United States v. Brian Caluya

• Court: Court of Appeals for the Sixth Circuit
• Decided: November 3, 2023
• Docket: 23-3611
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 23a0461n.06

Case No. 23-3611

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED ) Nov 03, 2023 UNITED STATES OF AMERICA, KELLY L. STEPHENS, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE NORTHERN DISTRICT OF BRIAN CALUYA aka Bryan Caluya, ) OHIO Defendant-Appellant. ) OPINION )

Before: SUTTON, Chief Judge; STRANCH and MATHIS, Circuit Judges.

MATHIS, Circuit Judge. Brian Caluya appeals the revocation of his supervised release.

For the reasons below, we affirm.

I.

In 2020, Caluya pleaded guilty to illegally possessing a firearm in violation of 18 U.S.C.

§ 922(g)(9). The district court sentenced Caluya to 33 months’ imprisonment, followed by a three-

year term of supervised release.

In December 2022, while on supervised release, Caluya was involved in an automobile

accident in his 2020 Chevrolet Equinox and fled the scene. Shortly after the accident, officers

found a plastic bag in the vehicle that they initially believed contained crack cocaine and

marijuana. Officers also located Caluya’s cellphone and state-issued identification inside the

vehicle. Caluya admitted to the officers, as well as to the district court in his pro se “Motion for Case No. 23-3611, United States v. Caluya

Early Termination of Supervised Release,” that he was the driver of the crashed Equinox. R. 47,

PageID 289–90; R. 41, PageID 248–49. In February 2023, a state grand jury indicted Caluya for

drug possession and failure to stop after an accident for the December 2022 incident.

On June 29, 2023, the United States Probation Office provided the district court with a

report of noncompliance, which alleged four violations of Caluya’s supervised release. The

violations were: (1) a new law violation predicated on the grand jury indictment for drug

possession and failure to stop after an accident; (2) non-compliance with substance abuse treatment

based on Caluya’s failure to attend group counseling on June 6 and 13, 2023; (3) unauthorized use

of drugs based on Caluya’s positive drug tests in December 2022, February 2023, and June 2023;

and (4) failure to report for drug testing in May and June 2023.

At Caluya’s supervised release revocation hearing, the parties were provided with copies

of two police reports and a lab report related to the new law violation before the hearing began.

Caluya admitted violations three and four but denied violations one and two. For the new law

violation, Caluya initially asked the court to hold the matter in abeyance pending the state trial that

was set to begin the following Monday, which the court denied. For violation two, Caluya

conceded that he did not attend group substance abuse treatment sessions but claimed that he was

excused from attending. Caluya does not challenge the court’s finding as to violations two, three,

or four on appeal.

The government called probation officer Candice Bryant as its only witness. Officer

Bryant began supervising Caluya’s supervised release in January 2023. Officer Bryant testified

that she learned about Caluya’s new law violation at that time, and she recounted the information

in the two police reports and the lab report. According to the police reports, Caluya admitted to

driving the Equinox but explained to police that he fled because he believed the other vehicles

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involved in the accident were following him, which made him feel unsafe following the shooting

death of a friend. The lab report revealed that the substance officers found in the plastic bag in

Caluya’s vehicle tested positive for heroin and fentanyl.

Caluya’s attorney objected to the admission of the reports and to Officer Bryant’s

testimony on the ground that she did not have personal knowledge of the events surrounding the

new law violation. The district court overruled the objection and indicated that it would grant

Caluya a continuance if needed to call more witnesses.

During cross-examination, Officer Bryant testified that she received the reports from

someone with the Cleveland Police Department, that she did not talk to anyone involved with the

December 2022 incident, and that she had no personal knowledge about the events. Caluya did

not call any witnesses.

Relying on Officer Bryant’s testimony, the police and lab reports, and the admissions in

Caluya’s pro se motion, the district court found by a preponderance of the evidence that Caluya

committed all four violations. The court revoked Caluya’s supervised release and imposed a

below-Guidelines sentence of five months’ imprisonment to be followed by two years of

supervised release. Caluya’s timely appeal followed.

II.

We review a district court’s revocation of supervised release for an abuse of discretion.

See United States v. Givens, 786 F.3d 470, 471 (6th Cir. 2015). In doing so, we give “fresh review

to its legal conclusions and clear-error review to its fact findings.” United States v. Kontrol, 554

F.3d 1089, 1091–92 (6th Cir. 2009) (citations omitted). To reverse a district court’s revocation

decision, we must have “a ‘definite and firm conviction that the court below committed a clear

error of judgment in the conclusion it reached upon a weighing of the relevant factors.’” United

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States v. Stephenson, 928 F.2d 728, 732 (6th Cir. 1991) (quoting Taylor v. U.S. Parole Comm’n,

734 F.2d 1152, 1195 (6th Cir. 1984)).

III.

On appeal, Caluya argues that the district court erred in finding that he violated the terms

of his supervised release because it relied solely on Officer Bryant’s hearsay testimony, which

Caluya claims was unreliable, without specifically finding that the interest of justice did not require

additional witnesses. See FED. R. CRIM. P. 32.1(b)(2)(C). Caluya also contends that the evidence

was insufficient to support the revocation of his supervised release. We address each argument in

turn.

A.

We first consider whether the district court, in revoking Caluya’s supervised release,

properly relied on the police and lab reports that Officer Bryant referenced in her testimony. In

considering this issue, we must remember that: (1) a revocation hearing is “more flexible than a

criminal trial,” and (2) a district court may consider any relevant evidence during a revocation

hearing, including “hearsay if it is proven to be reliable.” Stephenson, 928 F.2d at 732 (citing

Morrissey v. Brewer, 408 U.S. 471, 489 (1972); Taylor, 734 F.2d at 1155); see United States v.

Lewis, 790 F. App’x 702, 707 (6th Cir. 2019). Though flexible, a revocation hearing still must

satisfy certain minimal procedural requirements. Pertinent here, under Federal Rule of Criminal

Procedure 32.1(b)(2)(C), a defendant has “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[.]” That said, neither the Confrontation Clause nor the Federal Rules of

Evidence apply in revocation hearings. See United States v. Kirby, 418 F.3d 621, 627–28 (6th Cir.

2005); FED. R. EVID. 1101(d)(3).

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Reliable hearsay evidence includes that which is “given under oath, replete with detail, or

supported by corroborating evidence[.]” United States v. Kokoski, 435 F. App’x 472, 474–75 (6th

Cir. 2011) (citations omitted). “Conversely, out-of-court statements reflecting an adversarial

relationship with the accused, or containing multiple layers of hearsay, have been recognized as

unreliable.” Id. at 475 (citations omitted). Hearsay corroborated by the defendant himself may be

deemed reliable and admissible. See, e.g., id. (citing Crawford v. Jackson, 323 F.3d 123, 130

(D.C. Cir. 2003), for the proposition that “hearsay is reliable and admissible at a revocation hearing

when corroborated by the defendant’s own statements”).

Under the circumstances, Officer Bryant’s testimony and the police and lab reports

constituted reliable hearsay evidence. That evidence arose from a December 2022 automobile

accident involving Caluya where officers located drugs in Caluya’s Chevrolet Equinox after he

fled the scene. In his pro se motion for termination of supervised release, Caluya admitted his

involvement in the accident and further admitted he crashed his Equinox and fled the scene. Thus,

Caluya corroborated the hearsay testimony, giving it additional indicia of reliability. As the district

court observed, Caluya “mention[ed] [the] crash in the very car that you now say . . . is yours and

that you’re without it for some reason, but the drugs in it weren’t yours.” There was no evidence

that the drugs found in the Equinox belonged to anyone other than its owner (Caluya), and Caluya’s

argument that the people allegedly threatening his life may have planted the drugs remains

unsubstantiated.

Even though Officer Bryant’s testimony was “given under oath, replete with detail, [and]

supported by corroborating evidence,” Kokoski, 435 F. App’x at 474–75, Caluya argues it was

unreliable because Officer Bryant merely summarized police reports that contained “multiple

layers of hearsay.” Furthermore, Caluya claims the district court should not have relied on Officer

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Bryant’s testimony because she testified that she had not spoken with anyone involved with the

alleged offense, had not conducted her own investigation, and had no personal knowledge of the

events that occurred. Caluya relies on our decisions in Taylor and Kirby to support his arguments.

But these cases do not help him.

In Taylor, we held that the district court abused its discretion in finding the defendant had

committed new criminal conduct based entirely on the probation officer’s summary of an arrest

report. 734 F.2d at 1155–56. On the other hand, we held in Kirby that the district court did not

abuse its discretion by relying solely on the probation officer’s testimony in determining that the

defendant engaged in new criminal conduct because the officer “undertook an independent

investigation of the alleged criminal conduct rather than simply relating the contents of an arrest

report.” 418 F.3d at 626–27. Unlike in Taylor, the district court did not base its revocation

decision solely on Officer Bryant’s summary of the police and lab reports. And although Officer

Bryant did not conduct an independent investigation like the probation officer in Kirby, such an

investigation was unnecessary based on Caluya’s admissions in his pro se motion.

Moreover, “there is no ‘independent investigation requirement for supervised release

revocation cases,’ and ‘a witness need not have firsthand knowledge of the underlying facts in

order to testify competently at a revocation hearing.’” United States v. Shakir, 574 F. App’x 712,

714 (6th Cir. 2014) (per curiam) (quoting United States v. Thompson, 314 F. App’x 797, 800 (6th

Cir. 2008)). In Shakir, we held that because the probation officer based her testimony on an arrest

warrant that “contained a detailed account of the underlying events, including the date, time, and

place” of a drug sale—details which the defendant did not dispute—the evidence was sufficient to

support the district court’s finding that the defendant violated his supervised release. Id. The same

is true here.

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Caluya also argues that the district court was required to make an express finding that the

interest of justice did not require the government to call witnesses adverse to Caluya. According

to the Advisory Committee Notes to the 2002 Amendments to Rule 32.1, “[t]he court is to balance

the person’s interest in the constitutionally guaranteed right to confrontation against the

government’s good cause for denying it.” But we have never required district courts to conduct

this balancing test on the record. See, e.g., Kokoski, 435 F. App’x at 475 (noting that “[t]here is

some question whether a district court’s reliability finding must satisfy a procedural requirement

as well, namely that the court expressly balance on the record the government’s interest in relying

upon the hearsay . . . against [the defendant’s] interest in confrontation”); United States v.

Coleman, 570 F. App’x 438, 440–41 (6th Cir. 2014) (reiterating the observation in Kokoski “that

there is some question as to whether such express balancing is required” (internal quotation marks

removed)). Based on the district court’s statements during the revocation hearing, the court

believed that good cause existed to deny Caluya’s desire to confront adverse witnesses.

B.

Caluya argues that the district court abused its discretion because the evidence was

insufficient to support the district court’s finding that he violated his supervised release by

committing the new law violation. We disagree. Under 18 U.S.C. § 3583(e)(3), the district court

may revoke a term of supervised release if it finds “by a preponderance of the evidence that the

defendant violated a condition of supervised release[.]” See Givens, 786 F.3d at 471. Caluya

claims that the district court relied solely on unreliable hearsay, but he is mistaken. The police

reports, as well as the admissions by Caluya in his pro se motion and by his attorney at the

revocation hearing, established that he was the owner and driver of the crashed Equinox, that he

fled the scene, and that there were drugs in his car. The police reports also indicated that officers

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located Caluya’s identification card and cellphone inside the vehicle, and the reports detailed an

interview officers conducted of Caluya during which he admitted to driving the vehicle.

Based on the evidence admitted at the revocation hearing, the district court did not abuse

its discretion in finding that Caluya violated the terms of his supervised release.

IV.

We AFFIRM the district court’s judgment.

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