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19-3841-cr

United States v. Diaz

United States Court of Appeals

for the Second Circuit

AUGUST TERM 2020

No. 19-3841

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT DIAZ,

Defendant-Appellant.

SUBMITTED: NOVEMBER 13, 2020

DECIDED: JANUARY 27, 2021

Before: JACOBS, POOLER, BIANCO, Circuit Judges.

Robert Diaz appeals from a judgment of the United States District Court for the 

Southern District of New York (Ramos, J.) revoking his supervised release and 

sentencing him principally to a 24-month term of imprisonment. On appeal, Diaz

argues that (1) the admission of certain identification testimony violated his right to due 
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process; and (2) the admission of several hearsay statements without a finding of good 

cause violated Federal Rule of Criminal Procedure 32.1(b)(2)(C). We affirm. 

____________________

SARAH BAUMGARTEL AND YUANCHUNG LEE,

Federal Defenders of New York, Inc., New York, NY for 

Defendant-Appellant Robert Diaz.

BRETT M. KALIKOW, Assistant United States Attorney

(Hagan Scotten, Assistant United States Attorney, on

the brief), for Audrey Strauss, United States Attorney 

for the Southern District of New York, for Appellee 

United States of America.

DENNIS JACOBS, Circuit Judge:

After Raymond Melo was nearly killed during a robbery inside a Bronx 

apartment complex, he twice identified the perpetrator as Defendant-Appellant 

Robert Diaz, who was then on supervised release. Several evidentiary issues 

arose because Melo was a reluctant witness who denied at the revocation hearing 

that he ever identified Diaz as the attacker. The United States District Court for 

the Southern District of New York (Ramos, J.) nonetheless relied on Melo’s prior 

identifications (as well as testimony from other witnesses) and found by a 

preponderance of the evidence that Diaz had committed the attack. Supervised 
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release was revoked and Diaz was sentenced principally to 24-months 

imprisonment.

Diaz raises two issues on appeal. First, he argues that the district court’s 

reliance on Melo’s two out-of-court identifications violated his right to due 

process. Second, he argues that the district court failed to make a finding of 

good cause before relying on hearsay statements that Melo and his girlfriend 

Ashley allegedly made to law enforcement during the investigation. 

Neither contention is grounds for vacatur. Even though the procedures 

used to obtain Melo’s out-of-court identifications were unduly suggestive, both 

identifications were nonetheless reliable. Accordingly, the district court did not 

clearly err by admitting them. See Neil v. Biggers, 409 U.S. 188, 199 (1972). 

Also, because Melo testified at the supervised release hearing, the district court 

was not required to find good cause before admitting his hearsay statements 

under Federal Rule of Criminal Procedure 32.1(b)(2)(C). And although the 

district court erred by admitting Ashley’s hearsay statements without first 

finding good cause, that error was harmless given the overwhelming evidence of

Diaz’s guilt. Therefore, we AFFIRM the revocation of supervised release.
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I

A pre-dawn 911 call on June 16, 2018 reported that a violent robbery was 

underway in a Bronx apartment complex called the Lambert Houses. Frederick 

Pimentel, who placed the call, overheard the robbery taking place outside his 

closed apartment door. He heard the victim plead, “here . . . Take it . . . You cut 

me like 50 times already” and the attacker respond, “[y]eah, you made me cut 

myself too . . . What else [do] you have in your pocket?” App’x. at 100. 

NYPD Sergeant James Lundy arrived at the Lambert Houses within 

several minutes to find Melo slumped over at a nearby bus stop suffering from 

numerous stab wounds. Melo managed to tell Sgt. Lundy that the attacker had 

an M-shaped tattoo on his neck, was wearing khaki pants but no shirt, and had 

been cut during the attack. 

The next morning, Melo’s girlfriend Ashley was with Melo at the hospital, 

and in touch with NYPD Detective Daniel Martinez. She texted Det. Martinez a

screenshot of an Instagram page that she believed belonged to Melo’s attacker 

and told him over the phone that Melo’s assailant was known as “Knightmare.” 
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Det. Martinez then paged through an NYPD database of Lambert Houses

residents and pulled the mugshot of a man who appeared to match the 

Instagram page and who had a large neck tattoo. The mugshot was of Diaz.

The following day, Det. Martinez came to see Melo at the hospital. Early 

in their conversation, Melo agreed to identify his attacker but made clear that he 

did not want to testify in court. He proceeded to tell Det. Martinez that he

encountered a man in the stairwell of the Lambert Houses who had a neck tattoo 

resembling the Maserati logo.1 The man commented on Melo’s chain and then 

lunged at him, stabbing Melo numerous times in an attempt to wrest the chain 

from its owner. At some point, Melo cut the assailant’s face with a box cutter.

Melo added that the attacker also lived in the Lambert Houses and went by the 

nickname “Knightmare.” At that point, Det. Martinez showed Melo the 

mugshot he had pulled from the database. Without hesitation, Melo identified 

Diaz.

A few days later, Diaz met with his probation officer, Elisha Rivera. P.O. 

1 Automobile manufacturer Maserati was founded in Bologna and uses 

Neptune’s trident, which is associated with that city, as its logo. Because the 

trident is upside-down on Diaz’s neck, the tattoo is in the shape of the letter “M.” 
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Rivera inquired about a deep, fresh-looking wound she observed next to Diaz’s 

eye. Diaz explained that he had been cut in a street fight.

Melo was interviewed three months later by Special Agent Scott McNeil.

Diaz had been arrested in the interval, but the Bronx District Attorney’s Office 

dropped its case against him because Melo refused to cooperate. Melo repeated 

to S.A. McNeil much of what he had told Det. Martinez: his attacker had a neck 

tattoo resembling the Maserati logo, and he struck the assailant’s face during the 

robbery. S.A. McNeil then administered a photo array. One of the six photos 

in the array was the Diaz mugshot that Melo had previously selected in the 

hospital. Melo confidently selected the photo of Diaz and identified him as “the 

one who stabbed me.” App’x at 182. But he reiterated that he would lie on the 

stand if required to testify against Diaz.

II

Diaz, who had been convicted of being a felon in possession of a firearm in 

2017, was on supervised release when Melo was attacked. One condition of 

Diaz’s supervised release was that he avoid engaging in further criminal 
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conduct; so after Melo twice identified him as the perpetrator of a violent 

robbery, the United States Probation Department filed a violation report in the 

district court.2 Diaz was arrested at his apartment in the Lambert Houses in 

January 2019.

At the revocation hearing, testimony was given as to the events described 

above by Pimentel, Sgt. Lundy, Det. Martinez, P.O. Rivera, and S.A. McNeil. 

Melo also took the stand (notwithstanding his resolve not to testify) but gave 

testimony that was largely inconsistent with his own prior statements. On 

direct examination, Melo testified: that he never mentioned an M-shaped neck 

tattoo or said he knew his attacker as “Knightmare”; that he saw a mugshot in 

the hospital but did not make an identification; and that he did not identify 

anyone in the six-person photo array as his attacker. Diaz’s counsel crossexamined him briefly.

2 In total, the report alleged 18 violations of supervised release, four of which 

stemmed from the Melo assault: (1) robbery in the first degree, (2) assault in the 

first degree, (3) attempted murder in the second degree, and (4) possession of a 

weapon in the first degree. Diaz pled guilty to four other less serious violations 

relating to marijuana use and failure to report, and the government eventually 

dismissed ten more. 
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Det. Martinez and S.A. McNeil, who testified next, recounted their 

conversations with Melo, including the two positive identifications of Diaz.

This testimony was offered for its truth (not just for impeachment). The district 

court deferred ruling on its admissibility until after the hearing. 

The parties then briefed two outstanding evidentiary issues: (1) whether 

Melo’s two out-of-court identifications were admissible under the Due Process 

Clause, and (2) whether Melo and Ashley’s hearsay statements (introduced 

through the testimony of Det. Martinez and S.A. McNeil) were admissible under 

the relaxed evidentiary standards that govern revocation proceedings. The

district court ruled for the government on both issues. It then found that Diaz 

had committed the stabbing by a preponderance of the evidence, revoked his 

supervised release, and sentenced him principally to the statutory maximum of 

24 months in prison.

On appeal, Diaz renews his challenge to Melo’s out-of-court 

identifications, contending that both were unreliable and therefore inadmissible 

under the Due Process Clause (Point III below). Second, he points out that the 

district court failed to find good cause before admitting various hearsay 
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statements, in violation of Federal Rule of Criminal Procedure 32.1(b)(2)(C)

(Point IV below). 

III

Due process protects “the right not to be the object of suggestive police 

identification procedures that create a very substantial likelihood of irreparable 

misidentification.” United States v. Concepcion, 983 F.2d 369, 377 (2d Cir. 1992) 

(internal quotation marks omitted). “[T]he linchpin in determining the 

admissibility of identification testimony” is reliability. Manson v. Brathwaite, 

432 U.S. 98, 114 (1977). If the procedures used to obtain an identification are

unduly suggestive, “due process requires that the identification testimony be 

excluded unless a threshold level of reliability can be established through 

evidence that is independent of the suggestive procedure.” Dunnigan v. Keane, 

137 F.3d 117, 128 (2d Cir. 1998), abrogated on other grounds by Perry v. New 

Hampshire, 565 U.S. 228, 248 (2012). “We review the district court’s 

determination of the admissibility of identification evidence for clear 
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error.” United States v. Douglas, 525 F.3d 225, 242 (2d Cir. 2008) (internal 

quotation marks omitted).

The first inquiry is “whether the pretrial identification procedures unduly 

and unnecessarily suggested that the defendant was the perpetrator.” Raheem 

v. Kelly, 257 F.3d 122, 133 (2d Cir. 2001). Even if an identification is improperly 

suggestive, “the witness’s identification of the suspect . . . is still admissible if the 

identification has independent reliability.” United States v. Eltayib, 88 F.3d 157, 

167 (2d Cir. 1996). 

Here, the government concedes that both of Melo’s identifications were 

obtained by unduly suggestive procedures. See Appellee Br. at 12. The 

practice of showing a witness a single photo (as opposed to an array) “has been 

widely condemned,” Stovall v. Denno, 388 U.S. 293, 302 (1967) (footnote 

omitted), abrogated on other grounds by United States v. Johnson, 457 U.S. 537 

(1982), so the hospital show-up was unduly suggestive. The six-photo array 

fares no better. An array is unduly suggestive if the defendant “meets the 

description of the perpetrator previously given by the witness and the other 

[array] participants obviously do not.” See Raheem, 257 F.3d at 134. Melo 
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previously reported that his assailant had a large neck tattoo, and Diaz was the 

only person in the array with such a tattoo (though it is asking a lot to find five 

other fellows with large neck tattoos).

Diaz’s appeal therefore concerns only the second inquiry--whether the 

identifications were nonetheless reliable. The five factors set out in Neil v. 

Biggers guide that analysis: 

[1] the opportunity of the witness to view the criminal at the time of 

the crime, [2] the witness’ degree of attention, [3] the accuracy of the 

witness’ prior description of the criminal, [4] the level of certainty 

demonstrated by the witness at the confrontation, and [5] the length 

of time between the crime and the confrontation.

409 U.S. 188, 199–200 (1972). No one factor is generally dispositive. 

Concepcion, 983 F.2d at 377. Collectively, the Biggers factors confirm that 

Melo’s identifications of Diaz were independently reliable notwithstanding the 

suggestive means used to obtain them. 

As to opportunity to view, the attacker was unmasked, the hallway was 

well-lit, the two men spoke, and the attack lasted over a minute. Although 

Melo was initially assaulted from behind, he ended up face-to-face with the 

attacker, slashed the attacker in the face, and provided a detailed description of
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the tattoo on the attacker’s neck. See Dunnigan, 137 F.3d at 129 (this factor 

favored admissibility because the witness engaged “in hand-to-hand combat” 

with the assailant). 

As to the degree of attention, it was likely high because Melo was a victim. 

See United States ex rel. Phipps v. Follette, 428 F.2d 912, 915 (2d Cir. 1970) 

(reasoning that a victim pays more attention than “[a] person unaware that a 

crime is being committed”); United States v. Mims, 481 F.2d 636, 637 (2d Cir. 

1973) (inferring that “as a victim of the crime[,]” the bank teller was “especially 

likely to remember the [defendant bank robber’s] features”). 

As to the accuracy of the prior description, Melo told Sgt. Lundy at the 

scene that his assailant had an M-shaped tattoo on his neck. Diaz points out 

that the description omits such basics as height, weight, and race. However, 

“the absence of a detailed description in a situation where prompt police work 

permits little time for detailed inquiry” does not indicate unreliability. Chavis 

v. Henderson, 638 F.2d 534, 537 (2d Cir. 1980). At the moment, Melo was 

bleeding profusely, bobbing in and out of consciousness, and gasping for breath. 

And although not detailed, Melo’s description included the neck tattoo and was 
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in no way inconsistent with Diaz’s appearance. See United States v. Jacobowitz, 

877 F.2d 162, 168 (2d Cir. 1989) (this factor favored the government when the 

prior identification, “though not highly detailed, was accurate”).

As to level of certainty, both of Melo’s identifications (in the hospital with 

Det. Martinez, and after viewing the array with S.A. McNeil) were confident, 

unequivocal, and unhesitating. 

As to the length of time between the event and the identification, the

show-up took place in the hospital the day after the attack. Even though three 

months passed before Melo viewed the array, “an interval of several months 

between the event and the identification, though a negative factor, is not 

determinative if it is outweighed by other indicia of reliability.” Concepcion, 

983 F.2d at 378; Jacobowitz, 877 F.2d at 168 (holding that a ten-month gap, 

though “a longer delay than is desirable,” did not make identification 

unreliable). 

In sum, nearly all of the Biggers factors support the reliability of Melo’s 

identifications despite the suggestive procedures used to obtain them. 
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Therefore, the district court did not clearly err in admitting the identification 

testimony. 

IV

The hearsay statements challenged on appeal were made by either Melo or 

Ashley and introduced through the testimony of either Det. Martinez or S.A. 

McNeil. Diaz’s primary contention is that the district court contravened Federal 

Rule of Criminal Procedure 32.1(b)(2)(C) by relying on these hearsay statements 

without making a finding of good cause. We review admissibility 

determinations made during a revocation hearing for abuse of discretion. See

United States v. Jones, 299 F.3d 103, 112 (2d Cir. 2002). 

A district court may revoke supervised release if, after a revocation 

hearing, it finds by a preponderance of evidence that the defendant violated a 

condition of release. See 18 U.S.C. § 3583(e)(3); Fed. R. Crim. P. 32.1(b)(2). But 

a revocation proceeding cannot be equated with a “criminal prosecution in any 

sense.” Morrissey v. Brewer, 408 U.S. 471, 489 (1972). Because the defendant 

already stands convicted of a crime, the government is not “put to the burden of 
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an adversarial criminal trial.” United States v. Carlton, 442 F.3d 802, 809 (2d 

Cir. 2006). Therefore, the defendant is “not entitled to the full panoply of rights 

that criminal defendants generally enjoy.” United States v. Carthen, 681 F.3d 

94, 99 (2d Cir. 2012) (internal quotation marks omitted).

Neither the Federal Rules of Evidence nor the Sixth Amendment’s 

Confrontation Clause apply with full force in a revocation proceeding. See

United States v. Bari, 599 F.3d 176, 179 (2d Cir. 2010); United States v. Aspinall, 

389 F.3d 332, 342–43 (2d Cir. 2004), abrogated on other grounds by United States 

v. Booker, 543 U.S. 220 (2005). This is because a revocation proceeding must be 

“flexible enough to consider evidence including letters, affidavits, and other 

material that would not be admissible in an adversary criminal trial.” 

Morrissey, 408 U.S. at 489. The protections that do apply spring instead from

the Fifth Amendment’s Due Process Clause and Federal Rule of Criminal 

Procedure 32.1. See Aspinall, 389 F.3d at 343. 

In a revocation proceeding, the defendant is afforded the 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). 
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When a proffered out-of-court statement made by an adverse witness is not 

within an established hearsay exception, “Rule 32.1 requires the court to 

determine whether good cause exists to deny the defendant the opportunity to 

confront the adverse witness.” United States v. Williams, 443 F.3d 35, 45 (2d 

Cir. 2006). This good cause determination is made by balancing “the 

defendant’s interest in confronting the declarant, against . . . the government’s 

reasons for not producing the witness and the reliability of the proffered 

hearsay.” Id. It is error to admit a hearsay statement that is not otherwise 

admissible under an established hearsay exception without conducting this 

balancing test. See id.; United States v. Chin, 224 F.3d 121, 124 (2d Cir. 2000).

A. Melo’s Hearsay Statements 

Melo’s hearsay statements include: (1) that the attacker had a neck tattoo 

that looked like the Maserati logo, (2) that Melo was familiar with the attacker

and knew him as “Knightmare,” and (3) that Melo cut the attacker’s face during 

the assault. Diaz argues that the district court erred by considering these
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statements without a finding of good cause pursuant to Rule 32.1(b)(2)(C). 

We consider for the first time whether Rule 32.1(b)(2)(C) requires that a 

district court find good cause before admitting hearsay statements made by a 

witness (like Melo) who testifies. We conclude that it does not. Although Rule 

32.1(b)(2)(C) guarantees the opportunity to “question any adverse witness unless 

the court determines that the interest of justice does not require the witness to 

appear,” the decisive point is that Melo did appear. So the district court was not 

required to make a good cause finding under Rule 32.1(b)(2)(C) before 

considering his hearsay statements. 

The primary function of Rule 32.1(b)(2)(C) is to ensure that a defendant has 

the opportunity to question adverse witnesses. See Chin, 224 F.3d at 124

(recognizing that the rule ensures that “a defendant [can] confront adverse 

witnesses in a revocation proceeding”); United States v. Rondeau, 430 F.3d 44, 48 

(1st Cir. 2005) (characterizing Rule 32.1(b)(2)(C) as “a limited confrontation 

right”). The Advisory Committee notes confirm that “Rule 32.1(b)(2)(C) 

address[es] the ability of a releasee to question adverse witnesses at the 

preliminary and revocation hearings.” See Fed. R. Crim. P. 32.1 advisory 
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committee’s note to 2002 amendments. Therefore, Rule 32.1(b)(2)(C) is satisfied 

when, as here, a hearsay declarant testifies and the defendant has the 

opportunity to cross-examine him.

Diaz argues that the district court was required to perform the balancing 

test set forth in Williams before considering the hearsay statements of a person 

who is both the declarant and a witness. However, one half of the Williams

balancing test concerns “the government’s reasons for not producing the 

witness,” 443 F.3d at 45, which would make no sense when, as here, the 

government does produce the witness. 

That Rule 32.1(b)(2)(C) was satisfied does not end the inquiry into the 

admissibility of Melo’s hearsay statements. Although the Federal Rules of 

Evidence do not apply strictly in a revocation proceeding, evidentiary constraints 

are not “altogether absent,” and a district court’s findings must still be “based on 

‘verified facts’ and ‘accurate knowledge.’” See Bari, 599 F.3d at 179 (quoting 

Morrissey, 408 U.S. at 484). Verified facts and accurate knowledge are

“touchstones” of admissibility in a revocation proceeding. Id. “[H]earsay 

evidence may be admitted in probation revocation hearings if it bears sufficient 
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indicia of reliability.” United States v. Stanfield, 360 F.3d 1346, 1360 (D.C. Cir. 

2004).

Melo’s hearsay statements were reliable and corroborated by other 

evidence. See Carthen, 681 F.3d at 100 (admitting a victim’s hearsay statements 

when they were “detailed, credible,” and “corroborated by other evidence”). 

Melo’s out-of-court description of the attack (the robbery, the stabbing, and the 

defensive blow) is corroborated by what Pimentel (the 911 caller) heard through 

his door, and by P.O. Rivera, who testified that Diaz showed up to a meeting 

days after the attack with a prominent gash on his face. Melo’s other out-ofcourt statements (that his attacker’s tattoo resembled the Maserati logo and that 

he knew his attacker as “Knightmare” from the Lambert Houses) are similarly 

corroborated by other evidence, including the defendant’s neck. Diaz was also 

residing in an apartment two flights up from where the attack occurred and has a 

Facebook account with the username “Knightmare.mila.” Given that Melo’s 

statements were corroborated by much of the unchallenged evidence in the case, 

they were reliable, and the district court did not abuse its discretion in 

considering them.
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B. Ashley’s Hearsay Statements 

The district court also relied upon several out-of-court statements made by 

Ashley. Specifically, it heard (through Det. Martinez’s testimony) that Ashley 

said the perpetrator’s nickname was “Knightmare” and that she provided a 

screenshot of his Instagram profile, which was used to locate Diaz’s mugshot.3 

But the government did not call Ashley as a witness nor offer an explanation for 

why or whether she was unavailable. And the district court never found that 

3 In the government’s view, Ashley was not the true author of these statements 

and therefore, she should not factor into our hearsay analysis. See Appellee Br. 

at 32–33. The government analogizes Ashley to an interpreter and contends 

that she was merely relaying to Det. Martinez statements made by Melo as he lay 

nearby in the hospital. We are unpersuaded. Because Ashley did not testify, 

there is no evidence supporting the assertion that she was only relaying Melo’s 

statements, let alone word-for-word. Therefore, she does not fall into the 

“interpreter exception,” and her statements to Det. Martinez create an additional 

layer of hearsay. Cf. United States v. Koskerides, 877 F.2d 1129, 1135 (2d Cir. 

1989) (holding that an interpreter was “no more than a language conduit and 

therefore his translation did not create an additional layer of hearsay” because he 

“translated . . . statements concurrently as made” and did not have “any motive 

to mislead or distort”). 
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there was good cause to deprive Diaz of his right to confront her. The district 

court thus failed to comply with Rule 32.1(b)(2)(C). See Williams, 443 F.3d at 45. 

That said, “a district court’s failure to comply with the interest-of-justicedetermination requirement of Rule 32.1(b)(2)(C) . . . is subject to harmless-error 

analysis.” See Aspinall, 389 F.3d at 346. And Ashley’s hearsay statements

amounted to a small fraction of the substantial evidence marshalled against Diaz. 

Even without her statements, there was ample evidence to support the district 

court’s finding that Diaz had committed the stabbing. Accordingly, the district 

court’s reliance on Ashley’s hearsay was harmless. 

CONCLUSION

For the reasons stated above, the judgment of the district court is affirmed.