United States v. Thompson

314 F. App'x 797
Court of Appeals for the Sixth Circuit·Decided November 13, 2008·No. 07-1796·Unpublished·Cited by 15 cases

Opinion

PER CURIAM.

The defendant, Deon Antonio Thompson, appeals the district court’s revocation of supervised release, contending that the evidence relied upon by the court was insufficient to support revocation. We find no error and affirm.

The defendant was originally sentenced in February 1997, to a term of 80 months in prison, to be followed by a 60-month supervised release period, which he began serving in April 2003. In September 2006, officers from the Detroit Police Department arrested the defendant for felony firearms possession. The arrest occurred in a residence located at 437 Jefferson Court, Detroit, Michigan. Both the police investigation report and the arresting officer’s testimony at the defendant’s state court trial indicated that, as police entered the residence, Thompson was either in or near the northeast bedroom. A search of that room revealed two loaded handguns, one on top of a dresser and the other inside a closet. According to the trial court testimony, officers recovered United States mail bearing the defendant’s name from the same dresser top as one of the guns. According to the investigation report, Thompson admitted to police that he resided at the address.

Thompson was tried to the bench in state court and, at the conclusion of the prosecution’s case, the trial judge granted his motion for a directed verdict, ruling that the state had failed to establish the element of possession beyond a reasonable doubt. In a subsequent opinion entitled “reason for dismissal,” the trial judge summarized the testimony presented by the prosecution and stated the reasons for dismissal, finding that because no witness testified that the defendant was inside the bedroom when the weapon was recovered, and because a third-party was seen in proximity to the bedroom at the time, the state had not sufficiently established that the gun was the defendant’s. Further, the judge ruled that the presence of the defendant’s “junk mail” on the dresser was not enough to establish proof of residency and referred to the 25 caliber gun found on the dresser as a “chick” gun (i.e., a gun that a woman would own).

Despite the defendant’s acquittal on the state charge, the probation department sought revocation of the defendant’s supervised release based upon these same facts. At the supervised release revocation hearing, the prosecution introduced both the investigation report and the testimony summarized in the state court’s opinion without objection. Probation Officer Timothy Genyk further testified that the pro *799 bation department’s request for revocation was based upon the investigation report and that neither Genyk nor other members of the department conducted any independent investigation.

Thompson and his girlfriend, Charlene Clark, testified for the defense. Clark admitted to being the person seen in proximity to the northeast bedroom immediately before the police entered the home; disclaimed ownership of the guns; and denied that there had ever been a gun on the dresser at all. In his testimony, Thompson initially denied any connection to the 437 Jefferson Court residence, other than visiting the house on a few occasions. Later, however, Thompson admitted that he received mail, including employment checks, at the address. He also insisted that the mail found by police had not been seized from the dresser top but had, instead, been removed from his pockets.

Following the revocation hearing, the district court entered an order revoking Deon Thompson’s supervised release. Relying on the investigation report, the summary of the officers’ trial testimony, and the incredibility of the defendant’s testimony, the district court found by “at least a preponderance of the evidence that the defendant did possess a firearm at the Jefferson House.” The court also found the defendant guilty of the three other supervised release violations and sentenced him to 36 months’ imprisonment. 1

On appeal, Thompson challenges only the determination that he committed a new crime while on supervised release. He raises no challenge to the other findings of guilt or to the reasonableness of his sentence.

We review a district court’s revocation of supervised release for an abuse of discretion. See United States v. Kirby, 418 F.3d 621, 626 (6th Cir.2005). To reverse the lower court’s revocation order, 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 States v. Stephenson, 928 F.2d 728, 732 (6th Cir.1991) (quoting Balara v. INS, 669 F.2d 1157, 1160 (6th Cir.1982)).

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.” 18 U.S.C. § 3583(e)(3); see also United States v. Webb, 30 F.3d 687, 688-689 (6th Cir.1994). The preponderance standard requires a lesser quantum of proof and enables the trier of fact to make a determination of guilt that it could not make if the standard were that at trial, i.e., guilt beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Moreover, “revocation hearings are more flexible” than criminal trials. Stephenson, 928 F.2d at 732. As a result, the district court may rely upon “reasonably reliable evidence,” including hearsay. Id.

The defendant asserts on appeal that the evidence presented at the revocation hearing was insufficiently reliable to support the finding that he committed a new criminal offense. The defendant’s primary argument is that the district court erred by basing its finding solely on the probation officer’s testimony summarizing the original Detroit police investigation report. *800 Relying upon Kirby and Stephenson, the defendant argues that because the probation officer lacked personal knowledge about the events described in the report, because he failed to conduct an independent investigation into those events, and because he was newly assigned to the defendant’s case, his testimony provided an insufficient basis for the court’s finding.

In Kirby, we upheld the district court’s revocation of supervised release where the evidence consisted of just one probation officer’s testimony. See 418 F.3d at 626. However, we emphasized in that ease that the officer had personally reviewed surveillance tapes showing the defendant committing the crime at issue and had also spoken with the investigating police officers. See id. In Stephenson,

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