USA v. David Perez, No. 22-3282 (7th Cir. 2024)
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David Perez, while on federal supervised release, was recorded by a police surveillance camera holding what appeared to be a firearm. His conditions of release, as well as federal law, prohibited him from possessing a firearm. At a revocation hearing, the government presented the surveillance video as evidence. The district judge asked Perez's probation officer to narrate the video, to which Perez objected and requested to cross-examine her. The district court denied this request, asserting that the probation officer was not a witness and that the narration was only for the hearing transcript. Perez's counsel did not take up the judge's offer to suggest questions for the probation officer.
Perez appealed, arguing that the probation officer was effectively an adverse witness and that his rights were violated by the refusal to allow cross-examination. He also contested the district court's finding that he possessed a firearm and the subsequent revocation of his supervised release.
The United States Court of Appeals for the Seventh Circuit agreed that Perez should have been allowed to cross-examine the probation officer. However, the court found this error to be harmless, as the district court did not rely on the probation officer's testimony in its finding that Perez possessed a firearm. The video provided ample evidence of Perez's possession of a firearm, and the court did not abuse its discretion in revoking his supervised release. Therefore, the judgment of the district court was affirmed.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 22-3282 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID PEREZ, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:12-cr-00859-1 — Steven C. Seeger, Judge. ____________________ ARGUED JANUARY 25, 2024 — DECIDED APRIL 24, 2024 ____________________ Before HAMILTON, BRENNAN, and KIRSCH, Circuit Judges. HAMILTON, Circuit Judge. While appellant David Perez was attending a public event, a police surveillance camera recorded him holding what appeared to be a rearm. His conditions of federal supervised release, not to mention 18 U.S.C. § 922(g)(1), made it unlawful for Perez to possess a rearm. At a supervised release revocation hearing, the government submitted as evidence a police surveillance video that the government argued showed Perez holding a gun. The district 2 No. 22-3282 judge asked Perez’s probation o cer to narrate the video as it was played during the hearing. Perez objected to the probation o cer’s narration of the video and asked to cross-examine her. The district court denied that request. The judge asserted that the probation o cer was not a witness and explained that he wanted the narration only to have a record of the video’s contents for the hearing transcript. The judge did, however, invite defense counsel to suggest questions that the judge himself could pose to the probation o cer. Defense counsel did not take up that o er. In this appeal, Perez argues that the probation o cer was in substance an adverse witness and that the district court violated Federal Rule of Criminal Procedure 32.1(b)(2)(C) and his Fifth Amendment right to due process by refusing to allow counsel to cross-examine her. Perez also challenges the district court’s ultimate nding that he possessed a rearm and the resulting revocation of his supervised release. The probation o cer’s narration of the video was clearly adverse to Perez. Under these unusual circumstances, his counsel should have had the opportunity to cross-examine the probation o cer. In the end, however, we think the error was harmless. The record does not show that the district court relied upon the probation o cer’s testimony on any disputed issue in nding that Perez possessed a rearm in violation of the terms of his supervised release. The video provided ample evidence that Perez possessed a rearm, and the court did not abuse its discretion in revoking his supervised release. We af rm the judgment of the district court, while counseling district courts against using this well-intentioned procedural shortcut in revocation hearings. No. 22-3282 3 I. Factual and Procedural History In November 2013, David Perez pled guilty to one count of possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). A federal court sentenced him to 120 months in prison followed by six years of supervised release. Perez began his term of supervised release on July 6, 2020. One condition of his supervised release was the nearly universal condition that he not possess a rearm, ammunition, destructive device, or other dangerous weapon. See 18 U.S.C. § 3583(d), citing 18 U.S.C. § 3563(b)(8) (discretionary conditions of probation). On October 13, 2022, the United States Probation O ce submitted to the district court a supervised release violation report alleging that Perez had violated the prohibition on possessing a rearm. The report cited a Chicago Police Department report that described police contact with Perez on September 1, 2022 when o cers were monitoring a gangrelated memorial. They saw Perez display what appeared to be a handgun. O cers tried to approach Perez, but he walked away briskly and disappeared into a home despite being ordered to stop. The police eventually apprehended Perez at the back of the home. By that time, though, he did not have in his possession the item that had appeared to be a rearm. Police did not arrest Perez. Also included in the report were statements Perez made regarding the incident. Perez admitted that he had seen police o cers the day of the memorial, panicked, and then entered a friend’s home. Perez denied possessing a rearm, though. The district court held a supervised release revocation hearing on October 26, 2022. Present at the hearing were the government, Perez and his counsel, and Perez’s probation 4 No. 22-3282 o cer. No rearm had been recovered, but the government o ered several exhibits as evidence, including: (1) a video recording from a police surveillance camera that showed Perez brandishing what appeared to be a rearm; (2) screenshots from that police video recording; and (3) screenshots from Chicago Police Department body-worn camera recordings that showed Perez’s interactions with police shortly after he was observed brandishing the apparent rearm. Neither party presented any witnesses. At the revocation hearing, the district judge watched the surveillance video. The judge also asked the probation o cer to describe for the record what was happening in the video. At various times while the video was playing, the judge asked that the video be stopped and then posed questions to the probation o cer. First, the judge asked the probation o cer whether Perez was depicted in the video, and if so, how she knew it was Perez. The probation o cer identi ed Perez as one of the people in the video. She explained that she had supervised Perez for a long time and was familiar with his appearance and mannerisms. The judge then told the probation o cer to continue to describe what she was seeing in the video. The o cer explained that the video showed Perez “removing a rearm from his shorts and brandishing the rearm in multiple directions while slowly walking towards another vehicle.” Perez’s attorney objected to this description, saying that whether the object was actually a rearm remained a contested fact that the court had not yet decided. In response, the judge explained that the probation o cer was merely describing what was being shown in the video for the hearing transcript record because the video did not have audio. Perez’s attorney argued No. 22-3282 5 that it was misleading for the probation o cer to describe the object as a rearm even if just for the hearing transcript record. In response, the judge asked the probation o cer a series of questions about the object Perez was holding in the video. First, the judge asked the probation o cer what the object appeared like to her. She said it looked like a rearm. The judge asked why she thought so. She answered that it was based on her training and expertise in handling rearms in her role as a probation o cer. Finally, the judge restarted the video from the beginning. The judge told the probation o cer to ask to pause the video anytime she saw the object Perez was holding so that she could describe the object and why she believed it was a rearm. She did so several times and described aspects of the object, including what looked to her like the barrel of a rearm. Before the parties presented their arguments to the district court, Perez’s attorney asked for an opportunity to ask questions of the probation o cer, given her exchanges with the court. The judge told Perez’s attorney instead to address any questions to the judge because the probation o cer was not “taking the stand today.” The judge explained that he had walked through the video with the probation o cer on the record “simply because I couldn’t play the video and have it on the record about what people were seeing and I did care to get [the probation o cer’s] perspective on who the person was.” The judge then o ered to ask the probation o cer follow-up questions suggested by defense counsel. Such questioning by the court is ordinarily not thought to be an adequate substitute for confrontation and cross-examination by the party or his counsel. Defense counsel did not take up the court’s o er, choosing instead to make arguments directly to 6 No. 22-3282 the judge about the probation o cer’s credibility and the substance of her testimony. At the conclusion of the October 26, 2022 hearing, the judge ordered Perez detained and continued the revocation hearing to a later date. When the hearing resumed on December 1, 2022, the judge found by a preponderance of the evidence that Perez possessed a rearm in violation of the conditions of his supervised release. The court addressed two questions: whether Perez was depicted in the video and whether the object he had been holding was a gun. As to identity, the judge explained that he compared the person in the video, particularly his facial features and tattoos, to Perez, who was present in the courtroom. They were clearly the same person. The judge also said that the probation o cer’s identi cation of Perez as the person in the video corroborated the judge’s own nding. On the second question, the judge explained at some length why he believed the object held by Perez was a rearm. The judge explained that the videos clearly showed an object that looked like a rearm and that Perez had handled the object consistently with the way a person would handle a rearm. The judge added that Perez, by eeing from law enforcement and discarding the object, acted like a person trying to hide contraband from law enforcement. At no point did the judge cite the probation o cer’s in-court statements to support his nding that Perez possessed a rearm. On December 19, 2022, the district court held a sentencing hearing for the supervised release violation. After hearing from the parties and correctly calculating the advisory guideline range, the court sentenced Perez to a within-guideline sentence of 26 months in prison followed by another three years of supervised release. This appeal followed. No. 22-3282 7 II. Standard of Review A district court may revoke a term of supervised release if the court nds by a preponderance of the evidence that the defendant violated a condition of supervised release. 18 U.S.C. § 3583(e)(3). “In general, we review the revocation of supervised release for abuse of discretion, and we review the district court’s factual ndings supporting that revocation for clear error.” United States v. Patlan, 31 F.4th 552, 556 (7th Cir. 2022). While we review decisions to revoke supervised release for abuse of discretion, we still review constitutional arguments de novo. United States v. Mosley, 759 F.3d 664, 667 (7th Cir. 2014). III. Analysis A. Confrontation of Adverse Witness The Sixth Amendment right to confront adverse witnesses in a criminal trial does not apply in proceedings to revoke supervised release, but a supervisee has some due process rights that may include confronting adverse witnesses, depending on the circumstances. See United States v. Kelley, 446 F.3d 688, 690 91 (7th Cir. 2006); see generally Morrissey v. Brewer, 408 U.S. 471, 488 89 (1972) (for parole revocation, “the minimum requirements of due process … include … the right to confront and cross-examine adverse witnesses (unless the hearing o cer speci cally nds good cause for not allowing confrontation) ….”). The rule announced by the Supreme Court in Morrissey has been codi ed in Federal Rule of Criminal Procedure 32.1(b)(2)(C). We understand and appreciate the district court’s desire to have a verbal description of the video evidence in the written record of the hearing. Despite those good intentions, 8 No. 22-3282 however, and whether she was put under oath or not, it is clear to us that the probation o cer was acting as a witness and that her statements were adverse to Perez. In particular, the probation o cer described the object held by Perez in the video as a rearm—a conclusion she explained was grounded in her training and experience with rearms. Accordingly, under both Morrissey and Rule 32.1(b)(2)(C), Perez had a right to cross-examine the probation o cer at the revocation hearing unless the district court determined that the interest of justice did not require the witness to appear. See Morrissey, 408 U.S. at 488–89. The district court made no express interest-of-justice nding against allowing the probation o cer to be confronted and cross-examined. Nor could such a nding have been supported. The probation o cer was already present at the hearing and was readily available for cross-examination. Cf. United States v. Jordan, 742 F.3d 276, 279 (7th Cir. 2014) (“When liberty is at stake, the limited right to confront and cross-examine adverse witnesses should not be denied without a strong reason.… For example, where live testimony would be di cult or burdensome to obtain, confrontation need not be face-to-face.”). The district court erred in denying Perez the opportunity to cross-examine the probation o cer. 1 B. Harmless Error That error was harmless, though. The question is whether we are con dent the district court would have still found a 1 Because the probation officer offered only her own observations and not any hearsay, the special rules for using hearsay at a revocation hearing did not come into play here. See, e.g., United States v. Falls, 960 F.3d 442, 445 (7th Cir. 2020), distinguishing United States v. Jordan, 742 F.3d at 280. No. 22-3282 9 violation of Perez’s conditions of supervised release even absent the probation o cer’s testimony. See Mosley, 759 F.3d at 669 (erroneous admission of evidence at supervised release revocation hearing may still be harmless where violation would have been found even without the improper evidence). The issue of revocation depended on two factual issues: rst, was it Perez in the video, and second, was the object he possessed a rearm? The district court addressed those in sequence. The only aspect of the probation o cer’s testimony the district judge relied upon was her identi cation of Perez as the man in the video based on her familiarity with him. The judge relied on this statement by the probation o cer as corroboration of what he said was his own independent identi cation based on the video and his own observation of Perez in the courtroom. Also, Perez’s counsel explained that she would not present any evidence to contest whether it was Perez in the video. Cross-examination would not have undermined the nding that it was Perez in the video. As for whether the object Perez had been holding was a rearm, the district judge never referred to the probation of cer’s testimony. He explained that his nding was based on his own careful review of the videos and inferences drawn from them. We take the judge at his word. In addition, in response to the court’s invitation, the defense did not identify any potentially fruitful lines of cross-examination at the revocation hearing. Nor has the defense done so on appeal. Because the judge did not rely on the probation o cer’s narrative on the issue of possession, we conclude the judge would have found a violation of Perez’s supervised release even 10 No. 22-3282 without the probation o cer’s testimony. The erroneous denial of cross-examination was harmless. C. Possession of the Firearm Perez also brings a substantive challenge, arguing that the district court erred by nding that he possessed a rearm and revoking his supervised release. The videos submitted as evidence by the government clearly show Perez holding an object that looks like a rearm, as the court observed. The court’s nding was not clearly erroneous. The court explained that the videos show Perez eeing from police and entering a residence. When the police apprehended Perez at the back of the residence a few minutes later, he no longer had the object that looked like a rearm. This series of events, clearly established by the video evidence, is consistent with possessing and hiding contraband. We agree with the district court that Perez’s behavior in the video—walking away from police and quickly disposing of the object—further supports an inference that the object was a real rearm that put Perez in violation of his terms of supervised release. The district court’s nding that the object Perez is seen holding in the police videos was a real rearm was not clearly erroneous. Accordingly, the district court did not abuse its discretion in revoking Perez’s supervised release. The judgment of the district court is AFFIRMED.
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