UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

No. 01-3169
v.	(D.C. No. 95-CR-10060-JTM)
DALEY DECOVEN WASHINGTON III, a/k/a Salim Siddiq El-Fahim,

Defendant - Appellant.	(D. Kansas)

ORDER AND JUDGMENT*

Before SEYMOUR, ALARCON,** and ANDERSON, Circuit Judges.

Daley D. Washington III, a/k/a Salim Siddiq El-Fahim ("Defendant"), appeals the revocation of his supervised release and subsequent imposition of a sentence of 24 months imprisonment followed by a new period of 22 months of supervised release. The only question raised on appeal is whether the district court violated the Defendant's Sixth Amendment right to confront witnesses against him by relying on hearsay testimony which the Defendant asserts did not contain "sufficient indicia of reliability." Br. of Appellant at 12. Exercising jurisdiction pursuant to 28 U.S.C. §1291, we affirm.

The government and the Defendant are well aware of the facts, including the Defendant's history of criminal behavior, incarceration, supervised release, re-incarceration, further supervised release, and further criminal behavior leading to the instant revocation proceeding. Accordingly, we will not repeat those facts in detail here. In short, however, the record establishes, and the district court found, that in March 2001, Defendant conspired to pass counterfeit checks.

The critical evidence in this proceeding came from the testimony of Detective Bradley Tuzicka regarding statements he received from two individuals who actually passed counterfeit checks on March 9 and March 13, 2001, Mr. Aslan Saulers ("Saulers") and Ms. Shayla Jones ("Jones"). Both of these individuals told Detective Tuzicka that they had been recruited to participate in a check cashing scheme by Defendant, and that Defendant had provided them with the counterfeit checks. Both indicated that Defendant was the leader and mastermind of the counterfeit check cashing scheme they were involved in.

On appeal, Defendant contends that this hearsay testimony was unreliable and that the district court erroneously relied upon it in revoking his supervised release, in violation of his Sixth Amendment right to confront the witnesses against him. Ordinarily, we would review a district court's decision to revoke a defendant's supervised release for abuse of discretion. United States v. Disney, 253 F.3d 1211, 1213 (10th Cir. 2001) (citing United States v. Reber, 876 F.2d 81, 83 (10th Cir. 1989). However, since Defendant failed to object to the admission of Detective Tuzicka's hearsay testimony, we review his arguments only for plain error.1 United States v. LaHue, 261 F.3d 993, 1009 (10th Cir. 2001). "Under [plain error] review, relief is not warranted unless there has been (1) error, (2) that is plain, and (3) affects substantial rights. . . . An appellate court should exercise its discretion to correct plain error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Jones v. United States, 527 U.S. 373, 389 (1999) (internal citations and quotations omitted).

Our analysis begins with the recognition that the Federal Rules of Evidence do not strictly apply in proceedings to revoke supervised release, and that hearsay is admissible in revocation proceedings so long as it is sufficiently reliable and the court balances the defendant's right to confront adverse witnesses against the government's grounds for denying confrontation. United States v. Frazier, 26 F.3d 110, 114 (11th Cir. 1994); United States v. Waters, 158 F.3d 933, 940 (6th Cir. 1998). On appeal, Defendant challenges only the reliability of the hearsay testimony, and we therefore analyze only that issue.2

The district court did not make any express finding that the statements of Saulers and Jones were sufficiently reliable. The record fairly demonstrates, however, that the district court conducted the functional equivalent of a reliability analysis, concluding, for example, that the statements of Saulers and Jones were independent and consistent. R. Vol. II, Tr. of Revocation Proceedings at 104-05. In any event, the record supports the conclusion that the hearsay testimony was sufficiently reliable, and we therefore hold that the district court did not commit plain error.

To begin with, the circumstances surrounding the statements evidence their inherent reliability. Detective Tuzicka testified that he interviewed Saulers and Jones separately, that neither were told about the other's statement, and that both gave detailed and consistent stories about Defendant's involvement in their illegal activities. Id. at 67-73, 75. These independent statements contained a detailed description of a counterfeit check cashing scheme involving the Defendant that closely paralleled a scheme Defendant was found to be involved with in February 2000, despite the fact that, by his own testimony, Defendant never told Saulers or Jones any details surrounding his prior illegal activities. Id. at 99-100, 105. Although not dispositive, the fact that Saulers' and Jones' statements were highly incriminating to themselves is further evidence of the inherent reliability of their statements. Id. at 103-04.3

External corroboration gives further credence to the reliability of the statements made by Saulers and Jones.4 First, Defendant's car was seen by a security officer at one of the locations where Saulers attempted to pass one of the counterfeit checks, id. at 63-65, supporting the claims by both Saulers and Jones that Defendant was instrumental in their efforts to pass the counterfeit checks. Second, Detective Tuzicka and Agent Marr testified that the checks passed by Saulers and Jones on March 9 and13, respectively, were both produced in the same manner, on the same type of stock, and pursuant to the same computer program as that utilized in Defendant's previous check cashing scheme in February 2000. Id. at 76, 79-80.

CONCLUSION

Based on the foregoing discussion, we hold that the district court did not commit reversible error in relying on the hearsay testimony of Detective Tuzicka in revoking Defendant's supervised release, or in ordering the revocation of Defendant's supervised release. Accordingly, the judgment is AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge