# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 19

- 50851

**United States of America,**
Plaintiff

— Appellee **,**

versus
**Nathan Darnell McDowell,**
Defendant

— Appellant

**.**

Appeal from the United States District Court for the Western District of Texas USDC No. 7:16

- CR

- 119

- 1

Before **Smith, Willett,** and **Duncan,** Circuit Judges

**. Jerry E. Smith,**  Circuit Judge **:**
The district judge revoked Nathan McDowell ’ s supervised release (“SR”) after find ing he violated three conditions of his release by assaulting and robbing another with a firearm

. Though he raised no objec tion at the revocation hearing , McDow ell contends th e district court erred in con sid er
ing the victim’s out

- of

- court statements without specifically finding good

cause to contravene McDow ell’s right to con frontation. Because it ’ s not clear that district courts must make th at find ing sua sponte , and because any such error would not have affected McDow ell ’ s substantial rights, w e find no plain error and affirm. United States Court of Appeals Fifth Circuit 

### FILED August 31, 2020

Lyle W. Cayce Clerk Case: 19-50851 Document: 00515546043 Page: 1 Date Filed: 08/31/2020No. 19

- 50851

2 I. In 2016, McDowell was sentenced to one year of imprisonment and three years of SR for distributing cocaine

. Two years later , the government initiated revocation proceedings , alleging that McDowell had violated three conditions of SR by committing another crime, possessing a firearm, and associating with other s engaged in criminal activity. The government ’ s allegations stemmed from a n assault and robbery of which McDowell was accused

. T he victim called 911 for assistance min

utes after the assault , reporting that he had been assaulted and robbed by McDowell, whom he knew personally, and two other s he did not know

. The victim told th e 911 dispatcher that McDowell threatened him with a handgun, punched and kicked him, and robbed him. A few hours later, the victim went
to the police station and made a formal report with the same allegations

. A few days later, Detective Justin Caid followed up with the victim to interview him about the assault, and the victim again identified McDowell as his assailant

. At the revocation hearing, McDowell pleaded not true to the allega

tions. The victim did not testify, and no physical evidence was entered. The only evidence identifying McDowell as the victim ’ s assailant was Caid ’ s testimony. Caid testified that he listened to the recording of the 911 call and that the victim identified McDowell, said that he and two others had assaulted and robbed him, and said that McDowell had a handgun. Caid also testified that the victim sounded “ out of breath ” and “ stressed out ” and told the 911 dispatcher he had fled the scene in fear that McDowell would return and shoot him.
Caid then relayed two other instances of the victim ’s telling his story. He testified that the victim came to the police department a few hours after Case: 19-50851 Document: 00515546043 Page: 2 Date Filed: 08/31/2020No. 19

- 50851

3 the assault and made the same allegations. Finally, Caid testified that a few days later he i nterviewed the victim at his home, where the victim again stated that McDowell assaulted him and had a handgun. Although McDowell’s counsel argued the victim ’ s untested credibil

ity rendered the evidence insufficient, no hearsay or due process objection to the testimony was ever raised. The d istrict c ourt accepted the testimony with out comment and , based on it, found that McDowell had violated the conditions of SR and revoked it.

II. McDowell contends on appeal that the district court violated his due process rights by admitting hearsay testimony without making a specific find

ing of good cause to dispense with his right to confront the witness against
him. Though the C onfrontation C lause does not apply to revocation pro

ceed ings, “ [b]ecause a person ’ s liberty is at stake, ” defendants have a due

pro cess right “ to confront and cross

- examine adverse witnesses. ” United
States v. Grandlund , 71 F.3d 507, 5 09

− 10 (5th Cir. 1995)

. “ [ U] nlike the Sixth
Amend ment ’ s unconditional right to confront witnesses at trial, ” that right is quali fied. United States v. Jimison , 825 F.3d 260, 263 (5th Cir. 2016)

. The district court may deny confrontation if it specifically finds good cause for doing so. I d

. In determining whether there is good cause, courts must balance the defendant ’ s interest in confronting the particular witness against the govern

ment ’ s interest in the matter

. Grandlund , 71 F.3d at 510. When the court

excuses con frontation , it “ must specifically find good c ause and must make the reasons for its finding part of the record

. ” United States v. Minnitt , 617 F.3d 327, 333 (5th Cir. 2010). The district court made no such finding on Case: 19-50851 Document: 00515546043 Page: 3 Date Filed: 08/31/2020No. 19

- 50851

4 the record. It is based on th at omission that McDowell appeals.

B ecause McDowell did not object in the district court, we review for plain error only

. **F ED** 

**. R.**  **C RIM** 

**. P** 

**.** 52(b); United States v. Williams , 847 F.3d 251, 254 (5th Cir. 2017). To establish plain error, McDowell must show “ (1) an error or defect not affirmatively waived; (2) that is ‘ clear or obvious, rather than subject to reasonable dispute ’ ; and (3) that affected his substantial rights. ” United States v. Ponce

- Flores , 900 F.3d 215, 217 (5th Cir. 2018) (quoting Puckett v. United States , 556 U.S. 12 9 , 135 (2009))

. If he can show all three, we should exercise our discretion to correct the error only if it “ seriously affects the fairness, integrity or public reputation of judicial proceedings. ” Molina

- Martinez v. United Sta tes , 136 S. Ct. 1338, 1343 (2016) (quoting United States v. Olano , 507 U.S. 725, 736 (1993) ). For two reasons, t he district court ’ s failure to make a specific good

cause finding is not plain error. First, it is n either clear n or obvious that a court is required to make such a finding whe re the defendant makes no hear

say or confrontation objection. Though there is ample authority requiring an explicit good

- cause finding, those cases differ from this one because there the respective defendant s objected o n confrontation grounds. See, e.g. Jimison , 825 F.3d at 262; Minnitt , 617 F.3d at 331; Grandlund , 71 F.3d at 509. McDow ell concedes that he made neither a hearsay nor a d ue process objec

tion. Instead , he maintains that pointing to the victim ’ s untest ed credibility in closing argument was enough to place the issue before the district court. But that is both too general and too far removed from the testimony at issue to be construed as a relevant objection. 1 There is no authority requiring a specific g ood

- cause finding in the

1 Cf. United States v. Stanfield , 360 F.3d 1346, 1360 (D.C. Cir. 2004) (finding a request to subpoena a hearsay declarant insufficiently specific to count as an objection). Case: 19-50851 Document: 00515546043 Page: 4 Date Filed: 08/31/2020No. 19

- 50851

5 absence of an objection. On the contrary, the limited persuasive authority available indicates district court s are not required to make such a finding sua sponte

. 2 Nor would it be sensible to require courts to do so

. A bsent an objec

tion, the district court has no reason to know it should be balancing a defen

dant ’ s confrontation interest against the gov ern ment ’ s inter ests. And the contrary rule could create a p erverse incentive for defen dants to withhold an objection specifically hoping the court might neglect to conduct a test it has not been notified it must do. In any event , an error , to be plain, must be clear under current law

. Ponce

- Flores , 900 F.3d at 218. T he absence of authority and contrary persua

sive authority are enough to muddy the clarity required for a n error to be plain. Id. at 218

− 19. Second, because of the nature of the particular hearsay at issue, McDowell cannot show the district court’ s omission

— were it a clear error

— affected his substantial rights , i.e. , “ affected the outcome of the district court proceedings

. ” Puckett , 556 U.S. at 135 (quoting Olano , 507 U.S. at 734). Had the court conducted a sua sponte balancing test, it could have found good

cause to consider , at the very least, the 9 11 call without confrontation.

The C onfrontation C lause entitles defendants to cross

- examine out

of

- court declarants only whe re their statements are testimonial. See Craw ford v. Washington , 541 U.S. 36 , 50−53 (2004). The due process right to confront wit nesses in revocation proceedings is a qualified version of th at right. Due Process ’ s more limited requirements cannot exceed the bounds of the Sixth Amendment right

. Th erefore, there is no due process right to cross

- examine

2 See, e.g. , United States v. Mendoza , 414 F. App’x 714, 718 (5th Cir. 2011) (p er curiam); Stanfield , 360 F.3d at 1359

– 60 ; United States v. Pratt , 52 F.3d 671, 677 n.4 (7th Cir. 1995) ; United States v. Alaniz

- Alaniz , 38 F.3d 788, 791 (5th Cir. 1994). Case: 19-50851 Document: 00515546043 Page: 5 Date Filed: 08/31/2020No. 19

- 50851

6 nontestimonial declarants in revocation proceedings.

Stateme nt s made in response to an ongoing emergency on a 911 call are not testimonial. Davis v. Washington , 547 U.S. 813, 828

− 29 (2006); United States v. Polidore , 690 F.3d 70 5, 71 2 (5th Cir. 2012). The call to 911 identi fying McDowell as the assailant was placed minutes after the as sault

. T he victim sounded “out of breath” and “ stressed out ” and reported that he had “fled the scene in fear that McDowell would return and shoot him. ” Th o se statements are not akin to live testimony. See D av is , 547 U.S. at 828. There fore, the y do not trigger the requirements of the C onfrontation C lause, let alone due process.
McDowell thus cannot show that even if the district court had con
ducted a sua sponte balancing, it would have found good cause to prohibit the use of the 911 call

. Nor can he show that the 911 call on its own, without the follow

- up police report or interview with Caid, would not have been enough to support the judge ’s finding that the allegation was true. Therefore, McDowell ’ s substan tial rights were not affected.

**AFFIRMED**

**.** Case: 19-50851 Document: 00515546043 Page: 6 Date Filed: 08/31/2020