U.S. v. Grandlund
| Decision Date | 13 December 1995 |
| Docket Number | No. 95-50117,95-50117 |
| Citation | 71 F.3d 507 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Frank GRANDLUND, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard L. Durbin, Jr., Asst. U.S. Atty., Office of the United States Attorney, San Antonio, TX, for United States of America plaintiff-appellee.
Thomas S. Morgan, Midland, TX, for Frank Grandlund defendant-appellant.
Appeal from the United States District Court for the Western District of Texas.
Before POLITZ, Chief Judge, and HILL * and DeMOSS, Circuit Judges.
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.
Grandlund was sentenced to three months in prison and three years of supervised release for a failure to appear, 18 U.S.C Sec. 3146(a)(1). The supervised release began on 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 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. Sec. 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.
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 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 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 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...
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