4th Circuit: Hearsay evidence wrongly admitted

Where the district court admitted hearsay evidence during the releasee’s revocation hearing without first balancing his interest in confronting an adverse witness against any proffered good cause for denying such confrontation, it erred.

Background

Gerald Wheeler appeals the district court’s order revoking his supervised release and sentencing him to six months of imprisonment followed by an additional year of supervised release. He argues that the district court abused its discretion when it admitted hearsay evidence during his revocation hearing, and that the improper hearsay evidence was essential to the district court’s finding that he violated his supervised release.

Balancing

This court’s decision in United States v. Doswell, 670 F.3d 526 (4th Cir. 2012), requires that before a court “admit[s] hearsay evidence in a revocation hearing,” it “must balance the releasee’s interest in confronting an adverse witness against any proffered good cause for denying such confrontation.” The government bears the burden of establishing good cause for denying the confrontation.

Appellant argues that the district court abused its discretion in applying this balancing test because it did not properly consider or balance his interest in confrontation at all. This court agrees.

To be sure, the district court stated explicitly that it “must balance Mr. Wheeler’s interest in confronting an adverse witness against any proffered good cause for denying such confrontation.” But this court’s review of the record compels the conclusion that the district court did not actually consider the strength of appellant’s interest, nor did it conduct any balancing on the record.

The district court did not provide any explanation of how it valued the strength of appellant’s interest in confronting the alleged victim (Nyasia Mobley). Yet appellant’s interest could not have been stronger. Mobley’s hearsay statements were essential to the court’s conclusion that appellant committed violation number two — the only evidence that appellant had assaulted Mobley was her hearsay statement to police.

What is more, even if it were sufficient for the district court to simply recognize appellant’s “strong interest,” the court still failed to put any balancing on the record. Of course, the district court analyzed the government’s side of the equation when it determined that the government had a sufficient explanation for Mobley’s absence. But Doswell requires more.

Doswell does not require only reliability and a satisfactory explanation to admit hearsay evidence. Rather, after the government has satisfied each of those requirements, “the district court must balance the releasee’s interest in confronting an adverse witness against any proffered good cause for denying such confrontation.”

Moreover, in  announcing its ruling, the district court held that that the government had provided a sufficient explanation for Mobley’s absence and it “[did not] find any good cause not to consider this hearsay testimony from Ms. Mobley.” This statement of the law shifted the burden to appellant to demonstrate good cause to exclude the hearsay evidence. That was incorrect. Rule 32.1 begins with a presumption that hearsay evidence is inadmissible.It is the government that bears to burden of demonstrating reliability and good cause to admit the evidence.

Effort

Appellant argues that the government’s explanation with regard to its failure to secure the key witness here was insufficient because the probation officer made no more than a single failed attempt to serve Mobley. The court agrees.

While the probation officer testified that the called and sent text messages to Mobley in the weeks leading up to the revocation hearing, he made only a single attempt to visit her known residence to personally serve her. This, despite the fact that probable cause to proceed with the revocation hearing had been found a full five months prior to the revocation hearing and the subpoena had issued approximately three weeks prior to the hearing.

The government argues this error was harmless because, in its view, the district court ruled that it would have found the violation even without the hearsay. This court disagrees.

Vacated and remanded.

Dissenting opinion

King, J., dissenting:

Because I am fully satisfied that the very able presiding judge did not abuse his broad discretion in making the challenged evidentiary ruling, I would affirm the judgment of the district court. As a result, I respectfully dissent.

United States v. Mobley, Case No. 23-4636, March 10, 2025. 4th Cir. (Thacker), from WDNC at Charlotte (Conrad Jr.). Ann Loraine Hester for Appellant. Julia Kay Wood for Appellee. 27 pp.