1 1 9

- 3841

- cr United States v. Diaz 

# United States Court of Appeals for the Second Circuit
A UGUST T ERM 20 20 No. 1 9

- 3 841

U NITED S TATES OF A MERICA , Ap p ellee ,

v.
R OBERT D IAZ , Defendant

- Appellant

. S UBMITTED : N OVEMBER 13 , 20 20 D ECIDED : J ANUARY 2 7 , 20 2 1

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 due2 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 Defe n d ant

- 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.
D ENNIS J ACOBS , 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. T he United St ates 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

. S upervise d3 release was revoked and Diaz was sentenced principally to 24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 argue s 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 admi tting 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
find ing good cause, that error was harmless given the overwhelming evidence of
Diaz’s guilt . Therefore, we AFFIRM the revocation of supervised release

.4 I
A pre - dawn 9 1 1 call on June 16, 2018 reported that a violent robbery was underway in a Bronx apartment complex called the Lambert Houses. Frederick
Pimente l, who placed the call, overheard the robbery taking place outside his
closed apartment door. He heard the victim plead , “here . . . T ake it . . . Y ou cut me like 50 times already ” and the attacker respond , “ [ y ] eah, you made me cut myself too . . . W hat 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 S gt. 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

scre enshot 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.”5 Det

. Martinez then paged through a n NYPD database of Lambert House s residents and pulled the mugs hot of a man who appeared to match the Instagram page and who had a large neck tattoo. Th e mugshot was of Diaz.
T he 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 lunge d at him , stabbing Melo numerous times in an attempt to wrest the chain
from its owner

. A t some point , Melo cut the assailant’s face with a box cutter.
Melo added that th e attacker also lived in the Lambert Houses and went by the
nick name “ 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.”6 Rivera inquired about a deep , fresh

- looking woun d she observed next to Diaz’s
eye . Diaz explained that he had been cut in a street fight

. Melo was interviewed t hree months later by Special Agent Scott McNeil.
Diaz had been arrested i n 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 criminal7 conduct ; so after Melo twice identified him as the perpetrator of a violent robbery , t he United States Probation Department filed a violation report in the
district court

. 2 Diaz was arrested at his apartment in the Lambert House s in January 2019

. At the revocation hearing, testimony was given as to the events described above by Pimentel, S g t

. 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 mention ed an M

- shaped neck
tattoo or said he kn e w his attacker as “Knightmare” ; that he saw a mugshot in the hospital but did not make an identif ication; and that he did not identify anyone in the six

- person photo array as his attacker

. Diaz’s counsel cross

examined 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 g overnment eventually dismissed ten more .8 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 )

. T he district court deferred ruling on its admissibility until after the hearing

. T he 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 standard s that govern revocation proceedings. T he
district court ruled for the g overnment 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 in admissible
under the Due Process Clause (Point I II below) . Seco n d, he points out that the
district court failed to find good cause before admitting various hearsay9 statements , in violation of Federal Rule of Criminal Procedure 32.1(b)(2)(C) (Point I V below)

.

III
D ue 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) (inte rnal quotation marks omitted). “ [T] he linchpin in determining the
admissibil ity of identification testimony ” is reliability. Manson v. Brathwaite , 432 U.S. 98, 114 (1977). I f the procedure s used to obtain a n 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.” Dunn igan v. Keane , 137 F.3d 117, 12 8 (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 clear10 error.” United States v. Douglas , 525 F.3d 225, 242 (2d Cir. 2008) (internal quotation marks omitted)

. The first inquiry is “whether the pretrial ide ntification procedures unduly and unnecessarily suggested that the defendant was the perpetrator.” Raheem v. Kelly , 257 F.3d 122, 133 (2d Cir. 2001). E ven if an identification is improperly suggestive, “the witness’s identification of the suspect . . . i s still admissible if the identification has independent reliability.” United States v. Eltayib , 88 F.3d 157, 167 (2d Cir. 1996). Here, t he g overnment concedes that both of Melo’s identifications were obtained by unduly suggestive procedures

. See Appellee Br. at 12. T he 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 ob viously do not.” See Raheem , 257 F.3d at 134. Melo11 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

. T he five factors set out in Neil v. Biggers guide that analysis : [1] the opportunity of the witness to view the criminal at the tim e 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 conf rontation. 409 U.S . 188, 199

– 200 (1972). No one facto r is generally dispositive. Concepcion , 983 F.2d at 377. Collectively, t he 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, t he 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 provide d a detailed description of12 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 S gt. Lundy at the

scene that his assailant had a n 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 de tailed inquiry” does not indicate unreliability. Chavis
v. Henderson , 638 F.2d 534, 537 (2d Cir. 1980). A t the moment, Melo was bleeding profusely, bobbing in and out of consciousness, and gasping for breath

. And a l though not detailed , Melo’s description included the neck tattoo and was13 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 deta iled, 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 un hesitatin g . 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 t hree 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

- mont h 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

.14 Therefore, the district court did not clearly err in admitting the identification testimony

.

I V 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 rel ying on the se hearsay statements
without making a finding of good cause

. We review admissibility
determinations made during a revocatio n 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 viol ated a
condition of release

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

. But

a re v ocation proceeding can not 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 of15 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 pa noply of rights that criminal defendants generally enjoy .” United States v. Carthen , 681 F.3d 94, 99 (2d Cir. 2012) (internal quotation marks omitted).
N either the Federal Rules of Evidence nor the Six th Amendment’s
C onfrontation C lause 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, 34 2

– 4 3 (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. T he protections that do appl y 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).16 When a proffered out

- of

- court statement made by an adverse witness is not
within an establ ished 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 “Knight m are , ” and (3) that Melo cut the attacker’s face during
the assault. Diaz argues that the district court erred by considering these17 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. A lthough 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”). T he A dvisory 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 rev ocation hearings.” See Fed. R. Crim. P. 32.1 a dvisory18 committee’s n ote to 2002 amendment s . 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 t he 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, o ne 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

. A lthough 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)

. V erified facts and accurate knowledge are “touchstones” of admissibility in a revocation p roceeding. Id. “[H]earsay evidence may be admitted in probation revocation hearings if it bears sufficient19 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 robbe ry , the stabb ing , and the
defensive blow ) is c orroborated 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

- of

court 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 fl ight s 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

.20 B. Ashley’s Hearsay Statements
T he 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 t he g overnment did not call Ashley as a witness n or 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, t here 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”).21 there was good cause to deprive Diaz of his right to confront her

. T he 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

- justice

determination requirement of Rule 32.1(b)(2)(C) . . . is subject to harmless

- error analysis. ” See Aspinall , 389 F.3d at 346. And A shley’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 harml ess.

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