     Case: 19-10040        Document: 00515414519          Page: 1     Date Filed: 05/13/2020




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


                                        No. 19-10040
                                                                               FILED
                                                                           May 13, 2020
                                      c/w No. 19-10041
                                                                          Lyle W. Cayce
                                                                               Clerk
Consolidated with 19-10041

UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

v.

RAMON ALVEAR,

                Defendant – Appellant.


                    Appeals from the United States District Court
                         for the Northern District of Texas


Before HAYNES and OLDHAM, Circuit Judges, and HANEN, District Judge. *
PER CURIAM:
      The district court revoked Ramon Alvear’s supervised release and
sentenced him to 27 months imprisonment. On appeal, Alvear argues that the
district court violated his right to confront adverse witnesses by considering
hearsay during his revocation hearing. On the facts of this case, we affirm.
                                               I.
      The United States prosecuted, convicted, and incarcerated Alvear for
various drug crimes. The Bureau of Prisons released him, and he began serving

      *   District Judge for the Southern District of Texas, sitting by designation.
     Case: 19-10040       Document: 00515414519         Page: 2    Date Filed: 05/13/2020


                                      No. 19-10040
                                    c/w No. 19-10041
his term of supervised release. But according to Alvear’s probation officer, he
violated the terms of that release by: (1) choking his wife, Lilia Alvarez,
(2) failing to file a “truthful and complete written report” with his probation
officer by falsely claiming that he lived with his mom, and (3) failing to inform
his probation officer that he had, in fact, moved in with Alvarez. 1
       To support these allegations, the probation officer alleged the following
facts. On March 19, 2018, Dallas police officers responded to a call from
Alvarez’s house. Alvarez told the officers that Alvear had choked her the night
before. During the altercation, Alvear had told Alvarez, that “[i]t’s not worth
killing you. I’m not gonna get my hands dirty. I’ll just get someone else to do
it.” An arrest warrant soon issued for Alvear for “Assault” of a
“Family/Household Member” by “Imped[ing] Breath/Circulation,” a third-
degree felony in Texas. Alvarez also sought and obtained a temporary
protective order against Alvear.
       But this was not the only incident between Alvear and Alvarez. Several
weeks prior to this altercation, Alvarez filed a different police report and
alleged that Alvear was “making threats against her.” She said Alvear told her
that he was going to post nude pictures of her, taken without her consent, on
the internet. And on a different occasion, Alvarez told an officer at the hospital
where she works that she sought a divorce from Alvear. Despite the protective
order, Alvear had “followed her home from her” job at the hospital for a “few
weeks” and repeatedly called and texted her.
       With these allegations, the district court held a revocation hearing.
Alvarez did not testify. Instead, the court heard testimony from Alvear’s


       The probation officer also alleged that Alvear had not made payments towards a fine
       1

imposed for one of his convictions. Alvear admitted to this violation and does not contest it
on appeal.
                                             2
    Case: 19-10040    Document: 00515414519     Page: 3   Date Filed: 05/13/2020


                                 No. 19-10040
                               c/w No. 19-10041
probation officer, a Dallas police officer, and Alvear’s mom. Both the probation
officer’s and Dallas police officer’s testimony included out-of-court statements
from Alvarez.
      First, the probation officer spoke with Alvarez “on numerous occasions”
and “most of [their] conversations [were] about” her relationship with Alvear.
The probation officer testified that Alvarez and Alvear lived together. And
Alvarez reached out to the probation officer “on multiple occasions” about
“concerns for her safety.” During one such call, Alvarez told the probation
officer about the choking incident the morning after it occurred. The probation
officer testified that Alvear and Alvarez “were in an argument the night prior,
and [Alvear] accused her of being . . . a name, and she accused him of putting
his hands around her neck.”
      The probation officer also discussed her conversations with Alvear about
the incident. Alvear “denied being physically abusive towards [Alvarez]
previously.” But one day, Alvear offered more detail of the alleged incident. He
said that he “put his hands on her cheek[s]” as a “sign of love and affection”
that night. Only later did he learn that she had “cut her cheeks” on “her braces
when he did that.”
      Next, a Dallas police officer testified. He was one of the officers who
responded to Alvarez’s March 2018 call regarding the choking incident. The
officer recounted that Alvarez told him that “she was assaulted by” Alvear.
Alvear “grabbed her by the neck while she was driving . . . and began choking
her.” She had a “hard time breathing,” but she waited until the next morning
to call because “she was scared.” While there was no sign of physical injuries,
the police officer described how Alvarez’s mannerisms showed “that she was
nervous; she was kind of crying” and clearly afraid. The police officer further


                                       3
    Case: 19-10040     Document: 00515414519      Page: 4   Date Filed: 05/13/2020


                                  No. 19-10040
                                c/w No. 19-10041
described his experience in “domestic violence situations.” And he agreed that
it is “very common” for “victims to have a reluctance or refusal to testify.”
      After the Government presented its witnesses, Alvear’s counsel
established that Alvarez had filed an “affidavit of non-prosecution” to no longer
cooperate with the Dallas DA on Alvear’s assault charge. Then counsel called
one witness—Alvear’s mother, Felipa—to rebut the Government’s accusations
about where Alvear lived. Felipa described how Alvear stayed at her house
every single night—including after Alvear and Alvarez got married. Despite
their marriage, she said Alvear never moved in with Alvarez.
      After the testimony, the district court considered Alvear’s objection to
those parts of the probation officer’s and policer officer’s testimony that
incorporated Alvarez’s out-of-court statements. Alvear argued that he had a
right to cross-examine Alvarez. But the district court found there was good
cause to forgo cross-examination. And the district court subsequently found
that Alvear committed the supervised release violations by a preponderance of
the evidence. Choking Alvarez constituted a Grade A violation of the
supervised-release conditions. So the district court revoked Alvear’s supervised
release and sentenced him to 27 additional months of imprisonment.
      Alvear timely appealed, arguing the district court erred in its finding of
good cause. Our review is de novo. United States v. Jimison, 825 F.3d 260, 262
(5th Cir. 2016).
                                        II.
      In Morrissey v. Brewer, the Supreme Court established “the minimum
requirements of due process” in parole revocation hearings. 408 U.S. 471, 488–
89 (1972). Among these requirements, the Court held that a parolee must have
“the right to confront and cross-examine adverse witnesses (unless the hearing
officer specifically finds good cause for not allowing confrontation).” Id. at 489.

                                        4
    Case: 19-10040    Document: 00515414519      Page: 5   Date Filed: 05/13/2020


                                 No. 19-10040
                               c/w No. 19-10041
Subsequent to Morrissey, Congress abolished parole and established the
current system of supervised release. We have applied Morrissey ’s due process
“minimum” rights to supervised release revocation hearings. See United States
v. McCormick, 54 F.3d 214, 221 (5th Cir. 1995).
      In articulating the Morrissey standard, we have established a two-step
inquiry. We start by determining if the supervisee’s “right to confront
witnesses” has been “implicated.” Jimison, 825 F.3d at 263. Normally, that
means we look at whether the district court actually admitted hearsay. See,
e.g., id. Here, the Government does not contest that the revocation hearing
testimony included Alvarez’s hearsay and thus “implicated” Alvear’s right. Id.
So, we confine our inquiry to the second step.
      For the second step, we look to whether the Government has shown “good
cause” to overcome the defendant’s “right to confront the hearsay declarant[ ] ”
arrayed against him. McCormick, 54 F.3d at 221. To determine “good cause,”
our precedents require us to “weigh the [supervisee’s] interest in confrontation
of a particular witness against the Government’s proffered reasons for
pretermitting the confrontation.” United States v. Minnitt, 617 F.3d 327, 333
(5th Cir. 2010). In this weighing, the Government may also “prevail . . . when
the hearsay testimony has strong indicia of reliability.” Jimison, 825 F.3d at
265 (citing McCormick, 54 F.3d at 223). After weighing the facts of this
particular case, we find that the Government showed good cause.
                                      A.
      We begin by considering Alvear’s interest. As we’ve previously said in a
very similar case, Alvear’s “interest in finding a means to undermine the
putative victim’s . . . statements is certainly a strong one.” United States v.
Elizondo, 502 F. App’x 369, 373 (5th Cir. 2012). After all, Alvarez’s statements
formed the core of the case “offered in court to prove the Grade A violation[ ]”

                                       5
    Case: 19-10040     Document: 00515414519     Page: 6   Date Filed: 05/13/2020


                                    No. 19-10040
                                  c/w No. 19-10041
of assaulting Alvarez. Jimison, 825 F.3d at 264. Since Grade A violations
require the revocation of supervised release, U.S.S.G. § 7B1.3(a)(1) (2018), a
supervisee’s interest is “heightened” when such violations are at issue.
Jimison, 825 F.3d at 264.
      On the other hand, Alvear’s interest is diminished by at least two other
considerations. First, a supervisee’s interest is lessened when he had “ample
opportunity to refute the Government’s evidence via methods other than cross-
examination.” Minnitt, 617 F.3d at 333–34. In the proceedings below, Alvear
introduced Alvarez’s affidavit of non-prosecution that at least partially
recanted her hearsay statements about the alleged assault. See Elizondo, 502
F. App’x at 370. Additionally, Alvear’s mom testified to directly refute Alvarez’s
contention that Alvear lived with her instead. Alvear does not indicate what
he believes cross-examination of Alvarez would have additionally yielded for
the district court to consider.
      Second, we’ve said that a supervisee’s interest is reduced when they do
not propose an alternative theory of events. See Carrion, 457 F. App’x at 411;
cf. Minnitt, 617 F.3d at 335; McCormick, 54 F.3d at 225. We’ve said in the lab
report context that “speculative false-positive theories . . . offer[ing] no
supporting evidence” provide “no legally-significant interest in confrontation.”
Minnitt, 617 F.3d at 335. Instead, the supervisee must put forward their own
theory of the case.
      To the extent Alvear has a theory of what happened the night of the
alleged choking, it is presumably that either no altercation happened or that
the altercation did not occur as Alvarez said. And if either of those is Alvear’s
theory, the probation officer testified about both of them. She recounted how
he denied being physically abusive and how he later added additional detail to
his story to describe a passionate touching of her face that night. It was that

                                         6
    Case: 19-10040     Document: 00515414519     Page: 7   Date Filed: 05/13/2020


                                  No. 19-10040
                                c/w No. 19-10041
touching, according to Alvear, that resulted in cuts to Alvarez’s cheeks. Thus,
Alvear’s counter-story was in evidence. And “[t]he plausibility of a
conveniently” passionate touching of Alvarez’s face “to deny [her] statements
. . . could be weighed by the district court.” Elizondo, 502 F. App’x at 373.
      Thus, while Alvear’s interest may be heightened, it was undoubtedly
diminished by the “context of the specific facts” of the proceedings below. Id.
                                       B.
      Next, we consider the Government’s interest. In assessing this interest,
we look to the Government’s proffered reason for the hearsay declarant’s
absence from the hearing or reasons that could be inferred from the record.
Jimison, 825 F.3d at 264; McCormick, 54 F.3d at 221; United States v. Reza,
759 F. App’x 269, 272 (5th Cir. 2019) (per curiam). Here, the district court
found that Alvarez did not testify because of fear, and we’ve previously
accepted fear as a valid reason for an alleged domestic violence victim not to
testify at a revocation hearing. Reza, 759 F. App’x at 272; Elizondo, 502 F.
App’x at 372.
      We agree with the district court that there is ample record evidence
justifying an inference that Alvarez was too afraid to testify. Before the alleged
choking incident, Alvarez had reached out to the probation officer multiple
times with fears for her safety. Alvear had threatened her multiple times and
in multiple ways. The police officer testified that Alvarez appeared “scared”
when he met with her. And Alvarez had a protective order against Alvear,
which he repeatedly violated. Accordingly, the district court “plainly found
good reasons why the government may be reluctant to call an alleged victim in
a domestic violence case to provide live testimony.” Reza, 759 F. App’x at 272.
      Alvear contests this conclusion on essentially two grounds. Neither is
availing. First, Alvear argues that a court may not assume a reason from the

                                        7
    Case: 19-10040     Document: 00515414519       Page: 8    Date Filed: 05/13/2020


                                     No. 19-10040
                                   c/w No. 19-10041
record; instead the witness must affirmatively declare their reason for not
showing up. But our precedents do not support such a rule. We’ve previously
said that “we deem it unnecessary to remand to [the district] court for it to
make explicit that which is already implicit.” McCormick, 54 F.3d at 221. In
other    words,   inferential     conclusions   from   the   “testimony”   and   the
“documentary evidence” are sufficient to evaluate and find good cause. Id. at
221–26. And, while in Jimison, we could not “infer a strong interest” about one
“particular informant,” we did not establish a prohibition on such inferences
where there is sufficient record evidence. 825 F.3d at 264 (emphasis added).
Nor do we establish such a prohibition today.
        Second, Alvear argues that the Government’s interest is diminished
because it did not try hard enough to get Alvarez to show up to testify. For
example, Alvear argues that there was no evidence that the Government
attempted to subpoena her or that she would defy that subpoena. For support,
Alvear cites a Ninth Circuit decision where the Government failed to subpoena
a witness. See United States v. Comito, 177 F.3d 1166, 1172 (9th Cir. 1999).
But, in this circuit, a failure to subpoena cuts the other way. We’ve previously
pointed out that if the supervisee “truly believed that the [declarants] may have
been able to provide helpful testimony, he could have subpoenaed them
himself.” Minnitt, 617 F.3d at 334. And, in all events, the Ninth Circuit relied
on the fact that “the government offered no evidence of any . . . fear” by the
declarant. Comito, 177 F.3d at 1172. As discussed, there was ample evidence
of Alvarez’s fear in this case.
        Overall, Alvarez’s fear, as extensively evidenced in the record, was
sufficient to constitute the Government’s interest in allowing her out-of-court
statements.


                                           8
    Case: 19-10040     Document: 00515414519      Page: 9   Date Filed: 05/13/2020


                                  No. 19-10040
                                c/w No. 19-10041
                                        C.
      Finally, we consider whether Alvarez’s out of court statements had
sufficient indicia of reliability. They did for three reasons.
      First, we have found declarants’ statements to be reliable when
corroborated by physical evidence. See Reza, 759 F. App’x at 272; Elizondo, 502
F. App’x at 373. And while no one testified that they saw Alvarez’s injuries,
Alvarez’s statements were corroborated by physical manifestations of trauma.
The police officer saw her the very next day after the alleged altercation and
testified as to Alvarez’s “mannerisms,” her “nervous[ness],” and her “crying.”
Moreover, Alvear himself told the probation officer that Alvarez did have a
physical injury that night—it was just from his passionate touching rather
than his alleged choking.
      Second, we also have found declarants’ statements to be reliable when
made “under oath and penalty of perjury.” McCormick, 54 F.3d at 225. When
statements are made under these circumstances, we have found them to be
“more reliable than unsworn hearsay generally.” Id. Here, Alvarez filed a police
report and instituted court proceedings against Alvear based on allegations of
an altercation that night. These actions—if false or frivolous—carry with them
sufficient negative consequences to justify crediting them with more reliability
than “unsworn hearsay generally.” Id.
      Finally, we have expressed concern about the reliability of hearsay when
there is evidence the witness made the statements with ulterior motives,
Justice, 430 F. App’x at 278, or other record facts did not “alleviate[ ] concerns
about the [declarant’s] reliability,” Jimison, 825 F.3d at 265. But Alvear has
pointed to no record evidence suggesting that Alvarez would be motivated to
lie. And the record facts do “alleviate concerns about [her] reliability.” Id. For
instance, Alvarez told the same story and acted consistent with it. She called

                                         9
    Case: 19-10040       Document: 00515414519          Page: 10   Date Filed: 05/13/2020


                                     No. 19-10040
                                   c/w No. 19-10041
the probation officer the morning after the altercation. She told the same story
again to police officers. And consistent with those allegations, she sought a
protective order, which she maintained.
       Accordingly, Alvarez’s statements had sufficient indicia of reliability.
                                      *      *      *
       The Government had a strong interest in allowing in Alvarez’s out-of-
court statements, which we find to have had sufficient indicia of reliability.
Therefore, we hold the Government’s interest outweighed Alvear’s, and there
was good cause to forgo cross-examination of Alvarez. 2
       AFFIRMED.




       2 Alvear additionally argues that he has an “absolute right to confront an accuser
under the Sixth Amendment” and that a jury needed to find, beyond a reasonable doubt, “the
facts that gave rise to [his] revocation.” As Alvear acknowledges, however, both arguments
are foreclosed by precedent. See Jimison, 825 F.3d at 263; United States v. Hinson, 429 F.3d
114, 119 (5th Cir. 2005).
                                            10
     Case: 19-10040   Document: 00515414519      Page: 11   Date Filed: 05/13/2020


                                  No. 19-10040
                                c/w No. 19-10041
ANDREW S. OLDHAM, Circuit Judge, concurring.
       I concur in the court’s opinion. I write separately because, in an
appropriate case, our en banc court should revisit our understanding of the
defendant’s right to confront witnesses.
       Let’s start with the confrontation right at trial. That right is protected
by the Sixth Amendment. It provides: “In all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses against him.” U.S.
CONST. amend. VI. “This language ‘comes to us on faded parchment.’” Coy v.
Iowa, 487 U.S. 1012, 1015 (1988) (quoting California v. Green, 399 U.S. 149,
174 (1970) (Harlan, J., concurring)). But we know it has ancient origins. See,
e.g., Fenwick’s Trial, 13 How. St. Tr. 537, 591–92, 638 (1696). And we know it
prohibits the notorious practice of trial-by-affidavit. See, e.g., Raleigh’s Trial,
2 How. St. Tr. 1, 16 (1603) (refusing Raleigh’s demand to “[c]all my accuser
before my face”); id. at 19 (refusing Raleigh’s demand to “let my Accuser come
face to face, and be deposed”); 1 J. STEPHEN, A HISTORY OF THE CRIMINAL LAW
OF   ENGLAND 333–36 (1883) (recounting that the King executed Sir Walter
Raleigh on the basis of an affidavit by an absent accuser named Cobham).
       We also know that the Confrontation Clause has provided fruitful
grounds for federal litigation in recent times. According to a line of decisions
starting with Crawford v. Washington, 541 U.S. 36 (2004), the Clause
“prohibits the introduction of testimonial statements by a nontestifying
witness, unless the witness is ‘unavailable to testify, and the defendant had
had a prior opportunity for cross-examination.’ ” Ohio v. Clark, 135 S. Ct. 2173,
2179 (2015) (quoting Crawford, 541 U.S. at 54). Admittedly, our understanding
of what’s “testimonial” has changed over time. See Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 330 (2009) (Kennedy, J., dissenting) (“It is
remarkable that the Court so confidently disregards a century of

                                        11
    Case: 19-10040    Document: 00515414519      Page: 12   Date Filed: 05/13/2020


                                    No. 19-10040
                                  c/w No. 19-10041
jurisprudence. We learn now that we have misinterpreted the Confrontation
Clause . . . for the first 218 years of its existence.”). And it appears that our
understanding of the Confrontation Clause is still evolving. See, e.g., United
States v. Foster, 753 F. App’x 307, 312 (5th Cir. 2018) (holding the
Confrontation Clause requires the Government to make a “reasonable effort”
to produce human-trafficking victims, even if they had been removed from the
United States before trial and hence were beyond the Government’s subpoena
power).
      We’ve paid less attention to the confrontation right at revocation
hearings. The Sixth Amendment obviously does not apply in such hearings
because they are not “criminal prosecutions.” U.S. CONST. amend. VI.
Nevertheless, the Supreme Court and ours have recognized a right to confront
certain witnesses during revocation hearings. We’ve pointed to two founts of
that right.
      The first is a Federal Rule of Criminal Procedure. Rule 32.1 gives the
defendant the right “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).
      The second source of a supervisee’s confrontation right is the Due
Process Clause. The Supreme Court originally recognized this right under the
Fourteenth Amendment’s Due Process Clause in the context of state-level
parole-revocation hearings. See Morrissey v. Brewer, 408 U.S. 471, 489 (1972)
(holding the due-process minimum for parole-revocation hearings includes “the
right to confront and cross-examine adverse witnesses (unless the hearing
officer specifically finds good cause for not allowing confrontation)”). Of course,
federal prisoners do not have parole or the protections of the Fourteenth
Amendment; they instead have supervised release and the Fifth Amendment.

                                        12
   Case: 19-10040     Document: 00515414519     Page: 13   Date Filed: 05/13/2020


                                 No. 19-10040
                               c/w No. 19-10041
Nevertheless, without apparent analysis, we’ve simply said the same
constitutional rules apply in both contexts. E.g., United States v. McCormick,
54 F.3d 214, 221 (5th Cir. 1995).
      All of this evolution and cross-referencing has created three oddities for
federal prisoners. First, it’s unclear what if anything the Due Process Clause
adds to the protections of Rule 32.1(b)(2)(C). The Supreme Court told us in
Morrissey that “[w]e cannot write a code of procedure; that is the responsibility
of each State.” 408 U.S. at 488. And when the States write their codes for parole
revocation, they must do so in accordance with “the minimum requirements of
due process”—which guarantee inter alia “the right to confront and cross-
examine adverse witnesses” absent “good cause.” Id. at 488–89. Of course, the
Supreme Court did “write a code of criminal procedure” for federal prisoners.
And I’d assume that the provisions of that code—including Rule 32.1(b)(2)(C)—
satisfy the Fifth Amendment’s Due Process Clause. So it seems odd that we’re
talking about the Constitution at all; why not just apply Rule 32.1?
      Second, instead of applying Rule 32.1(b)(2)(C), many of our decisions in
this area contain nary a citation to it. Instead, we often decide these questions
only under the Due Process Clause. See, e.g., United States v. Jimison, 825 F.3d
260, 262 (5th Cir. 2016); United States v. Minnitt, 617 F.3d 327, 332–33 (5th
Cir. 2010). That’s odd because the standards are not textually identical. The
Due Process right can be overcome for “good cause,” Jimison, 825 F.3d at 263,
whereas the Rule 32.1 right can be overcome in “the interest of justice.” FED.
R. CRIM. P. 32.1(b)(2)(C). Maybe “good cause” and the “interest of justice” are
the same thing. Cf. McCormick, 54 F.3d at 221 (saying without analysis that
“[t]he due process requirements recognized in Morrissey are incorporated in




                                       13
    Case: 19-10040       Document: 00515414519        Page: 14     Date Filed: 05/13/2020


                                     No. 19-10040
                                   c/w No. 19-10041
Federal Rule of Criminal Procedure 32.1[(b)(2)(C) 1], which is applicable to
supervised release revocation proceedings”). Maybe they’re different. See
United States v. Reza, 759 F. App’x 269, 271–72 (5th Cir. 2019) (per curiam).
Either way, I’d think we should figure out the meaning of the Rule first, lest
we render unnecessary constitutional pronouncements. See, e.g., Nw. Austin
Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 205 (2009) (“[I]t is a well-
established principle governing the prudent exercise of this Court’s jurisdiction
that normally the Court will not decide a constitutional question if there is
some other ground upon which to dispose of the case.” (quotation omitted)). It’s
odd that we instead treat all of these cases as constitutional ones.
       Third, oddest of all, sometimes the confrontation right in a revocation
hearing can be broader than the confrontation right at trial. The Supreme
Court has told us that protections in a revocation hearing are (at most) the
same as those at trial. See United States v. Haymond, 139 S. Ct. 2369, 2378–
79 (2019) (plurality opinion); id. at 2385–86 (Breyer, J., concurring in the
judgment). That result creates its own difficulties. See id. at 2390–91 (Alito, J.,
dissenting). But it’s an altogether different problem to make the constitutional
protections in the revocation hearing broader than at trial. After all, one
premise of our system is that post-conviction rights are generally narrower
because “[o]nce a defendant has been afforded a fair trial and convicted of the
offense for which he was charged, the presumption of innocence disappears.”

       1When we decided McCormick, the relevant provision of Rule 32.1 gave the defendant
“the opportunity to question adverse witnesses.” FED. R. CRIM. P. 32.1(a)(2)(D) (1995). That
text obviously says nothing about “good cause” or the “interest of justice.” Following our
decision in McCormick, Rule 32.1 was “completely revised and expanded.” FED. R. CRIM. P.
32.1 advisory committee’s note to 2002 amendments. Those revisions moved the
confrontation right from Rule 32.1(a)(2)(D) to its current home in Rule 32.1(b)(2)(C) and
added the current “interest of justice” exception. But we’ve continued applying McCormick
without apparent analysis of these textual differences. See, e.g., Jimison, 825 F.3d at 265;
Minnitt, 617 F.3d at 333.
                                            14
    Case: 19-10040       Document: 00515414519          Page: 15     Date Filed: 05/13/2020


                                      No. 19-10040
                                    c/w No. 19-10041
Herrera v. Collins, 506 U.S. 390, 399 (1993). But when we ask different
questions under the Confrontation Clause at trial (is the statement
“testimonial”?) and under the Due Process Clause at revocation (is there “good
cause” to admit the statement?), we can get incongruous answers.
       Consider an example. A boyfriend violently attacks his girlfriend who
then immediately calls 911. The Government wants to use her statements to
the 911 operator against the boyfriend. At trial, the defendant has no right to
prevent the introduction of these statements under the Confrontation Clause
because they’re not “testimonial.” Clark, 135 S. Ct. at 2179 (citing Davis v.
Washington, 547 U.S. 813, 820 (2006)). But this same 911 call is almost
certainly hearsay. So at the boyfriend’s revocation hearing, he can object to the
introduction of the statements under the Due Process Clause, unless there is
“good cause” to admit them. See, e.g., Jimison, 825 F.3d at 263.
       The oddities don’t end there. The Federal Rules of Evidence apply at
trial. And they provide for the admission of all sorts of hearsay: an excited
utterance, a statement made for medical treatment, a present sense
impression, a business record, a statement against interest, &c. See FED. R.
EVID. 803, 804. But the hearsay rules in the Federal Rules of Evidence do not
apply in revocation hearings. FED. R. EVID. 1101(d)(3); Reza, 759 F. App’x at
271. So if the Government wants to use these same (otherwise-admissible)
hearsay statements at a revocation hearing, the court has to apply the “good
cause” analysis demanded by the Due Process Clause. That’s an additional
hurdle that applies post-conviction that does not apply pre-conviction. 2 How
odd.



       2 Perhaps recognizing this, the Second Circuit has held the Due Process Clause does
not “oblige[ ] the district court to perform a good-cause analysis with respect to a proffered
out-of-court statement [that] is admissible under an established exception to the hearsay
                                             15
    Case: 19-10040       Document: 00515414519          Page: 16     Date Filed: 05/13/2020


                                       No. 19-10040
                                     c/w No. 19-10041
       At some point, we should square this circle.




rule.” United States v. Williams, 443 F.3d 35, 45 (2d Cir. 2006) (quotation omitted). As far as
I can tell, we do not have the same rule in our Circuit.
                                              16
