                                 In the

     United States Court of Appeals
                   For the Seventh Circuit
                       ____________________
No. 19-3050
UNITED STATES OF AMERICA,
                                                     Plaintiff-Appellee,
                                   v.

EUGENE FALLS,
                                                 Defendant-Appellant.
                       ____________________

             Appeal from the United States District Court
                  for the Southern District of Illinois.
             No. 3:05-cr-30027-3 — Staci M. Yandle, Judge.
                       ____________________

      SUBMITTED MAY 13, 2020 — DECIDED MAY 26, 2020
                 ____________________

    Before FLAUM, HAMILTON and ST. EVE, Circuit Judges.
   FLAUM, Circuit Judge. Eugene Falls appeals the revocation
of his supervised release. He argues that the district court



We granted the parties’ joint motion to decide this case without oral ar-
gument because the briefs and record adequately present the facts and le-
gal arguments, and oral argument would not significantly aid the Court.
Fed. R. App. P. 34(a)(2)(C).
2                                                   No. 19-3050

erred during his revocation hearing by not conducting an ex-
plicit “interest of justice” analysis under Federal Rule of Crim-
inal Procedure 32.1(b)(2)(C) before admitting an audio record-
ing of an interview during which he confessed to the violation
in question.
    We held in United States v. Jordan that when a district court
is deciding whether to admit hearsay at a revocation hearing,
it must explicitly conduct an interest-of-justice analysis under
Rule 32.1(b)(2)(C) by balancing the defendant’s interest in
confrontation against the government’s stated reasons for not
making the declarant available for cross-examination. 742
F.3d 276, 280 (7th Cir. 2014). Jordan does not apply here, how-
ever, because the probative statements in the audio recording
were Falls’s own non-hearsay statements.
    Falls suggests that we should nevertheless extend Jordan
to require an explicit application of Rule 32.1(b)(2)(C)’s inter-
est-of-justice balancing test given his interest in questioning
his interviewing oﬃcer about the nature and circumstances of
his interview. Falls has not shown, however, that his inter-
viewing oﬃcer was an “adverse witness” that Rule
32.1(b)(2)(C) entitled him to question subject to an interest-of-
justice determination. Accordingly, we aﬃrm.
                        I. Background
    Defendant-appellant Eugene Falls began serving a ten-
year term of supervised release in February 2017 after he was
released from prison. One of the conditions of Falls’s super-
vised release was that he not commit another crime. On
March 25, 2019, Falls’s supervising probation officer Christian
Hoepker filed an amended petition to revoke Falls’s super-
No. 19-3050                                                                 3

vised release. The petition alleged several violations, includ-
ing that on or about March 8, 2019, Falls committed the of-
fense of attempted possession with intent to distribute a con-
trolled substance.1
    At Falls’s revocation hearing in October 2019, the govern-
ment presented evidence of Falls’s alleged violations. As to
the attempted-possession-with-intent-to-distribute violation,
the government began by presenting testimony from Hoep-
ker. Hoepker testified that she learned of the alleged criminal
conduct from Drug Enforcement Administration (“DEA”)
Special Agent Jarrett Neff on March 8,2 at which time she also
learned that Falls was in DEA custody.
    Hoepker further testified that she had listened to an audio
recording of an interview the DEA conducted and identified
the voice of the person being interviewed as Falls’s voice. Falls
objected to the introduction of the recording, arguing that be-
cause the audio recording contained hearsay, Federal Rule of
Criminal Procedure 32.1(b)(2)(C) and United States v. Jordan,
742 F.3d 276 (7th Cir. 2014) required the district court to bal-
ance the government’s proffered reason for not calling the in-
terviewing officer with Falls’s interest in confronting and
cross-examining him. The government responded that the
statements in the audio recording were not hearsay because

1 On March 19, 2019, a grand jury charged Falls in a separate criminal case

with attempting to possess with intent to distribute methamphetamine on
or about March 8, 2019. See United States v. Falls, No. 19-cr-30034 (S.D. Ill.
Mar. 19, 2019), ECF No. 1.
2 The government asserts that Hoepker misspoke when she testified that
the date was March 8, 2018 rather than March 8, 2019. Falls did not re-
spond to this assertion. Read in context, it appears that Hoepker simply
misstated the year.
4                                                  No. 19-3050

they were Falls’s own admissions, and that the court was
therefore not obligated to conduct the balancing test under
Rule 32.1(b)(2)(C) and Jordan, 742 F.3d at 276. The district
court overruled Falls’s objection without requiring the gov-
ernment to provide cause for not calling the interviewing of-
ficer.
    The government then introduced the first ten minutes of
the audio recording. The interviewing officer began the inter-
view by stating the time of the interview as March 8, 2019 at
2:15 p.m. and advising Falls of his Miranda rights. During the
interview, Falls stated that on the date of the interview, he
was supposed to receive ten pounds of methamphetamine in
exchange for $28,000. Falls explained that he brought $10,000
of his own money to the meeting location as a down payment.
After hearing the evidence, the district court concluded that
the audio recording was reliable and that it was more likely
than not that Falls committed the attempted-possession-with-
intent-to-distribute violation.
    The attempted-possession-with-intent-to-distribute viola-
tion was a Grade A violation under the Sentencing Guidelines
policy statements. With a criminal history category of V,
Falls’s corresponding Guidelines policy-statement range was
46 to 57 months in prison. See U.S.S.G. § 7B1.4(a). The district
court sentenced him to 57 months in prison. Falls’s other vio-
lations were all Grade B or lower. Hence, without the at-
tempted-possession-with-intent-to-distribute          violation,
Falls’s Guidelines policy-statement range would have been 18
to 24 months in prison. See id. §§ 7B1.1(b) & 7B1.4(a).
   Falls now challenges the court’s finding as to the at-
tempted-possession-with-intent-to-distribute violation. Falls
maintains that the district court committed reversible error by
No. 19-3050                                                     5

not explicitly applying the interest-of-justice balancing test re-
quired by Rule 32.1(b)(2)(C) and Jordan, 742 F.3d at 276. On
appeal, Falls asserts a new reason that the district court was
required to conduct the balancing test, which he did not raise
below: that his statements may have been involuntary.
                         II. Discussion
    A district court may revoke supervised release if it finds
by a preponderance of the evidence that the defendant vio-
lated a condition of his supervised release. See 18 U.S.C.
§ 3583(e)(3). “[W]e review the revocation of supervised re-
lease for abuse of discretion, and we review the district court’s
factual findings supporting that revocation for clear error.”
United States v. Raney, 797 F.3d 454, 463 (7th Cir. 2015).
    Federal Rule of Criminal Procedure 32.1(b)(2)(C) provides
that at a revocation hearing, a defendant is entitled to “ques-
tion any adverse witness unless the court determines that the
interest of justice does not require the witness to appear.” The
Federal Rules of Evidence generally do not apply during a
revocation hearing. Fed. R. Evid. 1101(d)(3). But when a dis-
trict court is deciding whether to admit hearsay at a revoca-
tion hearing, Rule 32.1(b)(2)(C)’s “interest of justice” provi-
sion requires the court “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).
    We have left open whether we review de novo or for an
abuse of discretion a district court’s decision to admit hearsay
at a revocation hearing without conducting an explicit inter-
est-of-justice balancing test under Rule 32.1(b)(2)(C). See
United States v. Moslavac, 779 F.3d 661, 663 (7th Cir. 2015). We
6                                                    No. 19-3050

need not decide here the appropriate standard of review in
such cases, however, because the probative statements in the
audio recording at issue were not hearsay.
    A. Jordan
    The audio recording included Falls’s own statements and
the statements of his interviewing officer. Falls’s own state-
ments were non-hearsay statements of a party-opponent, see
Fed. R. Evid. 801(d)(2)(A), and his interviewing officer’s state-
ments were offered to provide context for Falls’s answers, not
for their truth, see Fed. R. Evid. 801(c)(2). The district court,
therefore, was not required to conduct an explicit interest-of-
justice balancing test under Jordan, which applies only to the
admission of hearsay. 742 F.3d at 280.
    In Jordan, the district court erred by not explicitly weigh-
ing the defendant’s interest in confrontation against the gov-
ernment’s asserted reason for not making available the officer
who authored the police report on which the government pri-
marily relied to establish the violation in question. Id. Here,
far from relying on a declarant’s out-of-court testimonial
statements contained in a police report, the government relied
on Falls’s own statements to establish the violation in ques-
tion.
    Falls argues that the interviewing officer’s introductory
statement regarding the date of the interview, in particular,
was hearsay. The government responds that the interviewing
officer’s statement of the date of the interview was offered not
for its truth but for context as to what Falls meant when he
later spoke about his illegal activities taking place “today.” See
United States v. Montez, 858 F.3d 1085, 1089–90 (7th Cir. 2017)
(explaining that statement offered to make sense of another
No. 19-3050                                                     7

party’s admission is not hearsay if not offered for its truth).
Falls maintains that the statement about the date was never-
theless hearsay because it was relevant only if true. See id. at
1089 (“[W]hen an argument is made that out-of-court state-
ments should be admitted as context, the relevant legal ques-
tion is still whether those statements are offered for their
truth.”).
    The reliability of the interviewing officer’s statement
about the date so overwhelmed Falls’s interest in confronting
the interviewing officer about that statement that the district
court did not need to address cause for the interviewing of-
ficer’s absence, even if that lone statement was hearsay. Fol-
lowing the reasoning of the Third Circuit, “we reject a per se
rule that a district court’s failure to explicitly address cause
[for a declarant’s absence] amounts to reversible error in all
cases,” because “[i]n some cases, the releasee’s interest in con-
frontation may be overwhelmed by the hearsay’s reliability
such that the Government need not show cause for a declar-
ant’s absence.” United States v. Lloyd, 566 F.3d 341, 345 (3d Cir.
2009). The record indicates that Falls was in custody on March
8, 2019 for conduct that Falls himself spoke about occurring
during the day of the interview, and there is nothing that
would call that date into question.
    Falls has not asserted that the interview did not take place
on or about March 8, 2019, nor has he identified any interest
he had in cross-examining the interviewing officer about the
date of the interview. To prove the violation at issue, the gov-
ernment needed only establish that the violation occurred
“during the term of supervision.” 18 U.S.C. § 3583(d). The
revocation hearing happened just under three years into
Falls’s ten-year term of supervised release, so there is little
8                                                             No. 19-3050

room for doubt that the conduct occurred while Falls was on
supervised release.3 Indeed, a grand jury charged Falls with
attempting to possess with intent to distribute methampheta-
mine on or about March 8, 2019 in a separate criminal case.
See United States v. Falls, No. 19-cr-30034 (S.D. Ill. Mar. 19,
2019), ECF No. 1. Falls has never insisted that he was not ad-
equately put on notice or that he was otherwise misled as to
when the violation was alleged to have occurred.
    B. Authenticity and Voluntariness
    Falls contends that, in so far as the statements in the re-
cording were not hearsay, we should extend Jordan to require
the explicit application of Rule 32.1(b)(2)(C)’s interest-of-jus-
tice analysis given the possibilities that the recording was in-
authentic and the recorded statements were coerced. Apart
from any hearsay concerns, Falls asserts that he had an inter-
est in cross-examining his interviewing officer so that he
could inquire into the nature and circumstances of the rec-
orded interview. We decline to extend Jordan for three rea-
sons.
    First, Rule 32.1(b)(2)(C) provides that, subject to an inter-
est-of-justice determination, a defendant is entitled to ques-
tion any “adverse witness.” Here, however, there was no
meaningful sense in which the interviewing officer was an
“adverse witness” for purposes of Rule 32.1(b)(2)(C). The in-
terviewing officer was not Falls’s accuser; Falls was his own
accuser.




3 During the recording, Falls also stated that he had not been out of jail for

very long and that he had spent a lot of time in a halfway house.
No. 19-3050                                                     9

    The rationale for taking into account the defendant’s inter-
est in confronting adverse witnesses under Rule 32.1(b)(2)(C),
as we explained in Jordan, is that “[c]ross-examination pro-
vides an opportunity to expose a witness’s motivation for tes-
tifying, his bias, or his possible incentives to lie.” Jordan, 742
F.3d at 279 (citation and internal quotation marks omitted).
Any concerns about the interviewing officer’s motivation,
bias, or possible incentives to lie were exceedingly small or
non-existent where Falls’s own statements were the state-
ments that established the violation in question. Falls has not
explained how he would have been able to cast doubt on the
credibility of his own statements by cross-examining his in-
terviewing officer.
    Second, as to authenticity, Federal Rule of Evidence 901 re-
garding the authentication of evidence does not apply during
a revocation hearing. See Fed. R. Evid. 1101(d)(3). To the ex-
tent that Falls challenges the reliability of the recording, the
district court’s determination that the probative statements in
the audio recording were reliable non-hearsay was ade-
quately supported by Hoepker’s testimony and the contents
of the recording itself. Hoepker testified that she regularly in-
teracted with Falls and was therefore familiar with his voice,
which she identified on the recording. Aside from a general-
ized concern about the ubiquity of digitally altered material
in “today’s day and age,” Falls asserts no basis for calling the
reliability of the recording into question. Indeed, Falls has not
even asserted that the DEA did not interview him on March
8, 2019 or that the recording did not accurately capture his
voice.
  Third, as to voluntariness, Falls likely waived the argu-
ment. During his revocation hearing, he appears to have
10                                                    No. 19-3050

made a strategic decision to assert his Rule 32.1(b)(2)(C) chal-
lenge on the ground that the statements were hearsay rather
than coerced. See United States v. Brodie, 507 F.3d 527, 531 (7th
Cir. 2007) (“[W]hen the defendant selects among arguments
as a matter of strategy, he … waives those arguments he de-
cided not to present.”). Waiver generally precludes appellate
review. United States v. Dridi, 952 F.3d 893, 898 (7th Cir. 2020).
    Even if we were to view Falls’s voluntariness challenge as
forfeited rather than waived, he would still not prevail.
Whereas waiver is the “intentional relinquishment of a
known right,” an argument is forfeited if the party does not
“timely assert” it. United States v. Jaimes-Jaimes, 406 F.3d 845,
847 (7th Cir. 2005). We review forfeited arguments for plain
error, which an appellant may establish by showing: (1) an
error; (2) that is plain; (3) that affected his substantial rights;
and (4) that seriously affected the fairness, integrity, or public
reputation of the proceedings. United States v. Dowthard, 948
F.3d 814, 817–18 (7th Cir. 2020).
    The district court did not commit an error, plain or other-
wise. Had Falls alerted the court that he was challenging the
voluntariness of his recorded statements, the court may well
have recognized the need to more fully examine the nature
and circumstances of the interview. But Falls neither raised
any question as to the voluntariness of his statements before
the district court, nor has he pointed to any “alerting circum-
stances” that would have suggested to the district court a
need to investigate whether he made those statements volun-
tarily. See United States v. Taylor, 374 F.2d 753, 756 (7th Cir.
1967) (holding that district court did not err in declining to
investigate voluntariness of statement without objection by
No. 19-3050                                                   11

defendant absent presence of “[c]ertain alerting circum-
stances, such as a defendant’s apparent abnormal mental or
physical condition, obvious ignorance, or lack of awareness”).
    Even now, Falls does not argue that he was coerced into
making his recorded statements, nor does he explain how he
might have been able to establish that he made those state-
ments involuntarily if given the opportunity to cross-examine
the interviewing officer. He therefore has not shown any error
that affected his substantial rights or the integrity of judicial
proceedings.
                        III. Conclusion
   For the foregoing reasons, we AFFIRM.
