United States v. Cawthorne

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 99-30522
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARIO CAWTHORNE,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
(95-CR-50046-ALL)
_________________________
July 5, 2000
Before SMITH, BARKSDALE, and
PARKER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Mario Cawthorne appeals the revocation of
his supervised release pursuant to 18 U.S.C.
§ 3583(e). We vacate the sentence and re-
mand.
I.
Cawthorne pleaded guilty to unlawful
possession of a machine gun in violation of
18 U.S.C. § 922(o)(1), and was sentenced to
imprisonment followed by supervised release.
The supervised release included the condition
that he not possess a firearm. A few months
into the period of release, the district court, at
the request of the probation office, issued an
order to show cause why Cawthorne’s super-
vised release should not be revoked.
The probation office alleged that
Cawthorne had violated several conditions of
his supervised release by failing to report to a
probation officer, by being unemployed, and
by failing to report a change in his residence.
Following a preliminary probable cause
hearing, the probation office filed a
supplemental-violation report alleging that
Cawthorne had violated the conditions of his
supervised release by possessing a firearm.
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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2
At that hearing, Cawthorne admitted failure
to report and unemployment but denied the
change of residence and possession of a
firearm. Probation Officer Steven Cox
testified regarding the firearm allegation.
When Cox reviewed Cawthorne’s file in
preparation for the preliminary hearing, he
noticed a “partial offense report” from the
police department (“the Report”).
According to Cox, the Report indicates1
that when Cawthorne was arrested at his
mother’s home on a state warrant for
attempted homicide, the officers found a
semiautomatic handgun in plain view on a bed.
According to Cox’s testimony, the Report
states that (1) Cawthorne’s mother both
consented to the search and told police that
the room in which the gun was found belonged
to Cawthorne; (2) the bedroom contained mail
addressed to Cawthorne and numerous
photographs of him and other family members;
and (3) Cawthorne’s mother stated that the
gun belonged to Cawthorne.
Cawthorne did not object to Cox’s
testimony regarding the contents of the
Report. When the government attempted to
introduce the Report into evidence,2 however,
Cawthorne objected on the ground that it was
not a self-authenticating document, that the
persons who had prepared it were not present,
and that the state charges it concerned had
been dismissed.3 The court did not rule on the
objection but instead stated, “Well, I don’t feel
I need it,” to which the government replied
“Very well, Your Honor.”
On cross-examination, Cox testified that
Cawthorne’s mother, Lola Cawthorne, had
informed Cox that she believed the police
officers planted the gun, because she had never
seen it before they “found” it. She also
informed Cox that the room in which the gun
was found was a “junk room.”
Ms. Cawthorne also testified at the hearing,
stating that she had not given police
permission to search and that the gun was
found in a “junk room,” not in Cawthorne’s
bedroom. She admitted that some of
Cawt horne’s belongings and family
photographs were stored in the “junk room”
but testified that there was another bedroom in
which Cawthorne lived. She testified that
neither she nor her mother had told the police
that the “junk room” was Cawthorne’s
bedroom, and she denied telling the police that
the gun belonged to Cawthorne.
At the close of the evidence, the
government suggested a continuance to enable
the court to hear the testimony of the officers
who made the Report:
Government: If Your Honor wishes I’d
ask for a continuance to bring the police
officers who made the SS
The Court: No.
Government: If required, if needed.
The Court: No, I find that the
defendant, Mr. Cawthorne, violated the
terms of his probation by not reporting
and failing to tell the probation office
where he was, where he could be
reached, all class C. And more probably
than not possession of a MAC 11
handgun. Therefore, your client has
committed both grade A and grade C
violations, violations establishing an
imprisonment range of 12 to 18 months,
so I’m going to order the three-year
term of supervised release imposed back
in ‘95 set aside and order Mr.
Cawthorne committed to the custody of
the Bureau of Prisons for a term of 18
months.
1 Because, as noted below, the Report was not
admitted into evidence, all information regarding its
content comes from Cox’s testimony.
2 It is not evident whether the government had
obtained a complete copy of the Report or was
trying to introduce only the portion relied upon by
Cox.
3 Cox testified that the underlying homicide
charge and a charge of being a felon in possession
were dismissed.

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3
Cawthorne objected to the finding of a Grade
A violation.4
II.
A court may revoke supervised release if it
finds, by a preponderance of the evidence, that
the releasee violated a condition of that
release. See 18 U.S.C. § 3583(e)(3); United
States v. Alaniz-Alaniz, 38 F.3d 788, 792 (5th
Cir. 1994). We review factual findings for
clear error, and in a challenge to the
sufficiency of the evidence we view the
evidence and all reasonable inferences
therefrom in a light most favorable to the
government. See id., at 790, 792. The
evidence is sufficient if a reasonable trier of
fact could reach the conclusion being
challenged. See id. at 792.
The only evidence of the Grade A firearm
violation, or lack thereof, consists of the
testimony of Cox and Ms. Cawthorne. We
first note that Cox’s testimony of what the
“partial police report” contained is hearsay,
but because revocation proceedings are not
criminal prosecutions and are not formal trials,
the rules of evidence are not applied. See
United States v. Grandlund, 71 F.3d 507, 509
(5th Cir. 1995), clarified by 77 F.3d 811 (5th
Cir. 1996); FED. R. EVID. 1101(d)(3); FED. R.
CRIM. P. 32.1(a)(2) (advisory committee
notes).5 We also recognize that the district
court necessarily made a credibility
determination regarding Ms. Cawthorne, and
“[i]t is not this [c]ourt’s function to pass on a
district court’s determination regarding the
credibility of the witness.” Alaniz, 38 F.3d at
791.6
All state charges resulting from the police
report were dismissed, for reasons we do not
know. While hearsay is not prohibited in
revocation proceedings, we are not unmindful
of the reasons that we place restrictions on the
use of hearsay in criminal trials. Without some
corroboration, it is not reasonable to find a
third person’s testimony regarding the content
of a portion of a police report that never led to
any trial or conviction more believable than the
testimony of an in-court witness, where that
witness’s testimony is internally consistent and
conceivably correct (e.g., does not violate any
laws of nature).
We do not hold that a third party’s
recollection of the contents of a police report
alone may never satisfy a preponderance
burdenSSthat case is not before us. Rather, we
conclude that where a live witness, based on
personal knowledge, consistently and directly
contradicted Cox’s testimony; Cox’s testimony
was based solely on his reading a portion of a
police report; all charges based on that report
were dismissed; and neither Cox’s recollection
of, nor the content of, the report was
corroborated in any manner or to any degree,
no trier of fact reasonably could reach the
conclusion that the government had satisfied
its burden of proof by a preponderance of the
evidence.7 Thus, the evidence is insufficient to
establish that Cawthorne more likely than not
possessed a firearm.8
4 Upon a finding that Cawthorne possessed a
firearm, revocation of his supervised release was
mandatory under 18 U.S.C. § 3583(g) and
U.S.S.G. § 7B1.3(a)(1), p.s. If the court had found
only Grade C violations, it would have had
discretion to revoke, extend, or modify the
conditions of the supervised release. See 18 U.S.C.
§ 3583(e); U.S.S.G. § 7B1.3(a)(2), p.s.
5 The releasee’s due process rights can render
some hearsay inadmissible, but Cawthorne did not
raise that issue in the district court or on appeal.
See Grandlund, 71 F.3d at 509-10; Alaniz,
38 F.3d at 791-92.
6 It would be illogical, however, to presume that
the credibility of one who does testify is less than
that of one who does not even appear before the
court.
7 Neither of the two cases cited by the
government for the proposition that police reports
can be sufficiently reliable for sentencing purposes
involved similar circumstances. See United States
v. Tucker, 20 F.3d 242, 244-45 (7th Cir. 1994);
United States v. Silverman, 976 F.2d 1502, 1514
(6th Cir. 1992) (en banc).
8 We recognize that possession may be
constructive, but the requisite elements of
(continued...)

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4
VACATED and REMANDED.
(...continued)
constructive possession are contained only in Cox’s
double hearsay testimony. See United States v.
Mergerson, 4 F.3d 337, 348-49 (5th Cir. 1993).

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