United States v. Jordan, 13–1488.

• Citation: 742 F.3d 276
• Decision Date: 28 January 2014
• Docket Number: No. 13–1488.,13–1488.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Keith D. JORDAN, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

742 F.3d 276

UNITED STATES of America, Plaintiff–Appellee,

v.Keith D. JORDAN, Defendant–Appellant.

No. 13–1488.

United States Court of Appeals,Seventh Circuit.

Argued Nov. 15, 2013.

Decided Jan. 28, 2014.

Linda L. Mullen, Attorney, Office of the United States Attorney, Rock Island, IL, for Plaintiff–Appellee.

Daniel J. Hillis, Attorney, Office of the Federal Public Defender, Springfield, IL, for Defendant–Appellant.

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 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 revocation 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, 94 S.Ct. 1372, 39 L.Ed.2d 577 (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 supervised 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 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 marijuana); 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 introduced 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 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 marijuana 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 requirements 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, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), which defined Fifth Amendment due process rights, including a limited 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.

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 harmless). Jordan urges us to join these circuits and adopt the balancing test for Rule 32.1(b)(2)(C).

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 witnesses. 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, 92 S.Ct. 2593. 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, 106 S.Ct. 1431, 89 L.Ed.2d 674 (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 component 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 inconvenience 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 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...