United States of America v. DOUGLAS JOHN MILLER, Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DOUGLAS JOHN MILLER, Jr.,
Defendant - Appellant.
No. 15-50346
D.C. No. 3:11-cr-02145-BEN-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted March 11, 2016
Pasadena, California
Before: PREGERSON, PAEZ, and NGUYEN, Circuit Judges.
Douglas John Miller, Jr. appeals the district court’s finding that he
committed an assault in violation of the terms of his supervised release. He argues
that the district court violated his due process right to confront witnesses at his
FILED
APR 06 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

-- 1 of 3 --

revocation hearing by admitting hearsay testimony of the victim. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
To determine whether to admit hearsay testimony that implicates a
defendant’s right to confront witnesses in a revocation hearing, the district court
must “weigh the releasee’s interest in his constitutionally guaranteed right to
confrontation against the Government’s good cause for denying it.” United States
v. Comito, 177 F.3d 1166, 1170 (9th Cir. 1999). In considering the releasee’s
interest in confronting the witness, the court looks to “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. at 1171. Here, circumstantial evidence
strongly supported the victim’s statement identifying Miller. Miller was present at
the scene of the assault, with blood on his shoes, and seated near a trail of fresh
blood leading directly to the site of the beating. The circumstances in which the
victim made his statement further suggest reliability: he made the statement nearly
contemporaneously with the incident, while his face was still bloody. Because
these factors corroborate the victim’s statement, they diminish Miller’s interest in
confronting him.
Correspondingly, the government’s attempts to secure the victim’s in-court
testimony were adequate. The victim had already informed local police that he did
2

-- 2 of 3 --

not wish to proceed with legal action after the assault occurred. The government
nonetheless attempted to reach him before the revocation hearing. An officer
identified and visited the victim’s last-known address, but the victim no longer
lived there. She then called the victim’s last-known phone number but reached a
recorded message. Finally, the officer ran the victim’s information through a law
enforcement database but found no other addresses or phone numbers for him.
Given the evidence corroborating the victim’s out-of-court statement and the
government’s efforts to reach him, we conclude that the district court properly
admitted the hearsay testimony.
AFFIRMED.
3

-- 3 of 3 --