                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 08-1039
                                 ________________


United States of America,                 *
                                          *
             Appellee,                    *
                                          *    Appeal from the United States
      v.                                  *    District Court for the
                                          *    District of South Dakota
Harry Black Bear,                         *
                                          *
             Appellant.                   *

                                 ________________

                              Submitted: June 12, 2008
                                  Filed: September 12, 2008
                                ________________


Before SMITH and GRUENDER, Circuit Judges, and ROSENBAUM,1 District
Judge.
                        ________________

GRUENDER, Circuit Judge.

       The Government filed a petition to revoke Harry Black Bear’s supervised
release. At his revocation hearing, the district court2 revoked Black Bear’s supervised


      1
        The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota, sitting by designation.
      2
       The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota.
release and sentenced him to twenty-four months’ imprisonment. On appeal, Black
Bear argues that the district court lacked sufficient identification evidence and that it
improperly considered hearsay evidence. For the following reasons, we affirm.

I.    BACKGROUND

      In 2002, Black Bear pled guilty to assault with a dangerous weapon in Indian
country, a violation of 18 U.S.C. §§ 113(a)(3) and 1153. Black Bear received a
sentence of sixty-three months’ imprisonment and three years’ supervised release.
Black Bear’s supervised release, which began on April 14, 2007, included the
conditions that Black Bear: (1) “shall not commit another federal, state, local or tribal
crime”; (2) “shall not consume any alcoholic beverages or frequent establishments
whose primary business is the sale of alcoholic beverages”; and (3) “shall notify the
probation officer at least ten days prior to any change in residence or employment.”

       On October 6, 2007, officers of the Rapid City, South Dakota Police
Department found Black Bear consuming alcohol in a public place. Black Bear was
admitted to Rapid City’s alcohol detoxification center. While he was in that center,
he talked with Amy Vermeulen, his federal probation officer, on the telephone and
admitted to her that he had consumed alcohol. Vermeulen’s supervisor also informed
her that Black Bear was charged with “open container, otherwise known as consuming
alcohol in a public place.” Black Bear pled guilty to an open container state charge
arising from this incident. He was sentenced to time served and court costs. On
October 11, 2007, Vermeulen discovered from Black Bear’s former supervisor that
Black Bear had been fired from his job a couple of weeks earlier. Black Bear failed
to inform Vermeulen of this change in his employment status.

       On October 25, 2007, Rapid City Police Officer Andy Becker was dispatched
to an apartment to investigate a possible assault by Black Bear of Carey Middleton,
his girlfriend. Middleton answered the door, and Officer Becker noticed her face was

                                          -2-
red and her lip was swollen. Officer Becker also noticed a table out of place and a
lamp shade lying on the floor away from the lamp, which was also on the floor. Black
Bear was not at the apartment, but Middleton’s father and daughter were there.
Officer Becker observed a red mark on Middleton’s father’s face. After Officer
Becker interviewed Middleton and her father about the incident, Officer Becker left
the apartment. He was then dispatched to the same apartment a few hours later. This
time, Black Bear was outside of the apartment building with a police sergeant. Black
Bear approached Officer Becker with his hands behind his back and told Officer
Becker that he wanted to turn himself in to the authorities. Officer Becker observed
that Black Bear had no injuries on his body and that he smelled of alcohol and
appeared intoxicated. During the ride to the jail, Black Bear told Officer Becker that
Middleton had slapped him first and he “just retaliated.”

       The Government’s petition to revoke Black Bear’s supervised release alleged
that Black Bear violated several conditions of his supervised release: (1) he committed
the offense of simple assault on or about October 25, 2007; (2) he consumed alcoholic
beverages on or about October 25, 2007; (3) he failed to notify his probation officer
at least ten days prior to any change in employment; (4) he consumed alcoholic
beverages on or about October 6, 2007; and (5) he committed the open container
offense on or about October 6, 2007.

       At Black Bear’s final revocation hearing on December 19, 2007, the
Government presented the testimony of Officer Becker and Probation Officer
Vermeulen. Officer Becker testified that Middleton reported to him that Black Bear
hit her because he believed she was seeing other men. Middleton also told Officer
Becker that she and Black Bear had purchased beer from a gas station and returned to
the apartment intoxicated. Officer Becker testified that Middleton’s father told him
that Middleton’s version of these events was accurate and that Black Bear struck him
with his fist when he entered the room in which his daughter and Black Bear were
fighting to determine what was causing the noise. In addition to testifying about

                                         -3-
Middleton’s and her father’s statements to him, Officer Becker also testified about his
various observations from that night and Black Bear’s admission to him that he had
struck Middleton.

       Vermeulen testified about her responsibility as Black Bear’s probation officer
for overseeing him during his term of supervised release. She testified that Black
Bear’s former supervisor told her that Black Bear had been fired and that Black Bear
did not inform her of this change in his employment status. She then testified about
the notification from her supervisor concerning Black Bear’s drinking incident on
October 6, 2007, and Black Bear’s subsequent guilty plea related to that incident. She
provided a certified state court document indicating that Harry Black Bear, with a date
of birth of August 28, 1971, pled guilty to an open container charge arising from an
arrest on October 6, 2007. Vermeulen also testified that Black Bear admitted to her
while in the detoxification center after this offense that he had consumed alcohol.
Additionally, Vermeulen testified that, as a result of supervising Black Bear, she knew
that he had a girlfriend named Carey and that Carey’s father’s name was Ernest.

      Black Bear did not testify at the revocation hearing nor did he present any
witnesses. However, before he received his sentence, he stated that he “made a
mistake and [was] willing to change” and that he thought that Middleton’s “mother
and family . . . had some kind of thing against [him].” The district court revoked
Black Bear’s supervised release and sentenced him to 24 months’ imprisonment.
Black Bear appeals.

II.   DISCUSSION

       “We review the district court’s decision to revoke supervised release for an
abuse of discretion.” United States v. Ahlemeier, 391 F.3d 915, 919 (8th Cir. 2004).
“If the government proves by a preponderance of the evidence that the defendant
violated a condition of supervised release, the district court has the discretion to

                                         -4-
revoke supervised release.” Id. “[T]he court’s subsidiary factfinding as to whether
or not a violation occurred is reviewed for clear error.” United States v. Carothers,
337 F.3d 1017, 1019 (8th Cir. 2003) (quotation omitted). “Under clear error review,
we may reverse only if we have a definite and firm conviction that the District Court
was mistaken.” United States v. Willis, 433 F.3d 634, 636 (8th Cir. 2006) (internal
quotation omitted).

      A.     Black Bear’s Identity

       Black Bear argues that the Government did not satisfy its burden of proving by
a preponderance of the evidence that the person before the court was, in fact, the
Black Bear who was the subject of the supervised release order or the Black Bear who
committed the alleged violations of the conditions of that supervised release order.
He bases his argument on the facts that neither of the two Government witnesses
specifically identified Black Bear during the final supervised revocation hearing and
that the Government did not present other identifying evidence.

      A supervised release revocation hearing is not a trial. United States v. Smith,
500 F.3d 27, 31 (1st Cir. 2007). As the First Circuit stated:

      Probation revocation3 is an entirely different stage of the criminal-
      correctional process. The probationer has been convicted of a crime,
      subjected to the sanctions prescribed by law, and has been granted
      conditional release in order to serve the interests of society. . . . There
      is no presumption of innocence in the probation revocation process, at
      least not in the sense in which the phrase is used with reference to the
      criminal process.



      3
       Supervised release revocation and probation revocation proceedings are
similar. See United States v. Martin, 382 F.3d 840, 844 (8th Cir. 2004); see also
United States v. Weikert, 504 F.3d 1, 10-11 (1st Cir. 2007).

                                         -5-
In re Whitney, 421 F.2d 337, 338 (1st Cir. 1970). Additionally,

      [g]iven a prior conviction and the proper imposition of conditions on the
      term of supervised release, when a defendant fails to abide by those
      conditions the government is not then put to the burden of an adversarial
      criminal trial. Instead, there is, as in this case, a revocation of release
      hearing at which, as the Supreme Court instructs, neither the right to a
      jury trial, nor proof beyond a reasonable doubt is required. As the
      Supreme Court has explained in the context of parole, such proceedings
      arise after the end of the criminal prosecution, including imposition of
      sentence. Revocation deprives an individual, not of the absolute liberty
      to which every citizen is entitled, but only of the conditional liberty
      properly dependant on observance of special parole restrictions.

 United States v. Carlton, 442 F.3d 802, 809-10 (2d Cir. 2006) (internal citations and
quotations omitted) (internal alterations omitted). With these principles in mind, we
find no clear error in the district court’s identity determinations.

       At the revocation hearing, Officer Becker and Vermeulen testified about their
encounters with Harry Black Bear. Officer Becker testified that Black Bear stated to
him at the time of Black Bear’s arrest on October 25, 2007, that he wanted to turn
himself in and that he “just retaliated” against Middleton. Vermeulen, the probation
officer who prepared Black Bear’s presentence investigation report for the original
sentencing and who supervised Black Bear for the six months of his supervised release
before his arrest, testified that she knew Black Bear had a girlfriend named Carey
whose father’s name was Ernest. Therefore, the district court’s finding that the Black
Bear on supervised release was the Black Bear who admitted hitting Middleton was
not clearly erroneous.

      Vermeulen also testified at the revocation hearing that Black Bear did not
inform her that his employment had been terminated. As his probation officer,
Vermeulen had contact with Black Bear and knew whether or not he informed her of

                                         -6-
this change. Furthermore, Vermeulen testified that Black Bear admitted to Vermeulen
that he had consumed alcohol on October 6, 2007. Because Vermeulen knew Black
Bear as a result of overseeing his supervised release for almost six months at that time,
we do not find persuasive Black Bear’s argument that Vermeulen did not know if it
was Black Bear speaking to her. There is also no evidence suggesting that someone
other than Black Bear was speaking to her from the detoxification center. Finally,
Vermeulen presented a certified state court document indicating that Black Bear,
whose birth date was August 28, 1971, pled guilty to an open container offense
resulting from his October 6, 2007 arrest. This name and birth date is the same name
and birth date as the Harry Black Bear who was on supervised release, and the date
of the offense coincided with Black Bear’s admission to Vermeulen that he had
consumed alcohol.

       While an in-court identification of Black Bear at the revocation hearing clearly
would have been advisable, we do not have a definite and firm conviction that the
district court erred in its finding that the person before the court was the Harry Black
Bear who was the subject of the supervised release order and the Harry Black Bear
who committed the acts at issue in this proceeding. See United States v. Williamson,
213 Fed. Appx. 235, 237 (4th Cir. 2007) (unpublished per curiam) (finding “sufficient
evidence, including the testimony of the responding police officer and Williamson’s
probation officer, to support that court’s conclusion that Williamson was the person
who committed the . . . offense, upon which the supervised release violation was
based”); see generally United States v. Birdine, 515 F.3d 842, 844-45 (8th Cir. 2008).

       Although not necessary to our conclusion, we note that the circumstances
surrounding the final revocation hearing also strongly suggest that the district court’s
identity determination was correct. The district court judge who conducted the
revocation hearing was the same judge who sentenced Black Bear for his original
crime. Therefore, we have no doubt that the judge was aware of Black Bear’s identity.
See United States v. Rojo-Mendoza, 83 F.3d 430, 1996 WL 183489, at *1 (9th Cir.

                                          -7-
1996) (unpublished table opinion) (stating that an identity challenge at a revocation
hearing with respect to a guilty plea in a previous proceeding would not have been
successful because the judge and the defendant’s attorney were the same judge and
attorney in the guilty plea proceeding). Additionally, Officer Becker testified at Black
Bear’s preliminary revocation hearing the day before the final revocation hearing and
identified the Black Bear in the court room as the Black Bear he arrested on October
25, 2007.

        Furthermore, Black Bear did not present any evidence to show that he was not
the correct Harry Black Bear. Cf. id. (finding that a plea agreement was sufficient to
prove Rojo-Mendoza violated a condition of his supervised release because he “did
not challenge the authenticity of the document[] and did not present evidence showing
that the defendant who pleaded guilty was different from Rojo-Mendoza”). Instead,
at his initial appearance before a magistrate judge, Black Bear stated that he was Black
Bear, he was thirty-six years old, and he graduated from twelfth grade. All of these
admissions are consistent with the Black Bear who is the subject of the supervised
release order. Black Bear also admitted to the district court at the revocation hearing
that he “made a mistake and [was] willing to change” and that he thought that
Middleton’s “mother and family . . . had some kind of thing against [him].”

      B.     Hearsay

      Black Bear also argues that the district court improperly considered hearsay
testimony from both Officer Becker and Vermeulen. We review this evidentiary
claim for an abuse of discretion. Martin, 382 F.3d at 844. “The standard for
admitting hearsay in a revocation hearing is different than at trial on the merits. The
federal rules of evidence do not apply, but rules of criminal procedure afford a
defendant the opportunity to question adverse witnesses at the hearing.” United States
v. Reynolds, 49 F.3d 423, 426 (8th Cir. 1995) (internal quotation omitted); see also
United States v. Ray, 530 F.3d 666, 668 (8th Cir. 2008). In determining whether to

                                          -8-
admit hearsay during a supervised release revocation proceeding, the district court
should “balance the defendant’s constitutional right to confront a witness against any
governmental explanation for why confrontation is undesirable or impractical.” Id.
(internal quotation omitted). The district court “must also consider the reliability of
the evidence offered in place of live testimony.” Id. Even if the district court does not
conduct this balancing test, “this court may itself perform the [] analysis on review”
if “the underlying facts have been sufficiently developed.” Martin, 382 F.3d at 845.

        In this case, the district court did not conduct the balancing test to determine
whether or not to admit the hearsay evidence offered by Officer Becker and
Vermeulen. Furthermore, the Government did not proffer any explanation for the
absence of Middleton and her father, both of whom spoke to Officer Becker, or the
absence of the supervisor at Black Bear’s former place of employment and
Vermeulen’s supervisor, both of whom spoke to Vermeulen. Therefore, we also
cannot conduct the balancing test because “the underlying facts have [not] been
sufficiently developed.” Id. The Government contends that the hearsay statements
by Officer Becker and Vermeulen still may be admitted if they bear sufficient indicia
of reliability, “even if the Government fails to proffer a reasonable explanation for the
absence of a witness.” This contention, though, is contrary to our previous holdings.
We have held that “[t]he district court must engage in a balancing test and weigh the
defendant’s right to confront adverse witnesses against the grounds asserted by the
government for not producing the witness[es].” Ahlemeier, 391 F.3d at 922.
Therefore, because the district court did not conduct the balancing test and because
we have an insufficient record to do so, we will assume that the district court abused
its discretion in considering the hearsay aspects of Officer Becker’s and Vermeulen’s
testimonies.

       We must now determine whether the district court’s erroneous consideration
of hearsay evidence in this revocation hearing was harmless. See United States v. Fry,
276 Fed. Appx. 547, 548 (8th Cir. 2008) (unpublished per curiam); United States v.


                                          -9-
Stanfield, 360 F.3d 1346, 1360 (D.C. Cir. 2004).4 We conclude that any error in
considering the hearsay evidence was harmless because the Government presented
sufficient evidence, apart from the hearsay statements, to prove by a preponderance
of the evidence that Black Bear violated the conditions. Officer Becker testified that
Black Bear told him after the altercation with Middleton that he wanted to turn
himself in and that he “just retaliated” against Middleton because she hit him first.
This admission by Black Bear is not hearsay. See Fed. R. Evid. 801(d)(2). Officer
Becker also testified that he observed that the apartment was in disarray, that
Middleton had a red face and swollen lip, and that Middleton’s father had a red mark
on his face. Additionally, Officer Becker observed that Black Bear smelled of alcohol
and appeared intoxicated when he arrested him. These observations did not include
any out-of-court statements and are not hearsay. See id. 801(c). Vermeulen testified
that Black Bear did not tell her that his employment had been terminated, and Black
Bear does not dispute that his employment had been terminated. Vermeulen also
testified that Black Bear admitted to her on the telephone from the detoxification
center that he consumed alcohol on or about October 6, 2007. See id. 801(d)(2).
Finally, Vermeulen produced a certified state court document indicating Black Bear’s
open container guilty plea resulting from that drinking incident. See id. 803(8),
902(4).

      This nonhearsay evidence sufficiently supports the district court’s finding by
a preponderance of the evidence that Black Bear violated the conditions of his
supervised release: (1) he committed the offense of simple assault on or about October

      4
        We need not utilize the harmless beyond a reasonable doubt standard because
Black Bear’s opening brief does not present an argument concerning a Sixth
Amendment right to confront witnesses. See United States v. Carrillo, 380 F.3d 411,
413 n.3 (8th Cir. 2004) (stating that we do not consider an argument that is not raised
in an opening brief); see also United States v. Frenchie, 132 Fed. Appx. 672, 674 (8th
Cir. 2005) (unpublished per curiam) (utilizing the harmless beyond a reasonable doubt
standard when the defendant argued that his Sixth Amendment right to confrontation
was violated).

                                         -10-
25, 2007; (2) he consumed alcoholic beverages on or about October 25, 2007; (3) he
failed to notify his probation officer at least ten days prior to any change in
employment; (4) he consumed alcoholic beverages on or about October 6, 2007; and
(5) he committed the open container offense on or about October 6, 2007. Therefore,
even though the district court considered hearsay statements by Officer Becker and
Vermeulen without conducting the required balancing test, this error was harmless.
The district court did not clearly err in its findings, and it did not abuse its discretion
in revoking Black Bear’s supervised release.

III.   CONCLUSION

       For the foregoing reasons, we affirm the revocation of Black Bear’s supervised
release.
                        _____________________________




                                           -11-
