so we're happy here argument as soon as the lawyers are ready united states versus brown  thank you judgments please the court eric breakneck for george brown defendant at a revocation hearing has the right to question any adverse witness unless the court determines that the interest of justice does not require the witness to appear this court interpreted that rule mean that a district court must balance the release sees interest in confronting an adverse witness against any proper good cause for denying such confrontation the reliability of the declarations as this court clarified in ferguson is an important factor but it's not dispositive demonstrating that declarations are reliable does not obviate the requirement to show good cause join appendix one twenty seven to one twenty record misstated the standard twice in a directly stated the standard twice which leaves us with a sense of what the district court actually did so if the court had applied which tested it appl if it had applied the right balancing test it would have found that the government didn't meet it in a joint appendix ninety three what is good cause for the nonappearance of the witness the witness is asked who taped spoke to these witnesses no indication that it spoke to their attorneys no indication that it approached the state of ohio no indication that it tempted to rip these witnesses out it's a demonstration that these individuals were in jail but much like in make the observation that these people did have constitutional right about testifying yet incriminating oh yes and you you certainly would be of value your constitutional rights right  actually your honor my office has this all the time these individuals according to the government's own testimony had all confessed to wrongdoing on their part the opportunity that this would have provided them to testify in federal court against another individual that's a golden ticket your honor these individuals far from coming in saying i wouldn't have wanted to testify i wouldn't invoke the fifth amendment we don't know they were never asked but in my experience the strong indication is wait i can go down i can cooperate i can work with the government that's what defendants want to do and you had cases where your head fail revocation where  question of course but it was well it's and it's i think relevant because the district court here did focus on subpoena which is actually not the power that the court had and your honor so no they answer your question i cannot recall that certainly there are many instances that i can recall where witnesses have been brought out of state custody to testify in trials when there was a sixth amendment rights the ability of the most powerful government in the history of the world to get someone from ohio rhythm out to court and have them testify is it is not impossible and i know impossible is not the standard but what this record shows is we don't see any forty two or forty three even if i only looked at the great three grade c violations which have nothing to do with the folks in ohio i would impose the same thirty month sentence yet cites to step analysis the district court must indicate on the record that it would have imposed the same sentence your honor pointed out that the district court did but then that sentence this court would have to find would be reasonable and it breaks down there because this was a thirty month sentence on a six to twelve month violation all of which were breaches of the court's trust the court did not go into an analysis explaining why this breach of trust was any greater than normal the defend one of the violations was paying some of his monetary obligation but not all of it two of the violations were effectively the same violation absconding and then failing to take the drug test which were the same violation nothing about those violations on their face would justify or could justify an upward variance at the level he proposed he relied on breach of trust but of course breach of trust is going to be present you're revoking supervised release and if i may just get to the second point you know one of the other things the district court said here he indicated several times you know and hey if the standard here is unclear i would love it if the fourth circuit could clarify this i would love it if the fourth circuit would send this back and give me the correct tell me what to do and this gets to chief judge gregory's dissenting opinion in whom is i mean is where he talks about you know one one of the downsides to assume harmless error is it sort of takes this court out of one of if not its most important role which is to clarify the law and to provide rules to the lower courts and to litigants and so first i would say just on its face the district court's upward variance here is unreasonable and it's not justified but i would also you know adopt judge gregory's position in say that you know here you have a case where the district court saying you know what if i'm wrong if i need clarification if i didn't do this right please tell me but then suddenly this court sort of handcuffed itself and it's unable to tell it'll just say well even if the error were armless course the problem that is we have to go on that i mean i think that i think that you make a fair point about the assumed error harmless but that is the law we made that call you know your honor and i'll say i'm a i'm a public defender and if we want to take that on bank you know the hargrove case came out of my office and so i  fully understand it i think there are multiple problems with that which are not as you pointed out for this panel but maybe this case is a great example and something that would ultimately inspire this court to do that but again at the same time respectfully i don't think we even need to get there because you know these are violations that many times a probation officer may not even report or if someone goes in and it's gone and fails report they're brought to court pointed out the district court said something but that something is not enough i would also say that the government's attempt here to in the district courts application ferguson and the dow's well standards you know it obviously leads to a strong potential for abuse we have absolutely no indication the government operated in bad faith here but you know sending a signal that if you have potential the government's burden of proof what should have happened is you know the government i think very wisely brought to the court's attention this was going to be an issue we responded to hearing with a double hearing both on the merits and on the on availability of the witnesses and when the district court basically the point at which the government said these witnesses are in jail they're unavailable that wasn't enough to show good cause now if the government had said you know here's what we did we've tried to rip them out we've gone to the jail in ohio the jail is under quarantine and the jail is under quarantine there's a t v outbreak and you know this happens and for sixty days no one's coming in or out something like that or for these reasons it would be this expensive to do that this logistically difficult those are actual facts the judge can then exercise his discretion on not merely the mere indication that they're in a jail with absolutely no indication of how difficult it may actually be to get them out of the there is of course a fourth witness mr stevens who i think provides a much better example of facts that the district court could exercise his discretion on mr stevens was homeless and they tried to contact his family members they looked for his address at the post office that's the kind of effort and basic effort that they didn't apply to these other witnesses also to get to reliability you mr stevens was homeless so the district court said you know i find these declarations reliable but what you really do have is at least three of these individuals homeless homelessness often associated with mental illness with criminal records giving these you know declarations it's not something that you would necessarily look at and say you know this homeless criminal is definitely reliable his hearsay is reliable without any indication of what incentives he may have had to testify in the way the police wanted you know comparing it to da will does well in ferguson those were chemistry reports and here after melinda's dia's i was in a public defender's office were all excited about this new opportunity to cross examine i see it happen all the time your honor and i think you know in the woods case unpublished in this for rotation carriers you know you're on i believe the discussion we're having right now is the discussion that should have happened in the district court the government should have explained how difficult it was to get these individuals we should have problems you don't have to explain and your honor i i disagree that that's common sense the government the nature of criminal prosecutions is that convicted criminals often testify in other trials often testify in other hearings so transporting  use we use video conferences your honor in jails to to speak to our clients and that's actually another something the district court the government did not present something else that could have been considered no your honor but we we wanted to cross examine these witnesses and had the government or the district court again conducted the actual inquiry instead of simply saying they were in a state jail and that's enough or they're in a state jail and a i'm not going to concede this point that when the district court said all i need to find is reliability that he didn't mean that he did articulate the proper standard leader but he very expressed lee articulated the improper standard that was wrong would have come up and i would again i will say if i were their counsel i would probably advise them having already confessed to waive that and to eagerly testified and to help themselves and to cooperate with the government but your honor i think it would have been i certainly would have given them a lawyer because they're testifying in court thank you good morning may please the court when they were proven on behalf of the united states in many ways i think this case is about asking the right questions and my colleague focuses greatly in the briefing and here this morning on the question of an availability but when it comes to whether proffered good cause for denying such a confrontation an availability in the technical rule at all four sons there's only one way that the government might show good cause and there is no requirement in any court in any case that i that the witness must be truly unavailable in order to meet that standard well of course we're on availability because that's where that is to court but i actually i think the district court certainly looked at it i do but i think the court actually if you look at it your honor i think the court talks about  standard while the district court was time on other issues such as reliability there were times when the way the court stated the standard was was not exactly correct i agree but i think the district court does deserve some credit for the fact it quoted from this court's decision clearly had not only read it but i think it probably had it front of it during the hearing and when it came time to make its determination as judge tracks for you quarter from page one thirty one the court said i know that it seems to be a focus on rather th ability standard and whether there was good cause and i do find there was good cause and that three of these individuals are incarcerated and you have a fifth amendment privilege one was not able to be located this district court i think it cannot be said that th not find good cause because the district court said and i do find good and so as an initial matter i think the court in that hearing taken as a whole applied the right it was certainly well aware of dolls while this was an ferguson this was an a little newer this morning that there was insufficient evidence to find good cause i took the briefing more to focus on that these witnesses were not truly unavailable and that was why i start out saying that it's about asking the right questions because that isn't why i think there's a set of things and this court has not had the opportunity to speak in a published way on what good cause is both ferguson and docile didn't get into what good causes because there was no attempt to show good cause the district or didn't find good cause but i think good cause certainly could be an availability but there's also cases that suggest that the burden on the witnesses is another factor to be considered in fact in morsi it's often talked about fear of retaliation being a reason you might not present a witness in a program and fear fear of retaliation while very chapter seven these are the original advisory guide rises repulsive statements and they still are priority even how to advise or guidelines in chapter seven actually states that it's not intended to capture everything for example one thing it says is these guidelines don't account for multiple violation six twelve so have you ever seen a case where there has been these minor violations and there's been this this very harsh i've actually seen and a good number of them in a very specific context there are a lot of our judges when they when they're revoking someone for a second time that this went well this defendant actually was on supervised release of course from an eastern distr virginia case that's that's our case now that conduct that he was convicted of in the eastern district of virginia was while he was on supervised release for the same conduct out of the eastern district of pennsylvania mail theft and bank fraud so it's not too  period of supervised release but this is not the first time this defendant has has been revoked and rely on that the district actually talked about that this was he's continued on this path of conduct and reviewed his past and so i think the court did it was actually a pretty discretion to do everyone i was just trying to understand what absolutely and to me i think one thing is the multiple violations you could literally stack those guideline ranges and he would get eighteen to thirty seconds i don't think it's necessarily that simple it's not a mathematical exercise i think if you what i would commend to the court is office with orton's testimony during the hearing this was a defendant who was just absolutely disregarding superman and not you know even saying the criminal conduct aside for a moment this is the defendant who she could never reach when she finally would reach him she'd tell him to come in and it would be a day a week when he came in she testified that he was untruthful with her about the ronald problems he denied the second time the car that was taken ohio first he lied to her he denied running the car then after some pressure he said i rented it but i run it over and she said that the name he eventually was going to give her was plainly unbelievable so that last part of the name that he eventually gave her the friend she said he was the friend of hers she refused to say then she said the name that he gave was just don't believe i named the name i think w i think all of this of this release the actual authority over it was not transferred until just before the revocation motion was filed but also thorton had been working with him you know throughout that period as he was released and in north carolina and so when you have with absence of with and i think that to go back to the merits of the case on to the subset of merits i think that goes to the fact you must always have some form of good cause and we've been thinking a lot about this in my chester for the proposition all circuits agree reliability is a very important factor in determining the strength of early c's confrontation right so is the evidence becomes more and more reliable that confrontation right would go down and the amount of good cause that the government would need would also be low but does one ferguson what you just read from ferguson your honor says there always must be some good unlike the third circuit in a case called lloyd you can never have a case recently it's just so reliable we don't even need to worry about what was said to show something but in a case where the evidence is highly corroborated which i would contend this is one the amount of evidence that we would need to man a good cause we need to show would be lesser say in this case we only had one win so they couldn't you couldn't cross probably them and each other i very specific way one of the things that just tracks are you mentioned was that bringing these witnesses a long distance from state custody in ohio that's both dangerous it's also costly it's time consuming j g in your hypothetical some of those would go away you know if they're in the wake county courthouse down the street it wouldn't i couldn't say that it would be terribly expensive there's a little maybe a little danger but not not anything i would notice could cause but you would still have the fifth amendment and and i think it's it's kind of a role reversal here because i think my colleague and i disagree quite a bit on on what it by said the appropriate for those those witnesses as our government counsel made clear in the district court they had been given we had we're not prepared to give them any guarantees out of the northern district of no guarantees given that if these witnesses testified in this hearing that we would do anything and yes they had already given incriminating statements to police but i think i think the reality is most defense attorneys would tell their client don't say anything now you're in court that will be much easier to use against you in a criminal trial and as we've told the district court all of these witnesses were under investigation or pending charges in the northern district of ohio of course they shouldn't testify in court on the basis of that criminal conduct and i think any defense attorney would tell them not to unless they had been offered some kind of cooperation deal which i'm not at all but he pushed incomes so we don't know what would happen did they come in and i my own experience in life is that cases don't settle and deals don't get made into the are actually there i enlarge i think that's and i think it's all that i think saying that we hadn't made any definite i don't that doesn't go anywhere with me where i think i hope that it could go somewhere i agree or are or i think there could be strong distinction between the revocation hearing and a straight up trial or sent i do i do think that there are you know i don't want to suggest that they're not serious business th think what what the court can do is balance and again it would depend on what the defendant's interest in confronting those witnesses so it's about how reliable is the hearsay that i think that's the main factor in how strong the defendant's interest how well  balance that against a good cause so the other thing is that the pending on how cooperated one defendant the witnesses against one defendant are that defendant may have a stronger argument against a good cause than you have in another case i think it's a very fact found in korea i think it's something that store very well equipped to do and i think there's four main categories of things that would make good cause that i have found there may be more burden on the witnesses and in the interest of justice that's for fifth amendment rights with men economy as well as the ability to bring witnesses that all that would be on availability if they're truly just gone and to know one more thing about interest of justice i would just note that it's a little more complicated here to approach these witnesses it's not comfortable for us to approach people we're is separate from the main prosecution i think that is something that would actually be perhaps a little bit more difficult for us to do in a given case well i go as a warning process that happens a lot of prosecutions and here you're you know you're not release revocation not bail i think in those in those cases you certainly have a due process right in the way that the court described it in morrissey it's a right to confront witnesses against you unless the court determines that the interests of justice don't  that's what led to rule thirty two point one and so that interest is not the same we know the sixth amendment does not apply we know that the true confrontation clause of the constitution does not apply but that's not to say that the due process clause doesn't have anything say about ation and i think that's what morsi explained and that brings me back to sort of where i started that rule thirty two point one does not use the word unavailable rule thirty two point one says that the defendant has has to have an opportunity to appear present evidence and question any adverse witness unless the court determines that the interests of justice does not require the witness to hear the doswell case out of this court doesn't use the word unavailable or on availability even once because that's not the t weighing good cops against the defendant's interest in the cross examination and i think that's exactly what the district court did here the district court found that there was good cause i think both these witnesses were not present they were difficult to  to bring to court but also their fifth amendment rights balanced against the fact and i only have just a few minutes left talk about the reliability evidence but there are a liability of the supplements taken together was very strong i think the defendant started out in his opening brief just focusing on four lines but these witnesses had given the exact same modus operandi for this and it's not just mail for stealing mail and cashing checks these are these checks were altered in very similar way how the investigation led to think these crimes were connected to begin with and if you look at the checks they're on page one sixty two one eighty one eighty six you can see what the inspector was talking about when she said these checks were all done very similarly in a way that made them seem connected these w es also explain that they were down and out but they had two forms of id in these different the fenton and his coconspirators approached them said you have i d d you want to make some money bought them clothes then took them and sent them in with these checks so that's already a to five zero and sure enough the police to track that license plate to a car rented by the defendant with this credit that was when they started putting the defendant on the line up they showed that to sean surfer and he picked out the defendant in fact all four of these witnesses most of whom didn't even know each other all the defendant out of the lineup all gave similar stories it was on the same geographic area around cleveland ohio and it was all with the car running by this defendant i think the of all of that evidence together so reliability goes into the side of the equation about how much because of government need this offense interest was low because this evidence was well corroborated and then you add to that the cause that we have with this you been a trial lawyer for a while sometimes the witnesses change when you're actually there you know they've told you one thing they've said something in deposition and then all of a sudden at trial they have a new over is that never happened to you evidence can be used revocation hearings it can there's a test that has to be followed but the same standards up we just don't trust hearsay i mean that isn't the test that's used the question is weighing good cause which the government had here against the reliability of this evidence which was strong and that is the test and it is one thirty one and one thirty two but the district court said it was a and it's a test that it applied and the court's review of that determination is for abuse of discretion and so i think thank you for your honour's i agree we almost certainly wouldn't be here because the witnesses their testimony would have either fallen apart when they were actually cross examined on the only part of this case that connects it to mr brown which is the identification so either the witness's testimony would have all of all in a part mr brown would have gone to jail for six to twelve months or their testimony would have been a rock solid and i wouldn't have had much of a leg to stand on up here  to get the government lead certainly in the briefing you know i did focus on an availability that was because the government below and the district court focused heavily on  think the government and i agree on the standard which is good cause and the reason good cause hasn't been met here and the reason it is actually even an abuse of discretion is because the district court didn't have  on which to exercise its described you pointed out judge traxler someone coming in in a situation like this almost certainly we need an attorney to advise them why because it's complicated because you're waiting pros and cons to i testified to i hope the government do i expose myself to something else i can tell you if i had a defendant who confessed to the police and he had the opportunity to testify to the same thing since it's confessions going to be used against him any way i do it maybe there'd be a disagreement there but the point is the district court honor unless his conclusion would be an abuse of his discretion having digested those facts i believe that would be a good cause which would then be weighed against the reliability but exactly your honor if it doesn't the ways in which evidence could be presented to the district court be it through marshall's explaining financial situations or not there are many ways it could be presented it wasn't presented at all here but yes if you had facts and exercised his discretion on those facts i'd be up here having to say it was just an abuse of discretion as opposed to he didn't actually conduct a good cause inquiry because all we have is common sense which i just don't think is enough adjudicate in one quick response and we talked about the thirty month sentence you know officer thornton's testimony as probation officer you know she said several things on joint appendix page one hundred six she talked about information she had that mr brown had been traveling in georgia and she confronted mr brown about that and he explained that he had a brother who looked like him and who often would give his name and not does happen siblings will try and stay out of trouble by giving their siblings names and she said i didn't have any suspicions at that time because there'd been no information that my offender mr brown was involved in anything he shouldn't so it wasn't just that she came in and said mr brown was a horrible offender i hated supervising and there was clearly a relatively large period where he was doing what you supposed to be paid most of his financial obligations the record doesn't support a thirty month sentence in the absence of the gr thank you thank you very much we'll come down to greta lawyers and then we'll take a short recess