United States Court of Appeals For the First Circuit

No. 21-1880

UNITED STATES OF AMERICA,

Appellee,

v.

DARREN FRANKLIN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Barron, Chief Judge, Selya and Howard, Circuit Judges.

Jonathan Shapiro, with whom Mia Teitelbaum and Shapiro & Teitelbaum LLP were on brief, for appellant. Karen L. Eisenstadt, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, was on brief, for appellee.

October 20, 2022 SELYA, Circuit Judge. Defendant-appellant Darren

Franklin challenges the district court's decision to admit and

consider hearsay evidence when revoking his term of supervised

release. After careful consideration, we find his challenge

wanting and affirm the judgment below.

I

Drawing from the record compiled in the district court,

we briefly rehearse the relevant facts. On April 30, 2007, the

appellant was convicted by a jury of possessing and distributing

cocaine base (crack cocaine) and of being a felon in possession of

ammunition. See

(a)(1);

(g)(1).

The district court sentenced him to serve a thirty-year term of

immurement, to be followed by a twelve-year term of supervised

release.

Following the passage of the First Step Act,

Stat. 5194, the appellant moved to have his sentence

reduced. On October 24, 2019, the district court granted that

motion, resentencing him to a prison term of eighteen years (which

was effectively a sentence of time served). On November 1, 2019,

the appellant began serving his twelve-year term of supervised

release under several conditions — among them, that he not commit

any federal, state, or local crime.

On March 17, 2021, United States Probation Officer Kara

Lightowler paid the appellant an early morning visit at his home

- 2 - in Quincy, Massachusetts, where he resided with his longtime

girlfriend, Nicola Clark, and their children. Lightowler

testified that the appellant greeted her when she arrived, and

they made small talk for a few moments before she asked him to

provide a urine sample for a routine toxicology screening. While

he went to the bathroom, Clark emerged from the bedroom and

appeared — according to Lightowler — to be in a state of some

distress. Clark indicated that she wanted to speak privately with

Lightowler, mouthing the words silently in apparent fear of the

appellant overhearing their exchange. Lightowler gave Clark her

business card.

When the appellant returned from the bathroom,

Lightowler, sensing tension within the home and concerned for her

own safety, asked if she could speak with him outside. There, the

appellant told her that his relationship with Clark had become

strained and that he wished to move out of the home. Lightowler

informed him that the probation office would need to be apprised

of such a move. Their conversation then turned to more quotidian

affairs. Once Lightowler left the residence, she called and

messaged Clark, but received no response.

Not long thereafter, Clark called 911, requesting

emergency police assistance. She said that the appellant was

involved in illegal activity — specifically, drug dealing — and

that he had two weapons, possibly guns, at least one of them stowed

- 3 - in a black bag. She also said that she had been trying for some

time to get him to leave the home and that when she had attempted

to move his belongings out of the home that morning, he pushed

her. She exhorted the police to come quickly as she suspected

that he was hiding the weapons and drugs as she spoke. She also

asked that the officers withhold from him that she was the one who

had called 911, saying, "I'm scared. I don't want nothing to

happen to me. So don't let him know."

Officer Christian Donovan of the Quincy Police

Department was among those who responded to the 911 call. He

testified that when he and the other officers arrived, the

appellant was standing beside his car, which was parked with its

tailgate open by the front porch at the top of the driveway. While

the other officers spoke with the appellant, Donovan entered the

home to speak with Clark.

Inside, Clark's teenage son was consoling her, telling

her to cooperate with the police. According to Donovan, Clark was

at first hesitant to speak, saying that she did not want the

appellant to see her talking with police officers. Even so, she

proceeded to tell him that she and the appellant had argued that

morning both about money that he allegedly had taken from her and

about her desire that he leave the home. She said that during the

argument, the appellant had shoved her approximately five times.

When she picked up the phone to call 911, he began to gather his

- 4 - belongings as a prelude to leaving the residence. At that time,

she saw him pick up a small black rectangular pouch from which

protruded the butt-end of a gun.

The police arrested the appellant on charges of domestic

assault and battery based on the allegation that he had shoved

Clark during their argument. Donovan then searched the area around

the house with a dog specially trained to detect explosives and

ballistics. After finding nothing in the backyard or street,

Donovan led the dog to the front porch and the rear of the

appellant's vehicle. Nearby, the appellant — upbeat and talkative

despite being under arrest — was waiting to be taken to the police

station. Upon seeing the dog, he said (with a smile) that he did

not have any drugs. But when Donovan told him that the dog was

trained to detect explosives and ballistics rather than narcotics,

the appellant was crestfallen. The dog then alerted to a scent

near the front porch, upon which the officers found a tackle box.

Within that box were two black rectangular leather pouches, each

containing a loaded semiautomatic pistol.

After the search, Donovan questioned Clark further about

her allegations of domestic violence. This questioning included

queries about whether the appellant had assaulted Clark in the

past. According to Donovan, Clark responded that two months

before, she and the appellant had been arguing in the kitchen when

their son came to her defense. Enraged, the appellant grabbed a

- 5 - frying pan from the stove and swung it, missing the son but

striking Clark. She told Donovan that she had not reported the

incident at the time because she had not wanted the appellant to

be sent back to prison.

The appellant called Lightowler to tell her of the

arrest. The appellant stated that Clark had reported to police

that he had hit her and that a gun had been found at his house.

He did not say to whom the gun belonged.

Lightowler also spoke on the phone with Clark (who was

concerned that the appellant's family would blame her for his

renewed incarceration). She mentioned to Lightowler, presumably

while describing the events leading up to the appellant's arrest,

that she had seen the appellant carry a black pouch with him as he

gathered his belongings.

On the following day, a criminal complaint was lodged

against the appellant, charging him with weapons and assault

offenses under state law. Lightowler reported those charges to

the district court and petitioned for the issuance of an arrest

warrant. The district court issued the warrant. Revocation

proceedings were then commenced.

At the revocation hearing, the government did not call

Clark as a witness and instead relied upon the testimony of

Lightowler and Donovan to present her statements. The appellant

objected to the admission of such hearsay evidence on the ground

- 6 - that Clark's statements were unreliable: he identified what he

viewed as factual inconsistencies in her statements; he asserted

that she offered her statements to police out of spite due to his

meretricious relationships with other women; and he drew attention

to discrepancies between Clark's statements to police and her

testimony before the state grand jury (where she minimized the

physical confrontation between her and the appellant on March 17

and equivocated when asked about the firearms she saw that day).

But at no time during the final revocation hearing did the

appellant object on the ground that the admission of the statements

violated his right to confront and cross-examine the witness.

Based on the testimony of Lightowler and Donovan, as

well as other evidence presented at the hearing, the district court

found by a preponderance of the evidence that the appellant was

guilty of several crimes, including possession of a firearm without

a license, see

(h)(1); improper

storage of a firearm, see

ch. 140, § 131L(a); and assault with

a dangerous weapon, see id. ch. 265, § 15B(b). The district court

also found the appellant guilty of being a felon in possession of

a firearm in violation of

(g). The court then

revoked the appellant's term of supervised release and sentenced

- 7 - him to a new three-year term of immurement.1 This timely appeal

ensued.

II

In a revocation hearing, a court is not bound by the

Federal Rules of Evidence. See Fed. R. Evid. 1101(d)(3). By the

same token, a releasee is not afforded a Sixth Amendment right to

confront adverse witnesses. See United States v. Fontanez,

(1st Cir. 2017). Hearsay evidence may thus be

admitted as long as it is reliable. See United States v. Portalla,

(1st Cir. 1993). Even so, a releasee

retains a limited right under the Federal Rules of Criminal

Procedure to confront an adverse witness unless "the court

determines that the interest of justice does not require the

witness to appear." United States v. Mulero-Díaz,

(1st Cir. 2016) (quoting Fed. R. Crim. P. 32.1(b)(2)(C)). To make

such a determination, a court must balance a releasee's right to

confront the witness with "what good cause may exist for denying

confrontation in a particular instance." Fontanez,

. And constructing that balance requires weighing the

The government alleged that the appellant violated two 1

conditions of his supervised release — that he not commit another crime and that he not associate with other convicted felons. The district court revoked his supervised release based solely on a violation of the former condition. Because the government does not cross-appeal the district court's determination that it failed to prove the alleged "association" violation, we do not address that violation here.

- 8 - reliability of the hearsay statement against the reasons proffered

by the government for the witness's absence. See

The appellant challenges the revocation of his release

on the ground that the district court admitted hearsay evidence

without conducting the balancing required by Rule 32.1(b)(2)(C).

Specifically, he contends that the district court erred both in

finding the hearsay statements reliable and in failing to state

explicitly why the interest of justice excused the appearance of

the witness. We address those contentions one by one.

A

As the appellant objected below to the reliability of

the statements, his first challenge is properly preserved. We

therefore review the district court's reliability determination

for abuse of discretion. See United States v. Taveras,

(1st Cir. 2004). Under that standard, we examine the

district court's legal conclusions de novo, its findings of fact

for clear error, and its judgment calls with considerable

deference. See United States v. Canales-Ramos,

(1st Cir. 2021).

A hearsay statement may be deemed reliable when it is

supported by sufficient "indicia of reliability." United States

v. Marino,

(1st Cir. 2016). We have held that such

indicia may include the detail of the statement, the declarant's

consistent recounting of the statement on different occasions, or

- 9 - other evidence independently corroborating the statement. See

id.; United States v. Rondeau,

(1st Cir. 2005).

Of course, "indicia of reliability" is a protean concept, and the

list provided is non-exhaustive. Marino,

.

Relatedly, we are mindful that determinations of credibility are

the province of the factfinder such that we are "loath to upset"

those findings "based on a cold record." United States v. Whalen,

(1st Cir. 1996).

1

After a careful review of the record, we find ample

evidence to support the hearsay statements tying the appellant to

the guns found at the scene. In her statements to both Lightowler

and Donovan, Clark was consistent in her description of the black

leather pouches in which the guns were encased. Those descriptions

were consonant with her statements to the 911 dispatcher that she

believed the appellant had two weapons with him, one of them in a

black bag. And as excited utterances, those statements to the 911

dispatcher were excepted from the rule against hearsay. See United

States v. Estes,

(1st Cir. 2021) (holding that

statements of distressed declarant made in 911 call relating to

"startling event or condition" was admissible under excited-

utterance exception (quoting Fed. R. Evid. 803(2))). Nor was this

all: the statements were corroborated by the fact — as noted by

the district court — that the guns were found in black pouches on

- 10 - the appellant's porch, mere "feet from where he was standing when

police arrived at the scene." United States v. Franklin,

, 403 (D. Mass. 2021). Taken together with the

appellant's change in demeanor when informed that the dog brought

to the scene was trained to detect ballistics, there were

sufficient indicia of reliability to vouch for Clark's statements.

The appellant demurs. He asserts that Clark's

statements were sparked by her jealousy over his infidelities with

other women; that they were inconsistent with, and contradicted

by, her 911 call (which reported the existence of drugs not

afterward found at the scene); and that she recanted her statements

when testifying before the state grand jury.2

We find those arguments unpersuasive. This is not a

case in which the hearsay statements of an aggrieved partner were

uncorroborated by independent evidence. Nor does the fact that

Clark reported in her 911 call that the appellant was in possession

of drugs, which were not afterward found by police, contradict her

statements about the guns: after all, she conveyed to the 911

2The appellant also argues, somewhat confusingly, that the 911 call contradicts the domestic violence allegations because Clark told Donovan that she called 911 after the appellant shoved her repeatedly, whereas Clark's statements to the 911 dispatcher focused on the appellant's alleged drug dealing and mentioned domestic violence only in passing. But Clark voiced domestic violence allegations of a similar nature to both Donovan and the 911 dispatcher, which would appear to corroborate, not contradict, her statements.

- 11 - dispatcher her suspicion that the appellant was attempting to hide

the drugs while she called. And even though it is true that Clark

told the state grand jury that she had not seen the appellant with

a black leather pouch, her answer to the prosecutor's question was

curtailed. Under the circumstances, that testimony does not

necessarily compromise the reliability of her earlier statements.

The record shows that she wished to conceal the fact that she had

reported the appellant to police because she was fearful of the

consequences of having done so. Viewing her testimony in that

light, her statements at the scene could reasonably be deemed

reliable, notwithstanding her later grand jury testimony.3

There is one loose end. Although not directly pertinent

to the reliability of Clark's statements, the appellant suggests

that the district court erred in failing to consider the

possibility that the guns belonged to Clark, her friends, or one

Clark also told the grand jury that the March 17 fight had 3

been over another woman and that it had not "turn[ed] physical" but, rather, "was more like trying to get hands off [] belongings and stuff." The appellant appears to argue that the discrepancies between that testimony and her statements to Donovan throw shade on Clark's credibility generally, weakening the reliability of the admitted statements. But it is not clear to us how that testimony bears upon a reliability assessment of the statements about the guns, which, as discussed, were independently corroborated by other evidence. Nor does the testimony necessarily detract from Clark's statements about the frying-pan assault. She was not asked about that assault before the grand jury, yet her grand jury testimony still implies that some physical confrontation occurred during the March 17 fight (albeit of lesser intensity than she had initially conveyed).

- 12 - of the children. But the district court was not obligated to

indulge in such speculation. A finder of fact need not countenance

an implausible interpretation of the facts over a probable one.

Cf. United States v. Weidul,

(1st Cir. 2003) ("[A]

district court's choice between two plausible competing

interpretations of the facts cannot be clearly erroneous.").

To say more would be pointless. The bottom line is that

we discern no error, and certainly none that is clear, in the

district court's crediting of Clark's statements about the

appellant's possession of the guns.

2

Clark's statements about the frying-pan assault stand on

shakier footing, and the appellant's contention that those

statements are not supported by other evidence has a patina of

plausibility. He contends that the statements are unreliable

because there was no evidence of injuries from the assault, and

Clark never before reported any incident of domestic violence.

Moreover, Donovan never asked the son — despite his presence at

the home on March 17 — for his statement about the incident.

Finally, an indictment on the assault with a deadly weapon charge

was never returned in state court. Even taking all of these facts

into account, though, the appellant fails to show that the district

court abused its discretion.

- 13 - To be sure, much of what the appellant argues is missing

from the record is the sort of evidence that would have provided

compelling substantiating evidence.4 Yet, that lack does not

diminish the force of the corroboration that is present. The

specificity of Clark's description of the incident weighs heavily

in favor of its reliability. She did not merely offer a vague

allegation of violence but, rather, recounted a detailed incident

that corresponded to family dynamics observed by Lightowler and

Donovan on March 17. Lightowler described the relationship between

Clark and the appellant as "strained" such that she feared for her

own safety while in the home; and Donovan observed that, upon his

arrival, the son appeared to be protective of his mother,

encouraging her to speak with the police. Moreover, the context

of the statement bolsters its reliability. Clark did not

spontaneously volunteer her account of the assault; it was elicited

from her when Donovan asked follow-up questions in response to her

allegations of domestic violence from that very morning. Given

that evidence, the district court did abuse its discretion in

finding Clark's statements reliable. In the end, we must leave

the district court's "findings of fact or conclusions drawn

We do not include within this generality the absence of an 4

indictment. After all, the lack of an indictment is not necessary as a releasee can be found to have committed a crime in violation of the terms of his conditional release even if he has not "been the subject of a separate federal, state, or local prosecution for such conduct." USSG §7B1.1, cmt. n.1.

- 14 - therefrom" undisturbed "unless, on the whole of the record, we

form a strong, unyielding belief that a mistake has been made."

United States v. Padilla-Galarza,

(1st Cir. 2021)

(quoting Cumpiano v. Banco Santander P.R.,

(1st

Cir. 1990)). We arrive at no such conviction here.

B

The appellant also argues that the district court failed

to state explicitly its findings as to the availability of the

witness (Clark) and then balance those findings against the

reliability of the statements, as required by Rule 32.1(b)(2)(C).

As a threshold matter, we must determine whether the appellant

forfeited this challenge by not raising it before the district

court.

The appellant argues that he preserved the issue by

objecting under Rule 32.1 to the lack of live witnesses at his

preliminary revocation hearing. That argument fails, however,

because it is incumbent upon an appellant to voice his objection

at the appropriate time. See Fed. R. Crim. P. 51(b); cf. Ira

Green, Inc. v. Mil. Sales & Serv. Co.,

(1st

Cir. 2014) (holding that party's failure to request polling of

jury after report of verdict waived right notwithstanding party's

earlier request); United States v. Meadows,

(1st

Cir. 2009) (holding that objection to jury instruction during

- 15 - charge conference, not renewed after charge delivered, failed to

preserve appellate challenge).

Holding the appellant to this sequencing is particularly

appropriate here, given the differences between preliminary and

final revocation hearings. The preliminary revocation hearing,

held before a magistrate judge, probes only whether there is

"probable cause to believe that a violation occurred." Fed. R.

Crim. P. 32.1(b)(1)(A); see United States v. Colón-Maldonado,

(1st Cir. 2020). At that stage of the proceedings, the

defendant's limited confrontation right, under Rule

32.1(b)(1)(B)(iii), is available to him only "upon request." In

contrast, at the final revocation hearing, the district court must

determine, using a preponderance-of-the-evidence metric, whether

the alleged violation occurred. See Colón-Maldonado,

. In that setting, a defendant is afforded a more robust right

under Rule 32.1(b)(2)(C) that "entitle[s]" him to appear before

the court, to present evidence, and to confront adverse witnesses

unless the interest of justice permits their absence. It does not

follow, then, that because the appellant advanced an objection at

the preliminary hearing under Rule 32.1(b)(1)(B)(iii), he

preserved the challenge he raises now under Rule 32.1(b)(2)(C).

That objection was heard before a different judge, within a

different procedural context, under the auspices of a separate

provision of the Criminal Rules, such that it cannot fairly be

- 16 - said that the objection was "sufficiently specific to call the

district court's attention" to the error asserted here. United

States v. Sosa-González,

(1st Cir. 2018) (quoting

United States v. Soto-Soto,

, 448 n.1 (1st Cir. 2017)).

The appellant has a fallback position. He argues that

— at the final revocation hearing — he preserved his challenge as

to availability by objecting to the reliability of the statements.

In support, he invokes our decision in Colón-Maldonado, in which

we found (within the context of that case) that the appellant's

objections to reliability, "even if [they] failed to invoke Rule

32.1's limited confrontation right," nonetheless preserved the

appellant's challenge that the admitted statements were too

unreliable to prove that he violated the terms of his release.

n.7. That ruling, though, tells us nothing as to

whether an objection to reliability below preserves a challenge to

availability on appeal.5 And the federal rules dictate otherwise.

To preserve a claim of error, a party must object to the district

court's action in a timeous manner and inform the court of the

5 On a related note, the appellant asserts that because conducting a Rule 32.1(b)(2)(C) balancing test is mandatory, no objection at all is required to preserve an appellate challenge. Such an assertion can be quickly dispatched: as discussed, a defendant is entitled to a limited confrontation right under Rule 32.1(b)(2)(C), but simply having that right does not excuse the appellant's failure to assert it. Cf. United States v. Rodríguez,

(1st Cir. 2013) (holding that "even an error with constitutional implications" is subject to plain-error review when not preserved).

- 17 - "grounds for that objection." Fed. R. Crim. P. 51(b). This

"contemporaneous-objection rule" prevents a party from

"sandbagging" the court — that is, "remaining silent about his

objection and belatedly raising the error only if the case does

not conclude in his favor." Puckett v. United States,

(2009). To permit such hedging of arguments would

undercut the principle that the district court — which "is

ordinarily in the best position to determine the relevant facts

and adjudicate the dispute" — should be afforded an opportunity to

consider and resolve the parties' objections. Id.; see United

States v. Fox,

(1st Cir. 1989) ("If the objection

now raised had been formulated below there would have been an

opportunity for the court to consider it and rule accordingly.").

Here, the appellant objected to the reliability of the

hearsay statements, so the district court responded by

articulating its reasons for finding the evidence reliable. Now

— after an unfavorable ruling below — the appellant marshals an

availability argument that he previously kept in reserve, and, in

doing so, submits that the district court erred in failing to

address an argument never presented to it. That is precisely the

sort of stratagem anticipated by the contemporaneous-objection

rule. We see no reason to depart from the rule and thus find that

the appellant forfeited his right to challenge the district court's

determination concerning the availability of the witness. Our

- 18 - review of that challenge is, therefore, only for plain error. See

United States v. Duarte,

(1st Cir. 2001).

"The plain error hurdle is high." United States v.

Hunnewell,

(1st Cir. 1989). Under that demanding

standard, the appellant must show "(1) that an error occurred (2)

which was clear or obvious and which not only (3) affected the

defendant's substantial rights, but also (4) seriously impaired

the fairness, integrity, or public reputation of judicial

proceedings." Duarte,

. "The party asserting plain

error bears the burden of persuasion" as to all four of these

elements. United States v. Pabon,

(1st Cir. 2016);

see United States v. Pinkham,

(1st Cir. 2018).

The appellant has made no attempt to bear his burden

under plain-error review, hazarding all on his contention that he

properly preserved the issue. He has therefore waived his

challenge here. See Pabon,

.

But even if we were to overlook this waiver, there is no

plain error to be found. To begin, we are not persuaded that an

error occurred because the record indicates that the district court

implicitly conducted the balancing required by Rule 32.1(b)(2)(C).

The district court expressed its reasons for finding the statements

reliable (ostensibly in response to the appellant's arguments to

the contrary) and cited the appropriate legal standard in its

written order. See Franklin, 560 F. Supp. 3d at 405 (citing United

- 19 - States v. Bueno-Beltrán,

(1st Cir. 2017)

(rehearsing standard for admission of hearsay evidence under Rule

32.1(b)(2)(C))). In addition, there was a factual basis from which

to conclude that the interest of justice did not require Clark to

testify in person, as independent evidence bolstered the

reliability of the statements and suggested that Clark — a victim

of domestic violence — would have feared for her safety if called

to testify. We see no reason to presume (absent evidence to the

contrary) that an experienced judge, familiar with the legal and

procedural contours of revocation proceedings, failed to conduct

the balancing test that is a matter of routine under such

circumstances.6

And — even if we were to assume that the district court

erred by failing explicitly to conduct that balancing on the record

— any such error was not clear or obvious. Such an error must be

"indisputable in light of controlling law." United States v.

6 The appellant argues for the first time in his reply brief that even if the district court implicitly conducted a Rule 32.1(b)(2)(C) balancing, it still abused its discretion because Clark's supposed fear of the appellant had not prevented her from testifying before the state grand jury. According to the appellant, the government's reluctance to call her as a witness stemmed from a concern that she would recant her earlier statements, not some other good cause. Whatever the merits of this argument — and we do not imply that any exist — it has been waived as it was raised for the first time in the appellant's reply brief. See Sandstrom v. ChemLawn Corp.,

(1st Cir. 1991) (explaining that arguments raised for the first time in appellant's reply brief are deemed waived). And insofar as it relates to the first element of our review for plain error, we find it insufficient to prove that the district court wrongly applied Rule 32.1(b)(2)(C).

- 20 - Mulero-Vargas,

(1st Cir. 2022) (internal

quotation marks omitted) (quoting United States v. Rabb,

(1st Cir. 2021)). We have never held that a district court

must explicitly state its reasons for finding that the interest of

justice militates against the appearance of a witness, even when

the parties do not otherwise object to the witness's absence. Nor

is there uniform agreement among the other courts of appeals as to

whether an explicit balancing under Rule 32.1(b)(2)(C) is required

under all circumstances. Compare United States v. Lloyd,

(3d Cir. 2009) ("[W]e reject a per se rule that a district

court's failure to explicitly address cause amounts to reversible

error in all cases.") with United States v. Jordan,

(7th Cir. 2014) (holding that Rule 32.1(b)(2)(C) "requires a

district court in a revocation hearing explicitly to balance the

defendant's constitutional interest in confrontation and cross-

examination against the government's stated reasons for denying

them"). It cannot be said, then, that the district court's

implicit balancing was "contrary to existing law" such that it was

a clear or obvious error. Rabb,

.

III

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

- 21 -