Submitted February 10, 2014
Appeal from United States District Court for the Western District of Arkansas - Ft. Smith.
For United States of America, Plaintiff - Appellee: Allison Waldrip Bragg, U.S. Attorney's Office, Western District of Arkansas, Fort Smith, AR.
For Mandingo Simms, Defendant - Appellant: Bruce Eddy, Federal Public Defender, Fayetteville, AR; Mandingo Simms, Federal Correctional Institution, Pollock, LA.
Before LOKEN, BOWMAN, and BYE, Circuit Judges.
LOKEN, Circuit Judge.
Mandingo Simms appeals the district court's revocation of supervised release.
He argues that the court violated his due process right to confront witnesses when it admitted hearsay evidence at the revocation hearing without engaging in the analysis required by United States v. Bell, 785 F.2d 640, 642-43 (8th Cir. 1986), and later decisions. See also Fed. R. Crim. P. 32.1(b)(2)(C). We review this constitutional claim de novo . See United States v. Farmer, 567 F.3d 343, 347 (8th Cir. 2009). Concluding the Bell issue was not properly preserved in the district court, we affirm.
Simms began a five-year term of supervised release in September 2009 after serving a prison sentence for conspiring to distribute cocaine base. In October 2010, he was convicted of misdemeanor third degree domestic battery in an Arkansas state court. Jurisdiction over his supervised release was then transferred to the Western District of Arkansas. On August 22, 2012, Simms's estranged wife, Nikki Simms, complained to Van Buren, Arkansas police that Simms had battered, sexually assaulted, and threatened to kill her for many hours the prior night. Nikki Simms was referred to the Women's Crisis Intervention Center in Fort Smith, where her physical injuries were identified. The next day, she applied for an ex parte Order of Protection against Simms, which the Crawford County Circuit Court issued after a September 19 hearing. Criminal charges were filed in state court on September 10.
Based on this incident, U.S. Probation Officer Brent Young petitioned the district court for revocation of Simms's supervised release, charging him with violating the condition that he not commit another crime. The Petition alleged that Van Buren police had charged Simms " with aggravated assault of a family or household member, terroristic threatening, domestic battery 3rd degree, and criminal mischief 1st degree." The Petition gave a detailed summary of the incident as reported by Nikki in the police " incident report." The Petition also " noted" the 2010 state court conviction, for which no action had been requested " due to the circumstances of the charge."
The court held a revocation hearing on July 11, 2013. The government's evidence consisted of testimony by Probation Officer Young and Van Buren Detective Randall Allen; the Transcript of Judgment for Simms's 2010 conviction; police incident reports relating to the 2010 and 2012 incidents; photos of Ms. Simms's injuries; photos of the broken bed frame where Nikki alleged Simms forcefully threw her during the sexual assault; photos of text messages Simms sent to Nikki on August 23, 2012, admitting that he made " a big mistake" and asking her to forgive him; and Arkansas State Crime Lab reports that Simms's DNA was present in material collected during a sexual assault exam of Nikki Simms shortly after the incident. During cross examination of Detective Allen, defense counsel introduced the ex parte Order of Protection and an August 22 Crisis Intervention Center report that included a lengthy hand-written narrative of the incident by Nikki Simms.
Despite the obvious issues raised by this array of evidence, only one hearsay or confrontation objection was made at the hearing. After the government introduced the 2010 Judgment ...