United States of America v. Eric Nunley

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 7, 2026
Decided August 3, 2026
Before
MICHAEL B. BRENNAN, Chief Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 25-3337
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ERIC NUNLEY,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 3:18-CR-30133-SMY-1
Staci M. Yandle,
Chief Judge.
O R D E R
After Eric Nunley violated the conditions of his supervised release, the district
court revoked his supervision and ordered him to serve 24 months in prison. He
appeals, contending that the court violated Rule 32.1(b)(2)(C) of the Federal Rules of
Criminal Procedure by failing to consider his interest in confronting witnesses and
improperly relying on hearsay evidence to revoke his supervision. For the reasons set
forth below, we vacate the judgment and remand for further proceedings.
Following his conviction for being a felon in possession of a firearm, 18 U.S.C.
§ 922(g), Eric Nunley was sentenced to 70 months’ imprisonment and three years’
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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supervised release. Nunley completed his term of imprisonment and was released in
September 2023. He soon violated several conditions of his release and was placed on 90
days of home confinement and electronic monitoring.
In April 2025, F.W., with whom Nunley shares a child, called Nunley’s probation
officer, Cole Hammel, and reported that Nunley had recently left the judicial district
without permission on two occasions. Officer Hammel petitioned to modify Nunley’s
release and in May 2025, Nunley was put on electronic monitoring for another 90 days.
On June 15, 2025, Nunley removed his electronic monitoring equipment without
permission, prompting Officer Hammel to file a petition for revocation. The petition
alleged that, in addition to Nunley’s failure to participate in electronic monitoring,
Nunley committed several Grade B and Grade C violations (leaving the judicial district
without permission, unlawfully possessing controlled substances, using alcohol, and
failing to participate in treatment for substance abuse). These violations carried a
policy-statement range of 18 to 24 months’ incarceration. U.S.S.G. § 7B1.4. On August
25, Nunley appeared on that petition and was arrested.
Officer Hammel filed an amended petition the next day. The petition alleged that
Nunley was involved in a shooting on August 2, 2025, and had committed the offenses
of felon in possession of a weapon, aggravated battery, and aggravated discharge of a
firearm. Aggravated battery is a Grade A violation that, combined with Nunley’s
criminal history category of V, set his policy-statement range at 30 to 37 months.
U.S.S.G. § 7B1.4. But Nunley faced a statutory maximum of 24 months, plus supervised
release less any term of imprisonment.
At the combined revocation and sentencing hearing on October 29, 2025, Nunley
admitted to all the alleged violations except those related to the August 2 shooting. The
court reviewed Nunley’s rights, confirmed he understood them, and accepted his plea.
The government then sought to prove the contested violations, first telling the court
that the shooting was under investigation and that no state or federal charges had yet
been filed.1
1 Three weeks later, Nunley was indicted for possessing ammunition as a felon, 18
U.S.C. § 922(g)(1). See Indictment, United States v. Nunley, 25-cr-30151-NJR-1 (S.D. Ill. Nov.
18, 2025). The indictment was amended in January to add charges of interstate domestic
violence after a prior conviction, 18 U.S.C. § 2261(a)(1), and using a firearm in relation to a
crime of violence, id. § 924(c)(1)(A). See Nunley, 25-cr-30151-NJR-1 (S.D. Ill. Jan. 6, 2026).

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Officer Hammel was the government’s sole witness. He testified that he
supervised Nunley, had met F.W., and was aware of their on-and-off-again
relationship. Officer Hammel also testified that F.W. had reported relationship issues
with Nunley, and he characterized F.W.’s relationship with Nunley as tumultuous.
Officer Hammel then testified that F.W. had called him on August 11, 2025, and
the government asked him what F.W. told him during the call. Defense counsel
objected, arguing that under Rule 32.1 of the Federal Rules of Criminal Procedure, the
court must “conduct an explicit balancing test as to whether the hearsay should be
admissible.” The court responded, “It is. I did, and it is. Overruled.” Officer Hammel
said that F.W. told him she was being discharged from the hospital because Nunley had
shot her multiple times approximately ten days earlier.
Based on F.W.’s statements, Officer Hammel testified that he retrieved a police
report from the East St. Louis Police Department, which stated that two victims, F.W.
and K.J., had been shot while sitting in the driver and front passenger seats of F.W.’s
car. The victims then drove themselves to the hospital.
Nunley objected to the admission of the victims’ medical records based on
Rule 32.1. The court summarily overruled the objection, then asked whether the
government was seeking to admit the police report. When Nunley objected, again citing
Rule 32.1, the court overruled the objection, explaining that it “certainly is balancing the
reliability of law enforcement investigatory reports and the relevance of the statements
made by the alleged victim to the extent they’re corroborated by these reports.”
Officer Hammel continued testifying. He said that the police report stated that
K.J. was treated for a gunshot wound and that F.W. was treated for eight gunshot
wounds. And he testified that F.W.’s medical records included her statement that her
“baby daddy” shot her, and that K.J.’s medical records included his statement that he
was sitting in F.W.’s parked car when his “girlfriend’s baby daddy” pulled up next to
the car and shot at them.
On cross-examination, Officer Hammel admitted that he had no personal
knowledge of the shooting and that the information he received came from the police
report, medical records, and his conversation with F.W. He also testified that, according
to the police report, two other passengers in F.W.’s car were unharmed and had
identified F.W.’s “baby daddy” as the shooter.

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The court found Nunley guilty of the violations related to the shooting. The court
acknowledged that Officer Hammel was reliable and that, although his testimony was
hearsay, it was corroborated by the police report.
The court then sentenced Nunley. It considered that Nunley’s drug use
(marijuana and alcohol) implicated the need to deter him from future criminal conduct
and that removing his location monitoring equipment suggested his intention to
abscond. “[M]ore troubling,” the court concluded, was the shooting, a serious and
dangerous crime that posed a risk to the public. The court imposed the statutory
maximum term of imprisonment, which, the court said, was “unfortunately” only 24
months. The court also imposed 12 months’ supervised release.
On appeal, Nunley contends that the district court violated Rule 32.1(b)(2)(C)
and committed reversible error by admitting hearsay without considering his interest in
confronting witnesses before revoking his supervised release.2 Specifically, he
challenges the court’s decisions permitting Officer Hammel to testify about the shooting
relying solely on hearsay from F.W., embedded in medical records, and a police report.
We have not decided 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 interest-of-justice balancing test under Rule 32.1(b)(2)(C). See United States v.
Falls, 960 F.3d 442, 445 (7th Cir. 2020) (citing United States v. Moslavac, 779 F.3d 661, 663
(7th Cir. 2015)). But under either standard, the district court’s decision to admit hearsay
testimony without a Rule 32.1(b)(2)(C) balancing test was an error. See United States v.
Jordan, 742 F.3d 276, 280 (7th Cir. 2014).
The Federal Rules of Evidence and the “full panoply” of rights afforded to
criminal defendants in the Sixth Amendment generally do not apply in revocation
hearings. See United States v. Kelley, 446 F.3d 688, 691 (7th Cir. 2006) (quoting Morrissey
v. Brewer, 408 U.S. 471, 480 (1972)); Falls, 960 F.3d at 445. But supervisees retain a limited
due process right to confront witnesses, Kelley, 446 F.3d at 690–91, and
2 We note that Nunley’s brief does not comply with Rule 28(a)(7) of the Federal
Rules of Appellate Procedure, which requires his brief to “contain, under [an] appropriate
heading[] and in the order indicated … a summary of the argument,” consisting of “a
succinct, clear, and accurate statement of the arguments made in the body of the brief” that
does not “merely repeat the argument headings.” Fed. R. App. P. 28(a)(7). We do not read
Rule 28(a) as permitting the combination of numbered subsections (1) though (10), and we
remind all parties to comply with this rule in the future.

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Rule 32.1(b)(2)(C) protects the right 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)(C). When a district court is considering whether to admit hearsay
evidence at a revocation hearing, Rule 32.1(b)(2)(C)’s “interest of justice” provision
requires the court to explicitly “balance the defendant’s constitutional interest in
confrontation and cross-examination against the government’s stated reasons for
denying them.” Falls, 960 F.3d at 445 (citation modified). A court’s implicit balancing of
these interests “runs counter to the clear mandate of Jordan.” Moslavac, 779 F.3d at 664.
The district court did not conduct the required balancing test before allowing
Officer Hammel to testify about the statements F.W. made to him about the shooting.
The court never asked the government why F.W. could not testify. It did not, therefore,
consider any reasons for denying Nunley’s interest in confronting her. The court also
summarily overruled Nunley’s objection to the admission of F.W.’s and K.J.’s medical
records. This was error. See Jordan, 742 F.3d at 280.
When the court addressed Nunley’s objection to the admission of the police
report, it improperly balanced the “reliability of law enforcement investigatory reports
and the relevance of [F.W.’s] statements,” without considering Nunley’s interest in
cross-examination or confrontation. But the district court’s finding that the police report
was reliable is, alone, not sufficient to support its admission under Rule 32.1(b)(2)(C).
See Jordan, 742 F.3d at 280.
The government offers two counterarguments, but we are not persuaded. First,
the government contends that the court was not required to ask why F.W. was not
testifying because it already told the court about two ongoing criminal investigations
related to the shooting. The government hypothesizes that if F.W. and K.J. had testified,
it would have been forced to disclose the secret contents of ongoing grand jury
proceedings before the investigation was complete. But the suggestion that the court
may have implicitly considered this fact does not satisfy the requirement to conduct
explicit balancing. Moslavac, 779 F.3d at 664. Further, the government never mentioned
grand jury secrecy at the hearing, and the court did not mention any ongoing
investigation when it overruled Nunley’s objections.
The government also argues that the medical records, including F.W.’s statement
that Nunley shot her, are not hearsay. The government says that F.W.’s medical records
are admissible as business records, Fed. R. Evid. 803(6), and F.W.’s statement embedded
therein is admissible because it was made for the purpose of medical treatment and

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described the cause of her wounds, id. 803(4). But both the records and F.W.’s statement
are hearsay, see id. 801(c), and an exception to the rule against hearsay does not mean
the underlying statement wasn’t hearsay, see id. 801(d) (defining statements that are not
hearsay); id. 805 (embedded hearsay must conform to an exception). Even if the medical
records are admissible, Rule 803(4) “does not exclude from the hearsay rule statements
relating to fault which are not relevant to diagnosis or treatment.” Cook v. Hoppin,
783 F.2d 684, 690 (7th Cir. 1986). F.W.’s statement identifying Nunley as the shooter, as
distinct from her statements about the nature of her injuries or how she sustained them,
does not satisfy Rule 803(4)’s exception.
We also disagree with the government’s back-up argument that even if the court
did not explicitly balance the interests of the parties under Rule 32.1(b)(2)(C), the error
was harmless because the court would have imposed the same sentence. See Moslavac,
779 F.3d at 665. The government insists that Nunley “admitted to two pages worth of”
violations, including several Grade B and C violations, and faced a policy-statement
range of 18 to 24 months even without violations related to the shooting. See U.S.S.G.
§ 7B1.4. But the Grade A violation for aggravated battery increased the range to 30 to
37 months. See id. And the district court gave significant weight to the shooting when
sentencing Nunley. The court described it as “more troubling” than the other violations
and expressed that it was unfortunate that the statutory maximum term was capped at
24 months. On remand, the district judge may very well impose the same sentence. But
because we cannot be sure that it would have done so without violations relating to the
shooting, the correct course is to remand.
We therefore VACATE the district court’s judgment and REMAND the case for
further proceedings consistent with this order.

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