United States Court of Appeals

for 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 finding he violated three conditions of his release by assaulting 

and robbing another with a firearm. Though he raised no objection at the 

revocation hearing, McDowell contends the district court erred in considering the victim’s out-of-court statements without specifically finding good 

cause to contravene McDowell’s right to confrontation. Because it’s not 

clear that district courts must make that finding sua sponte, and because any 

such error would not have affected McDowell’s substantial rights, we find no 

plain error and affirm.

United States Court of Appeals

Fifth Circuit

FILED

August 31, 2020

Lyle W. Cayce

Clerk

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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 others engaged in criminal activity.

The government’s allegations stemmed from an assault and robbery

of which McDowell was accused. The victim called 911 for assistance minutes after the assault, reporting that he had been assaulted and robbed by 

McDowell, whom he knew personally, and two others he did not know. The 

victim told the 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 allegations. 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 

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the assault and made the same allegations. Finally, Caid testified that a few 

days later he interviewed 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 credibility rendered the evidence insufficient, no hearsay or due process objection to

the testimony was ever raised. The district court accepted the testimony

without 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 finding of good cause to dispense with his right to confront the witness against 

him. Though the Confrontation Clause does not apply to revocation proceedings, “[b]ecause a person’s liberty is at stake,” defendants have a due 

process right “to confront and cross-examine adverse witnesses.” United 

States v. Grandlund, 71 F.3d 507, 509−10 (5th Cir. 1995). “[U]nlike the Sixth 

Amendment’s unconditional right to confront witnesses at trial,” that right 

is qualified. 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. Id.

In determining whether there is good cause, courts must balance the 

defendant’s interest in confronting the particular witness against the government’s interest in the matter. Grandlund, 71 F.3d at 510. When the court 

excuses confrontation, it “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). The district court made no such finding on 

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the record. It is based on that omission that McDowell appeals.

Because McDowell did not object in the district court, we review for 

plain error only. FED. R. CRIM. 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. 129, 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 States, 136 S. Ct. 1338, 1343 (2016) 

(quoting United States v. Olano, 507 U.S. 725, 736 (1993)).

For two reasons, the district court’s failure to make a specific goodcause finding is not plain error. First, it is neither clear nor obvious that a 

court is required to make such a finding where the defendant makes no hearsay or confrontation objection. Though there is ample authority requiring an 

explicit good-cause finding, those cases differ from this one because there the 

respective defendants objected on confrontation grounds. See, e.g. Jimison, 

825 F.3d at 262; Minnitt, 617 F.3d at 331; Grandlund, 71 F.3d at 509. 

McDowell concedes that he made neither a hearsay nor a due process objection. Instead, he maintains that pointing to the victim’s untested 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 good-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).

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absence of an objection. On the contrary, the limited persuasive authority 

available indicates district courts are not required to make such a finding sua 

sponte.

2 Nor would it be sensible to require courts to do so. Absent an objection, the district court has no reason to know it should be balancing a defendant’s confrontation interest against the government’s interests. And the 

contrary rule could create a perverse incentive for defendants 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. The absence of authority and contrary persuasive authority are enough to muddy the clarity required for an 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 911 call without confrontation.

The Confrontation Clause entitles defendants to cross-examine outof-court declarants only where their statements are testimonial. See Crawford 

v. Washington, 541 U.S. 36, 50−53 (2004). The due process right to confront 

witnesses in revocation proceedings is a qualified version of that right. Due 

Process’s more limited requirements cannot exceed the bounds of the Sixth 

Amendment right. Therefore, 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) (per 

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).

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nontestimonial declarants in revocation proceedings.

Statements 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 705, 712 (5th Cir. 2012). The call to 911 

identifying McDowell as the assailant was placed minutes after the assault. 

The 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.” 

Those statements are not akin to live testimony. See Davis, 547 U.S. at 828. 

Therefore, they do not trigger the requirements of the Confrontation Clause, 

let alone due process.

McDowell thus cannot show that even if the district court had conducted 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 substantial rights were not affected.

AFFIRMED.

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