Summary
In Benson, the court concluded that a parolee's due process rights were not violated when the district court relied on a police report without giving the parolee the chance to confront the witness who authored the report.
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No. 06-60296 Summary Calendar.
April 12, 2007.
Jack Brooks Lacy, Jr., Assistant U.S. Attorney, Richard Terrell Starrett, Assistant U.S. Attorney, Alfred B. Jernigan, Jr., Assistant U.S. Attorney, U.S. Attorney's Office Southern District of Mississippi, Jackson, MS, for Plaintiff-Appellee.
Omodare B. Jupiter, Federal Public Defender's Office Southern District of Mississippi, Jackson, MS, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Mississippi, USDC No. 3:98-CR-36-1.
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
Terry Jermaine Denson appeals from his sentence imposed following revocation of his term of supervised release. He was sentenced to 14 months of imprisonment and three years of supervised release. Denson argues that the district court erred by relying on hearsay evidence to determine that his supervised release should be revoked because he had committed grand larceny rather than petty larceny. He asserts that his Due Process rights were violated under Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
Due process affords a defendant in a parole-revocation hearing "the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)." Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). This due process protection applies in revocation of supervised release proceedings. United States v. McCormick, 54 F.3d 214, 221 (5th Cir. 1995). Although Morrissey recognized a right to confrontation at revocation proceedings, the right is a limited one in that revocation hearings should be flexible enough that a court may consider "material that would not be admissible in an adversary criminal trial." Morrissey, 408 U.S. at 489, 92 S.Ct. 2593. Hearsay evidence is such material, hence the district court's reliance on the police report and its related credibility determination regarding Denson's mother were not abuses of discretion, see United States v. Arbizu, 431 F.3d 469, 470 (5th Cir. 2005), and the court wasn't required to allow Denson to cross-examine the author of the police report, see id.; cf. United States v. Kelley, 446 F.3d 688, 691-92 (7th Cir. 2006) (holding that Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which applies only to testimonial hearsay, doesn't apply to revocation proceedings); Ash v. Reilly, 431 F.3d 826, 829-30 (D.C. Cir. 2005) (same); United States v. Rondeau, 430 F.3d 44, 47-48 (1st Cir. 2005) (same); United States v. Hall, 419 F.3d 980, 985-86 (9th Cir. 2005) (same); United States v. Kirby, 418 F.3d 621, 627-28 (6th Cir. 2005) (same); United States v. Aspinall, 389 F.3d 332, 342-43 (2d Cir. 2004) (same); United States v. Martin, 382 F.3d 840, 844 n. 4 (8th Cir. 2004) (same).
AFFIRMED.