     Case: 17-40992      Document: 00514784428         Page: 1    Date Filed: 01/07/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit


                                      No. 17-40992                          FILED
                                                                      January 7, 2019
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk

              Plaintiff - Appellee

v.

MARK A. REZA,

              Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 6:13-CR-16-1


Before JONES, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Appellant Mark Reza challenges his prison sentence imposed by the
district court for violating the terms of his supervised release agreement. Reza
contends that his due process rights were violated when the court admitted
hearsay testimony containing domestic violence allegations by Reza’s
girlfriend. The district court relied on that testimony, among other evidence,
to determine that Reza more likely than not committed a Grade A violation of




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40992
his supervised release agreement, sending him back to prison for a term of
twenty-one months. For the reasons set forth in this opinion, we AFFIRM.
                                       I
      Reza pleaded guilty in July 2013 to one count of possession of a firearm
by a prohibited person in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He
was sentenced to thirty-seven months in prison, followed by three years of
supervised release.     The court imposed multiple conditions on Reza’s
supervised release, including that Reza participate in a mental health program
and refrain from committing another state, federal, or local crime.        Reza
completed his prison term and began supervised release in March 2016.
      In September 2017, Reza’s probation officer filed a petition to revoke his
supervised release based on three alleged violations: (1) Reza was charged with
a March 8, 2017 state law violation in Harris County for assault domestic
violence; (2) Reza was charged with a September 12, 2017 state law violation
in Harris County for burglary with intent to commit assault; and (3) Reza
failed to comply with the rules and regulations of his court-ordered mental
health program and was discharged from the program.             Reza admitted
violation (3), a Grade C violation of his supervised release with a sentencing
range of 5–11 months in prison, but he denied violations (1) and (2) by
remaining silent.
      The district court chose to hold an evidentiary hearing regarding
violations (1) and (2) to determine whether those allegations satisfied the
preponderance of the evidence standard required to revoke supervised release.
Ultimately, the court found that violation (2) was proven by a preponderance
of the evidence, but violation (1) was not. Violation (2) is a Grade A violation
of Reza’s supervised release, increasing his sentencing guideline range to 18–
24 months. The hearsay testimony used to establish violation (2) is the subject
of this appeal.
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                                No. 17-40992
      Violation (2) stems from a September 11, 2017 incident in which police
responded to a report of domestic violence at the home of Reza’s girlfriend.
When the police arrived, they observed swelling on Reza’s girlfriend’s face and
damage to both the front door of her home and the doorframe of her master
bedroom. Reza’s girlfriend told police that Reza had broken into the home,
kicked open the master bedroom door, and hit her with a closed fist as she
attempted to call 911. She later provided a written statement recounting these
facts with no discrepancies. The government introduced the statement at
Reza’s revocation hearing, and Reza objected on due process grounds because
he did not have the ability to cross-examine his accuser. The court overruled
his objection, citing the reliability of the witness and the presence of other
evidence to corroborate her statement. Reza did not raise a Rule 32.1 objection
at the hearing.
      Reza now appeals the ruling admitting his girlfriend’s testimony and
argues that his sentence should be reduced by ten months to reflect the 5–11
month sentencing range permitted by his admission to Violation (3).
                                      II
      This court reviews a preserved claim that the district court violated a
defendant’s due process right to confrontation in a revocation hearing de novo,
subject to a harmless error analysis. United States v. Jimison, 825 F.3d 260,
262 (5th Cir. 2016) (citation omitted). “Arguments raised for the first time on
appeal,” such as Reza’s Rule 32.1 claim, “are subject to the plain error
standard.” United States v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003)
(citation omitted). To succeed under plain error review, an appellant must
show that (1) there was an error, (2) the error was “clear and obvious,” and
(3) the error affected the appellant’s substantial rights.   United States v.
Henao-Melo, 591 F.3d 798, 801 (5th Cir. 2009) (internal quotation marks and
citation omitted). When an appellant satisfies those three elements, this court
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still “does not exercise its discretion to correct the error unless it seriously
affects the fairness, integrity, or public reputation of judicial proceedings and
results in a miscarriage of justice.” Id. at 802 (internal quotation marks and
citations omitted).
                                       III.
      Reza attacks the court’s decision on two fronts. First, he argues that the
district court’s decision to admit his accuser’s written statement without giving
him an opportunity to cross-examine the witness violated Federal Rule of
Criminal Procedure 32.1(b)(2)(c). Second, he argues that the court’s decision
violated his constitutional right to due process.
      A. Reza’s Federal Rule of Criminal Procedure Claim
      Because Reza raises this argument for the first time on appeal, it is
subject to the plain error standard. See Medina-Anicacio, 325 F.3d at 643.
Rule 32.1 states that a judge must give the accused in a revocation hearing “an
opportunity to . . . question any adverse witness unless the court determines
that the interest of justice does not require the witness to appear.” Fed. R. Crim.
P. 32.1(b)(2)(c) (emphasis added). Here, the district court considered witness
testimony in the form of a written statement from Reza’s girlfriend without
granting Reza the opportunity to confront her. Before doing so, the court took
notice that the witness had proven reliable in the past and was considered
credible by the government, that her account was consistent with the police
report of the event, and that her story was corroborated by contemporaneous
photos showing her injuries and the damage to the front door and interior of
her home.    Given the substantial weight of the evidence supporting the
witness’s written statement, the court’s determination that the interests of




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                                      No. 17-40992
justice did not require allowing Reza to cross-examine her was not a “clear and
obvious” error under Rule 32.1. Thus, Reza cannot prevail on this claim. 1
       B. Reza’s Due Process Claim
       Reza also argues that the district court’s decision violated his Fifth
Amendment right to due process. Revocation hearings are not subject to the
Federal Rules of Evidence, and the right to confront witnesses stems from the
Fifth Amendment right to due process, rather than the Sixth Amendment right
to confront witnesses at trial.
       “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.’” Jimison, 825 F.3d at 261–62 (internal quotation marks and citation
omitted). Determining whether good cause exists to admit hearsay evidence
requires a “balancing approach” that weighs the defendant’s interest in
confronting a witness against the government’s reasons for not allowing
confrontation. Id. at 263. The government’s “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 ruling.” Id. at 264
(internal quotation marks and citation omitted). The government may prevail
in the balancing inquiry when the hearsay testimony has “strong indicia of
reliability.” Id. at 265. When the court determines that good cause exists, it
must issue a “specific finding” to that effect when it admits the hearsay in
question. Id. at 264-65.
       In this case, the government did not offer a specific reason for not calling
Reza’s girlfriend to appear, but the district court plainly found good reasons


       1This court notes that the judge overruled a similar objection (raised on due process
grounds) from Reza’s attorney during the revocation hearing by citing the controlling circuit
precedent and then explaining his reasons for overruling the objection.
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                                  No. 17-40992
why the government may be reluctant to call an alleged victim in a domestic
violence case to provide live testimony. Moreover, the district court was aware
of Jimison and determined that Reza’s girlfriend’s testimony was sufficiently
reliable that considering it without giving Reza an opportunity to cross-
examine her was not unjust to Reza. Courts in other revocation hearings have
admitted hearsay testimony about scientific matters, for example, due to the
credibility and reliability of the testimony. See, e.g., United States v. Minnitt,
617 F.3d 327, 332–34 (5th Cir. 2010).
      As the court noted at the hearing and as this court recounted, supra, the
written statement from Reza’s girlfriend describing the attack was
corroborated by several independent pieces of evidence, including photos and
a police report. The photos, taken at the time of the incident, show bruising on
Reza’s girlfriend’s face and damage to her home. The police report matched
her statement. It is unlikely that any questions asked by Reza on cross-
examination    would    have   countered    the   strength    of   that   evidence.
Furthermore, Reza’s girlfriend had previously cooperated with the police in
other instances and the police considered her to be credible and reliable. Thus,
the due process balancing test in this case tips in favor of the government.
      Reza argues in the alternative that, regardless of the balancing test, the
court’s decision was impermissible because the judge did not clearly issue a
specific finding of good cause. An “explicit, specific finding of good cause” is
required when district courts do not allow confrontation of a witness in a
revocation hearing.     United States v. Grandlund, 71 F.3d 507, 510 n.6
(5th Cir. 1995) (citation omitted). Reza’s characterization of the proceedings is
not entirely accurate, however. The court did find good cause during the




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                                       No. 17-40992
hearing. 2 To the extent that the court expounded on those reasons in a lengthy
supplemental ruling after the hearing, we need not consider whether that
ruling violated Federal Rule of Criminal Procedure 35.
       In sum, because the hearsay testimony was both highly reliable and
corroborated by external sources of evidence, Reza’s due process rights were
not violated by the court’s decision to consider it.
                                             IV.
       Based on the foregoing, this court AFFIRMS Reza’s sentence.




       The court cited controlling circuit precedent (Jimison), explained the applicable legal
       2

standard, and provided reasons why the testimony in this case met that standard.
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