1 Grade A violations of conditions of supervised release are the

most serious kind and produce the longest advisory sentencing ranges. U.S.S.G. § 7B1.4(a).

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-1884

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LAMOND D. KELLEY,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 01 CR 37—James T. Moody, Judge.

____________

ARGUED SEPTEMBER 22, 2005—DECIDED MAY 2, 2006

____________

Before EASTERBROOK, EVANS, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Following a final revocation

hearing, the district court found Lamond Kelley guilty

of battery, aggravated assault, and unlawful use of a

weapon—all Grade A violations1

 of the conditions of his

supervised release. These Grade A violations combined with

Kelley’s criminal history category of IV to produce

an advisory guidelines sentencing range of 24-30 months’

incarceration, U.S.S.G. § 7B1.4(a), which was limited to
2 No. 05-1884

24 months by operation of 18 U.S.C. § 3583(e)(3). The

district court revoked Kelley’s supervised release and

sentenced him to 24 months’ imprisonment. Had the

court held Kelley responsible only for the lesser Grade B

and C violations that he admitted, his advisory sentencing range would have been 12-18 months.

On appeal, Kelley argues the district court could not have

found him guilty of the Grade A violations without the

hearsay-laden testimony and police report of the investigating officer. He argues that the court’s consideration of that

hearsay—over his timely objection—violated his Sixth

Amendment right of confrontation as recently construed in

Crawford v. Washington, 541 U.S. 36 (2004), and his more

limited due process right of confrontation as applicable to

revocation proceedings under Morrissey v. Brewer, 408 U.S.

471 (1972).

We affirm. Supervised release revocation hearings are not

criminal prosecutions, so the Sixth Amendment right of

confrontation and Crawford do not apply. Kelley’s due

process rights were not violated because the hearsay

evidence at issue was substantially reliable and its admission did not undermine the fundamental fairness of the

revocation hearing.

I. Background

Lamond Kelley pleaded guilty to felony escape and was

sentenced to four months’ imprisonment and four months

of home detention, followed by three years of supervised

release. On August 25, 2003—during Kelley’s term of

supervised release—Officer Joseph Morency of the

Burnham, Illinois police department responded to a dispatch about “a man with a gun.” Officer Morency was the

government’s only witness at Kelley’s supervised release

revocation hearing and testified to what occurred when he

responded to the dispatch. The district court permitted
No. 05-1884 3

Officer Morency’s testimony and also admitted his initial

police report, over Kelley’s hearsay, Fifth Amendment, and

Sixth Amendment objections.

Officer Morency’s testimony and police report established

the following: When the officer arrived at the scene, he saw

Kelley and Kelley’s brother Ronald, and arrested both of

them. Officer Morency then spoke with Daniel and Terra

Patterson, brother and sister, who were also at the scene;

the Pattersons said they had been in an altercation with

Kelley and his brother, and that Kelley had punched them

both in the face with closed fists. The Pattersons said

Kelley’s brother then started punching them, and Kelley

produced a black, .22-caliber rifle from the trunk of his car,

which was parked nearby. Officer Morency noted that

Daniel Patterson had suffered a broken tooth.

Officer Morency asked Kelley if he could look inside the

trunk of his car, and Kelley responded, “I don’t care[,]

I don’t have the keys.” The trunk lock was punched out, so

Officer Morency opened the trunk with a screwdriver

later at the police station. Inside the trunk he found a

black, .22-caliber, Marlin semiautomatic rifle loaded with

eight .22-caliber rounds; he also found a black rifle case

containing numerous .22-caliber rounds. The vehicle was

registered to Kelley.

Officer Morency had no personal knowledge regarding

Kelley’s alleged assault, battery, or display of the rifle. He

testified to the Pattersons’ statements, his personal observation that Daniel Patterson had suffered a broken tooth,

and his discovery of the rifle and ammunition in the trunk

of Kelley’s car.

The district judge found Kelley had committed the

Grade A violations of battery, aggravated assault, and

unlawful use of a weapon as alleged in the Summary Report

of Supervised Release Violations. The judge did not make

explicit findings as to the reliability of the hearsay evidence
4 No. 05-1884

or whether the government had shown good cause for not

producing hearsay declarants Daniel and Terra Patterson

as live witnesses. Kelley admitted to several Grade B and

C violations that would have supported revocation and an

advisory sentencing range of 12-18 months; with the Grade

A violations, however, the range was 24-30 months. The

district court revoked Kelley’s supervised release and

sentenced him to 24 months’ imprisonment. See 18 U.S.C.

§ 3583(e)(3) (limiting imprisonment after revocation of

supervised release to two years where the underlying crime

is a Class C or D felony; Kelley’s underlying crime of escape

is a Class D felony).

II. Discussion

A. Sixth Amendment—Crawford v. Washington

Kelley asks us to hold that the admission of Daniel and

Terra Patterson’s hearsay statements at his revocation

hearing violated his Sixth Amendment right to be confronted with the witnesses against him. But by its own

terms, the Sixth Amendment applies only in “criminal

prosecutions,” U.S. CONST. amend. VI, and the Supreme

Court long ago held that revocation hearings are not

criminal prosecutions for purposes of the Sixth Amendment.

Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (“Probation

revocation, like parole revocation, is not a stage of a

criminal prosecution.”); Morrissey, 408 U.S. at 480 (“revocation of parole is not part of a criminal prosecution and thus

the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations”). Morrissey held

that due process requires a flexible notice-and-hearing

procedure—including a limited right of confrontation—in

the revocation context. Morrissey, 408 U.S. at 488-90.

Morrissey and Gagnon involved parole and probation

revocations, respectively, but their holdings apply to

supervised release revocations as well. See, e.g., United
No. 05-1884 5

2 Crawford held that the Sixth Amendment generally prohibits

the admission of testimonial hearsay at criminal trials unless

the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541

U.S. 36, 68 (2004).

States v. Colt, 126 F.3d 981, 986 (7th Cir. 1996) (revocation

of supervised release was merely a modification of defendant’s original sentence); United States v. Pratt, 52 F.3d

671, 675 (7th Cir. 1995) (“a revocation hearing is not part of

a criminal prosecution”) (citing Morrissey, 408 U.S. at 480).

Kelley argues that the Supreme Court’s decision in

Crawford v. Washington, 541 U.S. 36 (2004), undermines

Morrissey and Gagnon and makes the Sixth Amendment’s

Confrontation Clause applicable at revocation hearings.

He suggests that when the Morrissey Court identified a

“right to confront and cross-examine adverse witnesses” as

one of the “minimum requirements of due process” at

state parole revocation hearings, Morrissey, 408 U.S. at 489,

it had in mind a confrontation right rooted in the Sixth

Amendment and applied to the states by the Fourteenth

Amendment’s Due Process Clause. Kelley thus invites us

now to apply the Sixth Amendment to revocation hearings

and conclude that Crawford2

 prohibits admission of testimonial hearsay of the sort on which the district court relied to

find him guilty of Grade A supervised release violations.

We decline this invitation. Crawford changed nothing

with respect to revocation hearings. Morrissey held unequivocally that revocation hearings are not “criminal

prosecutions” for purposes of the Sixth Amendment, so

the “full panoply of rights due a defendant in such a proceeding” does not apply. Morrissey, 408 U.S. at 480. This “full

panoply of rights” is precisely the list of protections found

in the Sixth Amendment, which by its terms applies only to

criminal prosecutions. U.S. CONST. amend. VI. Because
6 No. 05-1884

3 The only contrary authority cited by Kelley was a district

court opinion that has since been reversed by the D.C. Circuit

in Ash v. Reilly, 431 F.3d 826, 829-30 (D.C. Cir. 2005).

revocation proceedings are not criminal prosecutions, Sixth

Amendment rights are not implicated. Morrissey, 408 U.S.

at 480. Morrissey’s articulation of a limited confrontation

right in revocation proceedings was explicitly grounded in

considerations of due process, not the Sixth Amendment. Id.

at 485-90.

Crawford dealt with the introduction of testimonial

hearsay at a criminal trial—a “criminal prosecution[ ],” as

that term is used in the Sixth Amendment. The Supreme

Court did not mention revocation hearings or Morrissey

in Crawford; nothing in the case can be read to suggest that

Morrissey and Gagnon have been implicitly altered or that

revocation proceedings should now be characterized as

“criminal prosecutions” within the meaning of the Sixth

Amendment. Several other circuits have declined to extend

Crawford to revocation proceedings. See, e.g., United States

v. Rondeau, 430 F.3d 44, 47-48 (1st Cir. 2005); United

States v. Aspinall, 389 F.3d 332, 342-43 (2d Cir. 2004);

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

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

2004); United States v. Hall, 419 F.3d 980, 985-86 (9th Cir.

2005); Ash v. Reilly, 431 F.3d 826, 829-30 (D.C. Cir. 2005).3

We now join them. Because supervised release revocation

hearings are not criminal prosecutions for purposes of the

Sixth Amendment, Crawford does not apply.

B. Fifth Amendment—Due Process

Kelley also argues that the admission of the Pattersons’

hearsay statements at his revocation hearing violated his

more limited due process right of confrontation. Morrissey
No. 05-1884 7

held that due process requires an informal notice-andhearing procedure prior to parole revocation, and that

this includes (among other things) the “right to confront

and cross-examine witnesses (unless the hearing officer

specifically finds good cause for not allowing confrontation)[.]” Morrissey, 408 U.S. at 489. Kelley argues that the

district court violated his due process rights under

Morrissey by failing to find good cause to deny confrontation

of Daniel and Terra Patterson.

The government responded to Kelley’s objection below

by simply asserting that all hearsay is admissible at

revocation hearings and the court could give the Pattersons’

hearsay statements whatever weight it wanted. The district

court apparently agreed and did not make an explicit

finding of good cause. This was an incorrect view of the law

in this circuit; we have interpreted Morrissey and Gagnon

to permit the admission of reliable hearsay at revocation

hearings without a specific showing of good cause, Pratt, 52

F.3d at 675; Egerstaffer v. Israel, 726 F.2d 1231, 1234 (7th

Cir. 1984); Prellwitz v. Berg, 578 F.2d 190, 192 (7th Cir.

1978), and the district court did not evaluate the reliability

of the Pattersons’ hearsay statements. Any error in this

regard was harmless, however, because the hearsay in

Officer Morency’s testimony and police report bore substantial indicia of reliability so that its admission was not

fundamentally unfair.

Officer Morency was dispatched to the scene on a report

of a “man with a gun,” and his personal observations and

investigation corroborated the Pattersons’ version of events.

The parties to the altercation were still at the scene, and

the officer noted that Daniel Patterson had sustained a

mouth injury, suffering a broken tooth. Kelley’s car (later

confirmed to be registered to him) was parked nearby, and

in the trunk of that car, just as the Pattersons had indicated, was a black, .22-caliber rifle, a rifle case, and numerous rounds of .22-caliber ammunition. The physical evi-
8 No. 05-1884

4 We are aware that some circuits interpret Morrissey to require an explicit finding of good cause before admission of hearsay

at a revocation hearing, and others have adopted a balancing test

that requires the court to weigh the confrontation interest of the

parolee/probationer against the interests of the government. E.g.,

United States v. Rondeau, 430 F.3d 44, 47-48 (1st Cir. 2005)

(hearsay was admissible at revocation hearing only because court

determined the hearsay was reliable, and that the government

had a good reason not to produce declarants); Barnes v. Johnson,

184 F.3d 451, 454 (5th Cir. 1999) (“[T]o fall within the good-cause

exception to the right of confrontation at a parole revocation

hearing[,] the hearing officer must make an explicit, specific

finding of good cause and state the reasons for that finding. . . .

The hearing officer must weigh the parolee’s interest in confronting the witness with the government’s interest in denying the

parolee that right.”); United States v. Martin, 382 F.3d 840, 844

(continued...)

dence and the officer’s personal observations and investigation corroborated the Pattersons’ accusations that Kelley

punched them in the face and confronted them with a rifle

that he produced from the trunk of his car.

Where hearsay evidence sought to be admitted at a

revocation hearing “bears substantial guarantees of trustworthiness, then the need to show good cause vanishes.”

Egerstaffer, 726 F.2d at 1234; see also Pratt, 52 F.3d at 675;

Prellwitz, 578 F.2d at 192. This circuit essentially treats a

finding of “substantial trustworthiness” as the equivalent of

a good cause finding for the admission of hearsay in the

revocation context. Kelley makes a one-sentence fallback

argument in his reply brief suggesting that this circuit’s

interpretation of Morrissey’s “good cause” requirement is

incorrect and that we should henceforward require an

explicit finding of good cause before the admission of

hearsay in a revocation hearing. Kelley’s argument is both

too late and too cursory to merit serious consideration in

this case.4 United States v. Adamson, 441 F.3d 513, 521 n.2
No. 05-1884 9

4 (...continued)

(8th Cir. 2004) (“[T]o comport with Morrissey v. Brewer, the

district court must balance the probationer’s right to confront a

witness against the grounds asserted by the government for not

requiring confrontation.”) (quotation marks and citation omitted);

United States v. Hall, 419 F.3d 980, 986 (9th Cir. 2005) (“To

determine whether the admission of hearsay evidence violates the

releasee’s right to confrontation in a particular case, the court

must weigh the releasee’s interest in his constitutionally guaranteed right to confrontation against the Government’s good cause

for denying it.”) (quotation and citation omitted); United States v.

Frazier, 26 F.3d 110, 114 (11th Cir. 1994) (in deciding whether to

admit hearsay testimony at a revocation hearing, “the court must

balance the defendant’s right to confront adverse witnesses

against the grounds asserted by the government for denying

confrontation”). Other circuits follow our approach and do not

require an explicit good cause finding or a balancing test. See

United States v. McCallum, 677 F.2d 1024, 1025-26 (4th Cir.

1982); Kell v. United States Parole Comm’n, 26 F.3d 1016, 1019-20

(10th Cir. 1994).

(7th Cir. 2006) (“Arguments made for the first time in a

reply brief are waived . . . and in any event the argument is

not developed.”) (internal citation omitted). In any event,

Morrissey emphasized the flexible and informal nature of

revocation procedures, 408 U.S. at 489-90, and Gagnon

clarified that the Court did not intend Morrissey “to prohibit

use where appropriate of the conventional substitutes for

live testimony, including affidavits, depositions, and

documentary evidence.” Gagnon, 411 U.S. at 782 n.5.

Even in light of the flexible nature of revocation hearings,

however, the district court ideally should have explained on

the record why the hearsay was reliable and why that

reliability was substantial enough to supply good cause for

not producing the Pattersons as live witnesses. Still, we

have not strictly required district courts to make explicit

reliability and good cause findings. See Pratt, 52 F.3d at 675
10 No. 05-1884

(affirming revocation based on hearsay evidence because

the “district court could find that [the] hearsay testimony

was reliable” and “the government could have shown good

cause why the witnesses need not be present”) (emphasis

added). The record here is sufficiently clear for us to

conclude that the Pattersons’ hearsay was substantially

trustworthy so as to establish good cause for not producing

them as live witnesses. In light of the officer’s independent

corroboration, the admission of the Pattersons’ hearsay

statements did not undermine the fundamental fairness of

Kelley’s revocation hearing and did not violate his right to

due process. See Pratt, 52 F.3d at 676-77.

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-2-06