IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-10112

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

MARIO JUSTICE,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:04-CR-139-1

Before GARZA, STEWART, and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

*

Mario Justice (“Justice”) appeals the district court’s decision to admit two

hearsay statements over Justice’s objections at a revocation proceeding. Because

we conclude that the district court’s admission of the testimony without allowing

Justice an opportunity to cross-examine the witnesses and without an explicit

finding of good cause violated Justice’s due process rights, we REVERSE and

REMAND.

United States Court of Appeals

Fifth Circuit

F I L E D

June 21, 2011

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

Case: 10-10112 Document: 00511515744 Page: 1 Date Filed: 06/21/2011
No. 10-10112

I. FACTS AND PROCEDURAL HISTORY

In 2004, Justice pleaded guilty to possession of cocaine with intent to

distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). He was sentenced

to 63 months of imprisonment and a five-year term of supervised release. In

June 2008, Justice was released from custody and began serving his term of

supervised release.

In December 2009, the probation office filed a petition to revoke Justice’s

supervised release, alleging that Justice violated several conditions of his

supervised release. According to the petition, the Fort Worth Police

1

Department (“FWPD”) executed a narcotics search warrant on July 8, 2009 at

a residence (not owned by Justice) located in Fort Worth, Texas. The FWPD

found 6.5 grams of crack cocaine, two scales, $142 in cash, two cell phones, and

a .45-caliber handgun on a table in the living room of the residence. Police also

found three to four rocks of crack cocaine in the front bathroom and two baggies

containing approximately 31.5 grams of crack cocaine in the toilet. Justice and

several other individuals, including a woman named Chastity Jefferson

(“Jefferson”), were in the house at the time. The petition alleged that Justice

admitted that one of the cell phones found on the table belonged to him and that

Jefferson submitted a written statement to the police in which she indicated that

Justice ran into the bathroom and said, “I gotta flush this dope.”

A federal public defender was appointed to represent Justice in the

revocation proceeding. At the revocation hearing, Justice admitted to violations

Specifically, the petition alleged that Justice violated the terms of his supervised 1

release by committing another federal, state, or local crime; possessing illegal controlled

substances; possessing a firearm; possessing, using, distributing or administering “any

narcotic or other controlled substance, or any paraphernalia related to such substances, except

as prescribed by a physician”; frequenting “places where controlled substances are illegally

sold, used, distributed, or administered”; and associating with “persons engaged in criminal

activity.”

2

Case: 10-10112 Document: 00511515744 Page: 2 Date Filed: 06/21/2011
No. 10-10112

related to his failure to complete a Comprehensive Sanction Center Program, but

he contested the allegations related to the July 8, 2009 incident in Fort Worth.

The Government presented two witnesses: probation officer Jaime

Espinosa (“Espinosa”) and police officer Carlos Cespedes (“Cespedes”). Before

any evidence was presented, Justice objected to any testimony from Espinosa

relating to the offenses that was based on the police report or statements from

other individuals not present at the hearing on the grounds that allowing such

evidence would violate his right to confront and cross-examine the authors of

those documents. The court allowed the testimony, concluding that although it

was hearsay, it bore adequate indicia of reliability.

Espinosa testified that Justice lied to him about having a job and that

Justice failed to show up for his scheduled urinalysis appointments. Justice also

admitted to Espinosa that he had been caught forging staff signatures on leave

passes from the Comprehensive Sanction Center Program and on employment

verification forms. According to Espinosa, Justice also told him that he had been

at a known crack house, but he claimed that he had gone there to pick up a dog

he purchased the day before.

Cespedes, one of the officers who executed the search warrant, was called

to testify about the circumstances surrounding Justice’s arrest at the crack

house. He testified that the house had a closed-circuit camera system that

monitored the area outside of the house, which he testified was not uncommon

in a crack house. He observed a table in the front room “with a lot of plastic

baggies, some crack cocaine, [and] a couple of digital scales.” He also saw guns

on the couch and on the floor; one gun was found under a purse on a couch.

Cespedes testified that he seized approximately 26 grams of cocaine from the

house; some of the cocaine was on the table in the front room, and some was in

the bathroom. However, he could not recall encountering Justice in the house,

3

Case: 10-10112 Document: 00511515744 Page: 3 Date Filed: 06/21/2011
No. 10-10112

and he could not identify anyone in the courtroom as being in the house on that

day.

The Government asked Cespedes to identify the police report written by

police officer Christianson (“Christianson”)—another officer present at the

scene—and Jefferson’s written statement to police. When the Government

moved to introduce Christianson’s report and Jefferson’s statement as exhibits,

Justice renewed his earlier objection to the admission of hearsay evidence

without an opportunity to confront the witnesses. Justice argued that Jefferson

was not present in the courtroom, that no reason had been given why she had

not been called to testify, and that “even the case law provided by the

government recognizes the right to confront and cross-examine in a revocation

hearing absent good cause.”

The district judge allowed the hearsay testimony, concluding that it was

reliable because it was made by an individual who was present in the house and

was corroborated by independent evidence. Specifically, the statement alleged

that a person wearing orange shorts was the one who yelled that he had to “flush

the dope,” and Justice was the only one in the house wearing orange shorts.

Cespedes testified that he found Jefferson and another individual, Patricia

King, in the front bathroom of the crack house and that there were

approximately 30 to 40 grams of cocaine in that bathroom. He also testified

that, according to the police report, Justice was apprehended in the northwest

bedroom of the house. No firearms or drugs were found in that bedroom.

The district court found that there was adequate evidence that Justice

violated the conditions of his supervised release as set forth in the petition,

adopted the statements contained in the petition, and revoked Justice’s

supervised release, sentencing him to 24 months of imprisonment and a

three-year term of supervised release. The judge specifically noted that the

sentence imposed was mandatory pursuant to 18 U.S.C. §§ 3583(g)(1) and (2)

4

Case: 10-10112 Document: 00511515744 Page: 4 Date Filed: 06/21/2011
No. 10-10112

because the evidence showed that Justice possessed a controlled substance and

a firearm. Justice filed a timely notice of appeal.

II. JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction to revoke Justice’s supervised release

under 18 U.S.C. § 3583(e). See United States v. Jackson, 426 F.3d 301, 304 (5th

Cir. 2005). This court has jurisdiction to review the revocation of a defendant’s

supervised release pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

“Alleged violations of the Confrontation Clause are reviewed de novo, but are

subject to a harmless error analysis.” United States v. McCormick, 54 F.3d 214,

219 (5th Cir. 1995) (internal citation omitted).

III. DISCUSSION

A releasee at a revocation hearing is not due the full panoply of rights that

apply to a criminal prosecution; however, he is not without rights. The minimal

requirements of due process for a revocation proceeding are explained in

Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972). Among those requirements,

the releasee must be afforded “the right to confront and cross-examine adverse

witnesses (unless the hearing officer specifically finds good cause for not

allowing confrontation).” Id. at 480, 488-89.

Thus, although due process provides the defendant in a revocation

proceeding the right to confront and cross-examine adverse witnesses, the

district court may deny the releasee the right to confrontation upon a finding of

good cause. Id. at 489; see also United States v. Grandlund, 71 F.3d 507, 510 n.6

(5th Cir. 1995). The district court must specifically find good cause and must

make the reasons for its finding part of the record. United States v. Minnitt, 617

F.3d 327, 333 (5th Cir. 2010). “In evaluating good cause, the district court must

weigh the defendant’s interest in confrontation of a particular witness against

the Government’s proffered reasons for pretermitting the confrontation.” Id.

“Reliability of the challenged hearsay is a critical consideration in a district

5

Case: 10-10112 Document: 00511515744 Page: 5 Date Filed: 06/21/2011
No. 10-10112

court’s determination of whether good cause exists to disallow confrontation.”

Id. at 334 (internal quotation marks and citation omitted).

In view of these precedents, we have affirmed the allowance of hearsay

testimony without cross-examination in specific cases. See Minnitt, 617 F.3d at

334-35; Grandlund, 71 F.3d at 510-11; McCormick, 54 F.3d at 222-26; United

States v. Kindred, 918 F.2d 485, 487 (5th Cir. 1990). However, each of these

cases concerned the admissibility of hearsay testimony from a laboratory report

or a laboratory technician in revocation proceedings. We allowed such testimony

without a right to cross-examine because “‘a releasee’s interest in crossexamining a laboratory technician regarding a scientific fact’ is minimal because

the truth of the fact can be ‘verified through the methods of science’ rather than

‘through the rigor of cross-examination.’” Minnitt, 617 F.3d at 333 (quoting

McCormick, 54 F.3d at 222). In such circumstances, the releasee has other

options for refuting the Government’s evidence, such as re-testing. Id. at 333-34.

In contrast, the Government had a strong interest in “avoiding the expense,

difficulty, and delay in securing the lab technicians to testify.” Id. at 334 (citing

Grandlund, 71 F.3d at 511; McCormick, 54 F.3d at 224; Kindred, 918 F.2d at

487). Additionally, “lab results bear a substantial indicia of reliability, which

weighs in favor of the Government’s good cause to deny confrontation of the

technicians.” Id. In Grandlund, McCormick, and Kindred, we reached similar

conclusions for similar reasons. Grandlund, 71 F.3d at 510-11; McCormick, 54

F.3d at 222-26; Kindred, 918 F.2d at 487.

In contrast, when the charge against the releasee turns on a credibility

choice between the releasee and a hearsay declarant whose testimony has not

been shown to be reliable, we have held that a right of confrontation is required.

See McBride v. Johnson, 118 F.3d 432, 433 (5th Cir. 1997); Farrish v. Mississippi

State Parole Board, 836 F.2d 969, 978 (5th Cir. 1988). This is especially true

6

Case: 10-10112 Document: 00511515744 Page: 6 Date Filed: 06/21/2011
No. 10-10112

when the hearsay declarant is a self-interested witness like Jefferson. Farrish,

836 F.2d at 978.

Applying the law to the facts of this case, we conclude that the district

court erred in admitting the hearsay testimony for two reasons: (1) good cause

to allow the hearsay testimony, as required by Minnitt, 617 F.3d at 333 was

lacking; and (2) the hearsay testimony was not inherently reliable. We also find

that the error was not harmless.

A. Good cause was lacking

In this case, the district court made no findings regarding whether there

was good cause to allow the hearsay testimony of Jefferson and Christianson.

Further, the district court did not weigh Justice’s interest in cross-examination

against the Government’s reasons for not presenting the witnesses. Even if we

could imply a finding of good cause from the court’s decision, reviewing the

record before the district court, we conclude that it would not support such a

finding. The Government offered no evidence that it would be difficult or

expensive to procure these witnesses, nor did it offer evidence that they were

unavailable. There is absolutely no evidence about Jefferson (aside from the

Government’s late-proffered and unsupported allegation that Jefferson did not

testify out of concern for her safety) or Christianson.

In contrast with the Government’s weak excuse for failing to provide

Christianson and Jefferson, Justice had a substantial interest in

cross-examining these witnesses, as they were the only witnesses tying him to

the guns and the drugs. Justice was found in a bedroom away from both the

guns and the drugs. Only two witnesses testified: Espinosa, who was not there

2

and who did not testify about Justice’s arrest other than to say that it occurred,

The dissent’s suggestion that Justice was found in the bathroom with the drugs is 2

contrary to the record, which shows that Justice was found in the bedroom away from both the

drugs and the guns.

7

Case: 10-10112 Document: 00511515744 Page: 7 Date Filed: 06/21/2011
No. 10-10112

and Officer Cespedes, who did not even recognize Justice’s name and could not

identify him in the courtroom. Neither of these witnesses could provide

first-hand knowledge of any evidence that Justice possessed drugs or a gun.

Additionally, as we noted in Minnitt, the releasee’s interest in confrontation is

“magnified where the evidence, if believed, triggers application of a mandatory

minimum sentence,” as it does in this case. 617 F.3d at 333; see also U.S.

SENTENCING GUIDELINES MANUAL §§ 7B1.1(a), 7B1.3(a) (2010). Thus, weighing

the parties’ competing interests, the evidence shows that good cause did not exist

for admitting this testimony.

B. The hearsay testimony was not “inherently reliable.”

We also conclude that the hearsay statements were not inherently reliable.

Jefferson’s statement was inherently unreliable because it exculpated herself

and inculpated Justice. Jefferson—not Justice—was found in the bathroom with

the drugs, and she had an incentive to claim that the drugs belonged to a “man

in orange shorts” to avoid personal association with them. Therefore, Jefferson’s

hearsay statement bore no indicia of reliability. The fact that her statement was

corroborated by the police report does not make it reliable, as the police report

was based on her statement.

3

Christianson’s report was also not inherently reliable as this court has

previously applied that term, because it was based on Jefferson’s testimony and

Christianson’s observations. This court’s decisions in Minnitt, 617 F.3d at

334-35; Grandlund, 71 F.3d at 510-11; and McCormick, 54 F.3d at 222-26, do not

support a conclusion that this testimony was reliable. By stark contrast to the

The dissent’s reliance on the fact that the police report corroborates Jefferson’s 3

statement about the orange shorts is irrelevant, as it does nothing to rule out the possibility

that Jefferson saw Justice wearing orange shorts and chose (falsely) to shift the responsibility

for the drugs to the “person wearing orange shorts”—i.e., Justice. Jefferson’s credibility is

thus central to the question of whether Justice was “merely there” picking up a dog, as he

claims, or possessor of the drugs and guns, as necessary to find the Class A violation.

8

Case: 10-10112 Document: 00511515744 Page: 8 Date Filed: 06/21/2011
No. 10-10112

results of a laboratory report, Justice could not have verified Jefferson or

Christianson’s testimony independently. The information here is purely based

upon observation of uncalled witnesses, not “scientific processes.”

Cespedes’s testimony also does not lend an indicia of reliability to

Christianson’s police report. Cespedes was called to testify about the

circumstances surrounding Justice’s arrest at the crack house. He testified about

the drugs and guns seized from the house and that having a closed-circuit

television was not uncommon in a crack house; however, he could not recall

encountering Justice in the house, despite the undisputed evidence that Justice

was there. Thus, any indicia of reliability from Cespedes is unrelated to the

charges against Justice.

Additionally, the Government’s reliance on United States v. Denson, 224

F. App’x 417 (5th Cir. 2007) (unpublished), is unpersuasive. In Denson, the

court concluded that a parolee’s due process rights were not violated when the

district court relied on a police report without giving the parolee the chance to

confront the witness who authored the report. Id. at 418. The court stated that

“[a]lthough Morrissey recognized a right to confrontation at revocation

proceedings, the right is a limited one in that revocation hearings should be

flexible enough that a court may consider material that would not be admissible

in an adversary criminal trial. Hearsay evidence is such material . . . .” Id.

(internal quotations and citations omitted). Denson does not provide any detail

about the facts upon which the court relied in the police report and provides no

indication that the court used the hearsay alone to establish guilt, as it did in

this case. Therefore, Denson is inapplicable to these facts. For these reasons,

4

If it did, indeed, stand for the proposition that “hearsay is generally okay” it would 4

conflict with Morrissey, a Supreme Court case which we are bound to follow rather than an

unpublished case of our court.

9

Case: 10-10112 Document: 00511515744 Page: 9 Date Filed: 06/21/2011
No. 10-10112

we conclude that the hearsay testimony in this case did not bear sufficient

indicia of reliability.

C. The error was not harmless.

Finally, the error in denying Justice’s right to confront the witnesses

against him was not harmless. The out-of-court statements made by these

witnesses were the only evidence directly linking Justice to the guns and the

drugs. A drug violation or a firearm violation is a Grade A violation of

supervised release under section 7B1.1 of the Sentencing Guidelines, and thus

requires mandatory revocation of Justice’s supervised release under section

7B1.3. See U.S. SENTENCING GUIDELINES MANUAL §§ 7B1.1(a), 7B1.3(a) (2010).

The other violations to which Justice admitted were Grade C violations, which

did not require mandatory revocation. Id. § 7B1.3(a). Grade A violations also

entail harsher sentences under the Sentencing Guidelines than do Grade C

violations. See id. § 7B1.4(a).

Supervised release may be revoked when there “is enough evidence to

satisfy the district judge that the conduct of the petitioner [did not meet] the

conditions” of supervised release. Minnitt, 617 F.3d at 335-36. Although Justice

admitted to being at the crack house and failing to abide by several other terms

of his supervised release (Grade C violations), there is no evidence tying him to

either the drugs or the guns (Grade A violations) without the hearsay

testimony. Without the hearsay testimony, the revocation of the term of his

5

supervised release would have been discretionary, and the sentence imposed

would likely have been less severe. See U.S. SENTENCING GUIDELINES MANUAL

We do not disagree with the dissent’s suggestion that Justice violated several terms

5

of his supervised release; rather, we disagree with the dissent’s conclusion that Justice’s

violations were Grade A violations. Because we hold that the district court erred in admitting

the only testimony tying Justice to the guns and the drugs, we necessarily reverse the finding

that Justice committed Grade A violations. We agree that the evidence shows that Justice

committed several Grade C violations of his supervised release.

10

Case: 10-10112 Document: 00511515744 Page: 10 Date Filed: 06/21/2011
No. 10-10112

§§ 7B1.1(a), 7B1.3(a), 7B1.4(a) (2010). Therefore, we cannot conclude that the

error was harmless.

IV. CONCLUSION

For the above reasons, we REVERSE and REMAND for proceedings

consistent with this opinion.

11

Case: 10-10112 Document: 00511515744 Page: 11 Date Filed: 06/21/2011
No. 10-10112

STEWART, Circuit Judge, dissenting:

Although the panel majority and I view this case according to the same

jurisprudential landscape, our perspective on the disposition of this appeal

differs. Accordingly, I dissent.

The Supreme Court has long recognized that there exists a right to crossexamine and confront adverse witnesses in a parole revocation hearing.

Morrissey v. Brewer, 408 U.S. 471, 489 (1972). This due process protection is

afforded to individuals in supervised release proceedings, as well. McCormick,

54 F.3d at 221. Yet, in revocation hearings, the right is not so absolute such that

it rises to the same protections afforded to defendants in adversarial criminal

proceedings; for instance, a district court presiding over a revocation hearing

“may consider material that would not be admissible in . . . . a criminal trial.”

Morrissey, 408 U.S. at 489. Morrissey states that “there is no thought to equate

this . . . . stage of parole revocation to a criminal prosecution . . . . the process

should be flexible.” Id. In fact, Morrisey explains that in the parole revocation

context, a parolee accused of committing another crime is subject to revocation

hearings (versus new prosecutions) “because of the procedural ease of

recommitting the individual on the basis of a lesser showing by the State.” Id.

at 479. So, parolees are entitled to decidedly less procedural due process than

their “traditional” criminal defendant counterparts. We find reversible error

based on due process when the evidence upon which the district court relied

lacks an indicia of reliability. United States v. Kindred, 918 F.2d 485, 486 (5th

Cir. 1990).

Here, the record demonstrates that the district court was aware of the

legal standard applicable to Justice’s parole revocation hearing. Moreover, the

district court concluded that Kindred’s requirement of an indicia of reliability

was present. The district court received Fort Worth Police Officer Christianson’s

police report and implicitly concluded that it had an indicia of reliability from

12

Case: 10-10112 Document: 00511515744 Page: 12 Date Filed: 06/21/2011
No. 10-10112

Officer Cespedes’s testimony, who responded to the scene and gathered evidence.

The court was also persuaded by the testimony of Justice’s probation officer,

Jamie Espinosa, which revealed certain admissions placing Justice in the known

drug house where dozens of grams of crack cocaine were found in plain view, and

where an additional 31 grams were recovered after breaking apart a toilet in the

bathroom where Justice was immediately before he was physically arrested in

a nearby bedroom. It was probably not lost on the district court that the drug

house had an extensive surveillance camera system focused on the entry of the

home. Justice would have been well aware of the purpose of the camera when

he entered the drug house. Additionally Chastity Jefferson—an occupant of the

house at the time of the police raid—submitted a statement to the police.

Jefferson’s statement to police was admitted and the district court concluded

Officer Cespedes’s testimony gave Jefferson’s statement an indicia of reliability.

This was not a case of mistaken identity—Jefferson’s statement identified

Justice based on a distinct article of clothing: orange shorts.

The record also reveals that the district court was made aware of the

similarities this case shared with our unpublished decision in United States v.

Denson, 224 F. App’x 417 (5th Cir. 2007). Like the district court, I find it

persuasive. Here, Justice argues that despite Denson, the district court’s

reliance on Christiansen’s police report—and its denial to him of the right to

cross-examine an interest adverse to his—was in error. Justice persists and

directs this court to McCormick’s requirement that the district court make a

finding of good cause in order to vindicate his procedural due process rights. I

do not agree with this incomplete reading of McCormick. McCormick states,

“[t]he failure to make such a finding on the record can constitute error that is not

harmless.” McCormick, 54 F.3d at 220 (emphasis added). McCormick counsels

that we need not remand to make explicit that which is implicit. Id. at 221.

Here, McCormick does not imply a violation of Justice’s due process.

13

Case: 10-10112 Document: 00511515744 Page: 13 Date Filed: 06/21/2011
No. 10-10112

As this court has explained, a failure to make a good cause determination

is harmless error where good cause exists, its basis found in the record, and its

finding implicit in the court’s ruling. United States v. Grandlund, 71 F.3d 507,

510 (5th Cir. 1995). A review of the revocation hearing supports the finding that

the Grandlund framework was satisfied, and that the due process rights to

which Justice was entitled were not violated as a consequence. Thus, the

absence of an explicit good cause determination was harmless error as the

finding was implicit in the district court’s ruling.

In United States v. Minnitt we held that what is required for the

revocation of supervised release “is enough evidence to satisfy the district judge

that the conduct of the petitioner [did not meet] the conditions” of supervised

release. 617 F.3d 327, 335–36 (5th Cir. 2010). In this case, the evidence

adduced at the parole revocation hearing revealed that Justice was voluntarily

present in a known crack house where large quantities of drugs were regularly

sold; that he possessed a firearm; and, that he associated himself with persons

engaged in criminal activities, among others, all in contravention of the terms

of his supervised release. Put another way, this was not as close a case as

Justice would have us believe. The police report and all of the evidence adduced

at the revocation hearing consistently underscored the violations alleged against

Justice. Indeed, there was no contrary evidence presented. After considering

the totality of the evidence, the district court properly exercised its discretion in

overruling Justice’s objections. Minnitt supports affirmance and our conclusion

that the district court did not violate Justice’s procedural due process. Thus, in

my opinion, no constitutional infirmity exists and remand is not necessary.

Because I view this case through the same prism as did the learned

district court, I respectfully dissent.

14

Case: 10-10112 Document: 00511515744 Page: 14 Date Filed: 06/21/2011