Brothers v. United States Parole, 10th Cir. (1999)

F I L E D
UNITED STATES COURT OF APPEALS
United States Court of Appeals

Tenth Circuit
TENTH CIRCUIT
APR 29 1999
PATRICK FISHER
Clerk
JOHN OSCAR BROTHERS,

v.
Petitioner - Appellant,
UNITED STATES PAROLE

COMMISSION and A. M. FLOWERS,
No. 99-6070
(W.D. Oklahoma)
(D.C. No. 98-CV-548-R)
Respondents - Appellees.
ORDER AND JUDGMENT
Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal.
See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*
John Oscar Brothers appeals from the denial of his 28 U.S.C. 2241
petition in the district court. He challenges the revocation of his parole, arguing
that he was denied the right to confront his alleged victim at his parole revocation
hearing, and that the revocation was arbitrary and capricious because it was based
largely on hearsay evidence. We affirm the denial of Brothers petition because
he has not shown that he requested the alleged victims presence at the hearing,
and because the Commission was entitled to rely on hearsay. Brothers also
challenges the length of the revocation and the requirement that he participate in a
program for alcohol dependency. We reject these challenges for the reasons
stated by the district court and the magistrate judge.
BACKGROUND
At the time of the events at issue here, Brothers had been on parole since
1993 for a kidnapping conviction, based on a 1972 incident in which he and a codefendant abducted and repeatedly raped a 24-year-old woman. His criminal
record also included a 1971 conviction for conspiring to commit rape and a 1974
sodomy conviction for an attack on an inmate with limited mental abilities.
On August 12, 1997, Brothers was arrested for parole violations; on
August 30, 1997, a preliminary interview was held; and on October 20, 1997, the
Parole Commission held a hearing. It revoked Brothers parole on November 21,
-2-
1997. It is from this action, which was affirmed by the National Appeals Board,
that Brothers seeks relief. The district court, adopting the findings of the
magistrate judge to whom the case was referred, denied Brothers petition for a
writ of habeas corpus.
The Parole Commission, evaluating charges of, inter alia, (1) lewd or
indecent proposals or acts as to a child under sixteen; (2) unlawful sexual contact
with a minor; and (3) white slave trafficking, found the following facts, which
were summarized by the Magistrate Judge:
Petitioner was found in the sleeping compartment of his truck with a
twelve-year-old girl whom he had transported from Oklahoma City to
Little Rock. The girl reported to authorities that Petitioner had
kissed her on the mouth, had asked her to sit on his lap, rubbed
her, and had asked if she wanted him to feel me up. [The
evidence] support[s] the conclusion that Petitioner paid the girls
parents $400 to allow him to take the girl with him to South
Carolina.
Appellants App. (App.) at 87. The evidence considered by the Commission
included law enforcement reports and social worker reports, as well as testimony
from Brothers, Frank Bone (an uncle of the alleged victims stepfather), Probation
Officer Tony Budzinsky, and Investigator J. Cothran of the Oklahoma County
Sheriffs Department Metro Child Abuse Unit. Much of this evidence repeated
hearsay statements of the alleged victim.
DISCUSSION
-3-
Brothers claims that the district court abused its discretion in upholding the
Parole Commissions decision to consider hearsay statements of the alleged
victim without producing her at the parole revocation hearing, thereby denying
him due process. Brothers cites
Morrissey v. Brewer , 408 U.S. 471 (1972), which
provides a parolee, at a parole revocation hearing, a due process right to confront

and cross-examine adverse witnesses (unless the hearing officer specifically finds
good cause for not allowing confrontation).
Id. at 489.
A parolees failure to request the presence of an adverse witness prevents

the parolee from claiming that the witnesss absence deprived the parolee of due
process. See Kell v. United States Parole Commn
, 26 F.3d 1016, 1019-20 (10th
Cir. 1994). It is undisputed, and the record shows, that Brothers had two
opportunities to request the presence of adverse witnesses; the record indicates
that he requested only that Tony Budzinsky be present. App. at 9-10, 21-22;
Appellees Supp. App. at 66-67. Although Brothers claims that he requested the
alleged victims presence, the magistrate judge found that this request was not
evident on the record before this Court. App. at 87 n.3. The district court
agreed: [T]he record indicates that the Petitioner was advised of his opportunity
to present and confront witnesses, and that he did not request that the girl
appear. App. at 108.
-4-
Brothers states that his request is on an audio tape of the Revocation

Hearing, currently in possession of the Parole Commission. Appellants Br. at 5,
16. That may be. But it is of no help to us in evaluating Brothers claim. We
will not say that the district court abused its discretion and that the Parole
Commission violated the Constitution, when all Brothers has produced are his
own unsubstantiated allegations.
Brothers claims that he relied on the Parole Commissions representations
that they would present the alleged victim as a witness at the hearing. Even if
that is so (and Brothers cites no record support for this claim either), due process
was not violated, because the testimony and documents upon which the
Commission relied were mutually corroborative and had sufficient indicia of
reliability. See Kell , 26 F.3d at 1019-20.
In a separate argument, Brothers argues that the Commission acted
arbitrarily and capriciously in revoking his parole because it based its decision on
hearsay evidence. He urges that there was simply no factual basis to support any
of the charges against him, and that [u]nless the Parole Commission has deemed
that any kiss that an adult gives a child is some kind of illegal sexual conduct,
there is simply no evidence that Appellant engaged in any illicit or illegal
behavior, sexual or otherwise. Appellants Br. at 21, 22.
-5-
Brothers quarrel with the quality of the evidence against him is meritless.
His argument, distilled to its essence, is that hearsay evidence is not really
evidence at all. Yet, [t]he Parole Commission may consider hearsay evidence.
Kell , 26 F.3d at 1021. That hearsay evidence pointed consistently and
overwhelmingly to the conclusion that Brothers cross-country trip with a twelveyear-old girl was not an innocent undertaking. The factual basis for his parole
revocation is well established by the record.
Brothers raises two other grounds for relief. He contends that the
Commission erred in making an upward departure from the guidelines in 28
C.F.R. 2.20, and that the Commission abused its discretion in directing him to
participate in a program for alcohol dependency. On these points, Brothers has
simply reiterated arguments which the district court and the magistrate judge both
soundly rejected. We also reject them, and for the same reasons.
AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
-6-

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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

JOHN OSCAR BROTHERS,

UNITED STATES PAROLE

(D.C. No. 98-CV-548-R)

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.

See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Morrissey v. Brewer , 408 U.S. 471 (1972), which

provides a parolee, at a parole revocation hearing, a due process right to confront

A parolees failure to request the presence of an adverse witness prevents

, 26 F.3d 1016, 1019-20 (10th

Brothers states that his request is on an audio tape of the Revocation

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