Singletary, Charles v. DC Bd Par

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 5, 2006 Decided July 7, 2006

No. 04-7013

CHARLES SINGLETARY,

APPELLANT

v.

EDWARD F. REILLY, JR., IN HIS OFFICIAL CAPACITY AS

COMMISSIONER OF THE U.S. PAROLE COMMISSION, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 00cv01263)

Catharine F. Easterly, Assistant Public Defender, Public

Defender Service of the District of Columbia, argued the cause

for appellant. With her on the brief was Timothy P. O'Toole,

Assistant Public Defender.

Elizabeth H. Danello, Assistant U.S. Attorney, argued the

cause for appellees. With her on the brief were Kenneth L.

Wainstein, U.S. Attorney, and Roy W. McLeese, III and Thomas

J. Tourish, Jr., Assistant U.S. Attorneys.

Before: SENTELLE and BROWN, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

2

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: Charles Singletary’s parole was

revoked in 1996 based on his alleged participation in a murder.

The evidence tying Singletary to this offense—for which he has

been imprisoned for the last ten years—consisted solely of

hearsay testimony relayed by a prosecutor and an investigating

detective. The reliability of the hearsay, most of it multilayered,

was never established, and its accuracy remains open to serious

questions. A parole revocation hearing is not a criminal trial, and

the same standards of proof and admissibility of evidence do not

apply. Yet though the government is not required to carry a

heavy burden in such proceedings, it cannot return a parolee to

prison based on a record as shoddy as this one. We therefore

conclude that Singletary is entitled to a new parole revocation

hearing.

I

Singletary was originally sentenced to nine to twenty-seven

years’ imprisonment (minus 388 days) for robbery, armed

robbery, and assault with a deadly weapon. He began serving his

sentence on January 28, 1983, and was granted parole on June

1, 1990. In June 1995, Singletary was arrested for the murder of

Leroy Houtman, a.k.a. Vaughn Stokes, but the case was never

brought before a grand jury, and Singletary was eventually

released without being charged. However, on July 30, 1996, the

District of Columbia Board of Parole held a joint hearing to

consider parole revocation for Singletary and his alleged

accomplice, Gary Barnes, based on the Houtman murder.1

1

For Barnes, this hearing served as a continuation of a previous

hearing held several months earlier.

2

3

We cannot be sure of everything that transpired at the

hearing. Singletary has provided us with a partial transcript

created by his counsel from an audiotape of the proceedings.

However, the transcript cuts off in the middle of a sentence, and

Singletary claims that he has never been provided with a

recording or transcript of the rest of the hearing. Our only other

information regarding the events of that day comes from the

Board’s semi-legible handwritten findings of fact and

Singletary’s abbreviated description of the hearing, neither of

which provides any significant additional details.

Singletary was charged with failing to obey all laws and

using a deadly weapon in connection with first degree murder.

He denied both accusations. The Board began by asking Peter

Zeidenberg, an Assistant United States Attorney, if he “could

tell [the Board] what [he] kn[e]w about this case.” Zeidenberg

presented his view of what “the evidence was in this case”

through his own narrative as well as by questioning Detective

Todd Amis, who investigated Houtman’s murder. Most of the

information described by Zeidenberg and Amis originally came

from two individuals—Verdez Smith and Terri Washing-

ton—who were not identified by name during the hearing,

though their names have been revealed during this litigation.

Smith and Washington claimed to have learned about the

murder from Carmelita Metts, who was convicted of conspiracy

to murder Houtman.

According to Zeidenberg and Amis, Houtman’s body was

discovered in Metts’s apartment complex when plumbers

working in a utility room smelled an odor and saw a foot

sticking out from some plastic. Houtman had been stabbed fifty-

one times; his body had been wrapped in insulation that was

pulled down from the ceiling. He had been dead for approxi-

mately three weeks.

4

Amis stated that the body was finally identified three

months later by Houtman’s sisters, based on a piece of jewelry

Houtman was wearing. Amis then began a search for Houtman’s

missing truck, which bore fruit when he discovered it in Smith’s

possession. Smith initially claimed that someone named “Tony”

gave him the truck; he later admitted to receiving it from Metts,

although he claimed not to know where she obtained it. After

being charged with Houtman’s murder, Smith changed his story

again, claiming that Metts—his former girlfriend—had asked

him to help her kill Houtman, but that he had refused. Smith

claimed that Metts had later given him Houtman’s truck so that

he could sell it, as he had previous experience as a car thief. The

charges against Smith were dropped.

The police also interviewed Washington, who initially

denied knowing anything about the murder (as Amis stated in a

sworn statement made after the hearing). Amis told the Board

that Washington then claimed Metts confessed to helping Barnes

and Singletary murder Houtman.2 Allegedly, Metts lured

Houtman to her apartment, where Barnes and Singletary (and

possibly Metts herself) stabbed him, stored the body in the

closet temporarily, and later moved it to the basement. Amis

informed the Board that Smith also claimed Metts told him of

this sequence of events.3

2

At Metts’s trial, Washington testified that she was dating

Houtman prior to his disappearance; she subsequently met and started

dating Barnes. Thus, in a rather bizarre love triangle, Washington

either dated her ex-boyfriend’s murderer or—as Singletary

implies—helped murder her boyfriend and then framed her new

boyfriend for the crime.

3

Additionally, Zeidenberg stated—apparently recapping Smith’s

testimony at trial—that Smith went to Metts’s apartment after the

murder and noticed that Metts “looked like she hadn’t slept.” Smith

allegedly told his ex-girlfriend that she “look[ed] terrible,” to which

5

Zeidenberg stated that the police searched Metts’s apart-

ment and found some of Houtman’s blood. He stated that when

Metts found the notice left on her door by the police, she was

with Washington, who then accompanied her to the barber shop

where Singletary worked. Zeidenberg and Amis both stated that

Washington claimed to have seen Singletary wearing a distinc-

tive ring that had belonged to Houtman.(However, at Metts’s

trial, Washington actually testified that Singletary was wearing

Houtman’s bracelet, and that she saw Barnes wearing

Houtman’s ring at one point. Neither piece of jewelry was ever

recovered by the police.) According to Zeidenberg, Metts told

Washington and Smith she gave Houtman’s keys to Barnes and

Singletary in order for them to search his apartment for drugs

and money, but that they did not give her a share of whatever

they found.

Singletary was eventually arrested. After his arrest, Amis

asked if he knew Metts or Barnes, but Singletary allegedly

denied knowing either. Amis later found a picture of Singletary

and Barnes together at a wedding. Singletary’s attorney had an

opportunity to cross-examine Amis (although only part of this

exchange is reflected in the hearing transcript). When asked if

the police had “anything, anything at all besides double hearsay

that connects [Singletary and Barnes] to the murder,” Amis

simply stated, “no.” Amis also admitted that no murder weapon

had been found.

Zeidenberg acknowledged Singletary’s case had never been

presented to a grand jury because the prosecution’s only

she replied, “Well, you’d look bad too if you hadn’t slept for two

days.” Metts allegedly said she had “had a dead body in [her] closet

for the last two days,” but showed Smith that it wasn’t there anymore.

She then allegedly showed Smith the padlocked door to the utility

room in the basement where the body had been concealed.

6

admissible evidence would have been Metts’s statements. The

prosecution did not want to “cut a deal” with Metts to get her to

testify; “any confession that she gave would be so suspect that

. . . it would [be] counterproductive.” According to Singletary’s

former attorney, prior to the hearing, the Board did not inform

him of any evidence, witness statements, or other information

regarding the alleged parole violations. He claimed that

Singletary brought two “favorable witnesses” to the hearing, but

the Board did not permit them to enter the hearing room. The

record does not reflect that Singletary complained about either

issue during the hearing.

The Board revoked Singletary’s parole on August 6, 1996.

Singletary filed for a writ of habeas corpus in 1997, but the writ

was denied by the D.C. Superior Court, and the D.C. Court of

Appeals affirmed. Singletary v. Quick, No. 97-SP-1984 (D.C.

July 24, 1998) (unpublished order). He again sought habeas

relief in 2000, but again the Superior Court denied his claims,

and again the Court of Appeals affirmed. Singletary v. D.C. Bd.

of Parole, 794 A.2d 56 (D.C. 2001) (unpublished table deci-

sion). Finally, Singletary petitioned for a writ of habeas corpus

in the U.S. District Court for the District of Columbia, and his

petition was denied one more time. Singletary v. D.C. Bd. of

Parole, No. 00-cv-01263 (D.D.C. Dec. 16, 2003) (unpublished

opinion). The district court found that “the only challenge raised

by petitioner through his counsel at the parole revocation

hearing that is now being raised was the challenge to the

sufficiency of the evidence.” Id. at 7. The court thus considered

other challenges brought by Singletary forfeited, a decision that

Singletary does not challenge on appeal. Finding the hearsay

sufficiently reliable, the district court denied Singletary’s

petition. Id. at 8-10.4

4

On appeal, we granted the Board’s motion to substitute the

United States as its successor in interest, given that the Board no

7

II

In Morrissey v. Brewer, 408 U.S. 471, 487-88 (1972), the

Supreme Court mandated a hearing “prior to the final decision

on revocation by the parole authority,” if the parolee desires

such a hearing. The hearing

must be the basis for more than determining probable cause;

it must lead to a final evaluation of any contested relevant

facts and consideration of whether the facts as determined

warrant revocation. The parolee must have an opportunity

to be heard and to show, if he can, that he did not violate

the conditions, or, if he did, that circumstances in mitigation

suggest that the violation does not warrant revocation.

Id. at 488. While declining to “write a code of procedure” for

such hearings, the Court did specify that “the minimum require-

ments of due process” included:

(a) written notice of the claimed violations of parole; (b)

disclosure to the parolee of evidence against him; (c)

opportunity to be heard in person and to present witnesses

and documentary evidence; (d) the right to confront and

cross-examine adverse witnesses (unless the hearing officer

specifically finds good cause for not allowing confronta-

tion); (e) a “neutral and detached” hearing body such as a

traditional parole board, members of which need not be

judicial officers or lawyers; and (f) a written statement by

the factfinders as to the evidence relied on and reasons for

revoking parole.

longer exists and the United States consented to our exercise of

jurisdiction. Singletary v. D.C. Board of Parole, No. 04-7013 (D.C.

Cir. Apr. 24, 2006) (unpublished order).

8

Id. at 488-89. The hearing process “should be flexible enough to

consider evidence including letters, affidavits, and other material

that would not be admissible in an adversary criminal trial.” Id.

at 489. See also Gagnon v. Scarpelli, 411 U.S. 778, 782 n.5

(1973) (“[W]e did not in Morrissey intend to prohibit use where

appropriate of the conventional substitutes for live testimony,

including affidavits, depositions, and documentary evidence.”).

Parole revocation violates due process if the decision is

“either totally lacking in evidentiary support or . . . so irrational

as to be fundamentally unfair.” Duckett v. Quick, 282 F.3d 844,

847 (D.C. Cir. 2002). In Crawford v. Jackson, 323 F.3d 123, 128

(D.C. Cir. 2003), we found that “[r]eliance on hearsay in parole

revocation hearings is not per se impermissible.” However, “the

use of unsubstantiated or unreliable hearsay would certainly

eviscerate the safeguards guaranteed by Morrissey and

Gagnon.” Id. (internal quotation marks and ellipses omitted).

Rather than focusing on whether evidence would be admissible

at a criminal trial, courts reviewing revocation decisions “are

properly more concerned with whether the evidence considered

as a whole, including the hearsay evidence, was both sufficient

in quantity and reliability to ensure fundamental due process

rights.” Id. We applied the Duckett standard for the sufficiency

of the evidence and “follow[ed] other circuits that have exam-

ined the reliability of the particular hearsay evidence, condemn-

ing reliance on it when the court reaches a negative evaluation.”

Id. at 129.

Other circuits have split on the question of whether, prior to

admitting hearsay, the parole authority must make an explicit

finding of good cause for not allowing a parolee to confront an

adverse witness. See, e.g., Barnes v. Johnson, 184 F.3d 451, 454

(5th Cir. 1999) (“[T]he hearing officer must make an explicit,

specific finding of good cause and state the reasons for that

finding.”); Egerstaffer v. Israel, 726 F.2d 1231, 1234 (7th Cir.

9

1984) (stating that no explicit finding is required when hearsay

evidence “bears substantial guarantees of trustworthiness”).

While we have not required an explicit finding of good cause at

the hearing, we have placed the burden on the “parole authori-

ties to ensure, before relying on hearsay, that there are sufficient

indicia of reliability under the circumstances at hand to protect

the prisoner’s due process rights.” Crawford, 323 F.3d at 129.

We expressed “concern about the reliance in parole revocation

hearings on hearsay in police reports” and warned about the

consequences of relying on unreliable hearsay:

[G]iven judicial concern in light of the protections guaran-

teed by Morrissey, a parole authority takes a certain risk

that its decision to revoke parole will not be judicially

sustained where it relies solely on hearsay contained in a

police investigative report as the basis for its decision. . . .

[T]hat risk is measurably lessened only in circumstances

that demonstrate the strong reliability of the hearsay

evidence.

Id. See also Ash v. Reilly, 431 F.3d 826, 829-30 (D.C. Cir. 2005)

(explaining that our Crawford v. Jackson decision still governs

parole revocation hearings even after Crawford v. Washington,

541 U.S. 36 (2004), which held that use of “testimonial”

hearsay at a criminal trial violates a defendant’s Sixth Amend-

ment rights unless the witness is unavailable and the defendant

had a prior opportunity to cross-examine him).

In our Crawford case, the Board relied on a police investi-

gative report in revoking a prisoner’s parole. We found that the

report was “quite detailed, an indicia of reliability,” as it

provided “a fairly full account of the circumstances surround-

ing” the parole violation. Crawford, 323 F.3d at 130. We also

found several other factors to be relevant: the report was

corroborated on some points by the parolee’s admissions at the

10

hearing and contained “internal corroboration” of the alleged

violation. Id. Next, the parolee was given a chance to present

contrary evidence at the hearing, but he chose not to do so, even

though he was not denied access to the report and knew the

identities of the relevant witnesses. Id. Under those circum-

stances, “given the indicia of reliability of the police investiga-

tive report, the Board’s reliance on the hearsay evidence did not

render its revocation decision so lacking in support that it was

fundamentally unfair.” Id. at 131.

III

While the hearsay evidence at issue in Crawford “was both

sufficient in quantity and reliability to ensure fundamental due

process rights,” id. at 128, a far different case is presented here.

We have no cause to question the quantity of the evidence

presented at the hearing; if its reliability had been established,

the Board’s revocation decision would most likely not be

problematic. Yet the issue we confront today is not the quantity

of the hearsay presented, but rather its reliability. We find that

the hearsay presented at the hearing was not demonstrated to be

reliable and that the Board’s decision to revoke Singletary’s

parole was therefore “totally lacking in evidentiary support.” Id.

at 129 (citation omitted).

Almost all the evidence presented at the hearing was

hearsay, much of it multilayered. Zeidenberg and Amis de-

scribed, in their own words, what Washington and Smith had

previously stated about Houtman’s murder during the police

investigation and Metts’s trial. The most important

evidence—Metts’s alleged confessions to Smith and Washing-

ton—involves a second layer of hearsay, as Zeidenberg and

Amis were only telling the Board what Smith and Washington

claimed Metts told them.

11

The government emphasizes that Smith and Washington

made statements under oath at Metts’s trial, under penalty of

perjury and subject to cross-examination. While this argument

does suggest some degree of reliability, it is an incomplete

rationale. Smith and Washington were only subject to cross-

examination by Metts’s attorney; while Metts may have had the

motivation to question their general credibility, Singletary’s

identity as a co-conspirator was not a central issue. In fact,

Singletary was not mentioned in the brief cross-examination of

either witness at the trial. The record also reflects that Smith and

Washington both changed their stories after initially denying any

knowledge about the murder. Given these somewhat suspicious

circumstances, there is room to doubt that they accurately

identified Singletary, rather than some other individual, as

assisting Metts.5 Yet Zeidenberg and Amis did not reveal

Smith’s and Washington’s identities at the hearing.6 “Thus the

[B]oard had no way of knowing how reliable the informants

were and had no real basis on which to resolve the credibility

issue against the parolee . . . .” Birzon v. King, 469 F.2d 1241,

1244 (2d Cir. 1972) (finding error when a parole board relied on

anonymous statements in a report rather than receiving testi-

mony directly).

In Crawford, we found that a high level of detail in a

hearsay statement can indicate reliability. 323 F.3d at 130. Metts

allegedly did describe some details of the murder to Smith and

Washington (such as what was done with the corpse), but other

5

Indeed, Singletary implies (albeit without overwhelming

support) that Washington and Smith may have been attempting to shift

blame for the murder away from themselves.

6

The record before this court does not indicate that the Board was

informed of Smith’s and Washington’s identities while Singletary was

not present.

12

details are notably absent from the record (such as the date of

the murder). More significantly, many details regarding

Singletary’s involvement were never explained, including why

he would participate in the murder and whether he even knew

Houtman. At the same time, some of the details that Smith and

Washington did provide were not accurately reflected at the

hearing. For example, Washington testified that she saw

Singletary wearing Houtman’s bracelet and Barnes wearing

Houtman’s ring, yet Zeidenberg and Amis both told the Board

that Washington saw Singletary wearing the “distinctive” ring.

The government contends Singletary’s failure to present

contrary evidence at his hearing supports a finding that the

hearsay was reliable. Yet Singletary’s attorney has stated in an

affidavit that Singletary did bring two witnesses, but they were

not allowed to enter the hearing room. He also stated that, until

the hearing, the government gave him no information about the

charges or the evidence to be presented. The government has not

contradicted these assertions, which, if true, would have made

it rather difficult for Singletary to present any rebuttal evidence.

The government argues Singletary failed at the hearing to object

to the alleged exclusion of his witnesses and therefore forfeited

this issue. Even if he did forfeit his ability to argue that the

exclusion of his witnesses violated his due process rights,

however, we surely will not draw the opposite conclusion—that

he deliberately chose not to present evidence—especially given

that the burden is on the government to “ensure . . . that there are

sufficient indicia of reliability” before relying on hearsay. Id. at

129.

Hence, the government has not established that the hearsay

deemed adequate by the Board was “sufficient in . . . reliability

to ensure fundamental due process rights.” Id. at 128. Smith and

Washington, who apparently changed their stories at least once

each, provided the key information relied on by the Board in

13

revoking Singletary’s parole. Yet the two hearsay declarants

were never cross-examined on the issue of Singletary’s

involvement—let alone cross-examined at the hearing—nor

were their identities even revealed for purposes of evaluating

their credibility. The record before us contains notable inconsis-

tencies and omissions, and a less than complete account of the

hearing itself.

We emphasize that we are not deciding whether the

evidence would have been sufficient to merit parole revocation

if its reliability had been established or if it had been presented

in a more trustworthy format. On this record, though, we are

unable to conclude that the Board properly relied on the hearsay

in question. Absent this hearsay evidence, the Board’s decision

was “totally lacking in evidentiary support.” Id. at 129 (quoting

Duckett, 282 F.3d at 847). We therefore reverse the judgment of

the district court and remand with instructions that Singletary be

provided with a new parole revocation hearing consistent with

this opinion.

So ordered.