## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 99-30522

Summary Calendar

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### M ARIO 

### C AWTHORNE



### ,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Louisiana

(95-CR-50046-ALL)

_________________________ July 5, 2000

Before SMITH, BARKSDALE, and

PARKER, Circuit Judges.

JERRY E. SMITH, Circuit Judge: *

Mario Cawthorne appeals the revocation of

his supervised releas e pursuant to 18 U.S.C.

§ 3583(e). We vacate the sentence and remand.

I.

Cawthorne pleaded guilty to unlawful

p ossession of a machine gun in violat ion of 18 U.S.C. § 922(o)(1), and was sentenced to imprisonment followed by supervised release.

The supervised release included the condition

t hat he not possess a firearm. A few mont hs

into the period of release, the district court, at

the request of the probatio n o ffice, issued an

order to show cause why Cawthorne’s supervised release should not be revoked.

The probation office alleged that

Cawthorne had violated several conditions of

his supervised release by failing to report to a

probation of

ficer, by being unemployed, and

by failing to repor t a change in his residence.

Followi n g a preliminary probable cause hearing, the prob at io n o ffice filed a

supplemental-violation report alleging t hat

Cawthorne had violated the conditions of his

supervised release by possessing a firearm. * Pursuant to 5 TH C IR

. R. 47.5, the court ha sdetermined that this opinion should not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR

. R. 47.5.4.2

At that hearing, Cawthorne admitted failure

to report and unemployment but denied the

change of residence and possession of a

firearm. Probation Officer St even Cox

testified regarding t he firearm allegation.

When Cox reviewed Cawthorne’s file in

preparation for the preliminary h e aring, he

no t iced a “partial offense report” from t he

police department (“the Report”).

Accor ding to Cox, the Report indicates 1

that when Cawtho rne was arrested at his

mother’s hom

e on a state warrant for

attemp t ed homicide, the officers found a

semiautomatic handgun in plain view on a bed.

According to Cox’s testimo ny, the Report

states that (1) Cawthorne’s moth er both

consented to the search and told p o lice that

the room in which the gun was found belonged

to Cawthorne; (2) the bedroom contained mail

addressed to Cawthorne and numerous photographs of him and other family members;

and (3) Cawthorne’s mother stated that the

gun belonged to Cawthorne.

Cawth orne di d not obj ect to Cox’s

testimony regarding the c ontents of the

Report. When the government attempted to

introduce the Report into evidence, 2 however,

Cawthorne objected on the ground that it was

not a self-authenticatin g docum ent, that the

persons who had prepared it were not present,

and t hat the state charges it concerned had

been dismissed. 3 The court did not rule on the

objection but instead stated, “Well, I don’t feel

I need it,” to which

t he government replied

“Very well, Your Honor.” On cro ss-examination, Cox testified that

Cawthorne’s mother, Lola Cawthorne, had

informed Cox that she b elieved the police

officers planted the gun, because she had never

s een it before they “found” it. She also

informed Cox that the room in which the gun

was found was a “junk room.”

Ms. Cawthorne also testified at the hearing,

stating that she had not gi v en police

permission to search and that the gun was

found in a

“junk room,” not in Cawthorne’s

bedroom. She admitted that some of

Cawt horne’s belongings and family

photographs were stored in the “ju nk room ”

but testified that there was another bedroom in

which Ca wt ho rne lived. She testified that

neither she nor her mother had told the police

that the “junk room ” was Cawth orne’s

bedroom, and she denied t elling the police that

the gun belonged to Cawthorne.

At the close o f t he evidence, the

government suggested a continuance to enable

the court to hear the testimony of the officers

who made the Report:

Government: If Your Honor wishes I’d

ask for a continuance to bring the police

officers who made the 

### SS

The Court: No.

Government: If required, if needed.

The Court: No, I find that the

defendant, Mr. Cawthorne, violated the

terms of his probation by not reporting

and fa i ling to tell the probation office

where h e was, where he could be

reached, all class C. And more probably

than not posse ssion of a MAC 11

handgun. Therefore, your client has

committed both grade A and grade C

violations, violations establish ing an

imprisonment range of 12 to 18 months,

so I’m going t o order the three-y ear

term of supervised release imposed back

in ‘95 set aside and order Mr.

Cawthorne committed to the custody of

the Bureau of Prisons for a term of 18

months. 1 Because, as noted below, the Report was not

admitted into ev idence, all information regarding its

content comes from Cox’s testimony.

2 It is not evident whether the government had

obtained a complete copy of the Report or was trying to introduce only the portion relied upon by

Cox.

3 C ox testified that the underlying homicide

charge and a charge of being a felon in possession

were dismissed.3

Cawthorne objected to the finding of a Grade

A violation. 4

II.

A court may revoke supervised release if it

finds, by a preponderance of the evidence, that

the releasee violated a condition of that

release. S ee 18 U .S.C. § 3583(e)(3); U nited

States v. Alaniz-Alaniz

, 38 F.3d 788, 792 (5th

Cir. 1994). We review factual findings for

c lear error, and in a challenge to the

sufficiency of t he evidence we view the

evidence and all rea s onable inferences

therefrom in a light most favorable to the

government

. S ee id.

, at 790, 792. The

evidence is sufficient if a reasonable trier of

fact could reach the conclusio n being

challenged. See id . at 792.

The only evidence of the G rade A firearm

vi o lat ion, or lack thereof, consists of the

testimony o f Cox and Ms. Cawthorne. We

first note that Co x’s testimony of what the

“partial police report” contain e d is hearsay,

but because revocation proceedings are not

criminal prosecutions and are not formal trials,

t he rules of evidence are not applied. S ee

United States v. Grandlund

, 71 F.3d 507, 509

(5th Cir. 1995), clarified by 77 F.3d 811 (5th

Cir. 1996); F ED

. R. E VID

. 1101(d)(3); F ED

. R.

C RIM

. P. 32.1(a)(2) (advisory committee

notes). 5 We also recognize t hat the district

court necessarily made a credibility

determination rega rding Ms. Cawthorne, and

“[i]t is not this [c]ourt’s function to pass on a

district court’s determination regarding the

credibility of the witness.” Alaniz

, 38 F.3d at 791. 6

All state charges resul

t ing from the police

report were dismissed, for reasons we do not know. While hearsay is not prohibited in

revocation proceedings, we are not unmindful

of the reasons that we place restrictions on the

use of hearsay in criminal trials. Without some

corroborati on, it is not reasonable to find a

third person’s testimony regarding the content

of a porti on of a police report that never led to

any trial or conviction more believable than the

t estimony of an in-court witness, where that

witness’s testimony is internally consistent and

conceivably correct (e.g., does not violate any laws of nature).

We do not hold t hat a third party’s

recollection of the contents of a police report

alone may never satisfy a preponderance

burden 

### SS that case is not before us. Rather, we

conclude t hat where a live witness, based on

personal knowledge, consistently and directly

c ontradi cted Cox’s testimony; Cox’s testimony

was based solely on his reading a porti on of a

police report; all charges based on that report

were dismissed; and neither Cox’s recollection

o f, nor the content of, the report was corroborated in any manner or to any degree,

no trier of fact reasonably could reach the

conclusion that th e government had satisfied

its burden of proof by a preponderance of the

evidence. 7 Thus, the evidence is insufficient to

establish that Cawthorne more likely than not

possessed a firearm. 8

4 Upon a finding that Cawthorne poss essed a

firearm, revocation of his supervised release was mandatory under 18 U.S.C. § 3583(g) and

U.S.S.G. § 7B1.3(a)(1), p.s. If the court had found

only Grade C violations, it would have had

discretion to revoke , extend, or modify the

conditions of the supervised release. S ee 18 U.S.C.

§ 3583(e); U.S.S.G. § 7B1.3(a)(2), p.s.

5 The releasee’s due process rights can render

some hearsay inadmissible, but Cawthorne did not

raise that issue in the dis trict court or on appeal.

See Grandlund

, 71 F.3d at 509-10; Alaniz

, 38 F.3d at 791-92. 6 It would be illogical, however, to presume that

the credibility of one who does testify is le ss than

that of one who does not even appear before the

court.

7 Neither of the two cas e s cited by the

government for the proposition that police reports

can be sufficiently reliable for sentencing purposes

involved similar circumstances. S ee United States

v. Tu cker , 20 F.3d 242, 244-45 (7th Cir. 1994);

United States v. Silverman

, 976 F.2d 1502, 1514

(6th Cir. 1992) (en banc).

8 We recognize that possession may be

constructive, bu t the requisite elements of

(continued...)4

VACATED and REMANDED.

(...continued)

constructive possession are contain ed only in Cox’s

double hearsay testimony. S ee United S tates v.

Mergerson , 4 F.3d 337, 348-49 (5th Cir. 1993).