FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
RHODE ISLAND Hon. William E. Smith, U.S. District Judge Hon.
Lincoln D. Almond, U.S. Magistrate Judge
William T. Murphy on brief for appellant.
Stephen G. Dambruch, United States Attorney, and Donald C.
Lockhart, Assistant United States Attorney, on brief for
Barron, Circuit Judge, Souter, [*] Associate Justice, and Selya,
Carlos Rodriguez claims that the district court committed
reversible error when it relied on previously excluded
evidence to find that he violated a condition of his
supervised release. He also claims that the district court
had insufficient evidence to find a second violation.
Concluding, as we do, that any error was harmless and that
the evidence was sufficient to sustain both findings, we
briefly rehearse the relevant facts and travel of the case.
On February 10, 2011, the defendant entered a guilty plea to
one count of distribution of cocaine base (crack cocaine), in
violation of 21 U.S.C. § 841(a)(1). The district court
imposed an 84-month incarcerative term, to be followed by a
three-year supervised release term. The defendant completed
his prison sentence and began his supervised release.
16, 2017 (roughly nine months into his supervised release
term), the defendant submitted a urine sample to his
probation officer. The sample tested positive for
amphetamines. Even though the defendant denied using
amphetamines, a follow-up test confirmed their presence.
August 22, 2017, two detectives employed by the Providence,
Rhode Island police department were in an unmarked car,
looking for street-level narcotics activity. They observed
what appeared to be an ongoing drug deal. When the
participants drove away, both of their vehicles were followed
by police officers. The detectives stopped one car and asked
the driver, later identified as Jessica Thibault, to exit her
vehicle. Thibault immediately volunteered, "it's in
my bra" and proceeded to retrieve six bags of heroin
from her bra. Other officers stopped the second car and
arrested the defendant (who was driving). They seized a set
of keys and $100 in cash from his person.
in part on information supplied by Thibault, police officers
located what they believed to be the defendant's
residence: an apartment on Covell Street. Their suspicions
were bolstered when they saw the defendant's name on the
mailbox assigned to the third-floor flat. Using a key found
on the defendant's person, the officers entered the
apartment and conducted a protective sweep. They saw various
items of drug paraphernalia in plain view.
detectives then sought and obtained a warrant to search the
apartment. The search revealed a potpourri of drugs
(including cocaine, heroin, marijuana, and alprazolam),
together with additional drug paraphernalia. The search also
revealed several items linking the defendant to the
apartment, such as a utility bill in the defendant's name
and photographs of the defendant with two children.
federal probation officer was monitoring the defendant's
supervised release, and the police told her what had
happened. In short order, the probation officer sought and
received a federal warrant for the defendant's arrest.
The associated complaint charged the defendant with two
separate violations of supervised release conditions:
possession of narcotics with intent to distribute (count 1)
and unlawful use of amphetamines (count 2). It is undisputed
that these acts, if proved, would violate conditions of the
defendant's supervised release.
November 2, 2017, the defendant appeared before a magistrate
judge for a supervised release revocation hearing.
See Fed. R. Crim. P. 59. The government offered
testimony from one of the Providence police detectives who
had witnessed the drug deal and from the probation officer.
The detective testified as to what he had seen during the
August 22 incident and described this observed behavior as
consistent with street-level narcotics activity. He also
described the search of the apartment and what it had
revealed. The magistrate judge also allowed the detective to
testify, over objection, about out-of-court statements made
by Thibault immediately after the incident, reserving an
ultimate decision as to admissibility.
probation officer's testimony was directed mainly to
count 2. She testified that the defendant had provided a
urine sample that tested positive for amphetamines. Some of
her testimony, though, related to count 1: she confirmed that
she had made home visits at the defendant's residence on
Covell Street, where ...