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 firearm. His conditions 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 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 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 denied 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 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 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 affirm 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 firearm, 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 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 gangrelated 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 recording 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 probation 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 supervised Perez for a long time and was familiar with his appearance and mannerisms. 

The judge then told the probation officer to continue to describe 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 attorney objected to this description, saying that whether the object 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 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 officer to describe the 

object as a firearm even if just for the hearing transcript record. 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 believed 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 questions 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 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 offer, choosing instead to make arguments directly to 
6 No. 22-3282 

the judge about the probation officer’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 firearm 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 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 object consistently with the way a person would handle a firearm. The judge added that Perez, by fleeing 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 officer’s in-court statements to support 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 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 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 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 officer specifically finds good cause for not allowing confrontation) ....”). The rule announced by the Supreme Court 

in Morrissey has been codified 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 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, under 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 finding against allowing the probation officer to be confronted 

and cross-examined. Nor could such a finding have been supported. The probation officer 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 

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 absent 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 possessed a firearm? The district court addressed those in sequence.

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 corroboration of what he said was his own independent identification 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 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 officer’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 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 officer’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 officer’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 finding that he possessed a firearm and 

revoking his supervised release. The videos submitted as evidence by the government clearly show Perez holding an object 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 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 firearm. 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 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 supervised release. The judgment of the district court is

AFFIRMED.