IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

United States of America

v. Case No. 2:13-cr-253

Donald C. Jessie

MEMORANDUM OPINION AND ORDER

In an initial revocation petition dated May 26, 2015, the

probation officer reported that defendant violated the conditions

of his supervised release by committing another offense,

specifically, domestic violence consisting of defendant’s alleged

assault of his wife, Tyra Whitlow, on April 3-4, 2015. In an

amended violation report dated June 22, 2015, the probation officer

reported additional violations, including: 1) the May 9, 2015,

shooting of Changler Amilcar by the defendant; 2) defendant’s

failure to submit a monthly report for May 2015; 3) defendant’s

failure to maintain employment since March, 2015; 4) a positive

urine screen for Oxycodone on February 26, 2015; and 5) defendant’s

failure to notify his probation officer within seventy-two hours of

his arrest for felonious assault on June 10, 2015. The state court

domestic violence and felonious assault charges were later

dismissed due to the failure of the witnesses to appear.

This matter came before the court for a hearing on August 26,

2015, on the probation officer’s petition for revocation of

defendant’s supervised release. The government called as witnesses

Probation Officer Ed Boone, the defendant’s probation officer,

Amilcar, and Columbus Police Detective Delbert Chapman and Officer

Don Olson, who took statements from witnesses and authored the

police reports regarding the shooting incident involving Amilcar. 

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The government also produced police reports and a tape of the 911

calls regarding the assault of Amilcar and police reports

concerning the domestic violence charge involving Whitlow. 

Defendant admitted the violations concerning the failure to

maintain employment and the positive drug test, but contested the

other violations. Defendant objected to the admission of hearsay

evidence. The court, after reviewing the police reports, concluded

that the government had made a preliminary showing that the hearsay

in the reports was reliable and had offered an explanation for the

nonappearance of the witnesses. The court permitted the government

to present its case while withholding a final ruling on the

admissibility of the hearsay evidence.

I. Standards for Admission of Hearsay Evidence

The Sixth Circuit has held that the Sixth Amendment right of

confrontation does not apply to hearings concerning the revocation

of supervised release. United States v. Kirby, 418 F.3d 621, 628

(6th Cir. 2005). Hearsay evidence is admissible in revocation

hearings if it is reliable. Id. (holding that probation officer

could testify to out-of-court statements made by victims and police

officers because the evidence was reliable); United States v.

Stephenson, 928 F.2d 728, 732 (6th Cir. 1991).

Nonetheless, under Fed. R. Crim. P. 32.1(b)(2)(C), the

defendant is entitled to “an opportunity to ... question any

adverse witness unless the court determines that the interest of

justice does not require the witness to appear[.]” Rule

32.1(b)(2)(C). The Advisory Committee Notes explain that in

applying Rule 32.1(b)(2)(C), the court is to balance the person’s

interest in confronting the declarants against the government’s

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good cause for denying confrontation. Thus, the “‘flexible

evidentiary standard that applies to revocation proceedings allows

consideration of evidence that would be inadmissible in a criminal

prosecution,’” but it does not strip the defendant of all

protections.” United States v. Jackson, 422 F.App’x 408, 411 (6th

Cir. 2011)(quoting United States v. Whitely, 356 F.App’x 839, 843

(6th Cir. 2009)). However, Rule 32.1 only applies to hearsay

evidence which would ordinarily be inadmissible in a criminal

trial. See United States v. Williams, 443 F.3d 35, 45 (2d Cir.

2006)(“Neither the Due Process Clause nor Rule 32.1 obliges the

district court to perform a good-cause analysis with respect to a

‘proffered out-of-court statement [that] is admissible under an

established exception to the hearsay rule.’”)(quoting United States

v. Aspinall, 389 F.3d 332, 344 (2d Cir. 2004)). 

The balancing test in Rule 32.1(b)(2)(C) requires the court to

consider the government’s reasons for offering hearsay and the

defendant’s interest in confronting adverse witnesses. United

States v. Jordan, 742 F.3d 276, 279 (7th Cir. 2014). The

reliability of the hearsay evidence is also a critical factor in

the balancing test. United States v. Doswell, 670 F.3d 526, 531

(4th Cir. 2012); see also Jordan, 742 F.3d at 280 (the reliability

of the evidence and availability of corroborating evidence or

witnesses may be relevant in determining whether to admit hearsay

evidence). If the hearsay evidence is reliable, this weakens the

defendant’s interest in confrontation. United States v. Mosley,

759 F.3d 664, 668 (7th Cir. 2014); Curtis v. Chester, 626 F.3d 540,

547 (10th Cir. 2010)(where hearsay statements are supported by

other sources, defendant has a diminished interest in testing those

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statements through confrontation). However, even if the hearsay is

reliable, the balancing process still requires the government to

offer a reason for not producing the witness. Mosley, 759 F.3d at

668; United States v. Johnson, 710 F.3d 784, 789 (8th Cir.

2013)(the court should assess the explanation the government offers

as to why confrontation is undesirable or impractical and the

reliability of the evidence the government offers in place of live

testimony); Williams, 443 F.3d at 45 (the court must balance the

defendant’s interest in confrontation against the government’s

reasons for not producing the witness and the reliability of the

proffered hearsay). “If the hearsay evidence is reliable and the

government has offered a satisfactory explanation for not producing

the adverse witness, the hearsay evidence will likely be admissible

under Rule 32.1.” Doswell, 670 F.3d at 531.

II. Government’s Reasons for Not Producing Witnesses

Probation Officer Ed Boone testified that on May 14, 2015, he

spoke with Tyra Whitlow, defendant’s wife and the victim of the

domestic violence charge, and obtained a statement from her

concerning the incident. Officer Boone testified that he also

spoke with Whitlow on June 12, 2015. Whitlow told Officer Boone

that she was working things out with her husband and would not be

pursuing charges. Officer Boone was advised by Assistant

Prosecutor Mantel that he had not had contact with the victim and

he would not be going forward with the prosecution. Officer Boone

testified that the domestic violence case was dismissed, and that

he had been unable to get in touch with the victim.

The government attempted to serve a subpoena on Tyra Whitlow

but could not obtain personal service. Deputy Marshal Craig Martin

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left a copy of the subpoena with Whitlow’s brother on Monday,

September 24, 2015, two days before the hearing scheduled in the

instant case. Whitlow’s brother stated that Whitlow lived at the

residence, but that she would be at work until 5:00 p.m. Deputy

Marshal Martin saw movement at a window of the residence on that

date and thought that Whitlow might be in the residence, but he did

not actually see her. Deputy Marshal Martin returned to the

residence at 6:30 p.m. the next day and left another copy of the

subpoena with Whitlow’s mother. See Doc. 26. Whitlow’s mother

stated that Whitlow occasionally stayed there but that she was not

at home. Whitlow’s brother and mother would not tell Deputy

Marshal Martin where Whitlow was working and would not give him her

phone number. Whitlow did not appear at the hearing.

The government served a subpoena on Changler Amilcar, the

victim of the assault on May 9, 2015. After initially refusing to

come into the courtroom, Amilcar eventually testified and was thus

available for cross-examination concerning his previous statements

to the police concerning the incident. The government also

attempted to serve Amilcar’s girlfriend, Ebony Wharton, who was

another witness in the assault case. Deputy Marshal Martin left a

subpoena for Wharton with Amilcar at Wharton’s residence on two

occasions, but Wharton failed to appear at the hearing. Detective

Delbert Chapman of the Columbus Police Department, the officer who

investigated the assault against Amilcar, testified that the

assault case was not presented to the grand jury because the victim

and witnesses did not appear despite several attempts to contact

them. Officer Boone testified that he went to the residence and

attempted to talk with the victim and witnesses, but was

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unsuccessful, and his calls were not returned.

Courts have held that the government established good cause

for not producing the victim at the hearing where the victim could

not be located despite the government’s efforts. See Curtis, 626

F.3d at 548; United States v. Hall, 419 F.3d 980, 988 (9th Cir.

2005). Good cause has also been found where the victim or witness

refused to testify. See United States v. Carthen, 681 F.3d 94,

100-01 (2d Cir. 2012)(noting that victim’s desire not to testify

was not an unusual reaction by a victim of domestic abuse); United

States v. Martin, 382 F.3d 840, 846 (8th Cir. 2004). As the Ninth

Circuit stated in Hall, “The difficulty of securing the testimony

of domestic violence victims ... against their batterers is well

recognized.” Hall, 419 F.3d at 988, n. 6 (also noting that the

most common reason for dismissal of domestic violence crimes is

non-cooperation of victims). Good cause justifying the absence of

a declarant also exists “when a defendant has a ‘history of violent

conduct [that] ma[kes] reprisal against [the declarant] a

possibility.’” Carthen, 681 F.3d at 101 (quoting United States v.

Jones, 299 F.3d 103, 113 (2d Cir. 2002)).

Here, the government attempted to subpoena Whitlow and Wharton

for the hearing, but those witnesses failed to appear. The

evidence presented by the government indicates that Whitlow, like

many domestic violence victims, was likely avoiding service of

process due to her fear of the defendant and her desire to save

their marriage. It is also likely, in light of the violent nature

of the assault she witnessed, that Wharton was not cooperative or

responsive to the subpoena due to her fear of possible reprisal by

the defendant. The presentence report prepared in connection with

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defendant’s sentencing for a drug offense in this case indicates

that defendant has a history of violent conduct which would make

reprisal against the declarant a possibility. Defendant was given

a two-level enhancement for possession of a firearm during the

commission of the drug offense. PSR, ¶ 106. The defendant

admitted using a firearm during the course of the drug conspiracy

to kill Adorian Peoples and wound Rummell Heller, see PSR ¶¶ 73-84,

although the state charges based on this conduct were dismissed

based on defendant’s claim of self defense. Defendant also has two

prior arrests for domestic assault in 2003 and 2004. PSR ¶¶ 125,

126.

The court finds that the government has shown good cause for

not producing Whitlow, Wharton, and the other witnesses to the

Amilcar assault at the hearing. 

III. Reliability of the Evidence

A. 911 Calls Relating to Assault on May 9, 2015

The Confrontation Clause is implicated by testimony, defined

as a “solemn declaration or affirmation made for the purpose of

establishing or proving some fact” which may take the form of a

formal statement to law-enforcement officers. Crawford v.

Washington, 541 U.S. 36, 51-52 (2004). “Statements are

nontestimonial when made in the course of police interrogation

under circumstances objectively indicating that the primary purpose

of the interrogation is to enable police assistance to meet an

ongoing emergency.” Davis v. Washington, 547 U.S. 813, 822 (2006).

In Davis, the Supreme Court concluded that the 911 call was

not testimonial where the caller was facing an ongoing emergency

and was seeking help against a bona fide physical threat, and where

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the elicited statements were necessary to resolve the present

emergency by identifying the assailant so that the officers would

know if they were dealing with a violent felon. Id. at 827-828;

see also United States v. Common, 563 F.App’x 429, 434-45 (6th Cir.

2014)(statements made during 911 call were not testimonial in

nature because they were made to assist the police in responding to

a dangerous situation, namely, a man in possession of a gun, while

the caller faced an ongoing emergency). The formality of the

interview or conversation is a factor to be considered. Davis, 547

U.S. at 828 (noting the difference between the formality of a

station house interview, which is more suggestive of a testimonial

purpose, and the frantic answers provided over the phone by the 911

caller from a hectic environment). In Michigan v. Bryant, 562 U.S.

344, 373 (2011), the Supreme Court recognized that an emergency

“does not last only for the time between when the assailant pulls

the trigger and the bullet hits the victim.” The Court held that

the emergency in Bryant was ongoing where the police did not know

the location of the shooter or whether the shooter might return to

the scene and begin shooting again, thereby posing a danger to the

victim, police or the public. Id. at 374-377. 

In the first 911 call from 856 Leona Avenue, made at 10:42

p.m. on May 9, 2015, the caller reported that someone had just shot

her son at the front door of the residence, and that he was

bleeding badly. The caller did not identify herself by name. 

However, the police report includes the summary of an interview of

Karen Sliker, who identified herself as the mother of Ebony

Wharton, Amilcar’s girlfriend, which took place on May 9, 2015, at

11:39 p.m. at the Leona Avenue address. The reference to “son”

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could conceivably include “son-in-law.” The dispatcher asked who

shot the victim. The caller, talking to someone at the residence,

asked “What’s his name?” At that point, another person, apparently

Whitlow, took the phone (the police report includes a summary of an

interview with her at 12:04 p.m. on May 10, 2015). Whitlow told

the dispatcher that the shooter was “Donald Jessie,” then stated,

“Could you just get here, the man’s going to die.” The dispatcher

stated that he was trying to get information for the officers and

a description so that they could stop him. Whitlow stated that the

shooter was 5'6" and had a beard, and that he was her husband. 

When asked for defendant’s race, she responded that he was black,

and that he was wearing a light shirt and shorts. The dispatcher

asked which way the shooter left, and Whitlow responded that he

left in a silver Toyota truck, but that she did not know which way

he went, as they shut the door on him. Whitlow stated again, “He’s

my husband, I have a restraining order against him.” She stated

that they were getting a divorce. The dispatcher asked again if it

was her husband who shot the victim, and she responded that it was. 

The dispatcher asked who was shot, and she responded that it was

her best friend’s boyfriend. During this call, other people were

talking excitedly in the background.

Another 911 caller from the Leona Avenue address stated that

her brother had just been shot. This call was received at 10:43

p.m. Although the female caller does not identify herself, the

police report includes the summary of an interview of Sarafinah

Wharton, who identified herself as Amilcar’s sister, which took

place at 12:11 a.m. on May 10, 2015, at 856 Leona Avenue. The

caller reported hysterically that her brother was shot in the leg

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and that he was bleeding a lot. She stated that she was in the

house and did not see the shooter. After the dispatcher put the

call through to the fire department, the caller reported that her

sister was driving the victim to the hospital.

The court finds that these 911 calls are admissible as nontestimonial statements which do not implicate any confrontation

rights. The purpose of the calls from the standpoint of the

callers was to obtain medical help for Amilcar, an ongoing

emergency. The dispatchers’ questions were for the purpose of

gathering information needed to for the officers to address the

ongoing emergency presented by the shooting and their pursuit of a

dangerous assailant in possession of a firearm who could pose a

danger to the officers and the public. Although defendant had left

the scene of the shooting, the witnesses and the dispatchers had no

assurance at that point that defendant would not return and

continue his attack. That was certainly a possibility in this

case, as the incident was sparked by Whitlow’s refusal to leave

with defendant, and Whitlow remained at the scene.

In the alternative, the court finds that the witnesses’

statements on the 911 call fall within the “excited utterance”

exception to the hearsay rule. An “excited utterance” is “[a]

statement relating to a startling event or condition, made while

the declarant was under the stress of the excitement that it

caused.” Fed.R.Evid. 803(2). The requirements for an “excited

utterance” are: 1) an event startling enough to cause nervous

excitement; 2) the making of the statement before there was time to

contrive or misrepresent; and 3) the making of the statement while

the person is under the stress of the excitement caused by the

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event. United States v. Arnold, 486 F.3d 177, 184 (6th Cir. 2007). 

The statement need not be made during the course of the startling

event. Id. at 185. Rather, it is only necessary that the

declarant still appeared nervous or distraught and that there was

a reasonable basis for continuing to be emotionally upset. United

States v. Overton, 600 F.App’x 303, 308 (6th Cir. 2014). In this

case, the 911 callers reported a traumatic event, the shooting of

Amilcar, which had occurred minutes before the call, and made the

statements before there was time to contrive or misrepresent, while

still in a distraught condition.

The court also finds that the statements made during the 911

calls were reliable. Whitlow’s statements during the 911 call

identifying her husband, the defendant, as the shooter, were not

likely contrived because she was under the stress of excitement

from the shooting when the statements were made. See United States

v. Dobson, 529 F.App’x 536, 539 (6th Cir. 2013). Her 911 call

statements are consistent with her police interview later that

night. See Dobson, 529 F.App’x at 539 (multiple consistent

statements by victim can be an indication of reliability). 

Whitlow’s statements are corroborated by the interview statements

of Ebony Wharton and Amilcar. Although defendant denied being the

shooter, he admitted that he was at the Leona Avenue residence at

the time of the shooting to pick up Whitlow, and that he left in

his Toyota Forerunner because he did not want to be there when the

police arrived.

B. Other Statements Regarding May 9, 2015, Assault

The witness statements in the police reports concerning the

shooting of Amilcar are consistent and corroborate each other. As

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indicated above, Whitlow identified defendant as the shooter both

during the 911 call and during her interview by the police. 

Multiple consistent statements by the same declarant are an

indication of reliability. Dobson, 529 F.App’x at 539. Whitlow

reported that she was separated from defendant due to some physical

abuse issues. She stated that after attending her uncle’s funeral,

she and Ebony Wharton went to the Jefferson Outlet Mall. She left

her phone in the car of Ebony’s mother. Defendant was upset

because he had been calling her all day. When defendant arrived,

he was talking in a tone of voice that scared her. Amilcar stepped

onto the porch, and defendant pulled out a gun and shot him in the

leg.

Hearsay may be considered reliable if it is supported by

corroborating evidence. United States v. Lloyd, 566 F.3d 341, 345

(3d Cir. 2009); United States v. Moncivais, 492 F.3d 652, 659 (6th

Cir. 2007)(hearsay was reliable because it was both internally and

externally consistent”). Whitlow’s statements are corroborated by

those of Ebony Wharton, Just as Wharton’s statements are

corroborated by those of Whitlow. Wharton was questioned by

Officer Olson, after he intercepted her vehicle as she was

transporting Amilcar to the hospital. While under the stress of

this traumatic event, Wharton reported that the shooter’s name was

“Blue” and that he was her friend’s “babies dad.” She reported

that after Amilcar and the victim began arguing, “Blue” pulled out

a gun and shot him. Ebony Wharton was also interviewed later that

night by Detective Chapman. She stated that Whitlow was separated

from the defendant, and that she was planning on divorcing him. 

Wharton verified that she and Whitlow had spent the day together

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going to a funeral and the mall. She stated that when defendant

arrived at the residence, he and Amilcar had a conversation about

a fake video, and defendant pulled out a gun and shot him in the

leg. She identified defendant’s photograph from a photo array.

Although the other witnesses at the scene did not see the

shooting, they consistently reported, within hours of the shooting,

that they heard a single shot. Only the defendant stated that he

heard two shots as part of his effort to inculpate another

anonymous shooter. Sarafinah Wharton confirmed that Whitlow stated

she was not going to go with her husband because of the way he was

acting. Dustin Sliker stated that a black male came to the

residence and told Tyra to “come on,” which confirms Whitlow’s

statement that defendant came to pick her up. Dustin Sliker

further stated that after the man and Whitlow went outside, he

heard a single gunshot. Karen Sliker, Ebony Wharton’s mother,

stated that Tyra’s husband “Boo” came to the door, and Tyra went

outside with him. The presentence report in defendant’s drug case

states that “Boo” is defendant’s alias. Karen Sliker reported that

Boo denied shooting Chandler, then ran out of the house. 

The statements made by Amilcar during his police interview

provide further corroboration for the statements of the other

witnesses. Amilcar stated that a man known to him as “Blue” (which

is phonetically close to “Boo”) came to pick up Whitlow, who was

the best friend of his girlfriend, Ebony Wharton, at the Leona

Avenue residence. Amilcar stated that the two women had spent the

day together. Whitlow said that she did not want to go with the

man, and Amilcar stepped onto the front porch and relayed this to

him. At that point, the man pulled out a gun and shot him once in

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the leg. The fact that this interview occurred at 11:45 p.m. at

the hospital emergency room where Amilcar was being treated

suggests that Amilcar’s statements were reliable. See Bryant, 462

U.S. at 368-69 (noting that statements by an injured victim may be

“simply reflexive”). Amilcar was not able to identify his

assailant when shown two photo arrays, but Detective Chapman

testified that the photo of the defendant used in the array was

fourteen years old. During his testimony at the hearing, Amilcar

stated that he told Detective Chapman at the hospital that “Blue”

shot him. He testified that he did not see the shooter in the

courtroom. However, this testimony does not render his previous

statements to Detective Chapman unreliable. See Dobson, 529

F.App’x at 539 (factfinder could plausibly conclude that victim’s

hospital statement, bolstered by other corroborating evidence, was

sufficiently reliable, even if later recantation was not). Amilcar

had good reason to fear retaliation by the defendant if he

identified him in court as the shooter. Amilcar initially stated

that he did not want to testify, and refused to come into the

courtroom. It was only after he was advised of the possibility of

being arrested for contempt of court that he agreed to testify. 

This provides some indication that Amilcar was afraid of the

defendant. Therefore, the court does not credit Amilcar’s denial

that his assailant was in the courtroom as being reliable

testimony.

The court concludes that the witness statements contained in

Government’s Exhibit 1, made shortly after a traumatic event, are

both internally and externally consistent, and that these hearsay

statements are reliable.

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C. Statements Regarding Domestic Violence Charge

Statements by a victim of domestic violence may be reliable if

made soon after the assault. Dobson, 529 F.App’x at 539 (statement

not likely contrived when made under the stress of excitement from

the assault); Martin, 382 F.3d at 846 (victim’s state of mind added

indicia of reliability where victim was excited and distressed when

statements were made). In her statement to Officer Kenneth Shawver

of the Bexley Police Department1 made on May 4, 2015, around 2:34

a.m. at Ohio State University Hospital, Whitlow stated that she and

the defendant went to Walmart around 10:00 p.m. to purchase milk

and a board game. On the drive to defendant’s house, Whitlow told

him that she did not want to be with him anymore. The defendant

became upset and poured Nair on her hair, grabbed her head, and

slammed it into the dashboard twice. Defendant stated “I’m gonna

kill us” and slammed into a parked car. He then drove the car to

an apartment complex, and they walked back to his residence. 

Whitlow convinced defendant to take her to the hospital, then asked

security to keep him away from her.

In her May 10, 2015, interview regarding the Amilcar shooting,

Whitlow referred to the pending domestic case, consistently

reporting that defendant poured Nair on her head and rammed her car

into another vehicle. Whitlow gave another consistent statement 

regarding the May 3rd incident to Officer Boone on May 14, 2015. 

According to Officer Boone’s report, Whitlow also stated that on

the night in question, defendant asked her if she could stay the

1

Although defendant objected to the use of Whitlow’s hearsay

statements, he did not otherwise object to the admissibility or

authenticity of the Bexley police records.

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night, and she declined. After they arrived at Walmart, defendant

disappeared inside the store, and Whitlow believed this is when

defendant obtained the hair remover. When Officer Boone spoke with

Whitlow on June 12, 2015, she stated that what she had previously

told him about the incident was true, but that she had decided not

to pursue charges. Thus, Whitlow stuck to her version of the

incident and never recanted her previous statements. 

Whitlow’s statement is also corroborated by physical evidence. 

Whitlow’s physical injuries were consistent with her statement. 

Photographs taken of Whitlow at the hospital show that she had two

abrasions and a lump on her forehead, a cut on her right arm, and

a bald spot on the top of her head. See Martin, 382 F.3d at 846

(hearsay was reliable where corroborated by objective medical

evidence and physical injuries that were visible at the time).2

The police report also includes photos of the damage to the rear

driver’s side bumper sustained by the parked vehicle in the hitskip collision, tan car parts found at the location of the hit-skip

collision, and photos of Whitlow’s tan car with damage to the left

front fender. There is also a photo which shows a dribble of white

cream and a dark stain on the passenger side dash board. Officer

Shawver’s report indicates that he saw Nair on the passenger side

of the vehicle, and blood was also found inside the vehicle. The

affidavit submitted in support of the application for a search

warrant for the vehicle used by Whitlow states that blood was

observed on the dashboard and a white cream was seen in the

2

This photographic evidence is nontestimonial and does not

implicate confrontation rights. See United States v. Beach, 196

F.App’x 205, 209 (4th Cir. 2006).

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interior. The warrant return indicates that blood was removed from

the passenger side dash board, and a white lotion was removed from

the passenger side front door frame. This corroborates Whitlow’s

statement that defendant was driving and that she was sitting in

the passenger seat when defendant poured Nair over her and banged

her head against the dashboard.

At the hearing, defendant sought to impeach Whitlow’s

statements with evidence that she had previously been sentenced for

a hit-skip offense. Defendant’s line of questioning suggested the

hypothesis that Whitlow was the driver of the car, but subsequently

invented the story that defendant had been driving and had

assaulted her to cover up her own involvement in another hit-skip

offense. Defendant also submitted evidence that Whitlow was

previously charged with domestic violence, specifically, pulling

the hair of Demetrius Harris, the father of her child, a charge

which was later dismissed. Defendant suggested that this is where

Whitlow got the idea of accusing defendant of hair pulling. The

court finds that this evidence is not sufficient to undermine the

reliability of Whitlow’s statements concerning the May 3rd

incident. Defendant’s theory that Whitlow was driving is not

supported by any evidence other than a questionable similar acts

inference. Defendant’s theory also does not account for the use of

Nair Hair Remover in this case. The photo showing a white liquid

on the passenger side dashboard supports Whitlow’s statement that

she was in the passenger seat. Her statements that defendant

poured Nair on her head, pulled her hair, and pushed her head into

the dashboard are corroborated by police photos of a bald spot and

abrasions on her head. It is unlikely that Whitlow would have

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inflicted this type of physical damage on herself just to support

a claim that defendant was the driver of the vehicle.

The court finds that police report and Whitlow’s statements

regarding the domestic violence constitute reliable hearsay.

IV. Balancing of Interests

Under Rule 32.1(b)(2)(C), this court is required to balance

the defendant’s interest in confronting the declarants against the

government’s good cause for denying confrontation. The court found

above that the government demonstrated good cause for its failure

to produce the declarants who witnessed the assault and domestic

violence incidents at the hearing. The court also found that the

witnesses’ hearsay statements in the police reports are reliable,

which diminishes any interest defendant has in confronting the

declarants. Balancing these interests, the court concludes that

the defendant’s interest in confronting the declarants does not

outweigh the government’s interest in proceeding with reliable

hearsay evidence in light of the witnesses’ failure to appear and

the government’s inability to secure their testimony. The court

determines pursuant to Rule 32.1(b)(2)(C) that the interest of

justice does not require the appearance of these witnesses.

V. Findings on Violations

A district court may revoke a term of supervised release if it

“finds by a preponderance of the evidence that the defendant

violated a condition of supervised release.” 18 U.S.C.

§3583(e)(3). In light of defendant’s admission that he failed to

maintain employment since March, 2015, and had a positive urine

screen for Oxycodone on February 26, 2015, the court finds by a

preponderance of the evidence that these violations have been

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established. The court accepts the testimony of Officer Boone, and

finds by a preponderance of the evidence that defendant failed to

submit a monthly report for May, 2015, and failed to notify Officer

Boone about his June 10, 2015, arrest for felonious assault within

seventy-two hours. Based on the reliable evidence discussed above,

the court also finds by a preponderance of the evidence that

defendant committed the offense of domestic violence against

Whitlow on April 3-4, 2015, and that he committed the offense of

felonious assault with a firearm against Amilcar on May 9, 2015. 

A final revocation hearing for sentencing on these violations is

scheduled on October 2, 2015, at 2:30 p.m.

Date: September 22, 2015 s/James L. Graham 

 James L. Graham

 United States District Judge

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