FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

October 24, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-15823

Non-Argument Calendar

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D. C. Docket Nos. 00-08100-CR-KLR & 04-80010-TP-KLR

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DERRIAN ANTON GEATHERS,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(October 24, 2008)

Before TJOFLAT, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
Derrian Geathers appeals the revocation of his supervised release. Geathers

alleges the district court erred in admitting testimonial hearsay evidence at his

revocation hearing, because the admission of these statements violated his right to

cross-examine adverse witnesses. According to Geathers, the admission of an

expert’s statements at his revocation hearing violated Crawford v. Washington,

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because the statements were testimonial, there was no evidence that the expert was

unavailable, and he had no prior opportunity to cross-examine the expert.

We review a district court’s evidentiary decisions, as well as the revocation

of supervised release, for abuse of discretion. United States v. Novaton, 271 F.3d

968, 1005 (11th Cir. 2001) (evidentiary decisions); United States v. Frazier, 26

F.3d 110, 112 (11th Cir. 1994) (revocation of supervised release). We review de

novo the scope of a defendant’s constitutional rights. United States v. Cantellano,

430 F.3d 1142, 1144 (11th Cir. 2005).

Crawford defines protections guaranteed by the Confrontation Clause of the

Sixth Amendment, including the right to confront adverse witnesses. Crawford ,

124 S. Ct. at 1357. An individual’s Sixth Amendment right to confront adverse

witnesses is guaranteed only in “criminal prosecutions.” Id., U.S. Const. amend.

VI. The Supreme Court has held that a parole revocation hearing does not

Crawford v. Washington, 124 S. Ct. 1354 (2004). 1

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constitute a “criminal prosecution,” and this Court has found “no significant

conceptual difference between the revocation of probation or parole and the

revocation of supervised release.” Morrissey v. Brewer, 92 S. Ct. 2593, 2600

(1972); Frazier, 26 F.3d at 113-14.

No authority extends the Sixth Amendment right to confront adverse

witnesses to supervised release revocation proceedings, and we have held the

Federal Rules of Evidence do not apply in such proceedings. Frazier, 26 F.3d at

114. Despite this, we have recognized revocation of supervised release

proceedings are subject to certain minimal due process requirements. Id. In

Frazier, we held that “among these minimal [due process] requirements is the right

to confront and cross-examine adverse witnesses.” Id. (citing Morrissey, 92 S. Ct.

at 2604); see also Fed. R. Crim. P. 32.1(b)(2)(C) (stating before supervised release

is revoked, “[t]he person is entitled to . . . an opportunity to . . . question any

adverse witness unless the court determines that the interest of justice does not

require the witness to appear”). The right to cross examine adverse witnesses at a

revocation of supervised release hearing is not absolute; rather, “in deciding

whether or not to admit hearsay testimony, the court must balance the defendant’s

right to confront adverse witnesses against the grounds asserted by the government

for denying confrontation.” Id. Additionally, the hearsay statement must be

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reliable. Id. However, where the properly considered evidence is sufficient to

support the district court’s conclusion, any error is harmless. Id.

Geathers’s reliance on Crawford is misplaced, because that holding

interprets rights guaranteed by the Sixth Amendment, which has not been

interpreted to apply to supervised release revocation proceedings. However, the

district court erred by not applying the balancing test required by Frazier and

Federal Rule of Criminal Procedure 32.1(b)(2)(C) to ensure the admission of the

hearsay testimony would not violate Geathers’ due process rights. Although the

district court erred, the error was harmless, because the properly considered

evidence overwhelmingly demonstrated Geathers possessed counterfeit payment

instruments. The district court specifically relied on circumstantial evidence in

addition to the hearsay testimony to determine Geathers violated the terms of his

supervised release. Additionally, the district court stressed the significance of the

circumstantial evidence, namely, the possession of “phony identifications,” in

establishing the checks were counterfeit. Thus, in the absence of the hearsay

testimony, there was still sufficient evidence to find by a preponderance of the

evidence Geathers possessed counterfeit payment instruments.

AFFIRMED.

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