     Case: 15-60281    Document: 00513539233       Page: 1   Date Filed: 06/08/2016




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

                                    No. 15-60281                    FILED
                                                                 June 8, 2016
                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                           Clerk

             Plaintiff - Appellee

v.

CLOIST JIMISON, JR.,

             Defendant - Appellant




                 Appeal from the United States District Court
                   for the Southern District of Mississippi


Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
      Defendants in supervised release revocation proceedings have a
qualified right to confront witnesses. 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.” United States v. Minnitt, 617 F.3d 327,
332–33 (5th Cir. 2010).     Cloist Jimison, Jr. argues that the district court
violated even this more limited right to confrontation at his revocation hearing
when it allowed a law enforcement officer to testify about an informant’s
statements and identification of the defendant. We agree and vacate the
revocation order.
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                                 No. 15-60281
                                       I.
      Jimison was convicted of being a felon in possession of a firearm and
served a 51-month term of imprisonment.         Two years into his supervised
release term that followed, the Government sought revocation based on a series
of alleged violations of his release conditions. Jimison admitted to ten Grade
C violations, mostly involving positive drug tests and failure to properly report
to his probation officer, and denied three alleged Grade A violations. These
more serious violations concerned illegal and counterfeit drug sales. They were
based on three Mississippi state court indictments, but Jimison had not been
tried or arrested on any of the charges.
      The only evidence regarding the drug transactions presented at the
revocation hearing was testimony from Special Agent Dodder of the
Mississippi Bureau. Dodder testified that Jimison sold drugs to a confidential
informant in three controlled buys. Dodder did not personally witness the drug
deals, but said that he had seen a video recording, and had been involved with
the investigation. He did not remember a number of facts about the drug buys,
including whether Dodder was present when the informant set up the buys,
where exactly they took place, or how far away he and other agents were during
the deals. No audio or video recording was presented to the court nor made
available to Jimison. Dodder also testified about showing the confidential
informant a photo lineup from which he said the informant identified Jimison
as the person who sold him drugs.
      Jimison’s attorney objected on confrontation grounds to Dodder’s
testimony about events he did not observe and the denial of an opportunity to
cross examine the confidential informant. Without specifically ruling on the
right to confrontation objection, the district court “note[d] the grand jury
indictments, but particularly the audio and video evidence that ha[d] been
testified about, and . . . conclude[d] that the government ha[d] met its burden
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                                     No. 15-60281
to prove these three violations by a preponderance of the evidence.” The
district court did not make a specific finding as to good cause to allow Agent
Dodder’s hearsay testimony.
       The district court’s finding that Jimison had committed Grade A
violations triggered mandatory revocation of supervised release. U.S.S.G.
§ 7B1.3(a)(1) (2015). 1      Following the Guideline applicable to Grade A
violations, that court sentenced Jimison to 24 months in prison followed by
another supervised release term of 12 months.
                                         II.
      A claim that the district court violated a defendant’s right to
confrontation in a revocation proceeding is reviewed de novo, subject to
harmless error analysis. Minnitt, 617 F.3d at 332.
       In determining the scope of the right to confrontation at revocation
hearings, we follow Supreme Court precedent addressing that right in the
similar context of parole proceedings. United States v. Grandlund, 71 F.3d
507, 510 n.5 (5th Cir. 1995) (“The same due process rights granted to those
facing revocation of parole are required for those facing revocation of
supervised release.”). The confrontation right in these nontrial proceedings
that nonetheless may result in a deprivation of the defendant’s liberty is
governed by the Due Process Clause. See Morrissey v. Brewer, 408 U.S. 471,
481–82 (1972) (establishing due process rights of parolees in revocation
hearings). As with other due process inquiries, a balancing approach is used
to determine whether the right to confront witnesses at revocation proceedings
is violated. Id. at 481 (noting that “due process is flexible and calls for such
procedural protections as the particular situation demands”). Thus unlike the


      1 The Grade C violations to which Jimison admitted do not require revocation; a judge
may decide to revoke, extend, or modify the supervised release conditions. U.S.S.G.
§ 7B1.3(a)(2).
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                                   No. 15-60281
Sixth Amendment’s unconditional right to confront witnesses at trial, “the
hearing officer [may] specifically find[] good cause for not allowing
confrontation” at a revocation hearing. Id. at 489. 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.” Minnitt, 617 F.3d at 333. We have held that
a district court is required to make “an explicit, specific finding of good cause”
for not allowing confrontation of a particular witness. Grandlund, 71 F.3d at
510 n.6; see also Minnitt, 617 F.3d at 333 (noting that a finding of good cause
in the record is required).
      With these principles in mind, we first consider whether the testimony
at the revocation hearing implicated Jimison’s right to confront witnesses
testifying against him. Much of Dodder’s testimony was offering out-of-court
statements of the informant. Most significant is Dodder relaying that the
confidential informant picked Jimison’s picture out of a photo lineup. See FED.
RULE EVID.      801(d)(1)(C)     (excluding   statements    relating   to   pretrial
identifications from the definition of hearsay only if the declarant testifies at
trial); see also, e.g., United States v. Owens, 484 U.S. 554, 560 (1988) (noting
that evidence of an out-of-court identification “would traditionally be
categorized    as   hearsay”);    CHRISTOPHER B. MUELLER AND LAIRD C.
KIRKPATRICK, 4 FEDERAL EVIDENCE § 8:41 (4th ed. 2015) (explaining that a law
enforcement officer who was present at a pretrial identification may testify
about it but only if the identifier is also subject to cross examination) (citing
cases including United States v. Cueto, 611 F.2d 1056, 1063 (5th Cir. 1980)).
Other portions of Dodder’s testimony—there was not a lot of it, as his direct
testimony takes up less than five pages of transcript—appear to recount
information from the informant about which Dodder lacked personal
knowledge. For example, Dodder testified that before the controlled buys, the
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                                      No. 15-60281
informant “arranged to purchase methamphetamine from Mr. Jimison via
telephone or text message.” But Dodder acknowledged on cross examination
that he did not recall if he was with the informant when he either texted or
called Jimison to arrange the three buys. He further testified about money
given to the informant before the buys and the amount of drugs the informant
received in return after the meetings. Finally, for each of the three occasions
at issue, Dodder testified to the bottom line: that the informant “met Mr.
Jimison, and at that time Mr. Jimison sold him” drugs.
       Even after defense counsel raised an objection based on confrontation
rights, the Government did not cite any good cause for not calling the
informant and the district court did not make any such finding. That failure
to engage in the balancing test that sometimes permits hearsay testimony at
revocation proceedings may seem like it should resolve this appeal.                    But
“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 rulings.” Minnitt, 617 F.3d at 333 (internal quotation marks omitted).
We therefore look to whether good cause exists by weighing the defendant’s
interest in confronting the particular witness against any interest the
government had in preventing such an opportunity that is apparent from the
record. Id.
       Jimison had a strong interest in questioning the informant. Dodder’s
testimony was the only evidence offered in court to prove the Grade A
violations. Three aspects of that testimony purportedly identified Jimison as
the drug dealer: statements from the informant, the informant’s out-of-court
identification, and the video recording. 2 Only the final topic on that list does


       2  Any of Dodder’s own contemporaneous observations that he recounted—and again,
it’s unclear if he was even present when the informant was being “wired up” to go out and do

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                                       No. 15-60281
not give rise to a confrontation right. Although a video recording ordinarily is
at the top of the evidentiary food chain, 3 that was not the case here. The video
itself was not introduced. And Dodder had not viewed the video in over a year.
Not surprisingly, his recollection about what the video showed was hazy.
When asked details like the location of the buys or whether the informant
approach Jimison, Dodder responded that he did not remember.                             Most
significantly, at no point in his testimony did Dodder state that he identified
Jimison from the video. The crucial fact of Jimison’s identify was thus based
entirely on hearsay evidence, and almost surely had a significant effect on the
court’s ruling.      And all this should be considered in the context of the
heightened interest in confrontation that a defendant has when facing
violations like the ones here that result in mandatory revocation. See id.
       We next consider the Government’s side of the due process inquiry.
Though it did not specify any reason for not having the informant testify, the
reluctance to call such witnesses is well known. 4 But without any details about
a need to keep the identity of this particular informant confidential, we are
unable to infer a strong interest on the Government’s part. Assuming that
Jimison was dealing to the informant as the Government contends, Jimison
would likely already know the identity of the informant after entering into
three transactions with him. And any testimony at the revocation hearing
could be sealed to prevent further public disclosure.                     Indeed, we have



the buys—would establish only that the informant went out with money and came back with
drugs. His personal observations would not establish the identity of the seller, which was
the contested issue.
       3 See Scott v. Harris, 550 U.S. 372, 378–81 (2007) (recognizing that although courts

must view evidence in the light most favorable to the nonmoving party at summary judgment,
when that party’s version is clearly contradicted by videotape evidence, the court instead
views the facts “in the light depicted by the videotape”).
       4 Indeed a primary reason for making recordings—like the type Dodder testified were

made in this case but not presented to the district court—is so the recording itself can be used
to prevent the need to call the confidential informant.
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                                 No. 15-60281
previously indicated that hearsay testimony from a confidential informant
should not be admitted at revocation hearings absent a “specific finding” that
good caused excused the informant from testifying.            United States v.
McCormick, 54 F.3d 214, 226 n.49.
      We have also recognized that the government may prevail in the
balancing inquiry when the hearsay testimony has strong indicia of reliability.
Id. at 223 (“The reliability of the hearsay is an important consideration in
determining whether sufficient good cause exists to forego confrontation.”).
This is the reason we have repeatedly found a district court’s failure to make
a good cause finding harmless when the hearsay evidence related to laboratory
drug tests. See Minnitt, 617 F.3d at 334–35; McCormick, 54 F.3d at 222–26;
Grandlund, 71 F.3d at 510–11; United States v. Kindred, 918 F.2d 485, 487
(5th Cir.1990); see also United States v. Justice, 430 F. App’x 274, 277–78 (5th
Cir. 2011) (discussing the significance of scientific evidence versus testimony
in which credibility is more at issue). In such cases, we have noted that the
need to cross examine is less substantial because there are other ways to
impeach scientific evidence, McCormick, 54 F.3d at 222–23, and as regular
business records, lab reports bear a “substantial indicia of reliability,” id. at
223. Absent any reason to doubt the tests used in a defendant’s case, we have
rejected appeals challenging the hearsay recounting of lab results in revocation
proceedings. See, e.g., Kindred, 918 F.2d at 487 (holding that there was no
violation in Government’s use of urinalysis test where defendant did not
contest either the allegations of drug use or the accuracy of the test). Indeed,
Dodder also testified about lab results in Jimison’s case, but Jimison does not
cite those as the statements on which he wanted a right to confront the
declarant.
      Instead, he focuses on the testimony identifying him as the seller, which
involves the “credibility choice” between the declarant and the supervisee for
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                                 No. 15-60281
which the interest in allowing confrontation is more significant. See Justice,
430 F. App’x at 278. We therefore have often found that good cause is lacking
in cases in which the supervisee was denied the opportunity to examine
eyewitnesses to the underlying allegations. See id. at 278–79; McBride v.
Johnson, 118 F.3d 432, 438–39 (5th Cir. 1997); Farrish v. Miss. State Parole
Bd., 836 F.2d 969, 978 (5th Cir. 1988). We have further noted that allowing
such testimony through a police officer can be particularly damaging in light
of an officer’s perceived credibility. Farrish, 836 F.2d at 978. And, even in the
world of eyewitness testimony where credibility is paramount, concern over the
credibility of informants has given rise to a whole body of case law. See, e.g.,
Illinois v. Gates, 462 U.S. 213, 232–35 (discussing factors relevant to whether
an informant’s tips are credible). So have issues concerning the reliability of
out-of-court identifications. See, e.g., Manson v. Brathwaite, 432 U.S. 98, 114
(1977) ([R]eliability is the linchpin in determining the admissibility of
identification testimony. . .”); United States v. Moody, 564 F.3d 754, 762-63
(5th Cir. 2009) (listing five factors courts consider in assessing the likelihood
of misidentification). And Dodder did not give testimony about facts that might
have alleviated concerns about the informant’s reliability, including how many
arrests the informant had helped secure, the benefits he received, and if he
continued to be an informant after Jimison’s case. On the scale of inherent
reliability, the hearsay testimony in this case thus lies far away from lab
reports.
      In light of Jimison’s substantial interest in confrontation, the lack of
record evidence on the Government’s interest in foregoing confrontation, and
the lack of inherent reliability in the hearsay testimony, we cannot find
implicit good cause in the record to allow the testimony. Of course, on remand
the Government may be able to make a particularized showing why
confrontation is not appropriate. Or it could introduce the video evidence,
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which may be conclusive. But on the record before us, due process does not
permit a revocation that is based on hearsay identification testimony from a
confidential informant.
                                   ****
     We VACATE the revocation of supervised release and subsequent
sentence, and REMAND for a new hearing.




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