Criminal Law – Improper Hearsay Evidence – Doswell Balancing Test

The district court abused its discretion when it admitted hearsay evidence during Appellant’s revocation hearing, and that the improper hearsay evidence was essential to the district court’s finding that he violated his supervised release.

We vacated the district court’s judgment on the revocation of supervised release and remanded with instructions for the district court to dismiss the revocation petition.

Appellant appealed 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. Appellant argued 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. We agreed.

Appellant first argued that the district court abused its discretion by misapplying the Doswell balancing test. Doswell 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 argued 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. We agreed. To be sure, the district court recognized that it was required to conduct a balancing test. In fact, the court stated explicitly that it “must balance [Appellant’s] interest in confronting an adverse witness against any proffered good cause for denying such confrontation.” But our 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. 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.

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.” Doswell, 670 F.3d at 530. True, Doswell suggested that if the Government satisfies both inquiries, “the hearsay evidence will likely be admissible under Rule 32.1.” But logically, if the factors making up “good cause” were always sufficient to overcome a defendant’s interest, then there would be no need for Doswell to require balancing. While the district court here said it made its finding by “[d]oing that balancing,” it did not place any balancing analysis on the record. Without more for this court to review, just saying it conducted the balancing does not make it so. Therefore, we make clear that district courts considering the admission of hearsay evidence in revocation proceedings must balance, on the record, the defendant’s interest in confrontation against the Government’s good cause. Because the district court failed to do so here, it committed legal error and abused its discretion. In sum, we concluded that the district court abused its discretion by failing to properly conduct the balancing test required by Doswell, and by improperly shifting the burden to Appellant.

Appellant next argued that even if the district court had properly balanced the interests at stake, it still abused its discretion when it determined that the alleged victim was reliable and that the Government had “offered a satisfactory explanation for not producing the adverse witness.” we readily concluded that the Government failed to provide a sufficient explanation for its failure to obtain the alleged victim’s live testimony at the revocation hearing, particularly given the import of the testimony of the absent witness. The district court abused its discretion in holding otherwise. The district court abused its discretion in admitting the hearsay evidence and could not have found the violation without that evidence.

Vacated and remanded.

United States v. Gerald Adrian Wheeler (Lawyers’ Weekly No. 001-075-25, 27 pp.) (Stephanie Thacker, J.) Appealed from the U.S. District Court for the Western District of North Carolina, at Charlotte (Robert J. Conrad, Jr., J.) Argued: Ann Loraine Hester, Office of the Federal Public Defender, Charlotte, North Carolina, for Appellant; Julia Kay Wood, Office of the United States Attorney, Charlotte, North Carolina, for Appellee. On Brief: John G. Baker, Federal Public Defender, Office of the Federal Public Defender, Charlotte, North Carolina, for Appellant. Dena J. King, United States Attorney, Office of the United States Attorney, Charlotte, North Carolina, for Appellee. U.S. Court of Appeals for the Fourth Circuit