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Admittance of hearsay evidence harmless error, rules 7th Circuit

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The out-of-court testimony of a woman who said she purchased crack cocaine from a man who was on supervised release should not have been admitted during the man’s hearing regarding revoking his release, the 7th Circuit Court of Appeals held Wednesday. But this was a harmless error because the circumstantial evidence supports that the man dealt crack cocaine to the woman.

Munster Police Detective Timothy Nosich drove by a car containing Lorenzo Mosley and Sheryl Simmons. Nosich noted the woman left the car quickly after he passed by. Nosich followed Mosley’s car and pulled him over for a traffic violation. He found marijuana, crack cocaine and a large amount of cash in the car or on Mosley.

Shortly thereafter, police spoke with Simmons, who was carrying a bag of pot scrubbing pads – which are commonly used as filters in crack pipes. She turned over four little yellow baggies that contained the crack cocaine and said she already used the fifth bag she purchased.

When arrested for driving on a suspended license, Mosley was on supervised release. His probation officer sought revocation of the release and alleged several offenses, including distributing cocaine. Mosley disputed this alleged violation, because if the judge found it to be true, he would spend longer time in prison.

The District Court allowed Nosich to testify regarding what Simmons had told him and played a video of her being interviewed for the judge. Mosley objected, but the judge allowed it. Simmons did not testify in person. The judge ordered Mosley sentenced to 21 months in prison.

“In this case, the district court failed to balance Mosley’s constitutional interests in confrontation and cross-examination with the government’s reasons for not producing the witness. This was an error under Rule 32.1. Further, we cannot conclude that the district court would have admitted the hearsay if it had properly balanced the interests because, even if the hearsay was reliable (which we think it was), the government has offered no reason whatsoever for failing to produce Simmons. Accordingly, there is nothing in the record to balance against Mosley’s interest,” Judge Daniel Manion wrote in United States of America v. Lorenzo Mosley, 13-3184.

But this error was harmless because the violation of supervised release would have been found even without the hearsay evidence. The government presented strong circumstantial evidence that Mosley had sold Simmons the drug. The detective witnessed what he believed to be a drug deal and Mosley had a history of selling crack cocaine in little yellow baggies – the same kind that Simmons surrendered to police.
 

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  1. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

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  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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