United States v. Roscoe

In United States v. Roscoe, No. 23-60227 (5th Cir. Mar. 29, 2024) (unpublished), the Fifth Circuit rejected the defendant’s argument that his right to confront witnesses had been violated when the district court considered hearsay during his revocation hearing.

While on supervised release, Roscoe was arrested by state authorities for four counts of attempted murder. He also tested positive for multiple controlled substances.  Based on those violations of the terms of his release, the district court held a revocation hearing.  At the hearing, Roscoe admitted using a controlled substance but denied the attempted murder allegations.

To prove the latter, the Government called a police chief, who testified about his office’s investigation of a shooting, including evidence that Roscoe may have been involved.  At the hearing, defense counsel did not object to the admission of that evidence.  At the close of evidence, the district court found no proof that Roscoe himself committed the shooting, but it found that the Government had presented enough evidence to connect him to the shooting.  As a result, the court revoked Roscoe’s supervised release and sentenced him to 24 months in prison.

Background Law: At supervised release revocation hearings, defendants have a limited due process right to confront and cross-examine adverse witnesses unless the court makes a specific finding of good cause for not allowing confrontation.  If a defendant does not object on that basis, however, “the district court has no reason to know it should” make such a finding.  United States v. McDowell, 973 F.3d 362, 366 (5th Cir. 2020).

Ruling: Because Roscoe had not objected in the district court, his appellate claim was reviewed for plain error, and the Fifth Circuit found that Roscoe failed to prove that any error affected the outcome of his revocation hearing.  Here, the Government presented significant non-hearsay evidence of the shooting, and the testifying police chief had had personal knowledge of the investigation.

In addition, Roscoe’s supervised release was revoked not only because of the alleged shooting, but also because of the drug violation, which he had admitted.  As a result, he could not demonstrate “a reasonable probability that, but for the error, the outcome of the proceeding would have been different.”  Molina-Martinez v. United States, 578 U.S. 189, 194 (2016) (internal quotation marks and citation omitted).  For those reasons, the Fifth Circuit affirmed the revocation of Roscoe’s supervised release.