                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-2438
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                  Ricky Lee Johnson

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                            Submitted: January 18, 2013
                              Filed: March 25, 2013
                                  ____________

Before WOLLMAN, GRUENDER, and SHEPHERD, Circuit Judges.
                       ____________

SHEPHERD, Circuit Judge.

       Ricky Lee Johnson appeals from a final judgment entered by the district court
revoking his supervised release and sentencing him to 21 months imprisonment. He
argues that the district court’s consideration of a police report, which a probation
officer read into evidence, violated his limited due process rights to question adverse
witnesses at a revocation hearing. For the following reasons, we vacate Johnson’s
sentence and remand the case.
                                           I.

       In 2007, Johnson was convicted of conspiracy to possess stolen mail and
sentenced to fifteen months imprisonment followed by a three-year term of supervised
release. His supervised release began on March 17, 2009. The probation office
subsequently filed a Petition for Warrant for Offender Under Supervision, alleging
Johnson had, among other violations, been arrested for second-degree forgery and
theft of property, failed a drug test, and failed to complete drug treatment.

       At his revocation hearing, Johnson admitted that he left a rehabilitation facility
and that “he submitted a urine sample for testing and it returned positive for
marijuana.” Johnson refused to admit to the pending state charges. The
government’s attorney informed the court that the government had “no witnesses
subpoenaed,” but suggested that the probation officer could “basically read from the
police report” to prove the allegations of second-degree forgery and theft of property.
The police report recounted Johnson’s confession to the officers regarding the crimes
of check theft and forgery in and around Jonesboro, Arkansas. After the district court
considered the issue, the government recommended either having the probation
officer read the police report on the record, or continuing the hearing. The district
court decided to proceed. Johnson’s attorney objected:

      Your Honor, we would—if they don’t have any witnesses—and I
      understand this is a revocation proceeding, but the Constitution still
      applies. He’s got a right to confront and cross-examine the witnesses
      against him. And if [the probation officer] is—all he’s going to do is
      produce a police report, then Mr. Johnson’s constitutional right is being
      violated.

The district court overruled the objection, and the government’s attorney agreed,
stating: “I don’t think that applies here, Your Honor.” The district court
acknowledged that Mr. Johnson’s attorney made the argument to “preserve her record

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to appeal” the issue, but found that “the rules of evidence . . . are relaxed in a
revocation hearing because it’s not the same thing as being charged with the
underlying offense.”

       The probation officer then read the police report into the record. After hearing
the evidence, the district court acknowledged that it “didn’t have direct evidence from
the officers or the people or the victims at the stores where the checks were passed.”
But despite that, the court found that Johnson violated his supervised release by
violating a state law and sentenced him to twenty-one months imprisonment with an
additional three-year supervised release term. After the court made its ruling,
Johnson’s attorney again renewed the objection to the police report because it was
testimonial in nature and violated Johnson’s “right to confront and cross-examine
those witnesses against him,” citing Crawford v. Washington, 541 U.S. 36 (2004).
The district court acknowledged that “the record is very clear that the defendant’s
position is that I can’t give you the sentence that I gave you, it’s just illegal. And so
you have that argument on appeal.”

      Johnson now appeals the district court’s judgment.

                                           II.

       Johnson contends that the district court’s consideration of the police report
violated his limited due process rights and the Federal Rules of Criminal Procedure.
See Fed. R. Crim. P. 32.1(b)(2)(C). “We review questions arising under the
constitution de novo, but we review the claim of a Rule 32.1(b)(2)(C) violation for
an abuse of discretion.” United States v. Martin, 382 F.3d 840, 844 (8th Cir. 2004)
(internal citation omitted). The government responds that the underlying merits of
Johnson’s claim are irrelevant because (1) any error was harmless, (2) the issue was
not raised in the district court, and (3) even if the argument was raised, the police
report was sufficiently reliable to outweigh Johnson’s right to cross-examine the

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arresting officers. We address the government’s arguments of harmless error and
waiver before discussing the merits of Johnson’s appeal.

                                         A.

       First, the government argues that any error was harmless because on remand
the government would merely subpoena the officers who arrested Johnson, follow the
proper procedure, and the officers would testify in conformity with the report. But
whether any officers would testify consistently with the police report is not
established in the record and cannot be known until the officers testify and are
subjected to cross-examination. Moreover, this argument assumes that the
government is entitled to a second opportunity to prove Johnson violated his
supervised release by introducing the officer’s testimony on remand, and as discussed
below, we remand the case without expansion of the record.1



      1
        Additionally, the government took the position at oral argument for the first
time that at the revocation hearing Johnson admitted to using methamphetamine,
which would qualify as a Grade B violation. According to the government, because
of this admission, any error would be harmless because Johnson’s guideline range
would be the same. Even if Johnson’s methamphetamine use would result in a Grade
B violation, we do not consider arguments first raised at oral argument. United States
v. Larison, 432 F.3d 921, 923 n.3 (8th Cir. 2006). Moreover, although his drug test
indicated he had used methamphetamine and marijuana, at the revocation hearing
Johnson only admitted to marijuana use. Under Arkansas law, marijuana is a
Schedule IV substance, Ark. Code Ann. § 5-64-215(a)(1), and possession of less than
28 grams of a Schedule IV substance is a Class A misdemeanor, which does not
exceed one year of imprisonment. Id. § 419(b)(4)(A); § 5-4-401(b)(1). Thus,
because the government neither attempted to prove Johnson possessed
methamphetamine nor introduced any evidence that Johnson possessed more than 28
grams of marijuana, his admission would only qualify as a misdemeanor, which is a
Grade C violation. See United States Sentencing Commission, Guidelines Manual,
§7B1.1(a)(3) (Nov. 2012).

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       Next, the government contends Johnson did not raise the due process issue
below. According to the government, Johnson failed to raise the issue based on Rule
32.1 because he focused on Crawford v. Washington, instead of specifying a limited
due process right to cross-examine adverse witnesses. Objections generally must be
specific and timely. United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en
banc). “Preserving an issue is a matter of making a timely objection to the trial court
and clearly stating the grounds for the objection, so that the trial court has an
opportunity to prevent or correct the error in the first instance.” United States v.
Williams, 994 F.2d 1287, 1294 (8th Cir. 1993) (internal quotation marks omitted).

        Based on our review of the sentencing transcript and as the district court
recognized, Johnson’s attorney preserved the due process issue for appeal. The
objection was not based solely on Crawford v. Washington. At the beginning of the
hearing, counsel objected to a separate constitutional violation of Johnson’s right to
cross-examine an adverse witness, before later referencing Crawford. Further,
Johnson’s attorney objected to the evidence throughout the hearing, arguing it
violated the Constitution because Johnson had a right to cross-examine adverse
witnesses, and even emphasized that the argument was not an evidentiary one. The
district court responded, “I think the record is very clear that the defendant’s position
is that I can’t give you the sentence that I gave you, it’s just illegal. And so you have
that argument on appeal.”

        Reviewing the record, we conclude Johnson’s attorney raised specific and
timely objections throughout the hearing and the trial court had “an opportunity to
prevent or correct the error in the first instance.” See Williams, 994 F.3d at 1294.
Therefore, Johnson’s objection was sufficient to preserve the issue for appeal, even
if it did not explicitly cite Rule 32.1, because it adequately referenced the right to
cross-examine adverse witnesses. See United States v. Zentgraf, 20 F.3d 906, 909
(8th Cir. 1994) (finding that Rule 32.1 essentially codified the minimal due process



                                          -5-
requirements recognized by the Supreme Court that allow for cross-examination of
adverse witnesses at a revocation hearing).

                                          B.

       With respect to the merits of his argument, Johnson contends the probation
officer’s testimony deprived him of his right to question adverse witnesses. A
defendant is not entitled to a trial during a revocation hearing; the rules of evidence
do not apply and the government’s burden of proof is lowered. United States v. Black
Bear, 542 F.3d 249, 253-55 (8th Cir. 2008). A 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.”
Fed. R. Crim. P. 32.1(b)(2)(C). Moreover, the Supreme Court has held that “the
minimum requirements of due process . . . include . . . the right to confront and cross-
examine adverse witnesses (unless the hearing officer specifically finds good cause
for not allowing confrontation).” Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972).

       These requirements outlined in Morrissey are not absolute: a district court
should “balance the probationer’s right to confront a witness against the grounds
asserted by the government for not requiring confrontation.” United States v. Bell,
785 F.2d 640, 642 (8th Cir. 1986). While Bell acknowledged that any balancing test
precludes articulating “fixed rules,” a court should evaluate several factors. Id. at
642-43. “First, the court should assess the explanation the government offers of why
confrontation is undesirable or impractical.” Id. at 643. Second, a trial court should
consider “the reliability of the evidence which the government offers in place of live
testimony.” Id. Ultimately, if “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. Although the
district court did not consider the factors outlined in Bell, we may weigh the factors
on appeal because the record was sufficiently developed below. See Black Bear, 542

                                          -6-
F.3d at 255 (“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.” (internal quotation marks and alteration marks omitted)).

       This case presents the issue of whether a police report alone is sufficiently
reliable evidence of criminal conduct when the government offers no explanation for
the arresting officer’s unavailability. “While police reports may be demonstrably
reliable evidence of the fact that an arrest was made they are significantly less reliable
evidence of whether the allegations of criminal conduct they contain are true.” Bell,
784 F.2d at 644. Whether a police report is “sufficiently reliable, and whether the
expense and inconvenience of producing live testimony are sufficiently great, to
justify dispensing with the right of confrontation, are questions to be faced on a case-
by-case basis, considering all the relevant circumstances, including any admissions
that may have been made by the probationer or parolee.” Id.; see also United States
v. Farmer, 567 F.3d 343, 347-48 (8th Cir. 2009) (holding district court may properly
consider statements in a police report when the witness is unavailable and the report
is corroborated by other evidence).

       Turning to the circumstances in this case, not only have we previously
questioned the reliability of police reports as evidence of criminal conduct, see Bell,
785 F.2d at 644, but the government has presented no explanation for why the
arresting officer, or another officer who was present when the confession was made,
failed to testify at Johnson’s hearing. Instead, the government, relying on Farmer,
argues that the police report is reliable because Johnson’s confession documented in
the report was given freely and because the report was corroborated. In Farmer,
however, the arresting officers testified at the revocation hearing and were subject to
cross-examination. 567 F.3d at 346-47. Here, no officer testified, and Johnson made
no corroborating statements regarding the arrest in question. The only evidence of
the criminal conduct before the district court was the police report. Balancing the
lack of an explanation for a witness’s unavailability against the reliability of the

                                           -7-
police report, we hold that the district court erred: Johnson’s right to confront an
adverse witness outweighs “the grounds asserted by the government for not requiring
confrontation.” See Bell, 785 F.2d at 642.

                                         C.

        Finally, having determined that the district court should have allowed Johnson
the opportunity to cross-examine an adverse witness and erred by considering the
facts contained in the police report read into evidence, we must determine whether
the record should be reopened on remand. “The consensus among our sister circuits
is that generally where the government knew of its obligation to present evidence and
failed to do so, it may not enter new evidence on remand.” United States v. Dawn,
685 F.3d 790, 798 (8th Cir. 2012) (internal quotation marks omitted). Whether we
allow the record to be expanded rests “upon the clarity of the issue below and whether
we deemed the government’s failure of proof at the initial sentencing to be
excusable.” See United States v. Ossana, 638 F.3d 895, 904 (8th Cir. 2011) (holding
vague objection justified expansion of sentencing record).

      After Johnson refused to admit to the additional allegations of second-degree
forgery and theft of property, the government’s attorneys acknowledged the
government could not adequately prove the criminal conduct:

      We don’t have any witnesses. There were no witnesses subpoenaed.
      [The probation officer] can basically read from the police report of the
      April 12th violation. Neither one of us have been given anything else.
      So I can’t—I can’t proceed on anything else but that. I’m embarrassed
      by that, but I can’t make it up.

After the district court suggested the arresting officer was not necessary, the
government’s attorney agreed and stated, “You do not need it.” Although the
government’s attorney did suggest a continuance, counsel did not request one and

                                         -8-
asserted the court could “proceed on [the probation officer’s] testimony regarding the
April 12th offense.” Indeed, after Johnson’s attorney objected to the probation officer
merely reading the arrest report into evidence because it violated a constitutional
right, the government’s attorney responded: “I don’t think that applies here, Your
Honor.”

       Therefore, “[u]nder these circumstances, we conclude that the Government had
a full and fair opportunity to present its evidence and that we should follow the
traditional path of limiting the Government to one bite at the apple.” See United
States v. Thomas, 630 F.3d 1055, 1057 (8th Cir. 2011) (per curiam) (internal
quotation marks omitted). Even if the record “reflect[s] some confusion,” it is clear
that “the Government clearly understood its burden” from the beginning of the
hearing. See id. Because the government knew of its obligation and inexcusably
failed to meet it, this case is remanded without the opportunity to expand the record.

                                         III.

       Johnson’s sentence is vacated and the case is remanded to the district court for
re-sentencing based on the existing record already before it, without the opportunity
to expand the record, and without considering the contents of the police report
detailing the April 12, 2012, conduct.
                        ______________________________




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