Opinion
23-2449
06-17-2024
United States of America, Plaintiff-Appellee, v. Jason Smith, Defendant-Appellant.
NONPRECEDENTIAL DISPOSITION
Argued May 29, 2024
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:10-cr-00107-RLM-MGG-1 Damon R. Leichty, Judge.
Before FRANK H. EASTERBROOK, Circuit Judge MICHAEL B. BRENNAN, Circuit Judge MICHAEL Y. SCUDDER, Circuit Judge
ORDER
In June 2022, Jason Smith began serving a three-year term of supervised release after completing a 147-month sentence for federal drug and firearms offenses. Smith struggled to comply with the conditions of release. Indeed, just six days after his release from prison, he tested positive for marijuana. Smith explained to his probation officer, Abram M. Jones, that he had used marijuana heavily while in prison and agreed to the imposition of an additional condition of supervised release mandating his participation in a substance abuse treatment program.
Jones referred Smith to Victory Clinical Services, a drug treatment center in South Bend, Indiana. There he completed a substance abuse assessment and enrolled in a relapse prevention program. But Smith, who was either unable or unwilling to kick the habit, failed additional drug tests on July 25, November 4, and December 5 and missed a drug test the following February. In the meantime, Victory Clinical Services discharged Smith from its treatment program due to lack of attendance. Officer Jones referred Smith to a second drug treatment facility, the Addiction Recovery Center, but his track record there was apparently little better.
Drug use was not Smith's only problem. On February 25, 2023, he allegedly engaged in a high-speed car chase in Ohio, where he was later indicted for the felony offense of failing to comply with the directions of a police officer. See Ohio Rev. Code Ann. § 2921.331(b). That same day Smith underwent questioning by police officers in Richmond, Indiana. It is not clear whether that encounter related to the high-speed chase, but Smith's conditions required him to report contact with the police to his probation officer within 72 hours, which he failed to do.
The Ohio indictment was the final straw for Smith's probation officer, who petitioned the district court to revoke Smith's term of supervised release. With help from the Indiana and Michigan police, the U.S. Marshals Service attempted to apprehend Smith on May 18. The Marshals Service learned that evening that Smith would be driving to a South Bend liquor store in a white Chevy Malibu. The South Bend Police Department agreed to assist with Smith's arrest. Two officers-Ryan Rush and his partner-staked out the liquor store parking lot. Smith drove to the liquor store, as anticipated, and Officer Rush radioed in a positive identification to other police units in the area. (The Marshals had provided Rush with a photo of Smith.)
But Smith spotted an approaching police vehicle and reacted by racing away. A high-speed chase ensued, with Smith reaching speeds as fast as 121 miles per hour. Smith made it all the way into Michigan before his car ran out of gas and he fled the vehicle. Smith managed to escape and was not arrested until June 15. This incident led to two additional criminal indictments. Indiana prosecutors charged Smith with resisting law enforcement, see Ind. Code § 44.1-3-1(a)(3), and Michigan prosecutors charged him with the related crime of fleeing law enforcement, see Mich. Comp. Laws § 257.602a(2). Jones filed an amended revocation petition adding these violations to the growing list.
In total, Smith faced 13 alleged violations of his conditions. Nine of those violations were drug-related: Smith was accused of using a controlled substance- marijuana-prior to his June 22, July 25, November 4, and December 5 drug tests; of skipping out on a drug test in February 2023; and of failing to abide by the terms of court-ordered substance abuse treatment programs four separate times. The remaining four violations arose out of Smith's two high-speed chases. The probation office alleged that he committed felony offenses in Ohio, Indiana, and Michigan, while also failing to inform his probation officer that he had been questioned by Indiana police officers the day of the Ohio pursuit.
Smith's revocation hearing took place on July 17, 2023. At the outset, Smith admitted to using marijuana prior to the July 25 and December 5 tests. And to bring greater focus to the case, the government chose not to pursue the Ohio and Michigan felonies as well as Smith's failure to inform Jones of his encounter with Richmond, Indiana police. The scope of the proceeding narrowed yet further when Smith pointed out that it was impossible to tell whether the June 22 positive drug test-administered as it was just six days after Smith's release from prison-reflected marijuana use while incarcerated or following his release. Conceding the point, the government agreed to drop that charge too.
Just like that, then, the scope of the revocation hearing narrowed to seven contested charges: the November 4 positive drug test; the February 2023 missed drug test; the Indiana felony; and four instances of non-compliance with court-ordered drug treatment programs.
The government sought to prove these charges with four primary sources of evidence: (1) the remote video testimony of Abram Jones, Smith's probation officer; (2) live testimony from Officers Rush and Alexander Williams, two South Bend police officers involved in the May 18, 2023 high-speed chase; (3) a written lab report indicating that urine collected from Smith on November 4 tested positive for marijuana metabolites; and (4) treatment notes from professionals at Victory Clinical Services memorializing Smith's failure to participate in drug treatment programming.
Smith challenged the admissibility of Probation Officer Jones's remote testimony, the lab report, and the treatment notes under the Confrontation Clause of the Sixth Amendment. That provision bars "the introduction of out-of-court 'testimonial' statements unless the witness is unavailable and the defendant has had the chance to cross-examine the witness previously." Samia v. United States, 599 U.S. 635, 643 (2023). Importantly, however, the Confrontation Clause applies only to "criminal prosecutions," U.S. Const. amend VI, a term we have long held does not extend to supervised release revocations, see United States v. Kelley, 446 F.3d 688, 691 (2006). Consistent with this precedent, the district court overruled Smith's Confrontation Clause objections.
In the alternative, Smith challenged the admissibility of the lab report and treatment notes (but not Probation Officer Jones's remote testimony) under Federal Rule of Criminal Procedure 32.1(b)(2)(C). This provision, which applies to revocation proceedings like Smith's, provides meaningful but less absolute protection than the Confrontation Clause. It "entitle[s]" revocation defendants to "an opportunity ... to question any adverse witness unless the court determines that the interest of justice does not require the witness to appear." Fed. R. Crim. P. 32.1(b)(2) &(b)(2)(C). We have interpreted this language to require district courts to "explicitly [] balance the defendant's constitutional interest in confrontation and cross-examination against the government's stated reasons for denying them." United States v. Jordan [Jordan I], 742 F.3d 276, 280 (7th Cir. 2014).
In response to Smith's Rule 32.1 objections, the district court excluded some-but not all-of the government's evidence. Concluding that the government had not given an adequate explanation for failing to call as witnesses Smith's treaters at Victory Clinical Services, the district court precluded the government from relying on those treatment notes to prove Jones's failure to fully participate in Victory Clinical Services' drug treatment program. The district court likewise barred Jones from testifying about statements made to him by Smith's treaters at the Addiction Recovery Center reporting similar non-compliance. But it did permit the government to rely on the November 4 lab report, notwithstanding the government's failure to call the laboratory technician who prepared it.
Without the Victory Clinical Services treatment notes and Jones's testimony about information relayed to him by Addiction Recovery Center staff, the government could not prove the four violations related to Smith's failure to participate in substance abuse therapy. The district court nonetheless found that the remaining evidence was sufficient to prove (1) that Smith used marijuana prior to the November 4 drug test; (2) that Smith failed to appear for a drug test in February 2023; and (3) that Smith violated Indiana law by leading the police on a high-speed chase on May 18, 2023. This made five violations in total when Smith's admitted violations were added to the mix, including three positive drug tests.
In the end, the district court exercised its discretion to revoke Smith's supervised release under 18 U.S.C. § 3583(e)(3) and sentenced him to the 21 months recommended by the U.S. Probation Office.
Smith appeals his revocation judgment on a variety of grounds, but none is persuasive.
His primary quarrel is with the district court's evidentiary rulings. Smith argues that the district court erred in its conclusion that his supervised release revocation was not a "criminal prosecution" within the meaning of the Sixth Amendment and, thus, that the Confrontation Clause did not apply. But the district court got it exactly right. For reasons we explain in an opinion issued on this same date, see United States v. Carpenter, No. 23-3295, the Confrontation Clause does not apply to discretionary supervised release revocations conducted under 18 U.S.C. § 3583(e)(3).
Smith was therefore limited to challenging the admission of hearsay evidence under the more relaxed inquiry of Rule 32.1. He does so by contending that the district court failed to properly apply that inquiry to two categories of evidence-certain hearsay testimony offered by Ryan Rush and the November 4 lab report. (Although Smith frames this challenge as sounding under both the Fifth Amendment and Rule 32.1(b)(2)(C), Rule 32.1 is the more protective of the two when it comes to hearsay, see United States v. Mosley, 759 F.3d 664, 668 (7th Cir. 2014), and thus failure under the latter forecloses success on the former.)
Smith never objected to Rush's testimony in the district court, at least not on hearsay grounds. He thus forfeited the argument, leaving our review only for plain error. The particular statements troubling Smith include Rush's remarks (1) that he was told by U.S. Marshals that Smith would be driving to the liquor store in a white Chevy Malibu and that the photo he was given depicted Smith; and (2) that his partner positively identified Smith as the man in the picture. The government insists that these statements did not constitute hearsay because they were not admitted for their truth. See Fed.R.Evid. 801(c)(2). We need not resolve this question, however, because any error in admitting the testimony did not affect Smith's substantial rights and thus did not amount to plain error. See United States v. Olano, 507 U.S. 725, 734 (1993). At Smith's revocation hearing, Rush-over no objection from Smith-identified Smith as the driver of the Chevy Malibu. That in-court identification rested on personal knowledge and, when considered alongside Officer Williams's testimony, easily satisfied the government's burden to show that Smith fled from the police in violation of Indiana law.
Smith's challenge to the district court's consideration of the November 4 lab report is stronger. Although the district court appeared to recognize that our precedent required it to expressly balance Smith's constitutional interest in confronting the lab technician who prepared it against the government's reasons for not calling that technician as a witness, it failed to do so, admitting the lab report based primarily on the belief that it was reliable. This approach fell short in two ways. First, we have underscored multiple times that Rule 32.1 requires explicit, on-the-record balancing. See United States v. Moslavac, 779 F.3d 661, 664 (7th Cir. 2015) (rejecting the government's contention that implicit balancing may satisfy Jordan I's "bright-line rule"). Second, we have made clear that a bare finding of reliability is generally insufficient to support the admission of hearsay under Rule 32.1, even though it might be sufficient under the Fifth Amendment. See Mosley, 759 F.3d at 668 ("While reliability of hearsay weakens the defendant's interest in confrontation, a weak interest is enough to tip the balance toward exclusion if the government offers no reasons for not producing the witness. Accordingly, a showing of reliability in the record on appeal does not mean there was no error, nor does it make the violation of Rule 32.1 harmless.").
The parties joust over whether the district court could have found the November 4 drug violation in the absence of the lab report. We can avoid this question, too, because our review of the sentencing transcript leads us to conclude that Smith's 21-month sentence would have been the same either way.
Smith's advisory guideline range-21 to 27 months-was pegged to the Indiana felony, a Grade B violation, not to his drug test violations. That range would not have changed if the government altogether dropped the November 4 drug charge. In sentencing Smith to 21 months, moreover, the district court placed no emphasis on the November 4 violation. Instead, it stressed the need for mental health treatment and the danger that Smith's flight from the Indiana police posed to the public, which it described as "a very high-risk, 27-minute police chase reaching speeds of 121 miles per hour and threatening many other people who were on the road, motorcyclists, other drivers, not to mention the officers who were trying to do their job to catch him." Sentencing Transcript, 77:23-78:2.
Given the district court's complete inattention to the November 4 drug charge- and the fact that Smith's pattern of drug abuse was established by three other violations that withstand scrutiny on appeal-we find it inconceivable that the November 4 drug charge factored into Smith's sentence. Any error was thus harmless.
Smith lodges two additional arguments. First, he points out that his revocation judgment erroneously states that he was found guilty of fleeing the police in violation of Michigan law, a violation the government opted not to pursue. He then suggests that the district court at sentencing may have considered this violation in fashioning his sentence. The sentencing transcript makes it abundantly clear, however, that the district court labored under no such misimpression. Before pronouncing sentence, the district court twice recognized that the Michigan felony was not before it. See Sentencing Transcript, 68:14-16 ("[T]he government indicated at the outset of hearing that it was withdrawing" the Michigan and Ohio felonies); id. at 69:1-5 (finding five violations, including the Indiana offense, but not the Michigan offense). It is clear, then, that the error did not affect Smith's sentence. Nonetheless, we will instruct the district court to correct the judgment to accurately reflect the basis for Smith's revocation.
Finally, Smith asks us to remand with instructions directing the district court to follow through on a promise it made at sentencing to recommend placement at a facility equipped to treat his colon cancer. We cannot do so. As we explained in United States v. McHugh, 528 F.3d 538 (7th Cir. 2008), we lack the jurisdiction to make non-binding recommendations of this sort. See id. at 540-41.
For these reasons, we AFFIRM and REMAND with instructions that the district court strike the Michigan felony from Smith's revocation judgment.