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.
The opinion of the court was delivered by: Sykes, Circuit Judge.
Before POSNER, ROVNER, and SYKES, Circuit Judges.
Christopher Thompson violated the conditions of his supervised release in late February 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 procedures that apply in a supervised-release revocation hearing, and the judge followed these procedures-with one exception. Although Thompson, his attorney, and 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 impression for federal courts of appeals: whether holding a supervised-release revocation hearing by videoconference violates Rule 32.1(b)(2). We hold that it does. Accordingly, we vacate Thompson's term of reimprisonment.
In November and December 1999, Christopher Thompson 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 Supervised release was revoked and he was returned to prison for six months.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 reimprisonment, 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 Thompson, and scheduled a revocation hearing for March 25.
Although all parties were present in the Rockford courthouse for this initial hearing, the judge participated by videoconference from Key West, Florida. At the revocation hearing a week later, the judge again appeared by videoconference from Key West; everyone else was assembled in the judge's courtroom in Rockford. Thompson's counsel objected, contending that this procedure violated Rule 32.1. The district court overruled the objection, 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 supervised 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.*fn1
Thompson admitted the allegations except for the drunk-driving charge, and the district court heard statements 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 revocation hearing by videoconference.
The issue on appeal-whether the use of videoconferencing 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.*fn2 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 determines that the interest of justice does not require the witness to appear[,] ...