UNITED STATES of America, Plaintiff-Appellee, v. Marquist Theobles WILLIAMS, Defendant-Appellant.
No. 15-11265
United States Court of Appeals, Fifth Circuit.
Filed January 31, 2017
251-255
One lesson of the Highwayman‘s Case is that efforts to enforce contracts in service of criminal enterprise ought receive a cold reception in the courts. Surely we would not enforce an arbitration clause in the agreement between Everet and Williams. Their autonomous right to dial out of the sovereign‘s courts to frustrate its criminal law ought be no more enforceable than the court‘s direct enforcement of their agreements to share the booty—at the least when its felonious nature has been established by conviction of the architect of the criminal scheme.
It is oft-repeated that “[t]he FAA was enacted in 1925 in response to widespread judicial hostility to arbitration agreements.”42 Since then, dispelling any notion of lingering hostility, courts have steadily increased their defense of arbitration, posing the question of its limits. I offer no new limit and break no new legal ground. There are outer boundaries to the enforcement of arbitration agreements, and they surely hit shoal water as they encounter the criminal enterprise, the existence of which here has been judicially determined and for which its principals have been convicted and sent to prison.43
Privacy remains a significant attractant to arbitration even as the cost of arbitration approaches that of litigation. In a Ponzi scheme, covering the eyes and ears of lulled investors by using arbitration, with its obstruction of the powerful discovery process of federal courts, mitigates the risks of a torch in a hay barn where a hot ember can take it down. It is no accident that even promissory notes with the sales personnel contained arbitration provisions. Here, the risk of discovery is so high as to pull the arbitration clause to the heart of the criminal enterprise and from the bite of Prima Paint. This is not to gainsay the strong support of arbitration by the Congress and the courts. Rather, refusing to enforce arbitration provisions deployed in service of an illegal scheme travels with and reinforces this foundational support—a friend, not an enemy, of arbitration.
Kevin Joel Page, Erin Brennan, Federal Public Defender‘s Office, Dallas, TX, for Defendant-Appellant.
Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
The district court revoked the defendant‘s supervised release and sentenced him to prison. Despite not having raised an objection at the time, the defendant now complains that the district court violated his due process right to confrontation by considering hearsay. Finding no plain error, we affirm.
I.
Marquist Williams pleaded guilty to possession of a firearm in furtherance of a drug trafficking crime, earning him a sentence of sixty months’ imprisonment and three years’ supervised release. He served that prison term, but then during his supervised release, the probation office petitioned to revoke for violating his release terms. A Supervised Release Violation Report (SRVR) alleged that Williams possessed controlled substances, intentionally submitted “invalid” or “dilute” urine samples, and advised other addicts how to do the same. Williams pleaded “true” to the SRVR. The district court found that Williams violated the conditions of his release, adopted the SRVR, and sentenced him to twenty-four months’ imprisonment and an additional twenty-four months’ supervised release.
II.
Williams contends that the district court plainly erred by admitting into evidence in the revocation hearing the hearsay statement that he helped other addicts cheat on their drug tests. Because a revocation hearing is not a criminal prosecution, “the full panoply of rights due a defendant in such a proceeding does not apply.”1 By way of example, the
In determining whether to invoke the Morrissey “good cause” exception to a defendant‘s right of confrontation, courts are instructed to employ a balancing test in which they are to weigh “the [defendant‘s] interest in confronting a particular witness against the government‘s good cause for denying it, particularly focusing on the ‘indicia of reliability’ of a given hearsay statement.”5
Williams‘s objection being admittedly unpreserved, we review for plain error.6 “A plain error is a forfeited error that is clear or obvious and affects the defendant‘s substantial rights. When those elements are shown, this court has the discretion to correct the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.”7
III.
We find no plain error. Even assuming a clear and obvious error, the district court‘s consideration of the hearsay could not have affected Williams‘s substantial rights. Absent an exception, Williams was subject to mandatory revocation and imprisonment pursuant to
Williams argues that he might have been entitled to relief from the
The court shall consider whether the availability of appropriate substance abuse treatment programs, or an individual‘s current or past participation in such programs, warrants an exception in accordance with United States Sentencing Commission guidelines from the rule of section 3583(g) when considering any action against a defendant who fails a drug test.10
However, even assuming that Williams qualified for relief under
Because Williams has not demonstrated that any error affected his substantial rights, we find no plain error.
IV.
For the reasons described, the judgment of the district court is affirmed.