United States of America v. Jason Smith

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 29, 2024
Decided June 17, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 23-2449
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
J ASON SMITH ,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Indiana,
South Bend Division.
No. 3:10-cr-00107-RLM-MGG-1
Damon R. Leichty,
Judge.
O R D E R
In June 2022, Jason Smith began serving a three-year term of supervised release
after completing a 147-month sentence for federal drug and firearms offenses. Smith
struggled to comply with the conditions of release. Indeed, just six days after his release
from prison, he tested positive for marijuana. Smith explained to his probation officer,
Abram M. Jones, that he had used marijuana heavily while in prison and agreed to the
imposition of an additional condition of supervised release mandating his participation
in a substance abuse treatment program.
Jones referred Smith to Victory Clinical Services, a drug treatment center in
South Bend, Indiana. There he completed a substance abuse assessment and enrolled in
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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a relapse prevention program. But Smith, who was either unable or unwilling to kick
the habit, failed additional drug tests on July 25, November 4, and December 5 and
missed a drug test the following February. In the meantime, Victory Clinical Services
discharged Smith from its treatment program due to lack of attendance. Officer Jones
referred Smith to a second drug treatment facility, the Addiction Recovery Center, but
his track record there was apparently little better.
Drug use was not Smith’s only problem. On February 25, 2023, he allegedly
engaged in a high-speed car chase in Ohio, where he was later indicted for the felony
offense of failing to comply with the directions of a police officer. See Ohio Rev. Code
Ann. § 2921.331(b). That same day Smith underwent questioning by police officers in
Richmond, Indiana. It is not clear whether that encounter related to the high-speed
chase, but Smith’s conditions required him to report contact with the police to his
probation officer within 72 hours, which he failed to do.
The Ohio indictment was the final straw for Smith’s probation officer, who
petitioned the district court to revoke Smith’s term of supervised release. With help
from the Indiana and Michigan police, the U.S. Marshals Service attempted to
apprehend Smith on May 18. The Marshals Service learned that evening that Smith
would be driving to a South Bend liquor store in a white Chevy Malibu. The South
Bend Police Department agreed to assist with Smith’s arrest. Two officers—Ryan Rush
and his partner—staked out the liquor store parking lot. Smith drove to the liquor store,
as anticipated, and Officer Rush radioed in a positive identification to other police units
in the area. (The Marshals had provided Rush with a photo of Smith.)
But Smith spotted an approaching police vehicle and reacted by racing away. A
high-speed chase ensued, with Smith reaching speeds as fast as 121 miles per hour.
Smith made it all the way into Michigan before his car ran out of gas and he fled the
vehicle. Smith managed to escape and was not arrested until June 15. This incident led
to two additional criminal indictments. Indiana prosecutors charged Smith with
resisting law enforcement, see Ind. Code § 44.1-3-1(a)(3), and Michigan prosecutors
charged him with the related crime of fleeing law enforcement, see Mich. Comp. Laws
§ 257.602a(2). Jones filed an amended revocation petition adding these violations to the
growing list.
In total, Smith faced 13 alleged violations of his conditions. Nine of those
violations were drug-related: Smith was accused of using a controlled substance—
marijuana—prior to his June 22, July 25, November 4, and December 5 drug tests; of
skipping out on a drug test in February 2023; and of failing to abide by the terms of
court-ordered substance abuse treatment programs four separate times. The remaining

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four violations arose out of Smith’s two high-speed chases. The probation office alleged
that he committed felony offenses in Ohio, Indiana, and Michigan, while also failing to
inform his probation officer that he had been questioned by Indiana police officers the
day of the Ohio pursuit.
Smith’s revocation hearing took place on July 17, 2023. At the outset, Smith
admitted to using marijuana prior to the July 25 and December 5 tests. And to bring
greater focus to the case, the government chose not to pursue the Ohio and Michigan
felonies as well as Smith’s failure to inform Jones of his encounter with Richmond,
Indiana police. The scope of the proceeding narrowed yet further when Smith pointed
out that it was impossible to tell whether the June 22 positive drug test—administered
as it was just six days after Smith’s release from prison—reflected marijuana use while
incarcerated or following his release. Conceding the point, the government agreed to
drop that charge too.
Just like that, then, the scope of the revocation hearing narrowed to seven
contested charges: the November 4 positive drug test; the February 2023 missed drug
test; the Indiana felony; and four instances of non-compliance with court-ordered drug
treatment programs.
The government sought to prove these charges with four primary sources of
evidence: (1) the remote video testimony of Abram Jones, Smith’s probation officer;
(2) live testimony from Officers Rush and Alexander Williams, two South Bend police
officers involved in the May 18, 2023 high-speed chase; (3) a written lab report
indicating that urine collected from Smith on November 4 tested positive for marijuana
metabolites; and (4) treatment notes from professionals at Victory Clinical Services
memorializing Smith’s failure to participate in drug treatment programming.
Smith challenged the admissibility of Probation Officer Jones’s remote testimony,
the lab report, and the treatment notes under the Confrontation Clause of the Sixth
Amendment. That provision bars “the introduction of out-of-court ‘testimonial’
statements unless the witness is unavailable and the defendant has had the chance to
cross-examine the witness previously.” Samia v. United States, 599 U.S. 635, 643 (2023).
Importantly, however, the Confrontation Clause applies only to “criminal
prosecutions,” U.S. Const. amend VI, a term we have long held does not extend to
supervised release revocations, see United States v. Kelley, 446 F.3d 688, 691 (2006).
Consistent with this precedent, the district court overruled Smith’s Confrontation
Clause objections.
In the alternative, Smith challenged the admissibility of the lab report and
treatment notes (but not Probation Officer Jones’s remote testimony) under Federal

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Rule of Criminal Procedure 32.1(b)(2)(C). This provision, which applies to revocation
proceedings like Smith’s, provides meaningful but less absolute protection than the
Confrontation Clause. It “entitle[s]” revocation defendants to “an opportunity … to
question any adverse witness unless the court determines that the interest of justice
does not require the witness to appear.” Fed. R. Crim. P. 32.1(b)(2) & (b)(2)(C). We have
interpreted this language to require district courts to “explicitly [] balance the
defendant’s constitutional interest in confrontation and cross-examination against the
government’s stated reasons for denying them.” United States v. Jordan [Jordan I], 742
F.3d 276, 280 (7th Cir. 2014).
In response to Smith’s Rule 32.1 objections, the district court excluded some—but
not all—of the government’s evidence. Concluding that the government had not given
an adequate explanation for failing to call as witnesses Smith’s treaters at Victory
Clinical Services, the district court precluded the government from relying on those
treatment notes to prove Jones’s failure to fully participate in Victory Clinical Services’
drug treatment program. The district court likewise barred Jones from testifying about
statements made to him by Smith’s treaters at the Addiction Recovery Center reporting
similar non-compliance. But it did permit the government to rely on the November 4
lab report, notwithstanding the government’s failure to call the laboratory technician
who prepared it.
Without the Victory Clinical Services treatment notes and Jones’s testimony
about information relayed to him by Addiction Recovery Center staff, the government
could not prove the four violations related to Smith’s failure to participate in substance
abuse therapy. The district court nonetheless found that the remaining evidence was
sufficient to prove (1) that Smith used marijuana prior to the November 4 drug test; (2)
that Smith failed to appear for a drug test in February 2023; and (3) that Smith violated
Indiana law by leading the police on a high-speed chase on May 18, 2023. This made
five violations in total when Smith’s admitted violations were added to the mix,
including three positive drug tests.
In the end, the district court exercised its discretion to revoke Smith’s supervised
release under 18 U.S.C. § 3583(e)(3) and sentenced him to the 21 months recommended
by the U.S. Probation Office.
Smith appeals his revocation judgment on a variety of grounds, but none is
persuasive.
His primary quarrel is with the district court’s evidentiary rulings. Smith argues
that the district court erred in its conclusion that his supervised release revocation was
not a “criminal prosecution” within the meaning of the Sixth Amendment and, thus,

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that the Confrontation Clause did not apply. But the district court got it exactly right.
For reasons we explain in an opinion issued on this same date, see United States v.
Carpenter, No. 23-3295, the Confrontation Clause does not apply to discretionary
supervised release revocations conducted under 18 U.S.C. § 3583(e)(3).
Smith was therefore limited to challenging the admission of hearsay evidence
under the more relaxed inquiry of Rule 32.1. He does so by contending that the district
court failed to properly apply that inquiry to two categories of evidence—certain
hearsay testimony offered by Ryan Rush and the November 4 lab report. (Although
Smith frames this challenge as sounding under both the Fifth Amendment and Rule
32.1(b)(2)(C), Rule 32.1 is the more protective of the two when it comes to hearsay, see
United States v. Mosley, 759 F.3d 664, 668 (7th Cir. 2014), and thus failure under the latter
forecloses success on the former.)
Smith never objected to Rush’s testimony in the district court, at least not on
hearsay grounds. He thus forfeited the argument, leaving our review only for plain
error. The particular statements troubling Smith include Rush’s remarks (1) that he was
told by U.S. Marshals that Smith would be driving to the liquor store in a white Chevy
Malibu and that the photo he was given depicted Smith; and (2) that his partner
positively identified Smith as the man in the picture. The government insists that these
statements did not constitute hearsay because they were not admitted for their truth.
See Fed. R. Evid. 801(c)(2). We need not resolve this question, however, because any
error in admitting the testimony did not affect Smith’s substantial rights and thus did
not amount to plain error. See United States v. Olano, 507 U.S. 725, 734 (1993). At Smith’s
revocation hearing, Rush—over no objection from Smith—identified Smith as the driver
of the Chevy Malibu. That in-court identification rested on personal knowledge and,
when considered alongside Officer Williams’s testimony, easily satisfied the
government’s burden to show that Smith fled from the police in violation of Indiana
law.
Smith’s challenge to the district court’s consideration of the November 4 lab
report is stronger. Although the district court appeared to recognize that our precedent
required it to expressly balance Smith’s constitutional interest in confronting the lab
technician who prepared it against the government’s reasons for not calling that
technician as a witness, it failed to do so, admitting the lab report based primarily on
the belief that it was reliable. This approach fell short in two ways. First, we have
underscored multiple times that Rule 32.1 requires explicit, on-the-record balancing. See
United States v. Moslavac, 779 F.3d 661, 664 (7th Cir. 2015) (rejecting the government’s
contention that implicit balancing may satisfy Jordan I’s “bright-line rule”). Second, we

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have made clear that a bare finding of reliability is generally insufficient to support the
admission of hearsay under Rule 32.1, even though it might be sufficient under the Fifth
Amendment. See Mosley, 759 F.3d at 668 (“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.”).
The parties joust over whether the district court could have found the November
4 drug violation in the absence of the lab report. We can avoid this question, too,
because our review of the sentencing transcript leads us to conclude that Smith’s 21-
month sentence would have been the same either way.
Smith’s advisory guideline range—21 to 27 months—was pegged to the Indiana
felony, a Grade B violation, not to his drug test violations. That range would not have
changed if the government altogether dropped the November 4 drug charge. In
sentencing Smith to 21 months, moreover, the district court placed no emphasis on the
November 4 violation. Instead, it stressed the need for mental health treatment and the
danger that Smith’s flight from the Indiana police posed to the public, which it
described as “a very high-risk, 27-minute police chase reaching speeds of 121 miles per
hour and threatening many other people who were on the road, motorcyclists, other
drivers, not to mention the officers who were trying to do their job to catch him.”
Sentencing Transcript, 77:23–78:2.
Given the district court’s complete inattention to the November 4 drug charge—
and the fact that Smith’s pattern of drug abuse was established by three other violations
that withstand scrutiny on appeal—we find it inconceivable that the November 4 drug
charge factored into Smith’s sentence. Any error was thus harmless.
Smith lodges two additional arguments. First, he points out that his revocation
judgment erroneously states that he was found guilty of fleeing the police in violation
of Michigan law, a violation the government opted not to pursue. He then suggests that
the district court at sentencing may have considered this violation in fashioning his
sentence. The sentencing transcript makes it abundantly clear, however, that the district
court labored under no such misimpression. Before pronouncing sentence, the district
court twice recognized that the Michigan felony was not before it. See Sentencing
Transcript, 68:14–16 (“[T]he government indicated at the outset of hearing that it was
withdrawing” the Michigan and Ohio felonies); id. at 69:1–5 (finding five violations,
including the Indiana offense, but not the Michigan offense). It is clear, then, that the

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error did not affect Smith’s sentence. Nonetheless, we will instruct the district court to
correct the judgment to accurately reflect the basis for Smith’s revocation.
Finally, Smith asks us to remand with instructions directing the district court to
follow through on a promise it made at sentencing to recommend placement at a facility
equipped to treat his colon cancer. We cannot do so. As we explained in United States v.
McHugh, 528 F.3d 538 (7th Cir. 2008), we lack the jurisdiction to make non-binding
recommendations of this sort. See id. at 540–41.
For these reasons, we AFFIRM and REMAND with instructions that the district
court strike the Michigan felony from Smith’s revocation judgment.

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