United States Court of Appeals

For the Eighth Circuit 

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No. 20-2623

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United States of America

 Plaintiff - Appellee

v.

Derone Coleman

 Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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Submitted: April 16, 2021

Filed: August 4, 2021

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Before KELLY, GRASZ, and KOBES, Circuit Judges. 

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GRASZ, Circuit Judge.

Derone Coleman challenges the district court’s decision to rely primarily on 

hearsay evidence to revoke his supervised release. We reverse the judgment, vacate 

Coleman’s revocation sentence, and remand for resentencing on a closed record.
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I. Background

Coleman was serving a 60-month supervised-release term after he served a 

106-month term of imprisonment for a drug trafficking crime. See 21 U.S.C. 

§ 841(a)(1), (b)(1)(C); 18 U.S.C. § 924(c)(1)(A). As a condition of his release, 

Coleman could not commit another federal, state, or local crime. So, when Kippie 

House told probation and local police officers that Coleman assaulted her, the 

government asked the district court to revoke Coleman’s supervised release.

According to the government, on May 31, 2020, Coleman bit, tried to choke, 

and waved his gun at House. Two days later, House called Coleman’s probation 

officer, Stephanie Werning, to report the assault. Werning testified that while House 

sat in the driver’s seat of her car next to her friend, Lashonda Elam, House spoke to 

Coleman about their past relationship. Suddenly, he “snapp[ed] and reach[ed] into 

the car and chok[ed] her out.” At that point, Elam purportedly leaned from the 

passenger’s seat to remove Coleman’s hand from House’s throat. Two of Coleman’s 

cousins also intervened by grabbing Coleman and pulling him away from House. 

With both hands behind his back, Werning said, Coleman then reached forward to 

bite House’s face. Werning went on to relay that once the cousins moved Coleman 

away from the car, Coleman pulled his gun out and waved it at House before she 

drove off. After speaking on the phone, House texted photographs of her injuries to 

Werning.

The same day she called Werning, House went to the police station and met 

with Officer John Mogilnicki. As Mogilnicki explained, House’s conversation with 

him generally traced her conversation with Werning. Additionally, House provided 

Elam’s name, date of birth, and address. But he did not get Coleman’s cousins’ 

names. Last, he photographed her apparent injuries, showing House’s bruised left 

eye and marks on her neck. Werning testified that the photographs House sent her 

matched the photographs that Mogilnicki took.
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On June 30, 2020, House spoke with Detective Jernisha Cann. House 

allegedly “stated that she was moving from her current location and was moving out 

of town” but “[s]he didn’t give an exact location to where.” Further, the record does 

not show that Cann ever asked whether House was moving out of state, when she 

was planning on moving, and whether she would still have access to her car. 

Likewise, the record does not tell us if Cann tried to verify whether House had 

already moved.

Two weeks later, Werning tried to subpoena House at her last-known address. 

Because the residence looked abandoned, Werning first called House. House 

claimed to be homeless and agreed to meet Werning in Kansas City to discuss living 

options, giving Werning a chance to serve House with a subpoena. After waiting 

for thirty minutes without seeing House, Werning left. Werning did not indicate 

whether House was moving out of town, only that Werning believed that House had 

no place to go.

After the failed meeting, Werning called House three times in the days leading 

up to the show-cause hearing, without any answer from House. Cann also tried 

calling House twice during that timeframe. Both Werning and Cann testified that 

before these attempted phone calls, House had expressed a willingness to drop the 

charges, while suggesting that Coleman needed mental health treatment, not 

punishment. Other than the phone calls and the failed meeting, neither Werning nor 

Cann did anything else to subpoena House. Werning said she did not seek any lawenforcement assistance in serving the subpoena on House.

Of the three alleged on-scene witnesses, Werning and Cann only tried to track 

down Elam. Each tried contacting her by phone but did not try to visit her address. 

Although House did not identify Coleman’s cousins, nothing in the record shows an 

attempt to discover their names, phone numbers, or addresses. Similarly, Mogilnicki 

never attempted to track down Elam or the cousins because internal protocols 

required him to pass the information on to the domestic violence unit. And when he 
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asked the domestic violence unit about Elam, a detective in the unit told him that 

“they would handle anything further with the witness.” 

On July 16, five days before the hearing, the government listed five people on 

its proposed witness list: (1) Cann; (2) Mogilnicki; (3) Werning; (4) House; and 

(5) Elam. The government listed each witness as a Kansas City resident. Because 

the government failed to produce House and Elam, stating that its “[e]fforts to serve 

them have been unsuccessful[,]” only the first three testified at the hearing, offering 

no more than hearsay evidence. Coleman objected before each witness testified 

about what House told them, arguing that he had a right to confront his accuser. See 

United States v. Bell, 785 F.2d 640, 642 (8th Cir. 1986) (requiring the government 

to show good cause before denying a probationer’s confrontation rights). The 

district court overruled each objection.

The district court concluded that the government’s explanation, based on the 

officers’ testimony, showed good cause for House’s absence at the revocation 

hearing. It did not offer any further analysis for excusing House’s unavailability. 

With respect to reliability of the hearsay evidence, while recognizing the limitations 

of the court’s “nonexpert opinion[,]” the district judge noted that the injuries in the 

photographs “do not appear acutely fresh and consistent” with the narrative on 

record. Even so, the district court viewed the photographs as consistent with 

House’s alleged statements about the assault, offering no other analysis on the 

reliability of the hearsay evidence.

On appeal, Coleman reasserts his hearsay challenge, arguing that overruling 

those objections violated his due process and confrontation rights. He asks us to 

vacate his revocation sentence and to remand this case to consider the supervisedrelease violation anew without expanding the record.
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II. Discussion

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. 

Timmons, 950 F.3d 1047, 1050 (8th Cir. 2020).

At the revocation stage, a defendant has less than “the full panoply of 

protections afforded by the rules of evidence.” United States v. Sutton, 916 F.3d 

1134, 1138 (8th Cir. 2019). But “minimum requirements of due process” still apply. 

Timmons, 950 F.3d at 1050 (quoting Morrissey v. Brewer, 408 U.S. 471, 489 

(1972)). Among them “the right to ‘confront and cross-examine adverse witnesses 

(unless the hearing officer specifically finds good cause for not allowing 

confrontation).’” Id. (quoting Morrissey, 408 U.S. at 489). Rule 32.1(b)(2)(C) 

“implements this protection and 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.’” Id. (quoting Fed. R. 

Crim. P. 32.1(b)(2)(C)).

 “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.’” Id. (quoting Bell, 785 F.2d at 642). 

The Bell test provides: “[t]o show good cause for denying a defendant his 

confrontation rights, the [g]overnment must show that ‘confrontation is undesirable 

or impractical’ and that ‘the evidence which the government offers in place of live 

testimony’ is reliable.” Id. (quoting Sutton, 916 F.3d at 1139).

Thus, the district court needed to assess: (1) the government’s reason for not 

producing House; and (2) the reliability of the hearsay offered in place of her 

testimony. See United States v. Simms, 757 F.3d 728, 732 (8th Cir. 2014) (citing 

Bell, 785 F.2d at 643). The government needed to show both prongs; a failure under 

either prong negates good cause. Sutton, 916 F.3d at 1139. In the revocation 
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context, “[w]e will only reverse for error that is not harmless.” Timmons, 950 F.3d 

at 1050 (citing United States v. Black Bear, 542 F.3d 249, 255 (8th Cir. 2008)).

A. Availability

Coleman argues that the government did not meet its burden to explain why 

it did not produce House. “Live testimony may be impractical when transporting 

the witness to the judicial forum from another state would be ‘unreasonably 

burdensome.’” Sutton, 916 F.3d at 1139. However, the government generally fails 

to meet its burden under the first Bell prong if “the witness is located within the same 

state as the revocation hearing” because securing the witness’s live testimony “does 

not impose an inordinate burden on the government.” Id. 

Here, the government did not provide any evidence to show that House left 

Missouri. Although two witnesses testified that House told them she was in the 

process of moving, nothing in the record shows that she did. Instead, six days before 

the hearing, as far as Werning knew, House agreed to meet her in Kansas City. Even 

though she did not follow through with the meeting, House claimed to be in the area. 

And five days before the hearing, the government—while suspecting House was 

homeless and moving out of town—identified House as residing in the same city 

where the hearing would occur.

Yet, the government argues that House’s unresponsiveness to phone calls 

rendered her unreachable. We disagree. If we were to adopt the government’s 

position, then we would effectively equate missed calls to an interstate move. 

Nothing in the record shows that the government: (1) used any resources to look for 

House’s car; (2) asked House where she planned to move; or (3) asked for House’s 

new address. See Sutton, 916 F.3d at 1138–40 (holding that he government failed 

to show confrontation was impractical even when a detective went as far as locating 

a witness’s new address after a failed subpoena attempt to an older address but 

abandoned the effort after a second unsuccessful attempt). 
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And even if the timeframe made it difficult to subpoena House, nothing in the 

record shows that the government—in moving for relief—ever asked the district 

court for more time to serve that subpoena. See Timmons, 950 F.3d at 1051 (citing 

United States v. Johnson, 710 F.3d 784, 790 (8th Cir. 2013)) (concluding that the 

government should not have moved forward without live testimony when a witness’s 

absence from a revocation hearing was due to some factor other than unavailability 

or fear of reprisal, like there, a miscommunication).

This court has “excused the [g]overnment from calling a witness who it knows 

will refuse to testify out of fear.” Timmons, 950 F.3d at 1051; see United States v. 

Martin, 382 F.3d 840, 845–46 (8th Cir. 2004) (holding that serving a witness with a 

subpoena would be futile when they repeatedly refused to testify out of fear). The 

government argues that Martin, which struck down a defendant’s hearsay challenge 

when a witness’s fear made it futile to subpoena her, should govern here. See 

Martin, 382 F.3d at 845–46. According to the government, House’s change of heart 

about pressing charges made it futile to try to get her to testify.

We disagree. Although House changed her mind about pressing charges, 

unlike Martin’s witness, nothing in the record suggests House refused to comply 

with a subpoena or said that she would not testify. See Sutton, 916 F.3d at 1139–40 

(holding that the government failed to show an attempt to subpoena three witnesses 

would have been futile when none of them refused to comply with a subpoena).

Lastly, a witness’s reluctance to testify falls short of satisfying the first Bell

prong “absent a satisfactory showing that testifying would place [her] in danger of 

great bodily harm[.]” United States v. Zentgraf, 20 F.3d 906, 910 (8th Cir. 1994). 

Here, the government did not try to show that House would face any more danger 

by testifying than she did when she first filed the police report. See Sutton, 916 F.3d 

at 1140 (holding that fear to testify in court is not enough reason to deny a 

defendant’s confrontation rights when the adverse witnesses made voluntary 

statements to the police). Thus, we conclude that the government lacked a 

reasonably satisfactory explanation for House’s unavailability.
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B. Reliability

Under the second Bell prong, the government must show that the hearsay 

evidence was reliable enough to justify the denial of Coleman’s confrontation rights. 

Bell, 785 F.2d at 643. Coleman argues that even if it had been impractical or 

undesirable to produce House, the government has failed to show that reliability 

outweighs his confrontation rights. In the revocation context, we have characterized 

oral, unsworn accounts as the “least reliable type of hearsay.” Sutton, 916 F.3d at 

1140 (quoting United States v. Comito, 177 F.3d 1166, 1171 (9th Cir. 1999)). 

“Similar statements may nevertheless be reliable if corroborated by other evidence.” 

Timmons, 950 F.3d at 1051. We have also questioned the reliability of police 

reports. See Bell, 785 F.2d at 643–44 (“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.” (internal citation omitted)).

Here, the government relies solely on oral, unsworn accounts and 

photographs. The district court matched the hearsay statements with the 

photographs. But it never analyzed the reliability of the evidence in reaching that 

conclusion. Even if the photographs matched House’s oral, unsworn statements, the 

government still did not give the district court enough evidence to answer the “who,” 

“when,” and “how” behind her injuries. Beyond the hearsay evidence and the police 

report, the government did not present corroborating evidence to even allow the 

district court to draw a causal link between allegations about Coleman’s conduct and 

House’s injuries. See Timmons, 950 F.3d at 1051 (holding that neither a 911 hangup call nor an alleged victim’s injuries offer enough corroborating evidence to draw 

a causal link with the defendant based on oral, unsworn statements). The 

photographs alone do not corroborate the hearsay statements enough to meet Bell’s 

reliability prong.

The government had the burden to present corroborating evidence to show 

reliability. Even though each government witness expressly acknowledged that 
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House mentioned three on-scene witnesses (Elam and Coleman’s two cousins), 

nothing in the record shows that the government tried to gather corroborating 

evidence from them. House (allegedly) gave Elam’s contact information to the 

police, including Elam’s name, date of birth, and address. But after two unreturned 

phone calls, the government did nothing else to try to reach Elam. Nothing in the 

record shows that the government took any steps to identify Coleman’s cousins, let 

alone contact either one. Similarly, nothing in the record shows that the government 

tried to find video surveillance from the scene, inspect House’s car, or call an expert 

witness to testify about House’s injuries. And so, lacking corroborating evidence, 

the government failed to meet its burden to show reliability of the hearsay evidence.

Coleman also argues that House’s motive to fabricate claims against him also 

weighs against reliability. In the revocation context, we have recognized that motive 

to implicate a defendant can indicate unreliability. See Sutton, 916 F.3d at 1140–41 

(taking motive to implicate a defendant as indicia of unreliability of hearsay 

statements from a witness who had readily admitted animus toward the defendant). 

Here, the witnesses testified that House admitted to being upset about Coleman’s 

new relationship with a different woman. Yet, the government denies House was 

motivated to falsely accuse Coleman, arguing instead that her change of heart about 

pressing charges suggests the allegations were truthful and would have implicated 

Coleman. Thus, the government speculates that the hearsay is reliable because 

House’s accusations are likely to be true.

Even so, regardless of the truth of House’s out-of-court allegations, the 

government needed to offer additional indicia of reliability when a possible motive 

to implicate Coleman indisputably existed. See id. (considering other indicia, 

besides motive to implicate a defendant, as part of Bell’s reliability analysis). Here, 

the government offered no additional indicia of reliability. We note that the record 

shows several untested paths to gather corroborating evidence supporting reliability. 

Thus, by failing to test those paths, we conclude the government failed to meet its 

burden of reliability under the second Bell prong.
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C. Harmless Error

“To find harmlessness the [g]overnment must ‘present[] sufficient evidence, 

apart from the hearsay statements, to prove by a preponderance of the evidence that 

[the defendant] violated the conditions’ of his supervision.” Timmons, 950 F.3d at 

1051–52 (alterations in original) (emphasis added) (quoting Black Bear, 542 F.3d at 

256). 

In Timmons, we concluded that the district court harmfully erred when it 

denied the defendant his confrontation rights. The alleged victim’s statement was 

“the only evidence connecting [the defendant] to her injury.” Id. at 1052. The 

Timmons district court found the hearsay evidence there was reliable where the 

declarant made her oral, unsworn statements to the police, after a 911 hang-up call, 

and no evidence indicated that the hearsay declarant had a motive to lie. Id. at 1051. 

But we disagreed and viewed the corroborating evidence as unreliable because the 

declarant had an adversarial relationship with the defendant. Id. Thus, but for those 

statements, “the district court could not have found [the defendant’s] state law 

violations proved by a preponderance of the evidence.” Id. at 1052.

Here, the government rests entirely on House’s photographs to corroborate 

House’s unsworn statements. But the photographs do not show how the injuries 

occurred, who inflicted them, or when. Like Timmons, without the hearsay, the 

district court would not have been able to find that Coleman assaulted House by a 

preponderance of the evidence. Thus, the district court’s error was not harmless.

D. Record on Remand

Coleman asks us to remand without expanding the record. “[T]hat remedy is 

appropriate ‘where the government knew of its obligation to present evidence and 

failed to do so.’” Id. (quoting United States v. Dawn, 685 F.3d 790, 798 (8th Cir. 

2012)). Under Bell, the government knew it needed to show good cause for denying 

Coleman’s Sixth Amendment right to confront House. For that reason, the
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government notified the district court and defense counsel that “the Bell test would 

have to be a factor” in the hearing. The government even voiced its expectation that 

Coleman would raise an objection based on the Bell test. Knowing it had to meet 

Bell while failing to do so bars the government from expanding the record on 

remand. Johnson, 710 F.3d at 790. Thus, we grant Coleman’s request to remand 

without expanding the record.

III. Conclusion

We reverse the judgment, vacate the revocation sentence, and remand for a 

revocation hearing consistent with this opinion.

KOBES, Circuit Judge, dissenting.

Because I think that the Government showed that the victim’s testimony was 

practically unavailable, I would affirm. To secure her testimony at Coleman’s 

revocation hearing, both Werning and Cann called House over the course of several 

weeks. Werning tried to subpoena House at her home, but it was padlocked and 

abandoned. Werning later connected with House, who said she was homeless. They 

planned to meet later that day, but House never showed. Both Werning and Cann 

continued to contact her, but she told Cann she was “moving out of town.” After 

House’s phone was disconnected and officers had no way to contact her, Werning 

and Cann gave up. Despite these efforts, the Court concludes that the Government 

did not meet its burden under United States v. Bell, 785 F.2d 640, 643 (8th Cir. 

1986). I disagree and respectfully dissent. 

This case is different from Timmons and Sutton, where we found that one or 

two failed attempts to subpoena a witness was insufficient. See United States v. 

Timmons, 950 F.3d 1047, 1050 (8th Cir. 2020) (Kobes, J.); United States v. Sutton,

916 F.3d 1134, 1139 (8th Cir. 2019). Here, both Werning and Cann followed up 

with House several times. House told Werning she was homeless and was living 

“wherever.” House also told Cann she was “moving out of town.” As the hearing 
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approached, both Werning and Cann called House repeatedly, but her phone was 

“no longer in use.” Unlike Timmons and Sutton, Werning and Cann continuously 

connected—or attempted to connect—with House to secure her testimony and/or 

serve her a subpoena. House did not tell anyone where she was moving or how to 

get in contact with her. After her phone was disconnected, Werning and Cann had 

no way to reach her. I would find that these facts show that getting House’s 

testimony was “undesirable or impractical” under Bell. 

I would also find that the testimony was sufficiently reliable. House recounted 

the details of her assault consistently to three different law enforcement officers on 

different occasions and had photographs documenting her injuries. Unlike the 

witnesses in Sutton, the details of House’s account remained the same each time she 

recounted it to Werning, Molginicki, and Cann. See Sutton, 916 F.3d at 1140 (“All 

three witnesses were at times admittedly untruthful, . . . internally 

inconsistent . . . and demonstrated motives to minimize their own involvement in the 

assault.”). Photographs of House’s injuries, taken by Officer Molginicki two days 

after the alleged assault, also corroborate her account of what happened. House told 

Werning that Coleman had bitten her face, broken her teeth, and choked her. The 

photographs Molginicki took—which were admitted at the revocation hearing—

show House with chipped teeth, a black eye and a bite mark, and finger marks on 

her throat. While “unsworn and oral statements to the police are the least reliable 

type of hearsay,” they “may nevertheless be reliable if corroborated by other 

evidence.” Timmons, 950 F.3d at 1051 (citation omitted). The photographs support 

the reliability of the testimony proffered at Coleman’s revocation hearing. I would 

affirm the judgment of the district court.

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