United States v. Cancer (Perry)

• Court: Court of Appeals for the Second Circuit
• Decided: December 13, 2019
• Docket: 18-1975
• Status: Unpublished

Opinion

18‐1975 United States v. Cancer (Perry)

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of December, two thousand nineteen.

PRESENT: DENNIS JACOBS, ROBERT D. SACK, PETER W. HALL, Circuit Judges. _____________________________________

United States of America,

Appellee,

v. No. 18‐1975

Elijah Cancer, AKA Sleeze, AKA Sleezy, Mundhir Connor, AKA Montana, AKA Major, Wister Farmer, AKA Wisk, AKA Wist Daddy, AKA Wister, Eric Foster, AKA E‐Nasty, Owen Furthman, AKA Diz, Justin Gaddy, AKA J‐Black, Ladawn Harris, AKA Nana, AKA Nash, Anairian Kittle, AK, Michelle Knickerbocker, Kwon Lillard, AKA Killah, Kolby Martin, AKA HG, AKA Hollywood, AKA Holly G, AKA H, Holla Day, Jomeek McNeal, AKA Streets, AKA Meek Meek, Winfield C. Nicholson, AKA Champ, AKA Bamp, Alfonzo Parker, AKA Phat Phat, AKA Fat Fat, AKA Phatz14, Kenyan Poole, AKA KP, Dushawn Pough, AKA Sixx, AKA Six, Derrick Ruffin, AKA D‐Black, Elijah Sims, AKA E‐Head, AKA E, Nahmel Stratton, AKA Kid, AKA Kidco, AKA Biddy, Nakeem Stratton, AKA Bayshawn, AKA Little Bay, Dyjuan Tatro, AKA Dy, Kanan Tatro, AKA Kanya, AKA Kane, AKA BK, Charles Thompson, AKA Chuck, AKA Bula, Terrence Anthony, AKA T‐Black, AKA Blacc,

Defendants,

Marcel Perry, AKA Juxx, AKA Jooks,

Defendant‐Appellant. _____________________________________

For Appellant: JOHN B. CASEY, Casey Law LLC, Cohoes, New York.

For Appellee: PAUL D. SILVER, Richard D. Belliss, Assistant United States Attorneys, for Grant C. Jaquith, United States Attorney for the Northern District of New York, Albany, New York.

2 Appeal from a judgment of the United States District Court for the Northern

District of New York (Sharpe, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

Defendant‐Appellant Marcel Perry was found to have violated a condition

of his supervised release by possessing over two ounces of marijuana, in violation

of N.Y. Penal Law § 221.15. The district court revoked Perry’s term of supervised

release, sentencing him to 12 months and a day imprisonment, to run concurrent

with Perry’s state imprisonment for a related parole violation, followed by 47

months of supervised release. Perry challenges the district court’s violation

holding on the basis that the court improperly relied on hearsay testimony in

reaching its conclusion. Perry further challenges his 47‐month term of

supervised release as substantively unreasonable because it will not begin to run

until he is released from state custody. We assume the parties’ familiarity with

the underlying facts, the procedural history of the case, and the issues on appeal.

3 I.

Perry contends that the district court abused its discretion in finding that he

violated a condition of his supervised release by engaging in new criminal

conduct. In support, Perry argues that the testimony of Detective Regan, the sole

substantive witness for the government at the revocation hearing, included

inadmissible hearsay and that without those statements the evidence was

insufficient to prove it was more likely than not that Perry committed criminal

possession of marijuana in the fourth degree.

A district court may revoke supervised release and impose a term of

imprisonment if it finds by a preponderance of the evidence that the defendant

violated a condition of supervised release. 18 U.S.C. § 3583(e)(3); United States v.

Glenn, 744 F.3d 845, 847‐48 (2d Cir. 2014). “The preponderance of the evidence

standard requires proof that the defendant’s violation of supervision was more

likely than not.” United States v. Edwards, 834 F.3d 180, 199 (2d Cir. 2016). “We

review such a preponderance finding only for abuse of discretion, which can

consist of an error of law or a clearly erroneous assessment of the facts.” Id. (citing

Glenn, 744 F.3d at 847).

4 We also “accord strong deference to a district court’s credibility

determinations, particularly where that court based its findings on such

determinations.” United States v. Carlton, 442 F.3d 802, 811 (2d Cir. 2006). In

overruling one of Perry’s objections on hearsay grounds, the district court

commented that “[o]rdinary rules of evidence do not apply for revocation hearing

[sic]. All that’s essential is some sense of reliability which is a judicial

determination as to basis, among others, for my ruling this morning.” Appellant

App. at 36. The record is not clear what the district court’s rationale for

admissibility was, but we see two possibilities: that the challenged statements

were not hearsay, or that even if they were hearsay, they were admissible.

We need not speculate as to whether the district court thought Detective

Regan’s testimony was or was not hearsay. If it was hearsay, as Perry insists, the

district court was permitted to rely upon it. The Federal Rules of Evidence do

not apply at supervised release revocation hearings, but a district court’s findings

must still be based on “verified facts” and “accurate knowledge.” United States v.

Bari, 599 F.3d 176, 178‐79 (2d Cir. 2010) (in relaxing evidentiary constraints in

revocation hearings, “verified facts” and “accurate knowledge” are the

touchstones of our inquiry). Hearsay evidence may be admissible in a violation

5 of supervised release hearing if the district court determines that “good cause”

exists, balancing the defendant’s interest in confronting a declarant against the

government’s reasons for not producing the declarant‐witness and the reliability

of the proffered statement. See Fed. R. Crim. P. 32.1(b)(2)(C); United States v.

Williams, 443 F.3d 35, 45 (2d Cir. 2006); see also Morrisey v. Brewer, 408 U.S. 471, 489

(1972) (due process right to confront and cross‐examine adverse witnesses excused

where “the hearing officer specifically finds good cause for not allowing

confrontation”).

In explaining that its ruling was based on “some sense of reliability . . .

among other[] [bases],” Appellant App. at 36, we understand the district court

may be saying that, even if the objected‐to statements were hearsay, they would

be admissible under the lowered standard that applies to revocation proceedings.

It is not clear from the record that the district court admitted Detective Regan’s

testimony after balancing the precise factors we have mandated be considered.

See United States v. Chin, 224 F.3d 121, 124 (2d Cir. 2000) (“We hold that the district

court must balance the defendant’s right of confrontation with the government’s

grounds for not allowing confrontation, and with the reliability of the evidence

offered by the government.”) (internal citations omitted). “In any event, a district

6 court’s failure to comply with the interest‐of‐justice‐determination requirement of

Rule 32.1(b)(2)(C) and Morrissey/ [Gagnon v.] Scarpelli[, 411 U.S. 778, 782, 93 S.Ct.

1756, 36 L.Ed.2d 656 (1973)] is subject to harmless‐error analysis.” United States

v. Aspinall, 389 F.3d 332, 346 (2d Cir. 2002), abrogated on other grounds by United

States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), as recognized in

United States v. Fleming, 397 F.3d 95, 99 & n. 5 (2d Cir. 2005).

While it would have been helpful if the district court walked through the

good cause analysis that due process and Rule 32.1(b)(2)(C) require, even if the

district court abused its discretion by not explicitly engaging in this interest‐

balancing, any error would be harmless. See United States v. Williams, 443 F.3d 35,

46 (2d Cir. 2006) (“We review the court’s balancing of the Rule 32.1 factors for

abuse of discretion.”). The balance of interests comes out in favor of admissibility

– while Perry’s interest in confronting Chromczak is substantial and the

government’s interest, from this record, in not calling Chromczak to testify

appears to be minimal, the reliability of Detective Regan’s testimony as to the

results of the field‐testing and weighing is strong since he was present at the site

7 of the testing.1 See Aspinall, 389 F.3d at 346 (holding that any error by failure to

engage in interest balancing was “entirely harmless” given the “strong evidence”

of the reliability of documents that outweighed the defendant’s interest in cross‐

examination).

In holding that Detective Regan’s testimony is admissible, we wish to

emphasize that it is generally not our position to engage in “good cause” balancing

in the first instance and that district courts would be well advised to undertake a

careful analysis when admitting testimony that may be inadmissible hearsay if not

for the fact that the proceeding is a revocation hearing. Nor do we suggest that

hearsay with “some sense of reliability” will always outweigh a defendant’s right

in confronting an adverse witness in his revocation hearing. Indeed, this is a rare

case where the reliability of the statement (if it is hearsay) is so strong that it is

admissible absent a material government interest. We simply hold that, in this

particular context, the district court did not err in admitting Detective Regan’s

testimony, and we cannot say that it was an abuse of discretion for the district

1 It is worth noting that Perry had a full opportunity to cross‐examine Detective Regan to determine whether he was testifying as to his own observations or to elicit further explanation of the circumstances surrounding the field‐testing and weighing but failed to do so.

8 court to rely on it to find that Perry violated a condition of supervised release by

engaging in new criminal conduct.2

II.

Second, Perry contends that it was error for the district court to admit into

evidence a police report authored by a non‐testifying detective without first

finding good cause to admit the hearsay testimony. Any error in the district

court’s admission of the police report into evidence was harmless, because the

admissible testimony of Detective Regan was sufficient to support the district

court’s revocation of supervised release.

2 In his reply brief, Perry argues that the government did not offer evidence to demonstrate that he knew the weight of the marijuana he possessed and contends that this is fatal to the government’s case, asserting a violation of New York State law. “[A]rguments not made in an appellant’s opening brief are waived even if the appellant pursued those arguments in the district court or raised them in a reply brief.” JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 428 (2d Cir. 2005). Perry’s argument is nonetheless foreclosed by amendments to New York’s drug laws, which make clear that a defendant is not required to have knowledge of the weight of a substance, see Dixon v. Miller, 293 F.3d 74, 79 n.2 (2d Cir. 2002) (“The New York legislature . . . amend[ed] the law [for crimes committed after June 10, 1995] to eliminate knowledge of weight as an element of any drug offense. See N.Y. Penal Law § 15.20(4) (1997).”), nor does it matter to the extent his violation is also one of federal law.

9 III.

Third, Perry argues that his 47‐month term of supervised release is

substantively unreasonable because it will not begin until he is released from

state custody, where he is serving a term of imprisonment for a related parole

violation. Perry contends that, without getting credit for this concurrent state

custody, his term of supervised release will essentially exceed the maximum

number of months that can be imposed for his supervised release following a

revocation under 18 U.S.C. § 3583(e)––here, sixty months––and is therefore

unreasonable.

“A term of supervised release does not run during any period in which the

person is imprisoned in connection with a conviction for a Federal, State, or local

crime unless the imprisonment is for a period of less than 30 consecutive days.”

18 U.S.C. § 3624(e); see also United States v. Johnson, 529 U.S. 53, 57 (2000) (“[A]

supervised release term does not commence until an individual ‘is released from

imprisonment’.”). In United States v. Bussey, we explained that a term of

incarceration that results from a revocation of parole in New York is served “‘in

connection with’ [a defendant’s] conviction for a state crime” for the purposes of

18 U.S.C. § 3624(e). 745 F.3d 631, 633 (2d Cir. 2014) (citation omitted). We will

10 not create a conflict between 18 U.S.C. § 3583, which governs the length of

supervised release the district court may impose, and 18 U.S.C. § 3624(e), which

requires tolling of the term of supervised release while Perry is imprisoned, by

finding that the latter imposes an implicit limitation on the district court’s

authority under 18 U.S.C. § 3583. Perry’s term of supervised release is not

substantively unreasonable solely because it comports with applicable federal

statutes.

The 47‐month term of supervised release is not otherwise unreasonable.

“We will . . . set aside a district court’s substantive determination only in

exceptional cases where the trial court’s decision cannot be located within the

range of permissible decisions.” United States v. Cavera, 550 F.3d 180, 189 (2d

Cir. 2008) (en banc) (internal quotation marks and citation omitted). “A

sentencing judge has very wide latitude to decide the proper degree of

punishment for an individual offender and a particular crime.” Id. at 188.

Here, the district court, after considering the sentencing factors under 18 U.S.C. §

3553(a), Perry’s arguments in favor of reducing the supervised release term to

account for the time he will be imprisoned for his state parole revocation, and the

federal interest that has to be accommodated for the supervised release violation,

11 imposed a reasonable sentence which did not exceed the statutory maximum

under 18 U.S.C. § 3583. There is no indication that the district court’s decision

was outside of the range of permissible decisions, id. at 189, and we find no

substantive error in the sentence imposed.

***

We have considered Appellant’s remaining arguments and find them to be

without merit. We hereby AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court