United States Court of Appeals

For the Eighth Circuit

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No. 21-3288

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Bruce Edward McGee

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Southern District of Iowa - Central

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 Submitted: May 9, 2022

Filed: August 15, 2022

[Unpublished]

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Before SMITH, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges. 

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PER CURIAM.

While on supervised release, Bruce McGee committed four violations of a nocontact order involving the mother of one of his children. The government served her

with a subpoena to appear at his revocation hearing but after the hearing was

rescheduled, the government was unable to re-serve her after multiple attempts. The 

government’s witnesses testified that she evaded service at her residence and that
McGee had instructed her not to accept service. At the hearing, the district court1

determined that the government had established that all four violations had occurred.

The court sentenced McGee to 16 months’ imprisonment followed by 24 months’

supervised release with a special condition of no contact with his child’s mother. He

appeals his sentence, arguing that the court erred by (1) admitting into evidence a

police report containing her hearsay statements and (2) imposing the special condition

of no contact. We affirm.

I. Background

McGee pleaded guilty to one count of distribution of heroin and was sentenced

to 13 months’ imprisonment in August 2017. He began his five-year term of

supervised release in January 2018. In August 2021, he committed two of the

violations at issue, which prompted his probation officer to file a petition for

revocation of his supervised release. McGee committed (1) a “Violation of a No[-]

Contact Order; Domestic Abuse Assault, Impeding Flow of Air/Blood,” and (2) a

“Violation of a No[-]Contact Order; Criminal Mischief, Second Degree.” R. Doc.

443, at 1. Both violations involve the no-contact order involving Tysonda Millsap,

the mother of one of McGee’s children.

The petition described the conduct underlying the first violation as McGee

grabbing and choking Millsap following a domestic argument at her residence.

McGee stopped choking her and left after being confronted by Millsap’s teenage son.

The second violation also occurred at Millsap’s residence. McGee forcibly entered

her home, breaking the door frame, threw a brick through one of the windows, and

damaged her car.

1The Honorable Rebecca Goodgame Ebinger, United States District Judge for

the Southern District of Iowa.

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The district court issued a warrant for McGee’s arrest. After his arrest, the court

scheduled his revocation hearing for September 2021. The government served

Millsap with a subpoena to appear at the hearing. The hearing was then continued

until later in September due to McGee obtaining appointment of new counsel. Before

the date of the continued hearing, McGee’s probation officer filed the first addendum

to the petition alleging a third violation of the no-contact order, described as follows:

“According to the jail phone system, between August 26 and September 10, 2021,

[McGee] had 74 recorded phone calls with two different phone numbers associated

with . . . Millsap.” R. Doc. 464, at 1. 

The government made several unsuccessful attempts to re-serve Millsap with

a subpoena to appear at the continued hearing. The hearing, consequently, was

continued a second time until October 2021 to enable the government to make further

attempts to re-serve her. Before the date of the second-continued hearing, McGee’s

probation officer filed the second addendum to the petition alleging a fourth violation

of the no-contact order, described as follows: “Between September 17 and September

30, 2021, [McGee] completed 42 phone calls to . . . Millsap’s new phone number.”

R. Doc. 467, at 1.

At the hearing in October 2021, the government offered and the district court

admitted as an exhibit the police report documenting the first violation of the nocontact order. McGee only objected to the police report’s admission on the basis of

Millsap’s hearsay contained in the report:

Millsap reports that her child’s father (McGee) with whom she has a

no[-]contact order just came over and assaulted her. Millsap has a

current no[-]contact order with McGee . . . . Millsap reports that McGee

came over upset about the male she was talking to. McGee is upset

because the male (boyfriend) she’s talking to shot McGee’s brother.

Millsap stated that while talking with McGee in the house . . . he

grabbed her by the arm and pushed her down on the couch. McGee then

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put one hand around her throat, preventing her from breathing normally.

At this time Millsap’s son . . . entered the room and told McGee to get

off his mom. Millsap told [her son] to call 911 for help. McGee then got

off Millsap, went out to his vehicle and left. . . . Millsap stated that [the]

right side of her throat hurt.

R. Doc. 470-1, at 3 (emphasis omitted). 

At the hearing, the government provided testimony to support admission of the

full report. Deputy U.S. Marshal Shane Bellis testified that the first time he attempted

to serve Millsap, (1) no one answered when he knocked on her door, (2) he noticed

curtains inside her home open and close, and (3) Millsap’s neighbor said that she

observed Millsap arrive home in the car parked in Millsap’s driveway. Deputy Bellis

testified that he taped the subpoena to Millsap’s front door along with his business

card and that he called her but she never answered. He also testified that he and

another deputy, who was disguised as a delivery man, attempted to re-serve Millsap

again. When the other deputy knocked on the door, a teenage boy spoke through the

closed door and said that his mother was not home. When the other deputy asked

when Millsap would be home the boy walked away from the door, returned about a

minute later, and told the deputy to leave. As the other deputy left, Deputy Bellis

observed the boy open the front door to watch the deputy leave. He also saw the boy

speak with another person in the residence. Deputy Bellis then taped copies of the

subpoena to a different door, to Millsap’s car, and to another car in the driveway.

When he approached the residence, he could hear voices inside, including a female

voice.

McGee’s probation officer, Amy Johnson, also testified at the hearing. Officer

Johnson testified that Millsap was the female on the other end of McGee’s calls from

prison based on the following facts: (1) the initial phone number that McGee called

was the same number that Millsap gave to police following the assault; (2) McGee 

and the female discussed the no-contact order, his charges, his supervised release

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proceedings, that the female had been served with a subpoena, the attempts at reserving the female, and how the female should respond if she was re-served; and (3)

the female voice was the same from the three phone numbers. Officer Johnson also

testified to the following conversations between McGee and Millsap: (1) he told her

that if she was not re-served that she did not have to testify; (2) he expressed that he

did not want her to testify; (3) she told him that she would not testify; (4) she said she

would be okay with being fined for failing to testify; (5) he told her that if she has to

testify she can say, “I don’t recall, and I plead the Fifth”; (6) she agreed to say that;

(7) she was on the phone with him when the government attempted to re-serve her the

first time; and (8) he told her not to go outside. R. Doc. 478, at 28. 

The district court noted that “the only objection that was posed [to the

admission of the police report into evidence] was to the statements made by

[Millsap],” and the court admitted the exhibit. Id. at 44. It concluded that “the

[g]overnment ha[d] established by a preponderance of the evidence all four of the

violations.” Id. at 47. With the most serious grade of his violations being Grade A and

a criminal history category of II, McGee’s Guidelines range was between 15 to 21

months’ imprisonment. The court sentenced him to 16 months’ imprisonment,

followed by 24 months’ supervised release, with a special condition of no contact

with Millsap. He did not object to the special condition.

II. Discussion

A. Admissibility of Police Report

McGee argues that the district court erred by admitting the police report

because it contains hearsay statements by both Millsap and the authoring officer.

“While we would ordinarily review challenges to the admission of hearsay evidence

for abuse of discretion, when an appellant claims that the government violated his due

process rights, we review that challenge de novo.” United States v. Coleman, 7 F.4th

740, 744 (8th Cir. 2021). 

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At the revocation stage, . . . . [Federal Rules of Criminal

Procedure] Rule 32.1(b)(2)(C) . . . requires the district court to provide

defendants an opportunity to question any adverse witnesses unless the

court determines that the interest of justice does not require the witness

to appear.

In assessing whether a defendant should have been allowed to

confront an adverse witness, we balance his due process rights against

the grounds asserted by the government for not requiring confrontation.

The Bell[

2

] test provides: to show good cause for denying a defendant

his confrontation rights, the government must show that confrontation

is undesirable or impractical and that the evidence which the

government offers in place of live testimony is reliable. 

Thus, the district court needed to assess: (1) the government’s

reason for not producing [Millsap]; and (2) the reliability of the hearsay

offered in place of her testimony.

Id. at 744–45 (cleaned up).

“[W]here the district court has failed to engage in the balancing analysis set

forth in Bell, but the underlying facts have been sufficiently developed,” as is the case

here, “this court may itself perform the Bell analysis on review.” United States v.

Martin, 382 F.3d 840, 845 (8th Cir. 2004). The district court understood the

government’s reason for not producing Millsap to be “her . . . refusal to accept service

. . . at the direction of [McGee].” R. Doc. 478, at 47. Based on these facts, we hold

that the government provided sufficient justification for not producing Millsap. See

Martin, 382 F.3d at 846. Deputy Bellis testified about Millsap’s evasion of their reservice attempts. Officer Johnson testified about Millsap’s statements made during

calls with McGee that (1) she would not testify; (2) she would be okay with being

fined for failing to testify; and (3) she would say, “I don’t recall, and I plead the

2United States v. Bell, 785 F.2d 640 (8th Cir. 1986).

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Fifth,” if she was asked to testify. R. Doc. 478, at 28. Officer Johnson also noted that

Millsap obliged McGee’s request to not go outside when the government attempted

to re-serve her the first time.

The record also shows that Millsap’s statements—made to the report’s

authoring officer shortly after McGee assaulted her—were sufficiently reliable. We

have held that hearsay statements are reliable under the second Bell prong in part

when they “were spontaneous.” United States v. Martin, 371 F.3d 446, 449 (8th Cir.

2004). Balancing McGee’s due process rights against the grounds asserted by the

government for not requiring confrontation, we hold that McGee’s rights were not

violated by the admission of the police report. See Martin, 382 F.3d at 846 (“[W]e

hold that the government met its burden to show good cause for not producing [the

witness] . . . at the revocation hearing. . . . The admission of [the witness’] out-ofcourt statements at [the defendant’s] supervised release revocation hearing did not

violate [the defendant’s] constitutional rights or Fed. R. Crim. P. 32(b)(2)(C).”). 

McGee “now objects for the first time on appeal that the exhibit should have

been inadmissible without the [officer] who authored the report testifying or an

analysis on why it was impractical or undesirable to have [the officer] testify.”

Appellant’s Br. at 20. We review for plain error. See United States v. Torrez, 925 F.3d

391, 395 (8th Cir. 2019) (reviewing “the admission of a drug analysis report without

the analyst’s testimony,” an objection raised for the first time on appeal). “[T]here

must be (1) error, (2) that is plain, and (3) that affects substantial rights.” United

States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc) (internal quotation

marks omitted). We find no plain error based on the same Bell balancing analysis for

admission of hearsay.

B. Special Condition of No Contact

McGee also “now objects for the first time on appeal that the district court

committed plain error in imposing the no[-]contact order.” Appellant’s Br. at 24.

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District courts must assess the appropriateness of special conditions of supervised

release on a case-by-case basis. See United States v. Morais, 670 F.3d 889, 895 (8th

Cir. 2012). We will uphold such conditions when they “are reasonably related to the

[18 U.S.C. § 3553(a)] factors” and “involve no greater deprivation of liberty than is

reasonably necessary” while conforming to the Sentencing Commission’s policies.

Id.

McGee argues that his special condition of no contact infringes upon “[his]

right to maintain familia[l] relationships and raise his own children.” Appellant’s Br.

at 25 (citing Troxel v. Granville, 530 U.S. 57 (2000)). Troxel is factually inapposite

because the Court affirmed the parents’ right to disallow the children’s grandparents

from visiting them. See 530 U.S. at 72–73. The district court here did not plainly err

in imposing the special condition of no contact because there is no established right

to maintain contact with the mother or father of an individual’s child in a case

involving domestic violence against the other parent. McGee’s citation to United

States v. Hobbs, 845 F.3d 365 (8th Cir. 2016)—which involved a special condition

of no contact between spouses—is also unhelpful because McGee and Millsap are not

married.

McGee also argues, “The district court ruled the parties are not to have any

contact with one another without an analysis to determine whether it is reasonably

related to a sentencing goal or whether it is greater than necessary in achieving a

sentencing goal.” Appellant’s Br. at 26–27. We reject that argument because the court

here engaged in a detailed individualized inquiry:

In this instance, we have repeated conduct that is in disregard to

state court orders . . . .

The [g]overnment established . . . [McGee’s] assaultive conduct

towards . . . Millsap and then his return to the scene and damage to her

property . . . . 

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Those are both in and of themselves incredibly serious violations,

and they demonstrate a dangerousness to the community and to

[Millsap] specifically that the [c]ourt must consider and does. 

Then the following behavior once [McGee] was in custody, the

fact that we have 147 phone calls with an individual that [McGee] has

a no-contact order with, the use of multiple phone numbers to engage in

that conduct, evincing an attempt to evade detection by the officials at

the . . . [j]ail, brazen disregard for the no-contact order, and importantly,

attempts to influence a witness both in getting the no-contact order lifted

. . . but also in attempting to influence and in this case successfully

influencing the witness not to comply with service from the [M]arshals

service and not to appear here and provide evidence of the assault

against her.

Those are all aggravating factors that raise significant concerns in

regards to deterren[ce]. Obviously [McGee] has not been deterred from

contacting [Millsap] because he’s continued to contact her.

Additionally, . . . the [c]ourt has to be concerned about protecting

the public. This type of behavior is a danger to the community and to

[Millsap] specifically. 

R. Doc. 478, at 56–58. “We are satisfied by this explanation that the court conducted

an individualized inquiry, and the basis for [the] special condition . . . is evident from

the record in any event.” Morais, 670 F.3d at 895–96. 

McGee lastly argues that “[m]ore narrowly tailored alternatives [to the special

condition] may include prior approval from a probation officer to have contact,

supervised contact[,] or some other form of limited contact,” and that “[n]othing in

the record indicates these alternatives were considered.” Appellant’s Br. at 27. But

a district court does not plainly err by refusing alternative conditions that would place

McGee at risk of violating a state no-contact order. We hold that the district court did

not plainly err by imposing the special condition of no contact. 

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III. Conclusion

Accordingly, we affirm the district court’s judgment.

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