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Tuesday, May 02, 2006

Ind. Decisions - 7th Circuit issues two Indiana rulings today

In USA v. Kelley, Lamond (ND Ind., James T. Moody, Judge), a 10-page opinion, Circuit Judge Sykes writes:

Following a final revocation hearing, the district court found Lamond Kelley guilty of battery, aggravated assault, and unlawful use of a weapon—all Grade A violations1 of the conditions of his supervised release. These Grade A violations combined with Kelley’s criminal history category of IV to produce an advisory guidelines sentencing range of 24-30 months’ incarceration, U.S.S.G. § 7B1.4(a), which was limited to 24 months by operation of 18 U.S.C. § 3583(e)(3). The district court revoked Kelley’s supervised release and sentenced him to 24 months’ imprisonment. Had the court held Kelley responsible only for the lesser Grade B and C violations that he admitted, his advisory sentencing range would have been 12-18 months.

On appeal, Kelley argues the district court could not have found him guilty of the Grade A violations without the hearsay-laden testimony and police report of the investigating officer. He argues that the court’s consideration of that hearsay—over his timely objection—violated his Sixth Amendment right of confrontation as recently construed in Crawford v. Washington, 541 U.S. 36 (2004), and his more limited due process right of confrontation as applicable to revocation proceedings under Morrissey v. Brewer, 408 U.S. 471 (1972).

We affirm. Supervised release revocation hearings are not criminal prosecutions, so the Sixth Amendment right of confrontation and Crawford do not apply. Kelley’s due process rights were not violated because the hearsay evidence at issue was substantially reliable and its admission did not undermine the fundamental fairness of the revocation hearing.

In Smith, Kathy v. Potter John E. (SD Ind., Sarah Evans Barker, Judge), a 22-page opinion, Circuit Judge Coffey writes:

On November 27, 1998, Kathy Smith was removed from her position as a mail clerk for the United States Postal Service (“USPS” or “Postal Service”) due to “unacceptable misconduct”. Shortly thereafter, Smith filed a grievance with her union, the American Postal Workers Union (“APWU”), claiming that the decision to dismiss her was based on the color of her skin rather than the quality of her work. After a number of adverse decisions and related appeals, Smith and the APWU submitted their dispute to arbitration, which was concluded in favor of the USPS. Not satisfied with this, Smith filed a complaint with the USPS Office of Equal Employment Opportunity (“EEO”) on June 11, 2001, which was denied as untimely. While her appeal of the EEO decision was pending with the Equal Employment Opportunity Commission (“EEOC”),1 Smith filed a complaint in the United States District Court for the Southern District of Indiana under Title VII of the Civil Rights Act of 1964, alleging that her termination from the USPS was a result of sex and/or race discrimination. See 42 U.S.C. §§ 2000e et seq. In response the USPS filed a motion to dismiss, which the district court converted into a motion for summary judgment and granted, holding that Smith had failed to exhaust her administrative remedies. We affirm.

Posted by Marcia Oddi on May 2, 2006 04:28 PM
Posted to Ind. (7th Cir.) Decisions