Summaries of Selected Opinions, 0417 COBJ, Vol. 46 No. 4 Pg. 105
U.S. Court of Appeals for the Tenth Circuit
Summaries of selected Tenth Circuit Court of Appeals Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association (CBA) by Katherine Campbell and Frank Gibbard, licensed Colorado attorneys. They are provided as a service by the CBA and are not the official language of this Court. The CBA cannot guarantee the accuracy or completeness of the summaries. Full copies of the Tenth Circuit decisions are accessible from the CBA website: ww.cobar.org (click on "Opinions/Rules/Statutes").
No. 15-6181. United States v. Henry. 2/3/2017. W.D.Okla. Judge Gorsuch. Revocation of Supervised Release-Use of Hearsay in Proceedings.
While on a term of supervised release, defendant was arrested for assault. At his subsequent revocation of probation hearing, the district court found defendant responsible for two separate assaults with a dangerous weapon and found each assault independently sufficient to warrant revocation of his supervised release. The court revoked defendant’s supervised release and imposed a new prison term.
On appeal, defendant argued that the district court had impermissibly relied on hearsay testimony in reaching its judgment. Concerning the first assault, the government presented testimony from an eyewitness who saw defendant lunge at his victim with a small object, though she couldn’t see what the object was. A probation officer testified that the eyewitness had previously told him that the object was a knife. The district court concluded that this along with other evidence established that defendant had committed assault with a deadly weapon. Hearsay is allowed in supervised release proceedings at which, under settled precedent, the Confrontation Clause does not apply. Furthermore, the district court was not required to conduct a balancing test before admitting the evidence because the eyewitness was present at the hearing and subject to cross-examination The minimal due process standards were satisfied.
As to the second assault, the district court relied on out-of-court statements that the victim and his girlfriend made to a police detective, who in turn relayed them to defendant’s probation officer, who presented them at the revocation hearing. Neither the victim, his girlfriend, or the detective were subject to cross-examination Under these circumstances, the district court erred by failing to conduct a balancing test to determine whether the evidence should have been admitted. This error was not harmless because the district court considered both violations together when fashioning a sentence, and on the record before the Tenth Circuit, it could not disaggregate the role (if any) that the second violation played in the sentencing decision.
The case was remanded for further proceedings.
No. 15-3181.Washington v. Unified Government of Wyandotte County. 2/6/2017. D.Kan. Chief Judge Tymkovich. Random, Suspicionless Drug Test —Termination—Fourth Amendment—Balancing of Interest s —Reasonableness—Property Interest —Liberty Interest .
Plaintiff was employed as a juvenile lieutenant, a safety sensitive position, with the Wyandotte County Juvenile Detention Center. He was fired after testing positive for cocaine. He filed a civil rights action against the Unified Government of Wyandotte County (County) alleging that (1) the drug test was an illegal search that violated the Fourth Amendment; (2) he was deprived of due process; and (3) the County breached his employment contract. The district court granted...
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