Ash, Wilbur v. Reilly, Edward F. , 431 F.3d 826 ( 2005 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 18, 2005 Decided December 16, 2005
No. 05-5092
WILBUR ASH,
APPELLEE
v.
EDWARD F. REILLY, JR., IN HIS OFFICIAL CAPACITY AS
COMMISSIONER,
UNITED STATES PAROLE COMMISSION, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 03cv02007)
Mary B. McCord, Assistant U.S. Attorney, argued the cause
for appellants. With her on the briefs were Kenneth L.
Wainstein, U.S. Attorney, and John R. Fisher, Assistant U.S.
Attorney at the time the briefs were filed.
Catharine F. Easterly argued the cause for appellee. With
her on the brief was Timothy P. O’Toole. Olinda Moyd entered
an appearance.
2
Before: HENDERSON and RANDOLPH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.*
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: On a petition for a writ of
habeas corpus, a magistrate judge determined that the United
States Parole Commission improperly revoked Wilbur Ash’s
parole. The principal question in this appeal, brought by
Members of the Parole Commission, is whether the introduction
of hearsay evidence at the parole revocation hearing deprived
Ash of his right to confront adverse witnesses.
Ash pled guilty in the D.C. Superior Court to possessing
cocaine with the intention of selling it. After he served part of
his four-to-twelve year sentence, the Commission released him
on parole. One of his parole conditions was that he not violate
any law. In April 2002, about a year after his release, police in
Baltimore, Maryland, arrested Ash for attacking Jerome Simms
and Anthony Gardner with a dangerous weapon – a box cutter.
At his trial on charges stemming from the attacks, a Baltimore
judge entered a judgment of acquittal at the close of the
prosecution’s case. (Our record does not disclose the reasons
for the judgment of acquittal.) The Parole Commission then had
Ash arrested on a parole violator warrant and held pending a
parole revocation hearing. The Commission determined it had
probable cause to charge Ash with assault, aggravated assault,
and assault with a deadly weapon. After conducting a parole
revocation hearing, the Commission found by a preponderance
of the evidence that Ash violated the conditions of his release.
The Commission therefore revoked his parole.
*
Senior Circuit Judge Edwards was in regular active service
at the time of oral argument.
3
Ash petitioned the district court for a writ of habeas corpus,
claiming that the Commission’s action violated the Constitution
because the evidence against him consisted entirely of unreliable
hearsay and because the Commission violated his right to
confront adverse witnesses. The parties consented to having a
magistrate judge decide the matter. The magistrate judge agreed
with Ash’s arguments, granted the writ, and ordered a new
parole revocation hearing. Ash v. Reilly, 354 F. Supp. 2d 1, 9-10
(D.D.C. 2004) (Ash I), recons. denied, 354 F. Supp. 2d 11, 12
(D.D.C. 2005) (Ash II).
Before his parole revocation hearing, Ash received a form
notifying him that the Commission intended to hear from two
witnesses: a police officer who arrested Ash and the Court
Supervision Officer assigned to Ash while he was on parole.
Under the heading “Adverse Witnesses Requested by Subject,”
Ash’s counsel filled in “Jerome Simms” and gave Simms’s
address in Baltimore. The Commission subpoenaed Simms, but
he did not appear.
At the hearing, Ash’s Court Supervision Officer testified
but gave no evidence relating to the attacks. The other witness,
police officer Ronald Shepke, testified as follows. While on
patrol in a squad car, he received a call about a “cutting” nearby.
He and the officer with him quickly arrived at the scene. They
saw people “pointing” at an individual who was running down
a dead-end street; the people were “screaming that . . . was
him.” Shepke and his colleague gave chase and cornered the
suspect, who turned out to be Ash. Shepke then saw Ash throw
an object over a fence. After arresting Ash, the officers
recovered the object – a razor box cutter with a white handle.
The officers took Ash back to the crime scene. Four or five
people there identified him as the assailant and identified the
box cutter as the weapon. Ash’s attorney admitted that Ash
carried a box cutter in connection with his job at a food store.
4
Simms sustained severe slash wounds to his face, neck, and
back. He was taken to the hospital immediately after the attack.
Shepke never interviewed Simms. Ash’s counsel made much of
the fact that the hospital report described Simms’s injuries as
“slash wounds with a machete . . ..” The other victim, Anthony
Gardner, had a single cut across his hand. Gardner gave Shepke
a statement at the hospital identifying Ash as the attacker.
Shepke’s testimony was consistent with his written report,
on which the Commission also relied. The report stated that
Simms and Ash were visiting Earline Gardner, along with other
family members. Simms had children with Ms. Gardner, but
Ash was her current love interest. The report stated further that
Ash and Simms “had a disagreement which turned into a
physical altercation,” that the attack occurred during this
altercation, and that Anthony Gardner incurred his injury when
he tried to intervene.
Ash did not testify at the hearing, though he denied the
Commission’s charges. No other witnesses appeared. In light
of his request and the Commission’s subpoena, Ash’s counsel
insisted that Simms should appear before the Commission
decided whether to revoke Ash’s parole. Ash’s counsel also
argued that other adverse witnesses should be called. The
hearing officer believed that because Simms did not testify and
because the Commission did not rely on any information from
him, Simms was not truly “adverse” to Ash.1
In reviewing Ash’s petition for a writ of habeas corpus, the
magistrate judge thought the Commission had revoked Ash’s
parole “based solely on hearsay testimony contained in a police
1
The Commission’s regulations define “adverse witnesses” as
“witnesses who have given information upon which revocation may
be based.” 28 C.F.R. § 2.101(b).
5
report.” Ash I, 354 F. Supp. 2d at 5. This is not correct. Some
of the evidence – the police report and the hospital report, for
instance – was hearsay, but not all the evidence was. Officer
Shepke’s testimony that he saw Ash running from the scene of
the crime and saw him throw an object over the fence rested on
Shepke’s direct observations. Also, Shepke’s testimony
describing the box cutter – a white handle, four to five inches
long, holding a standard razor blade – rested on personal
knowledge; Shepke and his fellow officer recovered the box
cutter after seeing Ash throw something over the fence. And
Shepke’s testimony that “there were several people out in front
of the address we were responding to, pointing [at Ash] . . . and
screaming that that was him,” might have come within the
“excited utterance” exception to the hearsay rule. See FED. R.
EVID. 803(2); see also United States v. Alexander, 331 F.3d 116,
121-24 (D.C. Cir. 2003).
Having misapprehended the nature of the evidence against
Ash, the magistrate judge answered a question the case did not
present – namely, whether a parolee’s rights under the Due
Process Clause are violated when the decision to revoke parole
rests entirely on hearsay. Ash I, 354 F. Supp. 2d at 10. It is not
clear whether that was the issue in Crawford v. Jackson, 323
F.3d 123 (D.C. Cir. 2003), a decision the magistrate judge
declined to follow in light of Crawford v. Washington, 541 U.S.
36 (2004). While several statements in Jackson indicated that
the parole board relied only on a police report containing
hearsay, 323 F.3d at 127-28, the court pointed to other non-
hearsay evidence – admissions of the parolee at the revocation
hearing – that corroborated portions of the police report, id. at
130. The court recognized, as have other circuits, that parole
revocation decisions may rely on hearsay. See id. at 128-29
(citing cases).
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Parole revocation proceedings are not criminal trials.
Morrissey v. Brewer, 408 U.S. 471, 480 (1972). “[F]ormal
procedures and rules of evidence are not employed.” Gagnon v.
Scarpelli, 411 U.S. 778, 789 (1973); id. at 782. While the Due
Process Clause imposes limits on the procedures used to revoke
parole and entitles parolees to certain rights, see, e.g., Black v.
Romano, 471 U.S. 606, 610 (1985); Moody v. Daggett, 429 U.S.
78, 85-86 (1976), the limitations and the rights are not
coextensive with those applicable in criminal trials, see, e.g.,
Scarpelli, 411 U.S. at 787-90; Maddox v. Elzie, 238 F.3d 437,
445 (D.C. Cir. 2001).
For these reasons, the Supreme Court’s decision in
Crawford v. Washington, handed down after Jackson, did not
deprive Jackson of its precedential effect, as the magistrate
judge supposed. Crawford v. Washington was a criminal case
decided under the Sixth Amendment. The Court held that
admission of a testimonial statement made by a witness absent
from trial violated the defendant’s Sixth Amendment right to
confront the witnesses against him, unless the witness is
unavailable and “the defendant . . . had a prior opportunity to
cross-examine [the witness].” 541 U.S. at 59. The other circuits
that have considered whether Crawford v. Washington applies
to parole revocation proceedings have concluded that it does not.
E.g., United States v. Hall, 419 F.3d 980, 985-86 (9th Cir.
2005); United States v. Kirby, 418 F.3d 621, 627-28 (6th Cir.
2005); United States v. Martin, 382 F.3d 840, 844 n.4 (8th Cir.
2004).
Even in criminal trials, Crawford v. Washington requires
the exclusion only of “testimonial” hearsay, 541 U.S. at 68, not,
as the magistrate judge seemed to think, the exclusion of all
hearsay, see Ash I, 354 F. Supp. 2d at 7. By “testimonial” the
Court apparently meant “ex parte in-court testimony or its
functional equivalent . . . such as affidavits, custodial
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examinations, prior testimony that the defendant was unable to
cross-examine, or similar pretrial statements that declarants
would reasonably expect to be used prosecutorially,” 541 U.S.
at 51 (internal quotation marks omitted), and “police
interrogations,” id. at 68.2
We therefore believe the magistrate judge should have
followed Crawford v. Jackson, as must we. See LaShawn A. v.
Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc). In
Jackson, the parolee claimed, among other things, that the parole
board violated his due process rights by revoking his parole on
the basis of a “police investigative report containing hearsay”
without “allow[ing] him to cross-examine the author of the
police investigative report.” 323 F.3d at 125. The Jackson court
concluded that “given the indicia of reliability of the police
investigative report, the Board’s reliance on the hearsay
evidence did not render its revocation decision so lacking in
support that it was fundamentally unfair.” Id. at 131. The court
added that the parolee “failed to show any prejudice from his
inability to cross-examine the police officer who wrote the
report.” Id.Under Jackson, the question is whether the decision to
revoke parole is “either totally lacking in evidentiary support or
. . . so irrational as to be fundamentally unfair.” Jackson, 323
F.3d at 129 (quoting Duckett v. Quick, 282 F.3d 844, 847 (D.C.
Cir. 2002)) (internal quotation marks omitted). The court must
2
The Court has granted certiorari in two cases to determine
the meaning of “testimonial.” See Hammon v. State, 829 N.E.2d 444(Ind. 2005) (considering application of the Confrontation Clause to
statements made to officers responding to a crime scene), cert.
granted, 126 S. Ct. 552 (2005); State v. Davis, 111 P.3d 844 (Wash.
2005) (considering application of the Confrontation Clause to excited
utterances made in 911 calls), cert. granted, 126 S. Ct. 547 (2005).
8
gauge for itself the “reliability of the particular hearsay
evidence” on which the Commission based its decision. Id.With regard to adverse witnesses, the absence of an adverse
witness does not violate a parolee’s due process rights if “the
hearing officer specifically finds good cause for not allowing
confrontation.” Morrissey, 408 U.S. at 489. Even if there is no
good cause, a parolee is not entitled to a new parole hearing
unless he shows “prejudice from his inability to cross-examine”
the missing witness. See Jackson, 323 F.3d at 131; see also
Maddox, 238 F.3d at 444. Whether a witness’s absence is
prejudicial depends on the quality and quantity of nonhearsay
and reliable hearsay evidence supporting the decision to revoke
parole. See Maddox, 238 F.3d at 244-45.
The magistrate judge thought the Supreme Court’s opinion
in Crawford v. Washington undermined Jackson because the
Court wrote that judicial determinations of the reliability of
hearsay evidence are “‘unpredictable’” and because the concept
of reliability is “‘amorphous.’” Ash I, 354 F. Supp. at 9 (quoting
Crawford v. Washington, 541 U.S. at 63). This overstates the
reach of the Court’s opinion. Whatever may be the case when
“testimonial” hearsay is introduced in a criminal trial, the
concept of reliability cannot be so readily dismissed when
nontestimonial hearsay is offered, especially in noncriminal
proceedings. Time-honored exceptions to the hearsay rule, such
as those found in FED. R. EVID. 803, rest on the idea that “under
appropriate circumstances, a hearsay statement may possess
circumstantial guarantees of trustworthiness sufficient to justify
nonproduction of the declarant in person at the trial even though
he may be available.” FED. R. EVID. 803 advisory committee’s
note; see also 5 JOHN HENRY WIGMORE, EVIDENCE § 1422, at
253 (Chadbourn rev. 1974) (“[C]ircumstantial probability of
trustworthiness is found in a variety of circumstances sanctioned
by judicial practice; and it is usually from one of these salient
circumstances that the [hearsay] exception takes its name.”).
9
Ash’s habeas petition claimed not only that he was entitled
to confront Simms and other adverse witnesses, but also that the
evidence adduced at the hearing was insufficient to support the
Commission’s action. Because the magistrate judge should
have, but did not, follow Jackson in evaluating these claims, we
will remand for further proceedings consistent with this opinion.
Vacated and remanded.