### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 14

- 2866
U NITED S TATES OF A MERICA , Plaintiff

- Appellee ,

v.

D ENNIS M OSLAVAC , Defendant

- Appellant

.

____________________ Appeal from the United States District Court for the Eastern District of Wisconsin

. No. 02

- CR

- 75

— Rudolph T. Randa , Judge

.

____________________
A RGUED J ANUARY 6, 2015

— D ECIDED F EBRUARY , 18 , 2015

____________________

Before F LAUM , W ILLIAMS , and T INDER , Circuit Judges

. F LAUM , Circuit Judge

. In July 2014, Dennis Moslavac was three months shy of completing a four year term of supe rvised release when he was arrested and accused of violating the terms of that release . Among other alleged violations, the government accused Moslavac of committing a battery ag ainst a female victim , Jina Kizivat. Kizivat ’s nine

- year

- old daughter , D.S., allegedly witness ed the battery.2 No. 14

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At Moslavac’s parole revocation hearing, the govern ment called Walter Sturgeon to testify about the alleged battery of Kizivat. Stur geon i s D.S.’s father and Kizivat’s ex

- husband ; he was not present during the alleged battery

. Sturgeon r elayed only what D.S. told him about the incident, and the government introduced a voicem ail that D.S. left for Stu rgeon on the day of the alleged battery. Neither Kizivat nor D.S. testified at Moslavac’s revocation hearing. Over Moslavac’s objection, the district court allowed D.S.’s stat ements into evidence on the theory that they were excit ed u tterance s , but did not explicitly balance the interests of the parties under Federal Rule of Criminal Procedure 32.1(b)(2)(C). For that reason, w e now reverse

. I. Background
Dennis Moslavac was convicted of possessing cocaine with intent to distrib ute in violation of 21 U.S.C. §§ 841(a )( 1) and (b)(1) , and sentenced to 105 months imprison ment, fo llowed by four years of supervised release. Moslavac’s term of supervised release was set to end on October 7, 2014. In July 2014, Moslavac was arrested based on allegations that he violated the terms of his supervised release. The district court held a revocation hearing on August 14, 2014 to d etermine what sentence

— if any

— Moslavac should receive for the alleged violations. The government claimed that Moslavac vi olated the terms of his supervised release in se ven ways: (1) the alleged battery of female victim, Jina Kiz ivat ; (2) the alleged battery of female victim, Joann Werner ; (3) having a positive urine test for drugs; (4) fai ling to report for drug testing; (5 ) associating with persons using mariju ana; (6) failing to give his p arole o fficer advance notice of a change in res idence; and (7) failing to report to an appoin t-No. 14

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ment with his p arole o fficer. Moslavac contested the first two battery allegations, but did n ot dispute the remaining claims.
At Moslavac’s revocation hearing, the government pr esented evidence of both batteries. Only the evidence relating to the alleged battery of Kizivat is at issue in this appeal. As evidence of the Kizivat battery , the governm ent relied on the

“ testimony ” of D.S.

— Kizivat’s nine

- year

- old daughter who allegedly witnessed the battery. Specifically, the government called Walter Sturgeon

— D.S.’s father and Kizivat’s ex

husband

— as its only witness

. Sturgeon testified that he dropped D .S. off with Kizivat on the morning of the alleged incident , and that he receive d several phone calls from D.S. later in the day telling him that Moslavac hit Kizivat’s foot with a metal object after he became angry about a phone call Kizivat received

. D.S. apparently conveyed to Sturgeon that the incident was all her fault because she told Moslavac about the phone call

. The next day , Sturgeon realized that D.S. left a voicemail message on his phone when she was a ttempting to reach him. The government p layed D.S.’s voicemail during the revocation hearing in conjunction with Sturgeon’s testimony.
The district court determ ined that D.S.’s statements

— as relayed by Sturgeon and by D.S.’s voicemail

— were excited utterances, and therefore were admissible hearsa y. See Fed. R. Evid. 803(2). The district court did not, however, engage in an interest balancing analysis under Federal Rule of Cri minal Procedure 32.1(b)(2)(C). The district judge stated that he found D.S.’s “testimony” to be highly credible, completely convincing, and that the court would give it “great weight.” Supervised Releas e Revocation Hr’g Tr. 76, Aug. 14, 2014.4 No. 14

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Because all of Moslavac’s parole violations were “Grade C” violations, and because he had a criminal history category of IV, the advisory revoca tion sentencing guideline s suggested a sentence of between six and twelve months imprisonment. The government requested a sentence between nine and twelve months

. T he district court subsequently sentence d Moslavac to nine months of imprisonment, followed by an additional two years of supervised release.
II. Discussion There is no consensus among our sister circuits about what standard of review to apply when reviewing a district court’s admission of hearsay testimony at a parole revoc ation hearing without conducting an explicit balancing test under Rule 32.1(b)(2)(C)

. Some circuits apply an abuse of discretion standard, s ee United States v. Doswell , 670 F.3d 526 , 533 (4th Cir. 2012 ), United States v. Martin , 382 F.3d 840, 844 (8th Cir. 2004) , whil e others apply de novo review

. See Uni ted States v. Lloyd , 566 F.3d 341, 344 (3d Cir. 2009). We co nclude that the standard of review does not affect our analysis in this case , as the district court ’s admission of the hearsay
tes timony

— without conducting a Rule 32.1(b)(2)(C) balan cing test

— runs directly afoul of our precedent in United States v. Jordan , 742 F.3d 280 (7th Cir. 2014) ; the dis trict court erred under either standard of review. In any event, since the pa rties did not fully brief the issue, we reserve addressing it in this case.
A . The district court erred in not conduct ing an explicit balancing test under Rule 32.1(b)(2)(C). Federal Rule of Criminal Procedure 32.1(b)(2)(C) states that at a parole revocation hearing, the defendant is owedNo. 14

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“an op portunity to appear, present evidence, and question any adverse witness unless the court determines that the i nterest of justice does not require the witness to appear.” In United States v. Jordan , we held that “Rule 32.1(b)(2)(C) r equires a district c ourt in a revocation hearing explicitly to balance the defendant’s constitutional interest in confront ation and cross

- examination against the government’s s tated reasons for denying them.” 742 F.3d at 280. Here, t he go vernment concedes that the district court did not explicitly conduct the Rule 32.1(b)(2)(C) balancing inquiry . Rather, the government argues that the district court implicitly weighed these con cerns by finding that D.S.’s statements were excited
utterance s, and thus admissible hearsay

. See Fed. R. Evid. 803(2). T he gov ernment argues further that it was the district court’s conclusion that D.S.’s statements were particularly reliable, in addition to being admissible, which demonstrates that the district court implicitly weighed the interests of the parties.
In Jordan , however, we stated that “reliability cannot be th e beginning and the end of the ‘interest of justice’ analysis under Rule 32.1(b)(2)(C), and we do not mean to imply that finding the hearsay reliable would alone suffice to support its ad mission under the rule.” Id

. Furthermore, Jordan crea ted the bright

- line rule in this circuit that a district court must explicitly balance the defendant’s interests in confrontation against the government’s interests in not producing the rel evant witness. Id. Therefore, the government’s position that the district court implicitly considered these factors still runs counter to the clear mandate of Jordan

.6 No. 14

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B . The district court’s error was not harmless. The government argues that even if the district cour t erred in failing to explicitly balanc e the interests of the pa rties under Rule 32.1(b)(2)(C), that this error was harmless for three reasons: (1) the government had compelling reasons for not producing D.S. at the revocation hearing ; (2) D.S.’s hearsay stat ements were reliable; and (3) it is likely that the district court would have issued Moslavac the same sentence given the evidence of other parole violatio ns presented at his revocation hearing

. We are not persuaded by any of the go vernment’s arguments

. First, the government did not adequately dis cuss

— n or did the district court adequately consid er

— the government’s reasons for not producing D.S. at the revocation hearing. In Jordan , we stated that Rule 32.1(b)(2)(C) requires “a distri ct court in a revocation hearing explicitly to balance the d efendant’s constitutional interests in confrontation and cross

examination against the government’s stated reasons for den ying them .” 742 F.3d at 280 (emphasis added)

. The gover nment offered no re asons for not producing D.S. during Moslavac’s hearing , nor did the district court discuss any potential reasons for D.S.’s absence

. At oral argument on appeal , the government argued that its reasons for not pr oducing D.S. “should have been obvi ous, ” encou raging us to find the district court’s error harmless. Nothing in the wor ding of Rule 32.1(b)(2)(C), however, indicates that the go vernment is owed such deference . Thus, we decline to find that the district court’s Rule 32.1(b)(2)(C) error was harmless sim ply because compelling reasons for not producing D.S. may exist in the abstract.No. 14

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Next , the government argues that D.S.’s statements were so reliable that even if the district court erred in admitting them , the inherent trustworthiness of the statements re ndered the error harmless

. The government urges us to find D.S.’s statements reliable

— as t he district court did

— by f ocusing on the fact that D.S. claimed responsibility for the i ncident , thus lending more credence to her version of events

. Here, w e draw fu rther guidance from our decision in Jordan , where we tackled the question of whether a Rule 32.1(b)(2)(C) error was harmless if the evidence ultimately admitted was deemed sufficiently reliable on appeal. In Jo rdan , i n finding that a police re port was not sufficiently reli able, we noted that the probation officer who testified about the report had “no independent knowledge of the events, so his testimony merely repeated rather than corroborated the police report.” 742 F.3d at 281. Accordingly , we concluded that none of the evidence offered by the government “suff iciently corroborates the report’s account

... to allow us to determine on appeal that the evidence was so reliable as to render the district court’s error harmless.” Id. Here, Stu rgeon’s testimony wen t wholly uncorroborated at Moslavac’s hearing, with the exception of a hysterical voicemail from D.S

. 1 As in Jordan , Sturgeon had no independent knowledge of the alleged events, but rather repeated what his daughter told him

. Therefore, w e find the teachings of Jordan applic able here, and conclude that D.S.’s uncorroborated stat ements

— as relayed by Sturgeon

— were not so clearly reliable

1 The court has listened to D.S.’s voicemail, and we agree with Moslavac that it has negligible corroborative value , if any

. It is, as Moslavac chara cterized it during oral argument, largely a recording of D.S. sobbing.8 No. 14

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as to make the district court’s error under Rule 32.1(b)(2)(C) harmless. Finally, the government argues that the dis trict court’s error was harmless because Moslavac would have received the same sentence even if the district court had no t consi dered D.S.’s statements. Specifically, the government argues that the district court considered evidence of several other Grade C violations, and that any one of these other viol ations would have been sufficient to warrant an advisory guidelines range of six to twelve months. Moslavac does not dispute this contention. However,

s imply because the guidelines range would hav e been th e same without the Kizivat battery evidence does not mean that Moslavac would have received his current sent ence had the evidence not been introduced . In fact, t he district court p laced considerable emphasis on the Kizivat battery during
sentenc ing, noting, And that’s credible evidence. So when you say it’s an excited utterance, while we have to look at those with caution, when it has this type of validity in the Court’s 40 years of experience in handling many, many, many of these cases and having man y child witnesses under these types of circumstances testify in this manner, and that is all testimony that gives the Court great confidence that

— when it says this is absolute validity and should be given great weight, it is going to give it great weight

... . Supervised Release Revocation Hr’ g Tr. 76

. In light of the considerable and apparent weight that the dis trict court gaveNo. 14

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to the Kizivat battery during Moslavac’s sentencin g, we ca nnot conclude that Moslavac would have received the same
sentence notwiths tanding the Kizivat incident

. Thus, it was not harmless error for the district court to overlook its obl igation to perform an interests analysis pursuant to Rule 32.1(b)(2)(C )

. III . Conclusion

T he judgment of the district court is V ACATED , and the case is R EMAND ED for a re

- sentencing hearing consistent with this opinion. 2

2 Moslavac a sked this court to assign his re

- sentencing hearing to a di fferent district court judge. We find no compelling reason f or such a re

assignment , and therefore decline to do so.