 
    408 U.S. at 489
    , 
    92 S. Ct. at 2604
    .
    We review the admission of an absent witness’s hearsay statements at a
    revocation hearing under the balancing test articulated in Frazier, 
    26 F.3d at 112
    .
    This test requires the district court to consider the reliability of the hearsay
    statement and to balance the defendant’s right to confront adverse witnesses
    against the government’s asserted grounds for denying confrontation. 
    Id. at 114
    .
    Cespedes requests that we overturn Frazier in light of Crawford and Davis.
    Crawford created a standard to control the admissibility of testimonial hearsay
    statements during criminal trials. 
    541 U.S. at 53-54
    , 
    124 S. Ct. at 1365
    . The
    Supreme Court has not indicated that this standard extends to revocation hearings.
    Therefore, we are bound by Frazier, and the district court did not abuse its
    discretion in applying Frazier.
    Accordingly, we affirm the judgment of the district court.
    AFFIRMED.
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