Virginia Lawyers Weekly VA Lawyers Weekly
Where the district court erred by referring to statements from the defendant’s ex-wife during a sentencing hearing without balancing the parties’ interests, requiring a showing of good cause or disclosing them to the defendant, the error was harmless. The record provided no evidence that a lower sentence would have been imposed absent the improperly admitted statements.
Background
In a hearing to determine whether to revoke Thomas Combs’ supervised release and sentence him to additional time in prison, the district court twice referred to out-of-court statements by Combs’ ex-wife. The court neither disclosed these statements to Combs’ counsel before the revocation hearing nor gave counsel the opportunity to cross-examine the speaker.
At the hearing, Combs never objected to the court’s introduction of the statements or requested a continuance during which he might discover information about them. Combs argues on appeal, however, that the introduction of his ex-wife’s statements during the revocation hearing constitutes plain error and asks that the court remand this case to the district court for resentencing.
Analysis
Federal Rule of Criminal Procedure 32.1(b)(2)(B) states that a person subject to a revocation hearing “is entitled to … disclosure of the evidence against” him. Additionally, Rule 32.1(b)(2)(C) states that a person charged with a violation of the terms of supervised release “is entitled to … an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear.” Thus, under subsection (C), “prior to admitting hearsay evidence in a revocation hearing, the district court must balance the releasee’s interest in confronting an adverse witness against any proffered good cause for denying such confrontation.”
The government primarily contends that the district court committed no error at all here because neither of these rules applies to the sentencing portion of the revocation hearing, as opposed to what the government calls the “guilt phase.” The court disagrees.
First, nothing in the text of the rule indicates that it applies only to the so-called “guilt phase.” Moreover, subsection (E) of the same rule provides a person charged with a violation of the terms of supervised release the right “to make a statement and present any information in mitigation.” The government does not dispute that mitigation and allocution relate to sentencing. That Rule 32.1(b)(2) lists the right to allocution together with the rights to the disclosure of evidence and to question adverse witnesses in a single list of procedural protections — drawing no distinction between the guilt and sentencing phases of a revocation hearing — indicates strongly that the Rule applies to the entire proceeding. The origins of Rule 32.1 make that conclusion even more apparent.
The government nevertheless argues that it would be nonsensical to impose stricter procedural requirements during revocation sentencings than apply during ordinary sentencings. The government points to a prior decision in which this court stated that it has “repeatedly allowed a sentencing court to consider ‘any relevant information before it, including uncorroborated hearsay, provided that the information has sufficient indicia of reliability.’”
But as Combs notes, the two contexts are not comparable. A criminal conviction imposed after an initial criminal trial carries with it societal stigma and, often, the loss of civil rights like the rights to vote and serve on a jury. In contrast, the guilt phase of a revocation hearing involves few, if any, of these collateral consequences. The court thus rejects the government’s argument that these rules do not apply to the sentencing phase of a revocation proceeding and concludes that the district court erred in introducing N.D.’s statements without balancing the interests of the parties, requiring a showing of good cause or first disclosing the statements to Combs.
The question is whether, absent the improperly admitted statements, Combs has shown a reasonable probability that the district court would have imposed a lower sentence. The record provides no evidence of such a probability. Considering the wealth of information the district court already had before it as to Combs’ treatment of his ex-wife, the court’s heavy emphasis on the frequency of violations and the threat to public safety posed by Combs and the bottom-of-the-guidelines sentence it imposed, Combs has not shown a reasonable probability that the outcome of the proceedings would have been different absent consideration of the undisclosed statements.
Affirmed.
United States v. Combs, Case No. 21-4064, June 7, 2022. 4th Cir. (Motz), from DMD at Baltimore (Bennett). Cullen Oakes Macbeth for Appellant. Matthew Paul Phelps for Appellee. VLW 022-2-136. 11 pp.
