Argued: January 6, 2015.
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 02-CR-75 -- Rudolph T. Randa, Judge.
For United States of America, Plaintiff - Appellee: Jonathan H. Koenig, Attorney, Office of The United States Attorney, Milwaukee, WI.
For Dennis Wayne Moslavac, Defendant - Appellant: Juval O. Scott, Attorney, Daniel W. Stiller, Federal Public Defender, Federal Defender Services of Eastern Wisconsin, Incorporated, Milwaukee, WI.
Before FLAUM, WILLIAMS, and TINDER, Circuit Judges.
Flaum, Circuit Judge.
In July 2014, Dennis Moslavac was three months shy of completing a four year term of supervised release when he was arrested and accused of violating the terms of that release. Among other alleged violations, the government accused Moslavac of committing a battery against a female victim, Jina Kizivat. Kizivat's nine-year-old daughter, D.S., allegedly witnessed the battery.
At Moslavac's parole revocation hearing, the government called Walter Sturgeon to testify about the alleged battery of Kizivat. Sturgeon is D.S.'s father and Kizivat's ex-husband; he was not present during the alleged battery. Sturgeon relayed only what D.S. told him about the incident, and the government introduced a voicemail that D.S. left for Sturgeon on the day of the alleged battery. Neither Kizivat nor D.S. testified at Moslavac's revocation hearing. Over Moslavac's objection, the district court allowed D.S.'s statements into evidence on the theory that they were excited ut-terances, but did not explicitly balance the interests of the parties under Federal Rule of Criminal Procedure 32.1(b)(2)(C). For that reason, we now reverse.
Dennis Moslavac was convicted of possessing cocaine with intent to distribute in violation of 21 U.S.C. § § 841(a)(1) and (b)(1), and sentenced to 105 months imprisonment, followed by four years of supervised release. Moslavac's term of supervised release was set to end on October 7, 2014. In July 2014, Moslavac was arrested based on allegations that he violated the terms of his supervised release. The district court held a revocation hearing on August 14, 2014 to determine what sentence--if any--Moslavac should receive for the alleged violations. The government claimed that Moslavac violated the terms of his supervised release in seven ways: (1) the alleged battery of female victim, Jina Kizivat; (2) the alleged battery of female victim, Joann Werner; (3) having a positive urine test for drugs; (4) failing to report for drug testing; (5) associating with persons using marijuana; (6) failing to give his parole officer advance notice of a change in residence; and (7) failing to report to an appointment with his parole officer. Moslavac contested the first two battery allegations, but did not dispute the remaining claims.
At Moslavac's revocation hearing, the government presented evidence of both batteries. Only the evidence relating to the alleged battery of Kizivat is at issue in this appeal. As evidence of the Kizivat battery, the government relied on the " testimony" of D.S.--Kizivat's nine-year-old daughter who allegedly witnessed the battery. Specifically, the government called Walter Sturgeon--D.S.'s father and Kizivat's ex-husband--as its only witness. Sturgeon testified that he dropped D.S. off with Kizivat on the morning of the alleged incident, and that he received several phone calls from D.S. later in the day telling him that Moslavac hit Kizivat's foot with a metal object after he became angry about a phone call Kizivat received. D.S. apparently conveyed to Sturgeon that the incident was all her fault because she told
Moslavac about the phone call. The next day, Sturgeon realized that D.S. left a voicemail message on his phone when she was attempting to reach him. The government played D.S.'s voicemail during the ...