United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
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
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[;
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
Id. at p. 2.
April 25, 2016, the court held an evidentiary hearing on the
first allegation. 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.
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) and determine that [his] constitutional
rights were violated by the government’s reliance on
hearsay evidence.” (Docket 60 at p. 2).
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.
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).
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).
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
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.
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.
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 ...