U.S. v. Perez

• Decision Date: 16 May 2008
• Docket Number: No. 07-10289.,07-10289.
• Citation: 526 F.3d 543
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Janice L. PEREZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

526 F.3d 543

UNITED STATES of America, Plaintiff-Appellee, v. Janice L. PEREZ, Defendant-Appellant.

No. 07-10289.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 25, 2007.

Filed May 16, 2008.

Peter C. Wolf, Federal Public Defender, Matthew C. Winter, Assistant Federal Public Defender, Honolulu, HI, for defendant-appellant Janice Perez.

Edward H. Kubo, Jr., United States Attorney, Tracy A. Hino, Assistant United States Attorney, Honolulu, HI, for plaintiff-appellee United States of America.

Appeal from the United States District Court for the District of Hawaii; Helen Gillmor, District Judge, Presiding. D.C. No. CR-98-00198-HG.

Before: JOHN R. GIBSON,^* MARSHA S. BERZON, and CARLOS T. BEA, Circuit Judges.

BEA, Circuit Judge:

We are called upon in this case to decide whether a person on supervised release has a right to cross-examine the laboratory technician who tested a urine sample containing an illegal drug, where: (1) the test report itself stated the sample was "dilute"¹ — meaning the urine sample had been combined with another liquid at some point before or during the testing; (2) the evidence presented showed the person on supervised release did not have an opportunity herself to dilute nor add a substance to the sample; and (3) the result of the urinalysis was critical to support a finding that the person on supervised release had possessed or used illegal drugs. Because the illegal drug found in the tested sample could only have come from Perez's urine, an added substance, or another liquid, and because the validity of the urinalysis was the critical issue in determining whether Perez had used cocaine, we reverse the district court and hold the person on supervised release had a right to cross-examine the technician who handled and tested the sample. Absent such cross examination, the urinalysis should not have been admitted, and the consequent revocation of supervised release cannot stand.

We caution that this is an unusual case with unusual facts and should not be taken out of context. We do not hold that a releasee always has a right to cross-examine the technician who tested a urine sample. This is not a case where other evidence was offered in support of revocation, such as illegal drugs discovered in the possession of the releasee. Nor is this a case where multiple urine samples each tested positive. Here, the urinalysis report was the critical piece of evidence presented in support of the charge that Perez tested positive for cocaine. Although urinalysis results may often be sufficiently reliable evidence that the opportunity for cross-examination is unnecessary for due process purposes, see United States v. Martin, 984 F.2d 308, 313-14 (9th Cir. 1993), here the report itself showed the sample had been adulterated. Given that the sample was uncontestably adulterated, the test results were in fact ineluctably un reliable.

I

In 1998, Janice Perez pleaded guilty to bank robbery in violation of 18 U.S.C. § 2113(a). She was sentenced to a term of seventy-seven months imprisonment and three years supervised release.

Perez's term of supervised release commenced on March 8, 2007. Her release conditions required Perez to "follow instructions of the probation officer" and to abstain from using alcohol or drugs not prescribed for her.

On March 15th, Perez wished to travel to Maui to see her gravely ill brother, who was on life support. After verifying her brother's condition, Perez's probation officer, Derek Kim, permitted her to go to Maui, but directed her to come to his office upon her return, provide her travel itinerary and submit to a drug test.

When Perez returned, she went to the probation office and submitted her travel itinerary, but left without taking a drug test. Kim telephoned Perez to ask why she did not stay to be tested; Perez told him she forgot because she was upset after learning her brother had been taken off life support that day and had passed away.

Kim already knew about her brother's death, and testified, "so when she told me she forgot because she was upset, you know, I didn't think anything of it other than the fact that, well, I could see that that's conceivable." Kim did not ask Perez to come back into the office that day for a drug test. Instead, Kim instructed Perez to come by the office for a drug test the following day (March 20), which she did. That test established there were no illegal drugs in Perez's system. Kim then directed Perez to report to Freedom Recovery Services ("FRS"), the outside contractor the probation office uses to monitor persons on supervised release, to undergo FRS's orientation.

On March 21st, the day after she passed a urine test at the probation office, Perez duly reported to FRS. Even though Kim had not directed her to get tested, Perez voluntarily submitted to another urinalysis.

Mrs. Billee Schnaible, who worked at FRS, testified she observed Perez give the urine sample; neither Perez nor the sample were ever out of Schnaible's sight. The bathroom used was specially equipped with mirrors allowing Mrs. Schnaible to observe Perez and ensure she did not have an opportunity to adulterate the sample. Mrs. Schnaible testified Perez did not adulterate or "dilute" the sample.

According to a dip-stick test, the sample tested positive for cocaine metabolites. Perez protested vigorously saying, "I just tested at my PO's [Probation Officer's] yesterday and I'm clean, I'm clean, it can't be." Mrs. Schnaible testified that their usual practice would have been to conduct another test, but she did not remember collecting a second urine sample or doing a second test.²

Later, Dennis Schnaible, another FRS staff member, testified that after Perez protested, Mrs. Schnaible "got another testing device, a new one, and dipped it into the same urine. And the results were the same." Mr. Schnaible then assured the lid was on tight so the sample would not leak during shipping, watched Mrs. Schnaible fill out a chain of custody form, and sent Perez's urine sample to Scientific Testing Laboratories, Inc. ("STLI") in Virginia.³ STLI is the designated testing laboratory for U.S. Probation and Pretrial Services. According to Mr. Schnaible, no second urine sample was taken from Perez.

That same day, on March 21st, after Perez had been to FRS, she returned to the probation office. Kim was out of town, but Perez asked another probation officer named Robin DeMello to take a urine sample and test it for her; DeMello refused.

Mr. Schnaible testified the testing method used by FRS is not always reliable, which is why FRS uses the laboratories at STLI. He recalled one time when the method used by FRS resulted in four samples testing positive for drugs, but when those samples were sent to STLI, three of them tested negative.

The STLI report showed Perez's sample tested positive for cocaine. It also recorded abnormally low readings for the presence of creatinine (a breakdown product of creatine, an important part of muscle, produced by one's kidneys) and the urine's specific gravity. The report stated the following: "Specimen Validity Status: DILUTE." Perez objected that the STLI urinalysis report was hearsay, but it was nonetheless introduced into evidence. No STLI employee testified regarding the urinalysis report.

Also over Perez's hearsay objection, Kim testified the low creatine and specific gravity values meant that "rather than drinking tons of water, or other types of liquid, that [the people at STLI] actually believe a dilute, meaning that it was a liquid which included some urine." That the sample was diluted means that it had been adulterated. It not only contained Perez's urine, it also contained another unknown liquid that had been combined with the urine. Kim then speculated that someone could produce a dilute sample by using a hidden container to pour adulterated urine into the sample cup.

Perez argued to the district court the urinalysis result must be rejected because the sample had been adulterated. Perez contended she could not have adulterated the sample because she had been under the vigilant eye of Billee Schnaible when she gave the sample. She also contended her adamance she had not taken drugs and her multiple attempts to provide an additional sample that same day — at both FRS and then at the probation office — cast doubt on the accuracy of the urinalysis. The government responded that the sample was still available for retesting.

The district court rejected Perez's argument, concluding Perez had no credibility because of a long history of dishonesty. The district court made it clear its adverse credibility determination was not based on any evidence Perez diluted her own urine; the only grounds cited by the district court were some vague references to prior bad acts of the defendant. It is noteworthy there was no evidence introduced at the revocation hearing of any such prior bad acts. Likewise, there was no statement by the district court that anything about Perez's demeanor or manner of testifying caused her to lose credibility in the district court's eyes.

The district court found Perez guilty of both charges in the Request for Course of Action, specifically finding that Perez: (1) "refused to submit to drug testing at the Probation Office on 3/19/2007 as instructed on 3/15/2007"; and (2) Perez's "urine specimen submitted on 3/21/2007 tested positive for cocaine."

II

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review the district court's decision to revoke a term of supervised release for an abuse of discretion. United States v. Verduzco, 330 F.3d 1182, 1184 (9th Cir.2003). Whether a defendant has received due process at a revocation proceeding is a mixed question of law and fact we review de novo. See United States v. Havier, 155 F.3d 1090, 1092 (9th Cir.1998). "A due process violation at a revocation proceeding is subject to harmless error analysis." Verduzco, 330 F.3d...