United States v. Stevenson Harrison , 809 F.3d 420 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-1246
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Stevenson G. Harrison
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: September 25, 2015
Filed: December 23, 2015
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Before WOLLMAN, COLLOTON, and KELLY, Circuit Judges.
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WOLLMAN, Circuit Judge.
Stevenson G. Harrison appeals from the district court’s1 order revoking his
supervised release and imposing a sentence of 24 months’ imprisonment. Harrison
argues that the district court erred by admitting hearsay evidence at the revocation
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
hearing and by finding that the Virginia offense of assault on a law enforcement
officer constituted a crime of violence and thus a Grade A violation under the U.S.
Sentencing Guidelines Manual (U.S.S.G. or Guidelines). Having reviewed the
district court’s decision to revoke supervised release for abuse of discretion and its
determination of the facts underlying that decision for clear error, we affirm. See
United States v. Boyd, 792 F.3d 916, 919 (8th Cir. 2015).
After Harrison completed a federal sentence of imprisonment and began
serving a term of supervised release, the government filed a revocation petition,
alleging that Harrison had violated several conditions of his supervised release. At
the revocation hearing, Harrison admitted several violations but denied that he had
committed the alleged two felony offenses of assault on a law enforcement officer in
the Commonwealth of Virginia. To prove the violations, the government called as
a witness United States probation officer Bradley Cox, who testified to the facts set
forth in the government’s revocation petition, as well as the facts described in two
Virginia arrest warrants and in a Virginia police incident report. Harrison objected
to Cox’s testimony, arguing that it consisted solely of information provided to him
by others who were not present to testify and therefore violated Harrison’s right to
confront and cross-examine witnesses under Federal Rule of Criminal Procedure
32.1. The district court overruled Harrison’s objections.
Cox testified that he had spoken with Robert Hagy, Harrison’s supervising
federal probation officer in Virginia, who told Cox that on August 29, 2014,
Detective Robin McCoy, Detective R.T. Foster, and Sergeant Patricia Eller of the
Bristol, Virginia, police department attempted to arrest Harrison on an outstanding
felony warrant. When the officers tried to handcuff Harrison, he struggled, fought,
attempted to flee, and eventually broke free of the officers. As Harrison started to run
down a flight of stairs, Sergeant Eller and Detective McCoy grabbed onto Harrison’s
shirt in an effort to stop him. The officers held on while Harrison continued down the
stairs, but Harrison’s shirt ripped, and the two officers fell down the stairs, sustaining
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injuries that required medical attention. Detective Foster, who witnessed these
events, continued to pursue Harrison, who managed to escape. Later that day, four
arrest warrants were issued for Harrison in Bristol, Virginia. Two of the warrants
were related to Harrison’s altercation with Sergeant Eller and Detective McCoy and
charged the felony offense of malicious injury to a law enforcement officer in
violation of Virginia Code section 18.2-51.1. The warrants stated that Harrison had
maliciously caused bodily injury to Eller and McCoy with the intent to maim,
disfigure, disable, or kill. The other two warrants charged Harrison with resisting
arrest and obstruction of justice, both misdemeanor offenses, the details of which
were described in an incident report filed by the officers. Harrison was eventually
arrested in Florida on November 14, 2014.
After the district court admitted this evidence and found that Harrison had
committed the violations alleged in the revocation petition, the court heard a
statement from Harrison in which he made several admissions regarding the
altercation with the Virginia officers. Harrison stated, “Do I deny that I ran . . . ? I
do not deny that. . . . I ran out. And as I ran out, they grabbed my shirt.” Tr. of
Revocation Hr’g at 25. He acknowledged that the revocation petition and the
incident report stated that the officers “grabbed my shirt, and my shirt ripped and they
slipped and fell down the steps,” but he insisted, “I didn’t assault anyone. I ran down
some stairs and they slipped and they fell.” Id.
Harrison first argues that the district court abused its discretion by admitting
the hearsay statements, which had the effect of violating Harrison’s limited due-
process right to confront and cross-examine the absent witnesses. Because a
revocation hearing is not a criminal trial, the rules of evidence do not apply, and the
government bears a lesser burden of proof. See Boyd, 792 F.3d at 919; see also 18
U.S.C. § 3583(e)(3) (stating that a court may revoke supervised release if the court
finds a violation by a preponderance of the evidence). A defendant is entitled to “an
opportunity to . . . question any adverse witness unless the court determines that the
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interest of justice does not require the witness to appear.” Fed. R. Crim. P.
32.1(b)(2)(C). The district court “must balance the [the defendant’s] right to confront
a witness against the grounds asserted by the government for not requiring
confrontation.” United States v. Bell, 785 F.2d 640, 642 (8th Cir. 1986). The court
should consider the reasons offered by the government to explain “why confrontation
is undesirable or impractical” and the reliability of the evidence offered by the
government in place of live testimony. Id. at 643. If the government “demonstrates
that the burden of producing live testimony would be inordinate and offers in its place
hearsay evidence that is demonstrably reliable,” the defendant may not be entitled to
confrontation. Id. The district court did not conduct this balancing test on the record
at the revocation hearing, but we may perform the analysis on review because the
underlying facts have been sufficiently developed. See United States v. Martin, 382
F.3d 840, 845 (8th Cir. 2004).
The government did not expressly offer an explanation for not producing the
live testimony of the Virginia probation officer who spoke with Cox about Harrison’s
violations or the Virginia officers who prepared the incident report and swore to the
arrest warrants after their altercation with Harrison. It is apparent from the record,
however, that the live testimony of these witnesses would have been unreasonably
burdensome, impractical, and costly given the considerable distance they would have
been required to travel. See, e.g., Bell, 795 F.2d at 644 (noting that “considerable
expense” to secure the personal appearance of Kansas officers at a revocation hearing
in Arkansas weighed in favor of finding good cause not to require appearance, but
declining to reach the issue). The facts presented here are distinguishable from those
presented in United States v. Johnson, 710 F.3d 784, 786 (8th Cir. 2013), where the
government offered no explanation for the arresting officer’s unavailability, even
though the defendant’s revocation hearing was held in the same state in which the
absent officer’s duty station was located. See Bell, 785 F.2d at 644-45 (holding that
the government failed to show that presenting live testimony of officers at revocation
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hearing in Arkansas would have caused significant difficulty when those officers
were also located in Arkansas).
In addition, the government demonstrated that the Virginia arrest warrants and
incident report bore indicia of reliability sufficient to dispense with the officers’ live
testimony. Whether a police report is sufficiently reliable is a question we examine
“on a case-by-case basis, considering all the relevant circumstances, including any
admissions that may have been made by the [defendant].” Id. at 644. Unlike a typical
police report in which an officer transcribes facts offered by a third-party victim, the
incident report in this case was authored by the very officers who were themselves
the victims of and eyewitnesses to the assault. On this point, too, Johnson, which
involved police reports setting forth the facts as described by third-party witnesses
and victims, is distinguishable. 710 F.3d at 787. Detective Foster, who participated
in the attempted arrest and witnessed the altercation, authored his report on the day
the incident took place. Detective McCoy, one of the victims of the assault, authored
her detailed and comprehensive report only four days later. These two reports were
filed while the incident was fresh in the officers’ memories, and they set forth a
consistent account of the event. The two arrest warrants were issued by a magistrate
judge of the Commonwealth of Virginia, who found probable cause to believe that
Harrison had committed the felony offense of malicious injury to law enforcement
officers Eller and McCoy based upon the sworn statement of McCoy, herself a victim
of the assault.
Moreover, Harrison’s own statements at the revocation hearing sufficiently
corroborate the arrest warrants and incident report to make it clear that they were
reliable. See Bell, 785 F.2d at 644. As noted above, Harrison admitted to all of the
conduct set forth in these documents. Harrison does not dispute that he ran from
officers after they tried to arrest him; that the officers grabbed his shirt in an effort to
stop him from fleeing; or that he forcibly pulled away from them, tearing his shirt and
causing the officers to fall down a flight of stairs. Harrison asserted only that this
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conduct, and the consequences flowing therefrom, should not constitute malicious
assault of a law enforcement officer under Virginia law—a legal argument rather than
a factual dispute. See Holley v. Commonwealth, 604 S.E.2d 127, 130 (Va. Ct. App.
2004) (noting that intent “is a state of mind which may be proved by a person’s
conduct” and that “a person is presumed to intend the immediate, direct, and
necessary consequences of his voluntary act” (citations omitted)). Again, the fact of
these admissions distinguishes Johnson, where the defendant made no such
statements to corroborate the hearsay evidence.
Accordingly, because producing the live testimony of the Virginia officers at
the Missouri revocation hearing would have been unreasonably burdensome and
impractical, and because the evidence offered in place of that testimony was
sufficiently reliable, the district court did not abuse its discretion by admitting Cox’s
testimony and the Virginia arrest warrants and incident report.
Harrison next argues that the district court erred in determining that the
Virginia felony offense of “malicious bodily injury to law-enforcement officers,” Va.
Code Ann. § 18.2-51.1, is a “crime of violence” as defined by U.S.S.G. § 4B1.2(a)
and thus a Grade A violation of supervised release under U.S.S.G. § 7B1.1(a)(1).
Harrison contends that, under the categorical approach to statutory interpretation, see
Descamps v. United States, 133 S. Ct. 2276, 2285 (2013), the district court could
consider only the statutory elements of the Virginia offense and not the facts of
Harrison’s conduct in determining whether the offense was a crime of violence under
the Guidelines, see United States v. Lynch, 611 F.3d 932, 935 (8th Cir. 2010)
(examining statutory elements of state offense to determine whether alleged violation
of supervised release was crime of violence under § 4B1.2(a)). He further contends
that because the government offered no proof of the statutory elements of the Virginia
offense, the district court erred in concluding that it was a crime of violence and thus
a Grade A supervised-release violation under the Guidelines. We review de novo a
district court’s determination that an offense qualifies as a crime of violence under
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the Guidelines. See United States v. Tessmer, 659 F.3d 716, 717 (8th Cir. 2011) (per
curiam), cert. denied, 132 S. Ct. 1985 (2012).
Under § 7B1.1(a)(1) of the Guidelines, a Grade A violation of supervised
release is defined to include the commission of a “crime of violence” that is
punishable by more than one year in prison. A “crime of violence” is defined under
§ 4B1.2(a)(1) of the Guidelines as a felony that “has as an element the use, attempted
use, or threatened use of physical force against the person of another.” The two
Virginia warrants of arrest identify the specific statutory provision that Harrison
allegedly violated, Virginia Code section 18.2-51.1, and directly quote the pertinent
statutory language, alleging that Harrison “maliciously cause[d] bodily injury to
[Eller/McCoy] with intent to maim, disfigure, disable[,] or kill, and knowing or
having reason to know that such person was a law enforcement officer . . . engaged
in the performance of public duties.” Add. of Appellant 5-6. Thus, the district court
had before it the statutory elements of the Virginia offense, which “has as an element
the use, attempted use, or threatened use of physical force against the person of
another,” as required to qualify as a crime of violence and as a Grade A violation
under the Guidelines.2 Accordingly, the district court did not err in concluding that
the Virginia offense qualified as a crime of violence and a Grade A violation of
supervised release.
The judgment is affirmed.
KELLY, Circuit Judge, dissenting.
A district court may revoke a defendant’s term of supervised release if the
court, “pursuant to the Federal Rules of Criminal Procedure applicable to revocation
2
Harrison does not appear to dispute that, considering only the statutory
elements of the offense, a violation of Virginia code section 18.2-51.1 categorically
qualifies as a crime of violence.
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or probation or supervised release, finds by a preponderance of the evidence that the
defendant violated a condition of supervised release.” 18 U.S.C. § 3583(e)(3).
Though not all rules applicable to criminal trials apply strictly to revocation hearings,
the defendant is entitled 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). If the government asserts that confrontation is “undesirable or
impractical,” the district court must balance the defendant’s “right to confront a
witness against the grounds asserted by the government for not requiring
confrontation.” United States v. Bell, 785 F.2d 640, 642–43 (8th Cir. 1986). Only
if “the government demonstrates that the burden of producing live testimony would
be inordinate and offers in its place hearsay evidence that is demonstrably reliable”
has it made a sufficient showing of good cause to overcome the defendant’s right to
confront the witnesses against him. Id. at 643. If the government fails to make such
a showing, the defendant retains the right to confront the witnesses whose testimony
may result in the revocation of his supervised release. United States v. Johnson, 710
F.3d 784, 789 (8th Cir. 2013).
Here, the government failed to present any evidence to support a finding that
producing live testimony would have been unreasonably burdensome or impractical.
As the court notes, at the revocation hearing the government offered no explanation
for its failure to produce the live testimony of either the Virginia probation officer or
the Virginia police officers. There is no evidence of which, or how many, witnesses
would have been required at the hearing,3 exactly how far they would have had to
travel, the time required for their travel and testimony, the actual costs associated with
their travel, or any professional obligations that would have prevented their travel.
See Johnson, 710 F.3d at 789 (“Balancing the lack of an explanation for a witness’s
3
Given the nature of the hearsay evidence in this case, it seems entirely
plausible that one officer’s testimony could have corroborated the evidence and
provided sufficient indicia of reliability to justify its admission without the live
testimony of all four Virginia officers involved.
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unavailability against the reliability of the police report, we hold that the district court
erred” in allowing introduction of a police report without the testimony of the
arresting officer). Perhaps we can take judicial notice of the geographical distance
between Bristol, Virginia (assuming all relevant witnesses were located there—a fact
not in the record), and Springfield, Missouri. But, there is no evidence in the record
of how that distance created an inordinate burden on the government’s ability to call
live witnesses at the hearing. See Bell, 785 F.2d at 644 (declining to decide whether
the “considerable expense” of travel between Wichita, Kansas, and the Eastern
District of Arkansas would constitute good cause not to require live testimony of
arresting officers). With no such evidence presented, I respectfully disagree that the
facts were sufficiently developed at the district court such that we can properly
conduct the required balancing test—weighing Harrison’s “right to confront a witness
against the grounds asserted by the government for not requiring confrontation”—on
appeal.
The government’s failure to demonstrate that producing live testimony would
be unreasonably or inordinately burdensome is, in my view, fatal by itself to its
argument that there was good cause to overcome Harrison’s right to confrontation.
However, I also am not persuaded that the hearsay evidence admitted bore sufficient
indicia of reliability to justify the lack of live testimony. Probation officer Bradley
Cox’s testimony was entirely based on his review of the police report and arrest
warrant, as well as his conversation with Virginia federal probation officer Robert
Hagy. Hagy, in turn, apparently had received his information about the incident from
Virginia state probation officer Eddie Blevons. Though the police report does contain
first-person narratives of the incident, we have “previously questioned the reliability
of police reports as evidence of criminal conduct.” Johnson, 710 F.3d at 789 (citing
Bell, 785 F.2d at 644). “While police reports may be demonstrably reliable evidence
of the fact that an arrest was made, they are significantly less reliable evidence of
whether the allegations of criminal conduct they contain are true.” Id. (quoting Bell,
785 F.2d at 644). Here, the officers who wrote the reports were also victims of the
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alleged assault. Whether the reliability of a police report is bolstered when the
report’s author is also the alleged victim—or whether it is, instead, undermined—is
not a question that has a readily apparent answer.
I also disagree that Harrison’s own statements meaningfully corroborated the
police report and arrest warrant. Harrison admitted to several of the key facts
described in the reports, such as “[running] out of the probation board” and
continuing to run even after the officers had grabbed his shirt. His characterization
of the incident was that the officers slipped and fell while pursuing him. Harrison’s
statements at the revocation hearing, however, did not corroborate the whole of the
police report, which included that Harrison “struggled and fought” with the officers
and “continued to fight with [them], pulling away and swinging at [them].” The
report also included the legal conclusion that Harrison “assaulted” the police officers
as they were attempting to detain him. Thus, Harrison disagreed with both factual
assertions and legal conclusions contained in the police report, and it was the whole
of the police report upon which the district court relied when revoking Harrison’s
supervised release and imposing sentence.
The government failed to demonstrate that producing one or more live
witnesses at the revocation hearing was unreasonably burdensome or impractical, and
the evidence offered in its place lacked sufficient indicia of reliability to warrant
denying Harrison the right to confrontation. As a result, I would conclude that the
district court abused its discretion in admitting the disputed evidence. I would
therefore not reach the question of whether the district court properly conducted the
required categorical analysis to determine if the alleged offense was a crime of
violence under USSG § 4B1.2(a).
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