IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30069

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee,

v.

ANTHONY DARTEZ, 

 Defendant–Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 2:07-CR-20009-1

Before JONES, SMITH, and PRADO, Circuit Judges.

PER CURIAM:*

Anthony Dartez appeals the revocation of his supervised release, 

asserting that his confrontation right was violated when the district court did 

not allow him to cross-examine United States Probation Officer Gregory Clark 

during his revocation hearing. For the reasons given below, we AFFIRM. 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

November 9, 2017

Lyle W. Cayce

Clerk

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I. BACKGROUND

On November 14, 2007, Anthony Dartez pleaded guilty to one count of 

possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). He 

was subsequently sentenced to 120 months of imprisonment and 10 years of 

supervised release. Dartez’s term of supervised release began December 29, 

2015. One supervised release condition prohibited Dartez from “hav[ing] access 

to any computer that is capable of internet access without specific permission 

of the probation officer.” He was also required to reside in a halfway house and 

abide by that facility’s rules. 

On June 17, 2016, Dartez’s probation officer, Officer Gregory Clark, filed 

a petition for a warrant and revocation hearing, alleging that Dartez possessed 

a cell phone and ignored orders from the halfway house’s staff members. The 

district court found that Dartez had violated the conditions of his supervised 

release, but deferred action on the petition. Instead, the court admonished 

Dartez to comply with the rules of the halfway house. 

On December 7, 2016, Officer Clark filed a second petition for a warrant 

and revocation hearing. The petition alleged that Dartez violated the 

conditions of his supervised release by: (1) failing to attend mandatory classes 

at the halfway house; (2) failing to report his movements to the halfway house; 

(3) possessing unauthorized cell phones; (4) possessing a cell phone on 

November 18, 2016, that was connected to free wireless internet; and 

(5) possessing a portable gaming system, a PlayStation Portable, that was 

capable of connecting to the internet. Most relevant here, Officer Clark 

personally observed the November 18 incident. On that day, Officer Clark 

visited the Dairy Queen where Dartez was working. Upon arriving, he noticed 

Dartez sitting near a dumpster behind the Dairy Queen, holding a cellular 

phone. Officer Clark inspected the cell phone and determined it was connected 

to the internet. 

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On January 24, 2017, the district court conducted a revocation hearing 

on Officer Clark’s second petition. Dartez denied the petition’s allegations and 

requested an evidentiary hearing. The Government began its presentation of 

evidence by proffering the testimony of Officer Clark because of the district 

court’s policy of not “put[ting] the probation officer under oath.” In its proffer, 

the Government summarized the allegations set forth in the revocation 

petition and emphasized that Officer Clark “has specific information that he 

has direct knowledge of,” particularly his observations at Dairy Queen. Dartez 

objected to the proffer as violating his constitutional and statutory right to 

confront an adverse witness. 

The district court and Dartez’s counsel then engaged in a lengthy 

exchange over whether he could cross-examine Officer Clark. The court noted 

that Officer Clark was an eyewitness to one of the violations, but explained 

that its policy of not placing probation officers under oath derived from the 

position that a probation officer is “an arm of the court” who “provides to [the] 

Court information of a variety of natures” and “monitor[s] [the supervisee] and 

report[s] to the Court as to what he or she has found.” From this, the court 

reasoned that Officer Clark was not an “adverse witness” within the meaning 

of Federal Rule of Criminal Procedure 32.1(b)(2)(C). The district court noted 

the “relaxed” evidentiary rules of revocation hearings and emphasized that the 

“interest of justice” provided grounds for prohibiting cross-examination of a 

witness in a revocation hearing. 

The district court then proposed an alternative to cross-examination: the 

court would assist defense counsel in eliciting information from Officer Clark 

by posing questions to the probation officer and by letting counsel ask 

questions “in an informal fashion.” The district court noted that “in 26 years 

[it had] never allowed [cross-examination of a probation officer]” and stated, 

“[w]hat I’m not going to let you do is cross-examine him under oath about how 

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he did his job unless the Court tells me I must.” Dartez’s counsel stated he was 

“prepared to proceed the way [the court] would like to today” and appreciated 

the opportunity to present his argument. 

The district court then began questioning Officer Clark, which occurred 

as follows. Defense counsel would ask the court a question, and then the court 

would repeat the question to Officer Clark. At times, the court would pose its 

own questions to Officer Clark. At other times, the court would decline to ask 

Dartez’s questions because it believed the information sought was not relevant

to its decision. Defense counsel also asked a few questions directly to Officer 

Clark. During this initial exchange, Officer Clark was not placed under oath. 

After a brief recess, the district court retroactively placed Officer Clark 

under oath, stating “[h]e was under oath when you asked those questions, 

albeit retroactively, but I think that probably, for these purposes, it is 

sufficient, and you can get your detail.” At this time, defense counsel noted that 

his intent in questioning Officer Clark was “to provide more details in context 

about what’s contained in the reports in ways that . . . would benefit [Dartez].”

The court responded that cross-examination was not the exclusive means to 

obtain information about the violations because Dartez could have suspended 

the hearing to gather additional information or spoken with Officer Clark 

before the proceeding. The court also explained Fifth Circuit and Supreme 

Court precedent as to the confrontation rights of a parolee facing revocation of 

supervised release. The questioning of Officer Clark then resumed. 

After the questioning ended, the district court explained with regards to 

Dartez’s objection to the Government’s proffer:

This Court also, in making the specific findings that good cause 

exists not to allow any further confrontation than that which has 

already been allowed, in the fact that the defendant claimed . . . 

that what was desired here was additional detail and context for 

mitigation. That information could have been obtained readily, 

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openly, from the probation officer because of the open-door policy 

as to the probation officers in the Western District of Louisiana.

The district court continued:

Therefore, this Court finds that there is good cause not to go 

beyond what has already happened here because of the 

countervailing consideration of the interests of justice if we change 

the nature of a revocation proceeding. Therefore, the Court has 

ruled on that point. Objection is noted.

The district court then heard the testimony from three staff members of the 

halfway house, and the defense recalled one of those witnesses. Dartez also 

made a personal statement. 

The district court found by a preponderance of the evidence that Dartez 

had violated the conditions of his supervised release. The advisory guidelines 

range placed Dartez at four to ten months of imprisonment, but the court 

imposed a one-year term of imprisonment and a nine-year term of supervised 

release. Judgment was entered on January 27, 2017. Dartez filed a timely 

notice of appeal. 

II. DISCUSSION

We have 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.” 

United States v. Justice, 430 F. App’x 274, 277 (5th Cir. 2011). “A claim that 

the district court violated a defendant’s right to confrontation in a revocation 

proceeding is reviewed de novo, subject to harmless error analysis.” United 

States v. Jimison, 825 F.3d 260, 262 (5th Cir. 2016) (citing United States v. 

Minnitt, 617 F.3d 327, 332 (5th Cir. 2010)).

“The defendant’s rights in a revocation hearing include a qualified right 

to confront and cross-examine adverse witnesses.” United States v. Grandlund, 

71 F.3d 507, 510 (5th Cir. 1995). This confrontation right “flows from the Due 

Process Clause” and “can be overcome by a showing of ‘good cause.’” Jimison, 

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825 F.3d at 262 (quoting Minnitt, 617 F.3d at 332–33). “Determining whether 

good cause exists requires ‘weigh[ing] the defendant’s interest in confrontation 

of a particular witness against the Government’s proffered reasons for 

pretermitting the confrontation.’” Id. (alteration in original) (quoting Minnitt, 

617 F.3d at 333). “[A] district court is required to make ‘an explicit, specific 

finding of good cause’ for not allowing confrontation of a particular witness.” 

Id. (quoting Grandlund, 71 F.3d at 510 n.6). 

Dartez argues on appeal that the district court violated his right to 

confrontation in his supervised release revocation proceeding because the 

district court did not allow him to cross-examine his probation officer, Officer 

Clark, whose testimony introduced facts detrimental to his case.1 Dartez 

argues that his “interest in cross-examining Probation Officer Clark far 

outweighed” the Government’s interest and that “the district court’s failure to 

make a sufficient finding of good cause is not harmless error.”

It is an open question as to whether Dartez’s probation officer is an 

“adverse witness,” triggering Dartez’s right “to confront and cross-examine” 

him. 2 See Morrissey v. Brewer, 408 U.S. 471, 487 (1972). Nevertheless, we need 

 

1 The Government argues that Dartez abandoned his objection when he acquiesced to 

the district court’s modified questioning procedure. “Waiver is the ‘intentional 

relinquishment of a known right.’” United States v. Dodson, 288 F.3d 153, 160 (5th Cir. 2002) 

(quoting United States v. Olano, 507 U.S. 725, 733 (1993)). The record here does not indicate 

that Dartez intentionally relinquished his confrontation right. Indeed, Dartez’s counsel 

objected at the outset when the Government proffered Officer Clark’s testimony. Dartez’s 

counsel also engaged in a lengthy exchange with the district court and responded to the 

court’s initial assessment that cross-examination was unnecessary. Furthermore, the district 

court acknowledged even after implementing its alternative questioning that Dartez’s 

objection was “noted.” 

2 If he was an adverse witness, then the district court’s policy of not placing probation 

officers under oath would not be sufficient to find good cause for preventing crossexamination existed. “We cannot sanction a finding of good cause based on the mere 

recitation of a blanket agency policy without any assessment of the strength of the parolee’s 

competing interest in examining the witness.” Williams v. Johnson, 171 F.3d 300, 306–07 

(5th Cir. 1999) (footnote omitted). The balancing of interests requires a “particularized 

inquiry.” See id. at 306.

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not reach this question because any potential failure by the district court in 

denying Dartez’s right to confront Officer Clark would be harmless. See 

Justice, 430 F. App’x at 280 (considering whether the error was harmful). First, 

the Dairy Queen incident observed by Officer Clark did not trigger mandatory 

revocation. Cf. Jimison, 825 F.3d at 264 (“[A]ll this should be considered in the 

context of the heightened interest in confrontation that a defendant has when 

facing violations like the ones here that result in mandatory revocation”); 

Justice, 430 F. App’x at 280 (finding harmful error when the out-of-court 

statements were the only evidence linking defendant to a Grade A violation 

that required mandatory revocation of supervised release). Moreover, the 

Dairy Queen incident was not Dartez’s only violation. Dartez failed to attend 

classes at the halfway house, possessed unauthorized cell phones, and 

possessed an internet-enabled portable gaming system, all of which 

contributed to the district court’s decision. Testimony from other witnesses and 

evidence presented at the hearing substantiated these violations. Finally, 

Dartez articulates no specific inquiries that were foreclosed by the district 

court’s alternative questioning. In sum, there were multiple other violations of 

the terms of Dartez’s supervised release, and these were sufficient to justify 

the revocation.

III. CONCLUSION

For the foregoing reasons, we hold any error by the district court was 

harmless. We therefore AFFIRM the district court’s revocation of Dartez’s 

supervised release.

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