Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Goose

United States District Court, D. South Dakota, Western Division

July 14, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
ARIC SINGING GOOSE, Defendant.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE

         On December 12, 2014, defendant Aric Singing Goose was convicted of failure to register as a sex offender in violation of 18 U.S.C. § 2250(a). (Docket 39). Mr. Singing Goose was sentenced to a period of incarceration of time served and was placed on supervised release for a period of five years on certain conditions. Id. On February 17, 2016, the United States Probation Officer supervising Mr. Singing Goose filed a petition seeking to revoke his supervised release. (Docket 41). The petition alleges Mr. Singing Goose violated the conditions of his supervised release by the following conduct:

1. On or about 02/05/2016, in Rapid City, SD, Aric Singing Goose engaged in conduct which constitutes a violation of state law, that is, Aggravated Assault/Domestic Violence, in violation of the Mandatory Conditions of supervised release[; and]
2. On or about 02/05/2016, at Rapid City, SD, Aric Singing Goose did consume alcoholic beverages, in violation of Special Condition No. 2 of the Conditions of supervised release.

Id. at p. 2.

         On April 25, 2016, the court held an evidentiary hearing on the first allegation.[1] During the course of the hearing the government sought to present hearsay evidence of L.L.H., the alleged victim. L.L.H. had been subpoenaed by the government to attend the hearing but did not appear. Mr. Singing Goose objected to the use of hearsay evidence from L.L.H., asserting the use of hearsay evidence violated his Sixth Amendment right of confrontation. The court reserved ruling on the defendant’s motion pending post-hearing briefing. Subject to the defendant’s timely objection, the hearsay evidence was presented through the testimony of Rapid City Police Officer Cote.

         The defendant argues that pursuant to Fed. R. Crim. P. 32.1 he is entitled to confront and cross-examine L.L.H. as an adverse witness. (Docket 60 at p. 1). That rule provides that during a revocation evidentiary hearing a 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 . . . .” Fed. R. Crim. P. 32.1(b)(2)(C). In order to determine whether the “interest of justice does not require the witness to appear, ” Mr. Singing Goose asserts the court should “apply the balancing test established in United States v. Bell, 785 F.2d 640 (8th Cir. 1986)[2] and determine that [his] constitutional rights were violated by the government’s reliance on hearsay evidence.” (Docket 60 at p. 2).

         The government acknowledges the court must conduct the balancing test directed by Bell, but claims sufficient “[e]vidence was presented that makes the hearsay statements of [L.L.H.] reliable.” (Docket 61 at p. 4). The government asserts the non-hearsay evidence presented through the two police officers and the defendant’s own interactions with the officers corroborate L.L.H.’s statement to one of the officers. Id. at p. 5.

         The rules of evidence do not apply to supervised release revocation proceedings. Fed.R.Evid. 1101(d)(3). “But the right of confrontation under the Sixth Amendment does apply, and it must be honored unless the findings necessary to avoid it are made.” Bell, 785 F.2d at 643 n.3. “[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 cause. 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 [defendant] is entitled to confrontation.” Id. at 643. In this revocation proceeding, the court “must balance the [defendant’s] right to confront a witness against the grounds asserted by the government for not requiring confrontation.” Id. at 642. In order to consider the hearsay evidence, the court must conclude the government has established “good cause . . . for dispensing with confrontation.” Id. at 642-43. “First, the court should assess the explanation the government offers of why confrontation is undesirable or impractical.” Id. at 643. Secondly, the court must consider “the reliability of the evidence which the government offers in place of live testimony.” Id. “[A] claim of a Rule 32.1(b)(2)(C) violation . . . [is reviewed] . . . for an abuse of discretion.” United States v. Johnson, 710 F.3d 784, 787 (8th Cir. 2013).

         To conduct the balancing test required by Bell, the court must first consider the government’s explanation for L.L.H.’s non-appearance at the revocation hearing. The government acknowledged it subpoenaed L.L.H. for the hearing, but she did not appear. No explanation for her absence was given and the government did not request a warrant for L.L.H.’s detention as a material witness. No request for a continuance of the hearing to secure her attendance was made. Government counsel reported that L.L.H. failed to appear at a state court criminal proceeding charging Mr. Singing Goose with aggravated assault, resulting in the dismissal of that action. See also Docket 61 at p. 4. The government claims the “economic hardships faced by many residents of the Pine Ridge Indian Reservation, as well as the mental and emotional challenges faced by victims of domestic violence in confronting their abusers” justifies the court finding there were good reasons for L.L.H. not to appear at the revocation hearing. (Docket 61 at p. 4).

         The government has not presented any evidence that L.L.H. “had a well-founded fear of retaliation” or that the “burden of producing [her] live testimony [was] inordinate.” United States v. Martin, 382 F.3d 840, 845-46 (8th Cir. 2004)(referencing United States v. Comito, 177 F.3d 1166). The court concludes this factor does not support “good cause” under Bell.

         Next the court must review the testimony presented at the revocation hearing. At the hearing, the government presented the live testimony of the two police officers, a number of photographs and a knife.

         Officer Cote testified he was called to a north Rapid City residence during the late evening hours of February 5, 2016. He interviewed L.L.H. who claimed she had been assaulted by Aric Singing Goose, her boyfriend of 14 months. She told the officer that the assault occurred earlier in the evening at the M Star Motel on Mt. Rushmore Road. She claimed to have been struck in the head and on both arms multiple times by Mr. Singing Goose and when she fell to the ground he kicked her in the shins several times. She also claimed when she yelled for help he held a red-handled knife to her throat and threatened her, saying “I’m going to count to 5 and cut you if you don’t quit screaming, ” or words to that effect. She then told the officer Mr. Singing Goose released her, she left the motel and went to the north Rapid City location, some three or four miles away, where the interview took place.

         L.L.H. told the officer that she and Mr. Singing Goose had been drinking together at the motel where they were staying. Officer Cote observed L.L.H. to be dressed only in a t-shirt and sweatpants for such a cold evening and she had a .064% blood alcohol content approximately two hours after the alleged assault. The officer testified that photographs ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.