IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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m 99-30522

Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MARIO CAWTHORNE,

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 appealsthe revocation of

his supervised release pursuant to 18 U.S.C.

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

I.

Cawthorne pleaded guilty to unlawful

possession of a machine gun in violation of

18 U.S.C. § 922(o)(1), and was sentenced to

imprisonment followed by supervised release.

The supervised release included the condition

that he not possess a firearm. A few months

into the period of release, the district court, at

the request of the probation office, 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 officer, by being unemployed, and

by failing to report a change in his residence.

Following a preliminary probable cause

hearing, the probation office filed a

supplemental-violation report alleging that

Cawthorne had violated the conditions of his

supervised release by possessing a firearm.

 

* Pursuant to 5TH CIR. R. 47.5, the court has

determined that this opinion should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. 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 Steven Cox

testified regarding the firearm allegation.

When Cox reviewed Cawthorne’s file in

preparation for the preliminary hearing, he

noticed a “partial offense report” from the

police department (“the Report”). 

According to Cox, the Report indicates1

that when Cawthorne was arrested at his

mother’s home on a state warrant for

attempted homicide, the officers found a

semiautomatic handgun in plain view on a bed.

According to Cox’s testimony, the Report

states that (1) Cawthorne’s mother both

consented to the search and told police that

the roomin which the gun wasfound belonged

to Cawthorne; (2) the bedroomcontained mail

addressed to Cawthorne and numerous

photographs of himand other familymembers;

and (3) Cawthorne’s mother stated that the

gun belonged to Cawthorne. 

Cawthorne did not object to Cox’s

testimony regarding the contents of the

Report. When the government attempted to

introduce the Report into evidence,2however,

Cawthorne objected on the ground that it was

not a self-authenticating document, that the

persons who had prepared it were not present,

and that 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 the government replied

“Very well, Your Honor.”

On cross-examination, Cox testified that

Cawthorne’s mother, Lola Cawthorne, had

informed Cox that she believed the police

officers planted the gun, because she had never

seen 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 given police

permission to search and that the gun was

found in a “junk room,” not in Cawthorne’s

bedroom. She admitted that some of

Cawthorne’s belongings and family

photographs were stored in the “junk room”

but testified that there was another bedroomin

which Cawthorne lived. She testified that

neither she nor her mother had told the police

that the “junk room” was Cawthorne’s

bedroom, and she denied telling the police that

the gun belonged to Cawthorne.

At the close of the evidence, the

governmentsuggested 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 failing to tell the probation office

where he was, where he could be

reached, all class C. And more probably

than not possession of a MAC 11

handgun. Therefore, your client has

committed both grade A and grade C

violations, violations establishing an

imprisonment range of 12 to 18 months,

so I’m going to order the three-year

termofsupervised 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 evidence, 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 Cox 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 ofthe evidence, that

the releasee violated a condition of that

release. See 18 U.S.C. § 3583(e)(3); United

States v. Alaniz-Alaniz, 38 F.3d 788, 792 (5th

Cir. 1994). We review factual findings for

clear error, and in a challenge to the

sufficiency of the evidence we view the

evidence and all reasonable inferences

therefrom in a light most favorable to the

government. See id., at 790, 792. The

evidence is sufficient if a reasonable trier of

fact could reach the conclusion being

challenged. See id. at 792.

The only evidence of the Grade A firearm

violation, or lack thereof, consists of the

testimony of Cox and Ms. Cawthorne. We

first note that Cox’s testimony of what the

“partial police report” contained is hearsay,

but because revocation proceedings are not

criminal prosecutions and are not formal trials,

the rules of evidence are not applied. See

United States v. Grandlund, 71 F.3d 507, 509

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

Cir. 1996); FED. R. EVID. 1101(d)(3); FED. R.

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

notes).5 We also recognize that the district

court necessarily made a credibility

determination regarding 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 resulting 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 reasonsthat we place restrictions on the

use of hearsay in criminal trials. Without some

corroboration, it is not reasonable to find a

third person’stestimony regarding the content

of a portion of a police report that never led to

any trial or convictionmore believable than the

testimony of an in-court witness, where that

witness’stestimonyisinternallyconsistent and

conceivably correct (e.g., does not violate any

laws of nature).

We do not hold that a third party’s

recollection of the contents of a police report

alone may never satisfy a preponderance

burdenSSthat case is not before us. Rather, we

conclude that where a live witness, based on

personal knowledge, consistently and directly

contradicted Cox’s testimony; Cox’s testimony

was based solely on his reading a portion of a

police report; all charges based on that report

were dismissed; and neither Cox’srecollection

of, 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 the 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 possessed 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. See 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 district 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 less than

that of one who does not even appear before the

court.

 

7 Neither of the two cases cited by the

government for the proposition that police reports

can be sufficiently reliable for sentencing purposes

involved similar circumstances. See United States

v. Tucker, 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, but the requisite elements of

(continued...)
4

VACATED and REMANDED.

(...continued)

constructivepossession are contained only in Cox’s

double hearsay testimony. See United States v.

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