In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 07-1638 & 07-1639

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHN NEAL,

Defendant-Appellant.

____________

Appeals from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

Nos. 99 CR 15 & 00 CR 62—John Daniel Tinder, Judge.

____________

ARGUED OCTOBER 29, 2007—DECIDED JANUARY 10, 2008

____________

Before BAUER, RIPPLE and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge. In 2000, John Neal pleaded guilty

to six federal charges for which he was sentenced to 42

months’ imprisonment and thirty-six months’ supervised

release. In September 2006, the Government petitioned

the court to revoke Mr. Neal’s supervised release. The

district court granted the Government’s petition and

sentenced Mr. Neal to an additional 24 months’ imprisonment. Mr. Neal now appeals his sentence. For the reasons

set forth in this opinion, we affirm the judgment of the

district court.
2 Nos. 07-1638 & 07-1639

1 The superseding indictment consisted of the following

charges: conspiracy to defraud the Government of the United

States, in violation of 18 U.S.C. § 371 (Count 1); operating an

illegal gambling business, in violation of 18 U.S.C. §§ 1955 and

2 (Count 2); conspiracy to commit money laundering, in

violation of 18 U.S.C. § 1956 (Count 3); money laundering to

promote illegal gambling, also in violation of 18 U.S.C. § 1956

(Counts 4 through 9); and tax evasion, in violation of 26

U.S.C. § 7201 and 18 U.S.C. § 2 (Counts 10 through 13).

2 An amended judgment was entered on August 31, 2001; the

amended judgment did not differ in any material respect

from the original judgment.

I

BACKGROUND

A. Mr. Neal’s Convictions

In March 2000, Mr. Neal was charged in a thirteen-count

indictment with conspiracy to defraud the United States

Government, operating an illegal gambling business,

money laundering and tax evasion.1

 Shortly thereafter,

in April 2000, the Government, by information, charged

Mr. Neal with an additional four counts of money laundering. Mr. Neal then entered a plea agreement with the

Government on Counts 1 and 2 of the superseding indictment and on all four counts contained in the information. With respect to the counts charged in the indictment,

the court entered its judgment on December 15, 2000,

sentencing Mr. Neal to 42 months’ imprisonment and 36

months’ supervised release.2

 The court entered judgment

on the counts charged in the information on the same day;

that judgment also sentenced Mr. Neal to 42 months’

imprisonment and 36 months’ supervised release. Each
Nos. 07-1638 & 07-1639 3

judgment indicated that the sentences imposed were to

run concurrently with the other.

B. Mr. Neal’s Supervised Release

Mr. Neal served his sentence and began his term of

supervised release on April 19, 2004. The terms of Mr.

Neal’s release included the following conditions: (1) “[t]he

defendant shall not commit another federal, state, or local

crime”; (2) “the defendant shall . . . submit [to his probation

officer] a truthful and complete written report within the

first five days of each month”; (3) “the defendant shall

work regularly at a lawful occupation”; (4) “the defendant

shall not incur new credit charges or open additional

lines of credit without the approval of the probation

officer”; and (5) “[t]he defendant shall refrain from purchasing, delivering, repairing, or collecting monies from

any video gambling machines similar to those of the

instant Federal offense” and “is further prohibited from

employing any individual to perform the job duties of

delivering, repairing, or collecting monies from any video

gambling machines similar to those of the instant Federal

offense.” R.94 at 3-4.

During the term of his supervised release, Mr. Neal

became the target of a gambling investigation conducted by

state excise police. On September 18, 2004, pursuant to

warrant, state police conducted searches of Mr. Neal’s

home and business properties; the search uncovered large

amounts of unreported cash as well as gambling machines

and other gambling equipment.

Two days after execution of the warrant, the Government petitioned for revocation of Mr. Neal’s supervised

release. According to the Government, Mr. Neal had
4 Nos. 07-1638 & 07-1639

3 The hearing originally had been scheduled for November 22,

2006, but was continued once over the Government’s objection and was continued a second time by agreement of the

parties.

4 Mr. Neal still has not been tried on those offenses.

violated each of the conditions of his release set forth

above. After the Government filed its petition, the State of

Indiana charged Mr. Neal with seventy-one violations of

state law involving illegal gambling, money laundering

and operating a corrupt business.

C. Revocation Proceedings

On January 26, 2007,3

 the district court held a hearing

on the alleged violations. Mr. Neal admitted that he had

failed to submit truthful monthly financial statements to

his probation officer and that he had opened a new line of

credit. He requested, however, that the court continue the

revocation hearing on the other alleged violations pending

trial on the state offenses.4

 The district court refused and

heard evidence on the violations.

At the hearing, Mr. Neal’s probation officer, Troy Adamson, testified that, although Mr. Neal had filled out

monthly reports, the information contained in the reports

was inaccurate. Mr. Neal’s monthly reports listed only a

pension income of $5,988.42 per month, totaling $72,000

per year. However, Mr. Neal’s federal tax returns listed

income in excess of $200,000 per year for 2004 and 2005.

Additionally, Mr. Neal’s monthly report failed to identify

bank accounts with balances in excess of $1 million and

failed to reveal a large amount of cash—$1.6 million—

found hidden in Mr. Neal’s home.
Nos. 07-1638 & 07-1639 5

Also at the hearing, Officer Monty McMahan of the

Indiana State Excise Police testified that, in the spring of

2004, he had begun an investigation of possible gambling

violations at two bars in Anderson, Indiana. As the investigation progressed, Mr. Neal became one of its targets.

Officer McMahan testified that he personally witnessed

eleven vehicles, owned or registered to Mr. Neal or to

Video Services (a company owned by Mr. Neal), transporting gambling machines and making collections. Officer

McMahan also testified to the actions of a man named

David Snow. According to Officer McMahan, Snow

would go into various establishments owned by Mr. Neal

and would leave carrying a bag of money. In September

2005, as part of the investigation, an undercover officer,

April Tackett, had a conversation with Snow. During this

conversation, Snow related that he worked for Mr. Neal

and that he had collected money from gaming machines

at different establishments. Officer McMahan testified

that Officer Tackett had observed Snow open the video

machines at Dolenski’s Bar on June 9, 2006, read the

machine’s meter and obtain $2,295 in payment from the

bar manager. Officer McMahan stated that, when excise

police pulled trash from Mr. Neal’s residence on June 15,

2006, they discovered “what appeared to be a split sheet

that contained meter readings from video gaming machines, and the split amount on that sheet was $2,295.” Tr.

(1/26/07) at 35.

Officer McMahan further testified as to his personal

observations of events at Big Baby’s Bar. Big Baby’s liquor

license had been suspended temporarily due to the presence in the bar of illegal gambling devices, which had been

removed during the suspension. The day after the suspension ended, Officer McMahan observed nine video gambling machines being delivered to the establishment.
6 Nos. 07-1638 & 07-1639

5 As part of the cross-examination of Officer McMahan, Mr.

Neal’s counsel sought to elicit testimony concerning the activities of Mr. Neal’s daughter, Vicky Massey, who was the

owner of Muncie Coin, a business immediately adjacent to

Video Services. The Government objected to this line of questioning. The court indicated that it “ha[d] no interest in Ms.

Massey’s state court charge.” Tr. (1/26/07) at 57. Mr. Neal’s

counsel then attempted to make an offer of proof:

Your Honor, we believe that if the witness was permitted to

answer the questions, that he would testify that Muncie

Coin is a separate entity. It was separately, as a part of this,

investigated as part of the state investigation, and in fact

there are similar state charges filed against Ms. Massey.

We further believe, Your Honor, that the evidence would

show that during the officer’s investigation, he was not able

to determine that video poker machine specifically used

specifically belonged to either Mr. Neal or Video Services,

Inc., and that they were unable to—they didn’t make any

effort to determine which entity owned the machines. They

have taken the position, and that would be the end of my

offer of proof.

(continued...)

According to Officer McMahan, Mr. Neal was one of the

incorporators of Big Baby’s; the tax records for the business were sent to Mr. Neal’s address, and the utility bills

also were in his name.

Finally, Officer McMahan testified that, on September 18,

2006, state excise officers executed a search warrant at

Video Services. Gambling equipment, slot machines, pull

tabs and other gambling paraphernalia were seized during

the search.

During the revocation hearing, counsel for Mr. Neal

cross-examined the Government’s witnesses.5

 However,
Nos. 07-1638 & 07-1639 7

5 (...continued)

Id. at 58-59. After further discussion, the court reiterated that

it was “not trying the state [] case against any other defendant,

or even this defendant” but was “just trying to determine

whether by a preponderance of the evidence [the defendant has]

violated any federal, state or local laws, or participated in an

illegal gambling business.” Id. at 60. By agreement of the

Government, the court accepted that Vicky Massey owned

Muncie Coin and that Muncie Coin also was in the business

of supplying gaming machines. The court then indicated that

Mr. Neal’s counsel was free to inquire as to what the police “did

or didn’t do” to determine the ownership of illegal gambling

machines, but restated that it was “not going to hear Vicky

Massey’s criminal case.” Id. at 62.

Mr. Neal did not testify, nor did he offer any documentary

or testimonial evidence in opposition to the revocation

petition.

After the evidence was presented to the court, the

Government argued that, upon the completion of his prison

sentence, Mr. Neal immediately had returned to his

gambling enterprise. The Government believed that a

preponderance of the evidence showed that Mr. Neal had

violated the five conditions of his supervised release

alleged in the Government’s petition. Furthermore, the

Government argued that, given the nature and circumstances of the offense and the history and characteristics

of the defendant, the court should impose a term of 36

months’ imprisonment.

In reply, Mr. Neal’s counsel conceded that Mr. Neal had

violated the conditions of his release concerning opening

lines of credit and reporting his income. Mr. Neal’s counsel, however, stated that he believed that the court had
8 Nos. 07-1638 & 07-1639

6 See Tr. (1/26/07) at 100 (“[A]s I understood the court’s rulings,

you did, because when we wanted to get into it with Officer

McMahan, and when we wanted to get into it, you cut us off.”).

Counsel’s allegation prompted the court to clarify its ruling:

“What you were trying to do with the officer was—what

appeared to be—was to discover what evidence they had

against Vicky as opposed—if you want to offer proof of how

the operation was run, have at it. I think that would be of

great interest—.” Id. at 100-01. Mr. Neal did not offer any

additional evidence at that time.

hampered his efforts to refute the other alleged violations.6

Counsel maintained that the Government’s request of 36

months was excessive and urged the court to adhere to

the guidelines range of 4 to 10 months. Counsel argued:

[W]hile [the Government’s counsel] didn’t say these

words, the impact of what she argues for is 36 months

now, and then a lot more later on if he’s guilty. It

would seem to me, given the realities of the situation,

that the court protect its interests, which could be

served—satisfied in a number of ways other than a

sentence of imprisonment: home detention, a shorter

custodial sentence and the like.

And then if Mr. Neal is guilty, the court trusts the

state courts to impose a significant sentence for what

the court, I think, believes to be the bad behavior. And

it seems to me under those circumstances, justice

is done.

Id. at 107-08. After hearing arguments, the court advised

the parties that it would rule on the petition on February 5,

2007.

Three days after the hearing, on January 29, 2007, counsel

for Mr. Neal filed a motion to reopen the evidentiary
Nos. 07-1638 & 07-1639 9

hearing, to present additional evidence and to obtain

discovery. Counsel requested that the State of Indiana be

ordered to produce information from the state investigation, including undercover police officer investigative

reports, surveillance reports and photographs, the results

of the trash pulls, case notes of the investigative officers

and all exculpatory evidence pertaining to the investigation of Mr. Neal.

The district court denied the motion for discovery but

granted the motion to reopen the evidentiary hearing. The

district court noted that “[t]he Defendant was given an

opportunity to present evidence at the hearing and chose

to do so only through cross-examination.” R.36 at 1. After

reviewing the discovery sought, the court reviewed the

Supreme Court’s decisions involving the rights guaranteed

to defendants in revocation hearings, namely “notice of

the claimed parole violations, disclosure of the evidence

against the defendant, an opportunity to be heard and to

present evidence, and the right to confront and cross-exam

adverse witnesses.” R.36 at 3 (citing Morrissey v. Brewer, 408

U.S. 471, 480 (1972)). The court further noted that “[t]he

Defendant cites to no statute, rule, or case law that

would . . . establish a right to the discovery he now

seeks. . . . A general right to discovery of evidence—

whether exculpatory or otherwise—was not one of the

minimal due process rights identified in Gagnon [v.

Scarpelli, 411 U.S. 778 (1973)] or Morrissey.” Id. at 3-4. With

respect to the discovery, therefore, the court held:

[W]hat the Defendant is seeking by way of discovery

appears to be far more than what he would be entitled to in a full-blown federal criminal prosecution.

His cross-examination disclosed that he has already

conducted some discovery (at least a deposition) in a

pending state court criminal or civil matter related to
10 Nos. 07-1638 & 07-1639

7 Mr. Neal’s counsel also requested production of Officer

Sanderrfur’s notes that he had consulted in preparing for his

testimony. The court sustained the Government’s objection to

the discovery of those notes.

the gambling allegations. He is submitting the current wide-ranging discovery request in the matter

before the court very late in the process, after several

continuances and after the evidence was closed. It

also appears to the court that what the Defendant is

seeking to accomplish through his requested discovery is to belatedly poke holes in the government’s

presentation after gaining the benefit of an extended

delay subsequent to hearing that evidence. The combined motion (doc. No. 119) is accordingly DENIED to

the extent it seeks discovery.

Id. at 4. However, the district court granted the motion to

reopen the evidentiary hearing to allow the defendant to

present evidence relevant to whether he had committed

the alleged violations of supervised release.

At the reopened hearing, Mr. Neal presented the testimony of Officer Joel Sanderrfur of the Anderson Police

Department, Stephen Pelletrino and John Snow. Officer

Sanderrfur testified to his conversation with Snow after

Snow’s arrest; in that statement, Snow had told Officer

Sanderrfur that he worked for Vicky Massey, but that “he

had been inside Video Services and that he had taken

money and placed it on a desk there.” Tr. (2/5/07) at 9.7

Mr. Neal then called Pelletrino, who testified that he

owned a bar located on property previously owned by

Mr. Neal. Pelletrino testified that he paid Mr. Neal in

weekly installments for the purchase of the property; the

payments were made in cash from the receipts of the bar.
Nos. 07-1638 & 07-1639 11

He also stated that the bar had “amusement machines”—

pool tables, a juke box and a video golf game—supplied by

Video Services and gambling machines supplied by Ziggy’s

Amusement. Mr. Neal’s final witness was John Snow.

Snow testified that he had been employed by Muncie Coin

to make collections on gambling machines. He further

stated that all of the money collected went to Muncie Coin;

Snow denied that he ever had told Officer Tackett that he

worked for John Neal.

After presenting this evidence, counsel for Mr. Neal

argued that the only evidence tying Mr. Neal to gambling

activities was the alleged statement by Snow, which had

been refuted. With respect to the violations concerning

reporting and opening lines of credit, counsel believed that

these violations warranted a sentence at the lower end of

the guidelines range and that the “Court should fashion

a sentence that allows Mr. Neal to be available” for the

defense of his state court prosecutions and that took Mr.

Neal’s health conditions into consideration. In response,

the Government argued that Snow in all likelihood had

perjured himself, that the evidence showed that Mr. Neal

had been operating an illegal gambling business “probably

during the time he was in prison and certainly since he

got out,” and that Mr. Neal had accumulated between

three and four million dollars in cash since the time he

was sentenced on the original charges and had “offered

no explanation for where that money came from.” Id. at 56-

57. The Government believed that Mr. Neal’s violations

were “significant” and urged “the Court to impose a very

significant sentence.” Id. at 57.

Before imposing sentence, the court explained how the

reporting requirements were designed to alert the court

to any possible criminal activity by tracking closely the

amount and source of Mr. Neal’s income. The court
12 Nos. 07-1638 & 07-1639

stated that “the violations of the monthly reporting requirements and the obtaining credit are serious in and of

themselves, given the context of this particular case and

the purpose for the regimen that was in place for this

defendant and would have deserved in and of themselves

a substantial period of incarceration.” Id. at 59-60. The court

then recounted the other evidence presented at the hearing

and concluded that

[t]he bottom line is that the preponderance of the

evidence convinces me that Mr. Neal very shortly

after completing his period of incarceration on this

underlying case returned back to the very same gambling enterprise from which I attempted to remove

him when I sentenced him in 2000. I infer from this

evidence that in fact he’s returned to his role as the

invisible man. . . .

. . . He’s returned to gambling and not in a light way,

he’s not going down to some illegal card game. He

returned to this machine gambling with a vengeance.

He has flouted the requirements imposed on him. He

acts as some sort of puppet master so he can operate

these numerous locations, essentially just thumbing

his nose at the law, at law enforcement, and at this

Court.

Id. at 61-62. The court found that the Government had

proven by a preponderance of the evidence that all five

grounds of supervised release had been violated. The

court considered the policy statements set forth in the

sentencing guidelines at U.S.S.G. § 7B1.1 and the factors

set forth at 18 U.S.C. § 3553(a) in determining the sentence. The court observed that

[t]his particular offense is especially egregious. . . . The

atmosphere in which this is done in this three or
Nos. 07-1638 & 07-1639 13

four county area is notorious. It is very clear that Mr.

Neal doesn’t get it, and it is inspirational to others in a

very negative way. There is simply no deterrence

unless a substantial sentence would be imposed on

this defendant, both specifically to him and generally

to others.

Id. at 64-65. Although the court acknowledged that “the

Government’s request for the maximum 36 months sentence [was] well justified,” the court imposed a sentence of

24 months’ incarceration followed by an additional 12

months’ of supervised release. Id. at 66. In doing so, the

court considered Mr. Neal’s “current age, his health and

the need to have a punitive and deterrent effect.” Id.

Mr. Neal timely appealed.

II

ANALYSIS

A. Discovery

Mr. Neal first claims that his Fifth Amendment right to

due process of law was violated when the district court

denied his request for discovery. We review Mr. Neal’s

constitutional claim de novo. See, e.g., United States v.

Ramos, 401 F.3d 111, 115 (2d Cir. 2005) (reviewing de novo

an alleged due process violation in context of supervised release revocation).

Following the Supreme Court’s decisions, we have held

that supervised release revocation hearings are not criminal

prosecutions. See United States v. Kelley, 446 F.3d 688, 689-91

(7th Cir. 2006) (citing Morrissey v. Brewer, 408 U.S. 471

(1972), and Gagnon v. Scarpelli, 411 U.S. 778 (1973)). Consequently, the full panoply of rights that the Constitution
14 Nos. 07-1638 & 07-1639

8 These guarantees are now codified in Federal Rule of Criminal

Procedure 32.1(b)(2). See United States v. LeBlanc, 175 F.3d 511,

515 (7th Cir. 1999) (stating that Rule 32.1 is a “codification of

Morrissey”). Rule 32.1(b)(2) states:

(2) Revocation Hearing. Unless waived by the person, the

court must hold the revocation hearing within a reasonable

time in the district having jurisdiction. The person is

entitled to:

(A) written notice of the alleged violation;

(B) disclosure of the evidence against the person;

(continued...)

guarantees to criminal defendants does not extend to

individuals who are the subject of revocation proceedings.

Instead, in Morrissey v. Brewer, 408 U.S. 471, 485 (1972), the

Supreme Court set forth the more streamlined process that

is due to an individual already convicted of an underlying

crime, but in danger of losing his conditional liberty. The

Court stated that due process requires that a parolee be

given:

(a) written notice of the claimed violations of parole; (b)

disclosure to the parolee of evidence against him; (c)

opportunity to be heard in person and to present

witnesses and documentary evidence; (d) the right to

confront and cross-examine adverse witnesses (unless

the hearing officer specifically finds good cause for

not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole

board, members of which need not be judicial officers

or lawyers; and (f) a written statement by the factfinder as to the evidence relied on and reasons for

revoking parole.

Id. at 489.8

 Although Morrissey involved a parole revoca-
Nos. 07-1638 & 07-1639 15

8 (...continued)

(C) an opportunity to appear, present evidence, and question any adverse witness unless the court determines that

the interest of justice does not require the witness to appear;

(D) notice of the person’s right to retain counsel or to

request that counsel be appointed if the person cannot

obtain counsel; and

(E) an opportunity to make a statement and present any

information in mitigation.

tion, the Supreme Court extended these protections to

probation revocation proceedings in Gagnon v. Scarpelli, 411

U.S. 778 (1973). Similarly, we have held that Morrissey also

sets out the due process requirements for purposes of

supervised release revocation hearings. See United States v.

Kelley, 446 F.3d 688, 690-91 (7th Cir. 2006); see also United

States v. Carlton, 442 F.3d 802, 807 (2d Cir. 2006); Barnes v.

Johnson, 184 F.3d 451, 455 n.7 (5th Cir. 1999).

Mr. Neal maintains that the district court violated these

basic standards when it refused to order the Government

to produce evidence that actually had been used against

him. According to Mr. Neal, this evidence includes

Officer McMahan’s surveillance notes, Officer Tackett’s

reports and evidence taken from the trash pull at his home.

Mr. Neal also argues that his due process rights were

violated when the district court failed to order the Government to produce all exculpatory evidence. We address each of these arguments below.

1. Evidence Used Against Mr. Neal

Mr. Neal first maintains that he is entitled to officers’

surveillance notes, to Officer Tackett’s reports, to the

physical evidence pulled from his trash and to case reports
16 Nos. 07-1638 & 07-1639

of officers involved in the state gambling investigation. Mr.

Neal believes that this evidence actually was used against

him and, therefore, the Government had a duty under

Morrissey and Criminal Rule 32.1 to produce that information.

None of the documents or physical items sought by

Mr. Neal were introduced as evidence during his revocation hearing. Essentially, Mr. Neal’s argument attempts

to equate evidence that might be useful to the defense

with evidence that actually was used by the Government

in making its case. Morrissey requires disclosure of the

second category, but not the first. The Ninth Circuit

recognized this distinction in United States v. Tham, 884 F.2d

1262 (9th Cir. 1989). In Tham, the defendant’s probation

officer had testified at Tham’s probation revocation

hearing. The district court, however, denied Tham’s

request to view his probation file. On appeal, Tham argued

that the district court’s denial violated both Rule 32.1’s

requirement of “disclosure of evidence against the probationer,” as well as his right to due process. The Court of

Appeals rejected the argument on the ground that the

file itself had not been used as evidence against Tham

and that “Tham was provided the opportunity to crossexamine all witnesses, including his probation officer.” Id.

at 1265. Consequently, “no violation of the Rule or of due

process” had occurred. Id. Similarly, none of the requested

information was offered into evidence at Mr. Neal’s

revocation hearing, and Mr. Neal was provided with, and

took advantage of, the opportunity to cross-examine the

Government’s witnesses.

Moreover, there is another reason that we must reject

Mr. Neal’s claim that he had a right to the requested

discovery. Here, the evidence sought by Mr. Neal was
Nos. 07-1638 & 07-1639 17

not in the hands of Mr. Neal’s probation officer or any

federal authority, but in the control of the state police. This

court has held that Rule 16 of the Federal Rules of Criminal Procedure, which controls discovery in criminal

prosecutions, “imposes upon the federal government no

duty to obtain documents that are controlled by the state

government or police, even if the prosecution is aware

of the items.” United States v. Hamilton, 107 F.3d 499, 509

n.5 (7th Cir. 1997).

2. Exculpatory Evidence

Mr. Neal also maintains that the court should have

ordered “the State of Indiana ATC to produce . . . [a]ll

exculpatory evidence pertaining to the investigation of

John Neal.” R.33 at 3. Mr. Neal acknowledges that this

material is not evidence that was used against him, but

nonetheless maintains that due process requires that the

evidence be turned over to him. Mr. Neal claims that “[i]n

the Eighth Circuit, there is clear precedent supporting the

proposition that a defendant in Neal’s situation would be

entitled to the production of exculpatory evidence. See

United States v. Quiroz, 374 F.3d 682, 684 (8th Cir. 2004).”

We do not believe that Quiroz can be read to establish a

general right to all exculpatory material in the context of

release revocation hearings, much less a right to the

material under the circumstances presented here.

Quiroz did not involve directly the question of a defendant’s entitlement to exculpatory material in a revocation

proceeding. The central issue in Quiroz was whether the

district court abused its discretion in denying the defendant an additional continuance; the district court previously had granted several continuances for a total of
18 Nos. 07-1638 & 07-1639

four months. Counsel for Quiroz had requested the continuance after hearing the testimony of the Government’s

sole witness—a customs agent who had interviewed

Quiroz after her arrest. Counsel claimed that additional

time was necessary to review the arrest report, the laboratory report for the cocaine found on Quiroz and the

release violation report, all of which he claimed not to have

seen prior to the hearing, and none of which he had

attempted to obtain prior to the hearing either from the

Government or Quiroz’s former counsel. As noted above,

the district court denied the continuance, and the Court

of Appeals for the Eighth Circuit affirmed. The circuit

court rejected Quiroz’s claim that “she had a compelling

reason for requesting the continuance because she had not

been provided with the three reports and needed additional time to review these reports for potentially exculpatory or impeachment materials.” Id. at 684. The court

did not address the foundational question whether Brady

v. Maryland, 373 U.S. 83 (1963), applied in the context of

a revocation hearing. Without first making this determination, however, the court went on to state that there

was “no evidence whatsoever of a Brady violation, much

less any plain error regarding a Brady violation”; consequently, the “attempt to show a compelling reason for the

requested continuance fail[ed].” Id. at 684.

Furthermore, even if we could read the Eighth Circuit’s

opinion as establishing a right to exculpatory material

under some circumstances, we do not believe that the

decision supports Mr. Neal’s particular claim to exculpatory material. Mr. Neal’s situation is remarkably similar

to that of Quiroz. Despite the lapse of four months between the filing of the revocation petition and the hearing,

Mr. Neal did not seek the court’s assistance in securing
Nos. 07-1638 & 07-1639 19

9 Counsel stated:

5. Production of these items would allow the defendant to

demonstrate that McMahan was either overstating the

evidence, at best, or misrepresenting the evidence at worst.

6. Additionally, these reports would assist the Defendant

in demonstrating that there is simply no evidence linking

him to the present distribution of video gaming machines.

R.34 at 2.

10 Although Mr. Neal does not mention the case with respect to

his argument on exculpatory evidence, he does cite one other

case in which the question whether a defendant was entitled to

the discovery of exculpatory evidence in revocation proceedings was squarely presented to the court. In United States v.

Dixon, 187 F. Supp. 2d 601, 604 (S.D. W. Va. 2002), the court

stated that, with respect to requests for discovery in the context of revocation proceedings, it did “not believe it appropriate to categorically refuse the compulsion of favorable

evidence.” Id. The court concluded that a defendant is entitled

to discovery of exculpatory evidence in revocation proceedings if certain conditions are met. The first of these conditions is

that “Defendant must make a timely request by written motion for favorable evidence well in advance of the hearing.” Id.

Mr. Neal, however, has failed to satisfy this requirement.

exculpatory evidence. Instead, Mr. Neal waited until the

Government had presented its evidence at the hearing

before he petitioned the court for discovery; the petition

not only sought evidence, but “fourteen days to review and

evaluate the evidence.” R.34 at 3. Except for counsel’s

allegations in the discovery motion,9

 Mr. Neal made no

effort to establish that there was exculpatory evidence to

be gained. In short, Mr. Neal’s discovery motion suffers

from the same inadequacies in timeliness and proof as

that rejected by the Eighth Circuit in Quiroz.

10
20 Nos. 07-1638 & 07-1639

In denying Mr. Neal’s request for discovery, the district court made clear that it considered Mr. Neal’s request untimely and an effort to delay further his revocation hearing. R.36 at 4 (“He is submitting the current wideranging discovery request in the matter before the

court very late in the process, after several continuances

and after the evidence was closed.”). The holding of Quiroz

reflects a concern that requests for exculpatory evidence

may be used as a means of manipulating the judicial

process. In Quiroz, the court explicitly rejected a belated

attempt by counsel to obtain evidence similar to that

sought by Mr. Neal. Given the procedural inadequacies

of his request, Mr. Neal has presented no support for

his claim that he is entitled to exculpatory material. Consequently, we need not reach the substantive issue whether,

and under what circumstances, an individual subject to

revocation proceedings is entitled to exculpatory material.

B. Sentence

Mr. Neal also maintains that the sentence imposed by

the district court was too severe. We recently confirmed

that “a sentence imposed after the revocation of supervised release can be set aside only if it is ‘plainly unreasonable.’ ” United States v. Kizeart, 505 F.3d 672, 673 (7th Cir.

2007). To reach a reasonable sentence, the district court

must begin its analysis with the recommended imprisonment ranges found in U.S.S.G. § 7B1.4, but these ranges

“inform[] rather than cabin[]” the district court’s sentencing discretion. United States v. Pitre, 504 F.3d 657, 664

(7th Cir. 2007) (internal quotation marks and citations

omitted). The court also must consider the sentencing

factors enumerated in 18 U.S.C. § 3553(a). See United States

v. Carter, 408 F.3d 852, 854 (7th Cir. 2005). As with an
Nos. 07-1638 & 07-1639 21

initial sentencing decision, the court “need not make

factual findings on the record for each factor”; however,

“the record should reveal that the court gave consideration to those factors.” Id.

In the present case, the district court employed the

correct methodology in reaching Mr. Neal’s sentence. First,

the court noted the suggested guidelines ranges for Mr.

Neal’s violations. The two violations admitted by Mr. Neal,

the requirement that Mr. Neal provide accurate financial

reports and the prohibition on opening new lines of credit,

are “Grade C” violations, see U.S.S.G. § 7B1.1(a)(3), and

carry a recommended sentencing range of 3 to 9 months,

see id. § 7B1.4. Additionally, the district court found that

Mr. Neal had violated three other terms of his supervised release: committing another federal, state or local

crime; being involved in video gambling; and being

employed in an unlawful occupation. These additional

violations are “Grade B” violations, see U.S.S.G.

§ 7B1.1(a)(2), and carry a recommended sentence of 4 to 10

months, see id. § 7B1.4.

The district court, however, then turned to the factors set

forth in 18 U.S.C. § 3553(a). The court determined that

the suggested guideline ranges did not account adequately for Mr. Neal’s wanton disregard of the terms of

his release and his blatant disregard of the law in resuming his gambling activities almost immediately upon his

release from prison. See 18 U.S.C. § 3553(a) (requiring the

court to consider “the nature and circumstances of the

offense and the history and characteristics of the defendant” and “the need for the sentence imposed . . . to reflect

the seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense”). The

court also believed that his behavior was “inspirational to
22 Nos. 07-1638 & 07-1639

11 Although not raised by Mr. Neal, we address one other issue

with respect to Mr. Neal’s sentence. During revocation proceedings, the Government requested that Mr. Neal be sentenced to 36 months’ imprisonment, which was, according to its

understanding, the maximum available sentence. The district

court also, apparently, was operating under the assumption

that the maximum possible sentence was 36 months. See Tr.

(2/5/07) at 66. Although Mr. Neal argued that the alleged

(continued...)

others in a very negative way”—another factor set forth

in § 3553(a). See id. § (a)(2)(B) (requiring the court to

consider the need for the sentence “to afford adequate

deterrence to criminal conduct”). The court further explained that “[t]here is simply no deterrence unless a

substantial sentence [is] imposed on this defendant, both

specifically to him and generally to others.” Tr. (2/5/07)

at 65.

The district court also considered factors set forth in

§ 3553(a) that weighed in Mr. Neal’s favor, namely his

age and health problems. Id. at 64. Taking these into

account, and balancing them against the flagrancy of the

violations, the seriousness of those violations and the need

for deterrence, the district court imposed a sentence of

24 months.

As required, the district court consulted the Guidelines

and then turned to the factors set forth in § 3553(a). Looking at those factors, the court determined that the suggested range of 4 to 10 months did not account adequately

for the § 3553(a) factors. In light of the evidence against

Mr. Neal, the district court’s decision was not without

support in the record, and its sentence was not plainly

unreasonable.11
Nos. 07-1638 & 07-1639 23

11 (...continued)

violations did not “warrant a sentence of 36 months” or “even

the high end of the recommended guidelines,” see id. at 54, he

never argued that the district court lacked the authority to

sentence him to the full 36 months. He also has not raised such

an argument in his brief on appeal.

At oral argument one of the panel members suggested that

the district court may have committed plain error in the sentencing because, according to statute, the maximum penalty

that could be imposed upon Mr. Neal was 24, as opposed to 36,

months’ imprisonment. In response to the court’s inquiry,

the Government reiterated its belief that 36 months was the

correct maximum penalty, but also stated that it did not believe that the difference in maximum penalty would have

altered the district court’s sentencing determination. During

his rebuttal time, Mr. Neal’s counsel did not address the

possible discrepancy in maximum penalties raised by the court.

We have reviewed this issue and conclude that the district

court did not commit plain error in employing the 36-month

maximum. As we have oft repeated, “under the plain error

standard, the party asserting the error bears the burden of

persuasion on the following points: (1) that there is error, (2) that

the error is plain, and (3) that the error ‘affects substantial

rights.’ ” United States v. Jumah, 493 F.3d 868, 875 (7th Cir. 2007)

(quoting United States v. Olano, 507 U.S. 725, 732-34 (1993)). “If

these three conditions are met, the court may exercise its

discretion to notice a forfeited error, but only if it (4) ‘seriously

affects the fairness, integrity, or public reputation of judicial

proceedings.’ ” United States v. Day, 418 F.3d 746, 750 (7th Cir.

2005) (quoting Olano, 507 U.S. at 732; additional quotation

marks and citations omitted).

Applying this standard, it was error for the court to believe

that 36 months was the maximum penalty. Section 3583(e)(3)

(continued...)
24 Nos. 07-1638 & 07-1639

11 (...continued)

provides that a court may revoke a term of supervised release,

“and require the defendant to serve in prison all or part of the

term of supervised release authorized by statute for the offense

that resulted in such term of supervised release . . . except that

a defendant whose term is revoked under this paragraph may

not be required to serve . . . more than 2 years in prison if such

offense is a class C or D felony.” 18 U.S.C. § 3583(e)(3). The

crimes to which Mr. Neal originally pleaded guilty were class C

and D felonies. Consequently, the statute caps Mr. Neal’s

penalty at two years’ imprisonment for each term of supervised release revoked.

However, although the cap for revocation of each term of

supervised release is two years, it appears that Mr. Neal was

serving concurrent terms of supervised release. See supra at 2-3.

We have held that the “district court has discretion to impose

consecutive prison terms upon revoking concurrent terms of

supervised release.” United States v. Deutsch, 403 F.3d 915, 918

(7th Cir. 2005). Consequently, the district court had the discretion to sentence Mr. Neal to two consecutive 24-month terms,

for a total of 48 months’ imprisonment.

In this case, even if the district court were limited to the cap

for revocation of one term of supervised release, there is no

indication in this record that the district court would have

sentenced Mr. Neal to anything less than 24 months. The record

is replete with statements by the district court noting Mr. Neal’s

blatant disregard for the law and suggesting that only a significant penalty would send a message to Mr. Neal and other

individuals involved in illegal gambling activities.

Moreover, even if we were to conclude that error had

occurred that affected Mr. Neal’s substantial rights, we would

be hesitant to exercise our discretion and recognize plain error

in this context. Recently, our colleagues on the Eighth Circuit

(continued...)
Nos. 07-1638 & 07-1639 25

11 (...continued)

were faced with a similar circumstance when a defendant

failed to raise an instructional error. That court observed:

All of this said, we will not correct the error because of our

view of the proper role of courts in an adversarial system.

Deputy Kofka did not challenge the above-described aspect

of the jury instructions before the district court, thus

triggering plain error review, Fed. R. Civ. P. 52(d)(2); Littrell

v. Franklin, 388 F.3d 578, 586-87 (8th Cir. 2004); see United

States v. Olano, 507 U.S. 725 (1993), and he did not raise the

matter on appeal. What is more, he did not adopt the

argument when, at oral argument, we pointed out that the

case appeared to have been submitted to the jury on an

improper theory. He did little more than acknowledge

that no one had noticed this problem. Though we can

correct plain errors sua sponte, see Silber v. United States, 370

U.S. 717, 718 (1962), the amount of inaction in this case is too

much for us to brook. To correct the error, we would have

to notice sua sponte that the district court did not act sua

sponte to provide a jury instruction that the defendant

should have provided, and then we would have to remedy

the problem in the face of the defendant’s relative indifference to it. We have an adversarial system of justice, not an

inquisitorial one, and to proceed along the path described

above would be to blur the line between the two systems.

We decline to do so.

Swipies v. Kofka, 419 F.3d 709, 717 (8th Cir. 2005). Mr. Neal has

had ample opportunity to bring before this court any alleged

errors in the district court’s sentencing. Indeed, this court

presented to Mr. Neal the possibility of plain error at oral

argument, but counsel failed even then to argue the point.

Counsel’s decisions not to raise the issue either in the district

court or in this court may have been conscious ones: Mr. Neal

(continued...)
26 Nos. 07-1638 & 07-1639

11 (...continued)

may have been reluctant to challenge the district court’s

assumption of a 36-month cap for fear that the court may realize

that it had an even greater maximum within which to work.

Alternatively, Mr. Neal may have decided not to pursue this

argument on appeal because, given the court’s strong statements

regarding the seriousness of the violations and the need for

deterrence, he did not believe that there was sufficient evidence

in the record to support a finding that the district court would

have sentenced Mr. Neal differently. Given the absolute failure

to bring the issue of an incorrect maximum sentence to the

court’s attention, and the possibility that the decision could

have been made as a matter of strategy, we do not believe that

this is an appropriate case in which to exercise our discretion

to recognize plain error.

USCA-02-C-0072—1-10-08

Conclusion

For the reasons set forth above, we affirm the judgment

of the district court.

AFFIRMED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit