The opinion of the court was delivered by: JOHN RHOADES, Senior District Judge I. Introduction
ORDER REGARDING APPLICABILITY OF CRAWFORD v.
Defendant Ricardo Barraza is charged with violating the conditions of
his unsupervised release. This order addresses the limited issue of
whether, pursuant to Crawford v. Washington. 124 S.Ct. 1354
(2004), it is a violation of defendant Barraza's right to confrontation
for the court to consider the hearsay testimony of Blanca Barraza,
defendant Barraza's wife, in determining whether defendant Barraza has
violated the conditions of his release. For the reasons set forth below,
the court concludes that Crawford is inapplicable in a release
It is alleged that on or about July 28, 2003, defendant Barraza was in
possession of a firearm, committed assault with a deadly weapon, and made
threats involving death and serious bodily injury. At the revocation
hearing, the government presented the hearsay statements of Blanca
Barraza, who was not available for cross-examination at the hearing
because she invoked her Fifth Amendment right to remain silent as well as
the marital privilege. Subsequent to the hearing, the Supreme Court decided
Crawford. The court ordered the parties to brief the issue of
whether, after Crawford. Blanca Barraza's hearsay statements
may be considered by the court or whether consideration of these
statements would violate defendant Barraza's right to confrontation.
Prior to Crawford, the Supreme Court in Ohio v.
Roberts. 448 U.S. 56 (1980) had held that the Sixth Amendment
Confrontation Clause "does not bar admission of an unavailable witness's
statement against a criminal defendant if the statement bears `adequate
indicia of reliability.'" Crawford. 124 S.Ct. at 1358 (quoting
Roberts. 448 U.S. at 66). The petitioner in Crawford
asked the Court to reconsider its ruling in Roberts.
The Crawford Court began its analysis by examining the
language of the Sixth Amendment Confrontation Clause, which provides that
"[i]n all criminal prosecutions, the accused shall enjoy the right . . .
to be confronted with the witnesses against him." After examining the
history of the Sixth Amendment, the Court rejected the view that the
Confrontation Clause applies only to in-court testimony. The Court
explained that "[l]eaving the regulation of out-of-court statements to
the law of evidence would render the Confrontation Clause powerless to
prevent even the most flagrant inquisitorial practices."
Crawford. 124 S.Ct. at 1364. However, the Court was careful to
note that "not all hearsay implicates the Sixth Amendment's core
concerns." Id. Because the Confrontation Clause refers to
"witnesses" against the accused, the Court concluded that the
Confrontation Clause is concerned with a specific type of court-of-court
statement: testimonial statements. The court made clear that statements
taken by police officers in the course of questioning are testimonial in
The Court then purported to affirm the rule of Roberts
that where the declarant is unavailable, hearsay may be admitted
where there is sufficient indicia of reliability but explained
that "[w]here testimonial statements are at issue, the only indicum of
reliability sufficient to satisfy constitutional demands in the one that
the Constitutional actually prescribes: confrontation." Id. at
1374. Thus, after Crawford, out-of-court statements made to
police regarding a defendant are inadmissible at trial under the Sixth
Amendment Confrontation Clause where the declarant is unavailable and was not
previously subject to cross-examination by the defendant.
Clearly, if defendant Barraza was being prosecuted in a criminal trial.
Crawford would be on all fours with the present case and would
bar the admission of Blanca Barraza's statements because she has refused
to testify on Fifth Amendment and marital privilege grounds (and
therefore is unavailable) and her statements were not subject to prior
cross-examination. The issue, however, is whether the holding of
Crawford applies, or should be extended, to a supervised
release revocation proceeding. As set forth in detail below, the right to
confrontation in a supervised release revocation hearing is a due
process, not a Sixth Amendment, right. Thus, Crawford, a case
outlining the requirements of the Sixth Amendment Confrontation Clause,
is inapplicable. Moreover, there is no basis for concluding that
Crawford overrules well-established Supreme Court case law
holding that the due process right to confrontation in a revocation
proceeding is limited in nature.
The right to confront a witness in a state parole revocation hearing
was established in Morrissey v. Brewer. 408 U.S. 471
(1972). In that case, the Supreme Court framed the issue as "whether the
Due Process Clause of the Fourteenth Amendment requires that a State
afford an individual some opportunity to be heard prior to revoking his
parole." Id at 472. The Court began "with the proposition that
the revocation of parole is not part of a criminal prosecution and thus
the full panoply of rights due a defendant in such a proceeding does not
apply to parole revocations." Id at 480. As the Court
Parole arises after the end of the criminal
prosecution, including imposition of sentence.
Supervision is not directly by the court but by an
administrative agency, which is sometimes an arm
of the court and sometimes of the executive.
Revocation deprives an individual, not of the
absolute liberty to which every citizen is
entitled, but only of the conditional liberty
properly dependent on observance of special parole
Id at 480. The court then turned "to the question whether
the requirements of due process in general apply to parole revocations."
Id at 481. The Court concluded that the liberty of a parolee
"is valuable and must be seen as within the protection of the Fourteenth
Amendment." Id at 482. Therefore, the Court concluded that the
termination of parole "calls for some orderly process, however informal."
Id. Although the Court declined to write "a code of procedure,"
it did conclude that "minimum requirements of due process" include "the
right to confront and cross-examine adverse witnesses (unless the hearing
officer specifically finds good cause for not allowing confrontation)."
Id. at 489.
Soon thereafter, the Supreme Court extended the Morrisey
protections to state probation revocation proceedings. See Gagnon v.
Scarpelli, 411 U.S. 778 (1973). The Ninth Circuit has extended the
Morrissey protections to federal supervised release revocation
proceedings. See United States v. Daniel. 209 F.3d 1091, 1093
(9th Cir. 2000).
The Ninth Circuit appears to have concluded that the right to
confrontation recognized in Morrissey is a due process right.
For example, the Ninth Circuit in John v. U.S. Parole Com'n.
122 F.3d 1278, 1281 (9th Cir. 1997) explained that "[a]lthough Morrissey
 established the rights of state parolees under the Due Process Clause
of the Fourteenth Amendment, that decision has of course been extended to
define the rights of federal parolees seeking due process protections
under the Fifth Amendment. . . ." Similarly, in United States v.
Daniel. 209 F.3d 1091, 1093 (9th 2000), the Ninth Circuit recognized
that the "due process protections" set forth in Morrissey
extend to an supervised release revocation hearings. But see United
States v. Simmons. 812 F.2d 561 (9th Cir. 1987). Thus, in
United States v. Comito, 177 F.3d 1166 (9th Cir. 1999), which
involved the revocation of the defendant's supervised release, the Ninth
Circuit framed the issue as whether the defendant's "due process
right to confrontation was violated. . . ." Id. at (emphasis
The court is aware that, although the Sixth Amendment is mentioned
nowhere in the Morrisey majority opinion, at least two other
circuits have, without analysis, characterized Morrissey as
being a Sixth Amendment case. See United States v. Bell.
785 F.2d 640, 642 (8th Cir. 1986) (referring to Morrissey as a Sixth
Amendment case); United States v. Penn. 721 F.2d 762 (11th Cir.
1983) (concluding that Morrissey was a case of the Sixth
Amendment being applied to the states via the Fourteenth Amendment).
However, because this court sits in the Ninth Circuit, this court is required to follow Ninth
Circuit case law. Moreover, for the following reasons, the court
concludes that the Ninth Circuit has properly characterized the right to
confrontation in a revocation hearing as a due process right.
It is telling that the Supreme Court itself has continually
characterized the requirements set forth in Morrissey and
Scarpelli as emanating from the Fourteenth Amendment due process clause
itself, not from the Sixth Amendment. See Overton v. Bazzetta,
539 U.S. 126, 138(2003) ("It was in the groundbreaking decision in
Morrissey v. Brewer. in which we held that parole revocation
is a deprivation of liberty within the meaning of the Due Process Clause
of the Fourteenth Amendment, that the Court rejected the view once held
by some state courts that a prison inmate is a mere slave."); Ponte
v. Real, 471 U.S. 491, 512 (1985) ("Gagnon v. Scarpelli 
recognized a due process right to counsel under some circumstances at
parole and probation revocation hearings."). Greenholtz v. Inmates
of Nebraska Penal and Correctional Complex, 442 U.S. 1, 9 (1979)
("[R]espondents rely heavily on Morrissey v. Brewer. 408 U.S. 471 ,
where we held that a parole-revocation determination must meet certain
due process standards."); Moody v. Daggett, 429 U.S. 78, 85-86
(1976) ("In Morrissey. we held that the conditional freedom of
a parolee generated by statute is a liberty interest protected by the Due
Process Clause of the Fourteenth Amendment which may not be terminated
absent appropriate due process safeguards."). See also Black v.
Romano, 471 U.S. 606, 610 (1985) ("The Due Process Clause of the
Fourteenth Amendment imposes procedural and substantive limits on the
revocation of the conditional liberty created by probation.").
Moreover, the Sixth Amendment Confrontation Clause by its own terms
applies only to "criminal prosecutions." See Hyser v. Reed,
318 F.2d 225, 237 (D.C. Cir. 1963) ("The appellants do not explicitly urge,
nor would we accept the contention that the Sixth Amendment applies to
parole revocation proceedings. The Sixth Amendment by its terms governs
only `criminal prosecutions.'"). Given that the Supreme Court in
Morrissey specifically noted that "the revocation of parole is
not part of a criminal prosecution," it is difficult to conclude that
Morrisey was a Sixth Amendment case. It is also significant that prior to Morrissey and
Scarpelli. the Supreme Court had held that the "Sixth
Amendment's right of an accused to confront the witnesses against him is
likewise a fundamental right and is made obligatory on the States by the
Fourteenth Amendment" Pointer v. Texas. 380 U.S. 400, 403
(1965). Pointer involved the Sixth Amendment right of
confrontation at trial. Had the Court in Morrissey and
Scarpelli been confronted with the issue of whether the Sixth
Amendment right of confrontation is applicable to the States via the
Fourteenth Amendment in parole and ...