USA v. Dennis Wayne Moslavac

Filing

Filed opinion of the court by Judge Flaum. The judgment of the district court is VACATED and the case is REMANDED for a resentencing hearing consistent with this opinion. Joel M. Flaum, Circuit Judge; Ann Claire Williams, Circuit Judge and John Daniel Tinder, Circuit Judge. [6642149-1] [6642149] [14-2866]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2866
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DENNIS MOSLAVAC,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 02-CR-75 — Rudolph T. Randa, Judge.

____________________
ARGUED JANUARY 6, 2015 — DECIDED FEBRUARY, 18, 2015
____________________
Before FLAUM, WILLIAMS, and TINDER, Circuit Judges.
FLAUM, Circuit Judge. In July 2014, Dennis Moslavac was
three months shy of completing a four year term of supervised release when he was arrested and accused of violating
the terms of that release. Among other alleged violations, the
government accused Moslavac of committing a battery
against a female victim, Jina Kizivat. Kizivat’s nine-year-old
daughter, D.S., allegedly witnessed the battery.

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At Moslavac’s parole revocation hearing, the government
called Walter Sturgeon to testify about the alleged battery of
Kizivat. Sturgeon is D.S.’s father and Kizivat’s ex-husband;
he was not present during the alleged battery. Sturgeon relayed only what D.S. told him about the incident, and the
government introduced a voicemail that D.S. left for Sturgeon on the day of the alleged battery. Neither Kizivat nor
D.S. testified at Moslavac’s revocation hearing. Over
Moslavac’s objection, the district court allowed D.S.’s statements into evidence on the theory that they were excited utterances, but did not explicitly balance the interests of the
parties under Federal Rule of Criminal Procedure
32.1(b)(2)(C). For that reason, we now reverse.
I. Background
Dennis Moslavac was convicted of possessing cocaine
with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1), and sentenced to 105 months imprisonment, followed by four years of supervised release. Moslavac’s term
of supervised release was set to end on October 7, 2014. In
July 2014, Moslavac was arrested based on allegations that
he violated the terms of his supervised release. The district
court held a revocation hearing on August 14, 2014 to determine what sentence—if any—Moslavac should receive for
the alleged violations. The government claimed that
Moslavac violated the terms of his supervised release in seven ways: (1) the alleged battery of female victim, Jina Kizivat; (2) the alleged battery of female victim, Joann Werner;
(3) having a positive urine test for drugs; (4) failing to report
for drug testing; (5) associating with persons using marijuana; (6) failing to give his parole officer advance notice of a
change in residence; and (7) failing to report to an appoint-

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ment with his parole officer. Moslavac contested the first
two battery allegations, but did not dispute the remaining
claims.
At Moslavac’s revocation hearing, the government presented evidence of both batteries. Only the evidence relating
to the alleged battery of Kizivat is at issue in this appeal. As
evidence of the Kizivat battery, the government relied on the
“testimony” of D.S.—Kizivat’s nine-year-old daughter who
allegedly witnessed the battery. Specifically, the government
called Walter Sturgeon—D.S.’s father and Kizivat’s exhusband—as its only witness. Sturgeon testified that he
dropped D.S. off with Kizivat on the morning of the alleged
incident, and that he received several phone calls from D.S.
later in the day telling him that Moslavac hit Kizivat’s foot
with a metal object after he became angry about a phone call
Kizivat received. D.S. apparently conveyed to Sturgeon that
the incident was all her fault because she told Moslavac
about the phone call. The next day, Sturgeon realized that
D.S. left a voicemail message on his phone when she was attempting to reach him. The government played D.S.’s
voicemail during the revocation hearing in conjunction with
Sturgeon’s testimony.
The district court determined that D.S.’s statements—as
relayed by Sturgeon and by D.S.’s voicemail—were excited
utterances, and therefore were admissible hearsay. See Fed.
R. Evid. 803(2). The district court did not, however, engage
in an interest balancing analysis under Federal Rule of Criminal Procedure 32.1(b)(2)(C). The district judge stated that he
found D.S.’s “testimony” to be highly credible, completely
convincing, and that the court would give it “great weight.”
Supervised Release Revocation Hr’g Tr. 76, Aug. 14, 2014.

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Because all of Moslavac’s parole violations were “Grade C”
violations, and because he had a criminal history category of
IV, the advisory revocation sentencing guidelines suggested
a sentence of between six and twelve months imprisonment.
The government requested a sentence between nine and
twelve months. The district court subsequently sentenced
Moslavac to nine months of imprisonment, followed by an
additional two years of supervised release.
II. Discussion
There is no consensus among our sister circuits about
what standard of review to apply when reviewing a district
court’s admission of hearsay testimony at a parole revocation hearing without conducting an explicit balancing test
under Rule 32.1(b)(2)(C) . Some circuits apply an abuse of
discretion standard, see United States v. Doswell, 670 F.3d 526,
533 (4th Cir. 2012), United States v. Martin, 382 F.3d 840, 844
(8th Cir. 2004), while others apply de novo review. See United States v. Lloyd, 566 F.3d 341, 344 (3d Cir. 2009). We conclude that the standard of review does not affect our analysis
in this case, as the district court’s admission of the hearsay
testimony—without conducting a Rule 32.1(b)(2)(C) balancing test—runs directly afoul of our precedent in United States
v. Jordan, 742 F.3d 280 (7th Cir. 2014); the district court erred
under either standard of review. In any event, since the parties did not fully brief the issue, we reserve addressing it in
this case.
A. The district court erred in not conducting an explicit
balancing test under Rule 32.1(b)(2)(C).
Federal Rule of Criminal Procedure 32.1(b)(2)(C) states
that at a parole revocation hearing, the defendant is owed

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“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
United States v. Jordan, we held that “Rule 32.1(b)(2)(C) requires a district court in a revocation hearing explicitly to
balance the defendant’s constitutional interest in confrontation and cross-examination against the government’s stated
reasons for denying them.” 742 F.3d at 280. Here, the government concedes that the district court did not explicitly
conduct the Rule 32.1(b)(2)(C) balancing inquiry. Rather, the
government argues that the district court implicitly weighed
these concerns by finding that D.S.’s statements were excited
utterances, and thus admissible hearsay. See Fed. R. Evid.
803(2). The government argues further that it was the district
court’s conclusion that D.S.’s statements were particularly
reliable, in addition to being admissible, which demonstrates
that the district court implicitly weighed the interests of the
parties.
In Jordan, however, we stated that “reliability cannot be
the beginning and the end of the ‘interest of justice’ analysis
under Rule 32.1(b)(2)(C), and we do not mean to imply that
finding the hearsay reliable would alone suffice to support
its admission under the rule.” Id. Furthermore, Jordan created the bright-line rule in this circuit that a district court must
explicitly balance the defendant’s interests in confrontation
against the government’s interests in not producing the relevant witness. Id. Therefore, the government’s position that
the district court implicitly considered these factors still runs
counter to the clear mandate of Jordan.

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B. The district court’s error was not harmless.
The government argues that even if the district court
erred in failing to explicitly balance the interests of the parties under Rule 32.1(b)(2)(C), that this error was harmless for
three reasons: (1) the government had compelling reasons
for not producing D.S. at the revocation hearing; (2) D.S.’s
hearsay statements were reliable; and (3) it is likely that the
district court would have issued Moslavac the same sentence
given the evidence of other parole violations presented at his
revocation hearing. We are not persuaded by any of the government’s arguments.
First, the government did not adequately discuss—nor
did the district court adequately consider—the government’s
reasons for not producing D.S. at the revocation hearing. In
Jordan, we stated that Rule 32.1(b)(2)(C) requires “a district
court in a revocation hearing explicitly to balance the defendant’s constitutional interests in confrontation and crossexamination against the government’s stated reasons for denying them.” 742 F.3d at 280 (emphasis added). The government offered no reasons for not producing D.S. during
Moslavac’s hearing, nor did the district court discuss any
potential reasons for D.S.’s absence. At oral argument on
appeal, the government argued that its reasons for not producing D.S. “should have been obvious,” encouraging us to
find the district court’s error harmless. Nothing in the wording of Rule 32.1(b)(2)(C), however, indicates that the government is owed such deference. Thus, we decline to find
that the district court’s Rule 32.1(b)(2)(C) error was harmless
simply because compelling reasons for not producing D.S.
may exist in the abstract.

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Next, the government argues that D.S.’s statements were
so reliable that even if the district court erred in admitting
them, the inherent trustworthiness of the statements rendered the error harmless. The government urges us to find
D.S.’s statements reliable—as the district court did—by focusing on the fact that D.S. claimed responsibility for the incident, thus lending more credence to her version of events.
Here, we draw further guidance from our decision in Jordan,
where we tackled the question of whether a Rule
32.1(b)(2)(C) error was harmless if the evidence ultimately
admitted was deemed sufficiently reliable on appeal. In Jordan, in finding that a police report was not sufficiently reliable, we noted that the probation officer who testified about
the report had “no independent knowledge of the events, so
his testimony merely repeated rather than corroborated the
police report.” 742 F.3d at 281. Accordingly, we concluded
that none of the evidence offered by the government “sufficiently corroborates the report’s account … to allow us to
determine on appeal that the evidence was so reliable as to
render the district court’s error harmless.” Id. Here, Sturgeon’s testimony went wholly uncorroborated at Moslavac’s
hearing, with the exception of a hysterical voicemail from
D.S. 1 As in Jordan, Sturgeon had no independent knowledge
of the alleged events, but rather repeated what his daughter
told him. Therefore, we find the teachings of Jordan applicable here, and conclude that D.S.’s uncorroborated statements—as relayed by Sturgeon—were not so clearly reliable

1

The court has listened to D.S.’s voicemail, and we agree with Moslavac
that it has negligible corroborative value, if any. It is, as Moslavac characterized it during oral argument, largely a recording of D.S. sobbing.

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as to make the district court’s error under Rule 32.1(b)(2)(C)
harmless.
Finally, the government argues that the district court’s
error was harmless because Moslavac would have received
the same sentence even if the district court had not considered D.S.’s statements. Specifically, the government argues
that the district court considered evidence of several other
Grade C violations, and that any one of these other violations would have been sufficient to warrant an advisory
guidelines range of six to twelve months.
Moslavac does not dispute this contention. However,
simply because the guidelines range would have been the
same without the Kizivat battery evidence does not mean
that Moslavac would have received his current sentence had
the evidence not been introduced. In fact, the district court
placed considerable emphasis on the Kizivat battery during
sentencing, noting,
And that’s credible evidence. So when you say
it’s an excited utterance, while we have to look
at those with caution, when it has this type of
validity in the Court’s 40 years of experience in
handling many, many, many of these cases and
having many child witnesses under these types
of circumstances testify in this manner, and
that is all testimony that gives the Court great
confidence that—when it says this is absolute
validity and should be given great weight, it is
going to give it great weight … .
Supervised Release Revocation Hr’g Tr. 76. In light of the
considerable and apparent weight that the district court gave

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to the Kizivat battery during Moslavac’s sentencing, we cannot conclude that Moslavac would have received the same
sentence notwithstanding the Kizivat incident. Thus, it was
not harmless error for the district court to overlook its obligation to perform an interests analysis pursuant to Rule
32.1(b)(2)(C).
III. Conclusion
The judgment of the district court is VACATED, and the
case is REMANDED for a re-sentencing hearing consistent
with this opinion. 2

2

Moslavac asked this court to assign his re-sentencing hearing to a different district court judge. We find no compelling reason for such a reassignment, and therefore decline to do so.