                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-4026
                                   ___________

United States of America,             *
                                      *
           Appellee,                  *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * Eastern District of Missouri
Shauntel Martin, also known as Boo,   *
                                      *
           Appellant.                 *
                                 ___________

                             Submitted: May 11, 2004
                                 Filed: September 10, 2004
                                  ___________

Before MORRIS SHEPPARD ARNOLD, McMILLIAN and MELLOY,
      Circuit Judges.
                         ___________

McMILLIAN, Circuit Judge.

       Shauntel Martin appeals from a final judgment entered in the United States
District Court1 for the Eastern District of Missouri revoking his supervised release
and ordering him to serve twenty-four months in prison. United States v. Martin,
No. 4:00CR3 (E. D. Mo. Nov. 25, 2003) (judgment). For reversal, Martin argues that
the district court erred in permitting the government to present hearsay evidence at
the revocation hearing in violation of Fed. R. Crim. P. 32.1(b)(2)(C) and his

      1
       The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri.
constitutional right to confront witnesses against him. For the reasons discussed
below, we affirm the judgment of the district court.

                                     Background

       On January 28, 2000, Martin pled guilty to conspiracy to transport a minor in
interstate commerce, in violation of 18 U.S.C. § 371. On April 7, 2000, Martin was
sentenced to thirty-seven months in prison and three years of supervised release. On
July 14, 2003, after Martin had served his initial prison term and while he was on
supervised release, his girlfriend, Norma Garcia, reported to the police that she had
been raped and sodomized by Martin. Martin was questioned by the police later that
day. On September 2, 2003, Martin’s probation officer petitioned the district court
to revoke his supervised release, alleging that Martin had committed a Grade A
violation (the rape and sodomy of Garcia) and two Grade C violations: (1) failure to
notify his probation officer within 72 hours of being arrested or questioned by a law
enforcement officer and (2) use of a controlled substance (marijuana), as evidenced
by multiple positive urine test results.2




      2
        Under the provisions of the sentencing guidelines, violations of probation or
supervised release are classified into three grades (Grades A, B, and C). Only Grade
A and Grade C violations are at issue in the present case. The class of Grade A
violations includes any federal, state, or local offense that is a crime of violence and
punishable by a prison term exceeding one year. The class of Grade C violations
includes any federal, state, or local offense punishable by a prison term of one year
or less and any violation of a condition of supervision. If two or more separate
violations have occurred, the most serious violation determines the outcome. If the
sentencing court determines that a Grade A violation has occurred, the court shall
revoke probation or supervised release. If the sentencing court determines that a
Grade C violation has occurred, the court may revoke probation or supervised release
(among other options). See U.S.S.G. §§ 7B1.1, 7B1.3 (2002 Sentencing Guidelines
Manual).

                                          -2-
       On November 25, 2003, the district court held an evidentiary hearing on the
government’s motion to revoke Martin’s supervised release. Martin admitted the
facts underlying the two Grade C violations but denied committing the Grade A
violation. The district court thus proceeded to hear evidence solely on the sexual
assault allegation.

       In presenting its case, the government did not call the alleged victim, Garcia,
as a witness. The government called Dr. Jeffrey Helwig, the emergency room
physician who treated Garcia shortly after the sexual assault allegedly occurred.
Martin objected to the possible admission of hearsay statements by Garcia through
Dr. Helwig’s testimony. The government argued in response that Garcia’s hearsay
statements were admissible through Dr. Helwig’s testimony because of the inherent
reliability of Dr. Helwig’s testimony and because Garcia was unavailable. The
district court overruled Martin’s objection and allowed Dr. Helwig to testify. The
district court reasoned: “[I]f he’s going to be talking about what a patient said to a
doctor at a particular time, . . . I think [it] carries a certain reliability, and so I will
allow . . . those statements.”). See Transcript of hearing at 11 (Nov. 25, 2003).

      According to Dr. Helwig’s testimony, on July 14, 2003, at approximately
8:58 a.m., he treated Garcia in the emergency room of the Northwest Community
Hospital in Arlington Heights, Illinois, after she had been transported there by
ambulance. Garcia appeared “upset and distressed” at the time. She reported that her
boyfriend had pulled her hair, twisted her arm, and forced her to have vaginal and
anal sexual intercourse. Her medical condition was consistent with having been
physically and sexually assaulted as she described, although some aspects of her
condition were also consistent with the fact that she had recently given birth.3


       3
      As the custodian of Garcia’s medical treatment records from her emergency
room visit on July 14, 2003, Dr. Helwig authenticated those hospital records, and they
were admitted into evidence.

                                            -3-
      The government also called as a witness Arlington Heights Police Detective
Richard Sperando. Over Martin’s continuing objection to the admission of any
hearsay statements by Garcia, Sperando was allowed to testify regarding statements
Garcia had made to him when he interviewed her at approximately 4:00 p.m., on
July 14, 2003, at the Arlington Heights police station.

       According to Sperando’s testimony, Garcia was “excited and upset” at the time
of the interview. She reported the following events. During the previous night of
July 13, 2003, Garcia and Martin had gone out drinking and partying. In the early
morning hours of July 14, 2003, she and Martin were returning home, with Martin
driving the vehicle, when they got into an argument. Martin grabbed her by the hair
and pulled her head down into his lap. When they reached their apartment complex,
he dragged her into the apartment. Inside the apartment, he forced her to have vaginal
and anal sexual intercourse. To make him stop, she feigned that she was
hyperventilating. She continued to feign illness and asked Martin to take her to the
hospital. He agreed. Martin drove Garcia to the hospital but, when he got there, he
drove past it. About a mile down the road, she jumped out of the car at a stop light
and ran into a nearby police station. At the time of the interview, Sperando could see
bruises on Garcia’s inner thighs. Garcia further stated that she would not be a witness
against Martin because Martin had ties to a “crime family.” Garcia reported to him
at a later time that Martin’s mother had called her and pressured her not to testify
against Martin. When state criminal charges were brought against Martin arising out
of the incident on July 14, 2003, Garcia was subpoenaed to testify and she showed
up in court, but refused to testify against Martin. The state charges against Martin
were dismissed.

      Sperando further testified that he later questioned Martin at the Arlington
Heights police station on July 14, 2003. According to Sperando, Martin came to the
Arlington Heights police station voluntarily. Martin denied raping Garcia and
claimed that they had engaged in consensual sex until Garcia complained of pain

                                         -4-
from having recently given birth. Martin told Sperando that he had intended to take
Garcia to the hospital, but changed his mind when it appeared that she had fallen
asleep in the car. After Garcia jumped out of the car at a stop light and ran into the
police station, Martin did not assist her further because he did not want to be arrested
for drinking and driving.

      Martin did not testify at the revocation hearing or call any of his own
witnesses. Based upon the evidence before it, the district court ruled as follows:

           Based upon the evidence the Court has heard, I think the
      Government has proved its case by a preponderance of the evidence.

              I think the most persuasive evidence here, and objective evidence,
      is the doctor’s testimony. While I think [defense counsel] does indicate
      the doctor did say that the vaginal injury could possibly be consistent
      with the recent childbirth, the rectal evidence was consistent, as he
      testified, with sexual assault, so even excluding the vaginal injury,
      which I don’t think has to be done, but even if you did that, there’s
      certainly rectal injury.

             There are bruises, both on the thighs and the scratches on the arm
      injury.

            That evidence, I think, is objective. It’s a doctor observing a
      patient which is also consistent with the statements made, so that the
      statements, I think, simply corroborate the physical evidence of the
      victim here.

            And I find that those statements are, as I found earlier, those
      statements are admissible.

            So I think what we do have is forcible sexual assault and I think
      the Government has proved that both with reliable hearsay and with
      objective evidence through the doctor’s testimony. And the other


                                          -5-
      evidence of the police officer corroborates what the objective testimony
      was.

             So on that basis, I believe the Government has proved a Grade A
      violation here, in violation of the general condition that the defendant
      not commit another federal, state, or local crime.

Transcript of hearing at 43.

      Accordingly, the district court revoked Martin’s supervised release. Martin
was ordered to serve an additional twenty-four months in prison. He timely appealed.

                                    Discussion

       Martin argues that the presentation of hearsay evidence at the revocation
hearing, through Dr. Helwig’s and Sperando’s testimony, violated his federal
constitutional rights and Fed. R. Crim. P. 32.1(b)(2)(C). We review questions arising
under the constitution de novo, United States v. Pfeifer 371 F.3d 430, 436 (8th Cir.
2004), but we review the claim of a Rule 32.1(b)(2)(C) violation for an abuse of
discretion. See United States v. Martin, 371 F.3d 446, 449 (8th Cir. 2004) (Martin)
(applying abuse of discretion standard to admissions of out-of-court statements at a
supervised release revocation hearing, under Fed. R. Crim. P. 32.1(b)(2)(C)).

       In Morrissey v. Brewer, 408 U.S. 471, 487-89 (1972), the Supreme Court
discussed the “minimum requirements of due process” applicable in a parole
revocation hearing. The Court held that one of those due process requirements is “the
right to confront and cross-examine adverse witnesses (unless the hearing officer
specifically finds good cause for not allowing confrontation).” Id. at 489; see also
Gagnon v. Scarpelli, 411 U.S. 778, 781-787 (1973) (holding that the same due
process requirements apply in probation revocation proceedings as in parole
revocation proceedings). In Morrissey v. Brewer, 408 U.S. at 489, however, the

                                         -6-
Supreme Court cautioned that a parole revocation hearing should not, for this
purpose, be equated with a criminal trial. In other words, the constitutional standard
applicable in this type of post-conviction revocation hearing will sometimes permit
the admission of evidence that would otherwise be inadmissible in a criminal
prosecution. Id. (“[T]he process should be flexible enough to consider evidence . .
. that would not be admissible in an adversary criminal trial.”).4

      This limited due process right to confront and cross-examine adverse witnesses
in a revocation hearing is codified in Fed. R. Crim. P. 32.1(b)(2)(C), which
specifically applies to probation and supervised release revocation hearings.
Rule 32.1(b)(2)(C) provides that, in such proceedings, the defendant is entitled to “an
opportunity to appear, present evidence, and question any adverse witness unless the
court determines that the interest of justice does not require the witness to appear.”

        In United States v. Bell, 785 F.2d 640 (8th Cir. 1986) (Bell), this court devised
a test to determine whether evidence has been admitted at a probation revocation
hearing in violation of the applicable limited right to confront and cross-examine
adverse witnesses. This court held that, to comport with Morrissey v. Brewer, the
district court must “balance the probationer’s right to confront a witness against the
grounds asserted by the government for not requiring confrontation.” Bell, 785 F.2d
at 642. In assessing the government’s position, the district court should consider,
first, “the explanation the government offers of why confrontation is undesirable or
impracticable” and, second, “the reliability of the evidence which the government
offers in place of live testimony.” Id. at 643. “[W]here the government demonstrates
that the burden of producing live testimony would be inordinate and offers in its place
hearsay evidence that is demonstrably reliable, it has made a strong showing of good


      4
       For this reason, Crawford v. Washington, 124 S. Ct. 1354 (2004), involving
the contours of the confrontation right in criminal prosecutions, does not apply to the
present case.

                                          -7-
cause.” Id. If these conditions are met, out-of-court statements may be admitted at
a revocation hearing without violating the defendant’s limited confrontation right.
“Where, on the other hand, the government neither shows that presenting live
testimony would be unreasonably burdensome nor offers hearsay evidence that bears
indicia of reliability, the probationer is entitled to confrontation.” Id.

       Since our decision in Bell, we have sometimes held that a district court’s
failure to engage in the balancing analysis set forth in Bell warrants a remand for the
district court to perform that function in the first instance. In United States v.
Reynolds, 49 F.3d 423, 426 (8th Cir. 1995) (Reynolds), for example, this court noted
that the district court never balanced the defendant’s right to confrontation against the
government’s asserted reason for not producing individuals whose hearsay statements
were admitted into evidence at the defendant’s supervised release revocation hearing,
nor did the district court discuss whether the challenged hearsay evidence was
reliable. This court thus concluded: “Since [the district court] had the opportunity to
observe the various witnesses who did testify, it is appropriate that the case be
remanded so that it may undertake the inquiry called for by United States v. Bell.”
Reynolds, 49 F.3d at 426; see also United States v. O’Meara, 33 F.3d 20, 21 (8th Cir.
1994) (per curiam) (where the district court did not engage in the required balancing
before admitting the challenged hearsay evidence, vacating the judgment revoking
supervised release and remanding to the district court with instructions to conduct
another revocation hearing).

       However, where the district court has failed to engage in the balancing analysis
set forth in Bell, but the underlying facts have been sufficiently developed, this court
may itself perform the Bell analysis on review. In United States v. Zentgraf, 20 F.3d
906 (8th Cir. 1994) (Zentgraf), for example, the district court allowed the government
to rely on hearsay evidence at the defendant’s supervised release revocation hearing
and thereafter revoked the defendant’s supervised release without engaging in the
Bell balancing analysis. On appeal, this court held that the government had failed to

                                          -8-
show good cause for denying the defendant the opportunity to confront the adverse
witness at the revocation hearing. Id. at 910. We therefore reversed and remanded,
with instructions to the district court to reconsider the government’s revocation
request without the improper hearsay evidence. See also Martin, 371 F.3d at 446
(performing Bell balancing test on appeal and concluding that district court
improperly admitted out-of-court statements of one individual but did not abuse its
discretion in admitting out-of-court statements of another, and affirming revocation
on basis that properly admitted evidence sufficiently established a violation of the
defendant’s conditions of supervised release).

       In the present case, Martin argues that the government has failed to adequately
explain its failure to present Garcia’s live testimony. Martin points out that, although
Sperando did testify regarding Garcia’s refusal to testify against Martin in state court,
those state court proceedings occurred more than a year before the revocation hearing
and yet, since those state court proceedings, the government had made no attempt to
interview or subpoena Garcia. Moreover, Martin contends, there has been no
showing that Garcia’s alleged reason for refusing to testify (i.e., her fear of retaliation
by a “crime family”) is well-founded. Consequently, Martin argues, the government
has failed to show that the burden of producing Garcia’s live testimony is inordinate.
See, e.g., United States v. Comito, 177 F.3d 1166 (9th Cir. 1999) (where revocation
of supervised release was based primarily upon the probation officer’s account of the
defendant’s girlfriend’s unsworn claim that the defendant had used her credit cards
without her permission, her hearsay statements had been improperly admitted where
the government had not subpoenaed her or shown that she had a well-founded fear
of retaliation).

      Furthermore, Martin argues, the mere finding that Garcia’s statements to
Dr. Helwig were inherently reliable does not alone suffice to establish the
admissibility of her hearsay statements. See, e.g., Zentgraf, 20 F.3d at 910-11
(hearsay evidence was improperly admitted where the government failed to show

                                           -9-
good cause for not producing the live witness, even though there was “an adequate
basis for finding [the out-of-court] statement reliable”).

       In the present case, the government did offer an explanation for why the
burden of producing Garcia as a live witness was inordinate. The government
presented evidence that Garcia repeatedly stated that she would not testify against
Martin and that, when Garcia was subpoenaed to testify against Martin in state court,
she appeared in court but refused to testify. The government believed that Garcia
likewise would not testify against Martin at his supervised release revocation hearing
and that serving her with a subpoena would be futile. The government also
demonstrated that the hearsay evidence was reliable. Garcia’s statements to
Dr. Helwig and Detective Sperando regarding the relevant events were corroborated
by objective medical evidence and physical injuries that were visible at the time. The
evidence also established that Garcia was excited and distressed both at the time of
her physical examination by Dr. Helwig and at the time of her interview by Sperando.
Under the particular facts of this case, her state of mind adds an indicia of reliability.

       Notwithstanding the district court’s failure to expressly balance, on the one
hand, Martin’s limited right to confront Garcia as an adverse witness and, on the other
hand, the government’s asserted grounds for not requiring confrontation, we hold that
the government met its burden to show good cause for not producing Garcia as a live
witness at the revocation hearing. See Bell, 785 F.2d at 643 (showing that burden of
producing live testimony would be inordinate and that hearsay evidence is
demonstrably reliable establishes a strong showing of good cause for the lack of
confrontation). In effect, the district court’s failure to engage in the Bell balancing
analysis on the record was harmless error in the present case.




                                          -10-
                                   Conclusion

      The admission of Garcia’s out-of-court statements at Martin’s supervised
release revocation hearing did not violate Martin’s constitutional rights or Fed. R.
Crim. P. 32(b)(2)(C). The judgment of the district court is affirmed.
                      ______________________________




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