United States of America v. Malcolm Whiteside

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 25, 2023
Decided July 21, 2023
Before
KENNETH F. RIPPLE, Circuit Judge
AMY J. ST. EVE, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-2482
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MALCOLM WHITESIDE,
Defendant-Appellant.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 19-cr-99-jdp-1
James D. Peterson,
Chief Judge.
O R D E R
Malcolm Whiteside was sentenced to prison after the district court revoked his
supervised release for violating a condition that barred him from possessing a gun. The
court based its sentence in part on evidence described in the petition for revocation
(including a video recording and identification of Whiteside in it) showing that he used
a weapon in violation of state law. On appeal, Whiteside argues that, because the
government said that it did not intend to prove with live testimony that Whiteside
violated state law, the court violated his due process rights by considering this
evidence. This argument, which Whiteside waived on appeal, fails: The court could
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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consider reliable evidence in the petition showing that Whiteside committed a state
crime and possessed a gun in violation of a condition of release, and the petition
provided Whiteside with sufficient notice that the government was asking the court to
consider this state crime. We therefore affirm the judgment.
Whiteside pleaded guilty in 2019 to unlawful possession of a firearm. 18 U.S.C.
§ 922(g)(1). The district court sentenced him to 21 months in prison, followed by three
years of supervised release. Whiteside began serving his term of supervision in 2021.
Under the conditions of his supervised release, he was prohibited from committing
another federal, state, or local crime; possessing a controlled substance; and possessing
a firearm. The conditions also required him to maintain lawful employment, notify his
probation officer of any change in job, and participate in substance-abuse treatment.
Over the term of Whiteside’s supervised release, his probation officer reported
him three times to the court for various violations. First, in late 2021, the officer
petitioned the court to require Whiteside to enter a residential reentry program because
he had admitted to unlawful drug use and failed to appear for drug testing. The court
granted the petition. Second, a few months later, the probation officer reported new
violations. This petition explained that the residential reentry center had discharged
Whiteside for violating its rules, Whiteside failed to submit monthly reports to the
probation officer, he quit his job without permission, and he tested positive for illegal
drug use. At the revocation hearing, the court said that Whiteside deserved revocation
and a 12-to-18-month prison sentence. But it offered a “bit of lenience to see if
[Whiteside could] correct himself.” It continued the review of his supervised release for
90 days, warning that he would receive a sentence of “at least a year” if he committed
any more violations and explaining that it was “looking to see … zero violations” in
that period.
Two months later, the probation officer filed the third petition, the subject of this
appeal, reporting that Whiteside had again violated his supervision terms. The petition,
which the officer signed under penalty of perjury, stated that Whiteside had been
charged in a Wisconsin state criminal complaint with two felony charges. These were
recklessly endangering safety through use of a dangerous weapon and illegal
possession of a firearm as a convicted felon. To support the petition’s allegations about
the state charges, the officer described a surveillance video that captured two people
firing gunshots into the air, and the officer identified Whiteside in at least one of the still
images from the video. The petition also asserted that, after arresting Whiteside, local
police searched his home and found “a firearm, along with suspected marijuana and

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ecstasy and some cash.” Finally, the petition reported other violations of Whiteside’s
conditions of release: He had been fired from his job and had lied about his
employment status on his monthly report to the probation officer.
The district court held a combined revocation and sentencing hearing. Near the
start of the hearing, the government explained that it would not use live witnesses to
support the pending state charges but was instead resting on the evidence “noted” in
the petition for that charge:
GOVERNMENT: Your Honor, there’s also an allegation noted in [the
petition] that the defendant committed a new crime. He’s been
charged in Dane County Circuit Case No. 22-CF-1151 with second-
degree reckless endangering safety-use of a dangerous weapon and
possession of a firearm as a convicted felon. The government is not
going to be putting on any witnesses regarding that case or that
allegation, but it is noted in the [petition]. …
COURT: …[S]o if I understand correctly, you’re really not pressing the
violation based on the new criminal conduct.
GOVERNMENT: No, Your Honor. It’s a continued pattern of refusal
to comply with the conditions.
COURT: All right.
The court then asked Whiteside’s counsel if Whiteside stipulated to the violations of the
supervision conditions, and counsel replied that Whiteside did, except for the alleged
state charges. Counsel acknowledged that, although the court’s consideration of those
charges could yield a higher sentence upon revocation, Whiteside would save his
“powder” for the state trial:
I guess there are two tracks you could take here. I think if you were
including the new criminal conduct, I could see 18 months making
sense. Although Mr. Whiteside doesn’t have a lot to say about that,
and we’re saving our powder, I guess, for the actual state case, I guess
I could understand the 18 months.

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At the hearing’s end, the court revoked Whiteside’s supervision. It explained that
Whiteside’s conduct “warrant[ed] revocation” because the petition included “very
disturbing allegations about the new criminal activity[,]” alongside “the history of
additional violations that continued[.]” The court reasoned that it could and would
consider the petition’s evidence supporting the state’s firearm charges:
[A]lthough the government isn’t pressing it, I think it would really be
dishonest for me to say that I’m not going to consider the new criminal
conduct. Now, I’m always cautious about this, and I completely
understand the defense perspective that you don’t want to concede
those charges, you don’t want to say anything that would jeopardize
another criminal prosecution. All very understandable. But, of course,
I don’t have to decide anything beyond a reasonable doubt that would
establish a criminal conviction, and I can rely on hearsay. So I don’t
really need the government’s witnesses on the point, and I have the
probation … report. You know, Docket No. 34 has [the probation
officer’s] representation that he looked at the video and that he saw
Mr. Whiteside there, and so I can find to a preponderance of the
evidence that there was new criminal conduct committed by Mr.
Whiteside.
The court concluded that the evidence in the petition showed “not only to a
preponderance but really quite compelling[ly]” that Whiteside had possessed a firearm
and discharged it, which violated his supervision conditions. In revoking Whiteside’s
supervised release, it sentenced him under the Sentencing Guidelines to 18 months in
prison, as his counsel had anticipated, followed by an additional 18 months of
supervised release. Before the court finished, it asked the parties if they had anything
further they wanted the court to address, and Whiteside’s counsel only requested
prerelease placement in a residential reentry center and clarified his custody credits. He
raised no further issues. Whiteside now appeals.
On appeal, Whiteside contends that the court’s reliance on the evidence about
state charges violated his right to due process in the Fifth Amendment. First, Whiteside
argues, he lacked notice because the government’s decision not to use live witnesses
suggested that the court would not consider the state charges at all. Next, Whiteside
adds, he did not receive a meaningful opportunity to be heard because he opted against
contesting the state charges based on the government’s statements. Finally, Whiteside
asserts, the court denied him the chance to confront adverse witnesses when it relied on

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the petition, which he considers unpersuasive hearsay evidence that he had committed
a new crime.
The government responds that Whiteside waived his right to contest the court’s
consideration of the petition’s evidence of the state charges when he decided as a matter
of strategy to reserve his opposition to the charges for state trial. In the alternative, the
government continues, the court did not err by considering the evidence supporting
those allegations. In the government’s view, Whiteside was on notice of the allegations
and the supporting evidence because they were in the revocation petition, and the court
could rely upon the probation officer’s statements in the petition because they were
sufficiently reliable.
We begin our analysis with waiver, which we conclude applies here. Waiver
precludes appellate review, and it applies when a criminal defendant intentionally
decides not to present an argument as a matter of strategy. United States v. Falls,
960 F.3d 442, 447 (7th Cir. 2020). We construe waiver principles liberally in favor of
criminal defendants, United States v. Canfield, 2 F.4th 622, 626–27 (7th Cir. 2021), but
even so, the record shows that Whiteside knowingly and intelligently decided not to
contest in the district court the petition’s evidence supporting its allegations about the
state charges. At the revocation hearing, the government highlighted that the petition
alleged state criminal charges, and it notified Whiteside that, although it would not
support those charges with live witnesses, it would rely on the petition itself. After the
court observed that the government was not “pressing” its proof of those charges with
live testimony, Whiteside’s counsel announced a strategic decision: Whiteside would be
“saving [his] powder” for his forthcoming trial in state court by reserving substantive
arguments about the state charges, in order to avoid revealing his defense strategy
preemptively. That reveals a “calculated choice to stay silent” about the allegations, the
hallmark of waiver. See United States v. Butler, 777 F.3d 382, 387 (7th Cir. 2015). The court
even noted this strategic choice, acknowledging that Whiteside “[didn’t] want to say
anything that would jeopardize another criminal prosecution.” Nor did Whiteside say
anything about the court’s consideration of the state charges at the hearing’s conclusion,
even after the court invited him to do so.
Although Whiteside now claims that the government withdrew the state charges
from its sentencing arguments at the revocation hearing and thus deprived him of
notice that the court might consider them, we disagree. The district court could rely on
the factual findings in the petition, even if the government did not put on evidence to

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support those findings. See United States v. Armour, 804 F.3d 859, 864–65 (7th Cir. 2015).1
The government explained at the hearing that it viewed the state charges about gun
possession as part of Whiteside’s “continued pattern of refusal to comply with the
conditions” of supervision, which required that he obey state laws and not possess
guns. In doing so, the government invited the court to consider the petition’s evidence
about all the conditions of supervision that Whiteside had violated, including the state’s
allegations of criminal conduct. And even if the dissent is correct that we should
interpret the government’s mention of the pattern of noncompliance to exclude the state
charges, the government still did not disavow those charges as a basis for revocation.2
Despite the government’s choice not to press the state charges, Whiteside’s counsel
understood that they remained in play. Indeed, counsel acknowledged that the court
could take “two tracks” in sentencing, and if the court took the track of considering
evidence of “the new criminal conduct,” Whiteside could receive (as he did) an 18-
month prison term. Thus, the state allegations were still live and proper for the court to
consider.3
In the alternative, if Whiteside’s acquiescence to the court’s consideration of the
evidence for the state charges was not strategic but merely a forfeiture, we would still
1 Armour held that in the absence of an objection by the defendant, the district
court may rely on facts found in a probation officer’s violation memorandum, not a
revocation petition, 804 F.3d at 864–65, but that holding implies that the district court
may also rely on allegations in the petition. The defendant in Armour argued that the
district court erred by relying on the facts found in the memorandum because those
allegations did not appear in the petition, suggesting if they had, then the court could
rely on them. See id.
2 The dissent emphasizes that revocation proceedings are adversarial, the
government bears the burden of proof, and the probation officer is a “neutral
information gatherer,” United States v. White, 868 F.3d 598, 604 (7th Cir. 2017), not a
“surrogate prosecutor[].” United States v. Peterson, 711 F.3d 770, 778 (7th Cir. 2013). We
agree, but the district court may nevertheless rely on a probation officer’s findings
without additional input from the government, Armour, 804 F.3d at 863–65, and neither
White nor Peterson indicates otherwise. White discussed a probation officer who
improperly inserted himself into revocation proceedings in the role of an advocate, 868
F.3d at 603–04, while Peterson concerned the propriety of confidential recommendations
by probation officers. 771 F.3d at 776–79. Neither is analogous to the situation here.
3 Because we conclude that the state charges were in play when the district court
ruled, we disagree with the dissent that the ruling itself created the grounds for appeal.

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affirm the judgment. For a forfeiture, we review the district court’s consideration of the
evidence of state charges for plain error. See United States v. Burns, 843 F.3d 679, 687 (7th
Cir. 2016). Under that standard, the district court’s ruling is reversed only if there is “(1)
an error or defect (2) that is clear or obvious (3) affecting the defendant’s substantial
rights (4) and seriously impugning the fairness, integrity, or public reputation of
judicial proceedings.” Id.
A district court may revoke supervision under 18 U.S.C. § 3583(e)(3) if it finds by
a preponderance of the evidence a violation of the conditions of release. United States v.
Mosley, 759 F.3d 664, 669 (7th Cir. 2014). Revocation hearings do not require “the full
panoply of rights” provided at trial and sentencing. Morrissey v. Brewer, 408 U.S. 471,
480 (1972). But due process entitles defendants to written notice of the alleged
violations, the chance to be heard, and the limited right to confront adverse witnesses
unless the interest of justice does not require the witness to appear. See id. at 488–89;
FED. R. C RIM. P. 32.1(b)(2)(C). Also, consistent with due process, district courts may
consider “reliable hearsay at revocation hearings without a specific showing of good
cause.” Mosley, 759 F.3d at 667 (citation omitted). Hearsay is reliable if it “bears
substantial guarantees of trust-worthiness[,]” which supplies “good cause” for not
requiring the declarant’s live testimony. Id.
The district court did not plainly violate any of these protections when it
considered the petition’s evidence that Whiteside unlawfully possessed a firearm.
Whiteside received written notice of charges that he violated his supervision terms, and
a hearing where he could contest them. The court found that the petition’s evidence—
which identified a surveillance video from the incident and the probation officer’s
identification of Whiteside as a person depicted in it possessing and discharging a
firearm—was highly reliable, in fact “really quite compelling.” The dissent raises
reasonable concerns that the district court may have conflated the relevant standards of
proof or not appreciated the hearsay-within-hearsay nature of the petition’s findings,
but to be plainly erroneous, an “error must be clear or obvious, rather than subject to
reasonable dispute.” United States v. Foy, 50 F.4th 616, 627 (7th Cir. 2022) (quoting United
States v. Hyatt, 28 F.4th 776, 782 (7th Cir. 2022)). It was not obviously erroneous to
conclude that the petition’s hearsay evidence was “substantially trustworthy.” Thus, we

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will not disturb the district court’s determination that Whiteside violated his conditions
of supervision. 4
AFFIRMED
4 The dissent also argues that the district court violated Federal Rule of Criminal
Procedure 32.1(b)(2)(C) by failing to balance Whiteside’s interests in confrontation with
the government’s contrary interest. See Mosley, 759 F.3d at 668. But Rule 32.1(b)(2)(C)
affords only an “opportunity” to confront witnesses, which Whiteside waived or
forfeited. When we have analyzed whether the balance of interests favors admission of
hearsay testimony under Rule 32.1(b)(2)(C), the defendant has objected to the testimony
in the district court. See United States v. Jordan, 742 F.3d 276, 278 (7th Cir. 2014); Mosley,
759 F.3d at 667; United States v. Moslavac, 779 F.3d 661, 662 (7th Cir. 2015); Falls, 960 F.3d
at 444.

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P RYOR , Circuit Judge, dissenting. Without notice and an opportunity to be heard,
there is no due process. These principles intertwine to form “the essence” of due
process because an individual must know what he’s up against in order to defend
himself against it. Mathews v. Eldridge, 424 U.S. 319, 348 (1976). I respectfully dissent
from the decision of my colleagues because I disagree that Malcolm Whiteside knew
what he was up against.
I
Consider the sequence of events one more time. A probation officer petitioned
the district court to revoke Whiteside’s supervised release on three occasions. What
matters here are the second and third petitions. The second petition alleged that
Whiteside committed several violations, including using illegal drugs, failing to
maintain employment, getting removed from a residential reentry center, and refusing
to submit monthly report forms. At a revocation hearing, the government asked the
district court to revoke Whiteside’s supervision and impose a sentence of 12 months
with some supervised release to follow. After hearing argument from defense counsel,
the district court decided to delay ruling on the revocation for ninety days to see if
Whiteside could “correct” his behavior by staying clean, maintaining a job, and
maintaining his stability. In doing so, the court warned Whiteside not to commit any
more violations.
Within those ninety days, however, the probation officer submitted his third
petition. This one alleged that Whiteside was repeating some of his previous violations.
For instance, it reported that Whiteside had been fired from his job and failed to report
his lack of employment to the probation officer. The petition also informed the court
that the State of Wisconsin had recently charged Whiteside with the possession and
discharge of a firearm. In support of this allegation, the probation officer wrote that,
according to a criminal complaint, local police responded to a report informing them
that gunshots had been fired in a parking lot. The police officers watched surveillance
footage from the area and allegedly saw Whiteside firing shots into the air. The
probation officer then stated that he had “reviewed still images of [that] surveillance
video” and “identified Mr. Whiteside in at least one of the images.”
Following the initial appearance on the third petition, the district court held a
revocation hearing. The government began by recapping the previous hearing and
bringing the court up to speed on the current status of the case. It recounted Whiteside’s
repeated violations and, at the tail end of its argument, “noted” that the final petition
also alleged that Whiteside had committed a state crime while on release. Even so, the

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government clarified that it was “not going to be putting on any witnesses regarding
that … allegation.”
Then the government asked the district court to sentence Whiteside to 18
months—rather than 12 months—in prison with no supervised release to follow.
Whiteside, as the government put it, “was warned by the [c]ourt” yet “still continued to
[violate the] conditions of his release.” Seeking clarification on whether the government
based its recommendation on the new firearm allegations, the court stated, “so if I
understand correctly, you’re really not pressing the violation based on the new criminal
conduct.” The government’s response is important: “No, Your Honor. It’s a continued
pattern of refusal to comply with the conditions.” “All right,” replied the court.
After listening to this exchange, Whiteside’s attorney spoke. He stated that
Whiteside stipulated to all of the alleged violations, apart from the violations
concerning the firearm. The attorney next identified what he saw as “two tracks”—the
two ways of thinking about how much prison time Whiteside deserved. First, defense
counsel admitted that if the new state allegations were factored into the calculus, the
government’s request for 18 months would make sense. He said nothing more on these
charges, explaining that he was “saving [his] powder … for the actual state case.” But
counsel continued to argue that the request for 18 months was too high if Whiteside’s
conduct was understood as “a pattern of noncompliance” based on, among other
things, the failed drug tests and misrepresentations about employment.
The district court revoked Whiteside’s supervision and imposed 18 months of
prison time, followed by another 18 months of supervised release. In doing so, the
court, while acknowledging that “the government [wasn’t] pressing” the firearm
allegations, took into account the probation officer’s statements in the petition about
those allegations. At no point did the court stop to inform Whiteside that it was
considering this violation. Nor did it ask him whether, given that revelation, he had
anything more to say about the state charge or the alleged evidence.
II
Based on these facts, the majority concludes that Whiteside waived his appellate
arguments and that, in any event, no error occurred. I respectfully see both points in
another light.
Beginning with waiver, my colleagues and I agree on the law. A defendant
waives an argument when he “intentionally relinquishes a known right.” United States

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v. Barnes, 883 F.3d 955, 957 (7th Cir. 2018) (citation omitted). We construe waiver
“liberally in favor of the defendant” and are “cautious about interpreting a defendant’s
behavior as intentional relinquishment.” Id.
Where my colleagues and I differ is on how the law applies to these facts. As the
majority reads the transcript, the government “notified Whiteside that, although it
would not support [the state] charges with live witnesses, it would rely on the petition
itself.” The opinion likewise understands the government’s comment about Whiteside’s
continued pattern of non-compliance with the conditions of release as “invit[ing] the
court to consider” all of the petition’s evidence—including the state charge. And, in the
majority’s view, the government merely stated that it “was not ‘pressing’ its proof of
those charges with live testimony.” Accordingly, the majority concludes that Whiteside
“intentionally,” “knowingly,” and “intelligently” waived any objection to the district
court’s reliance on the allegation about the state charge.
I read the transcript differently. All the government said about the state
allegations was that they were “noted” in the petition—which was crafted not by the
government but by the probation officer. The government never asserted that it would
rely on those allegations. To the contrary, it stated that it would not present any
evidence about them. After that, the government never said that it would not press the
charges with live testimony. Rather, it said that it would not press the charges at all. Nor
did the government invite the court to consider the state charge through its reference to
Whiteside’s “pattern” of non-compliance. For starters, the comment about non-
compliance came directly after the government confirmed that, “[n]o,” it was not
pressing the state charge. More to the point, the “pattern” referenced by the government
involved Whiteside repeatedly failing to hold down a job or tell the truth to his
probation officer—not the one-off firearm allegation.
When Whiteside’s attorney got up to speak, he had just heard the government
say that it was not seeking to revoke Whiteside’s supervised release because of the
firearm charge. Naturally, the attorney did not think that he had to defend against the
violations based on that charge. Whiteside therefore could not have knowingly and
intelligently waived his arguments regarding the new state charge.
While I recognize that Whiteside was aware of the new allegation in the third
petition regarding the state charge, it is not clear from the transcript that this violation
was being considered by the court. Revocation proceedings are adversarial. The
government, not the probation officer, bore the burden of proving to the district court

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that Whiteside violated his terms of supervised release. United States v. Golden, 843 F.3d
1162, 1165 (7th Cir. 2016). The probation officer—an employee of the judiciary—is a
“neutral information gatherer.” United States v. White, 868 F.3d 598, 604 (7th Cir. 2017).
For this reason, we have warned that probation officers are not “surrogate prosecutors.”
United States v. Peterson, 711 F.3d 770, 778 (7th Cir. 2013) (citation and quotation marks
omitted). So Whiteside’s attorney no doubt expected the revocation hearing to follow its
usual, adversarial course. The government submits evidence, makes arguments, and
requests a sentence. Then the defendant tries to combat those arguments and convince
the court that his own request is more appropriate.
What happened here was far different. The probation officer submitted in his
petition to the court that Whiteside had been charged by the State with firearm
violations. Despite knowing about that claim, the government chose not to submit any
evidence on the allegation, made no argument about the allegation, stated in front of
Whiteside that it was not pressing the allegation, and requested a certain sentence
because of other violations contained in the petitions. After Whiteside predictably did
not focus on the state charge, but still confirmed that he did not stipulate to it, the
district court relied on that same charge to impose the government’s requested
sentence—plus an additional term of supervised release. During an adversarial hearing
like this one, no reasonable defense attorney would have suspected that the court
would, without warning, resurrect allegations that the government had the burden of
proving yet chose not to pursue.
Whiteside’s comment about “saving [his] powder” must be understood in the
context of this unusual hearing. True, a strategic decision not to present an argument is
typically a telltale sign of waiver. United States v. Flores, 929 F.3d 443, 448 (7th Cir. 2019).
Here, however, Whiteside’s decision to remain silent on the state allegations was the
result of the government’s own decision not to press the allegations. By speaking about
the state charge, Whiteside risked a great deal. Anything that he or his attorney said
could have been used against him in the state proceeding. Saving their powder was the
only sensible course of action after the government took the state charge off the table.
Put another way, Whiteside did not make an informed and calculated choice to forego a
line of argument while taking into account the risk that the district court would accept
the government’s version of events. He reasonably thought that the district court was
not considering those allegations, so he decided not to either.
Likewise, Whiteside’s comment about the “two tracks” does not show that he
thought the court was about to consider the state charge. When we hold this statement

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up against the backdrop of what had happened moments earlier—the government
abandoning any reliance on those charges—we can see that Whiteside referenced the
two analytical tracks as a tool of argument. His point was that the government might
have been right that an 18-month sentence was warranted if it had proven by a
preponderance of the evidence that Whiteside had used a firearm. If, however, the new
conduct alleged in the state allegation was out of the question, then the government’s
requested sentence was too lengthy. Because the government had not attempted to
prove that Whiteside used a gun, he understandably imagined that everyone in the
courtroom was driving down this second track.
We must not forget in the midst of these details that the court must read the
transcript liberally in favor of Whiteside. Or that the court must exercise caution before
interpreting any of his actions as a deliberate choice to forgo an argument. In light of
these standards, I cannot conclude that Whiteside made the sort of fully-informed
choice that would result in waiver.
There is also another reason that waiver—or even forfeiture—does not apply.
When the “grounds for appeal existed prior to and separate from the district court’s
ultimate ruling,” a litigant must raise the claim of error in the district court to avoid
waiving it on appeal. United States v. Wood, 31 F.4th 593, 598 (7th Cir. 2022). When,
however, the error is “created by the district court’s ruling itself,” a litigant does not
waive or forfeit a claim of error by staying quiet. Id. at 598–99. In those circumstances, a
party need not even protest the ruling when the court asks at the end of the hearing if it
should address anything else. Id. at 597–99. The rationale underlying this rule is
intuitive: we cannot expect litigants to come up with arguments on the fly or interrupt
judges mid-ruling. Id. at 598.
Although Whiteside walked into the hearing with the petition in hand, the
grounds for appeal did not exist at that point. Nothing in the petition was itself an error.
The errors arose from how the district court utilized the petition during the hearing,
after each party had already spoken. As I explain next, the court improperly resurrected
allegations that the government had taken off the table and relied on hearsay within
hearsay evidence. So even though Whiteside knew what the petition said, he had no
reason to be on guard for these errors—both of which cropped up in the middle of the
district court’s explanation. See Wood, 31 F.4th at 597 (“A district court’s explanation of
its sentencing decision … is a ruling to which an exception is not required.”). Whiteside
therefore had no duty to protest the errors at the time, meaning we should review de
novo.

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This transcript, especially when construed liberally in favor of Whiteside, shows
that no waiver occurred.
III
I turn now to the two errors created by the district court’s ruling. The first relates
to Whiteside’s opportunity to defend himself and the second relates to the hearsay
evidence.
A.
During a revocation hearing, a criminal defendant has a constitutional due
process right to several things, including notice of the alleged violations, an opportunity
to be heard, and the right to confront witnesses. Morrissey v. Brewer, 408 U.S. 471, 488
(1972) (outlining these requirements in the context of parole revocation hearings);
United States v. Kelley, 446 F.3d 688, 691 (7th Cir. 2006) (confirming that Morrissey applies
to supervised release revocation hearings).
The “cornerstone” of due process is notice and the opportunity to be heard “at a
meaningful time and in a meaningful manner.” Knutson v. Vill. of Lakemoor, 932 F.3d 572,
576 (7th Cir. 2019) (citations and quotation marks omitted). The majority is right that
Whiteside received both written notice of the allegations and a hearing. And in many
situations, this would be sufficient. “Due process,” however, “is flexible … and calls for
such procedural protections as the particular situation demands.” Jennings v. Rodriguez,
200 L. Ed. 2d 122, 138 S. Ct. 830, 852 (2018) (citation and quotation marks omitted).
The analysis here dovetails with the analysis of waiver and forfeiture. As
discussed, revocation proceedings are adversarial. The government must prove the
violations. So once the government refused to support allegations put forth by a
probation officer, and explicitly stated that it would not press the allegations, Whiteside
could not have expected the district court to take them into account. To put it in the
language of due process, he did not have adequate notice that the charges were still up
for consideration.
For that reason, he did not have a meaningful opportunity to defend against the
charges either. Consider for a moment how Whiteside might have attempted to do so.
Because the government did not make any arguments about the state charge,
Whiteside’s attorney—in the time it took him to approach to the bench—would have
had to imagine the arguments the government could have made. Then he would have

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had to shadowbox against those arguments. All while weighing the good that each
word could do at that moment against the bad each word could bring to his client’s
later criminal prosecution in state court. “We have an adversarial system of justice, not
an inquisitorial one, and to proceed along the path described above would … blur the
line between the two systems.” United States v. Neal, 512 F.3d 427, 439 n.11 (7th Cir.
2008) (citation and quotation marks omitted).
In making this point, I wish to clarify one thing. The majority, relying on United
States v. Armour, 804 F.3d 859 (7th Cir. 2015), concludes that district courts have the
power to rely on findings in revocation petitions even when the government does not
support those findings. I agree with my colleagues. The problem here is not what the
district court could do in the abstract, but the lack of notice. In Armour, the district court
asked the defendant if he had any objections to the violation memorandum, and the
defendant responded that he objected only to the conditions of supervised release. Id. at
864. As a result, the district court “adopted the factual findings of the violation
memorandum as its own,” confirming its intent to rely on those findings. Id. In this
case, Whiteside stated that he did not stipulate to the state allegations, and the district
court never informed him that it planned to adopt the findings in the petition. In fact,
the court did not put Whiteside on notice that it was about to consider the allegations
until the middle of the ruling. My point is that, even though the district court could rely
on the firearm charge, due process required the court to warn Whiteside of its intent
take the charge into account.
Whiteside’s opportunity to defend himself against the state allegations was
therefore not a meaningful one in my book.
B.
A second error arose out of the district court’s reliance on the probation officer’s
statement. Remember what the officer said. State prosecutors determined that they had
probable cause to charge Whiteside. Police told the probation officer that they had seen
Whiteside firing a gun in a surveillance video. And the probation officer identified
Whiteside in a still image plucked from some point in that surveillance footage. What
the probation officer did not say is just as important. He never stated that he watched
the video or that he saw Whiteside holding a gun in any of the images police forwarded
to him.
The probation officer’s statement about identifying Whiteside was therefore
hearsay. It was an out of court statement offered to prove the truth of the matter

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No. 22-2482 Page 16
asserted. United States v. Graham, 47 F.4th 561, 567 (7th Cir. 2022). The probation officer’s
other statements—about what police told him—were hearsay-within-hearsay.
I have doubts over the majority’s conclusion that the district court did not
commit a constitutional error by relying on this hearsay evidence. As the opinion
explains, a defendant has only a limited right to confront witnesses at a revocation
hearing. The practical upshot is that, if hearsay evidence is reliable, a district court can
consider it without explaining why an opportunity for cross examination is
unnecessary. United States v. Mosley, 759 F.3d 664, 667 (7th Cir. 2014). Hearsay is
reliable, in turn, only if it “bears substantial guarantees of trust-worthiness.” Id. (citation
and quotation marks omitted).
To conclude that Whiteside wielded a gun, the district court had to patch
together both the probation officer’s statement and what the probation officer said that
police told him about the rest of the video. All the probation officer confirmed was that
he saw Whiteside in an image taken at the supposed scene of the crime. The police
officers were the only ones who claimed to see Whiteside use a gun. I am not sure how
the court could have determined that the second-hand and untested statements of these
unnamed police officers were substantially trustworthy. I worry as well about
conflating the two standards of proof at play. The district court had to conclude by a
preponderance of the evidence that Whiteside possessed a gun. Yet, in making that
determination, the court seems to have relied on the police’s belief that they had probable
cause to arrest Whiteside.
Either way, the district court erred by considering the hearsay evidence because
doing so ran afoul of Federal Rule of Criminal Procedure 32.1(b)(2)(C). That rule entitles
a supervisee 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 contrast to our Fifth Amendment jurisprudence, we have
interpreted this rule to require a district court to “explicitly balance” the supervisee’s
interest in confrontation against the government’s contrary interest. Mosley, 759 F.3d at
668 (quoting United States v. Jordan, 742 F.3d 276, 280 (7th Cir. 2014)). By failing to
conduct that balancing here, the district court committed an error. See Mosley, 759 F.3d
at 668 (concluding the same). As discussed, Whiteside did not need to object to the
district court’s reliance on the hearsay statements because this error arose during the
ruling.

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No. 22-2482 Page 17
IV
For these reasons, I would remand this case for a new revocation hearing so that
the district court could give Whiteside an opportunity to defend himself against
allegations that he used a firearm while on supervised release. Accordingly, I
respectfully dissent from the decision to the contrary.

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