Case: 13-40202 Document: 00512333299 Page: 1 Date Filed: 08/06/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 6, 2013
No. 13-40202
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RONALD KENDRIC MCCOY,
Defendant-Appellant
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 4:04-CR-38-1
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Ronald Kendric McCoy appeals from the order of the district court
revoking his term of supervised release and imposing a 12-month term of
imprisonment. He also moves for release pending appeal and moves for this
court to strike the Government’s brief; both motions are denied.
First, McCoy argues that several witnesses were allowed to testify at his
revocation hearing without the defense having received copies of their prior
statements. However, McCoy does not identify these witnesses and therefore
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 13-40202
has failed to brief his contention for appeal. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Second, McCoy contends that he was deprived of his right to confront and
cross-examine the employees of Guild Mortgage, in violation of the Fifth and
Sixth Amendments and Rule 32.1 of the Federal Rules of Criminal Procedure.
He bases this argument on the presentation of the hearsay testimony of
Probation Officer Simone Norman concerning a letter e-mailed to the company
wherein McCoy applied for a mortgage instead of testimony from employees of
the company. Moreover, argues McCoy, there was no finding made that good
cause existed for denying cross-examination and confrontation. Because
Norman testified at McCoy’s allocution hearing–which occurred after the
revocation hearing before the magistrate judge–our review of the Confrontation
Clause contention is de novo. See United States v. McCormick, 54 F.3d 214, 219
(5th Cir. 1995).
Although a defendant has a right to confront and cross-examine adverse
witnesses at a revocation hearing, that right may be denied if there is good cause
for doing so. United States v. Minnitt, 617 F.3d 327, 333 (5th Cir. 2010). The
district court must make a specific finding of good cause and must state these
reasons on the record. Id. “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. A
failure to articulate reasons may constitute harmless error if the basis of good
cause is apparent in the record and the finding is implicit in the district court’s
rulings. Id.
The issue as to which counsel sought to question Guild Mortgage
employees was whether the e-mail came from McCoy’s account. Norman’s
testimony established that her electronic communications from McCoy came
from the same e-mail account as the e-mail in which the fraudulent mortgage
application was submitted to the mortgage company. The district court did not
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No. 13-40202
explicitly conduct the required balancing test before denying McCoy the right to
confront the recipients of the e-mail and application. See id. However, the basis
for a finding of good cause is implicit in the record. The district court did not
believe that Smith could add anything as to whether e-mail from McCoy’s e-mail
account was actually sent by McCoy. Moreover, Norman’s testimony indicated
that the e-mail account belonged to McCoy. Any Confrontation Clause error was
harmless. See id.
Third, in his reply brief, McCoy argues that the Government erroneously
asserted in its appellee’s brief that he was proven to be the aggressor in the
alleged assault incident because witnesses, including the alleged victim, testified
that he was not. He also argues that the Government erroneously alleged that
he falsified a police report because a police officer stated that a letter placed in
evidence indicated that he owed no debt to the collection company. McCoy does
not argue these issues beyond stating them, and he therefore has failed to brief
the issues for appeal. See Brinkmann, 813 F.2d at 748.
AFFIRMED. MOTIONS DENIED.
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