779 F.3d 661
7th Cir.2015Background
- Moslavac, nearing end of 4-year supervised release, was arrested in July 2014 for alleged violations.
- Revocation hearing held August 14, 2014; government alleged seven violations, including two batteries.
- Evidence for Kizivat battery relied on statements from D.S., Kizivat’s nine-year-old daughter, via her father Sturgeon and a voicemail left by D.S.
- District court admitted D.S.’s statements as excited utterances but did not perform explicit Rule 32.1(b)(2)(C) balancing.
- Advisory guidelines suggested 6–12 months; Moslavac was sentenced to 9 months plus 2 years of supervised release.
- Court vacates district court’s judgment and remands for a re-sentencing hearing consistent with its opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 32.1(b)(2)(C) balancing was required. | Moslavac argues district court failed to balance interests. | U.S. contends implicit balancing via excitation ut terances; no explicit balancing required. | District court erred by not explicitly balancing. |
| Whether the Rule 32.1(b)(2)(C) error was harmless. | Error not harmless given weight of DS statements. | Other violations justify same sentence; reliability would render error harmless. | Error not harmless; remand warranted. |
Key Cases Cited
- United States v. Jordan, 742 F.3d 280 (7th Cir. 2014) (requires explicit balancing under Rule 32.1(b)(2)(C))
- United States v. Doswell, 670 F.3d 526 (4th Cir. 2012) (different standards of review for admission of hearsay at revocation hearing)
- United States v. Martin, 382 F.3d 840 (8th Cir. 2004) (discusses evidentiary standards on hearsay at revocation hearings)
- United States v. Lloyd, 566 F.3d 341 (3d Cir. 2009) (discusses standard of review for evidentiary rulings in revocation context)