1

The Honorable E. Richard Webber, United States District Court Judge for the

Eastern District of Missouri. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 05-1150

___________

United States of America, *

*

Plaintiff - Appellee, * Appeal from the United States

* District Court for the 

v. * Eastern District of Missouri.

* 

Tim Kelly, * [UNPUBLISHED]

*

Defendant - Appellant. * 

___________

Submitted: June 24, 2005

Filed: July 20, 2005

___________

Before MURPHY, BYE, and SMITH, Circuit Judges.

___________

PER CURIAM.

Tim Kelly appeals the district court's1

 order revoking his supervised release and

sentencing him to twenty-two months imprisonment. Kelly contends the district

court's decision was based on inadmissible hearsay testimony in violation of his right

to confront witnesses against him. We affirm. 
-2-

I

Kelly was convicted of one count of interstate travel in aid of a racketeering

enterprise in violation of 18 U.S.C. § 1952, and sentenced to sixty months

imprisonment followed by three years supervised release. On October 7, 2003, Kelly

began his three-year term of supervised release. Almost immediately, he experienced

difficulty conforming to the conditions of his supervised release. On February 24,

2004, Kelly was ordered to an in-patient treatment facility but was discharged March

18, 2004. On March 23, 2004, the probation officer petitioned the district court to

modify the conditions of Kelly's supervised release based on numerous violations of

his supervised release conditions, including positive urine tests for marijuana and

cocaine. The court modified the conditions of release and ordered Kelly to a thirtyday in-patient drug treatment facility. Kelly left the program after five days.

 

Over the next several months, Kelly continued to accumulate violations of his

supervised release conditions. On June 16, 2004, he drove his vehicle into a building

and left the scene of the accident. The following day, Kelly reported the car stolen.

Later, he admitted driving it into the building and leaving the scene of the accident.

Kelly stated he had been at a bar earlier in the evening and returned to the bar after

the accident to calm down. 

On October 9, 2004, Kelly was stopped by St. Louis police for speeding and

subsequently charged with failure to maintain a single lane, careless and imprudent

driving, failure to yield to an emergency vehicle and driving while intoxicated.

Arresting officers performed field sobriety tests and concluded Kelly was under the

influence of alcohol. 

Kelly also failed to complete a drug and alcohol out-patient treatment program

and missed several appointments for counseling and drug testing. Throughout this

time, Kelly consistently tested positive for marijuana use. He claimed the test results
-3-

were skewed by medication he took for treatment of migraine headaches, but

following a positive test on November 1, 2004, showing marijuana and cocaine, he

admitted using both drugs. Finally, on November 29, 2004, the probation officer

searched Kelly's residence and seized over 100 grams of marijuana. 

Based on these violations, the probation officer filed a petition with the district

court to revoke Kelly's supervised release. Kelly denied each of the allegations and

on December 14, 2004, the district court conducted a revocation hearing. At the

hearing, Officer Brian Green of the Wright City Police Department testified he came

on duty at 6:00 a.m. the morning of June 16, 2004, and was advised officers were

attempting to contact the owner of a vehicle which had struck a building earlier in the

shift. Green testified he "had occasion to read the police reports or talk to officers or

other individuals" about the accident. Kelly's attorney objected arguing the testimony

was hearsay and violated Kelly's right to confront witnesses against him. The district

court overruled the objection concluding it was permitted to consider hearsay

testimony during a revocation proceeding and the evidence was admissible to explain

Green's subsequent investigation into the accident. 

On appeal, Kelly argues the district court erred when it allowed Green to testify

about the police reports he read and the conversations he had with other officers

about the accident. Kelly contends the testimony violated his right to confront

witnesses against him at the revocation hearing. 

II

The Federal Rules of Evidence do not apply in revocation hearings. Fed. R.

Evid. 1101(d)(3) ("The rules . . . do not apply in the following situations: . . .

Proceedings for . . . granting or revoking probation . . . "). Nevertheless, all hearsay

evidence is not admissible in revocation proceedings. United States v. Redd, 318

F.3d 778, 783 (8th Cir. 2003). Probationers must be provided due process and
-4-

statutory protections in revocation hearings. Id. (citing Morrissey v. Brewer, 408

U.S. 471, 488-89 (1972) (stating a parolee is entitled to confront adverse witnesses

in a revocation hearing unless the hearing officer specifically finds good cause for not

allowing such confrontation); Fed. R. Crim. P. 32.1(a)(2)(D) (providing that a person

accused of violating probation or supervised release is entitled to a revocation hearing

and an opportunity to confront adverse witnesses)).

In United States v. Bell, 785 F.2d 640, 642-43 (8th Cir. 1986), we held the trial

court in a revocation proceeding must "balance the [defendant's] right to confront a

witness against the grounds asserted by the government for not requiring

confrontation." Id. (holding it was not error to allow the government to introduce

urinalysis laboratory results through a probation officer who had not prepared the

report and without live testimony from the laboratory technicians because the hearsay

was reliable and the proposed testimony was of little value). The need to apply this

balancing test is well established. See United States v. Reynolds, 49 F.3d 423, 426

(8th Cir. 1995) (holding it was reversible error for a district court to fail to apply a

balancing test before admitting oral hearsay testimony recounting a third party's

allegations of sexual assault by the probationer); United States v. Zentgraf, 20 F.3d

906, 909-10 (8th Cir. 1994) (applying balancing test and determining it was

reversible error to admit oral hearsay testimony rather than direct testimony from

probationer's accomplice who was in custody and available to testify).

Kelly argues the district court committed reversible error by failing to apply the

Bell balancing test. We disagree. In United States v. Redd, the defendant objected

on hearsay and confrontation clause grounds to the admission of drug test reports

purporting to document his ongoing drug use. 318 F.3d at 781. Redd argued the

records were hearsay and the technicians who performed the tests were not present

at the hearing to provide foundation or for cross-examination. Id. The district court

overruled the objections and, in reliance upon the positive drug tests, revoked Redd's

supervised release. Id. at 781-82. 
-5-

On appeal, Redd renewed his hearsay and confrontation clause objections

arguing the revocation of his supervised release should be reversed because the

district court failed to apply the Bell balancing test. This court, noting the test had

not been applied by the district court, concluded "[t]he record is sufficient for our

application of the balancing test which supports the implicit findings of the district

court, namely, that the evidence admitted was reliable and that the de minimis value

of testimony from the proposed technician-witnesses did not outweigh the

government's inconvenience and expense in making those witnesses available." Id.

at 784. As in Redd, there is sufficient evidence in this record for us to apply the

balancing test on appeal.

 

Here, the hearsay the district court admitted was reliable and the additional

testimony proposed by Kelly was of little value. Kelly argues the government should

have called one of the officers with first-hand knowledge of the car accident to

testify. Such testimony, however, would have added little to the evidence received

at the revocation hearing. 

Based on information received from the outgoing shift, Green contacted Kelly

and advised him his vehicle had been involved in an accident. Kelly did not deny the

vehicle was his or that it had been involved in an accident. Indeed, after initially

lying to police, Kelly admitted he was driving when his vehicle struck the building.

Kelly's admissions corroborated Green's hearsay testimony giving it sufficient indicia

of reliability to establish good cause for the government to avoid the difficulty and

expense of bringing additional officers to testify. Thus, there was no violation of

Kelly's right to confront witnesses against him. 

III

The judgment of the district court is affirmed. 

______________________________