     Case: 12-40220     Document: 00512046416         Page: 1     Date Filed: 11/07/2012




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

                                                                            FILED
                                                                         November 7, 2012

                                     No. 12-40220                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

ARTURO ELIZONDO,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:04-CR-318-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Arturo Elizondo pled guilty to possessing an unregistered firearm. His
sentence included a three-year term of supervised release. A condition of that
release was a prohibition on committing any other crime. While on supervised
release, Elizondo allegedly assaulted a woman with whom he was living. On the
night of the alleged assault, the woman identified Elizondo as her attacker. She
later recanted. When called to testify at Elizondo’s revocation hearing, she


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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asserted her Fifth Amendment right against self-incrimination. The district
court subsequently determined that Elizondo had committed a crime and
revoked his supervised release. He appeals. We AFFIRM.
                                      FACTS
      On January 28, 2012, Trinity Paddock, a Corpus Christi police officer,
responded to a 911 call. Upon arriving at the identified address, she noticed a
woman, Belinda Garcia Calderon (“Garcia”), sitting in front of a residence.
      Officer Paddock testified at the revocation hearing that Garcia said she
had gotten into a fight with Arturo Elizondo, a man with whom she was
romantically involved. Garcia said Elizondo had punched her in the face
numerous times. Paddock testified that Garcia had a swollen nose and other
injuries that were consistent with being punched. Paddock then said that Garcia
explained that she bit Elizondo on the cheek to defend herself. Paddock also
testified that Garcia did not want to fill out a police report because she was
concerned for her safety.
      Elizondo objected to these statements on due process grounds.           His
objections were overruled. Paddock then testified that she went to Elizondo’s
residence. When she arrived, Elizondo unsuccessfully attempted to barricade
the door. Once inside, Paddock noticed marks on Elizondo’s cheek that were
consistent with his being bitten.
      After Paddock testified, the government called Garcia. Before taking the
witness stand, Garcia’s court-appointed counsel informed the court that Garcia
would invoke her Fifth Amendment right against self-incrimination. After being
sworn and acknowledging she knew Elizondo, Garcia invoked the Fifth
Amendment and refused to answer any other questions.
      Elizondo did not call any witnesses in his defense, instead relying on a
notarized letter Garcia sent to Elizondo’s probation officer two days after the
alleged assault. In the letter, Garcia recanted and stated that there was no

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                                  No. 12-40220

assault. The letter explained that Garcia got into a fight while at a bar, and
when she returned home Elizondo became upset with her behavior. A verbal
altercation ensued. That argument angered her and she decided to falsely
accuse Elizondo of assault as a kind of retribution.
      The district court found that the government had proven by a
preponderance of the evidence that Elizondo assaulted Garcia.          The court
revoked his supervised release. Elizondo appeals.
                                 DISCUSSION
      “A district court may revoke a defendant’s supervised release if it finds by
a preponderance of the evidence that a condition of release has been violated.”
United States v. Minnitt, 617 F.3d 327, 332 (5th Cir. 2010). This court reviews
for abuse of discretion, subject to harmless-error analysis. See id. “[T]he
constitutional challenge about the right of confrontation of adverse witnesses is
reviewed de novo.” United States v. Grandlund, 71 F.3d 507, 509 (5th Cir. 1995).
      Although supervised release hearings have characteristics in common with
typical criminal prosecutions, they are not formal trials. Morrissey v. Brewer,
408 U.S. 471, 480 (1972). This difference manifests itself in a number of ways.
For one, the Federal Rules of Evidence do not apply with the same force.
Grandlund, 71 F.3d at 509-10.       Nor is there the analogous right of self-
representation. United States v. Hodges, 460 F.3d 646, 650 (5th Cir. 2006). Of
more importance here, the defendant does not have a Sixth Amendment right
to confront adverse witnesses. United States v. Williams, 443 F.3d 35, 45 (2d
Cir. 2006); see also Grandlund, 71 F.3d at 510. The ability is not totally absent,
however. The Due Process Clause of the Fifth Amendment has been interpreted
to provide for “a qualified right to confront and cross-examine adverse
witnesses.” Grandlund, 71 F.3d at 510. Yet, because the right is qualified, it
can be overcome upon a district court’s determination that good cause exists. Id.



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If a specific finding of good cause is made, the district court must also state on
the record its reasons for that finding. Id. at n.6.
      Elizondo argues that his due process rights were violated because he was
unable to cross-examine Garcia and the district court failed to make any finding
of good cause.      The government contends, though, that Elizondo did not
sufficiently explain his objection and we should review only for plain error.
      “To preserve error, an objection must be sufficiently specific to alert the
district court to the nature of the alleged error and to provide an opportunity for
correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). Here,
Elizondo’s counsel objected “to the introduction of the Offense Report, and
specifically the statements of the alleged victim. The basis of that objection is
Mr. Elizondo’s due process right to minimal constitutional protections at
revocation hearings, which include the right to confront and cross-examine
witnesses.” Counsel reiterated the objection multiple times during Officer
Paddock’s testimony. That level of specificity was sufficient to preserve the
issue. See United States v. Cherry, 50 F.3d 338, 342 n.8 (5th Cir. 1995); see also
United States v. Carrion, 457 F. App’x 405, 410 n.1 (5th Cir. 2012).
      The government next argues that Elizondo’s due process rights were not
violated because he had the opportunity to cross-examine Garcia.              The
government notes that Garcia was in the courtroom and testified, albeit briefly.
This, the government contends, is sufficient to protect any rights that Elizondo
had in a revocation hearing. Elizondo points out that Garcia refused to testify
regarding any matter, perhaps due to the inconsistencies between her statement
to Officer Paddock and her written recantation. He asserts that his rights were
violated because he had no meaningful opportunity to cross-examine her.
      We reject the government’s argument that the right to cross-examine can
be met so easily. In criminal trials, courts consistently hold that a witness who
invokes her Fifth Amendment right against self-incrimination is “unavailable.”

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United States v. Brooks, 681 F.3d 678, 712 n.29 (5th Cir. 2012); United States v.
Vernor, 902 F.2d 1182, 1186 (5th Cir. 1990) overruled on other grounds
recognized by United States v. Flores, 985 F.2d 770, 774-75 (5th Cir. 1992).
Although those cases involve criminal prosecutions where the defendant has
more robust constitutional rights, they can still be helpful when determining
whether a defendant’s more limited due process rights were violated at a
revocation hearing. In criminal trials, a concern naturally arises that the
defendant will not have the opportunity to cross-examine an unavailable witness
and “test the truth of the witness’s direct testimony.” United States v. Kimble,
719 F.2d 1253, 1257 (5th Cir. 1983).
       That concern is present here, as well. Thus, the right may be violated
when a defendant cannot question a physically present witness. Although
Garcia was in the courtroom and answered a question, her assertion of her
constitutional privilege rendered her unavailable and prevented Elizondo from
having the opportunity to cross-examine her.1 While this conclusion would
usually require reversal in a criminal proceeding, the right to cross-examine in
revocation hearings is not co-extensive with a defendant’s rights at trial. As
explained, Elizondo’s right to cross-examine may be overcome by a showing of
good cause. Grandlund, 71 F.3d at 510.




       1
         Garcia improperly invoked her right. Although no party objected, the district court
should have determined the legitimacy and scope of the invocation. United States v. Mares,
402 F.3d 511, 514 (5th Cir. 2005). “A witness may be totally excused only if the court
determines that he could legitimately refuse to answer essentially all relevant questions.” Id.
(quotation marks omitted). But the error was harmless. Garcia’s statement to Paddock was
wholly inconsistent with the events described in the notarized letter she sent to the probation
officer. As one statement had to be untrue, any answer Garcia gave at the hearing could have
established that she made a false statement under state or federal law. See Tex. Penal Code
§ 37.08(a); 18 U.S.C. § 1001. Accordingly, because Garcia could have – and likely would have
– invoked her right in response to any relevant question, the error was harmless. See United
States v. Highgate, 521 F.3d 590, 594-95 (6th Cir. 2008).

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      The district court’s failure to make applicable findings on good cause “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.” Id. The government
does not analyze the possible good cause. It instead relies solely on its argument
that Elizondo had the opportunity to cross-examine Garcia, thus extinguishing
the requirement to prove good cause. We have already rejected the argument
that Garcia was available.
      Analyzing good cause is made using “a balancing test which weighs the
defendant’s interest in the confrontation of a particular witness against the
government’s interest in the matter. A critical consideration is the indicia of
reliability of the challenged evidence.” Id.
      Elizondo’s interest in finding a means to undermine the putative victim’s
initial statements is certainly a strong one. We do not perceive that interest to
be joined to any meaningful opening for making such a challenge. Two versions
of events were available. The one that fit with the physical facts was that Garcia
had bitten Elizondo, which Officer Paddock’s view of Elizondo’s face corroborated
but did not conclusively prove. That bite had no similar connection to the
alternative version in Garcia’s recantation. Elizondo’s explanation that the
injury to his cheek resulted from falling against his bed was in evidence. The
plausibility of a conveniently timed fall to deny the victim’s statements about a
bite could be weighed by the district court.
      The government’s interest in using Garcia’s initial statements was to offer
the evidence gained immediately after the events, which was consistent with the
physical evidence. The later recantation and refusal to testify were consistent
with the victim’s initial statements that she feared the defendant.
      No doubt the evidence that was admitted without cross-examination at
this revocation hearing was critical to the central issue before the court, namely,
whether Elizondo had violated the terms of his supervised release. Weighing the

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interest of Elizondo in cross-examining must be done in the context of the
specific facts. The evidence was significant, but we do not see that cross-
examination would have provided a significant benefit. On the other hand,
Garcia’s statement was what explained the beating she had received. Thus, the
government’s interest in the evidence weighed strongly.
      Elizondo’s qualified due process rights were not violated.
      Elizondo also contends that the evidence, even with Garcia’s statement,
was insufficient to support revocation. We use an abuse-of-discretion standard
to review the decision to revoke supervised release. United States v. Spraglin,
418 F.3d 479, 480 (5th Cir. 2005). Elizondo focuses on the fact that Garcia
recanted her initial statements. The district court had all the evidence before
it, and choosing Garcia’s original version as corroborated by the physical
evidence was not an abuse of discretion.
      For the first time on appeal, Elizondo also argues the district court should
have made written findings explaining the reasons for the revocation. Due
process requires written findings to explain the revocation of parole. Morrissey,
408 at U.S. 488-89. We have held there should also be findings for revocation of
supervised release. United States v. Ayers. 946 F.2d 1127, 1129 (5th Cir. 1991).
Elizondo did not object, so we review the failure to make findings for plain error.
United States v. Magwood, 445 F.3d 826, 828 (5th Cir. 2008). When the reasons
for the revocation are obvious from the record, the absence of findings will be
considered harmless. United States v. McCormick, 54 F.3d 214, 220 (5th Cir.
1995). The district court stated that Elizondo had violated the terms of his
supervised release. The court also said this: “Other than a broken nose and
black eyes, all is well.” That comment is a clear statement that the district court
accepted that Elizondo had assaulted Garcia.
      There was no plain error in the failure to make findings on the record.
      AFFIRMED.

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