from the United States District Court for the Western
District of Oklahoma (D.C. No. 5:06-cr-00088-F-1)
Edward Wackenheim, Research and Writing Attorney (Teresa K.
Brown, Assistant Federal Public Defender, with him on the
briefs), Office of the Federal Public Defender, Oklahoma
City, Oklahoma, for Defendant-Appellant.
Timothy W. Ogilvie, Assistant U.S. Attorney (Mark A. Yancey,
Acting U.S. Attorney, with him on the brief), Office of the
U.S. Attorney, Oklahoma City, Oklahoma, for
GORSUCH, BALDOCK, and PHILLIPS, Circuit Judges.
GORSUCH, Circuit Judge.
began as a fight at a strip club finds its way here as a
clash over hearsay. Three years ago, Tremale Henry finished a
prison sentence for violating federal drug laws and began a
five year term of supervised release. As a condition of his
release Mr. Henry had to refrain from committing further
crimes. But last summer he was arrested for assaulting
another man outside Night Trips, an Oklahoma City night club.
And at the probation revocation hearing that followed the
district court found Mr. Henry responsible for two separate
assaults with a dangerous weapon. In the first assault, the
court found that Mr. Henry swung a knife at his victim but
missed. In the second assault an hour later, the court found
that Mr. Henry struck again, this time successfully stabbing
his victim. The court found each assault independently
sufficient to warrant revocation of Mr. Henry's
supervised release. It then concluded that the two assaults,
along with a third violation for lying to his probation
officer, collectively warranted a new prison term of 24
months followed by six further years of supervised release.
On appeal Mr. Henry argues that the district court
impermissibly relied on hearsay in reaching its judgment, but
with this we can only partially agree.
the first assault first. In finding that Mr. Henry committed
this assault the district court relied largely on statements
from Candace Ramsey. Ms. Ramsey testified at the revocation
hearing that she saw Mr. Henry lunge at his victim with a
small object, though she said she couldn't see exactly
what the object was. Meanwhile, a probation officer took the
stand to relate that, before the hearing, Ms. Ramsey told him
she had, in fact, seen Mr. Henry use a knife. The district
court apparently credited this hearsay. The court also said
it relied on a surveillance video. To be sure, the video
"was of poor quality" and it is not possible to
discern a knife. But the video does show Mr. Henry making a
rapid movement toward the victim, followed by witnesses
fleeing the area, and the court found this reaction
consistent with a violent assault involving a dangerous
weapon. In reaching its judgment, the district court
considered as well testimony from the defendant's own
witnesses who suggested that the victim "deserved what
happened to him that night" and that there was "ill
will" between the two men. Taken together, the court
found, these facts established Mr. Henry indeed committed the
first assault with a dangerous weapon.
no problem with the district court's findings here. Mr.
Henry doesn't object to the use of the video, to Ms.
Ramsey's live testimony, or to the district judge acting
as fact-finder. His only qualm is with the court's
apparent reliance on Ms. Ramsey's hearsay statement,
relayed by the probation officer, that she had seen a knife.
But the fact is that "the usual rules of evidence need
not be applied" in revocation hearings. See
Fed. R. Crim. P. 32.1 advisory committee's note to 1979
amendment. Indeed, the Supreme Court and this one have long
allowed hearsay in supervised release proceedings: sometimes
the government will use hearsay in arguing for revocation;
sometimes the defendant will use hearsay in arguing against
revocation (as Mr. Henry himself did in this case). In
neither event are confrontation or due process rights
necessarily denied, for under settled precedent the
Confrontation Clause of the Sixth Amendment does not apply to
supervised release revocation proceedings and the due process
guarantees associated with these proceedings are
"minimal." See Morrissey v. Brewer, 408
U.S. 471, 485, 489 (1972) (describing due process guarantees
at revocation hearings as "minimal" and explaining
that "the process should be flexible enough to consider
evidence . . . that would not be admissible in an adversary
criminal trial"); see also Fed. R. Evid.
1101(d)(3) (federal rules of evidence do not apply in
proceedings "granting or revoking probation or
supervised release"); Pa. Bd. of Prob. & Parole
v. Scott, 524 U.S. 357, 366 (1998); Curtis v.
Chester, 626 F.3d 540, 544 (10th Cir. 2010) (the Sixth
Amendment Confrontation Clause does not apply to supervised
face of all this, Mr. Henry attempts a reply along these
lines. He notes that Fed. R. Crim. P. 32.1(b)(2)(C) grants
defendants in revocation hearings the opportunity to
"question any adverse witness, unless the judge
determines that the interest of justice does not require the
witness to appear." Mr. Henry observes, too, that in
United States v. Jones, this court recently held the
proper application of Rule 32.1(b)(2)(C) generally requires a
district court to deploy a "balancing test" aimed
at weighing the defendant's interests in confronting a
witness against the government's interests in foregoing
the witness's appearance. 818 F.3d 1091, 1097-98 (10th
Cir. 2016). And, Mr. Henry contends, the district court in
this case failed to apply Jones's balancing test
to Ms. Ramsey's hearsay statement, meaning its decision
must be reversed.
reply, however, overstates the reach of the rule. For neither
Rule 32.1(b)(2)(C) nor the Jones decision
interpreting it applies to the admission of hearsay
statements from witnesses who are available for
cross-examination. By its express terms Rule 32.1(b)(2)(C)
speaks only to whether an adverse witness is "require[d]
. . . to appear" so that defendants might have the
"opportunity to . . . question" her. In
Jones, likewise, this court "confine[d] our
analysis to [the defendant's] right to confront [the
witness in question], " addressing only "Mr.
Jones's strong interest in confrontation and
cross-examination." Jones, 818 F.3d at
1097, 1102 (emphasis added). And, as everyone acknowledges,
Ms. Ramsey did appear at the hearing and Mr. Henry did have
the chance to question her about her hearsay statement and
its apparent inconsistency with her live testimony. Indeed,
it would be pretty anomalous if the qualified confrontation
interest recognized by Rule 32.1 and our precedent conveyed
rights in revocation hearings more powerful than those
conveyed by the Sixth Amendment Confrontation Clause in
criminal trials, for even in that setting the express terms
of the Clause itself do nothing to "bar admission of a
[hearsay] statement so long as the declarant is present at
trial to defend or explain it." Crawford v.
Washington, 541 U.S. 36, 59 n.9 (2004).
is Mr. Henry has no valid complaint under Rule 32.1(b)(2)(C)
or Jones with respect to the first assault. He was
free to confront Ms. Ramsey and, in this way, he was afforded
everything the rule and our precedent interpreting it might
provide. Of course, in holding Rule 32.1(b)(2)(C) and
Jones do not apply to hearsay from witnesses present
for confrontation, we do not suggest this sort of hearsay is
always admissible. As ever, a district court's receipt of
evidence remains subject to review for abuse of discretion.
See United States v. Handley, 678 F.3d 1185, 1188
(10th Cir. 2012). And revocation hearings must of course
always satisfy "minimal" due process demands.
Morrissey, 408 U.S. at 485. But no one suggests Ms.
Ramsey's statement to the probation officer falls afoul
of these standards.
comes to the second assault, the equation changes. In finding
the second assault occurred the district court expressly
relied on out-of-court statements the victim and his
girlfriend made to a police detective, who in turn relayed
them to Mr. Henry's probation officer, who in turn
presented them at the revocation hearing. Neither the victim,
nor his girlfriend, nor even the detective was subject to
cross-examination. Here, then, Rule 32.1(b)(2)(C) and
Jones do apply, and here we must find error for the
district court failed to conduct the balancing test
Jones prescribes. To be clear, we can hardly fault
the district court for this oversight: it decided Mr.
Henry's case before this court issued Jones and
lacked the benefit of its guidance. But the fact remains all
the same that Mr. Henry is entitled to the advantages
afforded by intervening legal developments like
Jones. See Griffith v. Kentucky, 479 U.S.
314, 322-23 (1987).
government doesn't dispute any of this. Instead, it tries
to work around the problem by pointing to the district
court's statement that the admission of hearsay from
absent witnesses in this case was designed to serve the
"interest of justice, " a phrase used in the text
of Rule 32.1(b)(2)(C) itself. And invoking this phrase, the
government seems to suggest, should suffice in lieu of
engaging with the Jones balancing test.
cannot quite agree. The government can't (and
doesn't) dispute that Jones offers controlling
guidance concerning how district courts should go about
determining if the "interest of justice" permits
the introduction of hearsay from absent witnesses. Neither
does (or can) the government dispute that Jones
generally demands the application of a balancing test, or
that the advisory note to Rule 32.1 expressly endorses the
same test. And perhaps most importantly, the government
doesn't (and can't) dispute that Jones
itself rejected the very same argument it attempts here,
expressly rebuffing the government's suggestion it was
enough for the district court to have cited the
"interest of justice" language of Rule ...