United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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
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
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.
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.
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
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));