### FOR PUBLICATION


### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT



#  J ERRYV ALDIVIA , A LFREDY ANCY , and H OSSIEW ELCH , on their own No. 08-15889 behalf and on behalf of the class D.C. No. of all persons similarly situated, 2:94-CV-00671-

Plaintiffs-Appellees, LKK-GGH v. 

#  Eastern District of A RNOLDS CHWARZENEGGER , California, Governor of the State of Sacramento California, and the ORDER S TATE OFC ALIFORNIA ,

Defendants-Appellants. 

# 

Filed September 28, 2010

Before: John T. Noonan, Michael Daly Hawkins, and Milan D. Smith, Jr., Circuit Judges.

Order; Dissent by Judge Bea

ORDER

Judge Noonan recommended granting Appellants’ Petitionfor Rehearing En Banc. Judge Hawkins recommended denying the Petition. Judge M. Smith voted to deny the Petition. The full court was advised of the Petition for Rehearing En Banc and a judge of the court requested a vote on whether to rehear the case en banc. The en banc call failed to receive amajority of votes by active judges in favor of en banc consideration. Fed. R. App. P. 35.

16539The Petition for Rehearing En Banc is DENIED.

BEA, Circuit Judge, dissenting from the denial of rehearing en banc, joined by O’SCANNLAIN, TALLMAN, CALLAHAN, IKUTA, and N.R. SMITH, Circuit Judges:

The Supreme Court has told us the Constitution’s due process requirements for a proper parole revocation hearing **1** are lessthan the requirements for a proper criminal trial. Morrissey v. Brewer , 408 U.S. 471, 488-89 (1972) (stating that the Supreme Court did not intend to “equate . . . parole revocation to a criminal prosecution in any sense ”). This only makes sense. A parolee has already been convicted. His freedom is a matter of grace; it is a privilege extended in an attempt to rehabilitate him. A criminal defendant, however, is presumed innocent; his freedom is a matter of right. His conviction would deprive him of his liberty.

Today, the Ninth Circuit leaves in place a decision that affords greater due process protection as to evidence offered against parolees than as to evidence offered against criminaldefendants. Under the majority decision of the panel, nontestimonial hearsay evidence, which would be admissible against a criminal defendant without any violation of the defendant’s constitutional evidentiary rights, is inadmissible against a parolee in a parole revocation hearing unless the State can show “good cause ” to deny the parolee his right to confrontation as stated in United States v. Comito , 177 F.3d 1166 (9th Cir. 1999). **2**

**1** “Parole, probation, and supervised release revocation hearings are constitutionally indistinguishable and are analyzed in the same manner. ” United States v. Hall , 419 F.3d 980, 985 n.4 (9th Cir. 2005).

**2** The balancing test set forth in Comito —our version of “good cause ”— requires hearing officers to “weigh the [parolee’s] interest in his constitutionally guaranteed right to confrontation against the Government’s good cause for denying it ” before admitting hearsay evidence at a parole revocation hearing. Comito , 177 F.3d at 1170. 16540 V ALDIVIAv. S CHWARZENEGGERAn example may help. Sally calls 911 and exclaims, “My husband Bob just shot me! ” At Bob’s trial for attempted murder, the prosecutor calls the 911 dispatcher to testify as towhat Sally said when she called 911. Sally’s hearsay statement is admissible; it is nontestimonial, so the Confrontation Clause of the Sixth Amendment does not bar its admission. See Davis v. Washington , 547 U.S. 813, 827-28 (2006) (holding that statements made by a domestic abuse victim to a 911 operator are nontestimonial when made during an ongoing emergency). Further, Sally’s hearsay statement is an excited utterance, so it is admissible under Federal Rule of Evidence 803(2).

But what if Bob were on parole when Sally called 911 and the State simply wanted to revoke his parole? According to the panel’s majority decision, Sally’s hearsay statement is not admissible unless the State can show what constitutes “good

cause ” in our circuit to deny Bob his right to confront Sally.

This result is odd in theory and still more odd in practice. I thus respectfully dissent from the denial of rehearing en banc.

I

The Due Process Clauses of the Fifth and Fourteenth Amendments provide minimum procedures the States must provide during parole revocation proceedings. Morrissey , 408 U.S. at 487-89. These minimum procedures are meant to “assure that the finding of a parole violation will be based on verified facts. ” Id. at 484. One of the minimum requirements of due process in a parole revocation hearing is “the right [of the parolee] to confront and cross-examine adverse witnesses. ” Id. at 489. **3**

**3** The MorrisseyCourt went on to state that due process does not require confrontation if “the hearing officer specifically finds good cause. ” 408 U.S. at 489. Read in context, the requirement that the parolee must have 16541 V ALDIVIAv. S CHWARZENEGGERTo determine “whether the admission of hearsay evidence violates [a parolee’s] right to confrontation in a particular [parole revocation] case, the court must weigh the [parolee’s]interest in his constitutionally guaranteed right to confrontation against the Government’s good cause for denying it. ” Comito , 177 F.3d at 1170. The weight of the parolee’s interestin his due process right to confrontation depends on two factors: (1) “the importance of the hearsay evidence to the court’s ultimate finding, ” and (2) “the nature of the facts to be proven by the hearsay evidence. ” Id. at 1171. On the other side of the balancing test, to determine whether good cause exists, a court must look to “both the difficulty and expense of procuring witnesses and the traditional indicia of reliability borne by the evidence. ” Hall , 419 F.3d at 988 (internal quotation marks omitted).

Later, in Crawford v. Washington , 541 U.S. 36 (2004), theSupreme Court altered the way in which the right to confrontation is defined under the Sixth Amendment. The Confrontation Clause of the Sixth Amendment provides: “In all criminalprosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . . ” U.S. Const. amend VI. The CrawfordCourt held that the admission of testimonial out-of-court statements against a criminal defendant violates the defendant’s rights under the Confrontation Clause of the Sixth Amendment unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. 541 U.S. at 68. No Comito or other type of balancing test is applied.

However, the Confrontation Clause does not apply to the admission of nontestimonial hearsay. United States v. Sine

,

an opportunity to confront witnesses unless the hearing officer finds goodcause is applicable only if the parolee would otherwise be entitled to confront those witnesses. We must now read Morrissey in light of Crawford v. Washington , 541 U.S. 36 (2004), which redefined the scope of the confrontation right in the constitutional context. 16542 V ALDIVIAv. S CHWARZENEGGER493 F.3d 1021, 1035 n.11 (9th Cir. 2007) (citing Whorton v. Bockting , 549 U.S. 406, 420 (2007) (stating in dicta that, “[u]nder Crawford , . . . the Confrontation Clause has no application to [nontestimonial] statements and therefore permits their admission even if they lack indicia of reliability ”)). Most hearsay exceptions cover statements that are, by their nature, not testimonial. Crawford , 541 U.S. at 56.

Examples of nontestimonial hearsay include: statements made to a 911 dispatcher during an ongoing emergency, Davis , 547 U.S. at 828; public records, such as records of conviction, United States v. Weiland , 420 F.3d 1062, 1077(9th Cir. 2005); immigration judges’ memoranda of oral decision, United States v. Ballesteros-Selinger , 454 F.3d 973, 975 (9th Cir. 2006); warrants of deportation and birth certificates, United States v. Bahena-Cardenas , 411 F.3d 1067, 1075 (9th Cir. 2005); and applications for permanent resident status, United States v. Marguet-Pillado , 560 F.3d 1078, 1085 (9th Cir. 2009). Further, “[b]usiness and public records are generally admissible absent confrontation . . . because—having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial. ” Melendez-Diaz v. Massachusetts , 129 S. Ct. 2527, 2539-40 (2009).

A criminal defendant’s right to confrontation derives from the Confrontation Clause of the Sixth Amendment, but a state-convicted parolee’s right to confrontation derives from the Due Process Clause of the Fourteenth Amendment. The due process right to confrontation under the Fourteenth Amendment provides less protection to parolees during parole revocation hearings than the Confrontation Clause of theSixth Amendment provides to defendants during criminal trials. See Morrissey , 408 U.S. at 488-89.

That does not mean the term “confrontation ” should be interpreted differently in the Sixth Amendment context thanit is in the Fourteenth Amendment context. Rather, the differ16543 V ALDIVIAv. S CHWARZENEGGERence between the right to confrontation guaranteed by the Sixth Amendment and the right to confrontation guaranteed by the Fourteenth Amendment is whether the right is absolute. The Confrontation Clause of the Sixth Amendment provides an absolute bar to the admission of testimonial out-of-courtstatements unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Crawford , 541 U.S. at 68. The due process right to confrontation under the Fourteenth Amendment, on the other hand, is not absolute. It is subject to the hearing officer’s discretionwhere there are specific good reasons for requiring confrontation. Morrissey , 408 U.S. at 489.

The purpose of the right to confrontation—whether under the Sixth or Fourteenth Amendment— “is to ensure reliability of evidence. ” Crawford , 541 U.S. at 61; see Morrissey , 408 U.S. at 484 (explaining that the goal of the due process right to confrontation is “to assure that the finding of a parole violation will be based on verified facts ”). Further, the right to confrontation—whether under the Sixth or Fourteenth Amendment— “applies to ‘witnesses’ against the accused. ” Crawford , 541 U.S. at 51; see Morrissey , 408 U.S. at 489 (explaining that the due process right to confrontation applies
to “adverse witnesses ”). Because of the these similarities,“confrontation” should be interpreted to have the same meaning under the Fourteenth Amendment as it does under the Sixth Amendment.

Now criminal defendants have an argument that Valdivia requires us to extend Comito balancing to criminal trials—not as a right of confrontation, but as a due process right. That is,if the Due Process Clause of the Fourteenth Amendment guarantees to parolees the right to have a hearing officer conduct the Comito balancing test before he admits nontestimonial evidence, surely a criminal defendant, who has an even greater liberty interest, has a due process right to have a trial judge conduct the Comito balancing test before he admits the same evidence. 16544 V ALDIVIAv. S CHWARZENEGGERCrawford ’s elucidation of the limits of the Confrontation Clause should apply with equal force to the due process right to confrontation under the Fourteenth Amendment. Where Crawford permits the admission of evidence in a criminal trial, the evidence should necessarily be admissible in a parole revocation hearing. The panel’s holding otherwise allows a hearing officer to exclude from a parole revocation hearing, based on the State’s failure to show good cause for failure to present the witness in court, the same evidence that would be admissible without a showing of good cause to prove guilt at a criminal trial. Where Crawford would bar the admission ofevidence in a criminal trial the evidence would not be admissible in a parole revocation hearing unless the governmentcould show specific good reasons for not requiring confrontation. **4**Morrissey , 408 U.S. at 484, 489. Because this interpretation of the right to confrontation provides no greater protection to parolees in parole revocation hearings than to defendants in criminal trials, it is consistent with Morrissey

.

This result is also consistent with Comito . The Comito balancing test applies only where the admission of hearsay evidence would implicate a parolee’s right to confrontation. Comito , 177 F.3d at 1170. Because not every hearsay statement is testimonial, not every such statement implicates a parolee’s right to confrontation. Thus, a hearing officer should not apply the Comito balancing test to all out-of-court statements proffered by the government to prove the matterasserted during a parole revocation hearing, as the panel opinion would require. Rather, a hearing officer should apply the Comito balancing test only when the government proffers testimonial out-of-court statements. If the government proffers nontestimonial

out-of-court statements, the right to confronta**4** Although the Comito balancing test would apply to all testimonial hearsay evidence, evidence that falls within “long-standing exceptions to the hearsay rule, ” and would be admissible in a criminal trial, “should satisfy the lesser standard of due process accorded [a parolee] in a revocation proceeding. ” Hall , 419 F.3d at 987. 16545

V ALDIVIAv. S CHWARZENEGGERtion is not implicated and the Comito balancing test is inapplicable. **5**Confrontation is required only as to testimonial evidence; it is not required as to nontestimonial evidence.

II

The panel majority opinion also creates a direct conflict with the Second Circuit. The Second Circuit has developed a two-part test to analyze the admissibility of hearsay evidence in a parole revocation hearing. United States v. Williams , 443 F.3d 35, 45 (2d Cir. 2006). Where the government proffers hearsay that would be inadmissible under an “established exception to the hearsay rule, ” the district court must “determine whether good cause exists to deny the defendant the opportunity to confront the adverse witness. ” Id. To make that determination, the court must balance “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. This balancing test is similar to the Comito balancing test. However, where the government proffers hearsay that would be admissible in a criminal proceeding under an “established exception to the hearsay rule, ” no such “good-cause analysis ” is required. Id. The Valdivia majority opinion directly conflicts with this rule.

The Second Circuit’s approach to the admission of hearsay statements in parole revocation hearings is more consistent with Morrisseythan is the panel’s majority approach, because the Second Circuit does not require hearing officers to apply

a Comito -like balancing test to all hearsay evidence the government proffers in a parole revocation hearing. Thus, in most instances, the Second Circuit does not provide parolees with greater confrontation rights to bar proffered evidence than

**5** Of course, Comito did not draw a distinction between testimonial and nontestimonial hearsay. But that is attributable to the fact Comito was decided before Crawfordredefined what confrontation means in the constitutional context. 16546 V ALDIVIAv. S CHWARZENEGGERcriminal defendants have. Criminal defendants have no right to confrontation or to bar admission of evidence when the government proffers nontestimonial hearsay, admissible under a hearsay exception, during a criminal trial. Similarly, underthe Second Circuit’s approach, parolees have no right to confrontation or to bar admission of evidence where the government proffers evidence that falls within an “established exception” or “firmly rooted ” exception to the hearsay rule. These two inquiries—whether a statement is testimonial and whether a statement falls within an established hearsay exception—often overlap, because most established hearsay exceptions cover statements that are nontestimonial in nature. See Crawford , 541 U.S. at 56.

However, in some instances, the Second Circuit’s approach may provide parolees with greater confrontation rights thancriminal defendants. For example, a statement that is nontestimonial and does not fall within a firmly rooted hearsay exception (e.g., the residual exception, Federal Rule of Evidence 807) would not raise any Confrontation Clause issues at a criminal trial, but the Second Circuit would still require thegovernment to show good cause for not allowing confrontation with respect to the same statement in a parole revocation hearing. Therefore, even though the Second Circuit’s approach is more consistent with Morrisseythan the panel’s approach, there are still situations in which the Second Circuit does create a barrier to the admission of hearsay statements ina parole revocation hearing that is higher than the constitutional barrier to the admission of the same statements in a criminal trial.

A second problem with the Second Circuit’s approach isthat it requires hearing officers to determine which state hearsay exceptions are “firmly rooted ” or “established. ” Although courts were required to make such determinations before Crawford , the only question courts are now required to answer with respect to the Confrontation Clause of the Sixth 16547 V ALDIVIAv. S CHWARZENEGGERAmendment is whether the hearsay was testimonial. See Crawford , 541 U.S. at 60, 68-69.

Rather than breathe life into the practice of determining which state hearsay exceptions are “firmly rooted ” or “established,” Crawford ’s test—whether the hearsay evidence is testimonial or not—should be used to determine whether a hearing officer in a parole revocation hearing must apply the Comito balancing test. Hearing officers can rely on postCrawford cases to determine whether hearsay evidence is testimonial.

III

The panel opinion conflicts with Morrisseyby providing parolees with greater

rights than the Constitution affords criminal defendants. Neither the Constitution nor commonsense requires this result. For these reasons, I respectfully dissent from the order denying rehearing en banc. 16548 V ALDIVIAv. S CHWARZENEGGER