United States v. Grandlund ( 1995 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-50117
UNITED STATES OF AMERICA,
Defendant-Appellant,
versus
FRANK GRANDLUND,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
December 13, 1995
Before POLITZ, Chief Judge, HILL* and DeMOSS, Circuit Judges.
POLITZ, Chief Judge:
Frank Grandlund appeals the revocation of his supervised release, asserting a violation
of his right to confront adverse witnesses. For the reasons assigned we affirm. Exercising
our supervisory powers, we direct implementation of certain practices and procedures to
assure the reliability of evidence of laboratory reports in all future revocation actions.
Background
Grandlund was sentenced to three months in prison and three years of supervised
release for a failure to appear, 18 U.S.C. § 3146(a)(1). The supervised release began on
*
Circuit Judge of the Eleventh Circuit, sitting by designation.
May 11, 1992.
On December 1, 1993 the sentencing court granted a petition of the probation office
to modify the conditions of the supervised release to require Grandlund’s participation in
substance abuse programs and mandatory urine testing. The following month, upon petition,
the court ordered a second modification, requiring Grandlund to live in a halfway house for
120 days and enter a drug treatment program, after which he was to be placed in an aftercare
program.
In January 1995 the probation office petitioned for revocation of the supervised
release for violating the conditions of release, including use of illegal drugs, excessive use
of alcohol, and frequenting places where illegal drugs were used or distributed.
At the revocation hearing the sole witness was Grandlund’s probation officer,
Katherine Harrison, who testified about the laboratory analyses of urine samples taken from
Grandlund on November 4, 1993; December 21, 1993; December 30, 1994; January 3,
1995; January 6, 1995; January 13, 1995; and January 26, 1995. Harrison testified that the
first two were taken by another probation officer and the remainder were taken by personnel
of the aftercare program. She further testified that each sample was given a number and sent
for analysis to PharmChem Laboratories in California. Over Grandlund’s objection she
testified about the contents of the laboratory reports, but the reports were not filed in
evidence. She also testified that when she confronted Grandlund with the test results of the
first two samples, he admitted consumption of so much alcohol at a party that it was possible
that he also had used cocaine there. As a result, she stated that she placed Grandlund in
several drug treatment programs, as ordered by the court.
Grandlund pleaded “not true” to the allegation of violations of the conditions of his
supervised release and, as noted, objected to Harrison’s testimony about the urinalysis tests
2
as hearsay under Fed.R.Crim.P. 32.1 and as inconsistent with his rights of confrontation and
cross-examination. Grandlund’s counsel cross-examined Harrison but offered no evidence
and subpoenaed no witnesses.
The district court overruled Grandlund’s objections, doing so without assigning any
reasons and without making an explicit finding of good cause to deny Grandlund’s right to
cross-examine adverse witnesses. At the time of its ruling, the trial court did not have the
benefit of our recent holding re-emphasizing the need for such.1
At the close of the hearing the court revoked the supervised release and sentenced
Grandlund under 18 U.S.C. § 3585 to prison for ten months. Grandlund timely appealed,
contending that the trial court erred by allowing the probation officer to testify about the
urinalysis test results which, he contends, violated his right of confrontation of the
PharmChem employee(s) who conducted the tests.
Analysis
The decision to revoke supervised release is reviewed under an abuse of discretion
standard,2 but the constitutional challenge about the right of confrontation of adverse
witnesses is reviewed de novo.3
Revocation hearings are not part of the criminal prosecution, are not formal trials, and
1
United States v. McCormick, 54 F.3d 214 (5th Cir.), cert. denied, _____ U.S. _____,
116 S.Ct. 264 (1995).
2
United States v. Turner , 741 F.2d 696 (5th Cir. 1984). Supervised release may be
revoked upon a finding, by a preponderance of the evidence, that a defendant violated a
condition of his supervised release. 18 U.S.C. § 3583(e)(3); United States v. McCormick.
Evidence which would establish guilt beyond reasonable doubt is unnecessary. United
States v. Francischine, 512 F.2d 827 (5th Cir.), cert. denied, 423 U.S. 931, 96 S.Ct. 284(1975).
3
United States v. McCormick.
3
the rules of evidence are not applied mandatorily.4 Because a person’s liberty is at stake,
however, 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.5
The defendant’s rights in a revocation hearing include a qualified right to confront and
cross-examine adverse witnesses. The confrontation of a particular witness may be
disallowed upon a finding of good cause.6 In its determination 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. A
critical consideration is the indicia of reliability of the challenged evidence.7
Grandlund maintains that the trial court committed reversible error by failing to make
a specific finding of good cause to abrogate his right of confrontation. That failure may
require reversal in most instances,8 but may be found to be harmless error where good cause
4
Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593 (1972); United States v. Courtney,
979 F.2d 45 (5th Cir. 1992); Advisory Committee Notes to Fed.R.Crim.P. 32.1(a)(2); see
also Fed.R.Evid. 1101(d)(3) (federal rules of evidence inapplicable to proceedings granting
or revoking probation).
5
Morrissey v. Brewer (parole hearings); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct.
1756 (1973) (probation). The same due process rights granted to those facing revocation of
parole are required for those facing revocation of supervised release. United States v.
McCormick.
6
Morrissey v. Brewer. There must be an explicit, specific finding of good cause, and the
reasons should be made a part of the record of the revocation hearing. Baker v.
Wainwright, 527 F.2d 372 (5th Cir. 1976).
7
United States v. Kindred, 918 F.2d 485 (5th Cir. 1990); see also United States v. Bell,
785 F.2d 640 (8th Cir. 1986); United States v. Penn, 721 F.2d 762 (11th Cir. 1983).
8
See United States v. McCormick, citing United States v. O’Meara, 33 F.3d 20 (8th
Cir. 1994) (per curiam).
4
exists, its basis is found in the record, and its finding is implicit in the court’s rulings.9 In
the case at bar good cause exists, its basis is readily found in the record, and its existence is
implicit in the court’s relevant rulings.
In United States v. Kindred we held that the right of confrontation was not violated
by the receipt of a urinalysis report through a probation officer’s testimony. In Kindred the
government’s interest in minimizing the difficulty and expense of procuring witnesses
outweighed the defendant’s interest, deemed minimal because he neither contested the
allegations of drug use nor the accuracy of the drug test. We there recognized that urinalysis
reports are routine matters for a company engaged in conducting such tests and generally are
considered reliable.
In United States v. McCormick we concluded that the right to confront a laboratory
technician was not infringed by the introduction of a lab report showing that the defendant’s
urine specimen tested positive for amphetamine and methamphetamine. The record
contained numerous indicia that the urinalysis was reliable, including the recognized
reliability of the urinalysis report as a regular business record, the testimony of a probation
officer that he took the sample and sent it to the laboratory, and an affidavit from a manager
of the laboratory attesting to laboratory procedures, the analysis of the particular specimen,
and the virtual impossibility that the positive test result could have been caused by another
substance.
We also concluded in McCormick that the government’s interest in avoiding the
difficulty and expense of a personal appearance in a federal court in Texas of the California
lab technician(s) who analyzed the specimen outweighed the defendant’s marginal interest
9
United States v. McCormick, citing United States v. Alaniz-Alaniz, 38 F.3d 788 (5th
Cir. 1994), cert. denied, _____ U.S. _____, 115 S.Ct. 1412 (1995); United States v. Bell.
5
in confrontation. Although McCormick contended that legal medications he was taking had
caused a false positive result, he neither requested retesting nor presented any evidence that
his medications could have caused a false positive. Nor did he seek a subpoena for any
PharmChem employee or offer evidence impugning the reliability of the laboratory or its
testing procedures. Further, because of the high volume of specimens analyzed at
PharmChem it is not likely that any lab personnel would be able to remember information
about the specimen(s) independent of the lab report. As to PharmChem we characterized it
as “a substantial laboratory of national prominence, which performs a significant volume of
urinalyses for the government and relies substantially on such work for its economic viability
[and] values its reputation for accuracy and expertise in the field.”10
In the case at bar Grandlund’s interest is tenuous and marginal. He offered no
exculpatory explanation for the seven positive test results over a period of 15 months. He
did not seek retesting, requested no subpoena of PharmChem employees, offered no evidence
of weakness in the lab’s practices or procedures, when confronted by the probation officer
he did not deny ingesting cocaine, and offered no suggestion of the questions he would like
to ask the lab personnel, or how that cross-examination could be of relevance and value to
him. Under the circumstances of this case, we must conclude that a confrontation with
laboratory personnel would have been of little use to Grandlund.
By contrast, the government’s interests are substantial. Avoiding the delay, difficulty,
and expense of securing the appearance of distant witnesses has been recognized as adequate
good cause.11 We must note, however, that the indicia of reliability of the evidence in the
case at bar is, in some respects, less than that in McCormick. The lab report was not offered
10
United States v. McCormick, 54 F.3d at 225.
11
Gagon v. Scarpelli.
6
nor was an affidavit from a PharmChem lab specialist attesting to the general reliability of
the lab’s testing procedures and the results of the tests at issue.
On the other hand, in the case at bar we have not one urine sample, as in McCormick,
but seven samples taken over a period of 15 months. Further, Grandlund did not object to
or challenge the testimony of his probation officer that when she confronted him with the
cocaine positive results of the first two tests he did not deny ingesting cocaine and sought
to use intoxication as the reason. Nor did he object when she testified that as a result of
these two tests the court modified the terms of his supervised release to require his
participation in a residential drug treatment program and its aftercare.
Mindful that we have before us a close case, we nonetheless must conclude,
considering all relevant circumstances, that the record adequately supports a finding of good
cause for denying Grandlund’s right of confrontation herein, and that the finding thereon is
implicit in the trial court’s rulings.
To avoid reversals and remands, considering the delays and burdens imposed thereby
on the defendant, prosecution, and the judicial system, and to assure the reliability of
relevant, often essential, evidence, we now invoke our supervisory authority and direct the
following procedures for all future revocation hearings involving positive laboratory tests:
1. A copy of the report of each relevant laboratory test is to be
provided to the court and the defendant at least five days,
computed in accordance with Fed.R.Crim.P. 45, before the date
for the revocation hearing unless the trial court specifically
directs a different period.
2. At the same time the court and the defendant are to be provided
a copy of the report on the chain of custody of each sample,
including the date of collection, name of person(s) collecting
and labeling same, and a description of the label.
3. At the same time the court and the defendant are to be provided
with a copy of an affidavit by a responsible laboratory
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employee attesting to laboratory procedures, including
laboratory chain-of-custody routines, whether all required
procedures were followed regarding the subject sample(s), and
the result(s) of the testing.
4. All of the foregoing instruments are to be made a part of the
record in each revocation hearing.
These procedures are supplementary to the trial court’s responsiblity, under
controlling precedents, to determine whether good cause exists to disallow the right of
confrontation of a particular witness after weighing the interests of the defendant and
government and evaluating the reliability of the evidence involved. When good cause is
found, the district court shall make a part of the record its findings and conclusions on the
issue of good cause to abrogate defendant’s right of confrontation of an adverse witness.
For the foregoing reasons, the judgment of revocation appealed is AFFIRMED, and
the supervisory powers directives are ISSUED.
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