United States v. David Perez

99 F.4th 972

• Court: Court of Appeals for the Seventh Circuit
• Decided: April 24, 2024
• Docket: 22-3282
• Status: Published

Opinion

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 rec- orded him holding what appeared to be a firearm. His condi- tions of federal supervised release, not to mention 18 U.S.C. § 922(g)(1), made it unlawful for Perez to possess a firearm. At a supervised release revocation hearing, the government sub- mitted as evidence a police surveillance video that the gov- ernment argued showed Perez holding a gun. The district 2 No. 22-3282

judge asked Perez’s probation officer to narrate the video as it was played during the hearing. Perez objected to the probation officer’s narration of the video and asked to cross-examine her. The district court de- nied that request. The judge asserted that the probation officer 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 officer. Defense counsel did not take up that offer. In this appeal, Perez argues that the probation officer was in substance an adverse witness and that the district court vi- olated 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 dis- trict court’s ultimate finding that he possessed a firearm and the resulting revocation of his supervised release. The probation officer’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 officer. In the end, however, we think the error was harmless. The record does not show that the district court relied upon the probation officer’s testimony on any disputed issue in finding that Perez possessed a firearm in violation of the terms of his supervised release. The video provided ample evidence that Perez possessed a firearm, and the court did not abuse its discretion in revoking his supervised release. We af- firm the judgment of the district court, while counseling dis- trict 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 uni- versal condition that he not possess a firearm, ammunition, destructive device, or other dangerous weapon. See 18 U.S.C. § 3583(d), citing 18 U.S.C. § 3563(b)(8) (discretionary condi- tions of probation). On October 13, 2022, the United States Probation Office submitted to the district court a supervised release violation report alleging that Perez had violated the prohibition on possessing a firearm. The report cited a Chicago Police Department report that described police contact with Perez on September 1, 2022 when officers were monitoring a gang- related memorial. They saw Perez display what appeared to be a handgun. Officers 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 firearm. Police did not arrest Perez. Also included in the report were statements Perez made regarding the incident. Perez admitted that he had seen police officers the day of the memorial, panicked, and then entered a friend’s home. Perez denied possessing a firearm, 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

officer. No firearm had been recovered, but the government offered several exhibits as evidence, including: (1) a video re- cording from a police surveillance camera that showed Perez brandishing what appeared to be a firearm; (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 firearm. Neither party presented any witnesses. At the revocation hearing, the district judge watched the surveillance video. The judge also asked the probation officer 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 pro- bation officer. First, the judge asked the probation officer whether Perez was depicted in the video, and if so, how she knew it was Perez. The probation officer identified Perez as one of the people in the video. She explained that she had su- pervised Perez for a long time and was familiar with his ap- pearance and mannerisms. The judge then told the probation officer to continue to de- scribe what she was seeing in the video. The officer explained that the video showed Perez “removing a firearm from his shorts and brandishing the firearm in multiple directions while slowly walking towards another vehicle.” Perez’s attor- ney objected to this description, saying that whether the ob- ject was actually a firearm remained a contested fact that the court had not yet decided. In response, the judge explained that the probation officer was merely describing what was be- ing shown in the video for the hearing transcript record be- cause the video did not have audio. Perez’s attorney argued No. 22-3282 5

that it was misleading for the probation officer to describe the object as a firearm even if just for the hearing transcript rec- ord. In response, the judge asked the probation officer a series of questions about the object Perez was holding in the video. First, the judge asked the probation officer what the object appeared like to her. She said it looked like a firearm. The judge asked why she thought so. She answered that it was based on her training and expertise in handling firearms in her role as a probation officer. Finally, the judge restarted the video from the beginning. The judge told the probation officer to ask to pause the video anytime she saw the object Perez was holding so that she could describe the object and why she be- lieved it was a firearm. She did so several times and described aspects of the object, including what looked to her like the barrel of a firearm. Before the parties presented their arguments to the district court, Perez’s attorney asked for an opportunity to ask ques- tions of the probation officer, given her exchanges with the court. The judge told Perez’s attorney instead to address any questions to the judge because the probation officer was not “taking the stand today.” The judge explained that he had walked through the video with the probation officer 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 officer’s] perspective on who the person was.” The judge then offered to ask the probation officer fol- low-up questions suggested by defense counsel. Such ques- tioning by the court is ordinarily not thought to be an ade- quate substitute for confrontation and cross-examination by the party or his counsel. Defense counsel did not take up the court’s offer, choosing instead to make arguments directly to 6 No. 22-3282

the judge about the probation officer’s credibility and the sub- stance 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 pos- sessed a firearm in violation of the conditions of his super- vised release. The court addressed two questions: whether Pe- rez 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 fa- cial features and tattoos, to Perez, who was present in the courtroom. They were clearly the same person. The judge also said that the probation officer’s identification of Perez as the person in the video corroborated the judge’s own finding. On the second question, the judge explained at some length why he believed the object held by Perez was a firearm. The judge explained that the videos clearly showed an object that looked like a firearm and that Perez had handled the ob- ject consistently with the way a person would handle a fire- arm. The judge added that Perez, by fleeing from law enforce- ment and discarding the object, acted like a person trying to hide contraband from law enforcement. At no point did the judge cite the probation officer’s in-court statements to sup- port his finding that Perez possessed a firearm. 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 guide- line 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 finds 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 findings 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 su- pervised 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 con- front and cross-examine adverse witnesses (unless the hear- ing officer specifically finds good cause for not allowing con- frontation) ….”). The rule announced by the Supreme Court in Morrissey has been codified in Federal Rule of Criminal Pro- cedure 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 officer was acting as a witness and that her statements were adverse to Perez. In particular, the probation officer described the object held by Perez in the video as a firearm—a conclusion she explained was grounded in her training and experience with firearms. Accordingly, un- der both Morrissey and Rule 32.1(b)(2)(C), Perez had a right to cross-examine the probation officer 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 find- ing against allowing the probation officer to be confronted and cross-examined. Nor could such a finding have been sup- ported. The probation officer was already present at the hear- ing 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-ex- amine adverse witnesses should not be denied without a strong reason.… For example, where live testimony would be difficult 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 officer. 1 B. Harmless Error That error was harmless, though. The question is whether we are confident 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 ab- sent the probation officer’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: first, was it Perez in the video, and second, was the object he pos- sessed a firearm? The district court addressed those in se- quence. The only aspect of the probation officer’s testimony the district judge relied upon was her identification of Perez as the man in the video based on her familiarity with him. The judge relied on this statement by the probation officer as cor- roboration of what he said was his own independent identifi- 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 Pe- rez in the video. Cross-examination would not have under- mined the finding that it was Perez in the video. As for whether the object Perez had been holding was a firearm, the district judge never referred to the probation of- ficer’s testimony. He explained that his finding 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 re- sponse to the court’s invitation, the defense did not identify any potentially fruitful lines of cross-examination at the revo- cation hearing. Nor has the defense done so on appeal. Be- cause the judge did not rely on the probation officer’s narra- tive 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 officer’s testimony. The erroneous de- nial of cross-examination was harmless. C. Possession of the Firearm Perez also brings a substantive challenge, arguing that the district court erred by finding that he possessed a firearm and revoking his supervised release. The videos submitted as evi- dence by the government clearly show Perez holding an ob- ject that looks like a firearm, as the court observed. The court’s finding was not clearly erroneous. The court explained that the videos show Perez fleeing from police and entering a res- idence. 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 firearm. This series of events, clearly established by the video evidence, is consistent with possessing and hid- ing 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 firearm that put Perez in violation of his terms of supervised release. The district court’s finding that the object Perez is seen holding in the police videos was a real firearm was not clearly erroneous. Accordingly, the district court did not abuse its discretion in revoking Perez’s super- vised release. The judgment of the district court is AFFIRMED.