United States of America v. David Perez

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-3282
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
DAVID P EREZ ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:12-cr-00859-1 — Steven C. Seeger, Judge.
____________________
A RGUED J ANUARY 25, 2024 — DECIDED A PRIL 24, 2024
____________________
Before HAMILTON , BRENNAN , and K IRSCH , Circuit Judges.
HAMILTON , Circuit Judge. While appellant David Perez was
attending a public event, a police surveillance camera rec-
orded him holding what appeared to be a firearm. His condi-
tions of federal supervised release, not to mention 18 U.S.C.
§ 922(g)(1), made it unlawful for Perez to possess a firearm. At
a supervised release revocation hearing, the government sub-
mitted as evidence a police surveillance video that the gov-
ernment argued showed Perez holding a gun. The district

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2 No. 22-3282
judge asked Perez’s probation officer to narrate the video as it
was played during the hearing.
Perez objected to the probation officer’s narration of the
video and asked to cross-examine her. The district court de-
nied that request. The judge asserted that the probation officer
was not a witness and explained that he wanted the narration
only to have a record of the video’s contents for the hearing
transcript. The judge did, however, invite defense counsel to
suggest questions that the judge himself could pose to the
probation officer. Defense counsel did not take up that offer.
In this appeal, Perez argues that the probation officer was
in substance an adverse witness and that the district court vi-
olated Federal Rule of Criminal Procedure 32.1(b)(2)(C) and
his Fifth Amendment right to due process by refusing to allow
counsel to cross-examine her. Perez also challenges the dis-
trict court’s ultimate finding that he possessed a firearm and
the resulting revocation of his supervised release.
The probation officer’s narration of the video was clearly
adverse to Perez. Under these unusual circumstances, his
counsel should have had the opportunity to cross-examine
the probation officer. In the end, however, we think the error
was harmless. The record does not show that the district court
relied upon the probation officer’s testimony on any disputed
issue in finding that Perez possessed a firearm in violation of
the terms of his supervised release. The video provided ample
evidence that Perez possessed a firearm, and the court did not
abuse its discretion in revoking his supervised release. We af-
firm the judgment of the district court, while counseling dis-
trict courts against using this well-intentioned procedural
shortcut in revocation hearings.

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No. 22-3282 3
I. Factual and Procedural History
In November 2013, David Perez pled guilty to one count
of possessing cocaine with intent to distribute in violation of
21 U.S.C. § 841(a)(1). A federal court sentenced him to 120
months in prison followed by six years of supervised release.
Perez began his term of supervised release on July 6, 2020.
One condition of his supervised release was the nearly uni-
versal condition that he not possess a firearm, ammunition,
destructive device, or other dangerous weapon. See 18 U.S.C.
§ 3583(d), citing 18 U.S.C. § 3563(b)(8) (discretionary condi-
tions of probation).
On October 13, 2022, the United States Probation Office
submitted to the district court a supervised release violation
report alleging that Perez had violated the prohibition on
possessing a firearm. The report cited a Chicago Police
Department report that described police contact with Perez
on September 1, 2022 when officers were monitoring a gang-
related memorial. They saw Perez display what appeared to
be a handgun. Officers tried to approach Perez, but he walked
away briskly and disappeared into a home despite being
ordered to stop. The police eventually apprehended Perez at
the back of the home. By that time, though, he did not have in
his possession the item that had appeared to be a firearm.
Police did not arrest Perez. Also included in the report were
statements Perez made regarding the incident. Perez admitted
that he had seen police officers the day of the memorial,
panicked, and then entered a friend’s home. Perez denied
possessing a firearm, though.
The district court held a supervised release revocation
hearing on October 26, 2022. Present at the hearing were the
government, Perez and his counsel, and Perez’s probation

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4 No. 22-3282
officer. No firearm had been recovered, but the government
offered several exhibits as evidence, including: (1) a video re-
cording from a police surveillance camera that showed Perez
brandishing what appeared to be a firearm; (2) screenshots
from that police video recording; and (3) screenshots from
Chicago Police Department body-worn camera recordings
that showed Perez’s interactions with police shortly after he
was observed brandishing the apparent firearm. Neither
party presented any witnesses.
At the revocation hearing, the district judge watched the
surveillance video. The judge also asked the probation officer
to describe for the record what was happening in the video.
At various times while the video was playing, the judge asked
that the video be stopped and then posed questions to the pro-
bation officer. First, the judge asked the probation officer
whether Perez was depicted in the video, and if so, how she
knew it was Perez. The probation officer identified Perez as
one of the people in the video. She explained that she had su-
pervised Perez for a long time and was familiar with his ap-
pearance and mannerisms.
The judge then told the probation officer to continue to de-
scribe what she was seeing in the video. The officer explained
that the video showed Perez “removing a firearm from his
shorts and brandishing the firearm in multiple directions
while slowly walking towards another vehicle.” Perez’s attor-
ney objected to this description, saying that whether the ob-
ject was actually a firearm remained a contested fact that the
court had not yet decided. In response, the judge explained
that the probation officer was merely describing what was be-
ing shown in the video for the hearing transcript record be-
cause the video did not have audio. Perez’s attorney argued

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No. 22-3282 5
that it was misleading for the probation officer to describe the
object as a firearm even if just for the hearing transcript rec-
ord. In response, the judge asked the probation officer a series
of questions about the object Perez was holding in the video.
First, the judge asked the probation officer what the object
appeared like to her. She said it looked like a firearm. The
judge asked why she thought so. She answered that it was
based on her training and expertise in handling firearms in
her role as a probation officer. Finally, the judge restarted the
video from the beginning. The judge told the probation officer
to ask to pause the video anytime she saw the object Perez was
holding so that she could describe the object and why she be-
lieved it was a firearm. She did so several times and described
aspects of the object, including what looked to her like the
barrel of a firearm.
Before the parties presented their arguments to the district
court, Perez’s attorney asked for an opportunity to ask ques-
tions of the probation officer, given her exchanges with the
court. The judge told Perez’s attorney instead to address any
questions to the judge because the probation officer was not
“taking the stand today.” The judge explained that he had
walked through the video with the probation officer on the
record “simply because I couldn’t play the video and have it
on the record about what people were seeing and I did care to
get [the probation officer’s] perspective on who the person
was.” The judge then offered to ask the probation officer fol-
low-up questions suggested by defense counsel. Such ques-
tioning by the court is ordinarily not thought to be an ade-
quate substitute for confrontation and cross-examination by
the party or his counsel. Defense counsel did not take up the
court’s offer, choosing instead to make arguments directly to

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6 No. 22-3282
the judge about the probation officer’s credibility and the sub-
stance of her testimony. At the conclusion of the October 26,
2022 hearing, the judge ordered Perez detained and continued
the revocation hearing to a later date.
When the hearing resumed on December 1, 2022, the judge
found by a preponderance of the evidence that Perez pos-
sessed a firearm in violation of the conditions of his super-
vised release. The court addressed two questions: whether Pe-
rez was depicted in the video and whether the object he had
been holding was a gun. As to identity, the judge explained
that he compared the person in the video, particularly his fa-
cial features and tattoos, to Perez, who was present in the
courtroom. They were clearly the same person. The judge also
said that the probation officer’s identification of Perez as the
person in the video corroborated the judge’s own finding.
On the second question, the judge explained at some
length why he believed the object held by Perez was a firearm.
The judge explained that the videos clearly showed an object
that looked like a firearm and that Perez had handled the ob-
ject consistently with the way a person would handle a fire-
arm. The judge added that Perez, by fleeing from law enforce-
ment and discarding the object, acted like a person trying to
hide contraband from law enforcement. At no point did the
judge cite the probation officer’s in-court statements to sup-
port his finding that Perez possessed a firearm.
On December 19, 2022, the district court held a sentencing
hearing for the supervised release violation. After hearing
from the parties and correctly calculating the advisory guide-
line range, the court sentenced Perez to a within-guideline
sentence of 26 months in prison followed by another three
years of supervised release. This appeal followed.

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No. 22-3282 7
II. Standard of Review
A district court may revoke a term of supervised release if
the court finds by a preponderance of the evidence that the
defendant violated a condition of supervised release.
18 U.S.C. § 3583(e)(3). “In general, we review the revocation
of supervised release for abuse of discretion, and we review
the district court’s factual findings supporting that revocation
for clear error.” United States v. Patlan, 31 F.4th 552, 556 (7th
Cir. 2022). While we review decisions to revoke supervised
release for abuse of discretion, we still review constitutional
arguments de novo. United States v. Mosley, 759 F.3d 664, 667
(7th Cir. 2014).
III. Analysis
A. Confrontation of Adverse Witness
The Sixth Amendment right to confront adverse witnesses
in a criminal trial does not apply in proceedings to revoke su-
pervised release, but a supervisee has some due process rights
that may include confronting adverse witnesses, depending
on the circumstances. See United States v. Kelley, 446 F.3d 688,
690‒91 (7th Cir. 2006); see generally Morrissey v. Brewer, 408
U.S. 471, 488‒89 (1972) (for parole revocation, “the minimum
requirements of due process … include … the right to con-
front and cross-examine adverse witnesses (unless the hear-
ing officer specifically finds good cause for not allowing con-
frontation) ….”). The rule announced by the Supreme Court
in Morrissey has been codified in Federal Rule of Criminal Pro-
cedure 32.1(b)(2)(C).
We understand and appreciate the district court’s desire to
have a verbal description of the video evidence in the written
record of the hearing. Despite those good intentions,

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8 No. 22-3282
however, and whether she was put under oath or not, it is
clear to us that the probation officer was acting as a witness
and that her statements were adverse to Perez. In particular,
the probation officer described the object held by Perez in the
video as a firearm—a conclusion she explained was grounded
in her training and experience with firearms. Accordingly, un-
der both Morrissey and Rule 32.1(b)(2)(C), Perez had a right to
cross-examine the probation officer at the revocation hearing
unless the district court determined that the interest of justice
did not require the witness to appear. See Morrissey, 408 U.S.
at 488–89.
The district court made no express interest-of-justice find-
ing against allowing the probation officer to be confronted
and cross-examined. Nor could such a finding have been sup-
ported. The probation officer was already present at the hear-
ing and was readily available for cross-examination. Cf.
United States v. Jordan, 742 F.3d 276, 279 (7th Cir. 2014) (“When
liberty is at stake, the limited right to confront and cross-ex-
amine adverse witnesses should not be denied without a
strong reason.… For example, where live testimony would be
difficult or burdensome to obtain, confrontation need not be
face-to-face.”). The district court erred in denying Perez the
opportunity to cross-examine the probation officer.1
B. Harmless Error
That error was harmless, though. The question is whether
we are confident the district court would have still found a
1 Because the probation officer offered only her own observations and
not any hearsay, the special rules for using hearsay at a revocation hearing
did not come into play here. See, e.g., United States v. Falls, 960 F.3d 442,
445 (7th Cir. 2020), distinguishing United States v. Jordan, 742 F.3d at 280.

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No. 22-3282 9
violation of Perez’s conditions of supervised release even ab-
sent the probation officer’s testimony. See Mosley, 759 F.3d at
669 (erroneous admission of evidence at supervised release
revocation hearing may still be harmless where violation
would have been found even without the improper evidence).
The issue of revocation depended on two factual issues: first,
was it Perez in the video, and second, was the object he pos-
sessed a firearm? The district court addressed those in se-
quence.
The only aspect of the probation officer’s testimony the
district judge relied upon was her identification of Perez as
the man in the video based on her familiarity with him. The
judge relied on this statement by the probation officer as cor-
roboration of what he said was his own independent identifi-
cation based on the video and his own observation of Perez in
the courtroom. Also, Perez’s counsel explained that she
would not present any evidence to contest whether it was Pe-
rez in the video. Cross-examination would not have under-
mined the finding that it was Perez in the video.
As for whether the object Perez had been holding was a
firearm, the district judge never referred to the probation of-
ficer’s testimony. He explained that his finding was based on
his own careful review of the videos and inferences drawn
from them. We take the judge at his word. In addition, in re-
sponse to the court’s invitation, the defense did not identify
any potentially fruitful lines of cross-examination at the revo-
cation hearing. Nor has the defense done so on appeal. Be-
cause the judge did not rely on the probation officer’s narra-
tive on the issue of possession, we conclude the judge would
have found a violation of Perez’s supervised release even

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10 No. 22-3282
without the probation officer’s testimony. The erroneous de-
nial of cross-examination was harmless.
C. Possession of the Firearm
Perez also brings a substantive challenge, arguing that the
district court erred by finding that he possessed a firearm and
revoking his supervised release. The videos submitted as evi-
dence by the government clearly show Perez holding an ob-
ject that looks like a firearm, as the court observed. The court’s
finding was not clearly erroneous. The court explained that
the videos show Perez fleeing from police and entering a res-
idence. When the police apprehended Perez at the back of the
residence a few minutes later, he no longer had the object that
looked like a firearm. This series of events, clearly established
by the video evidence, is consistent with possessing and hid-
ing contraband. We agree with the district court that Perez’s
behavior in the video—walking away from police and quickly
disposing of the object—further supports an inference that the
object was a real firearm that put Perez in violation of his
terms of supervised release. The district court’s finding that
the object Perez is seen holding in the police videos was a real
firearm was not clearly erroneous. Accordingly, the district
court did not abuse its discretion in revoking Perez’s super-
vised release. The judgment of the district court is
AFFIRMED.

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