dissenting.
The district court found that the defendant violated four conditions of his probation: 1) failure to appear before his probation officer; 2) failure to submit a written report to his probation officer; 3) unauthorized presence outside the district; and 4) unauthorized change of address.
The evidence of the first violation was the testimony of the defendant’s probation officer, Jeff Michels: “On September 6, I ordered Mr. Tracy over the phone to my office. On September 7 at 1 o’clock he failed to report at that time.” Tr. 3. The evidence of the second violation was further testimony by Jeff Michels: “And the first contact I had with him after that date [September 7] was in court. He failed to submit the monthly report for that month or any of the subsequent months.” Tr. 3-4. Cross-examination of Michels on this violation went as follows:
Q. Mr. Michels, Mr. Tracy did file monthly reports with you, didn’t he?
A. He did.
Q. Which months did he file for?
A. I don’t recollect.
Q. And he has reported to you on numerous occasions, hasn’t he?
A. He has.
Q. Do you recall when he reported to you?
A. I don’t have the dates.
Tr. 9-10.
The evidence of the fourth violation, unauthorized change of address, was the testimony of Jeff Michels, which included hearsay on what a certain resident told Michels:
Q. As his probation officer, do you know where Mr. Tracy was living during the period he was supervised by you, at all times?
A. I do. I attempted to do a number of home visits with — at Mr. Tracy’s residence after he failed to appear for the appointment in September.
I wasn’t able to locate anyone at that house until September 20th when I spoke to a resident who indicated that he no longer lived at that residence and that he had moved his things out several weeks prior to that.
Although the hearsay testimony on what the resident said cannot be used to prove a probation violation, Michels’ testimony that he couldn’t find the defendant at the residence is some evidence that the defendant may have changed his residence. The hearsay problem will be discussed at length in regard to evidence of the third probation violation.
The evidence of the third violation, unauthorized presence outside the district, is most problematic as it came entirely in the form of hearsay testimony by Jeff Michels: “I spoke on, I believe, September 18th to Officer Warren of the Ontario Police Department. He indicated that he had spoken to Mr. Tracy several times in regard to a number of incident reports that had been submitted to his department.” Tr. 7.
The rule on hearsay in a probation revocation proceeding was discussed in a fairly recent Ninth Circuit case:
In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the Supreme Court held that the confrontation clause, as incorporated by the due process clause of the Fourteenth Amendment, requires probationers and parolees to have some right to confront and cross-examine adverse witnesses. They pos*1030sess the right unless the hearing officer specifically finds good cause for not allowing confrontation. Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604; Gagnon, 411 U.S. at 786, 93 S.Ct. at 1761.
United States v. Simmons, 812 F.2d 561, 564 (9th Cir.1987).
In the instant case the district judge did not specifically find good cause for not allowing confrontation with the Oregon police officer. After the defendant objected to the hearsay the judge said, “Well, I think that the rules are somewhat expanded on probation violation hearings. I think you need to establish a little bit of a basis for me to believe this form of hearsay.” Tr. 5. The State proceeded to elicit the hearsay testimony from Jeff Michels. After another objection by the defense, the following colloquy ensued:
THE COURT: Why don’t you tell me what you’re trying to prove?
MR. HICKS: That he was out of the state for a period of time. That’s where we’re headed.
THE COURT: Yes, I’ll let you proceed.
Tr. 7. No attempt was made by the State to show good cause for not allowing confrontation, and the judge made no finding of good cause. The defendant’s Sixth Amendment right to confront adverse witnesses was violated, and therefore the testimony concerning what the Oregon officer said cannot be used as proof of the third probation violation.
Because the district judge’s decision to revoke probation and impose the three year sentence (with one year fixed) was based in part on the unauthorized presence outside of the district violation, the case must be remanded to the district court for a new revocation determination based solely on the other three violations. Furthermore, the district judge must also decide whether the fourth violation, unauthorized change of residence, was proved when only that part of Michels’ testimony that was not hearsay is considered.