United States v. Henry
854 F.3d 1177
10th Cir.2017Background
- Appellate panel previously issued an opinion on Oct. 25, 2016 in a supervised-release revocation case. The clerk was ordered to reissue that opinion with an added footnote after a petition for panel rehearing.
- At the district-court revocation hearing, the court found a second, independent probation violation at the "guilt" phase based on an alleged second assault without first applying the Jones test for hearsay.
- After the opinion issued, the government filed a petition for panel rehearing arguing harmless error, contending that under United States v. Ruby the district court could have considered hearsay about "bad acts" at the sentencing phase.
- The court held the government forfeited the harmless-error argument because it was raised only in the petition for rehearing and not earlier on appeal.
- Even addressing the argument on the merits, the court concluded the harmless-error claim failed because the district court used the assault to find an independent violation at the guilt phase, and the impact of that finding on the ultimate sentence could not be known without speculation.
- The order directed the Clerk to add the explanatory footnote to the Oct. 25 opinion and to reissue the opinion; Judge Gorsuch did not participate in this rehearing order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did gov't forfeit harmless-error argument by raising it only in petition for rehearing? | The government urged harmless error for the admission/finding of the second violation. | Appellee argued the harmless-error claim was forfeited because it was raised post-decision. | Forfeited: argument not raised earlier and thus waived. |
| If considered, was the district court's error harmless? | Gov't: Even if error occurred at guilt phase, Ruby allows hearsay consideration at sentencing so any error was harmless. | Appellee: The district court actually used the assault to find an independent violation at guilt phase; therefore impact on sentencing is unclear. | Not shown harmless: cannot safely speculate the guilt-phase finding did not affect sentencing; remand preferable. |
Key Cases Cited
- United States v. Ruby, 706 F.3d 1221 (10th Cir. 2013) (discusses consideration of hearsay at sentencing phase of supervised-release revocation)
- United States v. Charley, 189 F.3d 1251 (10th Cir. 1999) (forfeiture doctrine; issues not timely raised are waived)
- United States v. Wiles, 106 F.3d 1516 (10th Cir. 1997) (court practice allowing remaining two panel judges to act as quorum)
- Murray v. National Broadcasting Co., 35 F.3d 45 (2d Cir. 1994) (remaining two judges of a three-judge panel may decide petition for rehearing in absence of third judge)