1

The Honorable Jean C. Hamilton, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-4026

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri

Shauntel Martin, also known as Boo, *

*

Appellant. *

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Submitted: May 11, 2004

 Filed: September 10, 2004 

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Before MORRIS SHEPPARD ARNOLD, McMILLIAN and MELLOY,

Circuit Judges.

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McMILLIAN, Circuit Judge.

Shauntel Martin appeals from a final judgment entered in the United States

District Court1

 for the Eastern District of Missouri revoking his supervised release

and ordering him to serve twenty-four months in prison. United States v. Martin,

No. 4:00CR3 (E. D. Mo. Nov. 25, 2003) (judgment). For reversal, Martin argues that

the district court erred in permitting the government to present hearsay evidence at

the revocation hearing in violation of Fed. R. Crim. P. 32.1(b)(2)(C) and his
2

Under the provisions of the sentencing guidelines, violations of probation or

supervised release are classified into three grades (Grades A, B, and C). Only Grade

A and Grade C violations are at issue in the present case. The class of Grade A

violations includes any federal, state, or local offense that is a crime of violence and

punishable by a prison term exceeding one year. The class of Grade C violations

includes any federal, state, or local offense punishable by a prison term of one year

or less and any violation of a condition of supervision. If two or more separate

violations have occurred, the most serious violation determines the outcome. If the

sentencing court determines that a Grade A violation has occurred, the court shall

revoke probation or supervised release. If the sentencing court determines that a

Grade C violation has occurred, the court may revoke probation or supervised release

(among other options). See U.S.S.G. §§ 7B1.1, 7B1.3 (2002 Sentencing Guidelines

Manual).

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constitutional right to confront witnesses against him. For the reasons discussed

below, we affirm the judgment of the district court.

Background

On January 28, 2000, Martin pled guilty to conspiracy to transport a minor in

interstate commerce, in violation of 18 U.S.C. § 371. On April 7, 2000, Martin was

sentenced to thirty-seven months in prison and three years of supervised release. On

July 14, 2003, after Martin had served his initial prison term and while he was on

supervised release, his girlfriend, Norma Garcia, reported to the police that she had

been raped and sodomized by Martin. Martin was questioned by the police later that

day. On September 2, 2003, Martin’s probation officer petitioned the district court

to revoke his supervised release, alleging that Martin had committed a Grade A

violation (the rape and sodomy of Garcia) and two Grade C violations: (1) failure to

notify his probation officer within 72 hours of being arrested or questioned by a law

enforcement officer and (2) use of a controlled substance (marijuana), as evidenced

by multiple positive urine test results.2
3

As the custodian of Garcia’s medical treatment records from her emergency

room visit on July 14, 2003, Dr. Helwig authenticated those hospital records, and they

were admitted into evidence.

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On November 25, 2003, the district court held an evidentiary hearing on the

government’s motion to revoke Martin’s supervised release. Martin admitted the

facts underlying the two Grade C violations but denied committing the Grade A

violation. The district court thus proceeded to hear evidence solely on the sexual

assault allegation. 

In presenting its case, the government did not call the alleged victim, Garcia,

as a witness. The government called Dr. Jeffrey Helwig, the emergency room

physician who treated Garcia shortly after the sexual assault allegedly occurred.

Martin objected to the possible admission of hearsay statements by Garcia through

Dr. Helwig’s testimony. The government argued in response that Garcia’s hearsay

statements were admissible through Dr. Helwig’s testimony because of the inherent

reliability of Dr. Helwig’s testimony and because Garcia was unavailable. The

district court overruled Martin’s objection and allowed Dr. Helwig to testify. The

district court reasoned: “[I]f he’s going to be talking about what a patient said to a

doctor at a particular time, . . . I think [it] carries a certain reliability, and so I will

allow . . . those statements.”). See Transcript of hearing at 11 (Nov. 25, 2003). 

According to Dr. Helwig’s testimony, on July 14, 2003, at approximately

8:58 a.m., he treated Garcia in the emergency room of the Northwest Community

Hospital in Arlington Heights, Illinois, after she had been transported there by

ambulance. Garcia appeared “upset and distressed” at the time. She reported that her

boyfriend had pulled her hair, twisted her arm, and forced her to have vaginal and

anal sexual intercourse. Her medical condition was consistent with having been

physically and sexually assaulted as she described, although some aspects of her

condition were also consistent with the fact that she had recently given birth.3
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The government also called as a witness Arlington Heights Police Detective

Richard Sperando. Over Martin’s continuing objection to the admission of any

hearsay statements by Garcia, Sperando was allowed to testify regarding statements

Garcia had made to him when he interviewed her at approximately 4:00 p.m., on

July 14, 2003, at the Arlington Heights police station. 

According to Sperando’s testimony, Garcia was “excited and upset” at the time

of the interview. She reported the following events. During the previous night of

July 13, 2003, Garcia and Martin had gone out drinking and partying. In the early

morning hours of July 14, 2003, she and Martin were returning home, with Martin

driving the vehicle, when they got into an argument. Martin grabbed her by the hair

and pulled her head down into his lap. When they reached their apartment complex,

he dragged her into the apartment. Inside the apartment, he forced her to have vaginal

and anal sexual intercourse. To make him stop, she feigned that she was

hyperventilating. She continued to feign illness and asked Martin to take her to the

hospital. He agreed. Martin drove Garcia to the hospital but, when he got there, he

drove past it. About a mile down the road, she jumped out of the car at a stop light

and ran into a nearby police station. At the time of the interview, Sperando could see

bruises on Garcia’s inner thighs. Garcia further stated that she would not be a witness

against Martin because Martin had ties to a “crime family.” Garcia reported to him

at a later time that Martin’s mother had called her and pressured her not to testify

against Martin. When state criminal charges were brought against Martin arising out

of the incident on July 14, 2003, Garcia was subpoenaed to testify and she showed

up in court, but refused to testify against Martin. The state charges against Martin

were dismissed.

Sperando further testified that he later questioned Martin at the Arlington

Heights police station on July 14, 2003. According to Sperando, Martin came to the

Arlington Heights police station voluntarily. Martin denied raping Garcia and

claimed that they had engaged in consensual sex until Garcia complained of pain
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from having recently given birth. Martin told Sperando that he had intended to take

Garcia to the hospital, but changed his mind when it appeared that she had fallen

asleep in the car. After Garcia jumped out of the car at a stop light and ran into the

police station, Martin did not assist her further because he did not want to be arrested

for drinking and driving. 

Martin did not testify at the revocation hearing or call any of his own

witnesses. Based upon the evidence before it, the district court ruled as follows:

Based upon the evidence the Court has heard, I think the

Government has proved its case by a preponderance of the evidence.

 

I think the most persuasive evidence here, and objective evidence,

is the doctor’s testimony. While I think [defense counsel] does indicate

the doctor did say that the vaginal injury could possibly be consistent

with the recent childbirth, the rectal evidence was consistent, as he

testified, with sexual assault, so even excluding the vaginal injury,

which I don’t think has to be done, but even if you did that, there’s

certainly rectal injury.

There are bruises, both on the thighs and the scratches on the arm

injury. 

That evidence, I think, is objective. It’s a doctor observing a

patient which is also consistent with the statements made, so that the

statements, I think, simply corroborate the physical evidence of the

victim here.

And I find that those statements are, as I found earlier, those

statements are admissible.

So I think what we do have is forcible sexual assault and I think

the Government has proved that both with reliable hearsay and with

objective evidence through the doctor’s testimony. And the other
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evidence of the police officer corroborates what the objective testimony

was. 

So on that basis, I believe the Government has proved a Grade A

violation here, in violation of the general condition that the defendant

not commit another federal, state, or local crime.

Transcript of hearing at 43. 

Accordingly, the district court revoked Martin’s supervised release. Martin

was ordered to serve an additional twenty-four months in prison. He timely appealed.

Discussion

Martin argues that the presentation of hearsay evidence at the revocation

hearing, through Dr. Helwig’s and Sperando’s testimony, violated his federal

constitutional rights and Fed. R. Crim. P. 32.1(b)(2)(C). We review questions arising

under the constitution de novo, United States v. Pfeifer 371 F.3d 430, 436 (8th Cir.

2004), but we review the claim of a Rule 32.1(b)(2)(C) violation for an abuse of

discretion. See United States v. Martin, 371 F.3d 446, 449 (8th Cir. 2004) (Martin)

(applying abuse of discretion standard to admissions of out-of-court statements at a

supervised release revocation hearing, under Fed. R. Crim. P. 32.1(b)(2)(C)).

In Morrissey v. Brewer, 408 U.S. 471, 487-89 (1972), the Supreme Court

discussed the “minimum requirements of due process” applicable in a parole

revocation hearing. The Court held that one of those due process requirements is “the

right to confront and cross-examine adverse witnesses (unless the hearing officer

specifically finds good cause for not allowing confrontation).” Id. at 489; see also

Gagnon v. Scarpelli, 411 U.S. 778, 781-787 (1973) (holding that the same due

process requirements apply in probation revocation proceedings as in parole

revocation proceedings). In Morrissey v. Brewer, 408 U.S. at 489, however, the
4

For this reason, Crawford v. Washington, 124 S. Ct. 1354 (2004), involving

the contours of the confrontation right in criminal prosecutions, does not apply to the

present case. 

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Supreme Court cautioned that a parole revocation hearing should not, for this

purpose, be equated with a criminal trial. In other words, the constitutional standard

applicable in this type of post-conviction revocation hearing will sometimes permit

the admission of evidence that would otherwise be inadmissible in a criminal

prosecution. Id. (“[T]he process should be flexible enough to consider evidence . .

. that would not be admissible in an adversary criminal trial.”).4

This limited due process right to confront and cross-examine adverse witnesses

in a revocation hearing is codified in Fed. R. Crim. P. 32.1(b)(2)(C), which

specifically applies to probation and supervised release revocation hearings.

Rule 32.1(b)(2)(C) provides that, in such proceedings, the 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.”

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

a test to determine whether evidence has been admitted at a probation revocation

hearing in violation of the applicable limited right to confront and cross-examine

adverse witnesses. This court held that, to comport with Morrissey v. Brewer, the

district court must “balance the probationer’s right to confront a witness against the

grounds asserted by the government for not requiring confrontation.” Bell, 785 F.2d

at 642. In assessing the government’s position, the district court should consider,

first, “the explanation the government offers of why confrontation is undesirable or

impracticable” and, second, “the reliability of the evidence which the government

offers in place of live testimony.” Id. at 643. “[W]here the government demonstrates

that the burden of producing live testimony would be inordinate and offers in its place

hearsay evidence that is demonstrably reliable, it has made a strong showing of good
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cause.” Id. If these conditions are met, out-of-court statements may be admitted at

a revocation hearing without violating the defendant’s limited confrontation right.

“Where, on the other hand, 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.

Since our decision in Bell, we have sometimes held that a district court’s

failure to engage in the balancing analysis set forth in Bell warrants a remand for the

district court to perform that function in the first instance. In United States v.

Reynolds, 49 F.3d 423, 426 (8th Cir. 1995) (Reynolds), for example, this court noted

that the district court never balanced the defendant’s right to confrontation against the

government’s asserted reason for not producing individuals whose hearsay statements

were admitted into evidence at the defendant’s supervised release revocation hearing,

nor did the district court discuss whether the challenged hearsay evidence was

reliable. This court thus concluded: “Since [the district court] had the opportunity to

observe the various witnesses who did testify, it is appropriate that the case be

remanded so that it may undertake the inquiry called for by United States v. Bell.” 

Reynolds, 49 F.3d at 426; see also United States v. O’Meara, 33 F.3d 20, 21 (8th Cir.

1994) (per curiam) (where the district court did not engage in the required balancing

before admitting the challenged hearsay evidence, vacating the judgment revoking

supervised release and remanding to the district court with instructions to conduct

another revocation hearing). 

However, where the district court has failed to engage in the balancing analysis

set forth in Bell, but the underlying facts have been sufficiently developed, this court

may itself perform the Bell analysis on review. In United States v. Zentgraf, 20 F.3d

906 (8th Cir. 1994) (Zentgraf), for example, the district court allowed the government

to rely on hearsay evidence at the defendant’s supervised release revocation hearing

and thereafter revoked the defendant’s supervised release without engaging in the

Bell balancing analysis. On appeal, this court held that the government had failed to
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show good cause for denying the defendant the opportunity to confront the adverse

witness at the revocation hearing. Id. at 910. We therefore reversed and remanded,

with instructions to the district court to reconsider the government’s revocation

request without the improper hearsay evidence. See also Martin, 371 F.3d at 446

(performing Bell balancing test on appeal and concluding that district court

improperly admitted out-of-court statements of one individual but did not abuse its

discretion in admitting out-of-court statements of another, and affirming revocation

on basis that properly admitted evidence sufficiently established a violation of the

defendant’s conditions of supervised release).

In the present case, Martin argues that the government has failed to adequately

explain its failure to present Garcia’s live testimony. Martin points out that, although

Sperando did testify regarding Garcia’s refusal to testify against Martin in state court,

those state court proceedings occurred more than a year before the revocation hearing

and yet, since those state court proceedings, the government had made no attempt to

interview or subpoena Garcia. Moreover, Martin contends, there has been no

showing that Garcia’s alleged reason for refusing to testify (i.e., her fear of retaliation

by a “crime family”) is well-founded. Consequently, Martin argues, the government

has failed to show that the burden of producing Garcia’s live testimony is inordinate.

See, e.g., United States v. Comito, 177 F.3d 1166 (9th Cir. 1999) (where revocation

of supervised release was based primarily upon the probation officer’s account of the

defendant’s girlfriend’s unsworn claim that the defendant had used her credit cards

without her permission, her hearsay statements had been improperly admitted where

the government had not subpoenaed her or shown that she had a well-founded fear

of retaliation). 

Furthermore, Martin argues, the mere finding that Garcia’s statements to

Dr. Helwig were inherently reliable does not alone suffice to establish the

admissibility of her hearsay statements. See, e.g., Zentgraf, 20 F.3d at 910-11

(hearsay evidence was improperly admitted where the government failed to show
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good cause for not producing the live witness, even though there was “an adequate

basis for finding [the out-of-court] statement reliable”).

 In the present case, the government did offer an explanation for why the

burden of producing Garcia as a live witness was inordinate. The government

presented evidence that Garcia repeatedly stated that she would not testify against

Martin and that, when Garcia was subpoenaed to testify against Martin in state court,

she appeared in court but refused to testify. The government believed that Garcia

likewise would not testify against Martin at his supervised release revocation hearing

and that serving her with a subpoena would be futile. The government also

demonstrated that the hearsay evidence was reliable. Garcia’s statements to

Dr. Helwig and Detective Sperando regarding the relevant events were corroborated

by objective medical evidence and physical injuries that were visible at the time. The

evidence also established that Garcia was excited and distressed both at the time of

her physical examination by Dr. Helwig and at the time of her interview by Sperando.

Under the particular facts of this case, her state of mind adds an indicia of reliability.

Notwithstanding the district court’s failure to expressly balance, on the one

hand, Martin’s limited right to confront Garcia as an adverse witness and, on the other

hand, the government’s asserted grounds for not requiring confrontation, we hold that

the government met its burden to show good cause for not producing Garcia as a live

witness at the revocation hearing. See Bell, 785 F.2d at 643 (showing that burden of

producing live testimony would be inordinate and that hearsay evidence is

demonstrably reliable establishes a strong showing of good cause for the lack of

confrontation). In effect, the district court’s failure to engage in the Bell balancing

analysis on the record was harmless error in the present case. 
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Conclusion

The admission of Garcia’s out-of-court statements at Martin’s supervised

release revocation hearing did not violate Martin’s constitutional rights or Fed. R.

Crim. P. 32(b)(2)(C). The judgment of the district court is affirmed.

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