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United States v. Wright

United States District Court, D. Kansas

May 23, 2019

SHANNON J. WRIGHT (01), Defendant.



         On April 15, 2019, the court conducted a hearing on defendant Shannon J. Wright's Motion to Dismiss Petition to Revoke Supervised Release (Doc. 73). In short, Mr. Wright's motion contends the government violated his right to counsel and his right to be present at sentencing when it modified Mr. Wright's supervised release term by requiring him to reside at a residential reentry center for up to 120 days.

         At the hearing, Mr. Wright testified that-although he signed a waiver of his right to a hearing and assistance of counsel-he did not read the waiver before he signed it. And, Mr. Wright testified that he signed the waiver at his case manager Cliff Beckmann's request. In response, the government moved to continue the evidentiary hearing to secure Mr. Beckmann's testimony. Mr. Beckmann's testimony, the government argued, could be secured by telephone because he works at a Bureau of Prisons facility in Greenville, Illinois, where Mr. Wright then resided. Mr. Wright objected, contending that Mr. Beckmann's appearance by telephone would violate his constitutional rights. Instead, Mr. Wright asserted, Mr. Beckmann must testify in person in the courtroom.

         The court granted the government's motion to continue the evidentiary hearing and directed the parties to brief the question whether Mr. Beckmann must testify in person. On April 18, 2019, the government filed a “Motion for Order for Authorized Testimony by Telephone of Government Witness.” Doc. 83. And Mr. Wright filed a Response. Doc. 84.

         After reviewing the parties' filings, the court now grants the government's motion. But it also directs the government to confer with Mr. Beckmann and secure, if reasonably feasible, Mr. Beckmann's testimony by videoconference. The court explains its reasoning, below.

         I. Analysis

         The court addresses the government's motion in three parts. First, the court considers the constitutional rights at issue when a party introduces hearsay evidence at a revocation hearing. Second, the court addresses the balancing test adopted by the Circuit; it controls the analysis whether the government may introduce hearsay evidence at a revocation hearing in lieu of an adverse witness's personal presence. Third, the court applies the balancing test to the present circumstances, concluding that it favors granting the government's motion.

         A. Although Mr. Beckmann's proposed testimony may be hearsay, its use at a revocation hearing implicates the Fifth Amendment Due Process Clause, not the Sixth Amendment Confrontation Clause

         Mr. Wright first argues that the Tenth Circuit classifies telephonic testimony as hearsay under Federal Rule of Evidence 801. Doc. 84 at 2 (citing United States v. Sunrhodes, 831 F.2d 1537, 1544 n.1 (10th Cir. 1987)). In response, the government contends, Mr. Beckmann's testimony is not hearsay-rather, Mr. Beckmann will testify, just not in the courtroom.

         Both parties land glancing blows to this critical issue. That is, even if the proposed telephonic testimony is hearsay-a conclusion Sunrhodes supports-the Tenth Circuit has reiterated that “‘the usual rules of evidence need not be applied' in revocation hearings.” United States v. Henry, 852 F.3d 1204, 1206 (10th Cir. 2017) (quoting Fed. R. Crim. P. 32.1 advisory committee's note to 1979 amendment). Justice-then a Circuit Judge-Gorsuch explained that the use of hearsay in revocation proceedings trips no Sixth Amendment Confrontation Clause alarms, nor does it necessarily infringe on defendant's Fifth Amendment Due Process rights:

Indeed, the Supreme Court and [the Tenth Circuit] 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 [the defendant] 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, 92 S.Ct. 2593, 33 L.Ed.2d 484 (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, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998); Curtis v. Chester, 626 F.3d 540, 544 (10th Cir. 2010) (the Sixth Amendment Confrontation Clause does not apply to supervised release proceedings).

Id. at 1206-07. So, Mr. Beckmann's testimony by video or telephone-although hearsay-does not infringe on Mr. Wright's Sixth Amendment rights at a revocation hearing in supervised release context. As the next section explains, the question, instead, is whether the government's plan to present video or telephone testimony would infringe on Mr. Wright's “minimal” due process rights.

         B. The Tenth Circuit applies Federal Rule of Criminal Procedure 32.1(b)(2)(C)'s balancing test to decide whether hearsay evidence infringes on a defendant's due process rights to confront and cross-examine an adverse witness

         “Because the Sixth Amendment does not apply to revocation hearings, the confrontation right in a revocation hearing is a Fifth Amendment due process protection.” United States v. Murphy, No. 18-5052, 2019 WL 1934675, at *1 (10th Cir. May 1, 2019) (citations omitted). So, a defendant at a revocation hearing is entitled to “‘the minimum requirements of due process,' including ‘the right to confront and cross-examine adverse witnesses (unless the hearing officer finds good cause for not allowing confrontation).'” Id. (quoting Morrissey, 408 U.S. at 488-89). And, Federal Rule of Criminal Procedure 32.1 “stems from Morrissey” and “was designed to track the due process rights established for parolees in [Morrissey].” Id. (quoting United States v. Taveras, 380 F.3d 532, 536 (1st Cir. 2004)); United ...

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