     Case: 19-50432       Document: 00515325702         Page: 1     Date Filed: 02/28/2020




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


                                       No. 19-50432
                                                                               FILED
                                                                        February 28, 2020
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk

               Plaintiff - Appellee

v.

LEDARVIS JOINER,

               Defendant - Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:12-CR-34-2


Before BARKSDALE, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Primarily at issue is whether the district court’s failure to make the
requisite good-cause finding for preventing Ledarvis Joiner from confronting
adverse witnesses at his supervised-release revocation hearing was harmless
error. VACATED and REMANDED FOR EXPEDITED PROCEEDINGS.
                                              I.
       Joiner, in March 2012, pleaded guilty to aiding and abetting the
distribution of a quantity of a mixture and substance containing a detectable


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 19-50432

amount of cocaine base, “crack”, within 1,000 feet of a school, in violation of 18
U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 860. That June, he was
sentenced to 12 months and one day of imprisonment, to be followed by six
years of supervised release.
      Joiner’s term of supervised release was revoked in June 2013 because of
his “association with persons engaged in criminal activity, and for use of
marijuana”. He was sentenced to nine months’ imprisonment, to be followed
by six years of supervised release. This next term of supervised release was
also revoked, in March 2017, for his “failure to report, association with his co-
defendant, and failure to comply with sex offender registration”. He was again
sentenced to nine months’ imprisonment, to be followed by six years of
supervised release. The revocation proceeding at issue here arose during this
most recent period of supervised release.
      The revocation warrant alleged that Joiner violated the terms of his
supervised release by failing to comply with the condition that he “shall reside
in a community corrections facility such as Dismas Charities . . . for up to 120
days after release from the Federal Bureau of Prisons”. The warrant recounted
that, after Joiner was placed at Dismas Charities Halfway House (Dismas) in
March 2019, he received a one-page incident report from Dismas for failing to
provide a urine sample, being unaccountable for three hours and 48 minutes,
and possessing an unauthorized cellular telephone. Joiner’s placement at
Dismas was allegedly terminated, based on these actions, for his failure to
comply with program requirements.
      A revocation hearing was held on 18 April, at which Joiner was
represented by appointed counsel. Joiner pleaded “[n]ot true” to the allegation
he violated his supervised release.     Joiner’s probation officer, Senior U.S.
Probation Officer Peel, was the only witness called at the hearing. Officer Peel
testified about the incident report, which he received from Dismas’ director,

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and admitted he neither had personal knowledge of Joiner’s alleged violations
at Dismas nor conducted an independent investigation regarding the report’s
allegations. Specifically, he lacked information on how a Dismas resident
obtains a pass to leave the halfway house (which may explain Joiner’s absence
of three hours and 48 minutes), and he was equally unable to address questions
about Joiner’s alleged cellular-telephone possession.
      The Government       offered the Dismas report into           evidence as
Government’s Exhibit 1. Joiner objected to the report’s admission, contending
“[i]t’s hearsay and a right to confront the witnesses”. The court overruled
Joiner’s objection and admitted the report. During closing arguments, Joiner
reiterated his objection to the report’s admission by asserting it was unreliable,
lacked details, and that “we certainly object to that without the presence of
[Dismas’ director], or whoever it is that has the knowledge of this” report. The
Government conceded the report was hearsay but contended it had indicia of
reliability upon which the court could rely “in making a determination whether
there is reasonable grounds to believe that the terms of [Joiner’s] supervised
release were violated”.
      The district court, “having heard U.S. Probation Officer Peel’s testimony
and arguments of counsel, having considered the petition [for warrant] itself
along with the -- not only the allegation but the basis for that allegation and
Government’s Exhibit No. 1” (the incident report), revoked Joiner’s supervised
release and sentenced him to 18 months in prison with no additional term of
supervised release.
                                       II.
      Joiner contends his due-process confrontation rights were violated when
he was convicted on the basis of hearsay evidence without an opportunity to
confront adverse witnesses.      “A claim that the district court violated a
defendant’s right to confrontation in a revocation proceeding is reviewed de

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novo, subject to harmless[-]error analysis.” United States v. Jimison, 825 F.3d
260, 262 (5th Cir. 2016) (italics added and citation omitted). In that regard,
“before a federal constitutional error can be held harmless, the court must be
able to declare a belief that it was harmless beyond a reasonable doubt”.
Chapman v. California, 386 U.S. 18, 24 (1967).
      But, of course, for issues not preserved in district court, review is only
for plain error. See, e.g., United States v. Broussard, 669 F.3d 537, 546 (5th
Cir. 2012) (citation omitted).      “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) (citation omitted).
      The Government contends: Joiner failed to preserve his objection in
district court adequately; and our review, therefore, is only for plain error. We
conclude otherwise: although Joiner’s objection could have been stronger (by,
for example, referencing the need for a good-cause finding), he did object on
hearsay and confrontation grounds. Consequently, our review is de novo,
subject to harmless-error analysis. See Jimison, 825 F.3d at 262 (citation
omitted).
      “Revocation hearings are not part of the criminal prosecution, are not
formal trials, and the rules of evidence are not applied mandatorily.” United
States v. Grandlund, 71 F.3d 507, 509 (5th Cir. 1995) (citations omitted). But,
“[b]ecause a person’s liberty is at stake, . . . due process requires that a
defendant be given a fair and meaningful opportunity to refute and challenge
adverse evidence to assure that the court’s relevant findings are based on
verified facts”. Id. at 509–10 (citations omitted).
      In that regard, a defendant at a revocation hearing has “a qualified right
to confront and cross-examine adverse witnesses”. Id. at 510. The right is
“qualified” because “[t]he confrontation of a particular witness may be

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disallowed upon a finding of good cause”. Id. (citation omitted). Consequently,
if a court finds good cause, it may revoke supervised release based on hearsay
evidence without live testimony from a witness with personal knowledge, see
United States v. Williams, 847 F.3d 251, 253–54 (5th Cir. 2017), if it “finds by
a preponderance of the evidence that the defendant violated a condition of [his]
release”, see 18 U.S.C. § 3583(e)(3). The Government bears the burden of
providing such evidence. See, e.g., United States v. Montez, 952 F.2d 854, 859
(5th Cir. 1992).
      A good-cause finding must be “explicit” and “specific”, “and the reasons
should be made a part of the record of the revocation hearing”. Grandlund, 71
F.3d at 510 n.6 (citation omitted). Although a court’s “failing to make a specific
finding of good cause to abrogate [the] right of confrontation . . . may require
reversal in most instances, [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”. Id. at 510 (citations omitted).
      “In [determining] whether good cause exists, courts must employ a
balancing test which weighs the defendant’s interest in the confrontation of a
particular witness against the government’s interest in the matter”. Id. When
doing so, “[a] critical consideration is the indicia of reliability of the challenged
evidence”.   Id. (citations omitted).    “[T]he government may prevail in the
balancing inquiry when the hearsay testimony has strong indicia of reliability”.
Jimison, 825 F.3d at 265 (citation omitted).
      The district court did not make an explicit good-cause finding. Therefore,
we must determine whether this failure was harmless error. We conclude it
was not.
      The Government contends that at issue during the revocation hearing
was whether Joiner violated the relevant condition of his supervised release by
failing to reside at a community corrections facility, not why he was discharged

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from Dismas. Consequently, according to the Government, the revocation
hearing was not the proper forum for Joiner’s challenges regarding Dismas, its
staff, or his alleged violations at the halfway house.
      Even assuming arguendo the Government was not required to show
anything other than whether Joiner was, in fact, discharged from Dismas, it
never adequately established this fact at the revocation hearing. Officer Peel
never testified to having personal knowledge of Joiner’s discharge; instead, he
was repeatedly questioned about, and he referenced, the report and its
contents. Further, the report does not establish Joiner was discharged from
Dismas, yet the Government offered it into evidence and the district court
relied on it in revoking Joiner’s supervised release.
      Notably, it appears the court concluded live testimony from Dismas was
unnecessary because the report, having been provided by Dismas—an entity
with which the probation office had done business before—was reliable. But
the Government cites no precedent supporting its contention that Dismas’
prior relationship with the courts renders the statements of their staff so
reliable that they need not be cross-examined.
      Indeed, it is not at all clear that Officer Peel even knew who at Dismas
prepared the report (the director signed it, but it was not clear that she wrote
it based on her personal knowledge). Certainly, for example, the report’s
allegations are not the same as scientifically verifiable information in a
laboratory report, like that in United States v. Minnitt, 617 F.3d 327, 333–34
(5th Cir. 2010), where our court held a defendant’s interest in cross-
examination was minimal because the laboratory report at issue contained
“scientifically-verifiable facts”.
      In fact, cross-examination revealed a number of questions where Officer
Peel did not know the answer and deferred to the report (which did not clearly
answer some of the questions asked). Our court has noted that “a releasee’s

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interest in cross-examining a laboratory technician regarding a scientific fact
is less than would be his interest, for example, in confronting a hearsay
declarant regarding what that declarant may have seen”. United States v.
McCormick, 54 F.3d 214, 222 (5th Cir. 1995) (emphasis added). This is because
“[t]he truth of the former can be verified through methods of science; the truth
of the latter can best be verified through the rigor of cross-examination,
conducted under the circumspect eye of the district court”. Id. The report alone
is therefore not enough to overcome Joiner’s due-process confrontation right.
      The Government also relies upon its alleged “interest in avoiding the
expense, difficulty, and delay in securing Dismas Charities staff members to
testify to facts that were minimally probative of the revocation allegations”.
The facts are not “minimally probative”, however, as they are the only facts
that were presented at the hearing to revoke Joiner’s supervised release.
Further, the Government does not articulate any specific expense, difficulty,
or delay in requiring Dismas staff to testify, and the ordinary burdens of
testifying in court are not an excuse for the failure to do so. Consequently, we
find no good cause, on this record, for the court’s disallowing Joiner’s
confrontation of adverse witnesses; the court’s failure to make an explicit good-
cause finding was therefore not harmless error.
                                      III.
      For the foregoing reasons, Joiner’s sentence is VACATED and this action
is REMANDED to district court for a new revocation hearing. Joiner’s release
date is approaching. We, therefore, direct the district court to EXPEDITE
further proceedings to resolve this matter well before Joiner’s release date from
imprisonment.




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