United States v. 2005-08-15 | 04-50193 | USA VHALL | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 04-50193
Plaintiff-Appellee, D.C. No.
v.  CR-01-01084-1-NAJ
WILLIAM LEWIS HALL, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the Southern District of California
Napoleon A. Jones, District Judge, Presiding
Argued and Submitted
February 18, 2005—Pasadena, California
Filed August 15, 2005
Before: A. Wallace Tashima, Kim McLane Wardlaw,
Circuit Judges, and Raner C. Collins, District Judge.*
Opinion by Judge Wardlaw
*The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
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COUNSEL
Mark F. Adams, San Diego, California, for the appellant.
Carol C. Lam, United States Attorney, San Diego, California,
for the appellee.
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OPINION
WARDLAW, Circuit Judge:
We must decide whether the Sixth Amendment right to
confront testimonial witnesses established in Crawford v.
Washington, 541 U.S. 36 (2004), applies to the admission of
hearsay evidence during revocation of supervised release pro-
ceedings.
Factual Background
William Lewis Hall was on supervised release when, on
October 26, 2003, Hall’s probation officer, Janet Bergland,
picked up a voice mail message from Susan Hawkins report-
ing that Hall had been drunk and had beaten her up the night
before. Hawkins had attempted to file a police report, but the
police had been preoccupied fighting forest fires in the area
at the time.1 Hawkins intended to go to the police department
that day to file the police report. The message also indicated
that Hawkins had gone to a domestic violence shelter, which,
in turn, had sent her to St. Vincent de Paul’s homeless shelter.
As was her practice, and pursuant to office policy, Officer
Bergland memorialized the voice mail message in her official
chronological record of activities in Hall’s case.
Also on October 26, Hawkins sought treatment at Univer-
sity of California San Diego (“UCSD”) Medical Center for
multiple bruises and scratches. Hawkins told her treating phy-
sician, Dr. Glover, that her live-in boyfriend had assaulted her
the night before. Dr. Grover concluded that Hawkins “had
contusions on her elbow, her chest and her back” and that
1See Louis Sahagun et al., Southern California Firestorms; A Rampage
of Firestorms, L.A. Times, October 27, 2003, at 1A (describing the devas-
tation caused by massive wild fires throughout Southern California,
including closed highways and evacuations that diverted local manpower
and resources).
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these injuries were “consistent with [her] complaint that she
had been assaulted by her boyfriend with an open hand.” He
prescribed vicodin and ibuprofen to alleviate her pain and
advised her to file a report with the police. Hawkins provided
the hospital with only her name and birth date; she did not
disclose any additional identifying information.
On October 29, Officer Bergland called Hall to inquire
about Hawkins. Hall told Officer Bergland that Hawkins is a
“street person” and a “hooker”2 that he had taken in. He
claimed that she had come to his room the night of the 25th
and wanted to use drugs. According to Hall, he said no, they
argued, and he asked her to leave. Hall admitted that he
slapped Hawkins once during the argument, but denied that he
had been drinking that evening. He fell asleep before she left
the room.
On October 30, Hawkins contacted the San Diego Police
Department to file a domestic violence report. Officer Gross
went to Saint Vincent de Paul’s, where Hawkins was staying,
to take the report. The only identification Hawkins gave Offi-
cer Gross was her name and social security number. Hawkins
told Officer Gross that she had been living with Hall and that
on the night of October 25th, she, Hall, and a man nicknamed
“Red” were drinking in his room. She and Hall began to fight.
Hall “slammed the heel of his left hand into her neck” and
told Red to leave the apartment, which he did. After Red left,
Hawkins told Hall that she wanted to get her stuff and leave.
In response, Hall grabbed a golf club that he kept near the
door and threatened to harm her if she attempted to leave the
room. Over the next four hours Hawkins and Hall argued.
During this time, Hall choked and battered her with the heel
of his hand on three separate occasions. Hall also kept the
phone away from Hawkins so she could not call the police.
2Officer Bergland investigated the assertion that Hawkins was a “hook-
er.” She found that Hawkins had no criminal record or arrest for anything
related to prostitution.
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Hawkins told Officer Gross that she eventually agreed to stay
to pacify Hall and then left after Hall fell asleep.
After hearing Hawkins’ recitation, Officer Gross called in
a female officer to photograph Hawkins’ injuries. Officer
Tagaban photographed the bruises on Hawkins chest, back,
and elbow. The two officers went that day to Hall’s apartment
and arrested him. They found the golf club exactly where
Hawkins said it would be.
On November 6, 2003, Officer Bergland petitioned the dis-
trict court for a no-bail bench warrant alleging four violations
of Hall’s supervised release conditions: inflicting corporal
injury upon his girlfriend, falsely imprisoning her, associating
with a felon, Red, and failing to notify his probation officer
of his law enforcement contact and subsequent October 30
arrest within 72 hours. The district court issued the bench
warrant. Hall was arrested on the warrant on November 18,
2003, and arraigned. Hall denied each of the allegations of
noncompliance. A revocation hearing was set for April 8,
2004.
Before the evidentiary hearing, Hall moved the district
court to exclude “the hearsay statements of Susan Hawkins,”
under the balancing test set forth in United States v. Comito,
177 F.3d 1166 (9th Cir. 1999). The district court denied the
motion. Three days later, the United States Supreme Court
issued Crawford. Hall requested reconsideration of his motion
to exclude Hawkins’ hearsay statements, relying on the newly
announced right to confront testimonial witnesses. The district
court ruled that Crawford, which governs Sixth Amendment
rights at trial, was not implicated by supervised release revo-
cation proceedings. During the evidentiary hearing, conducted
pursuant to Federal Rule of Criminal Procedure 32.1(b)(2),
the government put on the five witnesses who had been in
contact with Hawkins following the assault by Hall.
To summarize: Dr. Grover testified that he personally
examined Hawkins. He found several contusions that were
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consistent with her description of Hall’s assault on her with
an open hand. He also identified Hawkins from the photos
taken by Officer Tagaban.
Officer Tagaban authenticated the photographs she took of
Hawkins’ injuries and testified that Hawkins had stated that
the injuries resulted from her beating at the hands of her boy-
friend. She also testified that she and her partner, Officer
Gross, went to Mr. Hall’s apartment and arrested him.
Officer Gross testified that on October 29th he was dis-
patched to “investigate a potential domestic violence inci-
dent” at the Saint Vincent de Paul Shelter. When he arrived
at the shelter, he met Ms. Hawkins. Hawkins told him that she
was living with Hall, that on the night of the 25th she was “in
Mr. Hall’s apartment drinking with Mr. Hall and another gen-
tleman by the name of Red,” and that during the evening Hall
and Red had argued over the attention Red had been paying
to Hawkins, which led to Hawkins and Hall’s argument. Haw-
kins told Officer Gross that Hall “got upset, choked her, and
hit her with his hand and knocked her to the bed.” After the
first assault, Hall told Red to leave, which he did. Hawkins
then told Hall, “You know what? I don’t want any more prob-
lems. I don’t want any more issues. Why don’t you let me get
my stuff and I’ll leave and we’ll be done.” Hall’s response
was to choke her and hit her again. Hawkins again said she
wanted to leave, and Hall grabbed a golf club from behind the
door and said, “I’m going to fuck you up if you leave.”
Hawkins reported to Officer Gross that she was very afraid
of Hall and concerned for her safety. She had attempted to
call the police but Hall had taken the phone from her and
there was no way to escape because Hall’s second floor apart-
ment had only one small window that lead to a courtyard.
Eventually, she realized she could not argue her way out of
the apartment so she told Hall, “You know what? I’m sorry.
Let’s make up. You know, all is forgiven. Let’s start with a
clean slate.” This tactic worked. Hall hugged her and then
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eventually he laid down and passed out, allowing Hawkins to
gather her things and leave.
Officer Gross also testified that Hawkins provided him
Hall’s full name, a physical description, and his address. After
leaving Hawkins, Officer Gross went to Hall’s apartment
where he arrested Hall and found the golf club behind the
front door, exactly where Hawkins said it would be. The golf
club itself was entered into evidence.
“Red,” whose real name is Hubert Bystel Hall,3 testified
that he was in Hall’s apartment the night in question. He said
he saw Hall slap Hawkins and that he left the apartment
shortly after Hawkins was hit.
Finally, Officer Bergland testified. All of Officer Berg-
land’s testimony derived from her “chronals,” written chrono-
logical entries kept by every probation officer as a regular part
of their duties. Officer Bergland reported that she received a
voicemail message from Hawkins stating that Hall had “got-
t[en] drunk the previous night and beat her up” and that the
police “were too busy fighting fire to take a report.” After get-
ting the message, she testified that she called Hall. He told her
that Hawkins was living with him and that they had argued
and he slapped her.
Officer Bergland also testified that she had tried to contact
Hawkins at the St. Vincent de Paul shelter, but was told that
Hawkins’ family had sent for her and she had left without
leaving a forwarding address.
At the end of the hearing, the district court sustained allega-
tions one and two of the Violation Petition, the domestic vio-
lence and false imprisonment allegations, revoked Hall’s
3Hubert Hall has no relationship with the defendant. We refer to him by
his nickname, “Red.”
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supervised release, and sentenced him to 24 months in cus-
tody.
DISCUSSION
Hall contends on appeal that the admission of Hawkins’
hearsay statements at his revocation hearing violated his Sixth
Amendment right to confrontation as articulated in Crawford.
As an alternative claim of error, Hall contends that even if we
determine that Crawford did not give him an absolute right to
confront Hawkins, a proper analysis of his due process rights
under Comito would require exclusion of Hawkins’ hearsay
statements. We disagree.
I. Crawford Does Not Apply to Revocation Proceedings.
[1] In Crawford, the Court held that the Sixth Amend-
ment’s Confrontation Clause gives criminal defendants the
right to confront “testimonial” witnesses. 541 U.S. at 68-69.
“Testimonial statements” include statements taken by police
officers during their investigations, such as Hawkins’ state-
ments to Officer Gross. Id. at 52. Testimonial hearsay evi-
dence may be admitted over the objection of the defendant
only when the common law requirements of “unavailability
and a prior opportunity for cross-examination” are met. Id. at
68.
[2] The Court derived this broad protection against testimo-
nial hearsay evidence solely from the Sixth Amendment. See
id. at 38 (“The question presented is whether this procedure
complied with the Sixth Amendment’s guarantee that, ‘[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him.’ ”) (quoting
U.S. Const. amend. VI); id. at 61 (“Where testimonial state-
ments are involved, we do not think the Framers meant to
leave the Sixth Amendment’s protection to the vagaries of the
rules of evidence. . . .”). As the Court noted, the Sixth
Amendment applies only to “criminal prosecutions.” Id. at 38.
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[3] We reject Hall’s assertion that Crawford extends the
Sixth Amendment right to confrontation to revocation of
supervised release proceedings. “We begin with the proposi-
tion that the revocation of parole4 is not part of a criminal
prosecution and thus the full panoply of rights due a defen-
dant in such a proceeding does not apply to parole revoca-
tions.” Morrissey v. Brewer, 408 U.S. 471, 480 (1972). See
also Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973). Because
“[r]evocation deprives an individual, not of the absolute lib-
erty to which every citizen is entitled, but only of the condi-
tional liberty properly dependent on observance of special
parole restrictions” the full protection provided to criminal
defendants, including the Sixth Amendment right to confron-
tation, does not apply to them. Morrissey, 408 U.S. at 480.
Rather, a due process standard is used to determine whether
hearsay evidence admitted during revocation proceedings vio-
lates a defendant’s rights. Id. at 482.
[4] In Crawford, the Supreme Court addressed the Sixth
Amendment rights of the accused in criminal prosecutions; it
did not address the due process rights attendant to post-
conviction proceedings for violations of conditions of release.
See 2A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure Criminal § 412 (3d ed. 2000 & Supp.
2005). We, like the two circuits that have also addressed this
question, see no basis in Crawford or elsewhere to extend the
Sixth Amendment right of confrontation to supervised release
proceedings. See United States v. Aspinall, 389 F.3d 332, 342
(2d Cir. 2004) (holding that Crawford does not apply to pro-
bation revocation because Crawford and the Sixth Amend-
ment apply only to “criminal prosecutions” and “it has long
4Parole, probation, and supervised release revocation hearings are con-
stitutionally indistinguishable and are analyzed in the same manner. See
United States v. Comito, 177 F.3d 1166, 1170 (noting that the Supreme
Court and the Federal Rules of Criminal Procedure have extended the
same minimum due process rights to all three types of revocation proceed-
ings).
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been established that probation revocation, like parole revoca-
tion, is not a stage of a criminal prosecution”) (internal quota-
tions omitted); United States v. Martin, 382 F.3d 840, 844 n.4
(8th Cir. 2004) (holding that the confrontation right in crimi-
nal prosecutions does not apply to supervised release revoca-
tion proceedings because they are not part of a criminal
prosecution).
II. Due Process and the Comito Balancing Test.
[5] Hall nevertheless enjoys a due process right to confront
witnesses against him during his supervised release proceed-
ings, as the Supreme Court held over thirty years ago in Mor-
rissey. “Under Morrissey, every releasee is guaranteed the
right to confront and cross-examine adverse witnesses at a
revocation hearing, unless the government shows good cause
for not producing the witnesses.” Comito, 177 F.3d at 1170.
To determine “whether the admission of hearsay evidence
violates the releasee’s right to confrontation in a particular
case, the court must weigh the releasee’s interest in his consti-
tutionally guaranteed right to confrontation against the Gov-
ernment’s good cause for denying it.” Id.
We must “assess the significance of the releasee’s interest
in the right to confrontation.” Id. at 1171. “The weight to be
given the right to confrontation . . . depends on two primary
factors: the importance of the hearsay evidence to the court’s
ultimate finding and the nature of the facts to be proven by the
hearsay evidence.” Id. Because the nature of the facts proven
by Hawkins’ hearsay statements, as well as its significance to
each of the violations found by the district court differ, we
must balance Hall’s interest in confronting Hawkins sepa-
rately for each sustained violation.
A. Domestic Violence Violation.
[6] Because the nonhearsay evidence introduced at the evi-
dentiary hearing alone was sufficient to sustain the domestic
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violence allegation, the hearsay evidence could not have sig-
nificantly affected the court’s ultimate finding. Cf. United
States v. Martin, 984 F.2d 308, 311 (9th Cir. 1993) (finding
a due process violation because the contested evidence was
“uniquely important to the court’s finding” and the district
court “exclusively relied” on it in determining guilt). To con-
vict Hall of inflicting corporal injury on his girlfriend, the
court need only have found that Hall willfully inflicted “cor-
poral injury resulting in a traumatic condition” on someone
with whom he was cohabitating. See Cal. Penal Code
§ 273.5(a). Bruising is a “traumatic condition” for purposes of
the statute. People v. Beasley, 105 Cal. App. 4th 1078, 1085
(2003) (finding bruising sufficient to sustain conviction under
Section 273.5).
[7] The nonhearsay evidence at the hearing was substantial
and sufficient to conclusively prove the domestic violence
charge. Red testified that he was in Hall’s apartment that eve-
ning and saw Hall hit Hawkins. Hall admitted to Officer Ber-
gland that he was living with Hawkins and that he had hit her
that evening. These facts, combined with the photographs
taken by Officer Tagaban revealing Hawkins’ bruises shortly
after the incident were sufficient to sustain the domestic vio-
lence violation.5
[8] In addition, several pieces of evidence supporting the
domestic violence allegation are admissible under hearsay
exceptions. Although the Federal Rules of Evidence do not
strictly apply to revocation hearings, see United States v.
Walker, 117 F.3d 417, 421 (9th Cir. 1997), long-standing
exceptions to the hearsay rule that meet the more demanding
requirements for criminal prosecutions should satisfy the
5Thus, given that the domestic violence allegation was proven by non-
hearsay evidence, even if the hearsay evidence should not have been
admitted, any error was harmless as to this allegation. See Comito, 177
F.3d at 1170 (improper admission of hearsay testimony is subject to harm-
less error review).
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lesser standard of due process accorded the respondent in a
revocation proceeding. See Morrissey, 408 U.S. at 489
(“[T]he process [in revocation hearings] should be flexible
enough to consider evidence . . . that would not be admissible
in an adversary criminal trial.”).
The medical records from Hawkins’ hospital visit and the
notes of Hall’s parole officer were records kept in the ordi-
nary course of business, classic exceptions to the hearsay rule.
Fed. R. Evid. 803(6). Hawkins’ statements to Dr. Grover,
including that her live-in boyfriend had caused her injuries,
were statements made for the purpose of medical diagnosis or
treatment, and also hearsay exceptions. See Fed. R. Evid.
803(4) (describing as exceptions to the hearsay rule all
“[s]tatements made for purposes of medical diagnosis or treat-
ment . . . or the inception or general character of the cause or
external source thereof insofar as reasonably pertinent to diag-
nosis or treatment”).
[9] Hall’s interest in excluding hearsay evidence relevant to
the domestic violence allegation was thus weak, especially
when weighed against the government’s good cause for not
producing Hawkins. See infra at 10637. Cf. Comito, 177 F.3d
at 1171 (noting that the hearsay evidence was the only evi-
dence provided for the contested element of the violation and
therefore the releasee had “a very strong interest in demon-
strating that the hearsay testimony did not reflect ‘verified
fact’ ”).
B. False Imprisonment Violation.
[10] In contrast to the substantial nonhearsay evidence sup-
porting the domestic violence charge, Officer Gross’ account
of Hawkins’ statements regarding false imprisonment were
undoubtedly significant to the court’s ultimate finding. Under
California law, false imprisonment is “the unlawful violation
of the personal liberty of another.” Cal. Penal Code § 236.
The evidence of false imprisonment in this case primarily
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comes from Hawkins’ account of the evening as testified to
by Officer Gross.
1) Nature of facts to be proven by hearsay evidence.
[11] The hearsay evidence relevant to the court’s decision
to sustain the false imprisonment allegation were the
“[u]nsworn verbal allegations” of Hawkins to Officer Gross
and are thus “in general, the least reliable type of hearsay.”
Comito, 177 F.3d at 1171. Unlike in Comito, however, Haw-
kins’ statements bear indicia of reliability. Hawkins’ state-
ment to the police was supported by Gross’ discovery of the
golf club where she said it would be. Her statement is also
corroborated by the consistency with which she reported the
events of the evening to multiple people shortly after the inci-
dent, Red’s testimony, Dr. Glover’s medical conclusions,
Hawkins’ documented physical bruising, and even Hall’s own
statements to Officer Bergland. Finally, the reliability of the
domestic violence aspect of her statements to the police gives
credence to the rest of her account of the evening, including
Hall’s threats to injure her if she left the apartment. See Mar-
tin, 382 F.3d at 846 (finding, under the Eighth Circuit’s bal-
ancing test, no due process violation, in part because the
corroboration of the hearsay evidence made it inherently more
reliable).
This is not the end of the inquiry, however. Simply because
hearsay evidence bears some indicia of reliability does not
render it admissible. See Martin, 984 F.2d at 313-314 (even
urinalysis testing conducted by a laboratory is not sufficiently
reliable to create a blanket rule that releasee has no interest in
contesting the results). Hall’s otherwise strong interest in con-
frontation is somewhat lessened by the reliability of the hear-
say evidence, but it is not defeated.
Because Hall has a serious interest in confronting Hawkins
as to the false imprisonment allegation, we must turn our
attention to the other side of the scale to determine whether
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the government had good cause in failing to produce Haw-
kins, and whether that good cause outweighs Hall’s right to
confrontation.
2) The government’s good cause.
In determining the government’s good cause in not produc-
ing a witness, we look to “both the difficulty and expense of
procuring witnesses and the traditional indicia of reliability
borne by the evidence.” Id. at 312 (citation and quotations
omitted).
[12] The government has provided a good reason for not
producing Hawkins—despite substantial efforts to locate her,
the government was unable to find her. Hawkins is a home-
less woman who left the shelter where she was staying after
the attack without leaving a forwarding address and has not
been heard from since. Hall’s probation officer tried to find
her through the shelter. The government ran checks on Haw-
kins’ social security number and birth date, the only identify-
ing information it possessed, and were unable to locate her.
The district court determined that the government had done
all it could do to locate Hawkins. See Martin, 382 F.3d at 846
(finding that the government had good cause not to produce
the witness because the witness refused to testify out of fear
of retaliation by defendant).6 This effort stands in stark con-
trast to cases where we have found that the government did
not have good cause for failing to produce a witness. See, e.g.,
Comito, 177 F.3d at 1172 (noting that the witness was readily
available to the government, was in contact with the defen-
dant almost daily, and the government offered no explanation
for not producing her).
6The difficulty of securing the testimony of domestic violence victims,
like Hawkins, against their batterers is well recognized. See Tom Lininger,
Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747, 769 (2005)
(citing research which showed that “the most common reason for dis-
missal of domestic violence prosecutions . . . was victims’ failure to make
court appearances or to testify against the defendants”).
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In addition, as discussed, the hearsay testimony regarding
the false imprisonment bears some indicia of reliability. Haw-
kins statement to the police was supported by Gross’ discov-
ery of the golf club where she said it would be, the
consistency with which she reported the events of the eve-
ning, the testimony of Red and Dr. Glover, the bruises on her
body documented by the police photographs, and even Hall’s
own statements.
[13] Although Hall had a strong interest in confronting
Hawkins with regard to the false imprisonment charge, on
balance, that interest is outweighed by the government’s good
cause for not producing Hawkins as a witness and the inde-
pendent indicia of reliability that support Hawkins’ statements
to Officer Gross.
CONCLUSION
Crawford does not create a Sixth Amendment right of con-
frontation applicable to supervised release revocation or simi-
lar proceedings. Hall had a due process right to confront a
testimonial witness which is not absolute. Balancing the Com-
ito factors, we conclude that Hall had little interest in confron-
tation with respect to the domestic violence allegation because
the hearsay evidence was insignificant to the ultimate finding.
This minimal interest was outweighed by the government’s
substantial showing of good cause for not producing Hawkins
at the hearing. Although Hall had a relatively strong interest
in confronting Hawkins with respect to the false imprison-
ment allegation, his interest in confrontation on that allegation
is outweighed by the government’s good cause for failing to
produce Hawkins at the hearing—both because the govern-
ment made every effort to do so and because the hearsay evi-
dence was substantially corroborated. For these reasons,
Hall’s due process rights were not violated and the final order
of revocation is affirmed.
AFFIRMED.
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