United States v. Keith Jordan , 765 F.3d 785 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2004
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEITH D. JORDAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 3:98-cr-30095-SEM — Sue E. Myerscough, Judge.
____________________
SUBMITTED AUGUST 21, 2014 ∗ — DECIDED SEPTEMBER 3, 2014
____________________
Before FLAUM and HAMILTON, Circuit Judges, and
KAPALA, District Judge. **
∗ After an examination of the briefs and the record, and pursuant to the
parties’ motion to waive oral argument and expedite the appeal, we have
concluded that oral argument is unnecessary. The appeal is submitted on
the briefs and the record. See Fed. R. App. P. 34(a)(2).
** The Honorable Frederick J. Kapala of the Northern District of Illinois,
sitting by designation.
2 No. 14-2004
HAMILTON, Circuit Judge. Defendant Keith D. Jordan filed
this successive appeal after we remanded his case for a new
supervised release revocation hearing. See United States v.
Jordan, 742 F.3d 276 (7th Cir. 2014) (Jordan I). In the first hear-
ing, the key substantive evidence against Jordan was a writ-
ten police report prepared by the Texas State Trooper who
arrested Jordan in Texas after a traffic stop. His report said
that Jordan had been driving a car containing nearly 30
pounds of marijuana, supporting a Grade A supervised re-
lease violation for a controlled substance offense. See
U.S.S.G. § 7B1.1(a)(1). The trooper did not testify at that first
hearing. The court admitted the hearsay report over Jordan’s
objection and relied upon it to find a violation and to return
Jordan to prison. We held there was a reversible error be-
cause the court had admitted the report without making a
finding about the interest of justice under Federal Rule of
Criminal Procedure 32.1(b)(2)(C) that could have excused
the failure to allow the defendant to cross-examine the
trooper.
In the hearing upon remand, Trooper Wilson, the officer
who arrested Jordan and wrote the report, testified via two-
way video conference, as we had suggested in our opinion
might be used to “allow a distant witness to testify and face
cross-examination with minimal inconvenience and ex-
pense.” See 742 F.3d at 279. He confirmed the events de-
scribed in the police report that was at issue in Jordan I. He
also testified that the leafy green substance found in the car
that Jordan and his collaborator were driving was in fact ma-
rijuana. Trooper Wilson explained that he had participated
in many marijuana busts before and was familiar with the
plant and its characteristics. He also provided an estimate of
the quantity of marijuana he found in the car.
No. 14-2004 3
In addition to Trooper Wilson’s oral testimony, the gov-
ernment introduced a forensic laboratory report confirming
that the leafy green substance found in Jordan’s car was in
fact marijuana. Trooper Wilson testified that the forensic re-
port was the same one that the forensic lab had provided to
him at the time. The district court allowed the introduction
of the report over Jordan’s objection, saying that such reports
are generally considered reliable. Based on this evidence, the
district court imposed the original sentence of 24 months in
prison (with credit for time served) and no additional super-
vised release. That sentence was within the guideline range
for a Grade A supervised release violation of 18 to 24 months
for someone with Jordan’s criminal history.
Jordan raises two challenges to this revocation hearing on
appeal. First, he argues that allowing Trooper Wilson to tes-
tify by video conference violated Federal Rule of Criminal
Procedure 32.1(b)(2), citing our decision in United States v.
Thompson, 599 F.3d 595 (7th Cir. 2010). In Thompson, we held
that Rule 32.1(b)(2) was violated when the presiding judge
appeared at the revocation hearing by video conference.
However, Thompson addressed Rule 32.1’s appearance re-
quirement only as it applies to parties and the presiding
judge, not to witnesses.
To be sure, Thompson stated broadly “that the use of [vid-
eo conferencing] is the exception to the rule, not the default
rule itself.” 599 F.3d at 601. In this way, Thompson explained
that in some contexts and for some hearing participants, vid-
eo conferencing is authorized only where there are “specifi-
cally enumerated exception[s]” permitting its use. See id. at
600–01. We extended this default rule to the defendant’s
“opportunity to appear” before the court under Rule
4 No. 14-2004
32.1(b)(2)(C) because that requirement was analogous to
other contexts requiring the defendant’s physical presence.
See id., citing Fed. R. Crim. P. 5(f) and 10(c). Accord, Fed. R.
Crim. P. 43(a) (making clear that “[u]nless [Rule 43], Rule 5,
or Rule 10 provides otherwise, the defendant must be pre-
sent”). The lack of such an exception in Rule 32.1(b)(2) thus
indicated that neither the defendant nor the judge could ap-
pear by video conference during a revocation hearing.
Thompson, 599 F.3d at 601.
There is no similar default rule for witnesses in super-
vised release revocation hearings. In fact, Rule 32.1(b)(2)(C)
expressly allows the court to excuse a witness’s appearance
altogether, whether physical or virtual, in the interests of jus-
tice, despite the otherwise strong preference for live, in-
person testimony. Thompson therefore does not conflict with
the interest-of-justice provision or extend to require an in-
person appearance of all witnesses in revocation hearings.
The district court in this case did exactly what we suggested
in Jordan I when it allowed Wilson to testify via video con-
ference. The court committed no error in doing so. The video
conference option is permissible for witnesses under Rule
32.1(b)(2) and worked well in this case, as the district court
noted on the record.
We are concerned about one related point, however. In
discussing whether to allow Trooper Wilson to appear by
video conference, the district court commented that it could
not “imagine that the 7th Circuit expects that in these rural
communities, or even in these busy, large cities, that in every
one of these revocation cases there has to be a hearing with
the officer present whether by video or otherwise.” Tr. 17.
We recognize that similar issues about whether to require
No. 14-2004 5
witnesses, especially law enforcement officers, to appear to
prove disputed violations of supervised release conditions
may arise often.
Lest there be any misunderstanding, we expect that as
district courts evaluate the interest of justice under Rule
32.1(b)(2)(C), contested revocations of supervised release
will ordinarily justify substantial efforts to provide the de-
fendant with the opportunity to confront an accuser whose
testimony is being relied upon to return him to prison. The
defendant is not entitled to all of the protections of a crimi-
nal trial, but the stakes may be months or even years in pris-
on. A court considering the interest of justice cannot lose
sight of those stakes, even if letting the defendant confront
the witness will require some effort or inconvenience for the
prosecution or the court.
Jordan’s second argument on appeal is that allowing the
introduction of the laboratory report without explicitly mak-
ing a finding about the interest of justice under Rule 32.1
was a reversible error, just as the admission of the police re-
port had been an error in Jordan I. Defense counsel’s failure
to raise the objection explicitly in terms of Rule 32.1(b)(2)(C)
or the need for such a finding (counsel made a vague objec-
tion only to lack of “foundation”) could easily explain the
absence of such a finding. See Tr. 46.
Even if there were an error, which we do not decide, it
would have been harmless. Trooper Wilson testified that the
leafy substance found in the car Jordan had been driving
was nearly 30 pounds of marijuana. That testimony was
based on his personal knowledge and experience in law en-
forcement. His testimony on those points was not contra-
dicted or otherwise impeached. The quantity was obviously
6 No. 14-2004
a distribution quantity, and the lab report was not necessary
to establish either the identity or the quantity of the marijua-
na in Jordan’s possession. See United States v. Sanapaw, 366
F.3d 492, 496 (7th Cir. 2004) (evidence was sufficient to sup-
port conviction for distribution of marijuana without labora-
tory findings). There simply was no conflicting evidence to
weigh against the court’s finding, by a preponderance of the
evidence, that Jordan had committed a Grade A violation of
the terms of supervised release by possessing marijuana
with intent to distribute.
The judgment of the district court is AFFIRMED.