In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1926
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C HRISTOPHER R. T HOMPSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 3:00-cr-50002-1—Philip G. Reinhard, Judge.
A RGUED F EBRUARY 9, 2010—D ECIDED M ARCH 19, 2010
Before P OSNER, R OVNER, and S YKES, Circuit Judges.
S YKES, Circuit Judge. Christopher Thompson violated
the conditions of his supervised release in late Feb-
ruary 2009, and the district court held a revocation
hearing in March of that year. Rule 32.1(b)(2) of the
Federal Rules of Criminal Procedure establishes the pro-
cedures that apply in a supervised-release revocation
hearing, and the judge followed these procedures—with
one exception. Although Thompson, his attorney, and
2 No. 09-1926
the prosecutor were present in the federal courthouse
in Rockford, Illinois, the judge participated via video-
conference from Key West, Florida. Thompson’s appeal
requires us to confront a question of first impres-
sion for federal courts of appeals: whether holding a
supervised-release revocation hearing by videocon-
ference violates Rule 32.1(b)(2). We hold that it does.
Accordingly, we vacate Thompson’s term of reimprison-
ment.
I. Background
In November and December 1999, Christopher Thomp-
son robbed two banks near Rockford, Illinois. He pleaded
guilty and was sentenced to 102 months’ imprisonment
and 5 years’ supervised release. After serving his prison
term, he was released on supervision; within months he
was caught using illegal drugs. Supervised release was
revoked and he was returned to prison for six months.
Not long after completing this brief term of reimprison-
ment, Thompson was arrested again—this time for
driving under the influence of alcohol, operating an
uninsured motor vehicle, driving with a suspended
license, speeding, and improper lane usage. He also
failed to notify his probation officer of his arrest within
72 hours, as required by his conditions of release. The
government again sought to revoke supervised release
and return Thompson to prison.
On March 18, 2009, the district court held an initial
hearing, appointed a federal defender to represent Thomp-
son, and scheduled a revocation hearing for March 25.
No. 09-1926 3
Although all parties were present in the Rockford court-
house for this initial hearing, the judge participated by
videoconference from Key West, Florida. At the revoca-
tion hearing a week later, the judge again appeared
by videoconference from Key West; everyone else was
assembled in the judge’s courtroom in Rockford. Thomp-
son’s counsel objected, contending that this procedure
violated Rule 32.1. The district court overruled the ob-
jection, commenting:
The court will state for the record that, of course,
everybody is in the court in Rockford except for me.
I’m in the courthouse in Key West, Florida. We’re
doing this by video conferencing. I can both see and
hear everybody in the courthouse in Rockford and can
comprehend everything that has transpired.
The court believes that video conferencing for a super-
vised release hearing meets the standards of due
process, that there’s no case law that would prohibit it
nor any rule or statute that would prohibit it under
the circumstances of the supervised release. . . . [I]t is
the court’s ruling that we can proceed, and I will
overrule the defendant’s objection.1
Thompson admitted the allegations except for the drunk-
driving charge, and the district court heard statements
1
The record does not indicate whether the videoconferencing
technology permitted the individuals in the Rockford court-
house to see the judge or whether those individuals could only
hear the judge. For purposes of discussion, we assume that
all parties could see and hear one another.
4 No. 09-1926
from counsel for both parties and from Thompson himself.
Although the probation officer recommended eight
months’ reimprisonment, the judge revoked supervised
release and imposed a term of twelve months in prison and
one year of supervised release. Thompson appealed,
challenging the judge’s decision to conduct the revoca-
tion hearing by videoconference.
II. Discussion
The issue on appeal—whether the use of video-
conferencing to conduct a supervised-release revocation
hearing violates the Federal Rules of Criminal Procedure
or alternatively, the Fifth Amendment’s Due Process
Clause—is a question of law that we review de novo.2
United States v. Clark, 538 F.3d 803, 808 (7th Cir. 2008).
Rule 32.1 governs supervised-release revocation hearings
and provides in relevant part:
Unless waived by the person, the court must hold
the revocation hearing within a reasonable time in
the district having jurisdiction. The person is entitled
to . . . an opportunity to appear, present evidence,
and question any adverse witness unless the court
2
The government confesses error, conceding that holding
Thompson’s revocation hearing by videoconference violated
Rule 32.1; its brief does not address Thompson’s alternative due-
process argument. Because of this concession, we appointed
an amicus to defend the district court’s procedure. We thank
Barry Levenstam, Andrew Weissmann, and Sharmila Sohoni
of Jenner & Block for ably discharging this responsibility.
No. 09-1926 5
determines that the interest of justice does not
require the witness to appear[,] . . . and an opportunity
to make a statement and present any information
in mitigation.
F ED. R. C RIM. P. 32.1(b)(2). Rather than commencing his
analysis with the language of this rule, Thompson looks
first to Rule 43, which provides that a defendant “must
be present” at “sentencing.” FED. R. C RIM. P. 43(a)(3).3
Three circuits have held that Rule 43’s “presence” require-
ment commands that all parties and the judge be physi-
cally present in the same courtroom for sentencing. See
United States v. Torres-Palma, 290 F.3d 1244, 1247-48 (10th
Cir. 2002) (remanding for resentencing where judge
appeared via videoconference); United States v. Lawrence,
248 F.3d 300, 305 (4th Cir. 2001) (vacating sentence
where defendant appeared via videoconference); United
States v. Navarro, 169 F.3d 228, 238-39 (5th Cir. 1999)
(vacating sentence where judge appeared via video-
conference).
Thompson argues that a supervised-release revocation
hearing at which the judge may impose a prison
term is indistinguishable from an initial sentencing pro-
ceeding. Accordingly, he reasons, Rule 43 applies to
revocation hearings, and because Rule 43 requires the
defendant’s physical presence before the judge, the
district court was prohibited from conducting the re-
vocation hearing by videoconference. This argument
3
The government also bases its argument in part on the
application of Rule 43 to revocation proceedings.
6 No. 09-1926
misses the mark. The problem is not with Thompson’s
contention that Rule 43 requires the physical presence of
all participants in the same courtroom; he may well be
right that it does, although we need not decide today
whether to join the consensus among the circuits on this
point. Instead, the flaw in Thompson’s argument is its
assumption that Rule 43 applies to revocation hearings.
By its own terms, Rule 43 governs only “(1) the initial
appearance, the initial arraignment, and the plea; (2) every
trial stage, including jury impanelment and the return of
the verdict; and (3) sentencing.” If Rule 43 were meant to
apply to revocation hearings, it would say so explicitly.
Indeed, the Advisory Committee Notes to Rule 43
explain that the rule does not apply to “hearings on
motions made . . . after trial.” FED. R. C RIM. P. 43 advisory
committee’s note 1. A supervised-release revocation
hearing is obviously a posttrial proceeding.
Nor, as Thompson asserts, is the revocation of supervised
release the precise equivalent of a sentencing hearing; the
rights at stake in each proceeding are distinguishable. The
Supreme Court long ago noted that “[r]evocation deprives
an individual, not of the absolute liberty to which every
citizen is entitled, but only of the conditional liberty
properly dependent on observance of special parole
restrictions.” Morrissey v. Brewer, 408 U.S. 471, 480 (1972).
Because a revocation hearing is not part of a criminal
prosecution, a defendant at a revocation hearing is not
owed the “full panoply of rights” due a defendant at
sentencing. Id. Although the revocation hearing is some-
times referred to colloquially as a “resentencing,” the
controlling statute does not use that term; instead, 18
No. 09-1926 7
U.S.C. § 3583(e)(3) authorizes the court, once a violation
of supervised release is proven, to “revoke a term of
supervised release, and require the defendant to serve in
prison all or part of the term of supervised release autho-
rized by statute.” By its terms—and based on the well-
established difference in the procedural scope of these
proceedings—Rule 43 is inapplicable to supervised-
release revocation hearings.
Thompson also offers an alternative argument
grounded in the text of Rule 32.1—the place where his
analysis should have started. Recall that Rule 32.1(b)(2)
provides that before revoking a defendant’s super-
vised release, the court must give the defendant “an
opportunity to appear” for purposes of presenting evi-
dence, questioning witnesses, arguing in mitigation, and
making a statement to the court. Thompson argues that
the “appearance” mandated by Rule 32.1(b)(2) requires
the defendant and the judge to be physically present in
the same courtroom. His contention is correct; this
reading of the rule is consistent with the meaning of
“appear” as used in this context as well as the tradi-
tional understanding of an accused person’s “appearance”
before a court empowered to deprive him of his liberty.
More specifically, Rule 32.1(b)(2) provides that prior
to revocation of supervised release, a defendant is
“entitled to” an “opportunity to appear,” to “present
evidence[] and question any adverse witness,” and
to “make a statement and present any information in
mitigation.” FED. R. C RIM. P. 32.1(b)(2) (emphasis added).
As used in this context, the word “appear” means “to
8 No. 09-1926
come formally before an authoritative body.” W EBSTER’S
T HIRD N EW INTERNATIONAL D ICTIONARY 103 (1981). Black’s
Law Dictionary further defines “appearance” as “[a] coming
into court as a party or interested person, or as a lawyer
on behalf of a party or interested person.” B LACK’S
L AW D ICTIONARY 113 (9th ed. 2009). These definitions
suggest that the “appearance” required by this rule
occurs only if the defendant comes into the physical—not
virtual—presence of the judge.
Moreover, a defendant’s “opportunity to appear” under
this rule exists not in isolation but in conjunction with
his right to “present evidence,” to “question any adverse
witness,” and to “make a statement and present any
information in mitigation.” A defendant’s appearance
in court is the means by which he effectuates the other
rights conferred by the rule; appearing before the court
allows the defendant to plead his case personally to the
judge who will decide whether to revoke supervised
release and return him to prison. This is particularly
true in light of the defendant’s right to “make a state-
ment and present any information in mitigation.” FED. R.
C RIM. P. 32.1(b)(2)(E). This subsection guarantees a right
of allocution before revocation; we have held that the
right of allocution at a revocation hearing is essentially
the same as the right of allocution at sentencing
guaranteed by Rule 32(i)(4)(A)(ii). See United States v. Pitre,
504 F.3d 657, 662 (7th Cir. 2007) (holding that the right
to allocution in Rule 32.1 “is not substantively different
than the right [to allocution] created by Rule 32”). This
common-law right, codified in both rules, ensures that
the defendant has the opportunity to “personally
No. 09-1926 9
address the court” before punishment is imposed. United
States v. Barnes, 948 F.2d 325, 328 (7th Cir. 1991). This face-
to-face meeting between the defendant and the judge
permits the judge to experience “those impressions
gleaned through . . . any personal confrontation in
which one attempts to assess the credibility or to
evaluate the true moral fiber of another.” Del Piano v.
United States, 575 F.2d 1066, 1069 (3d Cir. 1978) (discussing
allocution); see also Green v. United States, 365 U.S. 301, 304
(1961) (“The most persuasive counsel may not be able
to speak for a defendant as the defendant might, with
halting eloquence, speak for himself.”). Without this
personal interaction between the judge and the defen-
dant—which videoconferencing cannot fully replicate—the
force of the other rights guaranteed by Rule 32.1(b)(2)
is diminished.
The Sixth Circuit’s recent decision in Terrell v. United
States, 564 F.3d 442 (6th Cir. 2009), supports this interpreta-
tion of Rule 32.1(b)(2)’s “opportunity to appear.” Terrell
involved a hearing before the U.S. Parole Commission;
the issue was whether the use of videoconferencing
satisfied 18 U.S.C. § 4208(e)’s requirement that “[t]he
prisoner shall be allowed to appear and testify on his
behalf at the parole determination proceeding.” The Sixth
Circuit held that “to appear mean[s] to be physically
present.” Terrell, 564 F.3d at 451. Although the question
in Terrell was whether the defendant’s appearance via
videoconference violated the parole statute, the result
must be the same when it is the judge whose presence is
virtual. The important point is that the form and sub-
stantive quality of the hearing is altered when a key
10 No. 09-1926
participant is absent from the hearing room, even if he is
participating by virtue of a cable or satellite link. This
is particularly true when the one who is absent has the
power to impose a prison term.
Our reading of Rule 32.1(b)(2) also comports with
the traditional legal understanding of a person’s “appear-
ance” before a court when his liberty is at stake in the pro-
ceeding; in this situation, to “appear” has generally
been understood to require the defendant to come per-
sonally before a judicial officer. Not only is this intu-
itive—videoconferencing technology was obviously
unknown at common law—but the Supreme Court’s
decision in Escoe v. Zerbst, 295 U.S. 490 (1935) (Cardozo, J.),
confirms this understanding. In Escoe the Court
considered the propriety of a judge’s order summarily
revoking a criminal defendant’s probation without a
hearing. The Court held that an ex parte revocation of
probation violated the applicable federal probation
statute, which required the probationer to be “brought
before the court” before probation could be revoked and
a prison term imposed. Id. at 492. The Court held that
“the end and aim of an appearance before the court”
under the statute was to “enable an accused probationer
to explain away the accusation,” id. at 493, and this re-
quired “bringing the probationer into the presence of
his judge,” id. at 494. Although a hearing by video-
conference is not the same as no hearing at all, the
Court’s interpretation of the statute at issue in Escoe
informs our interpretation of the “appearance” required
by Rule 32.1(b)(2).
No. 09-1926 11
The rules of procedure specifically mention the use of
videoconferencing in other contexts, and the treatment of
this alternative form of “appearance” also supports our
conclusion that the opportunity to appear guaranteed by
Rule 32.1(b)(2) is not satisfied by videoconferencing. For
example, Rule 5, which governs initial appearances,
permits videoconferencing only if the defendant consents.
See F ED. R. C RIM. P. 5(f). Similarly, Rule 10 permits the
use of videoconferencing for arraignments, but again only
when the defendant consents.4 F ED. R. C RIM. P. 10(c).
That videoconferencing is permitted only pursuant to a
specifically enumerated exception and with the defen-
dant’s consent demonstrates that the use of this tech-
nology is the exception to the rule, not the default rule
4
We note as well that the treatment of videoconferencing in
the Rules of Civil Procedure also suggests that video-
conferencing is the exception rather than the rule. Rule 43
provides: “For good cause in compelling circumstances and
with appropriate safeguards, the court may permit testimony
in open court by contemporaneous transmission from a dif-
ferent location.” F ED . R. C IV . P. 43(a). Despite this provision,
the Advisory Committee Note to the rule evinces a strong
preference for live, in-court testimony as opposed to video-
conferencing. F ED . R. C IV . P. 43 advisory committee’s note 1996
amend.; see also Navarro, 169 F.3d at 239 (making this point).
Read in context with relevant criminal rules, Civil Rule 43
suggests that “where the drafters believe that video con-
ferencing is appropriate, the drafters will make provision in
the Rules for the use of the technology.” Navarro, 169 F.3d at 239.
12 No. 09-1926
itself.5 Accordingly, we read the “opportunity to appear”
in Rule 32.1(b)(2) to exclude an “appearance” by
videoconference. The district judge’s participation in
Thompson’s revocation hearing via videoconference
violated the rule.
This violation, however, is subject to harmless-error
analysis. See F ED. R. C RIM. P. 52(a). Remand is therefore
necessary only if the government—or in this case, the
amicus—demonstrates that the procedural error did not
affect the outcome. See United States v. Eubanks, 593
F.3d 645, 655 (7th Cir. 2010). Yet the amicus has not ex-
plained why the error is harmless; this failure is telling.
The judge’s absence from the courtroom materially
changes the character of the proceeding, and the amicus
bears a heavy burden in showing that such a significant
procedural shift was harmless. Rule 32.1(b)(2) establishes
a procedure that requires the defendant’s physical pres-
ence before the judge, and videoconferencing is not an
adequate substitute. As one court has noted, “virtual
reality is rarely a substitute for actual presence and . . .
watching an event on the screen remains less than the
5
The Advisory Committee is currently considering a proposed
amendment to Rule 32.1. If adopted, the amendment, which
would be codified as Rule 32.1(f), would provide: “On a defen-
dant’s request, the court may allow the defendant to participate
in proceedings under this rule through video teleconferencing.”
The committee notes also state, “[t]he amendment does not
address whether victims, witnesses, or others may participate
in any hearing under Rule 32.1 through video teleconferencing
or other means.”
No. 09-1926 13
complete equivalent of actually attending it.” Lawrence,
248 F.3d at 304. In short, there is no way to know what
the judge would have done had he been present in
Rockford and face-to-face with Thompson; we cannot
conclude that the error was harmless.6
A judge’s decision whether to send a defendant to
prison requires a careful, qualitative, and individualized
assessment of the offense and the offender; no matter
how simple the case, this is never a mechanical or rote
determination. At the end of the day, Rule 32.1(b)(2)
reflects a conclusion that a judge cannot properly assess
the defendant without the defendant’s in-person appear-
ance before the court. The rule’s strictures are “mandatory
in meaning as well as mandatory in form,” Escoe, 295
U.S. at 494, and the form of the hearing required by
the rule excludes videoconferencing.
V ACATED and R EMANDED.
6
Because we hold that the judge’s participation by video-
conference violated Rule 32.1, we need not address Thompson’s
argument that holding the hearing by videoconference vio-
lated the Fifth Amendment’s Due Process Clause.
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