United States v. Falls, No. 19-3050 (7th Cir. 2020)
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Falls began serving supervised release after he was released from prison. Two years later, probation officer Hoepker filed a petition to revoke Falls’s supervised release, alleging that Falls committed the offense of attempted possession with intent to distribute a controlled substance. At Falls’s revocation hearing, the government presented Hoepker's testimony that she learned of the alleged criminal conduct from DEA Agent Neff and learned that Falls was in DEA custody. Hoepker had listened to an audio recording of a DEA interview and identified the voice of the person interviewed as Falls. Falls objected, unsuccessfully arguing that because the recording contained hearsay, FRCP 32.1(b)(2)(C) and Seventh Circuit precedent (Jordan) required the court to balance the government’s proffered reason for not calling the interviewing officer with Falls’s interest in confronting and cross-examining him. The government introduced the first 10 minutes of the recording. The court concluded that it was reliable and that it was more likely than not that Falls committed the attempted-possession-with-intent-to-distribute violation, resulting in a sentencing range of 46-57 months’ imprisonment.
The Seventh Circuit affirmed his 57-month sentence. Jordan does not apply because the probative statements in the audio recording were Falls’s own non-hearsay statements. Falls has not shown that his interviewing officer was an “adverse witness” that Rule 32.1(b)(2)(C) entitled him to question subject to an interest-of-justice determination.
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