United States v. Ricky Johnson
2013 U.S. App. LEXIS 5864
| 8th Cir. | 2013Background
- Johnson was convicted in 2007 of conspiracy to possess stolen mail and received 15 months plus a 3-year supervised release term beginning March 17, 2009.
- A Petition for Warrant for Offender Under Supervision alleged violations including forgery, theft, failed drug tests, and missed treatment.
- At revocation, Johnson admitted to leaving a rehab facility and a positive marijuana test but did not admit to state charges.
- The government proposed reading a police report into evidence to prove the forgery/theft allegations; no officers testified.
- The district court allowed the police report to be read, over Johnson’s objection, and sentenced him to 21 months imprisonment plus a new 3-year term; appeal followed.
- Court remanded for resentencing on the existing record, without expanding the record or considering the police report content.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reading a police report without live testimony violated due process | Johnson (Johnson) argues cross-examination rights were violated | The government argues relaxed revocation-hearing rules and reliability of report suffice | Remanded; due process violation found requiring confrontation |
| Whether the issue was properly preserved on appeal | Johnson preserved the right to confront adverse witnesses | Government argues issue not properly raised under Rule 32.1(b)(2)(C) | Issue preserved; reversal affirmed on merits |
| Whether police report alone can constitute reliable evidence without testimony | Police report is insufficient without live testimony | Report may be reliable if corroborated or officers unavailable | District court erred; right to confrontation outweighed reliance on report |
| Whether the case should be remanded with expanded record | Remand allowed to develop evidence | Record should not be expanded; one-bite-at-a-time rule applies | Remanded without expansion of the record; no new evidence allowed |
Key Cases Cited
- Morrissey v. Brewer, 408 U.S. 471 (U.S. 1972) (due process requires confrontation unless good cause shown)
- Bell v. United States, 785 F.2d 640 (8th Cir. 1986) (balancing confrontation vs. government grounds for not requiring it)
- Farmer v. United States, 567 F.3d 343 (8th Cir. 2009) (police report corroboration ok when witness unavailable)
- Black Bear, 542 F.3d 249 (8th Cir. 2008) (live testimony vs. evidence reliability in revocation hearings)
- Thomas v. United States, 630 F.3d 1055 (8th Cir. 2011) (government burden and opportunity to present evidence)
- Zentgraf, 20 F.3d 906 (8th Cir. 1994) (Rule 32.1 codifies due-process cross-examination)