                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4922


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

LARRY DALE WOODS, JR., a/k/a Toby,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.      Richard L.
Voorhees, District Judge. (5:98-cr-00164-RLV-6)


Argued:   January 29, 2014                 Decided:   March 24, 2014


Before DUNCAN, KEENAN, and WYNN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Matthew Collin Joseph, Charlotte, North Carolina, for
Appellant.    Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee.      ON BRIEF:
Anne M. Tompkins, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Larry Dale Woods, Jr. appeals from the district court’s

judgment revoking his term of supervised release and sentencing

him to serve a term of 26 months’ imprisonment.              Woods argues

that the district court erred in admitting hearsay evidence at

the revocation hearing without engaging in the balancing test

required by Rule 32.1 of the Federal Rules of Criminal Procedure

(Rule 32.1) and our decision in United States v. Doswell, 670

F.3d 526 (4th Cir. 2012).       We conclude that the district court’s

admission of this evidence was error and, because the error was

not   harmless,   we   vacate   the   court’s   judgment   and   remand   for

further proceedings.



                                      I.

      In 1999, Woods entered a guilty plea to charges that he

conspired to possess with intent to distribute quantities of

cocaine, cocaine base, and marijuana, in violation of 21 U.S.C.

§§ 846 and 841(a)(1).      The district court sentenced him to serve

a term of 292 months in prison, followed by a ten-year period of

supervised release.       Among other provisions, the conditions of

supervised release required that Woods “follow the instructions

of the [p]robation [o]fficer” and not commit any federal, state,

or local crimes.



                                      2
       Woods began his term of supervised release in March 2009

after       serving     his    term    of    imprisonment.             In    August      2012,

however,       his     probation       officer       filed       a     petition       seeking

revocation of Woods’ supervised release (the petition) based on

two incidents described below.

       In the first incident (the Crisp incident), Woods allegedly

placed a telephone call to an ex-girlfriend, Alicia Crisp, after

his probation officer directed that Woods have no contact with

her.    The government alleged that Woods violated the supervised

release       condition        requiring      him     to     follow         the   probation

officer’s instructions.

       In     the     second    incident      (the    Williams         incident),        Woods

allegedly       assaulted       another       ex-girlfriend,            Sarah     Williams.

During that episode, Woods purportedly committed the offenses of

assault, trespass, larceny, and injury to Williams’ property.

Woods’ alleged conduct resulted in warrants being issued for his

arrest.       The government contended that based on these charges,

Woods   violated        the    supervised      release       condition       that     he   not

commit any crimes during his release period.

       The     district        court        conducted      a         supervised       release

revocation hearing.             Neither Crisp nor Williams attended, and

subpoenas       had     not    been     issued       to    secure       their     presence.

Instead,       the     government       relied       on    the        testimony     of     law



                                              3
enforcement officers who recounted certain statements made by

the two women concerning Woods’ conduct.

       With regard to the Crisp incident, Woods sought to exclude

as inadmissible hearsay the testimony of United States Probation

Officer Jason Kemp concerning his conversation with Crisp.               The

district court overruled Woods’ objection, explaining summarily

that “[h]earsay would be admissible particularly where there are

indications of reliability.”       However, the court did not make a

reliability finding at that point or at any other point during

the hearing.     Kemp was permitted to testify without restriction

about Crisp’s report that Woods had placed a telephone call to

her.    Kemp further stated that Crisp had given him a recording

of that telephone conversation, which the court admitted into

evidence.

       Kemp also testified about his conversations with Williams.

Woods timely objected to this testimony as inadmissible hearsay,

citing this Court’s decision in Doswell concerning the limited

circumstances under which hearsay evidence may be admitted at a

supervised     release    revocation   hearing.     The    district   court

overruled the objection without explanation.

       Kemp   testified   that   Williams   told   him    that   Woods   had

attacked her in her home in August 2012.             According to Kemp,

Williams stated that Woods “slammed” her into a wall, and later

threw her onto a bed and took her car keys and cell phone.

                                       4
      The district court also heard testimony from Christopher

Craven,    a     law       enforcement       officer       employed     by    the     Sheriff’s

Office     of       Iredell       County,        North      Carolina,        concerning        the

Williams incident.               Craven had responded to Williams’ residence

the morning following the incident after Williams telephoned the

police.        Over Woods’ hearsay objection, Craven was allowed to

testify    about          his   conversation         with    Williams,       including         that

Woods attacked her and took her car keys and cell phone.                                   During

Craven’s        testimony,        over       Woods’      objection,          the     government

introduced          into    evidence     a    written         statement       that    Williams

provided       to    Craven,      as   well      as   photographs        taken       by    police

showing her injuries and the damage to her home.

      After         the     district     court        admitted     the        above       hearsay

evidence,       Woods       testified       in    his       defense.         Woods    admitted

contacting Crisp after she placed two telephone calls to him.

However, Woods denied assaulting Williams, damaging her home, or

taking her car keys or cell phone.

      After hearing this testimony, the district court held that

the   government           had    established         by     a   preponderance            of   the

evidence that Woods committed four violations of the conditions

of his supervised release. 1                The court did not make a reliability


      1
       The petition asserted five violations of the terms of
Woods’ supervised release, but the court dismissed the most
serious of those allegations pertaining to a felony burglary
(Continued)
                                                 5
finding concerning the hearsay evidence, but stated generally

that the violations were “supported by credible evidence.”                                  The

court revoked Woods’ supervised release and sentenced him to a

26-month    term      of    imprisonment,         to   be     followed      by    a   34-month

period    of   supervised         release.         Woods      filed    a    timely     appeal

challenging the district court’s judgment.



                                             II.

     Woods argues that this Court should vacate the district

court’s    judgment         because    the    court         impermissibly          relied   on

hearsay evidence in concluding that Woods committed the acts

alleged in the petition.              Woods asserts that the court erred in

considering the above hearsay evidence without engaging in the

balancing      test    required       by   Rule        32.1    and    our        decision   in

Doswell.

     In    response,        the    government          contends      that    the      district

court did not err in admitting the challenged hearsay evidence

because the district court made a reliability finding, which is

supported      by     the     record.             Alternatively,           the     government

maintains that even if the evidence was erroneously admitted,



charge initiated in connection with the Williams incident. The
court held that the government established the other four
violations as alleged in the petition, three of which related to
Williams and one of which related to Crisp.



                                              6
such    error     was    harmless.        We       disagree    with      the    government’s

arguments.

       We   review      for     abuse    of    discretion       the      district    court’s

decision     to    admit      hearsay      evidence      at     a    supervised      release

revocation hearing.             Doswell, 670 F.3d at 529.                 As we explained

in     Doswell,     “[s]upervised          release       revocation            hearings    are

informal proceedings in which the rules of evidence, including

those pertaining to hearsay, need not be strictly applied.”                                Id.

at 530.      Nevertheless, when the government seeks to revoke an

individual’s period of supervised release, the releasee has a

constitutional          right    “to     confront       and    cross-examine         adverse

witnesses (unless the hearing officer specifically finds good

cause for not allowing confrontation).”                        Id. (quoting Morrissey

v. Brewer, 408 U.S. 471, 489 (1972)).

       Rule 32.1 sets forth the circumstances in which hearsay

evidence     may    be    admitted       in    a     supervised      release      revocation

hearing.     Under the Rule, a releasee has the right to “question

any     adverse    witness        unless       the     court    determines         that    the

interest of justice does not require the witness to appear.”

Fed. R. Crim. P. 32.1(b)(2)(C).                     As we observed in Doswell, the

district court is required under Rule 32.1 to apply a “balancing

test”    before     admitting       hearsay         evidence,       in   which    the     court

weighs      the     releasee’s          “interest        in     the      constitutionally



                                               7
guaranteed right to confrontation against the government’s good

cause for denying it.”       670 F.3d at 530 (citation omitted).

     A    “critical    factor”     in       this    balancing      test     is   the

“reliability”   of    the    hearsay    evidence.        Id.    at   531.        When

hearsay   evidence    is    reliable    and   the     government     has   given       a

satisfactory reason for not producing the adverse witness, the

hearsay evidence likely will be admissible under Rule 32.1.                      Id.

     In Doswell, we vacated a district court’s judgment because

the court admitted certain hearsay evidence necessary to the

court’s holding without making any finding of reliability or any

consideration of the balancing test required by Rule 32.1.                       Id.

Based on the present record, we reach the same result here.

Like the record in Doswell, the record before us shows that the

district court did not make a reliability finding with respect

to the challenged hearsay evidence. 2              Further, as in Doswell, the

district court did not give any consideration to the question

whether the government had offered a satisfactory explanation

for its failure to produce Crisp and Williams at the hearing,


     2
       The district court’s statement that “[h]earsay would be
admissible   particularly   where  there    are  indications  of
reliability” does not constitute a reliability finding, because,
among other reasons, the court made that statement before the
evidence at issue was proffered.         Similarly, the court’s
statement at the end of the hearing that the government’s
allegations were “supported by credible evidence” is not an
explicit reliability finding.



                                        8
nor    did    the    court      attempt       to       engage       in    the   balancing       test

required by Rule 32.1.

       We    decline       to   assess    for          the    first      time     on   appeal     the

reliability of challenged hearsay evidence, nor will we conduct

in    the    first       instance   the       Rule      32.1       balancing       test.     As     a

general matter, those tasks should be undertaken by the district

court.       Cf. United States v. Rogers, 556 F.3d 1130, 1137 (10th

Cir. 2009) (stating that the “district court was in the best

position” to assess the reliability of evidence for purposes of

determining whether hearsay evidence should have been admitted);

United States v. Watson, 409 F.3d 458, 463 (D.C. Cir. 2005)

(observing      that       district      courts         are    in    the    best       position   to

conduct the balancing test required by Federal Rule of Evidence

403).

       We further hold that the district court’s error was not

harmless.           An    error     is    harmless            if    “it     appears      beyond    a

reasonable doubt that the error complained of did not contribute

to the verdict obtained.”                See United States v. Lovern, 293 F.3d

695, 701 (4th Cir. 2002) (citation and internal quotation marks

omitted).        The       government      bears         the       burden    of    demonstrating

harmless error.           Id.

       Here,    with        respect      to    both           incidents,        the     government

heavily relied on the out-of-court statements that Crisp and



                                                   9
Williams made to law enforcement officers.       Thus, the challenged

hearsay evidence was central to the government’s case.

     With regard to the Crisp incident, the admission of the

hearsay statements fundamentally affected Woods’ trial strategy.

Woods may have elected not to testify if the court had excluded

Kemp’s testimony about Crisp’s statements and the recording she

gave him.    That recording was admitted into evidence based on

foundation testimony from Kemp, who relied on Crisp’s hearsay

statements concerning the recording.

     With   regard   to   the   Williams   incident,   the   government

presented   non-hearsay     photographic    evidence    of    Williams’

injuries and the damage to her home.          However, that evidence

merely established that such injuries and damage occurred, and

did not establish the identity of Williams’ assailant.         Indeed,

we observe that there is evidence in the record that Williams

was involved in a physical altercation with her mother-in-law

two or three days before the alleged episode with Woods.

     We cannot accept the government’s assertion, made for the

first time on appeal, that Williams’ oral and written statements

provided to Craven were admissible under the excited utterance

and present sense impression exceptions to the hearsay rule.

The government did not offer the statements into evidence on

those bases, nor did the district court make factual findings

necessary to consideration of those hearsay exceptions.           Both

                                  10
these      hearsay    exceptions     require    a   factual     inquiry   into     the

timing of the statement and the declarant’s mental state. 3                      As an

appellate court, we do not make such factual findings.                             See

Anderson v. Bessemer City, 470 U.S. 564, 573-75 (1985); Mora v.

City of Gaithersburg, 519 F.3d 216, 230 (4th Cir. 2008).

       In    view     of   these    considerations,       we   conclude   that     the

government      has    not    met   its   burden    of    establishing    “beyond    a

reasonable       doubt       that   the    error     complained     of     did     not

contribute” to the district court’s holding that Woods violated

the terms of his supervised release.                     See Lovern, 293 F.3d at

701.        Accordingly, the district court’s failure to apply the

balancing test required by Rule 32.1 and Doswell requires us to

vacate the court’s judgment, and to award Woods a new hearing on

the allegations that he violated the terms of his supervised

release.


       3
        For a statement to qualify under the excited utterance
hearsay exception, the statement must describe a “startling
event or condition, made while the declarant was under the
stress of excitement that it caused.” Fed R. Evid. 803(2); see
United States v. Jennings, 496 F.3d 344, 349 (4th Cir. 2007).
Similarly, admission of evidence under the present sense
impression    hearsay exception   requires  that  the   statement
“describ[e] or explain[] an event or condition, made while or
immediately after the declarant perceived it.”     Fed. R. Evid.
803(1); see United States v. Portsmouth Paving Corp., 694 F.2d
312, 323 (4th Cir. 1982).       See generally United States v.
Jackson, 124 F.3d 607, 618 (4th Cir. 1997) (discussing the
excited    utterance  and   present   sense  impression   hearsay
exceptions).



                                           11
                             III.

    For these reasons, we vacate the district court’s judgment

and remand the case for a new hearing on the allegations of the

petition.

                                           VACATED AND REMANDED




                              12
