United States v. Keith Jordan ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1488
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEITH D. JORDAN,
Defendant-Appellant.
Appeal from the United States District Court for the
Central District of Illinois.
No. 98 CR 30095 — Sue E. Myerscough, Judge.
ARGUED NOVEMBER 15, 2013 — DECIDED JANUARY 28, 2014
Before FLAUM and HAMILTON, Circuit Judges, and KAPALA,
District Judge.*
HAMILTON, Circuit Judge. Appellant Keith D. Jordan was
sentenced to 24 months in prison for violating the conditions
of his supervised release from federal custody. He challenges
*
Hon. Frederick J. Kapala, of the Northern District of Illinois, sitting by
designation.
2 No. 13-1488
the revocation of his supervised release, arguing that the
district court erred by considering hearsay evidence without
making the “interest of justice” finding required by Federal
Rule of Criminal Procedure 32.1(b)(2)(C) if a defendant is
denied the right to question any adverse witness in a revoca-
tion hearing. He claims the error violated both the Rule and his
limited right to confront witnesses under the Due Process
Clause of the Fifth Amendment. We find that the district court
failed to comply with Rule 32.1(b)(2)(C) and that the error was
not harmless. Accordingly, we reverse and remand without
reaching Jordan’s constitutional claim. See Hagans v. Lavine, 415
U.S. 528, 546 (1974) (statutory claim should ordinarily be
decided before constitutional claim); Hudson v. Chicago Teachers
Union Local No. 1., 743 F.2d 1187, 1199 (7th Cir. 1984) (Flaum,
J., concurring); United States v. Herman, 589 F.2d 1191, 1207 (3d
Cir. 1978) (Garth, J., concurring in part and dissenting in part).
I. Factual and Procedural Background
Keith D. Jordan was released from federal prison on
June 28, 2011 and began serving a three-year term of super-
vised release. The conditions for his release included that
Jordan could not leave the judicial district without permission,
associate with a felon or person engaged in criminal activity,
or commit a federal, state, or local crime. Jordan was also
required to report within 72 hours any arrest or questioning by
law enforcement.
On December 7, 2012, a probation officer filed a petition to
revoke Jordan’s supervised release. Jordan had been arrested
in Marion County, Texas, by Texas Trooper Carlos Wilson on
November 30 and charged with marijuana possession. The
No. 13-1488 3
petition alleged that Jordan had violated the conditions of his
release in four ways: by leaving the judicial district without
permission; by associating with Robert Wallace, a felon; by
committing a new offense (possession of 30 pounds of mari-
juana); and by failing to report his arrest within 72 hours.
The district court held a revocation hearing on February 25,
2013. The federal Sentencing Guidelines classify supervised
release violations as Grade A, B, or C based on their severity.
U.S.S.G. §7B1.1. If a Grade A or B violation has occurred, the
Guidelines advise that supervised release should be revoked
and the defendant returned to prison. §7B1.3(a)(1). For a Grade
C violation (the least severe), the Guidelines advise the court
to be more flexible: it may revoke, extend, or modify the
conditions of supervised release. §7B1.3(a)(1)–(2) (2013). Jordan
admitted the three Grade C violations (leaving the judicial
district, associating with a felon, and failing to report his
arrest), but disputed that he had possessed marijuana with
intent to distribute, a Grade A violation.
To prove possession, the government relied primarily on
Trooper Wilson’s police report. The government also intro-
duced video footage of Wallace’s flight from the police and the
Texas grand jury’s indictment of Jordan. Jordan’s lawyer
objected to the introduction of the police report on due process
grounds. The district court overruled the objection without
explanation. The probation officer then began testifying about
the events in Texas based on his review of the police report.
When Jordan’s lawyer asked the probation officer whether
Trooper Wilson was available to testify, the government
objected and said: “Trooper Wilson would have been available
if I had contacted him. I didn’t contact him because the rules of
4 No. 13-1488
evidence don’t require that he be here. So I object to this
question.” The district court sustained the objection, again
without explanation. Jordan’s lawyer repeated his Fifth
Amendment concerns in his closing argument.
The district court found that Jordan had possessed mari-
juana with intent to distribute and sentenced him to 24 months
in prison. The court made no finding that the police report was
reliable or that good cause existed for its admission, and did
not discuss Rule 32.1(b)(2)(C).
Jordan did not specifically refer to Rule 32.1(b)(2)(C) in his
objections. However, the government does not argue that the
argument was waived, and given the close connection between
Rule 32.1(b)(2)(C) and Fifth Amendment due process require-
ments in revocation hearings, we find that Jordan’s objections
adequately preserved the Rule 32.1(b)(2)(C) issue for our
review. See United States v. LeBlanc, 175 F.3d 511, 515 (7th Cir.
1999) (Rule 32.1 largely codified Morrissey v. Brewer, 408 U.S.
471, 489 (1972), which defined Fifth Amendment due process
rights, including a limitedd confrontation right, in parole
revocation hearings).
II. Analysis
On appeal, Jordan argues that the district court erred in
admitting Trooper Wilson’s report without finding that it was
reliable or making an “interest of justice” finding under Rule
32.1(b)(2)(C). He claims that the failure to do so violated both
Rule 32.1(b)(2)(C) and his limited confrontation right under the
Due Process Clause of the Fifth Amendment. Though the two
grounds are closely related, we base our decision on the rule.
No. 13-1488 5
Federal Rule of Criminal Procedure 32.1(b)(2)(C) provides
that at a revocation hearing, the defendant is entitled to “an
opportunity to appear, present evidence, and question any
adverse witness unless the court determines that the interest of
justice does not require the witness to appear.”
The “interest of justice” requirement was added in 2002.
The accompanying Advisory Committee Note stated: “The
court is to balance the person’s interest in the constitutionally
guaranteed right to confrontation against the government’s
good cause for denying it.” All circuits that have addressed the
question now require district courts to perform this balancing
test before admitting hearsay evidence in revocation hearings.
See, e.g., United States v. Doswell, 670 F.3d 526, 530 (4th Cir.
2012); United States v. Lloyd, 566 F.3d 341, 344 (3d Cir. 2009);
United States v. Williams, 443 F.3d 35, 45 (2d Cir. 2006); United
States v. Rondeau, 430 F.3d 44, 48 (1st Cir. 2005); United States v.
Martin, 382 F.3d 840, 844–45 (8th Cir. 2004); United States v.
Stanfield, 360 F.3d 1346, 1360 (D.C. Cir. 2004); Barnes v. Johnson,
184 F.3d 451, 454 (5th Cir. 1999); United States v. Comito, 177
F.3d 1166, 1170 (9th Cir. 1999); United States v. Frazier, 26 F.3d
110, 114 (11th Cir. 1994); see also Curtis v. Chester, 626 F.3d 540,
546 (10th Cir. 2010) (declining to adopt the balancing test
instead of a reliability test because the hearsay statements at
issue would be admissible under either test, but noting that the
amended rule “appears to endorse a balancing test”); United
States v. Jackson, 422 Fed. Appx. 408, 410–11 (6th Cir. 2011)
(suggesting that in applying Rule 32.1(b)(2)(C), court should
conduct balancing test, but holding that any error was harm-
less). Jordan urges us to join these circuits and adopt the
balancing test for Rule 32.1(b)(2)(C).
6 No. 13-1488
The balancing test correctly requires the district court to
consider not just the government’s reasons for offering hearsay
but also a defendant’s interest in confronting adverse wit-
nesses. That interest is not to be taken lightly. A person on
parole or supervised release has a due process right, albeit a
limited one, to confront and cross-examine adverse witnesses.
Morrissey, 408 U.S. at 489. Cross-examination provides an
opportunity “to expose a witness’s motivation for testifying,
his bias, or his possible incentives to lie.” United States v.
Recendiz, 557 F.3d 511, 530 (7th Cir. 2009); see also Delaware v.
Van Arsdall, 475 U.S. 673, 679 (1986). Where, as here, a person’s
liberty is at stake, the opportunity to confront witnesses and
reveal problems with their testimony is an important compo-
nent of due process. When liberty is at stake, the limited right
to confront and cross-examine adverse witnesses should not be
denied without a strong reason.
At the same time, a revocation hearing is not a trial, so the
defendant’s interests are less compelling than for someone still
presumed innocent. For example, where live testimony would
be difficult or burdensome to obtain, confrontation need not be
face-to-face. Video conferencing could allow a distant witness
to testify and face cross-examination with minimal inconve-
nience and expense. Where such inexpensive means of
communication are available to the district court, a remote
witness should generally be expected to appear. This would be
true even if the hearsay seems reliable. There would often be
no good reason to use hearsay instead of the witness’s live
testimony under such circumstances.
Of course, other factors may be relevant in determining
whether to allow hearsay evidence in a revocation hearing. The
No. 13-1488 7
reliability of the evidence, the availability of the witness, and
the availability of corroborating evidence or witnesses may all
be relevant. All relevant considerations can be subsumed
under the Rule 32.1(b)(2)(C) general requirement that the
district court consider, before allowing hearsay in revocation
hearings, whether the government has established that the
interests of justice call for denying confrontation and cross-
examination.
We therefore join the other circuits that have ruled on the
question and hold that Rule 32.1(b)(2)(C) requires a district
court in a revocation hearing explicitly to balance the defen-
dant’s constitutional interest in confrontation and cross-
examination against the government’s stated reasons for
denying them. This requirement lines up well with the
Morrissey requirement that the courts specifically find good
cause to admit hearsay in parole revocation hearings. 408 U.S.
at 489. Admitting Trooper Wilson’s report in this case without
conducting the required balancing was an error.
The government urges us to find the error harmless
because the police report was reliable. We discuss the govern-
ment’s reliability arguments in detail because they were the
focus of the briefing. However, as explained above, reliability
cannot be the beginning and end of the “interest of justice”
analysis under Rule 32.1(b)(2)(C), and we do not mean to
imply that finding the hearsay reliable would alone suffice to
support its admission under the rule. In any case, we are
unable to conclude on appeal that the police report admitted
8 No. 13-1488
in this case was so reliable with respect to Jordan that the error
was harmless.1
Police reports are not presumed to be categorically reliable.
See Downie v. Klincar, 759 F. Supp. 425, 428 (N.D. Ill. 1991). As
Judge Moran explained in Downie, police reports can be
adversarial in nature, arising from a confrontation between a
suspect and a police officer. They can also be advocacy pieces,
written for prosecutors to use in deciding whether or how to
charge a suspect. A police officer thus may have many reasons
to present events in a non-neutral light and cannot be assumed
to have recorded the relevant events in an entirely neutral way.
Even the most candid witness will naturally remember and
recount events in a light that supports the story he is trying to
tell. These concerns led Congress to exclude police reports
from the hearsay exception for public records and reports
found in Federal Rule of Evidence 803(8) when offered in
criminal cases. Id. Although the rules of evidence do not apply
to revocation hearings, police reports are not necessarily any
more reliable in revocation hearings than they are at trial, so
Congress’ concerns apply to both contexts. Id. at 429–30. We
cannot simply assume that any police report, including this
one, is reliable without more information or corroborating
evidence.
The government argues that we should find that Trooper
Wilson’s report is reliable because it is detailed. The level of
detail included in the report does not allay our concerns about
1
Our observation does not necessarily apply to Wallace, whose supervised
release was revoked in a different hearing by a different district judge, and
whose appeal is being heard separately in case No. 13-2151.
No. 13-1488 9
its accuracy or neutrality. Testimony is often detailed, and we
do not assume it is impartial or correct on that basis alone. If
the district judge had determined that the report was reliable
based on the level of detail it contained, we would review that
determination for an abuse of discretion, and perhaps that
finding would pass muster. That is not the situation we face.
Where the district court did not determine the report was
reliable, its detail alone does not allow us to hold independ-
ently that it was.
The government also argues that the report was sufficiently
corroborated by Jordan’s admission of the Grade C violations,
his parole officer’s testimony, his Texas grand jury indictment,
and the video recording of Wallace’s flight in the car. In our
view, though, none of the evidence sufficiently corroborates
the report’s account of the Grade A violation to allow us to
determine on appeal that the evidence was so reliable as to
render the district court’s error harmless. Jordan’s admission
of the Grade C violations does not corroborate that the Grade
A violation occurred, except to show he was present with
Wallace in the car. The probation officer’s testimony was based
entirely on his telephone conversations with Trooper Wilson
and his reading of the police report. He had no independent
knowledge of the events, so his testimony merely repeated
rather than corroborated the police report. The Texas indict-
ment shows that Jordan was indicted for possessing marijuana,
but it does not corroborate the report’s account of what
happened or establish his guilt. As best we can tell, it does not
provide any information independent of Trooper Wilson’s
account of events. The video recording depicts Wallace’s flight,
but Jordan had already exited the car when Wallace fled, so the
10 No. 13-1488
video has little direct bearing on whether Jordan possessed
marijuana with intent to distribute. None of this evidence,
taken together or separately, corroborates the police report
sufficiently for us to find on appeal that the report was so
reliable regarding Jordan that the error was harmless.
The government argues that a comment by Jordan to an
arresting officer, recorded at the end of the video footage,
admitted his guilt and thus corroborated the police report and
established the Grade A violation. Jordan asked what he would
be charged with. The officer told him that he did not know.
Jordan then said: “He said cannabis, marijuana, whatever. So
that’s what’s in there, so whatever.” This vague remark,
presumably referring to a conversation between another officer
and Jordan, is not a clear admission of guilt. It could be either
an admission or simply a description of what the arresting
officer said was in the vehicle. Either reading is plausible. We
would need more clarity to conclude independently on appeal
that the police report was reliable. See United States v. Kelley,
446 F.3d 688, 692 (7th Cir. 2006) (hearsay contained in police
report was reliable where preparing officer testified and
physical evidence from the scene corroborated the hearsay).
Finally, the government argues that Kelley compels a
different result. See 446 F.3d at 692–93 (affirming revocation of
supervised release based on hearsay; defendant raised consti-
tutional challenge but did not rely on Rule 32.1). In Kelley,
however, the officer who had been dispatched to the scene and
prepared the police report testified about his encounter with
the declarants of the hearsay, and physical evidence from the
scene corroborated their hearsay statements. Id. at 692. Given
the wealth of clear corroborating evidence, we were able to
No. 13-1488 11
determine on appeal that the hearsay was reliable. The
evidence in this case is quite different, without the strong
corroborating evidence in Kelley. It does not allow us to find in
the first instance on appeal that the police report was reliable.2
Because the government focused on the reliability of the
police report in arguing that the district court’s error was
harmless, we do not decide conclusively whether the govern-
ment had good cause to deny Jordan the right to confront
Trooper Wilson or whether that cause outweighed Jordan’s
constitutional interest in confrontation and cross-examination.
We leave those questions for the district court on remand. We
reject Jordan’s suggestion that the government be barred from
introducing additional evidence on remand. The government’s
behavior, while mistaken, does not require such measures. See
United States v. Hagenow, 487 F.3d 539, 542 (7th Cir. 2007)
(allowing the government to present additional evidence on
remand was not error where “no controlling case law deemed
the government’s method of proof [at the initial sentencing
hearing] improper”). If the district court had not made the
error, the government would have been able to try to obtain
Trooper Wilson’s testimony either in person or by video
conference. Once the error is corrected, the government will be
free to offer Trooper Wilson’s testimony, as well as potentially
corroborating evidence, such as a laboratory report or the
Texas conviction, to support the police report on remand.
2
Kelley addressed confrontation rights under the Fifth and Sixth
Amendments but did not mention Rule 32.1(b)(2)(C), so the case informs
rather than controls the outcome in this case. See Kelley, 446 F.3d at 692.
12 No. 13-1488
Because we hold that Rule 32.1(b)(2)(C) was violated and
the error was not harmless, we do not reach Jordan’s constitu-
tional claim under the Fifth Amendment.
The judgment of the district court is VACATED, and the
case is REMANDED for further proceedings consistent with
this opinion.