United States v. Lorenzo Mosley , 759 F.3d 664 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-3184
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LORENZO MOSLEY,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:07 CR 192 — James T. Moody, Judge.
ARGUED APRIL 17, 2014 — DECIDED JULY 16, 2014
Before MANION, SYKES, and TINDER, Circuit Judges.
MANION, Circuit Judge. Lorenzo Mosley was convicted in
2008 of distributing cocaine base (crack), in violation of 21
U.S.C. § 841(a)(1). Following his release from prison, and while
he was on supervised release, he was arrested by local police
for dealing cocaine, possessing cocaine and marijuana, and
driving with a suspended license. Mosley’s federal probation
officer petitioned the district court to find him in violation of
his conditions of supervised release and revoke his supervised
2 No. 13-2358
release. Mosley admitted possession of cocaine, but denied
dealing cocaine, a more serious “Grade A” violation.1 At the
revocation hearing, the district court heard hearsay statements
in a recorded interview of a woman claiming to have bought
cocaine from Mosley and from the testimony of the arresting
officer, who had interviewed the woman. Mosley was not
given the opportunity to confront or cross-examine the
woman. Ultimately, the district court found Mosley had
committed all the alleged violations, revoked Mosley’s
supervised release, and sentenced him to 21 months’ incarcera-
tion. Mosley appeals, arguing that it was error for the district
court to admit the hearsay statements without finding that
there was “good cause,” as required by Federal Rule of
Criminal Procedure 32.1(b)(2)(C) and the Fifth Amendment
Due Process Clause as interpreted in Morrissey v. Brewer, 408
U.S. 471 (1972). We conclude that the district court did err, but
that the error was harmless and so we affirm.
I. Background
On July 26, 2012, Detective Timothy Nosich of the Munster
Police Department, while driving in his squad car, observed a
car stopped in front of a house. He saw a woman get in the car
on the passenger side. As he drove by, Detective Nosich
noticed the woman nervously watching his squad car with “a
look of dread.” After passing by, he kept an eye on the car in
his rearview mirror and noticed that the woman quickly exited
the car. Based on his seven years of experience, Detective
1
Mosley also admitted driving while his license was suspended and was
found in violation for possessing marijuana, but neither of those violations
is relevant to this appeal.
No. 13-2358 3
Nosich believed he had just witnessed a drug deal. He fol-
lowed the car when it pulled away and as soon as he observed
a traffic violation—turning without signaling—he pulled the
car over. The driver, Lorenzo Mosley, had been operating with
a suspended license, so Detective Nosich arrested him and
began an inventory search of the car. He discovered a small
amount of marijuana hidden in a dashboard panel, a small
amount of crack cocaine in a clear baggie on the floor between
the passenger seat and the center console, and $300 to $400 in
cash on his person. No paraphernalia for using either crack or
marijuana were present in his car. Within an hour, Detective
Nosich and another officer made contact with Sheryl Simmons,
the woman who had gotten in and out of the car, and ques-
tioned her. At the time, she was carrying a grocery bag
containing pot scrubbing pads (which, according to Detective
Nosich, are commonly used as filters in crack pipes). After a
brief conversation, Simmons allowed the officers to enter her
home and she gave them four little yellow baggies that
contained what appeared to be crack cocaine, which had been
in her purse, and a crack pipe.
At the time Mosley was arrested, he was near the end of a
three-year term of supervised release following incarceration
for a conviction for distribution of cocaine base (crack cocaine),
in violation of 21 U.S.C. § 841(a)(1). The prior conviction
stemmed from Mosley selling little yellow plastic baggies of
crack cocaine. PSR at 4. When Mosley’s probation officer
learned of Mosley’s arrest (and resulting state criminal
charges) he filed a petition with the district court seeking
revocation of Mosley’s supervised release. The petition alleged
violations of the conditions of his supervised release for
4 No. 13-2358
distributing cocaine, possessing marijuana and cocaine, and
driving with a suspended license. The most serious alleged
violation was distributing cocaine, a Grade A violation.2 The
district court held a hearing where Mosley admitted possessing
cocaine and driving while his license was suspended. With
regard to distributing cocaine, Detective Nosich testified,
without objection, to the events recounted above.
However, at the revocation hearing, Detective Nosich also
testified to statements that Simmons had made to him during
their conversation and he played a video of her being inter-
viewed for the judge—both over Mosley’s objections. Detective
Nosich, and Simmons via the recorded interview, recounted
the following: Simmons had initially said that she was paying
Mosley for rides he had given her. But later in the conversation
she admitted to the officers that she had called Mosley twenty
to thirty minutes before he arrived to arrange a purchase of
crack cocaine. When Mosley arrived and she briefly got in the
car with him, she purchased five little yellow baggies of
cocaine for $10 each plus a $5 delivery fee, totaling $55.
Simmons also stated that she had already smoked one of the
little baggies, but she took the officers into her home and gave
them the other four baggies and her crack pipe. Later that day,
Detective Nosich interviewed Simmons at the station (which
was recorded and played at Mosley’s hearing). There,
Simmons repeated the same story but also gave more back-
2
Violations are graded either A, B, or C based on the seriousness of the
conduct and each grade differs regarding the necessity, or length, of
revocation. See U.S.S.G. §§ 7B1.1–7B1.4.
No. 13-2358 5
ground about her having purchased crack cocaine from Mosley
about thirty times over the past five years.
Mosley objected strenuously to all of Simmons’s out-of-
court statements whether offered via the video or Detective
Nosich’s testimony, arguing that they were hearsay and that
denying him the right to cross-examine Simmons violated his
constitutional right to confront his accuser. The district court
summarily overruled these objections and found that the
government had met its burden of proving all Mosley’s
violations by a preponderance of the evidence. Because dealing
cocaine was a Grade A violation, Mosley’s guideline range was
15–21 months’ incarceration and the district court sentenced
him to 21 months’ incarceration. Had that drug violation not
been found, his guideline range would have been 6–12 months’
incarceration. See U.S.S.G. § 7B1.4 (Mosley’s next highest
violation (which he admitted) was Grade B and his criminal
history was Category II). Mosley appeals.
II. Discussion
While decisions to revoke supervised release are reviewed
for abuse of discretion, United States v. Dewayne, 702 F.3d 373,
375 (7th Cir. 2012), constitutional arguments are reviewed de
novo. United States v. Robinson, 14 F.3d 1200, 1202 (7th Cir.
1994).
A. Constitutional Analysis
We have held that the Sixth Amendment, including the
Supreme Court’s holding in Crawford v. Washington, 541 U.S. 36(2004) (that admitting testimonial hearsay without the opportu-
nity to confront the declarant violated the Confrontation
6 No. 13-2358
Clause), does not apply to supervised release revocation
hearings. United States v. Kelley, 446 F.3d 688, 690–92 (7th Cir.
2006). The Due Process Clause of the Fifth Amendment still
secures “the right to confront and cross-examine adverse
witnesses [in revocation proceedings] (unless the hearing
officer specifically finds good cause for not allowing confronta-
tion).” Morrissey, 408 U.S. at 489. But considering the parenthet-
ical clause, “we have interpreted Morrissey … to permit the
admission of reliable hearsay at revocation hearings without a
specific showing of good cause.” Kelley, 446 F.3d at 692 (citing
United States v. Pratt, 52 F.3d 671, 675 (7th Cir. 1995)). Hearsay
is reliable if it “‘bears substantial guarantees of trust-worthi-
ness.’” Id. (quoting Egerstaffer v. Israel, 726 F.2d 1231, 1234 (7th
Cir. 1984)). And “essentially [we] treat[] a finding of ‘substan-
tial trustworthiness’ as the equivalent of a good cause finding
for the admission of hearsay.” Id. Even if the district court
neglects to find either good cause or reliability, there is no error
so long as the “record … is sufficiently clear … that the …
hearsay was substantially trustworthy so as to establish good
cause for not producing [the declarants] as live witnesses.” Id.
at 693. If the record so establishes, the admission of hearsay
will “not undermine the fundamental fairness of [a defen-
dant’s] revocation hearing and [will] not violate his right to
due process.” Id. Accordingly, if we can conclude from the
record on appeal that hearsay evidence was reliable, then
admission of Simmons’s hearsay statements did not violate
due process.
Simmons’s hearsay statements were reliable. The officer
observed what Simmons later admitted was a drug transaction
and Simmons produced the little yellow baggies of crack
No. 13-2358 7
cocaine that she claimed to have purchased from Mosley. And
her story that selling crack in little yellow baggies was his
signature was corroborated by his prior criminal conviction
summarized in his PSR. In addition to that corroboration,
Simmons’s statements were against her penal interest. And
while her availability would make her statements inadmissible
in a typical criminal hearing, see Fed. R. Evid. 804(a) and (b)(3),
the rules of evidence do not apply in supervised release
hearings and the fact that her statement was against her penal
interest is yet another indication of substantial trustworthiness.
Accordingly, the district court’s admission of Simmons’s
statements did not violate Mosley’s rights to due process.
B. Rule Analysis
In addition to the protections provided by the Due Process
Clause of the Fifth Amendment, Rule 32.1(b)(2)(C) requires “a
district court in a revocation hearing explicitly to balance the
defendant’s constitutional interest in confrontation and
cross-examination against the government’s stated reasons for
denying them.” United States v. Jordan, 742 F.3d 276, 280 (7th
Cir. 2014).3 Unlike the constitutional analysis, “reliability
3
Rule 32.1 was largely a codification of Morrissey’s holding, and the
advisory committee for the 2002 amendments encouraged applying the rule
in accord with the circuits who employ a balancing-test interpretation of
Morrissey. See Kelley, 446 F.3d at 692 n.4 (cataloguing circuits who require
an explicit finding of good cause or a balancing test); United States v.
LeBlanc, 175 F.3d 511, 515 (7th Cir. 1999) (Rule 32.1 “was largely a codifica-
tion of Morrissey, 408 U.S. 471, which first held that due process required …
a revocation hearing” and a limited confrontation right); Fed. R. Crim. P.
32.1 advisory committee’s 2002 note (“the court should apply a balancing
(continued...)
8 No. 13-2358
cannot be the beginning and end of the ‘interest of justice’
analysis under Rule 32.1(b)(2)(C), and we do not mean to imply
that finding the hearsay reliable would alone suffice to support
its admission under the rule.” Id. at 280 (emphasis added).
Rather, the defendant’s interest must be balanced against the
government’s reasons. Id. While reliability of hearsay weakens
the defendant’s interest in confrontation, a weak interest is
enough to tip the balance toward exclusion if the government
offers no reasons for not producing the witness. Accordingly,
a showing of reliability in the record on appeal does not mean
there was no error, nor does it make the violation of Rule 32.1
harmless. Rather, we must consider whether the hearsay
would have been admitted had the district court correctly
considered the competing interests. And while the reliability of
the hearsay goes a long way toward answering that question,
we must also look at the government’s reasons for not afford-
ing confrontation.
In this case, the district court failed to balance Mosley’s
constitutional interests in confrontation and cross-examination
with the government’s reasons for not producing the witness.
This was error under Rule 32.1. Further, we cannot conclude
that the district court would have admitted the hearsay if it
had properly balanced the interests because, even if the
hearsay was reliable (which we think it was), the government
has offered no reason whatsoever for failing to produce
Simmons. Accordingly, there is nothing in the record to
balance against Mosley’s interest.
(...continued)
test at the hearing itself” (citing Morrissey, 408 U.S. at 489)).
No. 13-2358 9
Nonetheless, even where a proper balancing of the interests
would weigh in favor of excluding hearsay, its erroneous
admission may still be harmless for the alternate reason that
the violation of supervised release would have been found
even without the hearsay evidence. See, e.g., United States v.
Johnson, 927 F.2d 999, 1003–04 (7th Cir. 1991) (holding that
admission of hearsay was harmless where strong circumstan-
tial evidence established the same facts). That is the case here
because, considering only the non-hearsay evidence submitted
to the district court, the result would have been the same. “To
revoke a defendant's supervised release under 18 U.S.C.
§ 3583(e)(3), the district court must find by a preponderance of
the evidence that the defendant violated the terms of his
supervised release.” United States v. Goad, 44 F.3d 580, 585 (7th
Cir. 1995). Detective Nosich observed Simmons glance at him
with a nervous look of dread while getting in Mosley’s car only
to get back out right away. Immediately thereafter, Detective
Nosich caught Mosley with crack cocaine, but no parapherna-
lia for its use, and $300 to $400 in cash. Detective Nosich then
quickly caught up with Simmons and found that she was
carrying material in a grocery bag that his experience told him
was used for filters in a crack pipe. His experience proved right
when Simmons surrendered four little yellow baggies of what
appeared to be crack cocaine and a crack pipe. Detective
Nosich testified to these facts and his opinion based on years
of experience that what he had witnessed was a drug deal. But
the district court did not have to rely on that alone. In the PSR
from Mosley’s previous criminal conviction, we see that he
used little yellow baggies to hold the crack cocaine that he
sold—exactly what Simmons surrendered to police from her
10 No. 13-2358
purse only about an hour after getting in and out of the car
with him. See Fed. R. Evid. 404(b)(2) (evidence of other crimes
admissible to prove identity, i.e., modus operandi). All of this
together is strong circumstantial evidence that Mosley dealt
crack cocaine to Simmons without any need for recourse to
Simmons’s reliable statements. Simmons’s statements just
confirmed what the circumstantial evidence had independently
made clear. Accordingly, disregarding the hearsay, the
government still would have met its burden of proving by a
preponderance of the evidence that Mosley distributed cocaine
in violation of his conditions of supervised release.4 Because
the result would have been the same without admitting the
hearsay, the error was harmless.5
III. Conclusion
The district court erred by failing to balance Mosley’s
constitutional interest in confronting and cross-examining
4
In Jordan, we were unable to determine whether the hearsay in a police
report would have been admitted had the district court balanced the
interests. 742 F.3d at 281–82. Likewise here, we cannot conclude that the
hearsay would have been admitted had the district court balanced the
competing interests. Remand was necessary in Jordan because the govern-
ment relied almost exclusively on the hearsay in the police report. Id. at 278.
However, here, the government offered more evidence of Mosley’s
violations than just Simmons’s statements, so we find the error harmless
based on the strength of the non-hearsay evidence.
5
Because the district court only made a rule error, not a constitutional
error, the normal harmless error rule of Fed. R. Crim. P. 52(a) applies, not
the higher standard of Chapman v. California, 386 U.S. 18 (1967). See United
States v. Talbott, 78 F.3d 1183, 1188 (7th Cir. 1996), abrogated on other
grounds by Dixon v. United States, 548 U.S. 1 (2006).
No. 13-2358 11
Simmons with the government’s reasons for not producing
her. But that error was harmless because the result would have
been the same even without any of Simmons’s out-of-court
statements. Accordingly, we AFFIRM the judgment of the
district court.