United States v. Neal, John ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 07-1638 & 07-1639
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN NEAL,
Defendant-Appellant.
____________
Appeals from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
Nos. 99 CR 15 & 00 CR 62—John Daniel Tinder, Judge.
____________
ARGUED OCTOBER 29, 2007—DECIDED JANUARY 10, 2008
____________
Before BAUER, RIPPLE and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. In 2000, John Neal pleaded guilty
to six federal charges for which he was sentenced to 42
months’ imprisonment and thirty-six months’ supervised
release. In September 2006, the Government petitioned
the court to revoke Mr. Neal’s supervised release. The
district court granted the Government’s petition and
sentenced Mr. Neal to an additional 24 months’ imprison-
ment. Mr. Neal now appeals his sentence. For the reasons
set forth in this opinion, we affirm the judgment of the
district court.
2 Nos. 07-1638 & 07-1639
I
BACKGROUND
A. Mr. Neal’s Convictions
In March 2000, Mr. Neal was charged in a thirteen-count
indictment with conspiracy to defraud the United States
Government, operating an illegal gambling business,
money laundering and tax evasion.1 Shortly thereafter,
in April 2000, the Government, by information, charged
Mr. Neal with an additional four counts of money launder-
ing. Mr. Neal then entered a plea agreement with the
Government on Counts 1 and 2 of the superseding in-
dictment and on all four counts contained in the informa-
tion. With respect to the counts charged in the indictment,
the court entered its judgment on December 15, 2000,
sentencing Mr. Neal to 42 months’ imprisonment and 36
months’ supervised release.2 The court entered judgment
on the counts charged in the information on the same day;
that judgment also sentenced Mr. Neal to 42 months’
imprisonment and 36 months’ supervised release. Each
1
The superseding indictment consisted of the following
charges: conspiracy to defraud the Government of the United
States, in violation of 18 U.S.C. § 371 (Count 1); operating an
illegal gambling business, in violation of 18 U.S.C. §§ 1955 and
2 (Count 2); conspiracy to commit money laundering, in
violation of 18 U.S.C. § 1956 (Count 3); money laundering to
promote illegal gambling, also in violation of 18 U.S.C. § 1956
(Counts 4 through 9); and tax evasion, in violation of 26
U.S.C. § 7201 and 18 U.S.C. § 2 (Counts 10 through 13).
2
An amended judgment was entered on August 31, 2001; the
amended judgment did not differ in any material respect
from the original judgment.
Nos. 07-1638 & 07-1639 3
judgment indicated that the sentences imposed were to
run concurrently with the other.
B. Mr. Neal’s Supervised Release
Mr. Neal served his sentence and began his term of
supervised release on April 19, 2004. The terms of Mr.
Neal’s release included the following conditions: (1) “[t]he
defendant shall not commit another federal, state, or local
crime”; (2) “the defendant shall . . . submit [to his probation
officer] a truthful and complete written report within the
first five days of each month”; (3) “the defendant shall
work regularly at a lawful occupation”; (4) “the defendant
shall not incur new credit charges or open additional
lines of credit without the approval of the probation
officer”; and (5) “[t]he defendant shall refrain from pur-
chasing, delivering, repairing, or collecting monies from
any video gambling machines similar to those of the
instant Federal offense” and “is further prohibited from
employing any individual to perform the job duties of
delivering, repairing, or collecting monies from any video
gambling machines similar to those of the instant Federal
offense.” R.94 at 3-4.
During the term of his supervised release, Mr. Neal
became the target of a gambling investigation conducted by
state excise police. On September 18, 2004, pursuant to
warrant, state police conducted searches of Mr. Neal’s
home and business properties; the search uncovered large
amounts of unreported cash as well as gambling machines
and other gambling equipment.
Two days after execution of the warrant, the Govern-
ment petitioned for revocation of Mr. Neal’s supervised
release. According to the Government, Mr. Neal had
4 Nos. 07-1638 & 07-1639
violated each of the conditions of his release set forth
above. After the Government filed its petition, the State of
Indiana charged Mr. Neal with seventy-one violations of
state law involving illegal gambling, money laundering
and operating a corrupt business.
C. Revocation Proceedings
On January 26, 2007,3 the district court held a hearing
on the alleged violations. Mr. Neal admitted that he had
failed to submit truthful monthly financial statements to
his probation officer and that he had opened a new line of
credit. He requested, however, that the court continue the
revocation hearing on the other alleged violations pending
trial on the state offenses.4 The district court refused and
heard evidence on the violations.
At the hearing, Mr. Neal’s probation officer, Troy Adam-
son, testified that, although Mr. Neal had filled out
monthly reports, the information contained in the reports
was inaccurate. Mr. Neal’s monthly reports listed only a
pension income of $5,988.42 per month, totaling $72,000
per year. However, Mr. Neal’s federal tax returns listed
income in excess of $200,000 per year for 2004 and 2005.
Additionally, Mr. Neal’s monthly report failed to identify
bank accounts with balances in excess of $1 million and
failed to reveal a large amount of cash—$1.6 million—
found hidden in Mr. Neal’s home.
3
The hearing originally had been scheduled for November 22,
2006, but was continued once over the Government’s objec-
tion and was continued a second time by agreement of the
parties.
4
Mr. Neal still has not been tried on those offenses.
Nos. 07-1638 & 07-1639 5
Also at the hearing, Officer Monty McMahan of the
Indiana State Excise Police testified that, in the spring of
2004, he had begun an investigation of possible gambling
violations at two bars in Anderson, Indiana. As the investi-
gation progressed, Mr. Neal became one of its targets.
Officer McMahan testified that he personally witnessed
eleven vehicles, owned or registered to Mr. Neal or to
Video Services (a company owned by Mr. Neal), transport-
ing gambling machines and making collections. Officer
McMahan also testified to the actions of a man named
David Snow. According to Officer McMahan, Snow
would go into various establishments owned by Mr. Neal
and would leave carrying a bag of money. In September
2005, as part of the investigation, an undercover officer,
April Tackett, had a conversation with Snow. During this
conversation, Snow related that he worked for Mr. Neal
and that he had collected money from gaming machines
at different establishments. Officer McMahan testified
that Officer Tackett had observed Snow open the video
machines at Dolenski’s Bar on June 9, 2006, read the
machine’s meter and obtain $2,295 in payment from the
bar manager. Officer McMahan stated that, when excise
police pulled trash from Mr. Neal’s residence on June 15,
2006, they discovered “what appeared to be a split sheet
that contained meter readings from video gaming ma-
chines, and the split amount on that sheet was $2,295.” Tr.
(1/26/07) at 35.
Officer McMahan further testified as to his personal
observations of events at Big Baby’s Bar. Big Baby’s liquor
license had been suspended temporarily due to the pres-
ence in the bar of illegal gambling devices, which had been
removed during the suspension. The day after the suspen-
sion ended, Officer McMahan observed nine video gam-
bling machines being delivered to the establishment.
6 Nos. 07-1638 & 07-1639
According to Officer McMahan, Mr. Neal was one of the
incorporators of Big Baby’s; the tax records for the busi-
ness were sent to Mr. Neal’s address, and the utility bills
also were in his name.
Finally, Officer McMahan testified that, on September 18,
2006, state excise officers executed a search warrant at
Video Services. Gambling equipment, slot machines, pull
tabs and other gambling paraphernalia were seized during
the search.
During the revocation hearing, counsel for Mr. Neal
cross-examined the Government’s witnesses.5 However,
5
As part of the cross-examination of Officer McMahan, Mr.
Neal’s counsel sought to elicit testimony concerning the activi-
ties of Mr. Neal’s daughter, Vicky Massey, who was the
owner of Muncie Coin, a business immediately adjacent to
Video Services. The Government objected to this line of ques-
tioning. The court indicated that it “ha[d] no interest in Ms.
Massey’s state court charge.” Tr. (1/26/07) at 57. Mr. Neal’s
counsel then attempted to make an offer of proof:
Your Honor, we believe that if the witness was permitted to
answer the questions, that he would testify that Muncie
Coin is a separate entity. It was separately, as a part of this,
investigated as part of the state investigation, and in fact
there are similar state charges filed against Ms. Massey.
We further believe, Your Honor, that the evidence would
show that during the officer’s investigation, he was not able
to determine that video poker machine specifically used
specifically belonged to either Mr. Neal or Video Services,
Inc., and that they were unable to—they didn’t make any
effort to determine which entity owned the machines. They
have taken the position, and that would be the end of my
offer of proof.
(continued...)
Nos. 07-1638 & 07-1639 7
Mr. Neal did not testify, nor did he offer any documentary
or testimonial evidence in opposition to the revocation
petition.
After the evidence was presented to the court, the
Government argued that, upon the completion of his prison
sentence, Mr. Neal immediately had returned to his
gambling enterprise. The Government believed that a
preponderance of the evidence showed that Mr. Neal had
violated the five conditions of his supervised release
alleged in the Government’s petition. Furthermore, the
Government argued that, given the nature and circum-
stances of the offense and the history and characteristics
of the defendant, the court should impose a term of 36
months’ imprisonment.
In reply, Mr. Neal’s counsel conceded that Mr. Neal had
violated the conditions of his release concerning opening
lines of credit and reporting his income. Mr. Neal’s coun-
sel, however, stated that he believed that the court had
5
(...continued)
Id. at 58-59. After further discussion, the court reiterated that
it was “not trying the state [] case against any other defendant,
or even this defendant” but was “just trying to determine
whether by a preponderance of the evidence [the defendant has]
violated any federal, state or local laws, or participated in an
illegal gambling business.” Id. at 60. By agreement of the
Government, the court accepted that Vicky Massey owned
Muncie Coin and that Muncie Coin also was in the business
of supplying gaming machines. The court then indicated that
Mr. Neal’s counsel was free to inquire as to what the police “did
or didn’t do” to determine the ownership of illegal gambling
machines, but restated that it was “not going to hear Vicky
Massey’s criminal case.” Id. at 62.
8 Nos. 07-1638 & 07-1639
hampered his efforts to refute the other alleged violations.6
Counsel maintained that the Government’s request of 36
months was excessive and urged the court to adhere to
the guidelines range of 4 to 10 months. Counsel argued:
[W]hile [the Government’s counsel] didn’t say these
words, the impact of what she argues for is 36 months
now, and then a lot more later on if he’s guilty. It
would seem to me, given the realities of the situation,
that the court protect its interests, which could be
served—satisfied in a number of ways other than a
sentence of imprisonment: home detention, a shorter
custodial sentence and the like.
And then if Mr. Neal is guilty, the court trusts the
state courts to impose a significant sentence for what
the court, I think, believes to be the bad behavior. And
it seems to me under those circumstances, justice
is done.
Id. at 107-08. After hearing arguments, the court advised
the parties that it would rule on the petition on February 5,
2007.
Three days after the hearing, on January 29, 2007, counsel
for Mr. Neal filed a motion to reopen the evidentiary
6
See Tr. (1/26/07) at 100 (“[A]s I understood the court’s rulings,
you did, because when we wanted to get into it with Officer
McMahan, and when we wanted to get into it, you cut us off.”).
Counsel’s allegation prompted the court to clarify its ruling:
“What you were trying to do with the officer was—what
appeared to be—was to discover what evidence they had
against Vicky as opposed—if you want to offer proof of how
the operation was run, have at it. I think that would be of
great interest—.” Id. at 100-01. Mr. Neal did not offer any
additional evidence at that time.
Nos. 07-1638 & 07-1639 9
hearing, to present additional evidence and to obtain
discovery. Counsel requested that the State of Indiana be
ordered to produce information from the state investiga-
tion, including undercover police officer investigative
reports, surveillance reports and photographs, the results
of the trash pulls, case notes of the investigative officers
and all exculpatory evidence pertaining to the investiga-
tion of Mr. Neal.
The district court denied the motion for discovery but
granted the motion to reopen the evidentiary hearing. The
district court noted that “[t]he Defendant was given an
opportunity to present evidence at the hearing and chose
to do so only through cross-examination.” R.36 at 1. After
reviewing the discovery sought, the court reviewed the
Supreme Court’s decisions involving the rights guaranteed
to defendants in revocation hearings, namely “notice of
the claimed parole violations, disclosure of the evidence
against the defendant, an opportunity to be heard and to
present evidence, and the right to confront and cross-exam
adverse witnesses.” R.36 at 3 (citing Morrissey v. Brewer, 408
U.S. 471, 480 (1972)). The court further noted that “[t]he
Defendant cites to no statute, rule, or case law that
would . . . establish a right to the discovery he now
seeks. . . . A general right to discovery of evidence—
whether exculpatory or otherwise—was not one of the
minimal due process rights identified in Gagnon [v.
Scarpelli, 411 U.S. 778 (1973)] or Morrissey.” Id. at 3-4. With
respect to the discovery, therefore, the court held:
[W]hat the Defendant is seeking by way of discovery
appears to be far more than what he would be en-
titled to in a full-blown federal criminal prosecution.
His cross-examination disclosed that he has already
conducted some discovery (at least a deposition) in a
pending state court criminal or civil matter related to
10 Nos. 07-1638 & 07-1639
the gambling allegations. He is submitting the cur-
rent wide-ranging discovery request in the matter
before the court very late in the process, after several
continuances and after the evidence was closed. It
also appears to the court that what the Defendant is
seeking to accomplish through his requested dis-
covery is to belatedly poke holes in the government’s
presentation after gaining the benefit of an extended
delay subsequent to hearing that evidence. The com-
bined motion (doc. No. 119) is accordingly DENIED to
the extent it seeks discovery.
Id. at 4. However, the district court granted the motion to
reopen the evidentiary hearing to allow the defendant to
present evidence relevant to whether he had committed
the alleged violations of supervised release.
At the reopened hearing, Mr. Neal presented the testi-
mony of Officer Joel Sanderrfur of the Anderson Police
Department, Stephen Pelletrino and John Snow. Officer
Sanderrfur testified to his conversation with Snow after
Snow’s arrest; in that statement, Snow had told Officer
Sanderrfur that he worked for Vicky Massey, but that “he
had been inside Video Services and that he had taken
money and placed it on a desk there.” Tr. (2/5/07) at 9.7
Mr. Neal then called Pelletrino, who testified that he
owned a bar located on property previously owned by
Mr. Neal. Pelletrino testified that he paid Mr. Neal in
weekly installments for the purchase of the property; the
payments were made in cash from the receipts of the bar.
7
Mr. Neal’s counsel also requested production of Officer
Sanderrfur’s notes that he had consulted in preparing for his
testimony. The court sustained the Government’s objection to
the discovery of those notes.
Nos. 07-1638 & 07-1639 11
He also stated that the bar had “amusement machines”—
pool tables, a juke box and a video golf game—supplied by
Video Services and gambling machines supplied by Ziggy’s
Amusement. Mr. Neal’s final witness was John Snow.
Snow testified that he had been employed by Muncie Coin
to make collections on gambling machines. He further
stated that all of the money collected went to Muncie Coin;
Snow denied that he ever had told Officer Tackett that he
worked for John Neal.
After presenting this evidence, counsel for Mr. Neal
argued that the only evidence tying Mr. Neal to gambling
activities was the alleged statement by Snow, which had
been refuted. With respect to the violations concerning
reporting and opening lines of credit, counsel believed that
these violations warranted a sentence at the lower end of
the guidelines range and that the “Court should fashion
a sentence that allows Mr. Neal to be available” for the
defense of his state court prosecutions and that took Mr.
Neal’s health conditions into consideration. In response,
the Government argued that Snow in all likelihood had
perjured himself, that the evidence showed that Mr. Neal
had been operating an illegal gambling business “probably
during the time he was in prison and certainly since he
got out,” and that Mr. Neal had accumulated between
three and four million dollars in cash since the time he
was sentenced on the original charges and had “offered
no explanation for where that money came from.” Id. at 56-
57. The Government believed that Mr. Neal’s violations
were “significant” and urged “the Court to impose a very
significant sentence.” Id. at 57.
Before imposing sentence, the court explained how the
reporting requirements were designed to alert the court
to any possible criminal activity by tracking closely the
amount and source of Mr. Neal’s income. The court
12 Nos. 07-1638 & 07-1639
stated that “the violations of the monthly reporting re-
quirements and the obtaining credit are serious in and of
themselves, given the context of this particular case and
the purpose for the regimen that was in place for this
defendant and would have deserved in and of themselves
a substantial period of incarceration.” Id. at 59-60. The court
then recounted the other evidence presented at the hearing
and concluded that
[t]he bottom line is that the preponderance of the
evidence convinces me that Mr. Neal very shortly
after completing his period of incarceration on this
underlying case returned back to the very same gam-
bling enterprise from which I attempted to remove
him when I sentenced him in 2000. I infer from this
evidence that in fact he’s returned to his role as the
invisible man. . . .
. . . He’s returned to gambling and not in a light way,
he’s not going down to some illegal card game. He
returned to this machine gambling with a vengeance.
He has flouted the requirements imposed on him. He
acts as some sort of puppet master so he can operate
these numerous locations, essentially just thumbing
his nose at the law, at law enforcement, and at this
Court.
Id. at 61-62. The court found that the Government had
proven by a preponderance of the evidence that all five
grounds of supervised release had been violated. The
court considered the policy statements set forth in the
sentencing guidelines at U.S.S.G. § 7B1.1 and the factors
set forth at 18 U.S.C. § 3553(a) in determining the sen-
tence. The court observed that
[t]his particular offense is especially egregious. . . . The
atmosphere in which this is done in this three or
Nos. 07-1638 & 07-1639 13
four county area is notorious. It is very clear that Mr.
Neal doesn’t get it, and it is inspirational to others in a
very negative way. There is simply no deterrence
unless a substantial sentence would be imposed on
this defendant, both specifically to him and generally
to others.
Id. at 64-65. Although the court acknowledged that “the
Government’s request for the maximum 36 months sen-
tence [was] well justified,” the court imposed a sentence of
24 months’ incarceration followed by an additional 12
months’ of supervised release. Id. at 66. In doing so, the
court considered Mr. Neal’s “current age, his health and
the need to have a punitive and deterrent effect.” Id.
Mr. Neal timely appealed.
II
ANALYSIS
A. Discovery
Mr. Neal first claims that his Fifth Amendment right to
due process of law was violated when the district court
denied his request for discovery. We review Mr. Neal’s
constitutional claim de novo. See, e.g., United States v.
Ramos, 401 F.3d 111, 115 (2d Cir. 2005) (reviewing de novo
an alleged due process violation in context of super-
vised release revocation).
Following the Supreme Court’s decisions, we have held
that supervised release revocation hearings are not criminal
prosecutions. See United States v. Kelley, 446 F.3d 688, 689-91
(7th Cir. 2006) (citing Morrissey v. Brewer, 408 U.S. 471
(1972), and Gagnon v. Scarpelli, 411 U.S. 778 (1973)). Conse-
quently, the full panoply of rights that the Constitution
14 Nos. 07-1638 & 07-1639
guarantees to criminal defendants does not extend to
individuals who are the subject of revocation proceedings.
Instead, in Morrissey v. Brewer, 408 U.S. 471, 485 (1972), the
Supreme Court set forth the more streamlined process that
is due to an individual already convicted of an underlying
crime, but in danger of losing his conditional liberty. The
Court stated that due process requires that a parolee be
given:
(a) written notice of the claimed violations of parole; (b)
disclosure to the parolee of evidence against him; (c)
opportunity to be heard in person and to present
witnesses and documentary evidence; (d) the right to
confront and cross-examine adverse witnesses (unless
the hearing officer specifically finds good cause for
not allowing confrontation); (e) a “neutral and de-
tached” hearing body such as a traditional parole
board, members of which need not be judicial officers
or lawyers; and (f) a written statement by the fact-
finder as to the evidence relied on and reasons for
revoking parole.
Id. at 489.8 Although Morrissey involved a parole revoca-
8
These guarantees are now codified in Federal Rule of Criminal
Procedure 32.1(b)(2). See United States v. LeBlanc, 175 F.3d 511,
515 (7th Cir. 1999) (stating that Rule 32.1 is a “codification of
Morrissey”). Rule 32.1(b)(2) states:
(2) Revocation Hearing. Unless waived by the person, the
court must hold the revocation hearing within a reasonable
time in the district having jurisdiction. The person is
entitled to:
(A) written notice of the alleged violation;
(B) disclosure of the evidence against the person;
(continued...)
Nos. 07-1638 & 07-1639 15
tion, the Supreme Court extended these protections to
probation revocation proceedings in Gagnon v. Scarpelli, 411
U.S. 778 (1973). Similarly, we have held that Morrissey also
sets out the due process requirements for purposes of
supervised release revocation hearings. See United States v.
Kelley, 446 F.3d 688, 690-91 (7th Cir. 2006); see also United
States v. Carlton, 442 F.3d 802, 807 (2d Cir. 2006); Barnes v.
Johnson, 184 F.3d 451, 455 n.7 (5th Cir. 1999).
Mr. Neal maintains that the district court violated these
basic standards when it refused to order the Government
to produce evidence that actually had been used against
him. According to Mr. Neal, this evidence includes
Officer McMahan’s surveillance notes, Officer Tackett’s
reports and evidence taken from the trash pull at his home.
Mr. Neal also argues that his due process rights were
violated when the district court failed to order the Gov-
ernment to produce all exculpatory evidence. We ad-
dress each of these arguments below.
1. Evidence Used Against Mr. Neal
Mr. Neal first maintains that he is entitled to officers’
surveillance notes, to Officer Tackett’s reports, to the
physical evidence pulled from his trash and to case reports
8
(...continued)
(C) an opportunity to appear, present evidence, and ques-
tion any adverse witness unless the court determines that
the interest of justice does not require the witness to appear;
(D) notice of the person’s right to retain counsel or to
request that counsel be appointed if the person cannot
obtain counsel; and
(E) an opportunity to make a statement and present any
information in mitigation.
16 Nos. 07-1638 & 07-1639
of officers involved in the state gambling investigation. Mr.
Neal believes that this evidence actually was used against
him and, therefore, the Government had a duty under
Morrissey and Criminal Rule 32.1 to produce that infor-
mation.
None of the documents or physical items sought by
Mr. Neal were introduced as evidence during his revoca-
tion hearing. Essentially, Mr. Neal’s argument attempts
to equate evidence that might be useful to the defense
with evidence that actually was used by the Government
in making its case. Morrissey requires disclosure of the
second category, but not the first. The Ninth Circuit
recognized this distinction in United States v. Tham, 884 F.2d
1262 (9th Cir. 1989). In Tham, the defendant’s probation
officer had testified at Tham’s probation revocation
hearing. The district court, however, denied Tham’s
request to view his probation file. On appeal, Tham argued
that the district court’s denial violated both Rule 32.1’s
requirement of “disclosure of evidence against the proba-
tioner,” as well as his right to due process. The Court of
Appeals rejected the argument on the ground that the
file itself had not been used as evidence against Tham
and that “Tham was provided the opportunity to cross-
examine all witnesses, including his probation officer.” Id.
at 1265. Consequently, “no violation of the Rule or of due
process” had occurred. Id. Similarly, none of the requested
information was offered into evidence at Mr. Neal’s
revocation hearing, and Mr. Neal was provided with, and
took advantage of, the opportunity to cross-examine the
Government’s witnesses.
Moreover, there is another reason that we must reject
Mr. Neal’s claim that he had a right to the requested
discovery. Here, the evidence sought by Mr. Neal was
Nos. 07-1638 & 07-1639 17
not in the hands of Mr. Neal’s probation officer or any
federal authority, but in the control of the state police. This
court has held that Rule 16 of the Federal Rules of Crim-
inal Procedure, which controls discovery in criminal
prosecutions, “imposes upon the federal government no
duty to obtain documents that are controlled by the state
government or police, even if the prosecution is aware
of the items.” United States v. Hamilton, 107 F.3d 499, 509
n.5 (7th Cir. 1997).
2. Exculpatory Evidence
Mr. Neal also maintains that the court should have
ordered “the State of Indiana ATC to produce . . . [a]ll
exculpatory evidence pertaining to the investigation of
John Neal.” R.33 at 3. Mr. Neal acknowledges that this
material is not evidence that was used against him, but
nonetheless maintains that due process requires that the
evidence be turned over to him. Mr. Neal claims that “[i]n
the Eighth Circuit, there is clear precedent supporting the
proposition that a defendant in Neal’s situation would be
entitled to the production of exculpatory evidence. See
United States v. Quiroz, 374 F.3d 682, 684 (8th Cir. 2004).”
We do not believe that Quiroz can be read to establish a
general right to all exculpatory material in the context of
release revocation hearings, much less a right to the
material under the circumstances presented here.
Quiroz did not involve directly the question of a defen-
dant’s entitlement to exculpatory material in a revocation
proceeding. The central issue in Quiroz was whether the
district court abused its discretion in denying the defen-
dant an additional continuance; the district court previ-
ously had granted several continuances for a total of
18 Nos. 07-1638 & 07-1639
four months. Counsel for Quiroz had requested the contin-
uance after hearing the testimony of the Government’s
sole witness—a customs agent who had interviewed
Quiroz after her arrest. Counsel claimed that additional
time was necessary to review the arrest report, the lab-
oratory report for the cocaine found on Quiroz and the
release violation report, all of which he claimed not to have
seen prior to the hearing, and none of which he had
attempted to obtain prior to the hearing either from the
Government or Quiroz’s former counsel. As noted above,
the district court denied the continuance, and the Court
of Appeals for the Eighth Circuit affirmed. The circuit
court rejected Quiroz’s claim that “she had a compelling
reason for requesting the continuance because she had not
been provided with the three reports and needed addi-
tional time to review these reports for potentially ex-
culpatory or impeachment materials.” Id. at 684. The court
did not address the foundational question whether Brady
v. Maryland, 373 U.S. 83 (1963), applied in the context of
a revocation hearing. Without first making this deter-
mination, however, the court went on to state that there
was “no evidence whatsoever of a Brady violation, much
less any plain error regarding a Brady violation”; conse-
quently, the “attempt to show a compelling reason for the
requested continuance fail[ed].” Id. at 684.
Furthermore, even if we could read the Eighth Circuit’s
opinion as establishing a right to exculpatory material
under some circumstances, we do not believe that the
decision supports Mr. Neal’s particular claim to exculpa-
tory material. Mr. Neal’s situation is remarkably similar
to that of Quiroz. Despite the lapse of four months be-
tween the filing of the revocation petition and the hearing,
Mr. Neal did not seek the court’s assistance in securing
Nos. 07-1638 & 07-1639 19
exculpatory evidence. Instead, Mr. Neal waited until the
Government had presented its evidence at the hearing
before he petitioned the court for discovery; the petition
not only sought evidence, but “fourteen days to review and
evaluate the evidence.” R.34 at 3. Except for counsel’s
allegations in the discovery motion,9 Mr. Neal made no
effort to establish that there was exculpatory evidence to
be gained. In short, Mr. Neal’s discovery motion suffers
from the same inadequacies in timeliness and proof as
that rejected by the Eighth Circuit in Quiroz.10
9
Counsel stated:
5. Production of these items would allow the defendant to
demonstrate that McMahan was either overstating the
evidence, at best, or misrepresenting the evidence at worst.
6. Additionally, these reports would assist the Defendant
in demonstrating that there is simply no evidence linking
him to the present distribution of video gaming machines.
R.34 at 2.
10
Although Mr. Neal does not mention the case with respect to
his argument on exculpatory evidence, he does cite one other
case in which the question whether a defendant was entitled to
the discovery of exculpatory evidence in revocation proceed-
ings was squarely presented to the court. In United States v.
Dixon, 187 F. Supp. 2d 601, 604 (S.D. W. Va. 2002), the court
stated that, with respect to requests for discovery in the con-
text of revocation proceedings, it did “not believe it appro-
priate to categorically refuse the compulsion of favorable
evidence.” Id. The court concluded that a defendant is entitled
to discovery of exculpatory evidence in revocation proceed-
ings if certain conditions are met. The first of these conditions is
that “Defendant must make a timely request by written mo-
tion for favorable evidence well in advance of the hearing.” Id.
Mr. Neal, however, has failed to satisfy this requirement.
20 Nos. 07-1638 & 07-1639
In denying Mr. Neal’s request for discovery, the dis-
trict court made clear that it considered Mr. Neal’s re-
quest untimely and an effort to delay further his revoca-
tion hearing. R.36 at 4 (“He is submitting the current wide-
ranging discovery request in the matter before the
court very late in the process, after several continuances
and after the evidence was closed.”). The holding of Quiroz
reflects a concern that requests for exculpatory evidence
may be used as a means of manipulating the judicial
process. In Quiroz, the court explicitly rejected a belated
attempt by counsel to obtain evidence similar to that
sought by Mr. Neal. Given the procedural inadequacies
of his request, Mr. Neal has presented no support for
his claim that he is entitled to exculpatory material. Conse-
quently, we need not reach the substantive issue whether,
and under what circumstances, an individual subject to
revocation proceedings is entitled to exculpatory material.
B. Sentence
Mr. Neal also maintains that the sentence imposed by
the district court was too severe. We recently confirmed
that “a sentence imposed after the revocation of super-
vised release can be set aside only if it is ‘plainly unreason-
able.’ ” United States v. Kizeart, 505 F.3d 672, 673 (7th Cir.
2007). To reach a reasonable sentence, the district court
must begin its analysis with the recommended imprison-
ment ranges found in U.S.S.G. § 7B1.4, but these ranges
“inform[] rather than cabin[]” the district court’s sen-
tencing discretion. United States v. Pitre, 504 F.3d 657, 664
(7th Cir. 2007) (internal quotation marks and citations
omitted). The court also must consider the sentencing
factors enumerated in 18 U.S.C. § 3553(a). See United States
v. Carter, 408 F.3d 852, 854 (7th Cir. 2005). As with an
Nos. 07-1638 & 07-1639 21
initial sentencing decision, the court “need not make
factual findings on the record for each factor”; however,
“the record should reveal that the court gave considera-
tion to those factors.” Id.
In the present case, the district court employed the
correct methodology in reaching Mr. Neal’s sentence. First,
the court noted the suggested guidelines ranges for Mr.
Neal’s violations. The two violations admitted by Mr. Neal,
the requirement that Mr. Neal provide accurate financial
reports and the prohibition on opening new lines of credit,
are “Grade C” violations, see U.S.S.G. § 7B1.1(a)(3), and
carry a recommended sentencing range of 3 to 9 months,
see id. § 7B1.4. Additionally, the district court found that
Mr. Neal had violated three other terms of his super-
vised release: committing another federal, state or local
crime; being involved in video gambling; and being
employed in an unlawful occupation. These additional
violations are “Grade B” violations, see U.S.S.G.
§ 7B1.1(a)(2), and carry a recommended sentence of 4 to 10
months, see id. § 7B1.4.
The district court, however, then turned to the factors set
forth in 18 U.S.C. § 3553(a). The court determined that
the suggested guideline ranges did not account ade-
quately for Mr. Neal’s wanton disregard of the terms of
his release and his blatant disregard of the law in resum-
ing his gambling activities almost immediately upon his
release from prison. See 18 U.S.C. § 3553(a) (requiring the
court to consider “the nature and circumstances of the
offense and the history and characteristics of the defen-
dant” and “the need for the sentence imposed . . . to reflect
the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense”). The
court also believed that his behavior was “inspirational to
22 Nos. 07-1638 & 07-1639
others in a very negative way”—another factor set forth
in § 3553(a). See id. § (a)(2)(B) (requiring the court to
consider the need for the sentence “to afford adequate
deterrence to criminal conduct”). The court further ex-
plained that “[t]here is simply no deterrence unless a
substantial sentence [is] imposed on this defendant, both
specifically to him and generally to others.” Tr. (2/5/07)
at 65.
The district court also considered factors set forth in
§ 3553(a) that weighed in Mr. Neal’s favor, namely his
age and health problems. Id. at 64. Taking these into
account, and balancing them against the flagrancy of the
violations, the seriousness of those violations and the need
for deterrence, the district court imposed a sentence of
24 months.
As required, the district court consulted the Guidelines
and then turned to the factors set forth in § 3553(a). Look-
ing at those factors, the court determined that the sug-
gested range of 4 to 10 months did not account adequately
for the § 3553(a) factors. In light of the evidence against
Mr. Neal, the district court’s decision was not without
support in the record, and its sentence was not plainly
unreasonable.11
11
Although not raised by Mr. Neal, we address one other issue
with respect to Mr. Neal’s sentence. During revocation pro-
ceedings, the Government requested that Mr. Neal be sen-
tenced to 36 months’ imprisonment, which was, according to its
understanding, the maximum available sentence. The district
court also, apparently, was operating under the assumption
that the maximum possible sentence was 36 months. See Tr.
(2/5/07) at 66. Although Mr. Neal argued that the alleged
(continued...)
Nos. 07-1638 & 07-1639 23
11
(...continued)
violations did not “warrant a sentence of 36 months” or “even
the high end of the recommended guidelines,” see id. at 54, he
never argued that the district court lacked the authority to
sentence him to the full 36 months. He also has not raised such
an argument in his brief on appeal.
At oral argument one of the panel members suggested that
the district court may have committed plain error in the sen-
tencing because, according to statute, the maximum penalty
that could be imposed upon Mr. Neal was 24, as opposed to 36,
months’ imprisonment. In response to the court’s inquiry,
the Government reiterated its belief that 36 months was the
correct maximum penalty, but also stated that it did not be-
lieve that the difference in maximum penalty would have
altered the district court’s sentencing determination. During
his rebuttal time, Mr. Neal’s counsel did not address the
possible discrepancy in maximum penalties raised by the court.
We have reviewed this issue and conclude that the district
court did not commit plain error in employing the 36-month
maximum. As we have oft repeated, “under the plain error
standard, the party asserting the error bears the burden of
persuasion on the following points: (1) that there is error, (2) that
the error is plain, and (3) that the error ‘affects substantial
rights.’ ” United States v. Jumah, 493 F.3d 868, 875 (7th Cir. 2007)
(quoting United States v. Olano, 507 U.S. 725, 732-34 (1993)). “If
these three conditions are met, the court may exercise its
discretion to notice a forfeited error, but only if it (4) ‘seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.’ ” United States v. Day, 418 F.3d 746, 750 (7th Cir.
2005) (quoting Olano, 507 U.S. at 732; additional quotation
marks and citations omitted).
Applying this standard, it was error for the court to believe
that 36 months was the maximum penalty. Section 3583(e)(3)
(continued...)
24 Nos. 07-1638 & 07-1639
11
(...continued)
provides that a court may revoke a term of supervised release,
“and require the defendant to serve in prison all or part of the
term of supervised release authorized by statute for the offense
that resulted in such term of supervised release . . . except that
a defendant whose term is revoked under this paragraph may
not be required to serve . . . more than 2 years in prison if such
offense is a class C or D felony.” 18 U.S.C. § 3583(e)(3). The
crimes to which Mr. Neal originally pleaded guilty were class C
and D felonies. Consequently, the statute caps Mr. Neal’s
penalty at two years’ imprisonment for each term of super-
vised release revoked.
However, although the cap for revocation of each term of
supervised release is two years, it appears that Mr. Neal was
serving concurrent terms of supervised release. See supra at 2-3.
We have held that the “district court has discretion to impose
consecutive prison terms upon revoking concurrent terms of
supervised release.” United States v. Deutsch, 403 F.3d 915, 918
(7th Cir. 2005). Consequently, the district court had the discre-
tion to sentence Mr. Neal to two consecutive 24-month terms,
for a total of 48 months’ imprisonment.
In this case, even if the district court were limited to the cap
for revocation of one term of supervised release, there is no
indication in this record that the district court would have
sentenced Mr. Neal to anything less than 24 months. The record
is replete with statements by the district court noting Mr. Neal’s
blatant disregard for the law and suggesting that only a signifi-
cant penalty would send a message to Mr. Neal and other
individuals involved in illegal gambling activities.
Moreover, even if we were to conclude that error had
occurred that affected Mr. Neal’s substantial rights, we would
be hesitant to exercise our discretion and recognize plain error
in this context. Recently, our colleagues on the Eighth Circuit
(continued...)
Nos. 07-1638 & 07-1639 25
11
(...continued)
were faced with a similar circumstance when a defendant
failed to raise an instructional error. That court observed:
All of this said, we will not correct the error because of our
view of the proper role of courts in an adversarial system.
Deputy Kofka did not challenge the above-described aspect
of the jury instructions before the district court, thus
triggering plain error review, Fed. R. Civ. P. 52(d)(2); Littrell
v. Franklin, 388 F.3d 578, 586-87 (8th Cir. 2004); see United
States v. Olano, 507 U.S. 725 (1993), and he did not raise the
matter on appeal. What is more, he did not adopt the
argument when, at oral argument, we pointed out that the
case appeared to have been submitted to the jury on an
improper theory. He did little more than acknowledge
that no one had noticed this problem. Though we can
correct plain errors sua sponte, see Silber v. United States, 370
U.S. 717, 718 (1962), the amount of inaction in this case is too
much for us to brook. To correct the error, we would have
to notice sua sponte that the district court did not act sua
sponte to provide a jury instruction that the defendant
should have provided, and then we would have to remedy
the problem in the face of the defendant’s relative indiffer-
ence to it. We have an adversarial system of justice, not an
inquisitorial one, and to proceed along the path described
above would be to blur the line between the two systems.
We decline to do so.
Swipies v. Kofka, 419 F.3d 709, 717 (8th Cir. 2005). Mr. Neal has
had ample opportunity to bring before this court any alleged
errors in the district court’s sentencing. Indeed, this court
presented to Mr. Neal the possibility of plain error at oral
argument, but counsel failed even then to argue the point.
Counsel’s decisions not to raise the issue either in the district
court or in this court may have been conscious ones: Mr. Neal
(continued...)
26 Nos. 07-1638 & 07-1639
Conclusion
For the reasons set forth above, we affirm the judgment
of the district court.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
11
(...continued)
may have been reluctant to challenge the district court’s
assumption of a 36-month cap for fear that the court may realize
that it had an even greater maximum within which to work.
Alternatively, Mr. Neal may have decided not to pursue this
argument on appeal because, given the court’s strong statements
regarding the seriousness of the violations and the need for
deterrence, he did not believe that there was sufficient evidence
in the record to support a finding that the district court would
have sentenced Mr. Neal differently. Given the absolute failure
to bring the issue of an incorrect maximum sentence to the
court’s attention, and the possibility that the decision could
have been made as a matter of strategy, we do not believe that
this is an appropriate case in which to exercise our discretion
to recognize plain error.
USCA-02-C-0072—1-10-08