United States v. Deshon Hill

stated that the individual's car had been stolen and that the police had found a gun in the car when the vehicle was recovered. After receiving the messages, Officer Bankole called Hill's phone number, and an unidentified male answered. The man explained that he had discovered the cell phone in his recovered car, and that he found photos and a video on the cell phone depicting a man with a firearm. He told Officer Bankole that he wanted to "ruin the cellular telephone owner's life as they had ruined his."

Officer Bankole requested that the individual forward the photos and video to him. Officer Bankole received a full body photo of Hill, and a video of a masked Black male holding what appeared to be a firearm with an extended magazine. The individual also provided Officer Bankole with screenshots of the video. The day after Officer Bankole received the video and photos, Hill alerted Officer Bankole that he had lost his phone. After determining that Hill was the man in the video, Officer Bankole recommended that the district court revoke Hill's supervised release and impose a total custodial sentence of 12 months pursuant to 28 U.S.C. § 3583(e)(3).

At the revocation hearing, Officer Bankole testified about the details of the phone call and the messages that he received from Hill's phone. Hill's counsel objected to Officer Bankole's testimony regarding the unknown individual's statements, contending that the statements were inadmissible hearsay. The government responded—and the district court agreed—that the statements were not being offered for their truth, but rather for the impact on the listener. The district court also noted that while "the rules of evidence don't apply" in revocation release hearings, principles of due process do, so the court would consider whether the statements were reliable. The district court also noted: "I don't have to necessarily credit everything that the caller said including things like this guy is dealing drugs or carrying guns plural. I don't need to rely on those other statements that the caller made to the probation officer in order to find that the violation occurred."

The government submitted as evidence the video, two screenshots from the video dated July 23, and the full-body photo of Hill. The district court overruled Hill's foundation objection to the screenshots and video. Officer Bankole again identified the man in the video as Hill based on the other picture that he received and his prior interactions with Hill. Applying the preponderance of the evidence standard, the district court concluded that the individual in the video was Hill, that he was holding a working firearm, and that as a result, Hill had violated the terms of his supervised release. The district court revoked Hill's supervised release and ordered him to serve an additional 24 months in prison. Hill appealed.

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A district court may revoke a term of supervised release if it finds by a preponderance of the evidence that the defendant violated a condition of supervised release. 18 U.S.C. § 3583(e)(3). We review a district court's revocation of supervised release for an abuse of discretion and review the factual findings supporting revocation for clear error. United States v. Falls, 960 F.3d 442, 445 (7th Cir. 2020). On appeal, Hill first argues that the district court violated his due process rights and Federal Rule of Criminal Procedure 32.1(b)(2)(C) by admitting statements from the unknown individual through Officer Bankole without first conducting an interest-of- justice balancing analysis. Hill also argues that the district court's factual findings had

"technological flaws" and that the court erred by not authenticating the video and screenshots.

Rule 32.1(b)(2)(C) provides that at a revocation hearing, the district court must provide a defendant with "an opportunity to … question any adverse witness unless the court determines that the interest of justice does not require the witness to appear."

A district court must also conduct an interest-of-justice balancing before admitting hearsay evidence in revocation hearings. United States v. Jordan, 742 F.3d 276, 279 (7th Cir. 2014). However, "even where a proper balancing of the interests would weigh in favor of excluding hearsay, its erroneous admission may still be harmless for the alternate reason that the violation of supervised release would have been found even without the hearsay evidence." United States v. Mosley, 759 F.3d 664, 669 (7th Cir. 2014). As a preliminary matter, we need not decide whether any of the unknown individual's statements are hearsay. The district court concluded, and the government asserts on appeal, that the unknown individual's statements were offered to show the effect on the listener and thus do not constitute hearsay. It's not entirely clear why the effect of the unknown individual's statements on Officer Bankole matters. See United States v. Graham, 47 F.4th 561, 567 (7th Cir. 2022) ("A statement is offered to show an effect on the listener only if the listener heard and reacted to the statement, and if the 'actual use' of the statement at trial was to demonstrate the listener's response.") (citation modified). The unknown individual told Officer Bankole how he came into possession of Hill's phone. But that really doesn't matter. What might have mattered is that the unknown individual was in possession of Hill's phone, and we suppose that statement might have been considered for its truth. But here, it doesn't make any difference because Hill told Officer Bankole that he lost his phone. So even without the unknown individual's statements, Officer Bankole knew that someone other than Hill (an unknown individual) was sending him messages from Hill's phone. It didn't matter

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who was sending them or why. The pertinent facts were that the messages were being sent from Hill's phone, and according to Hill, by someone other than Hill. In any event, even if the district court erred by admitting hearsay evidence and failing to conduct an interest-of-justice balancing test, any error was harmless. The relevant question is "whether we are confident the district court would have still found a violation of [Hill's] conditions of supervised release even absent" the unknown individual's statements. United States v. Perez, 99 F.4th 972, 977 (7th Cir. 2024). Here, we are confident that the district court would have still determined by a preponderance of the evidence that (1) Hill was the individual in the screenshots and the video, and (2) Hill possessed a working firearm.

On the first finding, the court noted that Officer Bankole received from Hill's phone number a photo clearly depicting Hill at the same time that he received the video of the man holding a gun. The video was dated after Hill had been released from prison and lined up with when Hill was still communicating with Officer Bankole from the same phone number, tending to indicate that Hill had possession of the phone when the video was taken. Officer Bankole also identified Hill as the individual in the video based on his prior interactions with Hill and his receipt of the full body photo. Although the district court noted that Officer Bankole's identification alone would be insufficient to meet the preponderance of the evidence standard, given the other circumstantial evidence discussed, we are confident that the district court would have still found that Hill was the man in the video even without the unknown individual's statements. See Mosley, 759 F.3d at 669 (finding that a district court's failure to conduct an interest-of-justice balancing test was harmless since there was strong non-hearsay evidence that a defendant had distributed drugs in violation of his supervised release). Hill makes various arguments to undermine the district court's factual finding on this point. First, Hill argues that his due process rights were violated because the district court didn't authenticate the video and screenshots. Federal Rule of Evidence 901 provides that a proponent of evidence should "produce evidence sufficient to support a finding that the item is what the proponent claims it is." Id. But we have made clear that Rule 901 does not apply at a revocation hearing. Falls, 960 F.3d at 447. And to the extent that Hill bases his authentication argument on the Due Process Clause, the district court heard testimony from Officer Bankole confirming that the video and screenshots admitted were the ones that he received from Hill's phone number, and the district court determined that the media reliably came from Hill's cell phone. See id. (finding that the district court was not required to authenticate a

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recording under Rule 901, and regardless, the district court determined that the recording was reliable based on a probation officer's testimony identifying the defendant's voice in the recording). Hill also asserts that there were various technical flaws in the district court's factual findings. For example, Hill argues the district court erred by stating that the video was taken on July 23, 2024, based on the screenshot image of the video, and that the correct inference is that the date captured in the screenshot was the date that the screenshot was taken, not the date when the underlying video was taken. But Officer Bankole's testimony indicated that the screenshot captured a frame of the video, and his petition stated that the video was dated July 23. And "[w]hen a district court chooses between two permissible inferences from the evidence, the factual findings cannot have been clearly erroneous." United States v. Barnes, 141 F.4th 882, 886 (7th Cir. 2025) (citation modified). Thus, we cannot say that the district court clearly erred when it concluded that July 23 referred to the date that the underlying video was taken. Hill also briefly asserts that the district court improperly assumed that the video was created on Hill's phone. In other words, he argues that the video could have been forwarded from another source and thus not filmed on his phone, therefore undermining the district court's conclusion that Hill was the man in the video. But Hill points to no basis for this speculative conclusion, and the video, screenshots, and still photo clearly depicting Hill were all sent from Hill's phone. On the second finding—that Hill possessed a working firearm—the court noted that the video depicted a man holding what appeared to be a gun with a visible magazine and trigger guard. The district court also considered the fact that Hill had previously been convicted for illegally possessing a firearm, thus providing additional circumstantial evidence that Hill was holding a working firearm. Therefore, even disregarding the unknown individual's statements, we are confident that the district court would have still concluded that Hill possessed a working firearm in violation of the terms of his supervised release. See Perez, 99 F.4th at 977 (finding that a district court's failure to conduct interest-of-justice analysis was harmless when the court did not rely on an adverse witness's narrative on the issue of whether the defendant possessed a firearm).

AFFIRMED

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