     Case: 18-30272       Document: 00514813400         Page: 1    Date Filed: 01/29/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 18-30272
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
UNITED STATES OF AMERICA,                                                 January 29, 2019
                                                                            Lyle W. Cayce
               Plaintiff – Appellee,                                             Clerk

v.

WILLIAM LORING FERGUSON, III,

               Defendant – Appellant.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CR-277-1


Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.
PER CURIAM:*
       Ferguson appeals the revocation of his probation and the revocation
sentence of 60-month imprisonment.              The district court relied on double
hearsay to revoke Ferguson’s probation but did not make a finding of good
cause to pretermit Ferguson’s interest in confrontation, as it was required to
do. On appeal, the government concedes that this was a reversible error.




       * Pursuant to Fifth Circuit Rule 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should not be published and is not precedent except under the limited circumstances set forth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 Fifth Circuit Rule 47.5.4.
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                                  No. 18-30272
Accordingly, we VACATE Ferguson’s revocation and sentence and REMAND
for a new revocation hearing.
                                        I.
      In 2015, Ferguson pleaded guilty to sending threatening interstate
communications and was sentenced to five years of probation. A year later,
Ferguson was arrested for sending additional threats, and the government
sought to revoke his probation. Both Ferguson and the government then
moved for a competency evaluation. The evaluation determined that Ferguson
was competent but that he was delusional and therefore not criminally liable
for his threats. Based on this determination, the government dropped its
allegation relating to the threats. At a hearing on October 11, 2017, the district
court found Ferguson competent, allowed the government’s revocation motion
to remain open for 60 days, and permitted Ferguson to stay with his sister
during this time.
      Two weeks later, Ferguson was arrested for punching and strangling his
sister.   According to the police report, the officer responding to the scene
listened to an audio recording that Ferguson’s sister provided, in which the
sounds of a struggle could be heard, and observed that she had red and puffy
eyes, a bump on the back of her head, and a disheveled appearance. Although
Ferguson’s sister told the police what had happened, she later recanted her
statement and declined to press charges. The government filed an amended
rule to revoke on the grounds that Ferguson battered his sister and for minor
violations (failures to report, make monthly payments, and notify probation
about a traffic violation).
      On February 21, 2018, the district court held a revocation hearing. The
district court began by asking: “Before we move on, I’ve reviewed all the
papers. . . . Is there any reason why the Court should not impose sentence at
this time? . . . Why shouldn’t I impose the statutory maximum, subject to some
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                                  No. 18-30272
mental health conditions? . . . [T]here’s no doubt that he did it.” Ferguson’s
counsel answered “That’s probably the truth. . . . The event, I have to assume,
obviously happened.” Ferguson, however, denied that he punched or strangled
his sister and contended that he only pushed her away. The district court
asked Ferguson why it should trust him and whether his sister was lying. The
district court then read the police report into the record. Neither Ferguson’s
sister nor the police officer who authored the report testified.        Ferguson
maintained that the allegations in the report were “a little bit of an
embellishment” and that he did not strangle her. After revoking Ferguson’s
probation, the district court sentenced him to 60 months of imprisonment,
though the Guidelines recommended three to nine months.
                                       II.
      Because Ferguson did not object to the district court’s failure to make a
finding of good cause before pretermitting his interest in confrontation, we
review for plain error. Molina-Martinez v. United States, 136 S. Ct. 1338, 1343
(2016); United States v. Ponce-Flores, 900 F.3d 215, 217 (5th Cir. 2018). To
prevail, Ferguson must show that: (1) there was an error; (2) the error was
clear or obvious; (3) the error affected his substantial rights; and (4) the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Ponce-Flores, 900 F.3d at 217.
                                       III.
                                       A.
      The district court made a clear error in failing to make a good-cause
finding before revoking Ferguson’s probation based on hearsay evidence. At a
revocation hearing, a defendant has the due-process right “to refute and
challenge adverse evidence to assure that the court’s relevant findings are
based on verified facts.” United States v. Grandlund, 71 F.3d 507, 509–10 (5th
Cir. 1995); see also Morrissey v. Brewer, 408 U.S. 471, 488–89 (1972) (holding
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that “the minimum requirements of due process” include “the right to confront
and cross-examine adverse witnesses”); Farrish v. Miss. State Parole Bd., 836
F.2d 969, 978 (5th Cir. 1988) (“The use of hearsay . . . prevents the parolee from
confronting and cross-examining the declarant, and unreliable hearsay
undermines the accuracy of the fact-finding process.”).       Unlike the Sixth-
Amendment right to confrontation at a criminal trial, however, the due-process
right to confrontation at a revocation hearing is “qualified” and may be
overcome by a showing of good cause. Grandlund, 71 F.3d at 510. Upon a
showing of good cause, the government may introduce—and a court may
revoke probation or supervised release based on—hearsay evidence without
live testimony. United States v. Williams, 847 F.3d 251, 253–54 (5th Cir. 2017).
      “Determining whether good cause exists requires ‘weigh[ing] the
defendant’s interest in confrontation of a particular witness against the
Government’s proffered reasons for pretermitting the confrontation.’” United
States v. Jimison, 825 F.3d 260, 263 (5th Cir. 2016) (alteration in original)
(quoting United States v. Minnitt, 617 F.3d 327, 333 (5th Cir. 2010)). “The
reliability of the hearsay is an important consideration in determining whether
sufficient good cause exists to forego confrontation.”         United States v.
McCormick, 54 F.3d 214, 223 (5th Cir. 1995). Accordingly, “the government
may prevail in the balancing inquiry when the hearsay testimony has strong
indicia of reliability.” Jimison, 825 F.3d at 265. A district court’s failure to
make a finding of good cause or articulate the basis for its finding “may require
reversal in most instances, but [such a failure] 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.” Grandlund, 71 F.3d at 510; accord Minnitt,
617 F.3d at 333.
      Here, the government concedes error, and there is no dispute that the
district court failed to make a finding of good cause to forego confrontation even
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though it revoked Ferguson’s probation based on hearsay in the police report.
Neither Ferguson’s sister nor the police officer who authored the report
testified at the hearing, and Ferguson disputed these accounts of the incident.
This constituted an error that requires a reversal, and the government does
not attempt to persuade us that the error was harmless by arguing that an
implicit basis for good cause exists. See United States v. Whitfield, 590 F.3d
325, 346 (5th Cir. 2009) (“As a general rule, a party waives any argument that
it fails to brief on appeal.”). Accordingly, we hold that the failure to find good
cause was a clear error.
                                       B.
      The error substantially affected Ferguson’s substantial rights. An error
affects a defendant’s substantial rights if the defendant can “show a reasonable
probability that, but for the error, the outcome of the proceeding would have
been different.”     Molina-Martinez, 136 S. Ct. at 1343.          Although the
government had alleged other minor probation violations, the district court
here exclusively relied on the battery incident in revoking Ferguson’s
probation. The district court noted that although Ferguson had been charged
with “some minor failure to report,” “[we] wouldn’t be here if he had failed to
report to his probation officer.” Therefore, given that the police report was the
only evidence supporting revocation based on the alleged battery, there exists
a reasonable probability that Ferguson’s probation would not have been
revoked without the police report.
      The error also seriously affects the fairness, integrity, and public
reputation of judicial proceedings.     “[U]nreliable hearsay undermines the
accuracy of the fact-finding process,” Farrish, 836 F.2d at 978, and it is
important to “assure that the [district] court’s relevant findings are based on
verified facts,” Grandlund, 71 F.3d at 510. Confrontation serves a crucial role
in this process. While the district court can, under appropriate circumstances,
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rely on hearsay evidence to revoke a person’s probation, its failure to find good
cause before pretermitting Ferguson’s interest in confrontation seriously
affects the fairness, integrity, and public reputation of the courts. Accordingly,
we exercise our discretion to correct this error.
      We VACATE the revocation of Ferguson’s probation and the subsequent
revocation sentence and REMAND for a new revocation hearing.




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