United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3265
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Sid L. Martin, *
*
Defendant - Appellant. *
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Submitted: February 10, 2004
Filed: June 10, 2004
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Before LOKEN, Chief Judge, BOWMAN and WOLLMAN, Circuit Judges.
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LOKEN, Chief Judge.
After serving a 120-month sentence for manufacturing and possessing
destructive devices without a license, Sid L. Martin began a three-year term of
supervised release on March 13, 2002. His probation officer filed a Violation Report
on July 31, 2003, followed by a motion to revoke his supervised release, alleging that
Martin violated the standard condition that “the defendant shall not commit another
federal, state, or local crime” when he assaulted his teenage stepdaughter, Brandy
Moss, and his mother-in-law, Betty Vaughn, during a domestic disturbance. After
an evidentiary hearing, the district court1 found that Martin committed the two
assaults, revoked supervised release, and sentenced Martin to eighteen months in
prison with no further term of supervised release. Martin appeals, arguing the court
erred by admitting out-of-court hearsay statements by Moss and Vaughn, neither of
whom appeared at the hearing, and by imposing a greater prison sentence than the
five-to-eleven month range set forth in U.S.S.G. § 7B1.4, the Sentencing
Commission’s policy statement regarding revocation prison sentences. We affirm.
Moss called 911 from a neighbor’s house on July 31, sobbing and nearly
hysterical, to report that Martin had dragged her up the stairs and hit her repeatedly
when she would not end a telephone conversation. Before police officers could
arrive, Vaughn also called 911, reporting that she arrived on the scene when
summoned by Moss, and that Martin had a gun and was throwing Moss’s personal
belongings in the yard and street. When the police arrived, Martin refused to put up
his hands and approach the officers, instead retreating into his house, where there
were three young children, and locking the door. It took two police officers nearly
an hour to persuade Martin to come out of the house. By then, twenty to twenty-five
police officers had responded to the potentially dangerous situation. The police
interviewed the children. One said Martin had hit Moss many times; another said
Martin kept a gun in the house. No gun was found. Vaughn reported that one of the
items thrown by Martin had struck her in the face. Neither Moss nor Vaughn
required medical treatment. Martin was arrested without further resistance and
charged with assaulting Moss and Vaughn. The police contacted his probation
officer, and these revocation proceedings followed.
At the preliminary hearing, counsel for Martin complained that neither Moss
nor Vaughn appeared, noting that Rule 32.1(b)(2)(C) of the Federal Rules of Criminal
1
The HONORABLE GARY A. FENNER, United States District Judge for the
Western District of Missouri.
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Procedure requires a revocation hearing at which Martin may “question any adverse
witness unless the court determines that the interest of justice does not require the
witness to appear.” The magistrate judge found probable cause to revoke but advised
the prosecutor, “I do expect that when it goes in front of Judge Fenner [for the final
revocation hearing] that you would have the principal witnesses available for
testimony here including [Moss] who’s down in Texas.” At the start of the final
hearing, the prosecutor advised:
Miss Moss is somewhere in Texas and the government has not been able
to find her at this time. So she is not here today. And we did not serve
Betty Vaughn with a subpoena. We weren’t sure about her state of mind
because she is Mr. Martin’s mother-in-law.
The district court then asked Martin and defense counsel whether they wished to
proceed with the hearing; Martin said yes. The government introduced an audiotape
of the 911 conversations and the testimony of the probation officer and two police
officers who responded to the 911 calls. The court overruled Martin’s hearsay
objections and admitted out-of-court statements by Moss and Vaughn.
1. Martin first argues that the district court deprived him of his right to
question Moss and Vaughn, the complaining adverse witnesses, when it overruled his
hearsay objections. The government responds that Martin waived this issue when he
said the hearing could continue without their appearances. We disagree in part.
Martin may have waived his right to confront these witnesses, but he did not waive
his right to object to improper hearsay evidence offered by the government to meet
its burden of proof that he committed assault offenses warranting revocation.
Hearsay evidence offered by the government may be admitted at a supervised
release revocation hearing if the evidence is sufficiently reliable and the government
has a “reasonably satisfactory explanation” for not producing the witness. United
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States v. Zentgraf, 20 F.3d 906, 910 (8th Cir. 1994); see United States v. Bell, 785
F.2d 640, 642-44 (8th Cir. 1986). Here, the government’s explanation for not
producing Moss -- she was in Texas and could not be found -- was reasonably
satisfactory. Her hearsay statements to the 911 operator and the police -- that Martin
repeatedly hit her and dragged her up the stairs -- were prima facie evidence of assault
under Missouri law. See MO. STAT. ANN. § 565.074(1)(5). The statements were
sufficiently reliable, as they were spontaneous and were corroborated by the 911
audiotape, by the young child interviewed after Martin surrendered, and by what the
police officers saw as well as heard at the scene. Thus, the district court did not abuse
its discretion by admitting Moss’s out of court statements. The court’s finding that
Martin violated his conditions of supervised release by assaulting Brandy Moss was
not clearly erroneous.
On the other hand, the balancing test we must apply under Zentgraf and Bell
produces a different conclusion regarding Betty Vaughn. First, the government’s
reason for not producing Vaughn was not “reasonably satisfactory” from the
standpoint of whether to admit Vaughn’s out-of-court hearsay. The prosecutor’s
explanation -- “We weren’t sure about her state of mind” -- suggests knowledge or
a suspicion that Vaughn would not want to accuse Martin of assault at a hearing to
determine whether he should be imprisoned. Such an explanation is virtually an
admission by the government that out-of-court hearsay to the contrary would be
unreliable. Second, Vaughn’s out-of-court statements suggested that she was hit
inadvertently while Martin was throwing Moss’s possessions on the lawn and into the
street. Third, there was no corroborating evidence that Martin assaulted Vaughn. In
these circumstances, Vaughn’s hearsay statements should not have been received, at
least for the purpose of proving she was assaulted. The district court’s finding that
Martin assaulted Betty Vaughn is reversed. However, because we have affirmed the
assault finding as to Brandy Moss, we affirm the court’s judgment that Martin
violated the standard condition prohibiting him from committing another state or
local crime while on supervised release.
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2. The Guidelines classify Martin’s assault as a Grade C violation of supervised
release. See U.S.S.G. § 7B1.1(a)(3), p.s. When initially sentenced, Martin was in
criminal history category III, so his Guidelines revocation sentencing range is five to
eleven months in prison. See § 7B1.4(a), p.s. Martin argues that the district court
erred in imposing a greater eighteen-month revocation sentence. He concedes, as he
must, that the policy statement is non-binding. See United States v. Hensley, 36 F.3d
39, 41-42 (8th Cir. 1994). Because the policy statement is non-binding, “a revocation
sentence exceeding the suggested range is just that, a sentence. It is not an ‘upward
departure’ because there is no binding guideline from which to depart.” United States
v. Shaw, 180 F.3d 920, 922 (8th Cir. 1999). As the sentence is not an upward
departure, it is not subject to the de novo review recently mandated by the Protect
Act. See 18 U.S.C. § 3742(e)(3). Rather, we review for abuse of discretion the
district court’s decision to sentence Martin to a longer term than that suggested by
§ 7B1.4. See United States v. Kaniss, 150 F.3d 967, 968 (8th Cir. 1998).
Martin’s initial offense was a class C felony, so the eighteen-month revocation
sentence is within the statutory maximum. See 18 U.S.C. § 3583(e)(3). In imposing
a revocation sentence, the district court must consider a number of statutory
sentencing factors, including “any pertinent policy statement.” 18 U.S.C.
§§ 3553(a)(5), 3583(e). Here, noting that the guidelines suggest a range of five to
eleven months, the district court explained:
I further find and take into consideration the relevant conduct of
your failure to obey the lawful command of the police officers who
arrived to investigate the 911 call by refusing to show your hands to the
officer, refusing to put your hands up, refusing to approach the officers
as you were requested, refusing to stop as you were requested and
refusing to come out of your house as you were requested by the
officers. And I believe that the officers were conducting themselves in
an appropriate fashion, that their objective was to protect everyone
involved in the incident including you . . . . And your conduct certainly
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served to exacerbate, to make the entire situation much worse than it
otherwise had to be.
Martin argues that the court abused its discretion by failing to consider the
Chapter Seven commentary and application notes. But the sentencing statutes do not
require detailed findings or a mechanical listing of every relevant factor. After
careful review, we are satisfied that the court’s explanation demonstrates that it did
consider the relevant sentencing factors in 18 U.S.C. § 3553(a) as well as the Chapter
Seven policy statements. Compare United States v. Jones, 973 F.2d 605, 607-08 &
n.4 (8th Cir. 1992), with United States v. Tschebaum, 306 F.3d 540, 544-45 (8th Cir.
2002). We also conclude that the sentence is warranted by the evidence that was
properly received at the revocation hearing and therefore is not an abuse of the court’s
sentencing discretion.
The judgment of the district court is affirmed.
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