In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1926

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHRISTOPHER R. THOMPSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 3:00-cr-50002-1—Philip G. Reinhard, Judge.

ARGUED FEBRUARY 9, 2010—DECIDED MARCH 19, 2010

Before POSNER, ROVNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Christopher Thompson violated

the conditions of his supervised release in late February 2009, and the district court held a revocation

hearing in March of that year. Rule 32.1(b)(2) of the

Federal Rules of Criminal Procedure establishes the procedures that apply in a supervised-release revocation

hearing, and the judge followed these procedures—with

one exception. Although Thompson, his attorney, and
2 No. 09-1926

the prosecutor were present in the federal courthouse

in Rockford, Illinois, the judge participated via videoconference from Key West, Florida. Thompson’s appeal

requires us to confront a question of first impression for federal courts of appeals: whether holding a

supervised-release revocation hearing by videoconference violates Rule 32.1(b)(2). We hold that it does.

Accordingly, we vacate Thompson’s term of reimprisonment.

I. Background

In November and December 1999, Christopher Thompson robbed two banks near Rockford, Illinois. He pleaded

guilty and was sentenced to 102 months’ imprisonment

and 5 years’ supervised release. After serving his prison

term, he was released on supervision; within months he

was caught using illegal drugs. Supervised release was

revoked and he was returned to prison for six months.

Not long after completing this brief term of reimprisonment, Thompson was arrested again—this time for

driving under the influence of alcohol, operating an

uninsured motor vehicle, driving with a suspended

license, speeding, and improper lane usage. He also

failed to notify his probation officer of his arrest within

72 hours, as required by his conditions of release. The

government again sought to revoke supervised release

and return Thompson to prison.

On March 18, 2009, the district court held an initial

hearing, appointed a federal defender to represent Thompson, and scheduled a revocation hearing for March 25.
No. 09-1926 3

The record does not indicate whether the videoconferencing 1

technology permitted the individuals in the Rockford courthouse to see the judge or whether those individuals could only

hear the judge. For purposes of discussion, we assume that

all parties could see and hear one another.

Although all parties were present in the Rockford courthouse for this initial hearing, the judge participated by

videoconference from Key West, Florida. At the revocation hearing a week later, the judge again appeared

by videoconference from Key West; everyone else was

assembled in the judge’s courtroom in Rockford. Thompson’s counsel objected, contending that this procedure

violated Rule 32.1. The district court overruled the objection, commenting:

The court will state for the record that, of course,

everybody is in the court in Rockford except for me.

I’m in the courthouse in Key West, Florida. We’re

doing this by video conferencing. I can both see and

hear everybody in the courthouse in Rockford and can

comprehend everything that has transpired.

The court believes that video conferencing for a supervised release hearing meets the standards of due

process, that there’s no case law that would prohibit it

nor any rule or statute that would prohibit it under

the circumstances of the supervised release. . . . [I]t is

the court’s ruling that we can proceed, and I will

overrule the defendant’s objection.1

Thompson admitted the allegations except for the drunkdriving charge, and the district court heard statements
4 No. 09-1926

The government confesses error, conceding that holding 2

Thompson’s revocation hearing by videoconference violated

Rule 32.1; its brief does not address Thompson’s alternative dueprocess argument. Because of this concession, we appointed

an amicus to defend the district court’s procedure. We thank

Barry Levenstam, Andrew Weissmann, and Sharmila Sohoni

of Jenner & Block for ably discharging this responsibility.

from counsel for both parties and from Thompson himself.

Although the probation officer recommended eight

months’ reimprisonment, the judge revoked supervised

release and imposed a term of twelve months in prison and

one year of supervised release. Thompson appealed,

challenging the judge’s decision to conduct the revocation hearing by videoconference.

II. Discussion

The issue on appeal—whether the use of videoconferencing to conduct a supervised-release revocation

hearing violates the Federal Rules of Criminal Procedure

or alternatively, the Fifth Amendment’s Due Process

Clause—is a question of law that we review de novo.2

United States v. Clark, 538 F.3d 803, 808 (7th Cir. 2008).

Rule 32.1 governs supervised-release revocation hearings

and provides in relevant part: 

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 . . . an opportunity to appear, present evidence,

and question any adverse witness unless the court
No. 09-1926 5

The government also bases its argument in part on the 3

application of Rule 43 to revocation proceedings. 

determines that the interest of justice does not

require the witness to appear[,] . . . and an opportunity

to make a statement and present any information

in mitigation.

FED. R. CRIM. P. 32.1(b)(2). Rather than commencing his

analysis with the language of this rule, Thompson looks

first to Rule 43, which provides that a defendant “must

be present” at “sentencing.” FED. R. CRIM. P. 43(a)(3).

3

Three circuits have held that Rule 43’s “presence” requirement commands that all parties and the judge be physically present in the same courtroom for sentencing. See

United States v. Torres-Palma, 290 F.3d 1244, 1247-48 (10th

Cir. 2002) (remanding for resentencing where judge

appeared via videoconference); United States v. Lawrence,

248 F.3d 300, 305 (4th Cir. 2001) (vacating sentence

where defendant appeared via videoconference); United

States v. Navarro, 169 F.3d 228, 238-39 (5th Cir. 1999)

(vacating sentence where judge appeared via videoconference).

Thompson argues that a supervised-release revocation

hearing at which the judge may impose a prison

term is indistinguishable from an initial sentencing proceeding. Accordingly, he reasons, Rule 43 applies to

revocation hearings, and because Rule 43 requires the

defendant’s physical presence before the judge, the

district court was prohibited from conducting the revocation hearing by videoconference. This argument
6 No. 09-1926

misses the mark. The problem is not with Thompson’s

contention that Rule 43 requires the physical presence of

all participants in the same courtroom; he may well be

right that it does, although we need not decide today

whether to join the consensus among the circuits on this

point. Instead, the flaw in Thompson’s argument is its

assumption that Rule 43 applies to revocation hearings.

By its own terms, Rule 43 governs only “(1) the initial

appearance, the initial arraignment, and the plea; (2) every

trial stage, including jury impanelment and the return of

the verdict; and (3) sentencing.” If Rule 43 were meant to

apply to revocation hearings, it would say so explicitly.

Indeed, the Advisory Committee Notes to Rule 43

explain that the rule does not apply to “hearings on

motions made . . . after trial.” FED. R. CRIM. P. 43 advisory

committee’s note 1. A supervised-release revocation

hearing is obviously a posttrial proceeding. 

Nor, as Thompson asserts, is the revocation of supervised

release the precise equivalent of a sentencing hearing; the

rights at stake in each proceeding are distinguishable. The

Supreme Court long ago noted that “[r]evocation deprives

an individual, not of the absolute liberty to which every

citizen is entitled, but only of the conditional liberty

properly dependent on observance of special parole

restrictions.” Morrissey v. Brewer, 408 U.S. 471, 480 (1972).

Because a revocation hearing is not part of a criminal

prosecution, a defendant at a revocation hearing is not

owed the “full panoply of rights” due a defendant at

sentencing. Id. Although the revocation hearing is sometimes referred to colloquially as a “resentencing,” the

controlling statute does not use that term; instead, 18
No. 09-1926 7

U.S.C. § 3583(e)(3) authorizes the court, once a violation

of supervised release is proven, to “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.” By its terms—and based on the wellestablished difference in the procedural scope of these

proceedings—Rule 43 is inapplicable to supervisedrelease revocation hearings. 

Thompson also offers an alternative argument

grounded in the text of Rule 32.1—the place where his

analysis should have started. Recall that Rule 32.1(b)(2)

provides that before revoking a defendant’s supervised release, the court must give the defendant “an

opportunity to appear” for purposes of presenting evidence, questioning witnesses, arguing in mitigation, and

making a statement to the court. Thompson argues that

the “appearance” mandated by Rule 32.1(b)(2) requires

the defendant and the judge to be physically present in

the same courtroom. His contention is correct; this

reading of the rule is consistent with the meaning of

“appear” as used in this context as well as the traditional understanding of an accused person’s “appearance”

before a court empowered to deprive him of his liberty.

More specifically, Rule 32.1(b)(2) provides that prior

to revocation of supervised release, a defendant is

“entitled to” an “opportunity to appear,” to “present

evidence[] and question any adverse witness,” and

to “make a statement and present any information in

mitigation.” FED. R. CRIM. P. 32.1(b)(2) (emphasis added).

As used in this context, the word “appear” means “to
8 No. 09-1926

come formally before an authoritative body.” WEBSTER’S

THIRD NEW INTERNATIONAL DICTIONARY 103 (1981). Black’s

Law Dictionary further defines “appearance” as “[a] coming

into court as a party or interested person, or as a lawyer

on behalf of a party or interested person.” BLACK’S

LAW DICTIONARY 113 (9th ed. 2009). These definitions

suggest that the “appearance” required by this rule

occurs only if the defendant comes into the physical—not

virtual—presence of the judge.

Moreover, a defendant’s “opportunity to appear” under

this rule exists not in isolation but in conjunction with

his right to “present evidence,” to “question any adverse

witness,” and to “make a statement and present any

information in mitigation.” A defendant’s appearance

in court is the means by which he effectuates the other

rights conferred by the rule; appearing before the court

allows the defendant to plead his case personally to the

judge who will decide whether to revoke supervised

release and return him to prison. This is particularly

true in light of the defendant’s right to “make a statement and present any information in mitigation.” FED. R.

CRIM. P. 32.1(b)(2)(E). This subsection guarantees a right

of allocution before revocation; we have held that the

right of allocution at a revocation hearing is essentially

the same as the right of allocution at sentencing

guaranteed by Rule 32(i)(4)(A)(ii). See United States v. Pitre,

504 F.3d 657, 662 (7th Cir. 2007) (holding that the right

to allocution in Rule 32.1 “is not substantively different

than the right [to allocution] created by Rule 32”). This

common-law right, codified in both rules, ensures that

the defendant has the opportunity to “personally
No. 09-1926 9

address the court” before punishment is imposed. United

States v. Barnes, 948 F.2d 325, 328 (7th Cir. 1991). This faceto-face meeting between the defendant and the judge

permits the judge to experience “those impressions

gleaned through . . . any personal confrontation in

which one attempts to assess the credibility or to

evaluate the true moral fiber of another.” Del Piano v.

United States, 575 F.2d 1066, 1069 (3d Cir. 1978) (discussing

allocution); see also Green v. United States, 365 U.S. 301, 304

(1961) (“The most persuasive counsel may not be able

to speak for a defendant as the defendant might, with

halting eloquence, speak for himself.”). Without this

personal interaction between the judge and the defendant—which videoconferencing cannot fully replicate—the

force of the other rights guaranteed by Rule 32.1(b)(2)

is diminished.

The Sixth Circuit’s recent decision in Terrell v. United

States, 564 F.3d 442 (6th Cir. 2009), supports this interpretation of Rule 32.1(b)(2)’s “opportunity to appear.” Terrell

involved a hearing before the U.S. Parole Commission;

the issue was whether the use of videoconferencing

satisfied 18 U.S.C. § 4208(e)’s requirement that “[t]he

prisoner shall be allowed to appear and testify on his

behalf at the parole determination proceeding.” The Sixth

Circuit held that “to appear mean[s] to be physically

present.” Terrell, 564 F.3d at 451. Although the question

in Terrell was whether the defendant’s appearance via

videoconference violated the parole statute, the result

must be the same when it is the judge whose presence is

virtual. The important point is that the form and substantive quality of the hearing is altered when a key
10 No. 09-1926

participant is absent from the hearing room, even if he is

participating by virtue of a cable or satellite link. This

is particularly true when the one who is absent has the

power to impose a prison term.

Our reading of Rule 32.1(b)(2) also comports with

the traditional legal understanding of a person’s “appearance” before a court when his liberty is at stake in the proceeding; in this situation, to “appear” has generally

been understood to require the defendant to come personally before a judicial officer. Not only is this intuitive—videoconferencing technology was obviously

unknown at common law—but the Supreme Court’s

decision in Escoe v. Zerbst, 295 U.S. 490 (1935) (Cardozo, J.),

confirms this understanding. In Escoe the Court

considered the propriety of a judge’s order summarily

revoking a criminal defendant’s probation without a

hearing. The Court held that an ex parte revocation of

probation violated the applicable federal probation

statute, which required the probationer to be “brought

before the court” before probation could be revoked and

a prison term imposed. Id. at 492. The Court held that

“the end and aim of an appearance before the court”

under the statute was to “enable an accused probationer

to explain away the accusation,” id. at 493, and this required “bringing the probationer into the presence of

his judge,” id. at 494. Although a hearing by videoconference is not the same as no hearing at all, the

Court’s interpretation of the statute at issue in Escoe

informs our interpretation of the “appearance” required

by Rule 32.1(b)(2).
No. 09-1926 11

We note as well that the treatment of videoconferencing in 4

the Rules of Civil Procedure also suggests that videoconferencing is the exception rather than the rule. Rule 43

provides: “For good cause in compelling circumstances and

with appropriate safeguards, the court may permit testimony

in open court by contemporaneous transmission from a different location.” FED. R. CIV. P. 43(a). Despite this provision,

the Advisory Committee Note to the rule evinces a strong

preference for live, in-court testimony as opposed to videoconferencing. FED. R. CIV. P. 43 advisory committee’s note 1996

amend.; see also Navarro, 169 F.3d at 239 (making this point).

Read in context with relevant criminal rules, Civil Rule 43

suggests that “where the drafters believe that video conferencing is appropriate, the drafters will make provision in

the Rules for the use of the technology.” Navarro, 169 F.3d at 239.

The rules of procedure specifically mention the use of

videoconferencing in other contexts, and the treatment of

this alternative form of “appearance” also supports our

conclusion that the opportunity to appear guaranteed by

Rule 32.1(b)(2) is not satisfied by videoconferencing. For

example, Rule 5, which governs initial appearances,

permits videoconferencing only if the defendant consents.

See FED. R. CRIM. P. 5(f). Similarly, Rule 10 permits the

use of videoconferencing for arraignments, but again only

when the defendant consents. FED. R. CRIM. P. 10(c). 4

That videoconferencing is permitted only pursuant to a

specifically enumerated exception and with the defendant’s consent demonstrates that the use of this technology is the exception to the rule, not the default rule
12 No. 09-1926

The Advisory Committee is currently considering a proposed

5

amendment to Rule 32.1. If adopted, the amendment, which

would be codified as Rule 32.1(f), would provide: “On a defendant’s request, the court may allow the defendant to participate

in proceedings under this rule through video teleconferencing.”

The committee notes also state, “[t]he amendment does not

address whether victims, witnesses, or others may participate

in any hearing under Rule 32.1 through video teleconferencing

or other means.”

itself. Accordingly, we read the “opportunity to appear” 5

in Rule 32.1(b)(2) to exclude an “appearance” by

videoconference. The district judge’s participation in

Thompson’s revocation hearing via videoconference

violated the rule. 

This violation, however, is subject to harmless-error

analysis. See FED. R. CRIM. P. 52(a). Remand is therefore

necessary only if the government—or in this case, the

amicus—demonstrates that the procedural error did not

affect the outcome. See United States v. Eubanks, 593

F.3d 645, 655 (7th Cir. 2010). Yet the amicus has not explained why the error is harmless; this failure is telling.

The judge’s absence from the courtroom materially

changes the character of the proceeding, and the amicus

bears a heavy burden in showing that such a significant

procedural shift was harmless. Rule 32.1(b)(2) establishes

a procedure that requires the defendant’s physical presence before the judge, and videoconferencing is not an

adequate substitute. As one court has noted, “virtual

reality is rarely a substitute for actual presence and . . .

watching an event on the screen remains less than the
No. 09-1926 13

Because we hold that the judge’s participation by video- 6

conference violated Rule 32.1, we need not address Thompson’s

argument that holding the hearing by videoconference violated the Fifth Amendment’s Due Process Clause.

3-19-10

complete equivalent of actually attending it.” Lawrence,

248 F.3d at 304. In short, there is no way to know what

the judge would have done had he been present in

Rockford and face-to-face with Thompson; we cannot

conclude that the error was harmless.

6

A judge’s decision whether to send a defendant to

prison requires a careful, qualitative, and individualized

assessment of the offense and the offender; no matter

how simple the case, this is never a mechanical or rote

determination. At the end of the day, Rule 32.1(b)(2)

reflects a conclusion that a judge cannot properly assess

the defendant without the defendant’s in-person appearance before the court. The rule’s strictures are “mandatory

in meaning as well as mandatory in form,” Escoe, 295

U.S. at 494, and the form of the hearing required by

the rule excludes videoconferencing.

VACATED and REMANDED.