United States v. Roy Carrion , 457 F. App'x 405 ( 2012 )

Case: 11-10211 Document: 00511716908 Page: 1 Date Filed: 01/06/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 6, 2012
No. 11-10211 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROY TONCHE CARRION,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:05-CR-6-1
Before KING, JOLLY, and WIENER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Roy Tonche Carrion appeals the revocation of his
supervised release, asserting that the district court erred in his revocation
hearing when it admitted prior expert testimony on the reliability of “sweat
patch” drug testing. We find no reversible error, and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant-Appellant Roy Tonche Carrion (“Carrion”) began a three-year
term of supervised release on November 23, 2009, after serving a thirty-month
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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prison sentence for possession with intent to distribute cocaine and aiding and
abetting in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C) and 18 U.S.C. § 2.
Carrion’s conditions of supervised release prohibited (1) illegal possession or use
of a controlled substance, (2) excessive use of alcohol, and (3) possession of drug-
related paraphernalia. Carrion was also ordered to “submit to one drug test
within 15 days of release from imprisonment and at least two periodic drug tests
thereafter,” and to “participate in a program . . . for treatment of narcotic, drug,
or alcohol dependence, which will include testing for the detection of substance
use or abuse.”
From his release in November 2009 until December 2010, Carrion missed
counseling sessions, showed up late for urinalysis collections, and consumed
alcohol on one occasion. At the time, Carrion’s probation officer, Connie Massey
(“Massey”), did not recommend revocation because she believed that Carrion
wanted to improve. Massey revised her approach in January 2011, and
petitioned for Carrion’s arrest. She filed a Supervised Release Violation Report,
alleging that Carrion violated the terms of his supervised release by failing to
timely report for random drug testing on three occasions and by testing positive
for alcohol and cocaine use. Carrion’s cocaine use was evidenced by the results
of a PharmChem sweat patch test (the “sweat patch”) that fellow probation
officer Scott Cannon (“Cannon”) had applied to Carrion. On January 28, 2011,
the government moved to revoke Carrion’s supervised release based upon the
violations that Massey detailed.
At the revocation hearing, the government called probation officers Massey
and Cannon. Massey testified that she ordered Carrion to submit to sweat patch
drug testing after becoming concerned that Carrion was intentionally diluting
his urine in order to avoid positive test results. According to Massey, sweat patch
testing involves a “patch that is placed on the skin and covered with a covering
and is worn for anywhere from a day to two weeks, and then it’s taken off; it’s
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sent to the lab and tested.” She also explained that it is a “Band-Aid type
mechanism that is placed normally on the arm, sometimes in other locations
that are approved. . . . It is there to collect the sweat from an individual; then the
patch is removed, it’s sent to a lab, and that sweat patch is tested for illicit drug
use.” Importantly, the results of the sweat patch test reflect the existence of
“cocaine metabolite,” which is secreted by the body after ingestion, rather than
actual cocaine.
Cannon testified regarding his training in sweat patch application and the
reliability of the sweat patch. When questioned regarding the reliability of the
test, Cannon referenced a case in the Western District of Texas in which Dr. Leo
Kadehjian, a consulting toxicologist to the Administrative Office of the United
States Courts, testified concerning the science and reliability of sweat patch drug
testing. He stated that, prior to the revocation hearing, the government
contacted Dr. Kadehjian and another expert, Dr. Koontz, but both were
unavailable to testify. Dr. Kadehjian was in California at the time, and Dr.
Koontz was in Chicago. Cannon testified that he had reviewed a transcript of Dr.
Kadehjian’s testimony in the prior case (United States v. Kinney, No. W-01-CR-
99 (W.D. Tex.)), and the government tendered the transcript as an exhibit
(“Exhibit 3”). Carrion’s counsel objected to the testimony as follows:
Your Honor, if I may, we would object to the admission of this
document. Specifically, Your Honor, this is the testimony. This isn’t
a report. This isn’t a peer-reviewed article. This is the testimony of
this Dr. Leo Kadehjian—Kadehjian. He is—from my research, Your
Honor, he is the hired expert by PharmChem and PharmChek to
come and testify to the validity of this issue. It presents problems
between proffer, between—between confrontation and with due
process, Your Honor. He has a specific agenda and specific
testimony that he gives, and that certainly, Your Honor, we would
request, should be subject to cross-examination in determining the
weight and the credibility specifically of the PharmChek sweat
patch.
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The district court overruled the objection and admitted the transcript without
an explicit finding that there was good cause to do so.
Cannon testified that he was trained in the application and removal of
sweat patches but not in the science of sweat patch testing. He stated that he
applied a sweat patch to Carrion while in an office at Carrion’s workplace, an
auto auction facility where Carrion cleaned out wrecked cars. When applying the
sweat patch, he looked for a spot on Carrion’s body without tattoos (consistent
with the application instructions), and he placed the patch on the back of the
inside of one of Carrion’s arms, after cleaning the area with two alcohol swabs.
Cannon removed the patch six days later during Carrion’s visit to the probation
office, and it was sent to Kansas for analysis. PharmChem reported that the
sweat patch tested positive for cocaine metabolite on December 20, 2010.
Cannon then read portions of Dr. Kadehjian’s prior testimony, specifically
regarding the reliability of sweat patch testing and its recognition by the Food
and Drug Administration (“FDA”) as well as the Substance Abuse Mental Health
Services Administration. Cannon also recounted Dr. Kadehjian’s professional
background and his experience as an expert witness. Carrion was granted a
continuing objection to the testimony.
During cross-examination, Cannon admitted that he did not instruct
Carrion to clean his arm with soap and water prior to the application of the
sweat patch, as recommended by PharmChem. Carrion then introduced three
studies (referred to in the revocation hearing as Exhibits 2-A, 2-B, and 2-C) that
refuted the accuracy of sweat patch drug testing due to the possibility of external
contamination, including one study by the U.S. Naval Research Laboratory.
Cannon acknowledged that Dr. Kadehjian had not been questioned on all of
these particular studies, but noted the doctor’s testimony that “no patch can be
reported as positive for cocaine unless the metabolite is shown to be present as
an extra assurance that the patch was truly reflecting ingestion of cocaine.”
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According to Cannon, this ensures that positive test results would not be due to
external contamination.
Carrion testified in his own defense, and admitted that he had used
alcohol, as reflected by the positive test result. He stated that his job involved
cleaning cars damaged in accidents and that they often contained blood, trash,
beer cans, and other items. He did not wear protective clothing and only wore
gloves when he saw that a car was very bloody or had broken glass. Carrion
stated that he had not used cocaine since 2004, and had not used or knowingly
been around cocaine since he began supervised release in November 2009.
During closing argument, Carrion’s counsel argued that the positive sweat
patch result was caused by outside contamination. He argued:
[the peer-review articles] explain in detail the fallibility of the sweat
patch. What [Dr. Kadehjian] refers to as an impossibility in a
real-world situation, number one, only applies to contaminations
from without, the permeability of the actual adhesive covering of the
sweat patch. He doesn’t even address contaminations from within,
which is referred to as drugs or substances that could be left on the
skin.
Counsel conceded that the “test is reliable” after the patch is removed and
analyzed at the lab, but argued that “the fallibility of this test comes to the
application and the procedures and the process that go into it.”
The district court found that the government had proven the allegations
against Carrion by a preponderance of the evidence, and it revoked Carrion’s
supervised release. It found that Carrion had “a Grade C violation, with a
Criminal History Category of IV,” and it sentenced him to twelve months of
imprisonment with no further supervised release. Carrion timely appealed.
II. STANDARD OF REVIEW
“A district court may revoke a defendant’s supervised release if it finds by
a preponderance of the evidence that a condition of release has been violated.”
United States v. Minnitt, 617 F.3d 327, 332 (5th Cir. 2010). “The decision to
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revoke supervised release is reviewed under an abuse of discretion standard, but
the constitutional challenge about the right of confrontation of adverse witnesses
is reviewed de novo.” United States v. Grandlund, 71 F.3d 507, 509 (5th Cir.
1995) (footnote omitted). Alleged violations of this right are subject to a harmless
error analysis. United States v. McCormick, 54 F.3d 214, 219 (5th Cir. 1995).
III. ANALYSIS
On appeal, Carrion contends that the district court reversibly erred when
it admitted Dr. Kadehjian’s prior expert testimony on the reliability of sweat
patch drug testing without finding good cause for not allowing cross-
examination. We find no reversible error, as the district court’s failure to make
a good cause finding on the record was harmless.1
A releasee facing revocation of parole or supervised release enjoys more
limited rights than does a defendant facing a criminal prosecution. Morrissey v.
Brewer, 408 U.S. 471, 480 (1972).2 While due process provides a releasee in a
revocation hearing the right to confront and cross-examine adverse witnesses,
the district judge may deny this right if there is good cause for not allowing
1
As an initial matter, we reject the government’s contention that Carrion waived his
good cause argument by failing to properly object in the district court. When the government
sought to admit Dr. Kadehjian’s testimony, counsel objected on “confrontation and . . . due
process” grounds, and also requested that Dr. Kadehjian “be subject to cross-examination in
determining the weight and the credibility specifically of the PharmChek sweat patch.” This
objection is sufficient to preserve the argument for appeal. See FED. R. CRIM. P. 51(b); United
States v. Musa, 45 F.3d 922, 924 n.5 (5th Cir. 1995) (“To preserve an issue for review on
appeal, the defendant’s objection must fully apprise the trial judge of the grounds for the
objection so that evidence can be taken and argument received on the issue.”); see also United
States v. Mendoza, 414 F. App’x 714, 718 (5th Cir. 2011) (citing McBride v. Johnson, 118 F.3d
432, 437 (5th Cir. 1997)).
2
The “same protections granted those facing revocation of parole are required for those
facing the revocation of supervised release.” McCormick, 54 F.3d at 221 (quoting United States
v. Copeland, 20 F.3d 412, 414 (11 Cir. 1994)); see FED. R. CRIM. P. 32.1(b)(2) (revocation
hearing procedures).
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confrontation. Id. at 489.3 “To deny confrontation, the district court must
specifically find good cause and must make the reasons for its finding part of the
record.” Minnitt, 617 F.3d at 333. In evaluating good cause, the district court
“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.” Grandlund, 71 F.3d at 510. The good cause requirement is “flexible . .
. depending in part on the importance of the testimony and the parolee’s need to
confront the witness.” Barnes v. Johnson, 184 F.3d 451, 456 (5th Cir. 1999); see
also McCormick, 54 F.3d at 225 (stating that evidentiary rules should be applied
“flexibly in revocation hearings,” consistent with Morrissey).
Although we have stated that a district court must make a “good cause”
finding on the record, a court’s failure to do so may constitute harmless error.
The error is harmless where “[1] good cause exists, [2] its basis is found in the
record, and [3] its finding is implicit in the court’s rulings.” Minnitt, 617 F.3d at
333 (quoting Grandlund, 71 F.3d at 510). Because the district court in this case
erred in failing to make a good cause finding on the record, we must evaluate
these three factors to determine whether that error was harmless.
A. Good Cause Exists
In determining a releasee’s interest in cross-examination, we have focused
on the following considerations, amongst others: (1) whether the evidence at
3
The Sixth Amendment right to confrontation does not apply in revocation proceedings;
rather, the “defendant has the right to confront witnesses under FED. R. CRIM. P. 32.1 and the
Fifth Amendment.” Mendoza, 414 F. App’x at 718 n.7. This court has also concluded that
Crawford v. Washington, 541 U.S. 36 (2004), does not apply to revocation proceedings. United
States v. Denson, 224 F. App’x 417, 418 (5th Cir. 2007). This holding is consistent with that
of other circuits that have considered the issue. See United States v. Kelley, 446 F.3d 688,
691-92 (7th Cir. 2006); Ash v. Reilly, 431 F.3d 826, 829-30 (D.C. Cir. 2005); United States v.
Rondeau, 430 F.3d 44, 47-48 (1st Cir. 2005); United States v. Hall, 419 F.3d 980, 985-86 (9th
Cir. 2005); United States v. Kirby, 418 F.3d 621, 627-28 (6th Cir. 2005); United States v.
Aspinall, 389 F.3d 332, 342-43 (2d Cir. 2004), abrogation on other grounds recognized, United
States v. Fleming, 397 F.3d 95, 99 n.5 (2d Cir. 2005); United States v. Martin, 382 F.3d 840,
844 n.4 (8th Cir. 2004).
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issue is important to the district court’s ultimate revocation determination; (2)
whether the evidence relates to an alleged violation that triggers mandatory
revocation or a mandatory minimum sentence; (3) whether the releasee had an
opportunity to refute the evidence through methods other than cross-
examination (such as re-testing, subpoenas, or presentation of expert testimony);
(4) whether the testimony at issue involves “scientifically-verifiable facts;”4 and
(5) whether the releasee has presented evidence to support the alternate theory
that he seeks to explore on cross-examination. See Minnitt, 617 F.3d at 333-35;
McCormick, 54 F.3d at 222-23.
Carrion’s interest in cross-examination of Dr. Kadehjian is minimal, as
only two considerations weigh in his favor. Specifically, the reliability of the
sweat patch was likely important to the court’s decision in the supervised release
hearing, and this evidence was important to the outcome of the hearing because
use of a controlled substance triggers mandatory revocation of supervised
release. 18 U.S.C. § 3583(g)(1); see Minnitt, 617 F.3d at 333. The remaining
factors do not support Carrion’s interest.
First, despite his argument to the contrary, Carrion could have refuted Dr.
Kadehjian’s testimony through methods other than cross-examination. If he
wanted to challenge the sweat patch results, Carrion could have called his own
experts to support his external contamination theory. Carrion contends that he
did not know that Dr. Kadehjian’s testimony would be proffered until the
hearing itself. While this is a reasonable explanation for Carrion’s failure to
subpoena Dr. Kadehjian, it cannot justify his failure to submit his own expert
4
As this court explained in McCormick, 54 F.3d at 222, “a releasee’s 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 the declarant may have seen.
The 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.
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testimony. Carrion certainly knew that the sweat patch results would figure
prominently at the hearing, and he could have undertaken efforts to discredit
the results’ reliability through other means available to him. Finally, Carrion’s
counsel could have requested a continuance for the purpose of developing his
own expert testimony or attempting to subpoena Dr. Kadehjian, but he failed to
do so.
Second, Dr. Kadehjian’s testimony involved scientifically verifiable facts.
We have recognized that “a releasee’s interest in cross-examining a laboratory
technician regarding a scientific fact is minimal because the truth of the fact can
best be verified through the methods of science rather than through the rigor of
cross-examination.” Minnitt, 617 F.3d at 333 (citation and internal quotation
marks omitted). While Dr. Kadehjian is not a lab technician, the same rationale
applies. The reliability of the sweat patch test can best be examined through the
scientific method rather than cross-examination.
Third, Carrion’s interest in confrontation is minimal in light of the prior
cross-examination of Dr. Kadehjian. To support his theory, Carrion presented
three studies (referenced above), which suggested that external contamination
could cause a false positive result in certain circumstances. Carrion also asserted
that he worked at an auto auction facility cleaning out dirty cars, and that
Officer Cannon did not fully comply with the recommended application
procedures. Carrion essentially posits that cocaine residue was transferred to his
body while cleaning out cars, this residue remained on his body when the patch
was applied, and the residue was responsible for the false positive result.
Carrion’s presentation of conflicting evidence separates this case somewhat from
our prior decisions in McCormick, Grandlund, and Minnitt, as the releasees in
those cases did not provide evidence to support their contamination or false-
positive theories. Nevertheless, these theories were sufficiently explored upon
cross-examination of Dr. Kadehjian in United States v. Kinney. On direct
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examination in that case, Dr. Kadehjian explained that “any time there’s drug
use and excreted in the sweat, it can be detected in the patch,” and that the
patch “collects sweat from the wearer throughout the period of patch wear and
any drugs that are ingested and excreted in the sweat will be trapped in the
patch.” Kadehjian also acknowledged that while certain studies had questioned
the patch’s accuracy, “by far and away 95 percent of the published literature
supports the patch as an accurate and reliable device.” On cross-examination,
defense counsel inquired into how the patch detects drugs:
Q: Okay. Well, in other words, being a layperson, we’re talking
about something that you’re detecting in sweat, correct?
A: That’s correct. The sweat patch collects the sweat and any
drugs that are contained in the sweat.
Q: Okay. So to get to the sweat, it has to be ingested, be
processed through the body in some way and be expelled or
eliminated through sweat, correct?
A: Yes, sir.
Later, defense counsel asked about studies that questioned the reliability of
sweat patches. With respect to external contamination, Dr. Kadehjian was
questioned as follows:
Q: Okay. And one of those other – one of those other possible
explanations or reasons for positive results would be external
factors, external variables or – external factors, external
variables?
A: I’ll answer by detailing the paper that brings that issue up. In
data submitted to the FDA, Pharm-Chem showed that the
patch was impermeable effectively to contaminants from
outside the patch. . . . [C]ontaminants from the environment
were demonstrated not to go through the patch. One research
group did demonstrate under laboratory conditions that they
could effectively make drugs go through the patch from the
outside environment into the patch. I’ve reviewed those
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papers critically. . . . And my review of that data is that it’s
only under a rather unique set of . . . unrealistic conditions
that they were able to demonstrate that they could make
drugs go through the patch from the environment. In my
opinion, absent any showing that these laboratory type
conditions . . . exist, I would hold that there is no reasonable
basis to presume that anyone wearing a patch in a real world
setting would have a positive result from anything other than
drug use.
Dr. Kadehjian confirmed that the study discussed in the above testimony was
the one performed by the U.S. Naval Research Laboratory, a study upon which
Carrion relied to support his contamination theory. Although Dr. Kadehjian was
not specifically cross-examined on the other studies that Carrion presented in
the district court, those other studies were in existence when Dr. Kadehjian
testified in Kinney and we can reasonably assume that those studies did not
alter his expert opinion on the reliability of sweat patch drug testing.
Carrion argues that the prior cross-examination of Dr. Kadehjian in
Kinney was a poor substitute, as it did not explore Carrion’s false-positive
theory, Kinney did not have the same interest and motivation to ask about
“under-the-patch” contamination, and the record from the previous case did not
detail the patch application procedures. We disagree. To believe Carrion’s
theory, the court would have to conclude that another person’s cocaine
metabolite, not cocaine itself, was transferred to Carrion’s arm while he was at
work, and remained there when the patch was applied. Even if such a theory
were plausible, it is quite clear that it would not have been aided by cross-
examination of Dr. Kadehjian. As detailed above, Dr. Kadehjian explained that
the sweat patch “collects the sweat and any drugs that are contained in the
sweat,” and confirmed that for drugs to be contained in the sweat, they have to
be “ingested.” He also stated that there “is no reasonable basis to presume that
anyone wearing a patch in a real world setting would have a positive result from
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anything other than drug use.” This testimony significantly discounts Carrion’s
defense. In light of Dr. Kadehjian’s former testimony, there is even a possibility
that cross-examination would have in fact undermined Carrion’s theory. Because
Dr. Kadehjian was previously cross-examined on the same general theory that
Carrion now advances here, Carrion’s ultimate interest in confrontation is
minimal.
In contrast, the government had a significant interest in admitting Dr.
Kadehjian’s testimony over Carrion’s objection. When examining the
government’s interest, this court considers the reliability of the testimony at
issue and the “delay, difficulty, and expense of securing the appearance of
distant witnesses.” Grandlund, 71 F.3d at 511; see Minnitt, 617 F.3d at 334.
Reliability is a “critical consideration” in the good cause determination.
Grandlund, 71 F.3d at 510. In determining reliability, we have considered
whether the oral hearsay was given “under oath and penalty of perjury,” and
whether the testimony at issue “is essentially a scientific fact which . . . can be
verified or refuted through scientific methods.” McCormick, 54 F.3d at 225.
The record demonstrates that Dr. Kahedjian’s testimony was reliable.
First, Dr. Kahedjian has strong expert credentials, as he holds a bachelor’s
degree in organic chemistry from the Massachusetts Institute of Technology and
a doctorate in biochemistry from Stanford University. He has served as a
consulting toxicologist to the Administrative Office of the United States Courts,
taught at the National Judicial College, and published numerous papers on
sweat patches. He is not employed by PharmChem. Second, his prior testimony
was presented in court, under oath, and subject to cross-examination.5 Third, Dr.
Kadehjian’s testimony is scientific in nature, and his discussion of scientific
5
In this respect, the testimony here is equally or even more reliable than the affidavit
submitted in McCormick, which we found to have “significant indicia of reliability.” 54 F.3d
at 225.
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studies and experiments with the patch can be “verified or refuted through
scientific methods.” Id. Other courts have found both sweat patch testing and Dr.
Kadehjian’s analysis and conclusions to be reliable. See United States v. Meyer,
483 F.3d 865, 869 (8th Cir. 2007) (“[S]weat patch results are a generally reliable
method of determining whether an offender has violated a condition of his or her
probation. . . . We also place weight on the expertise of Dr. Kadehjian, who
vouched for the general reliability of sweat patch results.”) (O’Connor, J., sitting
by designation); see also United States v. Zubeck, 248 F. Supp. 2d 895, 899 (W.D.
Mo. 2002) (finding “Dr. Kadehjian’s explanation of PharmChem’s findings to be
credible”).
The parties also agree that Dr. Kadehjian was not available to testify at
Carrion’s supervised release hearing, as he was in California at the time. As
such, it would have been difficult and expensive for the doctor to testify live at
Carrion’s supervised release hearing. See Minnitt, 617 F.3d at 334; McCormick,
54 F.3d at 224.
In sum, the government had a strong interest in admitting Dr. Kadehjian’s
testimony. The case for admitting Dr. Kadehjian’s testimony here is even
stronger than was the case for admitting a lab director’s hearsay statements in
Minnitt. There, the court found good cause for admission of the statements even
though they were not made under oath, and were instead made to a probation
officer who had questioned the director about the viability of Minnitt’s various
false positive theories. 617 F.3d at 334-35. In contrast, Dr. Kadehjian testified
under oath and was subject to full cross-examination by a releasee who raised
at least the same general contamination theories that Carrion advances and who
had the same interest in discrediting the test results. We conclude that Carrion’s
interest in confronting Dr. Kadehjian is outweighed by the government’s
interests in admitting his prior testimony, and therefore, there was “good cause”
to deny Carrion the opportunity to cross-examine Dr. Kadehjian.
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B. Good Cause Found in the Record
As demonstrated above, the record contains sufficient evidence
demonstrating good cause, which existed prior to the district court’s ruling on
the subject. See, e.g., Minnitt, 617 F.3d at 333. First, the record demonstrates
that Dr. Kadehjian was in California, and was therefore not available to testify.
Second, Dr. Kadehjian’s testimony listed his credentials and experience, which
demonstrate his reliability. Third, his testimony reflected the prior cross-
examination by defense counsel in Kinney, which addressed issues of reliability
and contamination now raised by Carrion.
C. Good Cause Implicit in the Court’s Ruling
The final consideration requires us to determine whether the good cause
finding is “implicit in the court’s ruling.” Grandlund, 71 F.3d at 510. The
government contends that the district court reviewed Exhibit 3 and impliedly
found “good cause” to deny Carrion’s objections, and this finding is fully
consistent with Dr. Kadehjian’s credentials, expertise, and standing in the
federal courts. We agree.
In McCormick, the panel held that the good cause finding was implicit in
the district court’s ruling, and provided the following analysis:
In light of the at-best marginal benefit to be gained by requiring
those [laboratory] technicians to submit to cross-examination, the
significant number of available but unavailed options to confront the
urinalysis report, the reliability of this particular urinalysis report,
and the difficulty and cost associated with requiring those
technicians to appear at the hearing, we conclude that the record
supports an implicit finding by the district court that the
government showed good cause for denying McCormick’s right to
confront the laboratory technicians.
McCormick, 54 F.3d at 224. The record here supports an implicit finding that
Carrion’s interest in cross-examining Dr. Kadehjian was outweighed by the
government’s interest in admitting Dr. Kadehjian’s prior testimony, in light of
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the reliability of that testimony and the limited utility of confrontation in this
instance. We therefore “deem it unnecessary to remand to [the district] court for
it to make explicit that which is already implicit.” Id. at 221.
IV. CONCLUSION
In light of the foregoing, the district court’s judgment of revocation is
AFFIRMED.
Judge Jolly concurs only in the judgment.
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