IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60281

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

CLOIST JIMISON, JR., 

 Defendant - Appellant

Appeal from the United States District Court 

for the Southern District of Mississippi

Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.

GREGG COSTA, Circuit Judge:

Defendants in supervised release revocation proceedings have a 

qualified right to confront witnesses. Unlike a defendant’s Sixth Amendment 

right “to be confronted with the witnesses” testifying at trial, the confrontation 

right at revocation hearings that flows from the Due Process Clause can be 

overcome by a showing of “good cause.” United States v. Minnitt, 617 F.3d 327, 

332–33 (5th Cir. 2010). Cloist Jimison, Jr. argues that the district court 

violated even this more limited right to confrontation at his revocation hearing 

when it allowed a law enforcement officer to testify about an informant’s 

statements and identification of the defendant. We agree and vacate the 

revocation order.

United States Court of Appeals

Fifth Circuit

FILED

June 8, 2016

Lyle W. Cayce

Clerk

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I.

Jimison was convicted of being a felon in possession of a firearm and 

served a 51-month term of imprisonment. Two years into his supervised 

release term that followed, the Government sought revocation based on a series 

of alleged violations of his release conditions. Jimison admitted to ten Grade 

C violations, mostly involving positive drug tests and failure to properly report 

to his probation officer, and denied three alleged Grade A violations. These

more serious violations concerned illegal and counterfeit drug sales. They were

based on three Mississippi state court indictments, but Jimison had not been 

tried or arrested on any of the charges. 

The only evidence regarding the drug transactions presented at the 

revocation hearing was testimony from Special Agent Dodder of the 

Mississippi Bureau. Dodder testified that Jimison sold drugs to a confidential 

informant in three controlled buys. Dodder did not personally witness the drug 

deals, but said that he had seen a video recording, and had been involved with 

the investigation. He did not remember a number of facts about the drug buys, 

including whether Dodder was present when the informant set up the buys, 

where exactly they took place, or how far away he and other agents were during 

the deals. No audio or video recording was presented to the court nor made 

available to Jimison. Dodder also testified about showing the confidential 

informant a photo lineup from which he said the informant identified Jimison

as the person who sold him drugs. 

Jimison’s attorney objected on confrontation grounds to Dodder’s 

testimony about events he did not observe and the denial of an opportunity to 

cross examine the confidential informant. Without specifically ruling on the 

right to confrontation objection, the district court “note[d] the grand jury 

indictments, but particularly the audio and video evidence that ha[d] been 

testified about, and . . . conclude[d] that the government ha[d] met its burden 

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to prove these three violations by a preponderance of the evidence.” The 

district court did not make a specific finding as to good cause to allow Agent 

Dodder’s hearsay testimony.

The district court’s finding that Jimison had committed Grade A 

violations triggered mandatory revocation of supervised release. U.S.S.G.

§ 7B1.3(a)(1) (2015).1 Following the Guideline applicable to Grade A 

violations, that court sentenced Jimison to 24 months in prison followed by 

another supervised release term of 12 months. 

II.

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. Minnitt, 617 F.3d at 332. 

In determining the scope of the right to confrontation at revocation 

hearings, we follow Supreme Court precedent addressing that right in the 

similar context of parole proceedings. United States v. Grandlund, 71 F.3d 

507, 510 n.5 (5th Cir. 1995) (“The same due process rights granted to those 

facing revocation of parole are required for those facing revocation of 

supervised release.”). The confrontation right in these nontrial proceedings 

that nonetheless may result in a deprivation of the defendant’s liberty is 

governed by the Due Process Clause. See Morrissey v. Brewer, 408 U.S. 471, 

481–82 (1972) (establishing due process rights of parolees in revocation 

hearings). As with other due process inquiries, a balancing approach is used 

to determine whether the right to confront witnesses at revocation proceedings 

is violated. Id. at 481 (noting that “due process is flexible and calls for such 

procedural protections as the particular situation demands”). Thus unlike the 

 

1 The Grade C violations to which Jimison admitted do not require revocation; a judge 

may decide to revoke, extend, or modify the supervised release conditions. U.S.S.G. 

§ 7B1.3(a)(2). 

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Sixth Amendment’s unconditional right to confront witnesses at trial, “the 

hearing officer [may] specifically find[] good cause for not allowing 

confrontation” at a revocation hearing. Id. at 489. 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.” Minnitt, 617 F.3d at 333. We have held that 

a district court is required to make “an explicit, specific finding of good cause” 

for not allowing confrontation of a particular witness. Grandlund, 71 F.3d at 

510 n.6; see also Minnitt, 617 F.3d at 333 (noting that a finding of good cause 

in the record is required). 

With these principles in mind, we first consider whether the testimony 

at the revocation hearing implicated Jimison’s right to confront witnesses 

testifying against him. Much of Dodder’s testimony was offering out-of-court 

statements of the informant. Most significant is Dodder relaying that the 

confidential informant picked Jimison’s picture out of a photo lineup. See FED.

RULE EVID. 801(d)(1)(C) (excluding statements relating to pretrial 

identifications from the definition of hearsay only if the declarant testifies at 

trial); see also, e.g., United States v. Owens, 484 U.S. 554, 560 (1988) (noting 

that evidence of an out-of-court identification “would traditionally be 

categorized as hearsay”); CHRISTOPHER B. MUELLER AND LAIRD C.

KIRKPATRICK, 4 FEDERAL EVIDENCE § 8:41 (4th ed. 2015) (explaining that a law 

enforcement officer who was present at a pretrial identification may testify 

about it but only if the identifier is also subject to cross examination) (citing

cases including United States v. Cueto, 611 F.2d 1056, 1063 (5th Cir. 1980)). 

Other portions of Dodder’s testimony—there was not a lot of it, as his direct 

testimony takes up less than five pages of transcript—appear to recount

information from the informant about which Dodder lacked personal 

knowledge. For example, Dodder testified that before the controlled buys, the 

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informant “arranged to purchase methamphetamine from Mr. Jimison via 

telephone or text message.” But Dodder acknowledged on cross examination 

that he did not recall if he was with the informant when he either texted or 

called Jimison to arrange the three buys. He further testified about money 

given to the informant before the buys and the amount of drugs the informant 

received in return after the meetings. Finally, for each of the three occasions 

at issue, Dodder testified to the bottom line: that the informant “met Mr. 

Jimison, and at that time Mr. Jimison sold him” drugs.

Even after defense counsel raised an objection based on confrontation 

rights, the Government did not cite any good cause for not calling the 

informant and the district court did not make any such finding. That failure 

to engage in the balancing test that sometimes permits hearsay testimony at 

revocation proceedings may seem like it should resolve this appeal. But 

“failure to articulate the reasons may be found to be harmless error where good 

cause exists, its basis is found in the record, and its finding is implicit in the 

court’s rulings.” Minnitt, 617 F.3d at 333 (internal quotation marks omitted). 

We therefore look to whether good cause exists by weighing the defendant’s 

interest in confronting the particular witness against any interest the

government had in preventing such an opportunity that is apparent from the 

record. Id. 

Jimison had a strong interest in questioning the informant. Dodder’s 

testimony was the only evidence offered in court to prove the Grade A 

violations. Three aspects of that testimony purportedly identified Jimison as 

the drug dealer: statements from the informant, the informant’s out-of-court 

identification, and the video recording.2 Only the final topic on that list does 

 

2 Any of Dodder’s own contemporaneous observations that he recounted—and again, 

it’s unclear if he was even present when the informant was being “wired up” to go out and do 

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not give rise to a confrontation right. Although a video recording ordinarily is

at the top of the evidentiary food chain,3 that was not the case here. The video 

itself was not introduced. And Dodder had not viewed the video in over a year. 

Not surprisingly, his recollection about what the video showed was hazy. 

When asked details like the location of the buys or whether the informant 

approach Jimison, Dodder responded that he did not remember. Most 

significantly, at no point in his testimony did Dodder state that he identified 

Jimison from the video. The crucial fact of Jimison’s identify was thus based 

entirely on hearsay evidence, and almost surely had a significant effect on the 

court’s ruling. And all 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. See id. 

We next consider the Government’s side of the due process inquiry. 

Though it did not specify any reason for not having the informant testify, the 

reluctance to call such witnesses is well known.4 But without any details about 

a need to keep the identity of this particular informant confidential, we are 

unable to infer a strong interest on the Government’s part. Assuming that 

Jimison was dealing to the informant as the Government contends, Jimison

would likely already know the identity of the informant after entering into 

three transactions with him. And any testimony at the revocation hearing 

could be sealed to prevent further public disclosure. Indeed, we have 

 

the buys—would establish only that the informant went out with money and came back with 

drugs. His personal observations would not establish the identity of the seller, which was 

the contested issue.

3 See Scott v. Harris, 550 U.S. 372, 378–81 (2007) (recognizing that although courts 

must view evidence in the light most favorable to the nonmoving party at summary judgment, 

when that party’s version is clearly contradicted by videotape evidence, the court instead 

views the facts “in the light depicted by the videotape”). 4 Indeed a primary reason for making recordings—like the type Dodder testified were 

made in this case but not presented to the district court—is so the recording itself can be used 

to prevent the need to call the confidential informant.

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previously indicated that hearsay testimony from a confidential informant 

should not be admitted at revocation hearings absent a “specific finding” that 

good caused excused the informant from testifying. United States v. 

McCormick, 54 F.3d 214, 226 n.49.

We have also recognized that the government may prevail in the 

balancing inquiry when the hearsay testimony has strong indicia of reliability. 

Id. at 223 (“The reliability of the hearsay is an important consideration in 

determining whether sufficient good cause exists to forego confrontation.”). 

This is the reason we have repeatedly found a district court’s failure to make 

a good cause finding harmless when the hearsay evidence related to laboratory 

drug tests. See Minnitt, 617 F.3d at 334–35; McCormick, 54 F.3d at 222–26; 

Grandlund, 71 F.3d at 510–11; United States v. Kindred, 918 F.2d 485, 487 

(5th Cir.1990); see also United States v. Justice, 430 F. App’x 274, 277–78 (5th 

Cir. 2011) (discussing the significance of scientific evidence versus testimony 

in which credibility is more at issue). In such cases, we have noted that the 

need to cross examine is less substantial because there are other ways to 

impeach scientific evidence, McCormick, 54 F.3d at 222–23, and as regular 

business records, lab reports bear a “substantial indicia of reliability,” id. at 

223. Absent any reason to doubt the tests used in a defendant’s case, we have 

rejected appeals challenging the hearsay recounting of lab results in revocation 

proceedings. See, e.g., Kindred, 918 F.2d at 487 (holding that there was no 

violation in Government’s use of urinalysis test where defendant did not 

contest either the allegations of drug use or the accuracy of the test). Indeed, 

Dodder also testified about lab results in Jimison’s case, but Jimison does not 

cite those as the statements on which he wanted a right to confront the 

declarant.

Instead, he focuses on the testimony identifying him as the seller, which 

involves the “credibility choice” between the declarant and the supervisee for 

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which the interest in allowing confrontation is more significant. See Justice, 

430 F. App’x at 278. We therefore have often found that good cause is lacking 

in cases in which the supervisee was denied the opportunity to examine 

eyewitnesses to the underlying allegations. See id. at 278–79; McBride v. 

Johnson, 118 F.3d 432, 438–39 (5th Cir. 1997); Farrish v. Miss. State Parole 

Bd., 836 F.2d 969, 978 (5th Cir. 1988). We have further noted that allowing 

such testimony through a police officer can be particularly damaging in light 

of an officer’s perceived credibility. Farrish, 836 F.2d at 978. And, even in the 

world of eyewitness testimony where credibility is paramount, concern over the 

credibility of informants has given rise to a whole body of case law. See, e.g., 

Illinois v. Gates, 462 U.S. 213, 232–35 (discussing factors relevant to whether 

an informant’s tips are credible). So have issues concerning the reliability of 

out-of-court identifications. See, e.g., Manson v. Brathwaite, 432 U.S. 98, 114 

(1977) ([R]eliability is the linchpin in determining the admissibility of 

identification testimony. . .”); United States v. Moody, 564 F.3d 754, 762-63

(5th Cir. 2009) (listing five factors courts consider in assessing the likelihood 

of misidentification). And Dodder did not give testimony about facts that might 

have alleviated concerns about the informant’s reliability, including how many 

arrests the informant had helped secure, the benefits he received, and if he 

continued to be an informant after Jimison’s case. On the scale of inherent 

reliability, the hearsay testimony in this case thus lies far away from lab 

reports.

In light of Jimison’s substantial interest in confrontation, the lack of 

record evidence on the Government’s interest in foregoing confrontation, and 

the lack of inherent reliability in the hearsay testimony, we cannot find 

implicit good cause in the record to allow the testimony. Of course, on remand 

the Government may be able to make a particularized showing why 

confrontation is not appropriate. Or it could introduce the video evidence, 

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which may be conclusive. But on the record before us, due process does not 

permit a revocation that is based on hearsay identification testimony from a 

confidential informant.

* * * *

We VACATE the revocation of supervised release and subsequent 

sentence, and REMAND for a new hearing.

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