July 18, 2019

Tenth Circuit: Hearsay Evidence at Supervised Release Revocation Hearing Properly Admitted for Sentencing Purposes

The Tenth Circuit published its opinion in United States v. Ruby on Tuesday, January 29, 2013.

Joey Ruby was on supervised release following a conviction for being a felon in possession of a gun. One of the conditions of his supervised release was that Ruby not commit any other crimes. While on supervised release, Ruby was convicted of third-degree assault in Colorado state court. As a result, the district court revoked Ruby’s release and sentenced him to eighteen months’ imprisonment.  He appealed the sentence on the grounds that the district court erred in considering hearsay testimony at sentencing from three witnesses to the assault.

Federal Rule of Criminal Procedure 32.1(b)(2)(C) provides that at a revocation hearing, the defendant must have “an opportunity . . . to question any adverse witness unless the court determines that the interest of justice does not require the witness to appear.” This means that a court at a revocation hearing may consider hearsay evidence as long as it makes the necessary “interest of justice” determination. Ruby argued the court did not comply with Rule 32.1’s procedures and then compounded the mistake by basing his sentence on unreliable hearsay testimony.

Rule 32.1 was enacted to codify due process guarantees that apply to revocation hearings. See Curtis v. Chester, 626 F.3d 540, 545 (10th Cir. 2010). In particular, the rule was designed to ensure at revocation hearings the ability of defendants to an independent judicial officer and the right to adversary proceedings. Unlike at a criminal trial where the Federal Rules of Evidence limit the types of admissible evidence, at a sentencing hearing the court can have access to any relevant information, as long as it adheres to a preponderance of the evidence standard.

Because all the documents at the hearing were based on the post-accident police report, because Ruby did not even raise in the district court any hearsay concerns, and because the corroborating statements of three relatively neutral witnesses helped establish the reliability of the victim’s statement to the police officer, the Tenth Circuit rejected Ruby’s challenge to the evidence offered at sentencing.

The Tenth Circuit concluded the district court did not err in considering the testimony, and AFFIRMED the district court’s sentence.

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