In the

United States Court of Appeals

For the Seventh Circuit

No. 13-3184

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LORENZO MOSLEY,

Defendant-Appellant.

Appeal from the United States District Court for the 

Northern District of Indiana, Hammond Division.

No. 2:07 CR 192 — James T. Moody, Judge.

ARGUED APRIL 17, 2014 — DECIDED JULY 16, 2014

Before MANION, SYKES, and TINDER, Circuit Judges.

MANION, Circuit Judge. Lorenzo Mosley was convicted in

2008 of distributing cocaine base (crack), in violation of 21

U.S.C. § 841(a)(1). Following his release from prison, and while

he was on supervised release, he was arrested by local police

for dealing cocaine, possessing cocaine and marijuana, and

driving with a suspended license. Mosley’s federal probation

officer petitioned the district court to find him in violation of

his conditions of supervised release and revoke his supervised
2 No. 13-2358

release. Mosley admitted possession of cocaine, but denied

dealing cocaine, a more serious “Grade A” violation. At the 1

revocation hearing, the district court heard hearsay statements

in a recorded interview of a woman claiming to have bought

cocaine from Mosley and from the testimony of the arresting

officer, who had interviewed the woman. Mosley was not

given the opportunity to confront or cross-examine the

woman. Ultimately, the district court found Mosley had

committed all the alleged violations, revoked Mosley’s

supervised release, and sentenced him to 21 months’ incarceration. Mosley appeals, arguing that it was error for the district

court to admit the hearsay statements without finding that

there was “good cause,” as required by Federal Rule of

Criminal Procedure 32.1(b)(2)(C) and the Fifth Amendment

Due Process Clause as interpreted in Morrissey v. Brewer, 408

U.S. 471 (1972). We conclude that the district court did err, but

that the error was harmless and so we affirm.

I. Background

On July 26, 2012, Detective Timothy Nosich of the Munster

Police Department, while driving in his squad car, observed a

car stopped in front of a house. He saw a woman get in the car

on the passenger side. As he drove by, Detective Nosich

noticed the woman nervously watching his squad car with “a

look of dread.” After passing by, he kept an eye on the car in

his rearview mirror and noticed that the woman quickly exited

the car. Based on his seven years of experience, Detective

Mosley also admitted driving while his license was suspended and was

1

found in violation for possessing marijuana, but neither of those violations

is relevant to this appeal.
No. 13-2358 3

Nosich believed he had just witnessed a drug deal. He followed the car when it pulled away and as soon as he observed

a traffic violation—turning without signaling—he pulled the

car over. The driver, Lorenzo Mosley, had been operating with

a suspended license, so Detective Nosich arrested him and

began an inventory search of the car. He discovered a small

amount of marijuana hidden in a dashboard panel, a small

amount of crack cocaine in a clear baggie on the floor between

the passenger seat and the center console, and $300 to $400 in

cash on his person. No paraphernalia for using either crack or

marijuana were present in his car. Within an hour, Detective

Nosich and another officer made contact with Sheryl Simmons,

the woman who had gotten in and out of the car, and questioned her. At the time, she was carrying a grocery bag

containing pot scrubbing pads (which, according to Detective

Nosich, are commonly used as filters in crack pipes). After a

brief conversation, Simmons allowed the officers to enter her

home and she gave them four little yellow baggies that

contained what appeared to be crack cocaine, which had been

in her purse, and a crack pipe. 

At the time Mosley was arrested, he was near the end of a

three-year term of supervised release following incarceration

for a conviction for distribution of cocaine base (crack cocaine),

in violation of 21 U.S.C. § 841(a)(1). The prior conviction

stemmed from Mosley selling little yellow plastic baggies of

crack cocaine. PSR at 4. When Mosley’s probation officer

learned of Mosley’s arrest (and resulting state criminal

charges) he filed a petition with the district court seeking

revocation of Mosley’s supervised release. The petition alleged

violations of the conditions of his supervised release for
4 No. 13-2358

distributing cocaine, possessing marijuana and cocaine, and

driving with a suspended license. The most serious alleged

violation was distributing cocaine, a Grade A violation. The 2

district court heldahearing whereMosley admitted possessing

cocaine and driving while his license was suspended. With

regard to distributing cocaine, Detective Nosich testified,

without objection, to the events recounted above. 

However, at the revocation hearing, Detective Nosich also

testified to statements that Simmons had made to him during

their conversation and he played a video of her being interviewed for the judge—bothover Mosley’s objections. Detective

Nosich, and Simmons via the recorded interview, recounted

the following: Simmons had initially said that she was paying

Mosley for rides he had given her. But laterin the conversation

she admitted to the officers that she had called Mosley twenty

to thirty minutes before he arrived to arrange a purchase of

crack cocaine. When Mosley arrived and she briefly got in the

car with him, she purchased five little yellow baggies of

cocaine for $10 each plus a $5 delivery fee, totaling $55.

Simmons also stated that she had already smoked one of the

little baggies, but she took the officers into her home and gave

them the other four baggies and her crack pipe. Later that day,

Detective Nosich interviewed Simmons at the station (which

was recorded and played at Mosley’s hearing). There,

Simmons repeated the same story but also gave more backViolations are graded either A, B, or C based on the seriousness of the 2

conduct and each grade differs regarding the necessity, or length, of

revocation. See U.S.S.G. §§ 7B1.1–7B1.4.
No. 13-2358 5

groundabout her having purchased crack cocaine from Mosley

about thirty times over the past five years. 

Mosley objected strenuously to all of Simmons’s out-ofcourt statements whether offered via the video or Detective

Nosich’s testimony, arguing that they were hearsay and that

denying him the right to cross-examine Simmons violated his

constitutional right to confront his accuser. The district court

summarily overruled these objections and found that the

government had met its burden of proving all Mosley’s

violationsby apreponderance of the evidence. Because dealing

cocaine was a Grade A violation, Mosley’s guideline range was

15–21 months’ incarceration and the district court sentenced

him to 21 months’ incarceration. Had that drug violation not

been found, his guideline range would have been 6–12 months’

incarceration. See U.S.S.G. § 7B1.4 (Mosley’s next highest

violation (which he admitted) was Grade B and his criminal

history was Category II). Mosley appeals.

II. Discussion

While decisions to revoke supervised release are reviewed

for abuse of discretion, United States v. Dewayne, 702 F.3d 373,

375 (7th Cir. 2012), constitutional arguments are reviewed de

novo. United States v. Robinson, 14 F.3d 1200, 1202 (7th Cir.

1994).

A. Constitutional Analysis

We have held that the Sixth Amendment, including the

Supreme Court’s holding in Crawford v. Washington, 541 U.S. 36

(2004)(that admitting testimonial hearsay without the opportunity to confront the declarant violated the Confrontation
6 No. 13-2358

Clause), does not apply to supervised release revocation

hearings. United States v. Kelley, 446 F.3d 688, 690–92 (7th Cir.

2006). The Due Process Clause of the Fifth Amendment still

secures “the right to confront and cross-examine adverse

witnesses [in revocation proceedings] (unless the hearing

officer specifically finds good cause for not allowing confrontation).” Morrissey, 408 U.S. at 489.But considering the parenthetical clause, “we have interpreted Morrissey ... to permit the

admission of reliable hearsay at revocation hearings without a

specific showing of good cause.” Kelley, 446 F.3d at 692 (citing

United States v. Pratt, 52 F.3d 671, 675 (7th Cir. 1995)). Hearsay

is reliable if it “‘bears substantial guarantees of trust-worthiness.’” Id. (quoting Egerstaffer v. Israel, 726 F.2d 1231, 1234 (7th

Cir. 1984)). And “essentially [we] treat[] a finding of ‘substantial trustworthiness’ as the equivalent of a good cause finding

for the admission of hearsay.” Id. Even if the district court

neglects to find either good cause orreliability, there is no error

so long as the “record ... is sufficiently clear ... that the ...

hearsay was substantially trustworthy so as to establish good

cause for not producing [the declarants] as live witnesses.” Id.

at 693. If the record so establishes, the admission of hearsay

will “not undermine the fundamental fairness of [a defendant’s] revocation hearing and [will] not violate his right to

due process.” Id. Accordingly, if we can conclude from the

record on appeal that hearsay evidence was reliable, then

admission of Simmons’s hearsay statements did not violate

due process.

Simmons’s hearsay statements were reliable. The officer

observed what Simmons later admitted was a drug transaction

and Simmons produced the little yellow baggies of crack
No. 13-2358 7

cocaine that she claimed to have purchased from Mosley. And

her story that selling crack in little yellow baggies was his

signature was corroborated by his prior criminal conviction

summarized in his PSR. In addition to that corroboration,

Simmons’s statements were against her penal interest. And

while her availability would make her statements inadmissible

in a typical criminal hearing, see Fed. R. Evid. 804(a) and (b)(3),

the rules of evidence do not apply in supervised release

hearings and the fact that her statement was against her penal

interest is yet anotherindicationof substantial trustworthiness.

Accordingly, the district court’s admission of Simmons’s

statements did not violate Mosley’s rights to due process.

B. Rule Analysis

In addition to the protections provided by the Due Process

Clause of the Fifth Amendment, 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.” United States v. Jordan, 742 F.3d 276, 280 (7th

Cir. 2014). Unlike the constitutional analysis, “reliability

3

Rule 32.1 was largely a codification of Morrissey’s holding, and the 3

advisory committee for the 2002 amendments encouraged applyingthe rule

in accord with the circuits who employ a balancing-test interpretation of

Morrissey. See Kelley, 446 F.3d at 692 n.4 (cataloguing circuits who require

an explicit finding of good cause or a balancing test); United States v.

LeBlanc, 175 F.3d 511, 515 (7th Cir. 1999) (Rule 32.1 “was largely a codification of Morrissey, 408 U.S. 471, which first held that due process required ...

a revocation hearing” and a limited confrontation right); Fed. R. Crim. P.

32.1 advisory committee’s 2002 note (“the court should apply a balancing

(continued...)
8 No. 13-2358

cannot be the beginning and 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. at 280 (emphasis added).

Rather, the defendant’s interest must be balanced against the

government’s reasons. Id. While reliability of hearsay weakens

the defendant’s interest in confrontation, a weak interest is

enough to tip the balance toward exclusion if the government

offers no reasons for not producing the witness. Accordingly,

a showing of reliability in the record on appeal does not mean

there was no error, nor does it make the violation of Rule 32.1

harmless. Rather, we must consider whether the hearsay

would have been admitted had the district court correctly

considered the competing interests. And while the reliability of

the hearsay goes a long way toward answering that question,

we must also look at the government’s reasons for not affording confrontation. 

In this case, the district court failed to balance Mosley’s

constitutionalinterests inconfrontation and cross-examination

with the government’s reasons for not producing the witness.

This was error under Rule 32.1. Further, we cannot conclude

that the district court would have admitted the hearsay if it

had properly balanced the interests because, even if the

hearsay was reliable (which we think it was), the government

has offered no reason whatsoever for failing to produce

Simmons. Accordingly, there is nothing in the record to

balance against Mosley’s interest.

(...continued)

test at the hearing itself” (citing Morrissey, 408 U.S. at 489)).
No. 13-2358 9

Nonetheless, even where a proper balancing of the interests

would weigh in favor of excluding hearsay, its erroneous

admission may still be harmless for the alternate reason that

the violation of supervised release would have been found

even without the hearsay evidence. See, e.g., United States v.

Johnson, 927 F.2d 999, 1003–04 (7th Cir. 1991) (holding that

admission of hearsay was harmless where strong circumstantial evidence established the same facts). That is the case here

because, considering only the non-hearsay evidence submitted

to the district court, the result would have been the same. “To

revoke a defendant's supervised release under 18 U.S.C.

§ 3583(e)(3), the district court must find by a preponderance of

the evidence that the defendant violated the terms of his

supervised release.” United States v. Goad, 44 F.3d 580, 585 (7th

Cir. 1995). Detective Nosich observed Simmons glance at him

with a nervous look of dread while getting in Mosley’s car only

to get back out right away. Immediately thereafter, Detective

Nosich caught Mosley with crack cocaine, but no paraphernalia for its use, and $300 to $400 in cash. Detective Nosich then

quickly caught up with Simmons and found that she was

carrying material in a grocery bag that his experience told him

was used for filters in a crack pipe. His experience proved right

when Simmons surrendered four little yellow baggies of what

appeared to be crack cocaine and a crack pipe. Detective

Nosich testified to these facts and his opinion based on years

of experience that what he had witnessed was a drug deal. But

the district court did not have to rely on that alone. In the PSR

from Mosley’s previous criminal conviction, we see that he

used little yellow baggies to hold the crack cocaine that he

sold—exactly what Simmons surrendered to police from her
10 No. 13-2358

purse only about an hour after getting in and out of the car

with him. See Fed. R. Evid. 404(b)(2) (evidence of other crimes

admissible to prove identity, i.e., modus operandi). All of this

together is strong circumstantial evidence that Mosley dealt

crack cocaine to Simmons without any need for recourse to

Simmons’s reliable statements. Simmons’s statements just

confirmedwhat the circumstantial evidencehadindependently

made clear. Accordingly, disregarding the hearsay, the

government still would have met its burden of proving by a

preponderance of the evidence that Mosley distributed cocaine

in violation of his conditions of supervised release. Because

4

the result would have been the same without admitting the

hearsay, the error was harmless.

5

III. Conclusion

The district court erred by failing to balance Mosley’s

constitutional interest in confronting and cross-examining

In Jordan, we were unable to determine whether the hearsay in a police 4

report would have been admitted had the district court balanced the

interests. 742 F.3d at 281–82. Likewise here, we cannot conclude that the

hearsay would have been admitted had the district court balanced the

competing interests. Remand was necessary in Jordan because the government relied almost exclusively on the hearsay in the police report. Id. at 278.

However, here, the government offered more evidence of Mosley’s

violations than just Simmons’s statements, so we find the error harmless

based on the strength of the non-hearsay evidence.

Because the district court only made a rule error, not a constitutional

5

error, the normal harmless error rule of Fed. R. Crim. P. 52(a) applies, not

the higher standard of Chapman v. California, 386 U.S. 18 (1967). See United

States v. Talbott, 78 F.3d 1183, 1188 (7th Cir. 1996), abrogated on other

grounds by Dixon v. United States, 548 U.S. 1 (2006).
No. 13-2358 11

Simmons with the government’s reasons for not producing

her. But that error was harmless because the result would have

been the same even without any of Simmons’s out-of-court

statements. Accordingly, we AFFIRM the judgment of the

district court.