United States v. Kersee, 86 F.4th 1095

Background

Kersee was convicted in 2013 of transporting a minor for sexual activity, sentenced to 120 months and five years supervised release beginning May 14, 2021.
State charges arising from incidents with his girlfriend Kalee Marsteller (criminal mischief, aggravated robbery, family assault) were repeatedly dismissed; Marsteller also executed a notarized letter and later an affidavit recanting her accusations.
Probation filed a federal revocation petition alleging the dismissed offenses; the gov ernment introduced seven documentary exhibits (police complaints and court dismissal orders) but called no live witnesses.
The admitted police complaints contained multiple layers of hearsay recounting statements by Marsteller and third parties; Kersee submitted Marsteller’s recantation affidavit and objected, invoking his qualified confrontation right.
The district court overruled the confrontation objection, found the hearsay reliable, revoked supervised release, and sentenced Kersee to six months incarceration plus extended supervision; Kersee appealed.
The Fifth Circuit vacated the revocation and remanded for a new hearing within 21 days, holding the district court denied Kersee’s qualified right to confront adverse witnesses without making a specific finding of good cause.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether supervised-release revocation proceedings afford a qualified right to confront adverse witnesses	Government accepted that a qualified confrontation right exists but contended hearsay exhibits were reliable and adequate	Kersee argued due-process right to confront adverse witnesses required live testimony where credibility was contested	Court: Qualified right applies; evaluated de novo and requires balancing and good-cause findings
Whether the district court made/finds "good cause" to deny confrontation when gov’t relies on hearsay exhibits and victim is absent	Gov’t argued victim likely to lie and that documentary complaints were consistent and probative, so live testimony not needed	Kersee argued the recantation created a credibility contest that heightened his interest in cross‑examination and the government gave no justification for not calling witnesses	Court: No specific, adequate good-cause finding; government’s proffer (victim would lie) insufficient without record support; error not harmless
Whether admitting multi-layered hearsay (police reports recounting witnesses) without live testimony was permissible	Gov’t maintained the hearsay exhibits were reliable and probative and that cross‑examination would not add material information	Kersee argued the evidence was the sole proof of violation, involved credibility choices, and was undermined by the recantation	Court: Admission without live testimony and without good cause violated due process; remand for new hearing

Key Cases Cited

Grandlund v. United States, 71 F.3d 507 (5th Cir. 1995) (establishes qualified confrontation right in revocation hearings and requires specific good‑cause findings)
McDowell v. United States, 973 F.3d 362 (5th Cir. 2020) (Confrontation Clause not directly applicable, but due process provides qualified right in revocation)
Farrish v. Mississippi State Parole Bd., 836 F.2d 969 (5th Cir. 1988) (admission of out‑of‑court statements through an officer can violate right to confront)
Jimison v. United States, 825 F.3d 260 (5th Cir. 2016) (reliance on agent’s testimony recounting an informant’s identification implicated confrontation right; remand required)
Minnitt v. United States, 617 F.3d 327 (5th Cir. 2010) (scientifically verifiable evidence may lessen confrontation interest)
McCormick v. United States, 54 F.3d 214 (5th Cir. 1995) (discusses reliability’s role in good‑cause balancing)
Alvear v. United States, 959 F.3d 185 (5th Cir. 2020) (victim’s demonstrated fear in record can support denying confrontation)