United States v. Demarcus Timmons, 950 F.3d 1047

Background:

Timmons was on supervised release after a firearms conviction; probation filed a petition for drug-related violations and a supplemental petition alleging domestic assault and child endangerment, which raised his Guideline range to 12–18 months.
At the revocation hearing the Government offered a Dubuque officer’s testimony, a 911 hang-up call, photos of the victim’s injuries, and a body‑camera recording of victim Tonia Berry’s on-scene police interview; Berry did not appear in court.
The Government attempted a single, arguably “borderline” subpoena service the day before the hearing; the district court admitted Berry’s recorded statement over Timmons’s Rule 32.1/due‑process objection, finding it reliable.
Timmons presented witnesses who contradicted Berry’s account and introduced Berry’s prior Iowa conviction for lying to police; the district court credited Berry’s statement, discredited defense witnesses, found violations by a preponderance, and sentenced Timmons to 16 months.
On appeal Timmons argued the district court violated Rule 32.1 and his due‑process right to confront adverse witnesses; the Eighth Circuit reversed and remanded for further proceedings.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether admitting Berry’s out‑of‑court police statement denied Timmons his right to confront an adverse witness under Morrissey/Rule 32.1	Timmons: Confrontation was required; statement was hearsay and he had no opportunity to cross‑examine	Government: It attempted to subpoena Berry and her recorded statement was reliable so live testimony was unnecessary	Court: Denial violated due process; reversal and remand
Whether the Government’s efforts to procure Berry’s live testimony were reasonably satisfactory	Timmons: One borderline subpoena attempt was inadequate	Government: It made service attempts and timely subpoenaed Berry	Court: Efforts were insufficient; Berry was in‑state and live testimony was practicable
Whether Berry’s recorded police statement was sufficiently reliable to replace live testimony	Timmons: Statement was unsworn, uncorroborated as to who caused injuries, and undermined by Berry’s prior conviction for lying to police	Government: 911 call, statement to police, and absence of motive to lie made it reliable	Court: Statement was not demonstrably reliable given its unsworn nature, limited corroboration, and credibility concerns
Whether admission of the statement was harmless error	Timmons: Not harmless—statement was the only evidence tying him to the injuries and was used to discredit defense witnesses	Government: (asserted sufficiency of evidence)	Court: Error was not harmless; without the statement the court could not have found the state‑law violations proved by a preponderance

Key Cases Cited

Morrissey v. Brewer, 408 U.S. 471 (1972) (establishes minimum due‑process protections at revocation hearings including confrontation)
United States v. Sutton, 916 F.3d 1134 (8th Cir. 2019) (discusses confrontation rights and reliability of hearsay in revocation proceedings)
United States v. Bell, 785 F.2d 640 (8th Cir. 1986) (articulates balancing test for admitting hearsay in revocation hearings)
United States v. Black Bear, 542 F.3d 249 (8th Cir. 2008) (harmless‑error standard for revocation hearing evidentiary errors)
United States v. Martin, 371 F.3d 446 (8th Cir. 2004) (reasonably satisfactory explanation required for not producing a witness; when fear may justify not calling witness)
United States v. Simms, 757 F.3d 728 (8th Cir. 2014) (victim hearsay can be reliable when corroborated)
United States v. Comito, 177 F.3d 1166 (9th Cir. 1999) (unsworn oral statements to police are among the least reliable hearsay)
United States v. Johnson, 710 F.3d 784 (8th Cir. 2013) (court may continue proceedings to secure live testimony rather than proceed without witness)
United States v. Dawn, 685 F.3d 790 (8th Cir. 2012) (remedies for improper admission of hearsay at revocation proceedings)