Case: 19-50851 Document: 00515546043 Page: 1 Date Filed: 08/31/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
August 31, 2020
No. 19-50851 Lyle W. Cayce
Clerk
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 consider-
ing 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.
Case: 19-50851 Document: 00515546043 Page: 2 Date Filed: 08/31/2020
No. 19-50851
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 min-
utes 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 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
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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 credibil-
ity 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 find-
ing of good cause to dispense with his right to confront the witness against
him. Though the Confrontation Clause does not apply to revocation pro-
ceedings, “[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 govern-
ment’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 good-
cause 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 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 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 objec-
tion. 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 objec-
tion, the district court has no reason to know it should be balancing a defen-
dant’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 persua-
sive 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 out-
of-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 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 substantial rights were not affected.
AFFIRMED.
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