Avoiding A Confrontation: Eleventh Circuit Finds Confrontation Clause Doesn't Apply To Supervised Release Revocation Hearings

The Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him...." As the recent opinion of the Eleventh Circuit in United States v. Garcia Hernandez, 2010 WL 2911104 (11th Cir. 2010), makes clear, however, a supervised release revocation hearing is not a criminal prosecution, rendering the Confrontation Clause inapplicable at such a hearing.

In Garcia Hernandez, Ernesto Garcia Hernandez pleaded guilty in 2000

to one count of conspiracy to possess with intent to distribute cocaine in excess of 500 grams....

The BOP released Garcia from prison in December 2003....Texas court officials transferred jurisdiction over him to the Southern District of Florida....

In December 2004, a probation officer petitioned the court to revoke Garcia's supervised release....The district court responded by revoking Garcia's supervised release and sentencing him to an additional six months of imprisonment, followed by three years of supervised release....

BOP officials released Garcia again in July 2005....In March 2008, a probation officer filed [a] petition to revoke his supervised release.....The petition alleged five violations.....Each of these included the mandatory condition to refrain from personally violating the law, and were based on committing the following state crimes, as reflected by his arrest by Miami police in February 2008: (1) conspiracy to commit armed cocaine trafficking; (2) conspiracy to deliver marijuana; (3) conspiracy to commit armed robbery; (4) possession of a firearm by a convicted felon; and (5) use of a firearm during the commission of a felony....

Garcia and a co-conspirator allegedly committed these crimes by conspiring to rob a confidential informant during a drug deal. At the supervised release revocation hearing, neither the alleged co-conspirator nor the CI testified, but the government did introduce into evidence recordings of controlled calls between the alleged co-conspirator and the CI.

After the court revoked his supervised release, Garcia Hernandez appealed, claiming, inter alia, that the admission of the recordings violated his rights under the Confrontation Clause. The Eleventh Circuit disagreed, finding that

The Sixth Amendment right to confront adverse witnesses is guaranteed only in "criminal prosecutions."...The Supreme Court has held that a parole revocation hearing does not constitute a "criminal prosecution."..., and our court has found "no significant conceptual difference between the revocation of probation or parole and the revocation of supervised release."

-CM