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Tenth Circuit Remands Two-year Sentence for Federal Probation Violation

by Christopher Zoukis

On October 25, 2016, the Tenth Circuit remanded a case involving a federal probation violation for resentencing due to the improper admission of hearsay testimony from a probation officer.

Tremale Henry was on federal supervised release when he was allegedly involved in two assaults involving dangerous weapons. At his probation revocation hearing, the district court allowed hearsay testimony as to what happened. Henry was revoked and sentenced to 24 months in prison plus six more years of supervised release. He appealed.

The Court of Appeals began its analysis with the general statement that “the usual rules of evidence need not be applied” in revocation hearings. Further, the Court noted that the Tenth Circuit and the U.S. Supreme Court have long allowed hearsay evidence in supervised release revocation hearings.

Turning to Henry’s hearing, the appellate court determined that hearsay statements made by the probation officer which were inconsistent with an eyewitness to the first assault were allowable. The Tenth Circuit held that Henry had an opportunity to confront and cross-examine the eyewitnesses regarding the inconsistencies, satisfying the limited constitutional protections that apply in the probation revocation context.

The Court of Appeals reached the opposite conclusion as to the second assault, however. There, the district court allowed a probation officer to testify as to a statement made by the victim to the police, and then by the police to him. Importantly, neither the victim nor the police officer was available to be cross-examined. As such, the district court should have utilized a balancing test to weigh Henry’s interests in confronting those witnesses against the government’s interest in foregoing the witnesses’ appearances.

Because the district court did not apply that balancing test, and because it had combined both assaults when it sentenced Henry for the revocation, the appellate court remanded for resentencing. See: United States v. Henry, 839 F.3d 1271 (10th Cir. 2016).

The Tenth Circuit granted rehearing in this case and entered a substituted opinion on February 3, 2017 that reached the same conclusion, stating, “on the record before us the failure to conduct a [United States v.] Jones balancing test cannot be dismissed as harmless error.” See: United States v. Henry, 852 F.3d 1204 (10th Cir. 2017).

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Related legal case

United States v. Henry