                                NONPRECEDENTIAL DISPOSITION
                                  To be cited only in accordance with
                                          Fed. R. App. P. 32.1



                         United States Court of Appeals
                                           For the Seventh Circuit
                                           Chicago, Illinois 60604


                                          Argued December 6, 2013
                                            Decided March 4, 2014


                                                      Before

                                    MICHAEL S. KANNE, Circuit Judge


                                    ILANA DIAMOND ROVNER, Circuit Judge


                                    THOMAS M. DURKIN, District Judge ∗


No. 13-2151


UNITED STATES OF AMERICA,                                     Appeal from the United States District
     Plaintiff-Appellee,                                      Court for the Central District of Illinois.

           v.                                                 No. 92-CR-30068


ROBERT L. WALLACE,                                            Richard Mills,
    Defendant-Appellant.                                      Judge.


                                                   ORDER

      In United States v. Jordan, we held for the first time that Federal Rule of Criminal
Procedure 32.1(b)(2)(C) requires a district court holding a hearing to consider revoking

∗   Of the Northern District of Illinois, sitting by designation.
No. 13-2151                                                                                 Page 2

a defendant’s supervised release to explicitly balance the defendant’s constitutional in-
terest in confrontation and cross-examination of adverse witnesses against the govern-
ment’s stated reasons for denying the defendant that right. No. 13-1488, —F.3d —, 2014
WL 292396, at *3 (7th Cir. Jan. 28, 2014). In Jordan, we reversed the district court’s revo-
cation of Jordan’s supervised release and remanded for a new revocation hearing, find-
ing first, that the district court violated Rule 32.1(b)(2)(C) by admitting hearsay evidence
without conducting the balancing required by Rule 32.1(b)(2)(C), and second, that the
district court’s error was not harmless. We reach the same conclusion in this case.
       Robert Wallace pled guilty in federal court to a narcotics crime in 1993 and was
sentenced to 235 months of imprisonment, followed by 60 months of supervised release.
While in federal custody, in 1994, Wallace pled guilty to a state count of murder and
was sentenced to 28 years of imprisonment, a term that ran concurrently with Wallace’s
federal sentence and which Wallace completed while he remained in federal custody.
Wallace was released from federal prison in 2009 and, in turn, began serving his term of
supervised release.
        On December 14, 2012, Wallace’s probation officer filed a petition to revoke Wal-
lace’s supervised release based on information she received from authorities in Marion
County, Texas regarding a traffic stop that occurred on November 3, 2012. Similar to the
violations alleged in Jordan, the petition alleged that Wallace had violated the conditions
of his release by: (1) committing a new criminal offense (possession of 30 pounds of ma-
rijuana); (2) leaving the judicial district without permission; (3) associating with Keith
Jordan, a felon; 1 and (4) failing to report within 72 hours his contact with law enforce-
ment on November 3, 2012.
       As it did in Jordan’s revocation hearing, the government sought to introduce a
police report written by Texas Trooper Carlos Wilson memorializing the events of No-
vember 3, 2012 to prove the supervised release violations—the most serious of which
was the marijuana possession violation. According to the police report, on that night,
Trooper Wilson conducted a traffic stop of a vehicle that was being driven by Jordan.
During the stop, Trooper Wilson asked Jordan to exit the vehicle, while Wallace, the




   1 Keith Jordan was the defendant in the aforementioned Jordan appeal whose supervised release was
revoked based on the same November 3, 2012 incident.
No. 13-2151                                                                                         Page 3

passenger in the vehicle, remained inside. 2 After Trooper Wilson questioned Jordan,
Trooper Wilson proceeded to question Wallace who handed Trooper Wilson his state-
issued photo identification card. Wallace’s answers to Trooper Wilson’s questions and
Trooper Wilson’s identification of Wallace based on Wallace’s identification card were
noted in Trooper Wilson’s police report. 3 Also contained in Trooper Wilson’s report
was Jordan’s statement that his family in Nacogdoches County consisted of some “Wal-
lace’s” and “Jordan’s” and that his “cousin Robert” was in the car with him. At some
point, while Jordan spoke with Trooper Wilson outside the vehicle, Wallace got into the
driver’s seat and fled in the car. Following a high-speed chase with police in pursuit,
Wallace escaped on foot into the woods. The following day, Trooper Wilson ran a crim-
inal history check based on Wallace’s identification card, and a warrant was issued for
Wallace’s arrest. Wallace was later arrested with Jordan on December 21, 2012 in
Nacogdoches County, Texas.
     Prior to Wallace’s revocation hearing, the government notified the district court of
its intent to introduce Trooper Wilson’s police report at the revocation hearing instead
of subpoenaing Trooper Wilson from Texas to testify. 4 The government also informed
the district court of its intent to introduce video footage of the traffic stop, which
showed Wallace’s flight from police (but did not show his face); the Texas grand jury
indictment of Wallace; and the police report detailing Wallace’s arrest with Jordan on
December 21 as corroborative evidence supporting Trooper Wilson’s police report of
November 3.
    Wallace’s lawyer objected to the introduction of Trooper Wilson’s police report,
which also recounted the additional hearsay statements of Jordan identifying Wallace
as the passenger in the vehicle, as a violation of his right to due process and of Rule
32.1(b)(2)(C). Relying on United States v. Kelley, 446 F.3d 688 (7th Cir. 2006), the district
court expressly declined to apply the balancing test that is now required (as per our de-

    2  Wallace denies that he was the passenger and cites the passenger’s verbal self-identification and pro-
duction of a photo identification card as two instances of unreliable hearsay. As we note below, the passen-
ger fled the scene and was not apprehended. Trooper Wilson has never been asked to confirm that Wallace
was in fact the passenger, for example, by having the Trooper view Wallace’s booking photo and verify that
Wallace is the person he saw in the vehicle that night.
    3 At oral argument, the government stated that Wallace’s identification card was not presently in its
custody.
    4   The same police report was admitted as evidence in Jordan’s revocation hearing.
No. 13-2151                                                                        Page 4

cision in Jordan, 2014 WL 292396, at *3) and found that Trooper Wilson’s police report
“bore substantial guarantees of trustworthiness such that calling Trooper Wilson from
out of state to testify [was] unnecessary.” Wallace’s attorney renewed his objection to
the admission of Trooper Wilson’s police report prior to the revocation hearing, an ob-
jection the district court overruled. After considering the November 3, 2012 and De-
cember 21, 2012 police reports, along with the other evidence presented, the district
court found that Wallace violated all four conditions alleged in the petition to revoke
and sentenced him to 60 months of imprisonment.
        Under Rule 32.1(b)(2)(C), a defendant at a revocation hearing is entitled to “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
Jordan, we joined the majority of circuits in holding that the “interest of justice” lan-
guage in the Rule requires district courts, before admitting hearsay evidence in revoca-
tion hearings, to explicitly balance the defendant’s constitutional interest in confronta-
tion and cross-examination of adverse witnesses against the government’s good cause
for denying it. 2014 WL 292396, at *2-3. We recognized that a defendant on supervised
release has a limited due process right to confront and cross-examine adverse witnesses
but, given the liberty interest at stake, that right “should not be denied without a strong
reason.” Id. at *3. We also suggested ways that district courts may admit non-hearsay
evidence in revocation proceedings, noting that when live testimony would be difficult
or burdensome to obtain, the confrontation need not be face-to-face. Id. For example,
video-conferencing, if available, would allow a remote witness to testify and face cross-
examination with minimal inconvenience and expense. Id. And when such inexpensive
means of communication are available, we observed that a remote witness should gen-
erally be expected to appear by that means, even if the hearsay seems reliable. Id. Ap-
plying these principles in Jordan, we found that the admission of Trooper Wilson’s po-
lice report without conducting the required balancing test was error, that the hearsay
evidence that was admitted was not so reliable that the error could be deemed harm-
less, and that remand for a new revocation hearing was required. Id.
       We conclude here, as we did in Jordan, that the hearsay evidence sought to be
admitted in Wallace’s case (double hearsay, in at least one instance) was not so reliable
as to obviate the need for the application of the balancing test prior to admitting the ev-
idence at Wallace’s revocation hearing. Nor does any of the government’s other evi-
dence introduced at the revocation hearing sufficiently corroborate the challenged hear-
say evidence as to render the erroneous admission of that evidence harmless. For this
No. 13-2151                                                                        Page 5

reason, as we discussed in Jordan, Kelley does not require a different result. See Kelley,
446 F.3d at 692-93 (affirming revocation of supervised release based on hearsay evi-
dence for which government had strong corroborating evidence).
        Because the government focused on the reliability of the police report in defend-
ing its admission at Wallace’s revocation hearing, we need not address whether the
government had good cause to deny Wallace the right to confront and cross-examine
Trooper Wilson or whether that cause outweighed Jordan’s constitutional interests. The
district court on remand will address this question when it conducts the balancing test
under Rule 32.1(b)(2)(C). Also, on remand, the government may introduce additional
evidence to meet the balancing test. See Jordan, 2014 WL 292396, at *5. This may include
Trooper Wilson’s testimony, either in person or via video or telephonic appearance, and
any other potentially corroborating evidence to support the November 3 police report.
Further, because the district court did not apply the balancing test required by Rule
32.1(b)(2)(C) and we are not convinced that the error was harmless, we need not reach
Wallace’s Fifth Amendment due process claim. Id.
     Wallace also argues that remand for resentencing is required because the prosecutor
misspoke during his closing argument. We need not address this argument in light of
our conclusion that the district court erred by not conducting a proper balancing analy-
sis.
       Accordingly, we REVERSE the judgment of the district court and REMAND for
further proceedings consistent with this order.
