United States Court of Appeals For the First Circuit
No. 21-1880
UNITED STATES OF AMERICA,
Appellee,
v.
DARREN FRANKLIN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Barron, Chief Judge, Selya and Howard, Circuit Judges.
Jonathan Shapiro, with whom Mia Teitelbaum and Shapiro & Teitelbaum LLP were on brief, for appellant. Karen L. Eisenstadt, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, was on brief, for appellee.
October 20, 2022 SELYA, Circuit Judge. Defendant-appellant Darren
Franklin challenges the district court's decision to admit and
consider hearsay evidence when revoking his term of supervised
release. After careful consideration, we find his challenge
wanting and affirm the judgment below.
I
Drawing from the record compiled in the district court,
we briefly rehearse the relevant facts. On April 30, 2007, the
appellant was convicted by a jury of possessing and distributing
cocaine base (crack cocaine) and of being a felon in possession of
ammunition. See 21 U.S.C. § 841(a)(1); 18 U.S.C. § 922(g)(1).
The district court sentenced him to serve a thirty-year term of
immurement, to be followed by a twelve-year term of supervised
release.
Following the passage of the First Step Act, Pub. L. No.
115-391, 132 Stat. 5194, the appellant moved to have his sentence
reduced. On October 24, 2019, the district court granted that
motion, resentencing him to a prison term of eighteen years (which
was effectively a sentence of time served). On November 1, 2019,
the appellant began serving his twelve-year term of supervised
release under several conditions — among them, that he not commit
any federal, state, or local crime.
On March 17, 2021, United States Probation Officer Kara
Lightowler paid the appellant an early morning visit at his home
- 2 - in Quincy, Massachusetts, where he resided with his longtime
girlfriend, Nicola Clark, and their children. Lightowler
testified that the appellant greeted her when she arrived, and
they made small talk for a few moments before she asked him to
provide a urine sample for a routine toxicology screening. While
he went to the bathroom, Clark emerged from the bedroom and
appeared — according to Lightowler — to be in a state of some
distress. Clark indicated that she wanted to speak privately with
Lightowler, mouthing the words silently in apparent fear of the
appellant overhearing their exchange. Lightowler gave Clark her
business card.
When the appellant returned from the bathroom,
Lightowler, sensing tension within the home and concerned for her
own safety, asked if she could speak with him outside. There, the
appellant told her that his relationship with Clark had become
strained and that he wished to move out of the home. Lightowler
informed him that the probation office would need to be apprised
of such a move. Their conversation then turned to more quotidian
affairs. Once Lightowler left the residence, she called and
messaged Clark, but received no response.
Not long thereafter, Clark called 911, requesting
emergency police assistance. She said that the appellant was
involved in illegal activity — specifically, drug dealing — and
that he had two weapons, possibly guns, at least one of them stowed
- 3 - in a black bag. She also said that she had been trying for some
time to get him to leave the home and that when she had attempted
to move his belongings out of the home that morning, he pushed
her. She exhorted the police to come quickly as she suspected
that he was hiding the weapons and drugs as she spoke. She also
asked that the officers withhold from him that she was the one who
had called 911, saying, "I'm scared. I don't want nothing to
happen to me. So don't let him know."
Officer Christian Donovan of the Quincy Police
Department was among those who responded to the 911 call. He
testified that when he and the other officers arrived, the
appellant was standing beside his car, which was parked with its
tailgate open by the front porch at the top of the driveway. While
the other officers spoke with the appellant, Donovan entered the
home to speak with Clark.
Inside, Clark's teenage son was consoling her, telling
her to cooperate with the police. According to Donovan, Clark was
at first hesitant to speak, saying that she did not want the
appellant to see her talking with police officers. Even so, she
proceeded to tell him that she and the appellant had argued that
morning both about money that he allegedly had taken from her and
about her desire that he leave the home. She said that during the
argument, the appellant had shoved her approximately five times.
When she picked up the phone to call 911, he began to gather his
- 4 - belongings as a prelude to leaving the residence. At that time,
she saw him pick up a small black rectangular pouch from which
protruded the butt-end of a gun.
The police arrested the appellant on charges of domestic
assault and battery based on the allegation that he had shoved
Clark during their argument. Donovan then searched the area around
the house with a dog specially trained to detect explosives and
ballistics. After finding nothing in the backyard or street,
Donovan led the dog to the front porch and the rear of the
appellant's vehicle. Nearby, the appellant — upbeat and talkative
despite being under arrest — was waiting to be taken to the police
station. Upon seeing the dog, he said (with a smile) that he did
not have any drugs. But when Donovan told him that the dog was
trained to detect explosives and ballistics rather than narcotics,
the appellant was crestfallen. The dog then alerted to a scent
near the front porch, upon which the officers found a tackle box.
Within that box were two black rectangular leather pouches, each
containing a loaded semiautomatic pistol.
After the search, Donovan questioned Clark further about
her allegations of domestic violence. This questioning included
queries about whether the appellant had assaulted Clark in the
past. According to Donovan, Clark responded that two months
before, she and the appellant had been arguing in the kitchen when
their son came to her defense. Enraged, the appellant grabbed a
- 5 - frying pan from the stove and swung it, missing the son but
striking Clark. She told Donovan that she had not reported the
incident at the time because she had not wanted the appellant to
be sent back to prison.
The appellant called Lightowler to tell her of the
arrest. The appellant stated that Clark had reported to police
that he had hit her and that a gun had been found at his house.
He did not say to whom the gun belonged.
Lightowler also spoke on the phone with Clark (who was
concerned that the appellant's family would blame her for his
renewed incarceration). She mentioned to Lightowler, presumably
while describing the events leading up to the appellant's arrest,
that she had seen the appellant carry a black pouch with him as he
gathered his belongings.
On the following day, a criminal complaint was lodged
against the appellant, charging him with weapons and assault
offenses under state law. Lightowler reported those charges to
the district court and petitioned for the issuance of an arrest
warrant. The district court issued the warrant. Revocation
proceedings were then commenced.
At the revocation hearing, the government did not call
Clark as a witness and instead relied upon the testimony of
Lightowler and Donovan to present her statements. The appellant
objected to the admission of such hearsay evidence on the ground
- 6 - that Clark's statements were unreliable: he identified what he
viewed as factual inconsistencies in her statements; he asserted
that she offered her statements to police out of spite due to his
meretricious relationships with other women; and he drew attention
to discrepancies between Clark's statements to police and her
testimony before the state grand jury (where she minimized the
physical confrontation between her and the appellant on March 17
and equivocated when asked about the firearms she saw that day).
But at no time during the final revocation hearing did the
appellant object on the ground that the admission of the statements
violated his right to confront and cross-examine the witness.
Based on the testimony of Lightowler and Donovan, as
well as other evidence presented at the hearing, the district court
found by a preponderance of the evidence that the appellant was
guilty of several crimes, including possession of a firearm without
a license, see Mass. Gen. Laws ch. 269, § 10(h)(1); improper
storage of a firearm, see id. ch. 140, § 131L(a); and assault with
a dangerous weapon, see id. ch. 265, § 15B(b). The district court
also found the appellant guilty of being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g). The court then
revoked the appellant's term of supervised release and sentenced
- 7 - him to a new three-year term of immurement.1 This timely appeal
ensued.
II
In a revocation hearing, a court is not bound by the
Federal Rules of Evidence. See Fed. R. Evid. 1101(d)(3). By the
same token, a releasee is not afforded a Sixth Amendment right to
confront adverse witnesses. See United States v. Fontanez, 845
F.3d 439, 443 (1st Cir. 2017). Hearsay evidence may thus be
admitted as long as it is reliable. See United States v. Portalla,
985 F.2d 621, 622, 624 (1st Cir. 1993). Even so, a releasee
retains a limited right under the Federal Rules of Criminal
Procedure to confront an adverse witness unless "the court
determines that the interest of justice does not require the
witness to appear." United States v. Mulero-Díaz, 812 F.3d 92, 95
(1st Cir. 2016) (quoting Fed. R. Crim. P. 32.1(b)(2)(C)). To make
such a determination, a court must balance a releasee's right to
confront the witness with "what good cause may exist for denying
confrontation in a particular instance." Fontanez, 845 F.3d at
443. And constructing that balance requires weighing the
The government alleged that the appellant violated two 1
conditions of his supervised release — that he not commit another crime and that he not associate with other convicted felons. The district court revoked his supervised release based solely on a violation of the former condition. Because the government does not cross-appeal the district court's determination that it failed to prove the alleged "association" violation, we do not address that violation here.
- 8 - reliability of the hearsay statement against the reasons proffered
by the government for the witness's absence. See id.
The appellant challenges the revocation of his release
on the ground that the district court admitted hearsay evidence
without conducting the balancing required by Rule 32.1(b)(2)(C).
Specifically, he contends that the district court erred both in
finding the hearsay statements reliable and in failing to state
explicitly why the interest of justice excused the appearance of
the witness. We address those contentions one by one.
A
As the appellant objected below to the reliability of
the statements, his first challenge is properly preserved. We
therefore review the district court's reliability determination
for abuse of discretion. See United States v. Taveras, 380 F.3d
532, 536 (1st Cir. 2004). Under that standard, we examine the
district court's legal conclusions de novo, its findings of fact
for clear error, and its judgment calls with considerable
deference. See United States v. Canales-Ramos, 19 F.4th 561, 564
(1st Cir. 2021).
A hearsay statement may be deemed reliable when it is
supported by sufficient "indicia of reliability." United States
v. Marino, 833 F.3d 1, 5 (1st Cir. 2016). We have held that such
indicia may include the detail of the statement, the declarant's
consistent recounting of the statement on different occasions, or
- 9 - other evidence independently corroborating the statement. See
id.; United States v. Rondeau, 430 F.3d 44, 48-49 (1st Cir. 2005).
Of course, "indicia of reliability" is a protean concept, and the
list provided is non-exhaustive. Marino, 833 F.3d at 5.
Relatedly, we are mindful that determinations of credibility are
the province of the factfinder such that we are "loath to upset"
those findings "based on a cold record." United States v. Whalen,
82 F.3d 528, 532 (1st Cir. 1996).
After a careful review of the record, we find ample
evidence to support the hearsay statements tying the appellant to
the guns found at the scene. In her statements to both Lightowler
and Donovan, Clark was consistent in her description of the black
leather pouches in which the guns were encased. Those descriptions
were consonant with her statements to the 911 dispatcher that she
believed the appellant had two weapons with him, one of them in a
black bag. And as excited utterances, those statements to the 911
dispatcher were excepted from the rule against hearsay. See United
States v. Estes, 985 F.3d 99, 106 (1st Cir. 2021) (holding that
statements of distressed declarant made in 911 call relating to
"startling event or condition" was admissible under excited-
utterance exception (quoting Fed. R. Evid. 803(2))). Nor was this
all: the statements were corroborated by the fact — as noted by
the district court — that the guns were found in black pouches on
- 10 - the appellant's porch, mere "feet from where he was standing when
police arrived at the scene." United States v. Franklin, 560 F.
Supp. 3d 398, 403 (D. Mass. 2021). Taken together with the
appellant's change in demeanor when informed that the dog brought
to the scene was trained to detect ballistics, there were
sufficient indicia of reliability to vouch for Clark's statements.
The appellant demurs. He asserts that Clark's
statements were sparked by her jealousy over his infidelities with
other women; that they were inconsistent with, and contradicted
by, her 911 call (which reported the existence of drugs not
afterward found at the scene); and that she recanted her statements
when testifying before the state grand jury.2
We find those arguments unpersuasive. This is not a
case in which the hearsay statements of an aggrieved partner were
uncorroborated by independent evidence. Nor does the fact that
Clark reported in her 911 call that the appellant was in possession
of drugs, which were not afterward found by police, contradict her
statements about the guns: after all, she conveyed to the 911
2The appellant also argues, somewhat confusingly, that the 911 call contradicts the domestic violence allegations because Clark told Donovan that she called 911 after the appellant shoved her repeatedly, whereas Clark's statements to the 911 dispatcher focused on the appellant's alleged drug dealing and mentioned domestic violence only in passing. But Clark voiced domestic violence allegations of a similar nature to both Donovan and the 911 dispatcher, which would appear to corroborate, not contradict, her statements.
- 11 - dispatcher her suspicion that the appellant was attempting to hide
the drugs while she called. And even though it is true that Clark
told the state grand jury that she had not seen the appellant with
a black leather pouch, her answer to the prosecutor's question was
curtailed. Under the circumstances, that testimony does not
necessarily compromise the reliability of her earlier statements.
The record shows that she wished to conceal the fact that she had
reported the appellant to police because she was fearful of the
consequences of having done so. Viewing her testimony in that
light, her statements at the scene could reasonably be deemed
reliable, notwithstanding her later grand jury testimony.3
There is one loose end. Although not directly pertinent
to the reliability of Clark's statements, the appellant suggests
that the district court erred in failing to consider the
possibility that the guns belonged to Clark, her friends, or one
Clark also told the grand jury that the March 17 fight had 3
been over another woman and that it had not "turn[ed] physical" but, rather, "was more like trying to get hands off [] belongings and stuff." The appellant appears to argue that the discrepancies between that testimony and her statements to Donovan throw shade on Clark's credibility generally, weakening the reliability of the admitted statements. But it is not clear to us how that testimony bears upon a reliability assessment of the statements about the guns, which, as discussed, were independently corroborated by other evidence. Nor does the testimony necessarily detract from Clark's statements about the frying-pan assault. She was not asked about that assault before the grand jury, yet her grand jury testimony still implies that some physical confrontation occurred during the March 17 fight (albeit of lesser intensity than she had initially conveyed).
- 12 - of the children. But the district court was not obligated to
indulge in such speculation. A finder of fact need not countenance
an implausible interpretation of the facts over a probable one.
Cf. United States v. Weidul, 325 F.3d 50, 53 (1st Cir. 2003) ("[A]
district court's choice between two plausible competing
interpretations of the facts cannot be clearly erroneous.").
To say more would be pointless. The bottom line is that
we discern no error, and certainly none that is clear, in the
district court's crediting of Clark's statements about the
appellant's possession of the guns.
Clark's statements about the frying-pan assault stand on
shakier footing, and the appellant's contention that those
statements are not supported by other evidence has a patina of
plausibility. He contends that the statements are unreliable
because there was no evidence of injuries from the assault, and
Clark never before reported any incident of domestic violence.
Moreover, Donovan never asked the son — despite his presence at
the home on March 17 — for his statement about the incident.
Finally, an indictment on the assault with a deadly weapon charge
was never returned in state court. Even taking all of these facts
into account, though, the appellant fails to show that the district
court abused its discretion.
- 13 - To be sure, much of what the appellant argues is missing
from the record is the sort of evidence that would have provided
compelling substantiating evidence.4 Yet, that lack does not
diminish the force of the corroboration that is present. The
specificity of Clark's description of the incident weighs heavily
in favor of its reliability. She did not merely offer a vague
allegation of violence but, rather, recounted a detailed incident
that corresponded to family dynamics observed by Lightowler and
Donovan on March 17. Lightowler described the relationship between
Clark and the appellant as "strained" such that she feared for her
own safety while in the home; and Donovan observed that, upon his
arrival, the son appeared to be protective of his mother,
encouraging her to speak with the police. Moreover, the context
of the statement bolsters its reliability. Clark did not
spontaneously volunteer her account of the assault; it was elicited
from her when Donovan asked follow-up questions in response to her
allegations of domestic violence from that very morning. Given
that evidence, the district court did abuse its discretion in
finding Clark's statements reliable. In the end, we must leave
the district court's "findings of fact or conclusions drawn
We do not include within this generality the absence of an 4
indictment. After all, the lack of an indictment is not necessary as a releasee can be found to have committed a crime in violation of the terms of his conditional release even if he has not "been the subject of a separate federal, state, or local prosecution for such conduct." USSG §7B1.1, cmt. n.1.
- 14 - therefrom" undisturbed "unless, on the whole of the record, we
form a strong, unyielding belief that a mistake has been made."
United States v. Padilla-Galarza, 990 F.3d 60, 73 (1st Cir. 2021)
(quoting Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st
Cir. 1990)). We arrive at no such conviction here.
B
The appellant also argues that the district court failed
to state explicitly its findings as to the availability of the
witness (Clark) and then balance those findings against the
reliability of the statements, as required by Rule 32.1(b)(2)(C).
As a threshold matter, we must determine whether the appellant
forfeited this challenge by not raising it before the district
court.
The appellant argues that he preserved the issue by
objecting under Rule 32.1 to the lack of live witnesses at his
preliminary revocation hearing. That argument fails, however,
because it is incumbent upon an appellant to voice his objection
at the appropriate time. See Fed. R. Crim. P. 51(b); cf. Ira
Green, Inc. v. Mil. Sales & Serv. Co., 775 F.3d 12, 24-26 (1st
Cir. 2014) (holding that party's failure to request polling of
jury after report of verdict waived right notwithstanding party's
earlier request); United States v. Meadows, 571 F.3d 131, 146 (1st
Cir. 2009) (holding that objection to jury instruction during
- 15 - charge conference, not renewed after charge delivered, failed to
preserve appellate challenge).
Holding the appellant to this sequencing is particularly
appropriate here, given the differences between preliminary and
final revocation hearings. The preliminary revocation hearing,
held before a magistrate judge, probes only whether there is
"probable cause to believe that a violation occurred." Fed. R.
Crim. P. 32.1(b)(1)(A); see United States v. Colón-Maldonado, 953
F.3d 1, 4 (1st Cir. 2020). At that stage of the proceedings, the
defendant's limited confrontation right, under Rule
32.1(b)(1)(B)(iii), is available to him only "upon request." In
contrast, at the final revocation hearing, the district court must
determine, using a preponderance-of-the-evidence metric, whether
the alleged violation occurred. See Colón-Maldonado, 953 F.3d at
3, 5. In that setting, a defendant is afforded a more robust right
under Rule 32.1(b)(2)(C) that "entitle[s]" him to appear before
the court, to present evidence, and to confront adverse witnesses
unless the interest of justice permits their absence. It does not
follow, then, that because the appellant advanced an objection at
the preliminary hearing under Rule 32.1(b)(1)(B)(iii), he
preserved the challenge he raises now under Rule 32.1(b)(2)(C).
That objection was heard before a different judge, within a
different procedural context, under the auspices of a separate
provision of the Criminal Rules, such that it cannot fairly be
- 16 - said that the objection was "sufficiently specific to call the
district court's attention" to the error asserted here. United
States v. Sosa-González, 900 F.3d 1, 4 (1st Cir. 2018) (quoting
United States v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017)).
The appellant has a fallback position. He argues that
— at the final revocation hearing — he preserved his challenge as
to availability by objecting to the reliability of the statements.
In support, he invokes our decision in Colón-Maldonado, in which
we found (within the context of that case) that the appellant's
objections to reliability, "even if [they] failed to invoke Rule
32.1's limited confrontation right," nonetheless preserved the
appellant's challenge that the admitted statements were too
unreliable to prove that he violated the terms of his release.
953 F.3d at 9 n.7. That ruling, though, tells us nothing as to
whether an objection to reliability below preserves a challenge to
availability on appeal.5 And the federal rules dictate otherwise.
To preserve a claim of error, a party must object to the district
court's action in a timeous manner and inform the court of the
5 On a related note, the appellant asserts that because conducting a Rule 32.1(b)(2)(C) balancing test is mandatory, no objection at all is required to preserve an appellate challenge. Such an assertion can be quickly dispatched: as discussed, a defendant is entitled to a limited confrontation right under Rule 32.1(b)(2)(C), but simply having that right does not excuse the appellant's failure to assert it. Cf. United States v. Rodríguez, 735 F.3d 1, 11 (1st Cir. 2013) (holding that "even an error with constitutional implications" is subject to plain-error review when not preserved).
- 17 - "grounds for that objection." Fed. R. Crim. P. 51(b). This
"contemporaneous-objection rule" prevents a party from
"sandbagging" the court — that is, "remaining silent about his
objection and belatedly raising the error only if the case does
not conclude in his favor." Puckett v. United States, 556 U.S.
129, 134 (2009). To permit such hedging of arguments would
undercut the principle that the district court — which "is
ordinarily in the best position to determine the relevant facts
and adjudicate the dispute" — should be afforded an opportunity to
consider and resolve the parties' objections. Id.; see United
States v. Fox, 889 F.2d 357, 359 (1st Cir. 1989) ("If the objection
now raised had been formulated below there would have been an
opportunity for the court to consider it and rule accordingly.").
Here, the appellant objected to the reliability of the
hearsay statements, so the district court responded by
articulating its reasons for finding the evidence reliable. Now
— after an unfavorable ruling below — the appellant marshals an
availability argument that he previously kept in reserve, and, in
doing so, submits that the district court erred in failing to
address an argument never presented to it. That is precisely the
sort of stratagem anticipated by the contemporaneous-objection
rule. We see no reason to depart from the rule and thus find that
the appellant forfeited his right to challenge the district court's
determination concerning the availability of the witness. Our
- 18 - review of that challenge is, therefore, only for plain error. See
United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
"The plain error hurdle is high." United States v.
Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989). Under that demanding
standard, the appellant must show "(1) that an error occurred (2)
which was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously impaired
the fairness, integrity, or public reputation of judicial
proceedings." Duarte, 246 F.3d at 60. "The party asserting plain
error bears the burden of persuasion" as to all four of these
elements. United States v. Pabon, 819 F.3d 26, 33 (1st Cir. 2016);
see United States v. Pinkham, 896 F.3d 133, 136-37 (1st Cir. 2018).
The appellant has made no attempt to bear his burden
under plain-error review, hazarding all on his contention that he
properly preserved the issue. He has therefore waived his
challenge here. See Pabon, 819 F.3d at 34.
But even if we were to overlook this waiver, there is no
plain error to be found. To begin, we are not persuaded that an
error occurred because the record indicates that the district court
implicitly conducted the balancing required by Rule 32.1(b)(2)(C).
The district court expressed its reasons for finding the statements
reliable (ostensibly in response to the appellant's arguments to
the contrary) and cited the appropriate legal standard in its
written order. See Franklin, 560 F. Supp. 3d at 405 (citing United
- 19 - States v. Bueno-Beltrán, 857 F.3d 65, 68 (1st Cir. 2017)
(rehearsing standard for admission of hearsay evidence under Rule
32.1(b)(2)(C))). In addition, there was a factual basis from which
to conclude that the interest of justice did not require Clark to
testify in person, as independent evidence bolstered the
reliability of the statements and suggested that Clark — a victim
of domestic violence — would have feared for her safety if called
to testify. We see no reason to presume (absent evidence to the
contrary) that an experienced judge, familiar with the legal and
procedural contours of revocation proceedings, failed to conduct
the balancing test that is a matter of routine under such
circumstances.6
And — even if we were to assume that the district court
erred by failing explicitly to conduct that balancing on the record
— any such error was not clear or obvious. Such an error must be
"indisputable in light of controlling law." United States v.
6 The appellant argues for the first time in his reply brief that even if the district court implicitly conducted a Rule 32.1(b)(2)(C) balancing, it still abused its discretion because Clark's supposed fear of the appellant had not prevented her from testifying before the state grand jury. According to the appellant, the government's reluctance to call her as a witness stemmed from a concern that she would recant her earlier statements, not some other good cause. Whatever the merits of this argument — and we do not imply that any exist — it has been waived as it was raised for the first time in the appellant's reply brief. See Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1991) (explaining that arguments raised for the first time in appellant's reply brief are deemed waived). And insofar as it relates to the first element of our review for plain error, we find it insufficient to prove that the district court wrongly applied Rule 32.1(b)(2)(C).
- 20 - Mulero-Vargas, 24 F.4th 754, 757 (1st Cir. 2022) (internal
quotation marks omitted) (quoting United States v. Rabb, 5 F.4th
95, 101 (1st Cir. 2021)). We have never held that a district court
must explicitly state its reasons for finding that the interest of
justice militates against the appearance of a witness, even when
the parties do not otherwise object to the witness's absence. Nor
is there uniform agreement among the other courts of appeals as to
whether an explicit balancing under Rule 32.1(b)(2)(C) is required
under all circumstances. Compare United States v. Lloyd, 566 F.3d
341, 345 (3d Cir. 2009) ("[W]e reject a per se rule that a district
court's failure to explicitly address cause amounts to reversible
error in all cases.") with United States v. Jordan, 742 F.3d 276,
280 (7th Cir. 2014) (holding that Rule 32.1(b)(2)(C) "requires a
district court in a revocation hearing explicitly to balance the
defendant's constitutional interest in confrontation and cross-
examination against the government's stated reasons for denying
them"). It cannot be said, then, that the district court's
implicit balancing was "contrary to existing law" such that it was
a clear or obvious error. Rabb, 5 F.4th at 101.
III
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
- 21 -