United States v. Williams

106 F.4th 1040

UNITED STATES of America, Plaintiff - Appellee, v. Maurice WILLIAMS, Defendant - Appellant.

No. 23-3170

United States Court of Appeals, Tenth Circuit

FILED July 2, 2024

Appeal from the United States District Court for the District of Kansas (D.C. No. 2:08-CR-20137-JWL-1)

Kayla Gassmann, Assistant Federal Public Defender (Melody Brannon, Federal Public Defender with her on the briefs), Kansas City, Kansas for Defendant-Appellant.

James A. Brown, Appellate Chief, United States Attorney's Office for the District of Kansas (Kate E. Brubacher, United States Attorney with him on the brief), Topeka, Kansas for Plaintiff-Appellee.

Before HARTZ, EID, and CARSON, Circuit Judges.

HARTZ, Circuit Judge.

The supervised release of Defendant Maurice Williams was revoked after a hearing in which the government presented evidence that he sold fentanyl to a confidential informant (CI) during a controlled buy. On appeal he argues that (1) the district court erred by admitting evidence of the controlled buy without conducting an interest-of-justice balancing test under Federal Rule of Criminal Procedure 32.1(b)(2)(C) to determine whether the CI should have been required to be available for cross-examination at the hearing, and (2) the evidence was insufficient to show that he sold fentanyl. We affirm. No balancing test was required because the court did not rely on any hearsay statements by the CI. And the evidence was sufficient to establish guilt by a preponderance of the evidence even though no police officer searched the undergarments of the CI before the controlled buy.

I. BACKGROUND

In January 2009 Mr. Williams pleaded guilty to charges of distributing crack cocaine and unlawful possession of a firearm. The district court sentenced him to 84 months' imprisonment followed by eight years of supervised release.

Mr. Williams began serving his supervised release in 2015, but his supervised release was revoked in 2020 because he violated his conditions of release by committing another crime, possessing controlled substances, possessing a firearm and ammunition, and leaving the district without permission. He was sentenced to an additional 18 months' imprisonment, followed by two years of supervised release. In January 2022 Mr. Williams again entered supervised release.

In March 2023 United States Probation Officer Olivia Cates recommended that Mr. Williams's supervised release be revoked because he had violated the conditions of his release by unlawfully possessing a controlled substance, committing another crime, and owning, possessing, or having access to a firearm. In support of the charges she alleged that on February 20, 2023, Mr. Williams sold fentanyl to a confidential informant in a controlled buy and possessed a firearm while doing so. She further alleged that on February 24, 2023, officers searched a residence where Mr. Williams apparently had his own room and found a firearm, ammunition, and fentanyl.

The United States District Court for the District of Kansas held a revocation hearing at which the government introduced evidence of the controlled buy, including testimony from Kansas City Police Officers Mark Palmerin and Kyle McAvoy and a video of the controlled buy.

Officer Palmerin testified that the buy was arranged after the "CI advised that they could purchase powder Fentanyl from a subject who goes by Reece." R., Vol. III at 35. When he searched the CI before the buy, he did not find any contraband. Because the CI was female, however, he did not check inside her clothing, bra, or underwear. Officer McAvoy testified that the department's "preferred method" is for a female to conduct a search of a female CI given "how intrusive the search can be." Id. at 30. But Officer Palmerin testified that the search was "more than pat-down," id. at 51, and that "I checked her pockets, I checked her legs, and then I usually like to have them just shake out, do like a shake of their chest area to see if anything falls out or anything, and none of that occurred," id. at 36. He also provided the CI with $200 to make the buy. The bills were "marked" so that they could be traced, but Officer McAvoy testified that he was unsure if the marked bills were ever recovered. Id. at 32.

Officer McAvoy drove the CI to make the purchase. He testified that when the CI was with him, "the CI called the target [whom he later identified as Mr. Williams], and the target said that they would meet them" at a strip mall in Kansas City, Kansas. Id. at 21-22. He was able to hear what Mr. Williams said over the phone because the CI used her telephone's speakerphone mode. When they arrived at that location, the CI exited the vehicle and entered Mr. Williams's vehicle (a silver Infiniti SUV), which was about four parking stalls north of where Officer McAvoy's vehicle was parked. When the CI returned to Officer McAvoy's vehicle, she handed him the suspected fentanyl in an approximately one-inch-by-one-inch clear plastic bag. A police-laboratory test later confirmed that the substance was two grams of fentanyl. The CI also told Officer McAvoy that Mr. Williams had a gun.

During the buy Officer Palmerin and other officers conducted surveillance from an unmarked vehicle in the area. Although Officer Palmerin testified that officers normally have the capability to listen during a controlled buy, he did not recall if that capability was used for this specific buy.

The government also introduced a video (with sound) of the controlled buy. The camera was attached to the CI's body. It shows Officer McAvoy driving to the strip mall with the CI sitting next to him in the vehicle.¹ Although the CI is not visible in the video, she can be heard, just before the departure to the strip mall, talking on speaker with a man and saying that she would meet him in "five minutes." Gov't Ex. 1 at 0:00-00:12. After they arrive at their destination, Officer McAvoy parks the vehicle, and he and the CI wait in it until the CI answers a call on speaker from a man who says, "I'm here." Id. at 8:06-8:15. The CI exits the vehicle and enters Mr. Williams's vehicle (a silver SUV). The CI and Mr. Williams converse. At one point the CI asks if she can send her friend Daniel to Mr. Williams, and Mr. Williams agrees. While discussing Daniel, the CI mentions "2G's" and Mr. Williams acknowledges "2G's." Id. at 10:20-10:22. Mr. Williams asks, "What you give him? A hundred a G?" Id. at 10:23. The CI replies, "Two hundred." Id. at 10:26. Mr. Williams asks, "So if he come to me, what I tell him? Two hundred?" Id. at 10:27-10:29. The CI says, "Yeah," and Mr. Williams says, "All right." Id. at 10:29-10:31. The video, which does not capture all of Mr. Williams's person, does not show drugs or money exchanging hands between the CI and Mr. Williams. During their interaction an object that Officer McAvoy identified as a lower assembly to a pistol is momentarily visible in Mr. Williams's lap. The CI then returns to Officer McAvoy's vehicle and tells him that Mr. Williams had a gun. The video does not show the CI making any significant movements while she is in Mr. Williams's vehicle and out of sight of Officer McAvoy. She spends 88 seconds in the silver Infiniti. For all but a total of 18 seconds spread over eight occasions (the longest being eight seconds), the camera appears to be completely steady, and when it is not completely steady, the movement is slight (other than the two seconds when she appears to be getting seated in the vehicle and two seconds when she is leaving it).

Probation Officer Cates testified that Mr. Williams's approved residence during supervised release was on North 28th Street. But four days after the controlled buy, officers executed a search warrant for a residence on North Bethany Street. They searched that residence because the police had previously connected Mr. Williams with that address and Officer Palmerin had conducted spot checks there "pretty early in the morning" between the day of the controlled buy and the execution of the warrant and the silver Infiniti had been parked there. R., Vol. III at 39-40. Officers found in an upstairs loft a Federal Bureau of Prisons ("BOP") identification card in Mr. Williams's name, keys to an Infiniti, and photographs that appeared to be of Mr. Williams. They also found a firearm, ammunition, fentanyl, and sandwich baggies in the loft.

At the revocation hearing, when the government moved to admit the video, Mr. Williams's counsel expressed a "continuing objection about the lack of presence of the actual confidential informant." Id. at 26. Counsel argued that "there are statements on [the video] that come from the CI," but "she is not physically present today." Id. The district court said that it would not consider the statements made by the CI on the video "for the truth, but rather for simply what led to whatever statement is made by the person who is alleged to be Mr. Williams." Id. at 28.

The district court found that Mr. Williams sold fentanyl and therefore committed a Grade A violation but did not find a violation related to the firearm. The court revoked his term of supervised release and sentenced him to 24 months' imprisonment.

II. FED. R. CRIM. P. 32.1(b)(2)(C)

"We review the district court's decision to revoke supervised release for abuse of discretion. Legal questions relating to the revocation of supervised release are reviewed de novo." United States v. Jones, 818 F.3d 1091, 1097 (10th Cir. 2016) (internal quotation marks omitted).

Mr. Williams argues that the district court erred by revoking his supervised release "based on the evidence of the alleged undercover buy which was initiated and conducted by the informant, including a video recording made by the informant, and hearsay statements from the informant, without the informant being made available for questioning, and without conducting the interest-of-justice balancing test before excusing the government from producing her." Aplt. Br. at 20.

On appeal Mr....