Supervised Release — revocation

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U.S. Court of Appeals for the 7th Circuit

Criminal

Supervised Release — revocation

Although it was error to admit hearsay at the defendant’s revocation hearing, the error was harmless.

“[E]ven where a proper balancing of the interests would weigh in favor of excluding hearsay, its erroneous admission may still be harmless for the alternate reason that the violation of supervised release would have been found even without the hearsay evidence. See, e.g., United States v. Johnson, 927 F.2d 999, 1003–04 (7th Cir. 1991) (holding that admission of hearsay was harmless where strong circumstantial evidence established the same facts). That is the case here because, considering only the non-hearsay evidence submitted to the district court, the result would have been the same. ‘To revoke a defendant’s supervised release under 18 U.S.C. § 3583(e)(3), the district court must find by a preponderance of the evidence that the defendant violated the terms of his supervised release.’ United States v. Goad, 44 F.3d 580, 585 (7th Cir. 1995). Detective Nosich observed Simmons glance at him with a nervous look of dread while getting in Mosley’s car only to get back out right away. Immediately thereafter, Detective Nosich caught Mosley with crack cocaine, but no paraphernalia for its use, and $300 to $400 in cash. Detective Nosich then quickly caught up with Simmons and found that she was carrying material in a grocery bag that his experience told him was used for filters in a crack pipe. His experience proved right when Simmons surrendered four little yellow baggies of what appeared to be crack cocaine and a crack pipe. Detective Nosich testified to these facts and his opinion based on years of experience that what he had witnessed was a drug deal. But the district court did not have to rely on that alone. In the PSR from Mosley’s previous criminal conviction, we see that he used little yellow baggies to hold the crack cocaine that he sold—exactly what Simmons surrendered to police from her purse only about an hour after getting in and out of the car with him. See Fed. R. Evid. 404(b)(2) (evidence of other crimes admissible to prove identity, i.e., modus operandi). All of this together is strong circumstantial evidence that Mosley dealt crack cocaine to Simmons without any need for recourse to Simmons’s reliable statements. Simmons’s statements just confirmed what the circumstantial evidence had independently made clear. Accordingly, disregarding the hearsay, the government still would have met its burden of proving by a preponderance of the evidence that Mosley distributed cocaine in violation of his conditions of supervised release. Because the result would have been the same without admitting the hearsay, the error was harmless.”

Affirmed.

13-3184 U.S. v. Mosley

Appeal from the United States District Court for the Northern District of Indiana, Moody, J., Manion, J.