[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 11-15392

Non-Argument Calendar

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D. C. Docket No. 1:07-cr-00228-WS-M-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES ANTHONY CAMPBELL,

Defendant-Appellant.

_________________________________________

Appeal from the United States District Court

for the Southern District of Alabama

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(November 28, 2012)

Before MARCUS, EDMONDSON, and BLACK, Circuit Judges.

PER CURIAM:

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James Anthony Campbell appeals the revocation of his supervised release

and the resultant 24-month sentence based on his arrest for second-degree rape,

sexual abuse, and sodomy of a minor. On appeal, Campbell argues that the district

court improperly admitted hearsay evidence at his revocation hearing because the

court failed to balance his right to confront the alleged victim against the

government’s reasons for not producing her at the hearing as required by United

States v. Frazier, 26 F.3d 110 (11th Cir. 1994). No reversible error has been

shown; we affirm.

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); Frazier, 26 F.3d at 112

(revocation of supervised release).

“Although the Federal Rules of Evidence do not apply in supervised release

revocation hearings, the admissibility of hearsay is not automatic. Defendants

involved in revocation proceedings are entitled to certain minimal due process

requirements.” Frazier, 26 F.3d at 114. Among the due process requirements

available at a revocation hearing is the right to confront and cross-examine

adverse witnesses. Id.; 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 . . .

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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; instead, “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.” Frazier, 26 F.3d at 114. In addition, the hearsay statement must

be reliable. Id. Where the properly considered evidence -- alone -- is sufficient to

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

To establish harm, Campbell must satisfy a two-part test. “If admission of

hearsay evidence has violated due process, the defendant bears the burden of

showing that the court explicitly relied on the information. The defendant must

show (1) that the challenged evidence is materially false or unreliable, and (2) that

it actually served as the basis for the sentence.” United States v. Taylor, 931 F.2d

842, 847 (11th Cir. 1991) (internal quotations marks, citations, and emphasis

omitted).

Hearsay may be admitted at sentencing if there are “sufficient indicia of

reliability, the [district] court makes explicit findings of fact as to credibility, and

the defendant has an opportunity to rebut the evidence.” United States v.

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Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001) (quotations omitted). “[T]he focus

is upon the question of [the hearsay’s] reliability, which must be determined on a

case by case basis.” United States v. Lee, 68 F.3d 1267, 1275 (11th Cir. 1995).

“While it may be advisable and in some instances necessary for a district court to

make distinct findings regarding the reliability of hearsay statements used at

sentencing, the absence of such findings does not necessarily require reversal or

remand where the reliability of the statements is apparent from the record.”

United States v. Gordon, 231 F.3d 750, 761 (11th Cir. 2000).

At his revocation hearing, the district court overruled Campbell’s hearsay

objection and permitted the police officer assigned to investigate the alleged rape

and sexual abuse to testify about what the alleged victim told the officer about the

incident. Here, the court made no express findings about the reliability of the

hearsay statement under the required Frazier-balancing test. Even if the court

erred in this respect, other evidence was sufficient to revoke Frazier’s supervised

release: for example, Campbell’s admission to his probation officer, following his

arrest for second-degree rape, that he had no idea that the alleged victim was only

13 and that he believed that she was the age of consent. Based on Campbell’s

knowledge that he was arrested on second-degree rape charges and given the age

of the victim, the district court specifically highlighted that Campbell’s comments

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to his probation officer were sufficient to conclude that Campbell had violated the

terms and conditions of his supervised release. Frazier, 26 F.3d at 114.

About the resulting sentence, even if we assume, arguendo, that the district

court erred by not making a reliability finding before relying on hearsay

statements, remand is not necessary. Campbell has not demonstrated that the

hearsay evidence was materially false or unreliable. See Taylor, 931 F.2d at 847. 

Instead, it appears that, given the context of other evidence -- including

Campbell’s statements to his probation officer, the existence of the explicit text

messages from Campbell on the victim’s phone, and the victim’s age -- the police

officer’s testimony about what the victim told the officer happened was reliable. 

Gordon, 231 F.3d at 761.

If the court erred by relying on hearsay evidence in revoking Campbell’s

supervised release, the error was harmless.

AFFIRMED.

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