US v. Daniel Bank

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to expedite decision [999139575-2] Originating case number: 5:05-cr-00030-FPS-JSK-1 Copies to all parties and the district court/agency. [999194793].. [13-4449]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4449

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL BANKS,
Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.
Frederick P. Stamp,
Jr., Senior District Judge. (5:05-cr-00030-FPS-JSK-1)

Submitted:

September 10, 2013

Decided:

September 17, 2013

Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Michael F. Smith, Victoria S. Palmer, THE SMITH APPELLATE LAW
FIRM, Washington, D.C., for Appellant.
William J. Ihlenfeld,
II, United States Attorney, David J. Perri, Assistant United
States Attorney, Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Daniel Banks appeals from the judgment of the district
court revoking his term of supervised release and sentencing him
to five months of imprisonment and nineteen months of supervised
release.

Because the district court plainly erred by failing to

comply with Rule 32.1(b)(2)(C) of the Federal Rules of Criminal
Procedure and United States v. Doswell, 670 F.3d 526 (4th Cir.
2012), when it admitted and relied on hearsay evidence at Banks’
revocation hearing, we vacate and remand for further proceedings
consistent with this opinion.
Banks was convicted of possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)
(2006),

and

was

sentenced

in

2006

to

ninety-two

months’

imprisonment and a two-year term of supervised release.

Banks

began serving his term of supervised release on May 16, 2012.
In March 2013, Banks’ probation officer filed a petition for a
warrant
violated

and
the

revocation
terms

of

against
his

Banks,

supervised

alleging
release

that
by

he

had

possessing

cocaine and selling the drug on one occasion in November 2012
and

on

another

occasion

in

December

2012

to

a

confidential

informant working for the Martins Ferry, Ohio police department.
Banks’
2013.

revocation

hearing

occurred

in

May

and

June

Banks denied the violations alleged in the revocation

petition, and a Martins Ferry police officer testified regarding
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the drug purchases forming the basis of the petition.

With

respect to the November 2012 purchase, as the officer was about
to

testify

person

that

from

objection.

the

whom

informant

he

After

told

purchased

ascertaining

him

the

identity

of

the

the

drug,

Banks

lodged

an

that

the

officer

felt

the

informant’s statement was reliable, the district court overruled
the objection.

The officer then testified that the informant

stated he had purchased the drug from Banks.
the

December

2012

purchase,

the

officer

With respect to

testified

that

informant stated he had purchased the drug from Banks.

the

Banks

objected, and, after ascertaining that the officer considered
the informant reliable with respect to this transaction, the
district court overruled the objection.
On cross-examination, the officer testified that the
telephone calls made to the informant to set up the controlled
purchases were not recorded, that no audio or video recordings
of

the

purchases

existed,

that

he

did

not

observe

the

hand-to-hand exchanges of money for drugs and was not present in
the vehicle where the exchanges took place, and that he relied
on the informant’s statements that he purchased the drug from
Banks.

The informant did not appear at the May 2013 hearing,

and neither the officer nor counsel for the Government knew of
his whereabouts.

The revocation hearing resumed in June 2013.

Based on the officer’s hearing testimony, the district court
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revoked

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Banks’

supervised

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release

and

sentenced

him

to

five

months’ imprisonment and nineteen months of supervised release.
On

appeal,

Banks

argues

that

the

district

court

improperly relied on evidence admitted in violation of Fed. R.
Crim. P. 32.1(b)(2)(C) (providing that a releasee “is entitled
to . . . question

any

adverse

witness

unless

the

court

determines that the interest of justice does not require the
witness to appear”) and Doswell, 670 F.3d at 530-31 (holding
that

the

rule

requires

a

district

court

to

balance

the

releasee’s interest in confronting an adverse witness against
any

proffered

admitting

good

hearsay

emphasizing

that

balancing

for

denying

evidence

test)

Specifically,

cause

in

reliability
in

Banks

a

is

argues

revocation

a

revoking

confrontation

“critical
his

that

the

prior

hearing

factor”

supervised

district

to
and

in

the

release.

court

erred

by

failing to balance his interest in confronting the informant
against

the

reliability

interest
of

the

of

justice

informant’s

and

by

not

statements

assessing

to

the

the

officer

regarding the controlled purchases.
We ordinarily review a district court’s decision to
admit

evidence

Medford,

661

for

F.3d

abuse
746,

of

751

discretion,

(4th

Cir.

United

2011),

States

cert.

v.

denied,

132 S. Ct. 1729 (2012), and this standard also applies to the
district

court’s

admission

of
4

hearsay

evidence

under

Rule

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32.1(b)(2)(C).

Doswell, 670 F.3d at 529.

of

and

the

record

the

parties’

briefs,

However, after review
we

agree

Government that our review is for plain error only.

with

the

Although

Banks objected to the admission of the informant’s statements
identifying him as the seller, his objections were not based on
his inability to question the informant or the court’s alleged
failure

to

decision.

comply

with

Rule

32.1(b)(2)(C)

or

the

Doswell

As Banks’ objections were not “sufficiently specific

to bring into focus the precise nature” of the errors he alleges
on appeal, id. at 530 (internal quotation marks omitted), our
review is for plain error.

To prevail under this standard,

Banks must show that an error was made, is plain, and affected
his substantial rights.
1121, 1126 (2013).

Henderson v. United States, 133 S. Ct.

Moreover, the correction of plain error lies

within our discretion, which we do not exercise unless the error
“seriously affects the fairness, integrity or public reputation
of judicial proceedings.”

Id. at 1127 (internal quotation marks

and alteration omitted).
“Supervised release revocation hearings are informal
proceedings

in

which

the

rules

of

evidence,

including

pertaining to hearsay, need not be strictly applied.”
670 F.3d at 530.

those

Doswell,

However, due process affords a releasee a

limited right “to confront and cross-examine adverse witnesses”
at a revocation hearing “unless the hearing officer specifically
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finds good cause for not allowing confrontation.”
Brewer, 408 U.S. 471, 489 (1972).
evidence

in

a

balance

the

witness

revocation

against

releasee’s
any

confrontation.”

Prior to admitting hearsay

hearing,

interest

proffered

Morrissey v.

“the
in

good

district

court

confronting
cause

for

Doswell, 670 F.3d at 530.

an

must

adverse

denying

such

Reliability of the

hearsay evidence is a “critical factor” in this balancing test.
Id. at 531.
the

Further, the due process guarantee is embodied in

procedural

rule
any

to . . . question

that

a

adverse

releasee

witness

is

unless

“entitled
the

court

determines that the interest of justice does not require the
witness to appear.”

Fed. R. Crim. P. 32.1(b)(2)(C).

Here, the informant did not appear or testify at the
revocation

hearing.

The

Government

neither

put

forward

any

explanation for the informant’s failure to appear nor proffered
its lack of knowledge of the informant’s whereabouts as cause
for

denying

indication

Banks’

from

the

right

to

record

confrontation,

that

the

and

district

there

court

is

no

balanced

Banks’ confrontation right against any good cause for denying
confrontation.

Further, the informant’s statement was the sole

evidence admitted at the revocation hearing connecting Banks to
the violations alleged in the revocation petition.

Although the

district court ascertained the testifying officer’s assessments
of the reliability of the informant’s statements, the court did
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not adopt those assessments as its own or otherwise conduct on
the

record

its

own

assessment

informant’s statements.

of

the

reliability

of

the

In admitting the informant’s statements

without a reliability assessment or any attempt to engage in the
balancing

required

by

Rule

32.1,

the

district

court

erred.

Doswell, 670 F.3d at 531.
Turning to the next step of our analysis, we conclude
that the error—which occurred in 2013, well over a year after
the issuance of the opinion in Doswell—was plain.

See United

States v. Carthorne, ___ F.3d ___, No. 11–4870, 2013 WL 4056052,
at *9 (4th Cir. Aug. 13, 2013) (noting that “[t]he term plain
error is synonymous with clear or obvious error” and that an
error qualifies as “plain if the settled law of the Supreme
Court or this circuit establishes that an error has occurred”
(internal quotation marks omitted)).
the

error

district

affected
court’s

We further conclude that

Banks’

substantial

revocation

decision

rights
was

because

based

on

the
the

determination that the cocaine sales alleged in the revocation
petition

had

been

established

by

the

officer’s

testimony.

See United States v. Greene, 704 F.3d 298, 312 (4th Cir. 2013)
(noting that the phrase “affecting substantial rights in most
cases means that the error was prejudicial” (internal quotation
marks, alteration, and ellipsis omitted)), petition for cert.
filed,

___

U.S.L.W.

___

(U.S.

Apr.
7

29,

2013)

(No.

12-9965);

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United States

Filed: 09/17/2013

v.

Basham,

561

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F.3d

302,

334

(4th

Cir.

2009)

(recognizing that an error prejudices substantial rights when it
affects the outcome of the hearing at issue).
Finally, we conclude that the district court’s plain
error is one we should notice because a failure to correct the
error would seriously affect the integrity or public reputation
of the judiciary.

Viewing the record as a whole, the revocation

proceedings did not result in a fair and reliable determination
that Banks had violated the terms of his supervised release.
Accordingly, we exercise our discretion to notice the error.
Accord United States v. Cedelle, 89 F.3d 181, 185-86 (4th Cir.
1996) (stating that this court is to view a district court’s
plain error “against the entire record” in determining whether
the circumstances present an appropriate occasion to notice the
error and declining to correct the district court’s plain error
in failing to instruct the jury because review of the entire
record

revealed

reliable

that

the

determination

proceedings

of

guilt

resulted

(internal

in

a

fair

quotation

and

marks

omitted)).
We

therefore

vacate

the

district

court’s

judgment

revoking Banks’ supervised release and remand this case to the
district court for further proceedings.

We deny Banks’ motion

to expedite decision and dispense with oral argument because the
facts

and

legal

contentions

are
8

adequately

presented

in

the

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materials

before

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this

court

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and

argument

would

not

aid

the

decisional process.
VACATED AND REMANDED

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