742 F.3d 276 (7th Cir. 2014), 13-1488, United States v. Jordan

Docket Nº:13-1488
Citation:742 F.3d 276
Opinion Judge:Hamilton, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KEITH D. JORDAN, Defendant-Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: Linda L. Mullen, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Rock Island, IL. For KEITH D. JORDAN, also known as KEITHON JORDAN, Defendant - Appellant: Daniel J. Hillis, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Springfield, IL.
Judge Panel:Before FLAUM and HAMILTON, Circuit Judges, and KAPALA, District Judge.[*]
Case Date:January 28, 2014
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 276

742 F.3d 276 (7th Cir. 2014)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

KEITH D. JORDAN, Defendant-Appellant

No. 13-1488

United States Court of Appeals, Seventh Circuit

January 28, 2014

Argued: November 15, 2013.

Appeal from the United States District Court for the Central District of Illinois. No. 98 CR 30095 -- Sue E. Myerscough, Judge.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Linda L. Mullen, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Rock Island, IL.

For KEITH D. JORDAN, also known as KEITHON JORDAN, Defendant - Appellant: Daniel J. Hillis, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Springfield, IL.

Before FLAUM and HAMILTON, Circuit Judges, and KAPALA, District Judge.[*]

OPINION

Page 277

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 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 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

Page 278

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 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

Page 279

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, 51 V.I. 1244 (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, 360 U.S. App. D.C. 305 (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...

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19 practice notes
  • Weekly Case Digests June 22, 2020 June 26, 2020.
    • United States
    • Wisconsin Law Journal Nbr. 2020, January 2020
    • 26 Junio 2020
    ...interest in confrontation against the government's stated reasons for not making the declarant available for cross-examination. 742 F.3d 276, 280 (7th Cir. 2014). Jordan does not apply here, however, because the probative statements in the audio recording were Falls's own non-hearsay Falls ......
  • United States v. Kouttoulas, 041916 INNDC, 3:12-CR-048 JD
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Indiana
    • 19 Abril 2016
    ...States v. Kelley, 446 F.3d 688 (7th Cir. 2006) (citing United States v. Pratt, 52 F.3d 671 (7th Cir. 1995)); see United States v. Jordan, 742 F.3d 276, 280 (7th Cir. 2014) (noting that “the rules of evidence do not apply to revocation hearings”). Hearsay evidence presents an exception to th......
  • 182 F.Supp.3d 881 (N.D.Ind. 2016), 3:12-CR-048 JD, United States v. Kouttoulas
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Indiana
    • 19 Abril 2016
    ...Kelley, 446 F.3d 688 (7th Cir. 2006) (citing United States v. Pratt, 52 F.3d 671 (7th Cir. 1995)); see United States v. Jordan, 742 F.3d 276, 280 (7th Cir. 2014) (noting that " the rules of evidence do not apply to revocation hearings" ). Hearsay evidence prese......
  • 818 F.3d 1091 (10th Cir. 2016), 15-6119, United States v. Jones
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • 5 Abril 2016
    ...Cir. 1994); United States v. Bell, 785 F.2d 640, 642 (8th Cir. 1986). Other circuits did so after. United States v. Jordan, 742 F.3d 276, 279 (7th Cir. 2014); United States v. Doswell, 670 F.3d 526, 530 (4th Cir. 2012); United States v. Jackson, 422 Fed.Appx. 408, 4......
  • Free signup to view additional results
17 cases
  • United States v. Kouttoulas, 041916 INNDC, 3:12-CR-048 JD
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Indiana
    • 19 Abril 2016
    ...States v. Kelley, 446 F.3d 688 (7th Cir. 2006) (citing United States v. Pratt, 52 F.3d 671 (7th Cir. 1995)); see United States v. Jordan, 742 F.3d 276, 280 (7th Cir. 2014) (noting that “the rules of evidence do not apply to revocation hearings”). Hearsay evidence presents an exception to th......
  • 182 F.Supp.3d 881 (N.D.Ind. 2016), 3:12-CR-048 JD, United States v. Kouttoulas
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Indiana
    • 19 Abril 2016
    ...Kelley, 446 F.3d 688 (7th Cir. 2006) (citing United States v. Pratt, 52 F.3d 671 (7th Cir. 1995)); see United States v. Jordan, 742 F.3d 276, 280 (7th Cir. 2014) (noting that " the rules of evidence do not apply to revocation hearings" ). Hearsay evidence prese......
  • 818 F.3d 1091 (10th Cir. 2016), 15-6119, United States v. Jones
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • 5 Abril 2016
    ...Cir. 1994); United States v. Bell, 785 F.2d 640, 642 (8th Cir. 1986). Other circuits did so after. United States v. Jordan, 742 F.3d 276, 279 (7th Cir. 2014); United States v. Doswell, 670 F.3d 526, 530 (4th Cir. 2012); United States v. Jackson, 422 Fed.Appx. 408, 4......
  • United States v. Jones, 040516 FED10, 15-6119
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • 5 Abril 2016
    ...110, 114 (11th Cir. 1994); United States v. Bell, 785 F.2d 640, 642 (8th Cir. 1986). Other circuits did so after. United States v. Jordan, 742 F.3d 276, 279 (7th Cir. 2014); United States v. Doswell, 670 F.3d 526, 530 (4th Cir. 2012); United States v. Jackson, 422 F.App'x 408, 410-11 (6th C......
  • Free signup to view additional results
2 books & journal articles
  • Weekly Case Digests June 22, 2020 June 26, 2020.
    • United States
    • Wisconsin Law Journal Nbr. 2020, January 2020
    • 26 Junio 2020
    ...interest in confrontation against the government's stated reasons for not making the declarant available for cross-examination. 742 F.3d 276, 280 (7th Cir. 2014). Jordan does not apply here, however, because the probative statements in the audio recording were Falls's own non-hearsay Falls ......
  • Sentencing Supervised Release.
    • United States
    • Wisconsin Law Journal Nbr. 2020, January 2020
    • 23 Junio 2020
    ...interest in confrontation against the government's stated reasons for not making the declarant available for cross-examination. 742 F.3d 276, 280 (7th Cir. 2014). Jordan does not apply here, however, because the probative statements in the audio recording were Falls's own non-hearsay Falls ......