United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 18, 2005 Decided December 16, 2005

No. 05-5092

WILBUR ASH,

APPELLEE

v.

EDWARD F. REILLY, JR., IN HIS OFFICIAL CAPACITY AS

COMMISSIONER,

UNITED STATES PAROLE COMMISSION, ET AL.,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 03cv02007)

Mary B. McCord, Assistant U.S. Attorney, argued the cause

for appellants. With her on the briefs were Kenneth L.

Wainstein, U.S. Attorney, and John R. Fisher, Assistant U.S.

Attorney at the time the briefs were filed.

Catharine F. Easterly argued the cause for appellee. With

her on the brief was Timothy P. O’Toole. Olinda Moyd entered

an appearance.
2

*

 Senior Circuit Judge Edwards was in regular active service

at the time of oral argument.

Before: HENDERSON and RANDOLPH, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

*

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge: On a petition for a writ of

habeas corpus, a magistrate judge determined that the United

States Parole Commission improperly revoked Wilbur Ash’s

parole. The principal question in this appeal, brought by

Members of the Parole Commission, is whether the introduction

of hearsay evidence at the parole revocation hearing deprived

Ash of his right to confront adverse witnesses. 

Ash pled guilty in the D.C. Superior Court to possessing

cocaine with the intention of selling it. After he served part of

his four-to-twelve year sentence, the Commission released him

on parole. One of his parole conditions was that he not violate

any law. In April 2002, about a year after his release, police in

Baltimore, Maryland, arrested Ash for attacking Jerome Simms

and Anthony Gardner with a dangerous weapon – a box cutter.

At his trial on charges stemming from the attacks, a Baltimore

judge entered a judgment of acquittal at the close of the

prosecution’s case. (Our record does not disclose the reasons

for the judgment of acquittal.) The Parole Commission then had

Ash arrested on a parole violator warrant and held pending a

parole revocation hearing. The Commission determined it had

probable cause to charge Ash with assault, aggravated assault,

and assault with a deadly weapon. After conducting a parole

revocation hearing, the Commission found by a preponderance

of the evidence that Ash violated the conditions of his release.

The Commission therefore revoked his parole.
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Ash petitioned the district court for a writ of habeas corpus,

claiming that the Commission’s action violated the Constitution

because the evidence against him consisted entirely of unreliable

hearsay and because the Commission violated his right to

confront adverse witnesses. The parties consented to having a

magistrate judge decide the matter. The magistrate judge agreed

with Ash’s arguments, granted the writ, and ordered a new

parole revocation hearing. Ash v. Reilly, 354 F. Supp. 2d 1, 9-10

(D.D.C. 2004) (Ash I), recons. denied, 354 F. Supp. 2d 11, 12

(D.D.C. 2005) (Ash II).

Before his parole revocation hearing, Ash received a form

notifying him that the Commission intended to hear from two

witnesses: a police officer who arrested Ash and the Court

Supervision Officer assigned to Ash while he was on parole.

Under the heading “Adverse Witnesses Requested by Subject,”

Ash’s counsel filled in “Jerome Simms” and gave Simms’s

address in Baltimore. The Commission subpoenaed Simms, but

he did not appear.

At the hearing, Ash’s Court Supervision Officer testified

but gave no evidence relating to the attacks. The other witness,

police officer Ronald Shepke, testified as follows. While on

patrol in a squad car, he received a call about a “cutting” nearby.

He and the officer with him quickly arrived at the scene. They

saw people “pointing” at an individual who was running down

a dead-end street; the people were “screaming that . . . was

him.” Shepke and his colleague gave chase and cornered the

suspect, who turned out to be Ash. Shepke then saw Ash throw

an object over a fence. After arresting Ash, the officers

recovered the object – a razor box cutter with a white handle.

The officers took Ash back to the crime scene. Four or five

people there identified him as the assailant and identified the

box cutter as the weapon. Ash’s attorney admitted that Ash

carried a box cutter in connection with his job at a food store.
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1

 The Commission’s regulations define “adverse witnesses” as

“witnesses who have given information upon which revocation may

be based.” 28 C.F.R. § 2.101(b).

Simms sustained severe slash wounds to his face, neck, and

back. He was taken to the hospital immediately after the attack.

Shepke never interviewed Simms. Ash’s counsel made much of

the fact that the hospital report described Simms’s injuries as

“slash wounds with a machete . . ..” The other victim, Anthony

Gardner, had a single cut across his hand. Gardner gave Shepke

a statement at the hospital identifying Ash as the attacker.

Shepke’s testimony was consistent with his written report,

on which the Commission also relied. The report stated that

Simms and Ash were visiting Earline Gardner, along with other

family members. Simms had children with Ms. Gardner, but

Ash was her current love interest. The report stated further that

Ash and Simms “had a disagreement which turned into a

physical altercation,” that the attack occurred during this

altercation, and that Anthony Gardner incurred his injury when

he tried to intervene.

Ash did not testify at the hearing, though he denied the

Commission’s charges. No other witnesses appeared. In light

of his request and the Commission’s subpoena, Ash’s counsel

insisted that Simms should appear before the Commission

decided whether to revoke Ash’s parole. Ash’s counsel also

argued that other adverse witnesses should be called. The

hearing officer believed that because Simms did not testify and

because the Commission did not rely on any information from

him, Simms was not truly “adverse” to Ash.1

In reviewing Ash’s petition for a writ of habeas corpus, the

magistrate judge thought the Commission had revoked Ash’s

parole “based solely on hearsay testimony contained in a police
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report.” Ash I, 354 F. Supp. 2d at 5. This is not correct. Some

of the evidence – the police report and the hospital report, for

instance – was hearsay, but not all the evidence was. Officer

Shepke’s testimony that he saw Ash running from the scene of

the crime and saw him throw an object over the fence rested on

Shepke’s direct observations. Also, Shepke’s testimony

describing the box cutter – a white handle, four to five inches

long, holding a standard razor blade – rested on personal

knowledge; Shepke and his fellow officer recovered the box

cutter after seeing Ash throw something over the fence. And

Shepke’s testimony that “there were several people out in front

of the address we were responding to, pointing [at Ash] . . . and

screaming that that was him,” might have come within the

“excited utterance” exception to the hearsay rule. See FED. R.

EVID. 803(2); see also United States v. Alexander, 331 F.3d 116,

121-24 (D.C. Cir. 2003).

Having misapprehended the nature of the evidence against

Ash, the magistrate judge answered a question the case did not

present – namely, whether a parolee’s rights under the Due

Process Clause are violated when the decision to revoke parole

rests entirely on hearsay. Ash I, 354 F. Supp. 2d at 10. It is not

clear whether that was the issue in Crawford v. Jackson, 323

F.3d 123 (D.C. Cir. 2003), a decision the magistrate judge

declined to follow in light of Crawford v. Washington, 541 U.S.

36 (2004). While several statements in Jackson indicated that

the parole board relied only on a police report containing

hearsay, 323 F.3d at 127-28, the court pointed to other nonhearsay evidence – admissions of the parolee at the revocation

hearing – that corroborated portions of the police report, id. at

130. The court recognized, as have other circuits, that parole

revocation decisions may rely on hearsay. See id. at 128-29

(citing cases).
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Parole revocation proceedings are not criminal trials.

Morrissey v. Brewer, 408 U.S. 471, 480 (1972). “[F]ormal

procedures and rules of evidence are not employed.” Gagnon v.

Scarpelli, 411 U.S. 778, 789 (1973); id. at 782. While the Due

Process Clause imposes limits on the procedures used to revoke

parole and entitles parolees to certain rights, see, e.g., Black v.

Romano, 471 U.S. 606, 610 (1985); Moody v. Daggett, 429 U.S.

78, 85-86 (1976), the limitations and the rights are not

coextensive with those applicable in criminal trials, see, e.g.,

Scarpelli, 411 U.S. at 787-90; Maddox v. Elzie, 238 F.3d 437,

445 (D.C. Cir. 2001).

For these reasons, the Supreme Court’s decision in

Crawford v. Washington, handed down after Jackson, did not

deprive Jackson of its precedential effect, as the magistrate

judge supposed. Crawford v. Washington was a criminal case

decided under the Sixth Amendment. The Court held that

admission of a testimonial statement made by a witness absent

from trial violated the defendant’s Sixth Amendment right to

confront the witnesses against him, unless the witness is

unavailable and “the defendant . . . had a prior opportunity to

cross-examine [the witness].” 541 U.S. at 59. The other circuits

that have considered whether Crawford v. Washington applies

to parole revocation proceedings have concluded that it does not.

E.g., United States v. Hall, 419 F.3d 980, 985-86 (9th Cir.

2005); United States v. Kirby, 418 F.3d 621, 627-28 (6th Cir.

2005); United States v. Martin, 382 F.3d 840, 844 n.4 (8th Cir.

2004).

Even in criminal trials, Crawford v. Washington requires

the exclusion only of “testimonial” hearsay, 541 U.S. at 68, not,

as the magistrate judge seemed to think, the exclusion of all

hearsay, see Ash I, 354 F. Supp. 2d at 7. By “testimonial” the

Court apparently meant “ex parte in-court testimony or its

functional equivalent . . . such as affidavits, custodial
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2

 The Court has granted certiorari in two cases to determine

the meaning of “testimonial.” See Hammon v. State, 829 N.E.2d 444

(Ind. 2005) (considering application of the Confrontation Clause to

statements made to officers responding to a crime scene), cert.

granted, 126 S. Ct. 552 (2005); State v. Davis, 111 P.3d 844 (Wash.

2005) (considering application of the Confrontation Clause to excited

utterances made in 911 calls), cert. granted, 126 S. Ct. 547 (2005).

examinations, prior testimony that the defendant was unable to

cross-examine, or similar pretrial statements that declarants

would reasonably expect to be used prosecutorially,” 541 U.S.

at 51 (internal quotation marks omitted), and “police

interrogations,” id. at 68.2

We therefore believe the magistrate judge should have

followed Crawford v. Jackson, as must we. See LaShawn A. v.

Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc). In

Jackson, the parolee claimed, among other things, that the parole

board violated his due process rights by revoking his parole on

the basis of a “police investigative report containing hearsay”

without “allow[ing] him to cross-examine the author of the

police investigative report.” 323 F.3d at 125. The Jackson court

concluded that “given the indicia of reliability of the police

investigative report, the Board’s reliance on the hearsay

evidence did not render its revocation decision so lacking in

support that it was fundamentally unfair.” Id. at 131. The court

added that the parolee “failed to show any prejudice from his

inability to cross-examine the police officer who wrote the

report.” Id.

Under Jackson, the question is whether the decision to

revoke parole is “either totally lacking in evidentiary support or

. . . so irrational as to be fundamentally unfair.” Jackson, 323

F.3d at 129 (quoting Duckett v. Quick, 282 F.3d 844, 847 (D.C.

Cir. 2002)) (internal quotation marks omitted). The court must
8

gauge for itself the “reliability of the particular hearsay

evidence” on which the Commission based its decision. Id.

With regard to adverse witnesses, the absence of an adverse

witness does not violate a parolee’s due process rights if “the

hearing officer specifically finds good cause for not allowing

confrontation.” Morrissey, 408 U.S. at 489. Even if there is no

good cause, a parolee is not entitled to a new parole hearing

unless he shows “prejudice from his inability to cross-examine”

the missing witness. See Jackson, 323 F.3d at 131; see also

Maddox, 238 F.3d at 444. Whether a witness’s absence is

prejudicial depends on the quality and quantity of nonhearsay

and reliable hearsay evidence supporting the decision to revoke

parole. See Maddox, 238 F.3d at 244-45.

The magistrate judge thought the Supreme Court’s opinion

in Crawford v. Washington undermined Jackson because the

Court wrote that judicial determinations of the reliability of

hearsay evidence are “‘unpredictable’” and because the concept

of reliability is “‘amorphous.’” Ash I, 354 F. Supp. at 9 (quoting

Crawford v. Washington, 541 U.S. at 63). This overstates the

reach of the Court’s opinion. Whatever may be the case when

“testimonial” hearsay is introduced in a criminal trial, the

concept of reliability cannot be so readily dismissed when

nontestimonial hearsay is offered, especially in noncriminal

proceedings. Time-honored exceptions to the hearsay rule, such

as those found in FED.R. EVID. 803, rest on the idea that “under

appropriate circumstances, a hearsay statement may possess

circumstantial guarantees of trustworthiness sufficient to justify

nonproduction of the declarant in person at the trial even though

he may be available.” FED. R. EVID. 803 advisory committee’s

note; see also 5 JOHN HENRY WIGMORE, EVIDENCE § 1422, at

253 (Chadbourn rev. 1974) (“[C]ircumstantial probability of

trustworthiness is found in a variety of circumstances sanctioned

by judicial practice; and it is usually from one of these salient

circumstances that the [hearsay] exception takes its name.”).
9

Ash’s habeas petition claimed not only that he was entitled

to confront Simms and other adverse witnesses, but also that the

evidence adduced at the hearing was insufficient to support the

Commission’s action. Because the magistrate judge should

have, but did not, follow Jackson in evaluating these claims, we

will remand for further proceedings consistent with this opinion.

Vacated and remanded.