United States v. Williams.
No. 23-3170. 7/2/2024. D.Kan. Judge Hartz. Revocation of Supervised Release—Confidential Informant—Controlled Buy—Fed. R. Crim. P. 32.1(b)(2)(C)—Sufficiency of Evidence—Burden of Persuasion.
July 2, 2024
Williams pleaded guilty to distributing crack cocaine and to unlawful possession of a firearm. He was sentenced to 84 months’ imprisonment followed by eight years of supervised release. Williams began serving his supervised release in 2015, but his supervised release was revoked in 2020 because he violated his release conditions. He was sentenced to an additional 18 months’ imprisonment, followed by two years of supervised release. In 2022 Williams entered supervised release again. In 2023, his probation officer recommended that his supervised release be revoked because he had violated his release conditions by unlawfully possessing a controlled substance; committing another crime; and owning, possessing, or having access to a firearm. At the revocation hearing, the government introduced evidence that Williams sold fentanyl to a confidential informant (CI) in a controlled buy and possessed a firearm while doing so, and that officers later searched a residence where Williams apparently had his own room and found a firearm, ammunition, and fentanyl. The evidence included testimony from Officers Palmerin and McAvoy and a video of the controlled buy. When the government moved to admit the video, Williams’s counsel objected because the CI was not present. The district court said that it would not consider the CI’s statements on the video for the truth but simply for “what led to whatever statement is made by the person who is alleged to be Mr. Williams.” The court found that Williams sold fentanyl and therefore committed a violation but did not find a violation related to the firearm. The court revoked his term of supervised release and sentenced him to 24 months’ imprisonment.
On appeal, Williams contended that the district court erred by admitting evidence of the controlled buy without conducting an interest-of-justice balancing test under Fed. R. Crim. P. 32.1(b)(2)(C) to determine whether the CI should have been required to be available for cross-examination at the hearing. He maintained that Rule 32.1(b)(2)(C) gave him the right to question the CI regardless of whether the CI’s evidence was hearsay. Rule 32.1(b)(2)(C) provides that a defendant in a revocation hearing is entitled to question an adverse witness, unless the court determines that, in the interest of justice, the witness is not required to appear. Under the rule, the court must balance the person’s interests in right to confrontation against the government’s good cause for denying it. An adverse witness under Rule 32.1(b)(2)(C) is a declarant of hearsay used to establish violation of a release condition; the term refers to a person who has made a statement the truth of which is used by the government to establish guilt. Accordingly, the balancing test applies only to hearsay, and Williams cited no case authority holding otherwise. Here, the only hearsay objection Williams made at the hearing concerned statements on the video by the CI, which the court did not consider for the truth. Additionally, the only statement the CI made that probably could not be used for a nonhearsay purpose was her statement that Williams had a gun. But the court obviously did not use that statement against Williams because it did not rule against him on the possession of a firearm charge. Thus, the district court was not required to conduct a Rule 32.1(b)(2)(C) balancing test because it did not consider any hearsay evidence.
Williams also argued that there was insufficient evidence to prove that he distributed fentanyl. To revoke supervised release, the district court must find a violation of the defendant’s supervised release conditions by a preponderance of the evidence. Here, the video and testimony establish that (1) Officer Palmerin searched the CI before the buy and did not find any contraband on her, even though no police officer searched her undergarments before the controlled buy; (2) Officer Palmerin gave the CI $200 to make the buy; and (3) Officer McAvoy drove the CI to a strip mall to meet with Williams, and the CI entered Williams’s vehicle and returned with a bag of fentanyl. Therefore, the evidence was sufficient to find by a preponderance of the evidence that Williams sold fentanyl to the CI.
Williams also asserted that the district court improperly shifted the burden of persuasion by requiring him to show that the CI possessed fentanyl before the controlled buy. However, rather than shifting the burden of persuasion, the court simply inferred that Williams sold fentanyl to the CI from the officers’ testimony and the video.
The judgment was affirmed.
The full opinion is available at https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111073890.pdf.