United States of America v. Carl Rose

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 24-2274
_____________
UNITED STATES OF AMERICA
v.
CARL ROSE,
Appellant
_______________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2:09-cr-00084-001
District Judge: Honorable Gerald A. McHugh
__________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
July 1, 2025
Before: SHWARTZ, FREEMAN, and SMITH, Circuit
Judges
(Filed: August 20, 2025)

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Vernon Z. Chestnut, Jr.
Suite 207
150 Monument Road
Bala Cynwyd, PA 19004
Counsel for Appellant
Kevin L. Jayne
Robert A. Zauzmer
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
_______________
OPINION
_______________
SMITH, Circuit Judge.
Carl Rose began his term of supervised release
following the completion of his sentence of incarceration for
federal drug and firearm offenses. The District Court revoked
Rose’s supervised release and sentenced him to further
incarceration based on its conclusion that Rose committed
aggravated assault while on supervision. In making that
determination, Rose argues, the District Court improperly
relied upon hearsay evidence, thereby violating his right to
confront adverse witnesses. Because the hearsay evidence was
sufficiently reliable and the Government established good
cause for the declarant’s absence, we will affirm.

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I
In 2011, a jury sitting in the Eastern District of
Pennsylvania convicted Carl Rose of federal drug and firearm
offenses. The District Court sentenced Rose to 120 months’
imprisonment, followed by a five-year term of supervised
release. But about two years after Rose’s term of supervision
began in 2019, the District Court determined that Rose violated
the terms of his supervision. That led the Court to sentence
Rose to an additional 12 months’ imprisonment, with a three-
year term of supervised release to commence thereafter. Rose
began that term of supervision in October 2021.
Again, trouble soon followed. The Probation Office
filed a report in February 2022 alleging that Rose violated the
terms of his supervision by submitting a urine specimen that
tested positive for marijuana, and then, by absconding from
supervision. The District Court ordered the issuance of a
warrant for Rose’s arrest so that he could be brought before the
Court for a revocation hearing. But before that hearing could
occur, the Probation Office filed an amended report.
The amended report provided that Rose was arrested in
Philadelphia and charged with, inter alia, aggravated assault
and prohibited possession of a firearm. According to the report,
the victim of the attack told officers that Rose entered her
bedroom, brandished a firearm and told her she owed him
money. The report further alleged he stabbed her multiple
times before fleeing.
The state charges relating to Rose’s April arrest
proceeded in the Philadelphia Court of Common Pleas. But
when the victim of the alleged stabbing failed to appear, the
Commonwealth dismissed the aggravated assault charge. Rose

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pled guilty to prohibited possession of a firearm in February
2024.
Rose appeared before the District Court for his
supervised release revocation hearing on May 22, 2024. He did
not dispute the violation related to his possession of a firearm,
so the hearing focused on the alleged aggravated assault.
The Government began by offering Timothy Flanagan,
an agent with the Bureau of Alcohol, Tobacco, Firearms and
Explosives, as its first witness. Agent Flanagan testified that
despite the issuance of a subpoena for the victim and his
repeated attempts to locate her, he was unsuccessful. He also
testified that the victim was a fugitive wanted on unrelated
charges lodged in Pennsylvania state court. Defense counsel
objected, arguing that the Government failed to establish good
cause for the victim’s nonappearance, and that admitting any
of the victim’s out-of-court statements would violate Rose’s
constitutional right to confront the witnesses against him. The
District Court stated that it was satisfied the Government had
acted in good faith in trying to locate the victim, but it reserved
ruling on the confrontation issue, citing a need to hear more
evidence.
The Government then offered Philadelphia Police
Officer Domenic Etri, who testified that he responded to the
reported stabbing. The Government moved to introduce the
body camera footage of an officer who accompanied Officer
Etri to the scene of the attack that day.
The video showed—and Officer Etri confirmed—that
the victim identified Rose as her attacker. The victim also told
officers that Rose frequents the “municipal building” in
downtown Philadelphia, App. 58, and described him as light-

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skinned, heavy set, and wearing a black jacket, Officer Etri
further testified that he accompanied the victim to a nearby
hospital. He explained that officers brought Rose to the
hospital after apprehending him. The Government introduced
Officer Etri’s body camera footage, which showed that the
victim, while at the hospital, recognized Rose as her assailant
and told officers that Rose brandished a small black gun during
the attack.
Next, the Government called Philadelphia Police
Officer Michael Mullin to the stand. He testified that on the
day of the alleged assault, he received a radio call that an
aggravated assault had just occurred and that the suspect, Rose,
frequents the municipal building. So Officer Mullin and his
partner proceeded on foot. Officer Mullin testified that when
they arrived at the plaza of the municipal building, they found
a man matching the description provided in the radio call. They
identified him as Rose. When Officer Mullin and his partner
searched Rose, they found a firearm and a bloody knife. Officer
Mullin could not confirm, however, whether law enforcement
ever tested the blood on the knife to see if it matched the
victim’s.
Having taken the matter under advisement, and after
receiving the supplemental briefing it had ordered, the District
Court concluded that consideration of the victim’s out-of-court
statements would not violate Rose’s confrontation rights. The
Court reasoned that the victim’s statements were sufficiently
reliable, and the Government had shown good cause for her
being absent from the revocation hearing.
On that basis, the District Court concluded that there
was “ample evidence” that Rose committed aggravated assault.

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App. 132. The Court revoked Rose’s supervised release and
sentenced him to a 48-month term of imprisonment.
Rose timely appealed.
II1
Rose argues that the District Court’s admission of the
victim’s out-of-court statements violated his constitutional
right to confrontation and Federal Rule of Criminal Procedure
32.1(b)(2)(C). We are not persuaded.
A
Neither the Confrontation Clause of the Sixth
Amendment nor the Federal Rules of Evidence apply in
supervised release revocation hearings. See United States v.
Lloyd, 566 F.3d 341, 343 (3d Cir. 2009) (citing Morrissey v.
Brewer, 408 U.S. 471, 488–89 (1972); Gagnon v. Scarpelli,
411 U.S. 778, 782 (1973); Fed. R. Evid. 1101(d)(3)). But
hearsay evidence is not per se admissible at such hearings, id.
at 343–44; supervised releasees maintain “the right to confront
and cross-examine adverse witnesses (unless the hearing
officer specifically finds good cause for not allowing
confrontation).” Morrissey, 408 U.S. at 489.
“This limited right to confrontation stems from the Fifth
Amendment’s Due Process Clause[.]” Lloyd, 566 F.3d at 343.
And it is codified in Federal Rule of Criminal Procedure 32.1.
See Fed. R. Crim. P. 32.1(b)(2)(C) (providing releasees with
“an opportunity to . . . question any adverse witness unless the
1 The District Court had jurisdiction under 18 U.S.C. §§ 3231
and 3583(e). We have jurisdiction pursuant to 28 U.S.C. §
1291 and 18 U.S.C. § 3742(a).

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court determines that the interest of justice does not require the
witness to appear”).
In Lloyd, our Court adopted a test to determine whether
hearsay evidence may be properly admitted in revocation
hearings. 566 F.3d at 344–45. The test requires courts to
“‘balance the [releasee’s] interest in the constitutionally
guaranteed right to confrontation against the government’s
good cause for denying it.’” Id. at 345 (quoting Fed. R. Crim.
P. 32.1(b)(2)(C) advisory committee’s note to the 2002
amendment).
With respect to the releasee’s interest in confrontation,
which “is an independent factor that should be analyzed
separately from cause[,]” we have instructed courts to
principally consider whether the proffered hearsay is
sufficiently reliable. Id. “In some cases, the releasee’s interest
in confrontation may be overwhelmed by the hearsay’s
reliability such that the Government need not show cause for a
declarant’s absence.” Id. (rejecting a “per se rule that a district
court’s failure to explicitly address cause amounts to reversible
error in all cases”). But ordinarily, even where the out-of-court
statements bear “some indicia of reliability,” the Government
must establish good cause for the declarant’s nonappearance to
outweigh the releasee’s interest in confrontation. Id.
B
We review the admissibility of hearsay evidence under
Rule 32.1(b)(2)(C), i.e., a district court’s balancing of the
Lloyd factors, for abuse of discretion. Lloyd, 566 F.3d at 344

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(citing United States v. Williams, 443 F.3d 35, 46 (2d Cir.
2006), abrogated on other grounds, Esteras v. United States,
145 S. Ct. 2031, 2038 n.1 (2005)). “Abuse of discretion
encompasses clearly erroneous findings of fact and
misapplications of the law.” Williams, 443 F.3d at 46. A
district court’s independent assessment of the hearsay’s
reliability ordinarily involves factual determinations, which we
review for clear error. See United States v. McGlory, 968 F.2d
309, 347 (3d Cir. 1992).
We begin by addressing Rose’s interest in
confrontation, as informed by the reliability of the victim’s out-
of-court statements. In Lloyd, we explained that “[h]earsay
given under oath, replete with detail, or supported by
corroborating evidence, has been recognized as reliable.” 566
F.3d at 345 (internal citations omitted). Whereas “out-of-court
statements reflecting an adversarial relationship with the
accused, or containing multiple layers of hearsay, have been
recognized as unreliable.” Id. (internal citations omitted).
Here, we conclude that the District Court correctly ruled
that the victim’s out-of-court statements bore sufficient indicia
of reliability to justify the Court’s consideration of them in
revoking Rose’s supervised release.2
2 The Government argues that the District Court correctly “held
that the victim’s out-of-court statements implicated no
confrontation interest” under Michigan v. Bryant, 562 U.S.
344, 362, 368–69 (2011) (holding that statements made to law
enforcement in order to address an ongoing emergency were
not testimonial and therefore did not implicate the defendant’s
Sixth Amendment right to confrontation). Response Br. at 29.

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We recognize, as Rose argues, that the victim’s
statements were not made under oath. But while “unsworn and
oral statements to the police are the least reliable type of
hearsay,” they “may nevertheless be reliable if corroborated by
That argument suffers from two flaws. First, it is at odds with
the record. Although the District Court determined that certain
statements were not testimonial under Bryant, it explicitly
rejected the Government’s contention “that there’s no due
process confrontation issue here.” App. 125. And it proceeded
to consider whether the victim’s out-of-court statements bore
sufficient indicia of reliability under Lloyd. Second, the
Government likely waived this argument when it argued before
the District Court that “Bryant has little (if any) relevance to
the issues” presented by Rose’s revocation hearing because
Bryant relates to the Sixth Amendment’s Confrontation
Clause, not the Fifth Amendment confrontation right releasees
enjoy at revocation hearings. Dist. Ct. Dkt. No. 186 at 8 n.2.
Our Court has yet to consider whether nontestimonial hearsay
must satisfy Lloyd’s balancing test to be admitted at a
revocation hearing. Persuasive authority suggests that it does.
See Valdivia v. Schwarzenegger, 599 F.3d 984, 990–91 (9th
Cir. 2010). But some jurists have criticized that rule. See
Valdivia v. Schwarzenegger, 623 F.3d 849, 850–51 (9th Cir.
2010) (Bea, J., dissenting from denial of en banc rehearing);
United States v. Alvear, 959 F.3d 185, 194 (5th Cir. 2020)
(Oldham, J., concurring). We need not take sides in that debate
to decide this appeal. The District Court did not treat its
nontestimonial finding as dispositive, and, as we explain above
the line, the Court did not abuse its discretion by admitting the
out-of-court statements under the balancing test we endorsed
in Lloyd.

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other” objective evidence. United States v. Timmons, 950 F.3d
1047, 1051 (8th Cir. 2020) (internal quotation marks and
citation omitted); see also United States v. Fontanez, 845 F.3d
439, 443 (1st Cir. 2017) (“Objective evidence that corroborates
a [declarant’s] testimony may provide persuasive proof of that
testimony’s reliability.”). Such is the case here, as the District
Court aptly determined.
We start with the victim’s statement that she was
stabbed. That contention was directly corroborated by Officer
Etri’s testimony that he discovered the victim with multiple
stab wounds, along with the body camera footage and image of
her wounds the Government introduced at the hearing. See
United States v. Peguero, 34 F.4th 143, 156 (2d Cir. 2022)
(citing a declarant’s “physical injuries” as an indicium of
reliability bolstering the declarant’s account of an attack); see
also United States v. Martin, 382 F.3d 840, 846 (8th Cir. 2004)
(same). As for the victim’s identification of Rose as her
attacker, her description of Rose’s clothing and her statement
that he frequented the Philadelphia municipal building, were
confirmed by Officer Mullin’s testimony that he and his
partner found Rose matching the victim’s description at the
municipal building shortly after the attack. See United States v.
Rondeau, 430 F.3d 44, 48 (1st Cir. 2005) (concluding that out-
of-court statements were reliable where, inter alia, “police
corroborated” the statements by finding the assailant “in a car
that matched [the declarant’s] description”).
Most importantly, the victim’s statement that Rose
stabbed her after brandishing a firearm, was substantiated by
Officer Mullin’s testimony that officers found a bloody knife

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and a gun on Rose’s person when he was apprehended.3 See id.
(relying upon the fact that officers located a gun the declarant
stated was used in the attack to bolster the statement’s
reliability).
Additionally, the District Court appropriately observed
a further indicium of reliability. The victim’s initial statements
to officers—identifying Rose as her attacker, describing his
appearance and clothing, and providing his likely location—
were all made while the victim was bleeding from multiple stab
wounds following the attack. Officer Etri testified that when he
encountered the victim, she was “crying, screaming[,]” and
“appeared to be in a lot of pain.” App. 83. That the victim made
the out-of-court statements while distressed from a recent
violent attack adds another indicium of reliability. See Martin,
382 F.3d at 846 (concluding that the declarant’s “state of mind
3 We reject Rose’s assertion that the Government’s failure to
forensically test the blood on the knife to see if it matched that
of the victim renders the victim’s out-of-court statements
unreliable and uncorroborated. True, at the revocation hearing,
Officer Mullin could not confirm whether the blood on the
knife was tested against the victim’s. Nevertheless, the District
Court credited Officer Mullin’s testimony that there was blood
on the knife when he removed it from Rose’s person. We
review that credibility determination for clear error, United
States v. Daye, 4 F.4th 698, 700 (8th Cir. 2021), and we
perceive no error here given the weight of the corroborating
evidence discussed in text. And in light of that evidence, the
District Court could infer that the blood on the knife was the
victim’s.

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adds an indici[um] of reliability” where she was “excited and
distressed” at the time the statements were made).
Rose does not meaningfully contest the corroborating
evidence or the victim’s state of mind when giving her initial
statements to officers. Instead, he argues—without any
elaboration—that the victim’s statements were unreliable
because “she had an adversarial relationship” with Rose, Reply
Br. at 10, and “was a fugitive from justice” when she spoke to
police, Opening Br. at 15. Given the indicia of reliability
described above, both arguments fail.
Presumably, the basis for Rose’s adversarial-
relationship assertion is the victim’s statement that Rose told
her she owed him money before the attack. But that is not the
sort of “adversarial relationship” courts have recognized as
rendering a declarant’s out-of-court statements less reliable.
See, e.g., United States v. Comito, 177 F.3d 1166, 1171 (9th
Cir. 1999) (explaining that statements made by the releasee’s
ex-girlfriend “shortly after their romantic relationship ended”
were unreliable); United States v. Huckins, 53 F.3d 276, 279
(9th Cir. 1995) (same for statements made against a defendant
by an accomplice in the course of plea negotiations with the
government). Even assuming that money caused bad blood
between the victim and Rose, that does not outweigh the
indicia that the victim reliably implicated Rose as her attacker.
Nor does the victim’s fugitive status tip the scale in
favor of unreliability. Were the victim’s statements wholly
uncorroborated, this could be a different case. See United
States v. Lee, 68 F.3d 1267, 1275–76 & n.10 (11th Cir. 1995)
(concluding that an otherwise uncorroborated hearsay
statement made by a fugitive from justice was unreliable). But
here, any indicium of unreliability stemming from the victim’s

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status as a fugitive from justice is outweighed by the quantum
of corroborating evidence presented at the revocation hearing.
Putting it all together, the District Court appropriately
found that the victim’s out-of-court statements were reliable.
The statements’ reliability, in turn, weakened Rose’s interest
in confronting the victim. See United States v. Mosley, 759
F.3d 664, 668 (7th Cir. 2014).
C
We turn next to the Government’s justification for the
victim’s absence at the revocation hearing, and whether it
constituted good cause sufficient to outweigh Rose’s weakened
interest in confrontation. We agree with the District Court that
it did.
In Rose’s view, the Government “failed to offer any
reason” for the victim’s absence. Opening Br. at 20. Not so.
“Courts have recognized that a declarant’s refusal to testify or
threats made against a declarant may be good cause for his
absence[.]” Lloyd, 566 F.3d at 346 (citing Williams, 443 F.3d
at 46–47; Comito, 177 F.3d at 1172). But those are not the sole
grounds upon which courts may find good cause. In an
appropriate case, the Government’s inability to locate the
declarant, despite its reasonable diligence and good-faith
efforts, may also suffice. See, e.g., United States v. Martin, 371
F.3d 446, 448–49 (8th Cir. 2004). This is just such a case.
As shown through Agent Flanagan’s testimony, the
Government made several attempts to locate the victim. A
month before the revocation hearing, and after obtaining a
subpoena, Agent Flanagan visited three addresses associated
with the victim. The first address was listed in a law-

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enforcement database as the residence where the victim
received unemployment checks. But when Agent Flanagan
arrived, he found “mail piled up at the doorstep[,]” none of
which was in the victim’s name. App. 33. He asked an
employee with the leasing office if she was familiar with the
victim; she was not. Agent Flanagan then went to the residence
where the victim was stabbed. But the property’s windows and
doors were boarded, and there was no indication that anyone
was living there. Agent Flanagan traveled to a third address
that he located through an open-source database. There, he
again found mail addressed to a person other than the victim,
and his door-knock received no answer.
Agent Flanagan’s database searches also returned a
phone number for the victim. He called “[n]umerous times”
and left voicemails on the answering machine identifying
himself—all to no avail. App. 35. And he testified that he was
unable to conceive of any further steps he could have taken to
locate the victim and secure her live testimony at Rose’s
hearing.
On these facts, and especially given the reliability of the
hearsay evidence, the District Court did not abuse its discretion
in concluding that the Government’s diligent, though
unsuccessful, efforts to locate the victim established good
cause for her absence that outweighed Rose’s interest in
confrontation.4 See Curtis v. Chester, 626 F.3d 540, 548 (10th
4 We do not mean to suggest that any failed attempt to locate a
declarant, even if undertaken in good faith, will suffice to
establish good cause. See, e.g., United States v. Sutton, 916
F.3d 1134, 1139–40 (8th Cir. 2019) (concluding that the
government failed to show good cause where it, inter alia,

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Cir. 2010) (explaining that “the government’s good cause in
denying confrontation [was] substantial” where the “victim
could not be located[,]” despite the issuance of a subpoena and
the government’s diligent investigative efforts); Martin, 371
F.3d at 449 (concluding that the government’s explanation that
the declarant “could not be found” was “reasonably
satisfactory” to establish good cause, especially given the
reliability of the declarant’s statements).
III
In sum, the District Court conducted the careful analysis
required by Lloyd. It thoughtfully addressed the reliability of
the victim’s out-of-court statements and appropriately
determined that the Government had shown good cause for the
victim’s absence at the revocation hearing. Accordingly, we
hold that the District Court did not abuse its discretion by
made no attempt to subpoena one declarant and failed to visit
the address or call the phone number of another before
abandoning its efforts entirely); Timmons, 950 F.3d at 1049–
51 (same, where the government knew the declarant’s address
and made just one “‘borderline’” attempt to subpoena the
declarant a day before the revocation hearing). But where, as
here, the Government offers testimony detailing the lengths it
went to secure the declarant’s appearance, and “[o]nly the
parties’ inability to locate the victim [was] responsible for her
absence[,]” a court does not abuse its discretion by relying on
those facts to determine that the government has shown good
cause for the declarant’s absence. Curtis v. Chester, 626 F.3d
540, 547–48 (10th Cir. 2010).

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admitting the victim’s out-of-court statements. We will
therefore affirm the judgment of the District Court.

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