Argued April 17, 2014
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:07 CR 192 -- James T. Moody, Judge.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Jennifer S. Chang-Adiga, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Hammond, IN.
For LORENZO MOSLEY, Defendant - Appellant: Kerry Clementine Connor, Attorney, Highland, IN.
Before MANION, SYKES, and TINDER, Circuit Judges.
Manion, Circuit Judge.
Lorenzo Mosley was convicted in 2008 of distributing cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1). Following his release from prison, and while he was on supervised release, he was arrested by local police for dealing cocaine, possessing cocaine and marijuana, and driving with a suspended license. Mosley's federal probation officer petitioned the district court to find him in violation of his conditions of supervised release and revoke his supervised release. Mosley admitted possession of cocaine, but denied dealing cocaine, a more serious " Grade A" violation. At the revocation hearing, the district court heard hearsay statements in a recorded interview of a woman claiming to have bought cocaine from Mosley and from the testimony of the arresting officer, who had interviewed the woman. Mosley was not given the opportunity to confront or cross-examine the woman. Ultimately, the district court found Mosley had committed all the alleged violations, revoked Mosley's supervised release, and sentenced him to 21 months' incarceration. Mosley appeals, arguing that it was error for the district court to admit the hearsay statements without finding that there was " good cause," as required by Federal Rule of Criminal Procedure 32.1(b)(2)(C) and the Fifth Amendment Due Process Clause as interpreted in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
We conclude that the district court did err, but that the error was harmless and so we affirm.
On July 26, 2012, Detective Timothy Nosich of the Munster Police Department, while driving in his squad car, observed a car stopped in front of a house. He saw a woman get in the car on the passenger side. As he drove by, Detective Nosich noticed the woman nervously watching his squad car with " a look of dread." After passing by, he kept an eye on the car in his rearview mirror and noticed that the woman quickly exited the car. Based on his seven years of experience, Detective Nosich believed he had just witnessed a drug deal. He followed the car when it pulled away and as soon as he observed a traffic violation--turning without signaling--he pulled the car over. The driver, Lorenzo Mosley, had been operating with a suspended license, so Detective Nosich arrested him and began an inventory search of the car. He discovered a small amount of marijuana hidden in a dashboard panel, a small amount of crack cocaine in a clear baggie on the floor between the passenger seat and the center console, and $300 to $400 in cash on his person. No paraphernalia for using either crack or marijuana were present in his car. Within an hour, Detective Nosich and another officer made contact with Sheryl Simmons, the woman who had gotten in and out of the car, and questioned her. At the time, she was carrying a grocery bag containing pot scrubbing pads (which, according to Detective Nosich, are commonly used as filters in crack pipes). After a brief conversation, Simmons allowed the officers to enter her home and she gave them four little yellow baggies that contained what appeared to be crack cocaine, which had been in her purse, and a crack pipe.
At the time Mosley was arrested, he was near the end of a three-year term of supervised release following incarceration for a conviction for distribution of cocaine base (crack cocaine), in violation of 21 U.S.C. § 841(a)(1). The prior conviction stemmed from Mosley selling little yellow plastic baggies of crack cocaine. PSR at 4. When Mosley's probation officer learned of Mosley's arrest (and resulting state criminal charges) he filed a petition with the district court seeking revocation of Mosley's supervised release. The petition alleged violations of the conditions of his supervised release for distributing cocaine, possessing marijuana and cocaine, and driving with a suspended license. The most serious alleged violation was distributing cocaine, a Grade A violation. The district court held a hearing where Mosley admitted possessing cocaine and driving while his license was suspended. With regard to distributing cocaine, Detective Nosich testified, without objection, to the events recounted above.
However, at the revocation hearing, Detective Nosich also testified to statements that Simmons had made to him during their conversation and he played a video of her being interviewed for the judge--both over Mosley's objections. Detective Nosich, and Simmons via the recorded interview, recounted the following: Simmons had initially said that she was paying Mosley for rides he had given her. But later in the conversation she admitted to the officers that she had called Mosley ...