USCA11 Case: 20-14511 Date Filed: 08/25/2021 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-14511 Non-Argument Calendar ________________________
D.C. Docket No. 1:09-cr-00024-TFM-M-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERSKINE D. SALTER,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Alabama ________________________
(August 25, 2021)
Before JILL PRYOR, LUCK and DUBINA, Circuit Judges.
PER CURIAM: USCA11 Case: 20-14511 Date Filed: 08/25/2021 Page: 2 of 6
Appellant Erskine Salter appeals the district court’s order revoking his
supervised release and imposing a 57-month sentence, for various violations of the
conditions of his release. These violations include possession of a firearm,
conspiracy to possess with intent to distribute cocaine and marijuana, possession
with intent to distribute marijuana, the sale of opium, and association with a
convicted felon. He argues that the district court’s decision was based on hearsay
evidence improperly admitted in violation of his confrontation rights and is due to
be vacated. Specifically, he asserts that the district court should not have
considered three pieces of hearsay evidence: (1) a forensic report indicating that
his DNA was found on a firearm uncovered at his girlfriend’s residence; (2) his
probation officer’s testimony about her conversation with another probationer
during which the probationer stated that Salter had asked the probationer to traffic
codeine syrup; and (3) an affidavit from the probationer confirming the
information he gave Salter’s probation officer. After reviewing the record and
reading the parties’ briefs, we affirm the district court’s order revoking Salter’s
supervised release and imposing a 57-month sentence.
I.
We review a district court’s revocation of supervised release, as well as
evidentiary rulings, for an abuse of discretion. United States v. Cunningham, 607
2 USCA11 Case: 20-14511 Date Filed: 08/25/2021 Page: 3 of 6
F.3d 1264, 1266 (11th Cir. 2010) (revocation of supervised release); United States
v. Novaton, 271 F.3d 968, 1005 (11th Cir. 2001) (evidentiary decisions). We are
also bound by the district court’s findings of fact unless they are clearly erroneous.
See id.
II.
A district court may revoke a defendant’s term of supervised release and
impose a prison sentence if the district court finds, by a preponderance of the
evidence, that the defendant violated a condition of his release. 18 U.S.C. §
3583(e)(3). A district court is required to revoke supervised release for violations
concerning possession of a controlled substance or a firearm. 18 U.S.C.
§ 3583(g)(1)-(2).
Notably, the Federal Rules of Evidence do not apply in supervised-release
revocation proceedings. United States v. Frazier, 26 F.3d 110, 113-14 (11th Cir.
1994). However, “the admissibility of hearsay is not automatic,” and defendants in
such proceedings are entitled to certain minimal due-process requirements. Id. at
114 (determining that the district court’s failure to make findings on the reliability
of certain hearsay evidence or weigh the defendant’s right to confrontation was
erroneous). These protections have been incorporated into the Federal Rules of
Criminal Procedure. Id.; see Fed. R. Crim. P. 32.1. Rule 32.1 provides that
defendants at revocation hearings are “entitled” to “an opportunity to . . . question
3 USCA11 Case: 20-14511 Date Filed: 08/25/2021 Page: 4 of 6
any adverse witness unless the court determines that the interest of justice does not
require the witness to appear.” Fed. R. Crim. P. 32.1(b)(2)(C).
Hearsay is an out-of-court statement made by a declarant to prove the truth
of the matter asserted in the statement. Fed. R. Evid. 801(c). A “statement”
includes a person’s oral or written assertions, and a “declarant” refers to the person
who made the statement. Fed. R. Evid. 801 (a)-(b). In deciding whether to admit
hearsay testimony, the district court “must balance the defendant’s right to
confront adverse witnesses against the grounds asserted by the government for
denying confrontation.” Frazier, 26 F.3d at 114. Additionally, “the hearsay
statement must be reliable.” Id. In order to show that the hearsay evidence
violates a defendant’s due process rights, the defendant bears the burden of
showing that the challenged evidence (1) is materially false or unreliable and (2)
serves as the basis for the sentence. United States v. Taylor, 931 F.2d 842, 847
(11th Cir. 1991). If the district court errs in failing to engage in the balancing test,
the error is nonetheless harmless if the properly considered evidence demonstrates
a supervised release violation by a preponderance of the evidence. See Frazier, 26
F.3d at 114.
III.
Here, the district court did not abuse its discretion by revoking Salter’s
supervised release or imposing a 57-month sentence based on improperly admitted
4 USCA11 Case: 20-14511 Date Filed: 08/25/2021 Page: 5 of 6
hearsay evidence. Regarding the DNA report, the district court weighed both
parties’ positions by considering both their written findings and oral arguments at
the hearing, and the government argued that the expense required to produce the
forensic scientist was good cause to proceed without him. The government also
argued that the report was reliable given its preparation by the Alabama
Department of Forensics Sciences. Salter failed to offer more than general
speculation on the report’s reliability. The district court also expressly noted that,
even if the DNA report was not admissible, the evidence presented was still
sufficient to reach the same result. Thus, Salter did not meet his burden of
showing that the report was unreliable or that it “actually served” as a basis for the
sentence. See Taylor, 931 F.2d at 847.
The court also did not abuse its discretion in admitting the probation
officer’s testimony and the probationer’s affidavit because, although the court did
not balance Salter’s right of confrontation, the evidence was not hearsay, but
rather, was admitted for purposes other than the truth of the matter asserted. The
information was used to corroborate and provide context for what prompted the
officer’s investigation of Salter’s probation violations.
Further, even if the district court committed an error in admitting the
testimony and affidavit, the error was harmless because other properly admissible
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USCA11 Case: 20-14511 Date Filed: 08/25/2021 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-14511 Non-Argument Calendar ________________________
D.C. Docket No. 1:09-cr-00024-TFM-M-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERSKINE D. SALTER,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Alabama ________________________
(August 25, 2021)
Before JILL PRYOR, LUCK and DUBINA, Circuit Judges.
PER CURIAM: USCA11 Case: 20-14511 Date Filed: 08/25/2021 Page: 2 of 6
Appellant Erskine Salter appeals the district court’s order revoking his
supervised release and imposing a 57-month sentence, for various violations of the
conditions of his release. These violations include possession of a firearm,
conspiracy to possess with intent to distribute cocaine and marijuana, possession
with intent to distribute marijuana, the sale of opium, and association with a
convicted felon. He argues that the district court’s decision was based on hearsay
evidence improperly admitted in violation of his confrontation rights and is due to
be vacated. Specifically, he asserts that the district court should not have
considered three pieces of hearsay evidence: (1) a forensic report indicating that
his DNA was found on a firearm uncovered at his girlfriend’s residence; (2) his
probation officer’s testimony about her conversation with another probationer
during which the probationer stated that Salter had asked the probationer to traffic
codeine syrup; and (3) an affidavit from the probationer confirming the
information he gave Salter’s probation officer. After reviewing the record and
reading the parties’ briefs, we affirm the district court’s order revoking Salter’s
supervised release and imposing a 57-month sentence.
I.
We review a district court’s revocation of supervised release, as well as
evidentiary rulings, for an abuse of discretion. United States v. Cunningham, 607
2 USCA11 Case: 20-14511 Date Filed: 08/25/2021 Page: 3 of 6
F.3d 1264, 1266 (11th Cir. 2010) (revocation of supervised release); United States
v. Novaton, 271 F.3d 968, 1005 (11th Cir. 2001) (evidentiary decisions). We are
also bound by the district court’s findings of fact unless they are clearly erroneous.
See id.
II.
A district court may revoke a defendant’s term of supervised release and
impose a prison sentence if the district court finds, by a preponderance of the
evidence, that the defendant violated a condition of his release. 18 U.S.C. §
3583(e)(3). A district court is required to revoke supervised release for violations
concerning possession of a controlled substance or a firearm. 18 U.S.C.
§ 3583(g)(1)-(2).
Notably, the Federal Rules of Evidence do not apply in supervised-release
revocation proceedings. United States v. Frazier, 26 F.3d 110, 113-14 (11th Cir.
1994). However, “the admissibility of hearsay is not automatic,” and defendants in
such proceedings are entitled to certain minimal due-process requirements. Id. at
114 (determining that the district court’s failure to make findings on the reliability
of certain hearsay evidence or weigh the defendant’s right to confrontation was
erroneous). These protections have been incorporated into the Federal Rules of
Criminal Procedure. Id.; see Fed. R. Crim. P. 32.1. Rule 32.1 provides that
defendants at revocation hearings are “entitled” to “an opportunity to . . . question
3 USCA11 Case: 20-14511 Date Filed: 08/25/2021 Page: 4 of 6
any adverse witness unless the court determines that the interest of justice does not
require the witness to appear.” Fed. R. Crim. P. 32.1(b)(2)(C).
Hearsay is an out-of-court statement made by a declarant to prove the truth
of the matter asserted in the statement. Fed. R. Evid. 801(c). A “statement”
includes a person’s oral or written assertions, and a “declarant” refers to the person
who made the statement. Fed. R. Evid. 801 (a)-(b). In deciding whether to admit
hearsay testimony, the district court “must balance the defendant’s right to
confront adverse witnesses against the grounds asserted by the government for
denying confrontation.” Frazier, 26 F.3d at 114. Additionally, “the hearsay
statement must be reliable.” Id. In order to show that the hearsay evidence
violates a defendant’s due process rights, the defendant bears the burden of
showing that the challenged evidence (1) is materially false or unreliable and (2)
serves as the basis for the sentence. United States v. Taylor, 931 F.2d 842, 847
(11th Cir. 1991). If the district court errs in failing to engage in the balancing test,
the error is nonetheless harmless if the properly considered evidence demonstrates
a supervised release violation by a preponderance of the evidence. See Frazier, 26
F.3d at 114.
III.
Here, the district court did not abuse its discretion by revoking Salter’s
supervised release or imposing a 57-month sentence based on improperly admitted
4 USCA11 Case: 20-14511 Date Filed: 08/25/2021 Page: 5 of 6
hearsay evidence. Regarding the DNA report, the district court weighed both
parties’ positions by considering both their written findings and oral arguments at
the hearing, and the government argued that the expense required to produce the
forensic scientist was good cause to proceed without him. The government also
argued that the report was reliable given its preparation by the Alabama
Department of Forensics Sciences. Salter failed to offer more than general
speculation on the report’s reliability. The district court also expressly noted that,
even if the DNA report was not admissible, the evidence presented was still
sufficient to reach the same result. Thus, Salter did not meet his burden of
showing that the report was unreliable or that it “actually served” as a basis for the
sentence. See Taylor, 931 F.2d at 847.
The court also did not abuse its discretion in admitting the probation
officer’s testimony and the probationer’s affidavit because, although the court did
not balance Salter’s right of confrontation, the evidence was not hearsay, but
rather, was admitted for purposes other than the truth of the matter asserted. The
information was used to corroborate and provide context for what prompted the
officer’s investigation of Salter’s probation violations.
Further, even if the district court committed an error in admitting the
testimony and affidavit, the error was harmless because other properly admissible
evidence established that Salter had committed the associated violations by a
5 USCA11 Case: 20-14511 Date Filed: 08/25/2021 Page: 6 of 6
preponderance of the evidence. This unchallenged evidence supported two
uncontested grade A violations: (1) consistent information from three separate
confidential informants, each unaware of the other’s reports, that Salter was
engaging in drug-related activities from the residences of his parents; (2)
corroboration of the confidential informants’ information by the investigating
officer’s observations during his surveillance of Salter; (3) interactions between
Salter and known drug dealers; (4) the controlled purchase of marijuana from
Salter; (5) the marijuana found at Salter’s father’s residence; and (6) Salter’s
inadequate explanations for suspicious activities and his lack of credibility. Based
on this evidence, the district court did not clearly err in finding that Salter had
committed grade A violations of the conditions of his supervised release.
Therefore, any error by the district court’s admission of the probation officer’s
testimony and the probationer’s affidavit was harmless.
Accordingly, based on the aforementioned reasons, we affirm the district
court’s order revoking Salter’s supervised release and imposing a 57-month
sentence.
AFFIRMED.