United States v. Gerald Wheeler: On-the-Record Rule 32.1 Confrontation Balancing and Meaningful “Good Cause” to Admit Hearsay at Revocation

1) Introduction

In United States v. Gerald Wheeler (4th Cir. Mar. 10, 2025), the Fourth Circuit vacated a supervised-release revocation and remanded with instructions to dismiss the revocation petition after concluding that the district court improperly admitted critical hearsay from an absent alleged victim. The case arises from a late-supervision incident at a Charlotte-area hotel in which Gerald Adrian Wheeler (the defendant-appellant) was accused of assaulting his then-partner, Nyasia Mobley. A probation officer filed a revocation petition alleging (1) felony assault by strangulation and (2) misdemeanor assault on a female. The magistrate judge found no probable cause on the strangulation allegation but found probable cause on the misdemeanor assault allegation. At the final revocation hearing, Mobley did not appear, and the Government proceeded through hotel-employee testimony, a probation officer, and responding police officers—who repeated Mobley’s out-of-court statements.

The central legal issue was whether Mobley’s hearsay statements could be admitted under the due-process and Rule 32.1 framework governing confrontation in revocation proceedings, and—if admission was erroneous—whether the error was harmless.

2) Summary of the Opinion

The Fourth Circuit (Judge Thacker, joined by Senior Judge Floyd; Judge King dissenting) held that the district court abused its discretion by admitting Mobley’s hearsay statements without properly applying the balancing test required by United States v. Doswell. The panel announced and reinforced two key points:

  • Balancing must be done “on the record.” The district court must articulate an on-the-record balance between the defendant’s confrontation interest and the Government’s “good cause” for denying confrontation before admitting hearsay in a revocation hearing.
  • The burden is on the Government, and “good cause” must be real. The court erred by effectively shifting the burden to the defendant (“no good cause not to consider” the hearsay). Moreover, the Government’s efforts to secure the witness were insufficient—largely texting and calling, plus a single residence visit days before the hearing—particularly where the witness was in-state and known.

The Fourth Circuit rejected harmlessness because the district court’s finding that Wheeler committed the assault depended on Mobley’s hearsay to connect Wheeler to the injuries observed by officers. Without her statements, the evidence did not establish by a preponderance that Wheeler was the assailant. The panel vacated and remanded with instructions to dismiss the revocation petition.

3) Analysis

3.1 Precedents Cited

A. Confrontation and Due Process at Revocation

  • Morrissey v. Brewer, 408 U.S. 471 (1972)
    The constitutional anchor: even in informal revocation settings, due process includes the right to confront and cross-examine adverse witnesses unless the hearing officer specifically finds good cause to deny confrontation. Wheeler treats this as the backdrop against which Rule 32.1 operates.
  • Fed. R. Crim. P. 32.1(b)(2)
    The rule-based expression of that limited confrontation right: the defendant may “question any adverse witness unless the court determines that the interest of justice does not require the witness to appear.” The opinion emphasizes the presumption embedded in the rule’s structure: confrontation is the default; dispensing with it requires justification.

B. The Fourth Circuit’s Revocation Hearsay Framework

  • United States v. Doswell, 670 F.3d 526 (4th Cir. 2012)
    The governing Fourth Circuit standard: before admitting hearsay at revocation, the district court must balance the releasee’s confrontation interest against the Government’s proffered good cause. Doswell identifies two core inquiries that inform that balance: (1) reliability of the hearsay and (2) a satisfactory explanation for not producing the witness. Wheeler relies on Doswell both to find error and to clarify what district courts must do procedurally—namely, conduct the balancing on the record.
  • United States v. Ferguson, 752 F.3d 613 (4th Cir. 2014)
    Ferguson supplies two critical propositions used in Wheeler: (1) even reliable hearsay is inadmissible unless the Government shows good cause for unavailability; and (2) the harmless-error standard—whether the error had a “substantial and injurious effect or influence on the outcome.” Wheeler uses Ferguson to reject the Government’s argument that reliability alone (or near-reliability) can substitute for production efforts.
  • United States v. Combs, 36 F.4th 502 (4th Cir. 2022)
    Cited for the standard of review: evidentiary rulings at revocation are reviewed for abuse of discretion, framing how the panel evaluates the district court’s admission decision.

C. Abuse of Discretion and Review Principles

  • United States v. Delfino, 510 F.3d 468 (4th Cir. 2007) and Scott v. Family Dollar Stores, Inc., 733 F.3d 105 (4th Cir. 2013)
    These cases define abuse of discretion, including legal error and misapprehension of governing law—used here to classify the district court’s failures (lack of on-the-record balancing and burden shifting) as reversible legal errors.

D. Guidance from Sister Circuits on “Good Cause” Efforts

  • United States v. Comito, 177 F.3d 1166 (9th Cir. 1999)
    The Ninth Circuit’s articulation of how to weigh the confrontation interest: consider (1) the importance of the hearsay to the ultimate finding and (2) the nature of the facts to be proven by the hearsay. Wheeler uses Comito to underscore that Wheeler’s confrontation interest was at its apex because Mobley’s hearsay supplied the essential proof of who assaulted her.
  • United States v. Sutton, 916 F.3d 1134 (8th Cir. 2019)
    The Eighth Circuit’s catalog of circumstances that can amount to good cause (e.g., unreasonably burdensome out-of-state transport, witness cannot be found, witness refuses to testify, danger to an informant). Wheeler draws from Sutton to show how thin the Government’s explanation was by comparison—especially because the witness was in the same state and known.
  • United States v. Timmons, 950 F.3d 1047 (8th Cir. 2020)
    Cited for the proposition that a single failed attempt to subpoena a witness is not a “reasonably satisfactory explanation.” The Fourth Circuit analogizes the Government’s minimal service effort in Wheeler to that insufficient showing.

E. Harmless Error Benchmark

  • Kotteakos v. United States, 328 U.S. 750 (1946)
    The source of the “substantial and injurious effect or influence” formulation applied via Ferguson to decide whether the confrontation error required reversal.

F. Prior Wheeler Appellate History

  • United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018)
    Relevant for procedural context (post-conviction relief and resentencing) but not central to the confrontation rule announced here.

3.2 Legal Reasoning

A. The Court’s Clarification: “Balance, on the record”

The district court acknowledged the existence of the Doswell balancing obligation and stated it was conducting it, but the Fourth Circuit held that conclusory invocation is not enough. The panel emphasized that the balancing must be articulated so that an appellate court can review whether the district court truly weighed: (1) how strong the defendant’s confrontation interest was, and (2) whether the Government established good cause (including genuine unavailability and adequate efforts).

The opinion’s key doctrinal move is explicit and prospective: “we make clear today that district courts considering the admission of hearsay evidence in revocation proceedings must balance, on the record, the defendant's interest in confrontation against the Government's good cause.” This functions as a procedural enforcement rule designed to prevent “checkbox” admissibility and to create reviewable findings.

B. Correction of Burden Shifting

The district court stated it did not “find any good cause not to consider” Mobley’s hearsay. The Fourth Circuit treated that phrasing as a legal error because it effectively made the defendant show a reason to exclude hearsay, rather than requiring the Government to show good cause to admit it. Under Doswell and Ferguson, the Government bears the burden to demonstrate both reliability and good cause (including why the adverse witness is unavailable).

C. “Good Cause” Was Not Shown: Insufficient Efforts to Produce the Witness

The Fourth Circuit declined to definitively resolve whether Mobley’s statements were reliable, focusing instead on the Government’s failure to justify her absence. The panel found the production efforts deficient because:

  • the Government had months between probable cause and the hearing, and weeks between subpoena issuance and the hearing;
  • the probation officer largely relied on texts/calls and made only one in-person attempt at the known residence days before the hearing;
  • the witness was in the same state as the hearing (making procurement generally not an “inordinate burden” under the Eighth Circuit’s approach cited);
  • the Government did not use the United States Marshals Service to serve the subpoena.

The message is operational: “unavailability” is not established by a witness’s evasiveness alone where the Government does not exhaust reasonable service measures—especially when the hearsay is central to proving the violation.

D. Harmless Error Rejected Because Hearsay Was the Link to Culpability

The Government argued that the district court would have found the violation even without Mobley’s hearsay because there was evidence of an incident and observed injuries. The Fourth Circuit disagreed, reading the district court’s explanation as explicitly relying on Mobley’s oral and written statements to connect the injuries to Wheeler. Without Mobley’s narrative, officers could describe their observations but could not supply admissible proof of who assaulted her or how. Thus, the hearsay admission had a substantial influence on the outcome and was not harmless.

3.3 Impact

A. Practical Change in Fourth Circuit Revocation Procedure

On-the-record balancing is the opinion’s clearest “new” directive. Although Doswell required balancing, Wheeler makes explicit that district courts must place that balancing analysis on the record, not merely announce that it occurred. This increases the likelihood that revocation hearings will include:

  • specific findings on the defendant’s confrontation interest (e.g., whether hearsay is decisive or merely cumulative);
  • specific findings about the Government’s efforts to procure the witness (service attempts, timing, use of marshals, proof of refusal, inability to locate, or safety concerns);
  • a clearer separation between reliability analysis and the distinct “good cause/unavailability” showing.

B. Higher Expectations for Witness-Production Efforts

While the Fourth Circuit did not adopt a rigid checklist, its reasoning signals that minimal efforts—particularly a single in-person attempt close to the hearing—may not satisfy Rule 32.1 when the witness is local and the hearsay is essential. Prosecutors and probation offices should expect litigation over: timing of subpoena issuance, documentation of service attempts, escalation steps (alternate addresses, stakeouts, marshals), and whether the witness actually refused (as opposed to merely being “unresponsive”).

C. Remedy: Dismissal Instructions

The remand “with instructions ... to dismiss the Revocation Petition” is notable. It reflects the panel’s view that, absent the improperly admitted hearsay, the evidentiary record could not meet the preponderance standard—so a do-over hearing on the same petition would not cure the deficiency on this record.

D. Likely Litigation Hotspots

  • What “on the record” requires: how detailed findings must be to survive appellate review.
  • Defining reasonable efforts: the boundary between “unavailable” and “not diligently produced.”
  • Domestic-violence revocations: where victim nonappearance is common, courts will scrutinize both reliability and the Government’s explanation more closely.

4) Complex Concepts Simplified

  • Supervised-release revocation hearing: A post-conviction proceeding to determine whether a person violated release conditions. The Government’s burden is typically preponderance of the evidence (more likely than not), not beyond a reasonable doubt.
  • Hearsay: An out-of-court statement offered to prove the truth of what it asserts. Formal rules of evidence are relaxed at revocation, but due process still limits reliance on hearsay when it replaces meaningful cross-examination.
  • Rule 32.1 confrontation right: A limited but real right to question adverse witnesses unless the “interest of justice” permits proceeding without them—implemented through the Doswell balancing test.
  • “Good cause” for not producing a witness: A justified reason the witness cannot or should not be brought to testify live (e.g., cannot be found despite diligence, refuses to testify after process, extreme burden, safety risks). Mere inconvenience or minimal effort is not enough when the hearsay is pivotal.
  • Harmless error: Even if the court made a legal mistake, the judgment stands if the mistake likely did not affect the result. Here, because the hearsay supplied the key link to culpability, the error was not harmless.

5) Conclusion

United States v. Gerald Wheeler strengthens procedural rigor in Fourth Circuit revocation practice by insisting that district courts perform—and record—the Rule 32.1/Doswell confrontation balancing before admitting hearsay. It also reinforces that the Government bears the burden to prove both reliability and genuine good cause for nonproduction, and that sparse efforts to secure an in-state witness (texts, calls, and a single late service attempt) may be insufficient—particularly when the hearsay is the linchpin of the violation. The decision’s practical significance is clear: when the Government’s case depends on an absent declarant, courts must demand demonstrated diligence in producing that witness or risk reversal and, as here, dismissal of the revocation petition.