In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-2866

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DENNIS MOSLAVAC,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 02-CR-75 — Rudolph T. Randa, Judge.

____________________

ARGUED JANUARY 6, 2015 — DECIDED FEBRUARY, 18, 2015

____________________

Before FLAUM, WILLIAMS, and TINDER, Circuit Judges.

FLAUM, Circuit Judge. In July 2014, Dennis Moslavac was

three months shy of completing a four year term of supervised 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 

against a female victim, Jina Kizivat. Kizivat’s nine-year-old 

daughter, D.S., allegedly witnessed the battery.
2 No. 14-2866

At Moslavac’s parole revocation hearing, the government 

called Walter Sturgeon to testify about the alleged battery of 

Kizivat. Sturgeon is D.S.’s father and Kizivat’s ex-husband; 

he was not present during the alleged battery. Sturgeon relayed only what D.S. told him about the incident, and the 

government introduced a voicemail that D.S. left for Sturgeon 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 statements into evidence on the theory that they were excited utterances, but did not explicitly balance the interests of the 

parties under Federal Rule of Criminal Procedure 

32.1(b)(2)(C). For that reason, we now reverse.

I. Background

Dennis Moslavac was convicted of possessing cocaine 

with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) 

and (b)(1), and sentenced to 105 months imprisonment, followed 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 determine what sentence—if any—Moslavac should receive for 

the alleged violations. The government claimed that 

Moslavac violated the terms of his supervised release in seven ways: (1) the alleged battery of female victim, Jina Kizivat; (2) the alleged battery of female victim, Joann Werner;

(3) having a positive urine test for drugs; (4) failing to report 

for drug testing; (5) associating with persons using marijuana; (6) failing to give his parole officer advance notice of a 

change in residence; and (7) failing to report to an appoint-
No. 14-2866 3

ment with his parole officer. Moslavac contested the first 

two battery allegations, but did not dispute the remaining 

claims.

At Moslavac’s revocation hearing, the government presented 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 government 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 exhusband—as its only witness. Sturgeon testified that he

dropped D.S. off with Kizivat on the morning of the alleged 

incident, and that he received 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 attempting to reach him. The government played D.S.’s

voicemail during the revocation hearing in conjunction with 

Sturgeon’s testimony.

The district court determined that D.S.’s statements—as 

relayed by Sturgeon and by D.S.’s voicemail—were excited 

utterances, and therefore were admissible hearsay. See Fed. 

R. Evid. 803(2). The district court did not, however, engage 

in an interest balancing analysis under Federal Rule of Criminal 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 Release Revocation Hr’g Tr. 76, Aug. 14, 2014. 
4 No. 14-2866

Because all of Moslavac’s parole violations were “Grade C” 

violations, and because he had a criminal history category of 

IV, the advisory revocation sentencing guidelines suggested 

a sentence of between six and twelve months imprisonment. 

The government requested a sentence between nine and 

twelve months. The district court subsequently sentenced

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 revocation hearing without conducting an explicit balancing test 

under Rule 32.1(b)(2)(C) . Some circuits apply an abuse of 

discretion standard, see United States v. Doswell, 670 F.3d 526, 

533 (4th Cir. 2012), United States v. Martin, 382 F.3d 840, 844 

(8th Cir. 2004), while others apply de novo review. See United States v. Lloyd, 566 F.3d 341, 344 (3d Cir. 2009). We conclude that the standard of review does not affect our analysis 

in this case, as the district court’s admission of the hearsay 

testimony—without conducting a Rule 32.1(b)(2)(C) balancing test—runs directly afoul of our precedent in United States 

v. Jordan, 742 F.3d 280 (7th Cir. 2014); the district court erred 

under either standard of review. In any event, since the parties did not fully brief the issue, we reserve addressing it in 

this case.

A. The district court erred in not conducting 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 owed
No. 14-2866 5

“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.” In 

United States v. Jordan, we held that “Rule 32.1(b)(2)(C) requires a district court in a revocation hearing explicitly to 

balance the defendant’s constitutional interest in confrontation and cross-examination against the government’s stated 

reasons for denying them.” 742 F.3d at 280. Here, the government 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 concerns by finding that D.S.’s statements were excited 

utterances, and thus admissible hearsay. See Fed. R. Evid. 

803(2). The government 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 

the 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 admission under the rule.” Id. Furthermore, Jordan created 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 relevant 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. 14-2866

B. The district court’s error was not harmless.

The government argues that even if the district court 

erred in failing to explicitly balance the interests of the parties 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 statements were reliable; and (3) it is likely that the 

district court would have issued Moslavac the same sentence 

given the evidence of other parole violations presented at his 

revocation hearing. We are not persuaded by any of the government’s arguments.

First, the government did not adequately discuss—nor 

did the district court adequately consider—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 district 

court in a revocation hearing explicitly to balance the defendant’s constitutional interests in confrontation and crossexamination against the government’s stated reasons for denying them.” 742 F.3d at 280 (emphasis added). The government offered no reasons 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 producing D.S. “should have been obvious,” encouraging us to 

find the district court’s error harmless. Nothing in the wording of Rule 32.1(b)(2)(C), however, indicates that the government is owed such deference. Thus, we decline to find 

that the district court’s Rule 32.1(b)(2)(C) error was harmless 

simply because compelling reasons for not producing D.S.

may exist in the abstract. 
No. 14-2866 7

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 rendered the error harmless. The government urges us to find 

D.S.’s statements reliable—as the district court did—by focusing on the fact that D.S. claimed responsibility for the incident, thus lending more credence to her version of events. 

Here, we draw further 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 Jordan, in finding that a police report was not sufficiently reliable, 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 “sufficiently 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, Sturgeon’s testimony went 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, we find the teachings of Jordan applicable here, and conclude that D.S.’s uncorroborated statements—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 characterized it during oral argument, largely a recording of D.S. sobbing.

 
8 No. 14-2866

as to make the district court’s error under Rule 32.1(b)(2)(C) 

harmless.

Finally, the government argues that the district court’s 

error was harmless because Moslavac would have received 

the same sentence even if the district court had not considered 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 violations would have been sufficient to warrant an advisory 

guidelines range of six to twelve months.

Moslavac does not dispute this contention. However, 

simply because the guidelines range would have been the 

same without the Kizivat battery evidence does not mean 

that Moslavac would have received his current sentence had 

the evidence not been introduced. In fact, the district court 

placed considerable emphasis on the Kizivat battery during 

sentencing, 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 many 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 district court gave 
No. 14-2866 9

to the Kizivat battery during Moslavac’s sentencing, we cannot conclude that Moslavac would have received the same 

sentence notwithstanding the Kizivat incident. Thus, it was 

not harmless error for the district court to overlook its obligation to perform an interests analysis pursuant to Rule 

32.1(b)(2)(C).

III. Conclusion

The judgment of the district court is VACATED, and the 

case is REMANDED for a re-sentencing hearing consistent 

with this opinion.2

2 Moslavac asked this court to assign his re-sentencing hearing to a different district court judge. We find no compelling reason for such a reassignment, and therefore decline to do so.