United States v. Perry

          OPINION AND ORDER FINDING DEFENDANT TO HAVE VIOLATED THE CONDITIONS OF HIS SUPERVISED RELEASE, REVOKING DEFENDANT'S SUPERVISED RELEASE AND IMPOSING SENTENCE

          HON. GERSHWIN A. DRAIN UNITED STATES DISTRICT COURT JUDGE

         I. INTRODUCTION AND BACKGROUND

         Defendant Juwan Perry pleaded guilty to conspiracy to possess with intent to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1) & 846 and failure to appear after pre-trial release in violation of 18 U.S.C. § 3146(a)(1). This Court sentenced Defendant to a term of 42 months imprisonment on the conspiracy conviction and a term of 18 months imprisonment on the failure to appear conviction, which was to run consecutive to the 42 months imprisonment for the conspiracy conviction. Defendant commenced his 36-month term of supervised release on January 12, 2018.

         On May 1, 2019, Defendant's probation officer issued a violation report alleging that Defendant committed the following violations of the terms of his supervised release: (1) on September 17, 2018, Defendant was ticketed for driving on a suspended license, (2) on March 18, 2019, Defendant broke into his ex-girlfriend's place of employment, (3) Defendant failed to truthfully answer inquiries from his probation officer, and (4) Defendant failed to make any efforts to seek lawful employment. On June 4, 2019, an amended violation report was filed indicating that a warrant had been issued for the conduct alleged in violation 2-including breaking and entering with intent in violation of Mich. Comp. Laws § 750.110, aggravated stalking in violation of Mich. Comp. Laws § 750.411i, false report of a felony in violation of Mich. Comp. Laws § 750.411a, malicious destruction of property in violation of Mich. Comp. Laws § 750.380(4)(a), and domestic violence in violation of Mich. Comp. Laws § 750.81(2).

         The Court held a supervised release violation hearing on May 8, 2019 and June 6, 2019. At the hearing, the Government called Detroit Police Officers Hassine Mahfouz and Joseph Lennis-Saunders and Detroit Police Sergeant John Stewart.

         The Government also subpoenaed Carla Redmond, Defendant's ex-girlfriend, to appear and testify at the hearing. Redmond appeared for the hearing but declined to testify. Redmond indicated that if she were called to testify, she intended to invoke her Fifth Amendment right against self-incrimination. Defendant objected to the introduction of Redmond's hearsay statements through the testimony of Mahfouz, Lennis-Saunders and Stewart. After considering the parties' arguments and reviewing the relevant authority, the Court engaged in the balancing test required by Rule 32.1(b)(2)(C) of the Federal Rules of Criminal Procedure and determined that the Defendant's interest in confronting Redmond was outweighed by the Government's interest in proceeding with reliable hearsay evidence in light of Redmond's refusal to testify. The Court therefore overruled the Defendant's objection.

         Mahfouz testified that he was working on March 18, 2019, when he was directed to respond to a 911 call, made at 3:56 p.m. Mahfouz testified that he listened to the 911 call prior to responding. During the call, Redmond told the operator that her ex-boyfriend, Juwan, was at her place of employment, Liberty Tax, located on Gratiot in Detroit. Redmond told the operator he “busted the windows” and “he's up here right now.” While Redmond is speaking with the operator, Defendant can be heard banging louder and louder on the door, shouting at Redmond until glass shatters. When Defendant enters the building, Redmond can be heard yelling and eventually screaming “get away from me” numerous times.

         Mahfouz was also shown video footage taken from inside the Liberty Tax building. Glass is seen strewn about the floor. Redmond can be seen pacing inside while carrying a firearm. Mahfouz corroborated that the video footage accurately depicted the damage done to the building. When Mahfouz arrived on the scene, he spoke with Redmond. He described her as very upset and distraught. She told him that Defendant first used his closed fist to try and break down the door. He went back to his car and returned with a large rock and proceeded to strike it against the door. Even though she had shot the Defendant during the incident, Redmond failed to advise Mahfouz of this fact.

         Lennis-Saunders testified that he was also working on March 18, 2019. He was dispatched pursuant to a domestic violence and destruction of property call. He also responded to the scene and spoke with Redmond, who told him her ex-boyfriend had broken the windows at her job. He observed that she appeared distraught and scared. She indicated that a couple of days before Defendant had assaulted her. Lennis-Saunders could still see bruising around her eyes. Redmond likewise failed to mention to Lennis-Saunders that she had shot the Defendant during the incident.

         Sergeant Stewart testified that he learned Defendant had been shot and the statements he had given to law enforcement were “sketchy.” Ultimately, Stewart was able to connect the shooting with the incident on March 18, 2019 at Liberty Tax. On March 27, 2019, he returned to the store and spoke with Redmond. After he read Redmond her Miranda rights, she provided a statement. Redmond indicated in her statement that “Juan [sic] was breaking the windows in front of my job. Then went to the car and grabbed something and broke the door. Then I ran back to the office and he ran into the building and chased me into the office. I took my gun and pointed at him and fired one shot.” Gov. Ex. 4. She stated that she shot at the Defendant because “he was about to beat me.” Id. She further noted that “he beat me a week before that Wednesday.” Id.

         II. LAW & ANALYSIS

         A. Hearsay

         The Government maintains that it has established by a preponderance of the evidence that Defendant violated the conditions of his supervised release by committing a breaking and entering with intent to commit a felony in violation of Mich. Comp. Laws § 750.110. The Government further asserts that Defendant committed aggravated stalking in contravention of Mich. Comp. Laws § 750.411i.^[1] Defendant counters that the Government's proof relies heavily on Redmond's out-of-court statements, which are not reliable. Defendant maintains that the Court cannot consider these hearsay statements without violating Defendant's due process rights.

         Neither the Federal Rules of Evidence nor the Sixth Amendment applies to supervised release violation hearings. See Fed. R. Evid. 1101(d)(3); United States v. Kirby, 418 F.3d 621, 627-28 (6th Cir. 2005). Hearsay evidence is admissible in revocation hearings as long as it is reliable and “the defendant's need for confrontation is outweighed by the government's ground for not requiring confrontation.” United States v. Waters, 158 F.3d 933, 940 (6th Cir. 1998).

         While Defendant does not have a Sixth Amendment right to confront adverse witnesses, he does possess a limited confrontation right under Fed. R. Crim. P. 32.1(b)(2)(C), which provides a defendant subject to supervised release revocation “an opportunity to . . . question 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). The Advisory Committee Notes to Rule 32.1(b)(2)(C) state that a district court must “balance the person's interest in the constitutionality guaranteed right to confrontation against the government's good cause for denying it.”

         In this case, the Government subpoenaed Redmond, who appeared at the hearing and declined to testify. The Government therefore did all that it could to secure Redmond's testimony at Defendant's hearing. This establishes good cause. See United States v. Hall, 419 F.3d 840, 846 n.4 (9th Cir. 2005) (finding good cause where the government could not locate the domestic violence victim who was homeless and noting “[t]he difficulty of securing the testimony of domestic violence victims … against their batterers is well recognized.”); United States v. Martin, 382 F.3d 840 (8th Cir. 2004) (concluding the government established good cause for failing to produce domestic violence victim at revocation hearing because she repeatedly stated she would not testify); United States v. Carthen, 681 F.3d 94 (2d Cir. 2012)(finding good cause where the victim informed the government attorney on the day of the hearing that she would “risk going to jail if she were called to testify and refused.”).

         Additionally, the hearsay evidence was reliable in this matter. As an initial matter, Redmond's statements during the 911 call fall under the excited utterance exception to the hearsay rule because they were made contemporaneous with a very stressful event. “[A] statement made while a declarant is under the stress of excitement from a startling incident contains ‘inherent guarantees of truthfulness.'” United States v. Dobson, 529 Fed.Appx. 536 (6th Cir. Jun. 27, 2013) (citing Haggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050, 1057 (6th Cir. 1983)); United States v. Jessie, 2:13-cr-253, 2015 U.S. Dist. LEXIS 12653, (S.D. Ohio Sept. 22, 2015)(finding statements made during 911 call fell within “excited utterance” exception because the callers were reporting “a traumatic event” which had occurred minutes “before there was time to contrive or misrepresent, while [she was] still in a distraught condition.”)

         In this case, Redmond was reporting that her ex-boyfriend, Juwan, had come to her place of employment, busted windows and ignored her requests that he leave her alone. Redmond tells the operator that “he is here right now” and loud banging and yelling can be heard in the background. Near the end of the call glass shattering can be heard when Defendant entered the premises. At that point, Redmond frantically repeated and eventually screamed “leave me alone.” This was without question an “event startling enough to cause nervous excitement.” Jessie, 2015 U.S. Dist. LEXIS 126754, at *13-14 (citing United States v. Arnold, 486 F.3d 177, 184 (6th Cir. 2007)). Moreover, Redmond made the ...