United States v. Franco: Reinforcing Harmless-Error Doctrine and Clarifying the Non-Hearsay Use of Identification Statements in Supervised-Release Revocation Hearings

Introduction

In United States v. Franco (No. 23-7686-cr, 2d Cir. May 9, 2025) the United States Court of Appeals for the Second Circuit affirmed the Southern District of New York’s decision revoking Miguel Franco’s supervised release, imposing 21 months’ imprisonment, and ordering a new three-year term of supervision. Although issued as a “Summary Order”—and therefore without formal precedential effect under Local Rule 32.1.1—the opinion is rich with reasoning that will inevitably guide district courts and counsel. Two doctrinal threads predominate:

The continued vitality of harmless-error review where contested counts run concurrently with unchallenged, longer sentences.
The distinction between hearsay and non-hearsay contextual evidence in supervised-release revocation proceedings, and the limited role of Federal Rule of Criminal Procedure 32.1(b)(2)(C)’s “good-cause” requirement.

Franco’s appeal raised two issues:

Whether an assault committed while he was detained on supervised-release violations occurred “during” his term of supervised release, or whether the term was tolled under 18 U.S.C. § 3624(e).
Whether the district court erred in admitting alleged hearsay—identification statements made by a confidential informant and an assistant district attorney—without establishing good cause for denying confrontation.

Summary of the Judgment

The Second Circuit (Judges Parker, Lee, and Kahn) affirmed, holding:

Even assuming arguendo that the assault violation should have been dismissed because the supervised-release term was tolled, any error was harmless since the 10-month sentence on that violation ran concurrently with longer, unchallenged sentences.
The challenged identification statements were not hearsay because they were introduced to provide context for law-enforcement investigative steps, not for their truth. Alternatively, any erroneous admission was harmless given overwhelming video and physical evidence.

Analysis

1. Precedents Cited and Their Influence

United States v. Edwards, 834 F.3d 180 (2d Cir. 2016) – establishes abuse-of-discretion review for findings of supervised-release violations.
United States v. Williams, 443 F.3d 35 (2d Cir. 2006) – defines the Confrontation Clause’s limited reach in revocation hearings and articulates the Rule 32.1 balancing test.
United States v. Rivera, 282 F.3d 74 (2d Cir. 2000) – foundational harmless-error case where an unchallenged life sentence rendered error on other counts inconsequential.
United States v. Jackson, 658 F.3d 145 (2d Cir. 2011) & United States v. Miller, 246 F.2d 486 (2d Cir. 1957) – reinforce that concurrent, equal or shorter sentences moor the harmless-error analysis.
United States v. Slaughter, 386 F.3d 401 (2d Cir. 2004) & United States v. Rea, 958 F.2d 1206 (2d Cir. 1992) – set out parameters for admitting statements for non-hearsay purposes and for assessing harmlessness where hearsay might have slipped in.

The Court leaned heavily on Rivera and its progeny to dispose of the tolling argument without deciding the novel statutory question. Similarly, Slaughter anchored the non-hearsay rationale, while Rea supplied the “fair assurance” harmless-error framework. Collectively, these cases allowed the panel to sidestep unresolved statutory nuance yet still affirm the lower court.

2. Legal Reasoning

a. Tolling Under § 3624(e)

Section 3624(e) provides that supervised release “does not run during any period in which the person is imprisoned in connection with a conviction.” Franco argued that being held on alleged violations of supervised release counts as imprisonment “in connection with” the original conviction, thus tolling the term. The panel acknowledged that “this specific issue remains unresolved in our Circuit” and offered no definitive statutory construction. Instead, it assumed—arguendo—that the district court may have erred, then applied harmless-error review because dismissing the assault violation would not shorten the aggregate sentence. This approach demonstrates the judiciary’s preference for resolving appeals on grounds other than unsettled statutory interpretation when an alternative dispositive path exists.

b. Hearsay and Rule 32.1(b)(2)(C)

Unlike a trial, a revocation hearing is a hybrid administrative-judicial proceeding. The Confrontation Clause does not directly apply (Williams), but Rule 32.1 ensures basic reliability by granting a right to confront adverse witnesses unless the court finds “good cause” not to. The panel’s analysis unfolded in two steps:

Classification of the statements. Because the informant’s and A.D.A.’s remarks were offered to explain investigative actions, they fell outside the definition of hearsay (Fed. R. Evid. 801(c)).
Alternative harmlessness. Even if the statements were deemed hearsay and admitted without the necessary “good cause” showing, overwhelming independent evidence—the court’s own viewing of video footage— rendered any error non-prejudicial.

3. Impact on Future Litigation

Harmless-Error Renewed. Franco fortifies the Second Circuit’s consistency in deeming errors harmless where concurrent equal-or-greater sentences exist. Counsel must reckon with this when crafting appellate strategy—eliminating concurrent, shorter counts rarely yields tangible relief.
Tolling Question Shelved—but Flagged. Because the Court expressly noted that the § 3624(e) issue “remains unresolved,” litigants can expect future challenges until the Circuit (or Congress) clarifies whether detention for alleged release violations tolls supervision.
Non-Hearsay Context Evidence. Law-enforcement testimony describing identification leads will more readily survive hearsay objections so long as offered for context, not the truth. Defense counsel should thus focus on Rule 403 prejudice arguments if direct hearsay challenges falter.
Rule 32.1’s Good-Cause Analysis. While Franco minimizes its necessity where statements are non-hearsay, district courts are implicitly reminded to articulate good cause when they do rely on hearsay that materially affects the revocation decision.

Complex Concepts Simplified

Supervised Release: A period of community supervision imposed after imprisonment, akin to probation but distinct in that it follows a custodial sentence and is overseen by the U.S. Probation Office.
Tolling (§ 3624(e)): “Tolling” pauses the running of supervised release. If a defendant is “imprisoned in connection with” another conviction (usually a new crime) for more than 30 days, the supervision clock stops until release.
Hearsay: An out-of-court statement offered to prove the truth of what it asserts. Statements offered for other purposes—such as explaining investigative conduct—are not hearsay.
Harmless Error: An error that does not affect the outcome or substantial rights of the parties. Appellate courts will not reverse if they are convinced the error made no difference to the judgment.
Concurrent Sentences: Multiple sentences served at the same time. If one sentence is invalidated but runs concurrently with a longer, valid sentence, the overall time in custody may remain unchanged.

Conclusion

United States v. Franco may lack formal precedential status, yet it crystallizes two practical teachings for criminal practitioners within the Second Circuit: (1) the scope of harmless-error review where concurrent sentences are involved, and (2) the admissibility of identification statements as non-hearsay contextual evidence in revocation settings. While the lingering statutory ambiguity over tolling under § 3624(e) persists, Franco signals that appellate relief will be elusive absent prejudice tied to sentencing exposure. Going forward, defense counsel must not only raise doctrinal arguments but also illustrate concrete sentencing consequences, and prosecutors will likely leverage Franco to admit investigative-context testimony without live witnesses. Ultimately, the case underscores the judiciary’s strong preference for outcome-oriented, pragmatic adjudication in the supervised-release landscape.