U.S. v. Martin

• Decision Date: 21 January 1993
• Docket Number: No. 92-10240,92-10240
• Citation: 984 F.2d 308
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel Douglas MARTIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 308

984 F.2d 308

UNITED STATES of America, Plaintiff-Appellee, v. Daniel Douglas MARTIN, Defendant-Appellant.

No. 92-10240.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 4, 1992.

Decided Jan. 21, 1993.

Donna M. Gray, Asst. Federal Public Defender, Honolulu, HI, for defendant-appellant.

Michael K. Kawahara, Asst. U.S. Atty., Honolulu, HI, for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before BROWNING, NORRIS, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Daniel Douglas Martin appeals his sentence on revocation of supervised release. Because we hold that Martin's due process right to confrontation was violated, we reverse and remand.

I

Martin pleaded guilty to possession with intent to distribute heroin and was sentenced to 24 months' imprisonment and four years of supervised release. He was released from prison on January 23, 1992. On March 18, 1992, the district court revoked Martin's supervised release, finding four separate violations of the conditions of his release: 1) submission of two urine specimens that tested positive for cocaine and methadone; 2) failure to report for drug testing and counseling on two occasions; 3) failure to report termination of his employment; and 4) leaving the District of Hawaii without permission.

Martin admitted the last three violations and contested the first. As to the first alleged violation, he admitted using methadone as part of a treatment program but denied using cocaine. ¹ Martin concedes that the three admitted violations support revocation of supervised release. However, the contested violation led to an enhanced sentence. The district court found that Martin had possessed a controlled substance and applied 18 U.S.C. § 3583(g), which requires imprisonment for at least one-third of the term of supervised release; the court therefore sentenced Martin to 16 months' imprisonment. ² In the absence of section 3583(g), the recommended sentencing range under the Sentencing Guidelines would have been four to ten months. U.S.S.G. § 7B1.4(a).

The only evidence supporting the finding of possession of a controlled substance consisted of two laboratory urinalysis reports showing the presence of methadone and cocaine metabolites. Although actual testing of the samples was conducted by PharmChem Laboratories in Menlo Park, California, Gary Noland, a counselor at Drug Addiction Services of Hawaii (DASH) who collected the samples from Martin, testified to the test results. The government presented no other witnesses. Noland described collection and shipping procedures at DASH. On cross-examination, Noland was unable to testify to the particular tests employed on Martin's samples or to PharmChem's general testing and handling procedures. Noland indicated, however, that the samples should still be available for retesting. Upon learning of the samples' likely availability, Martin's counsel who had been appointed the day of the final revocation hearing, requested that the court allow counsel to arrange for an independent retesting of the samples. Without explanation, the district court denied the request.

II

In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Supreme Court defined certain minimal due process requirements for parole revocation. The Court quickly extended these protections to probation revocation. See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Fed.R.Crim.P. 32.1, which applies to supervised release revocation, incorporates these same minimal due process requisites. We must therefore decide if Martin's Morrissey due process rights were violated by the district court's admission of the laboratory results and its refusal to allow independent retesting of the urine specimens.

Among the Morrissey mandates is "the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)." 408 U.S. at 489, 92 S.Ct. at 2604; see also Fed.R.Crim.P. 32.1(a)(2)(D) ("opportunity to question adverse witnesses"). Although it is possible to evaluate Martin's claims under separate Morrissey requirements, we conclude that these alleged errors may be addressed most logically and meaningfully, together, under the right to confrontation. ³ We construe that right as requiring that a supervised releasee receive a fair and meaningful opportunity to refute or impeach the evidence against him in order "to assure that the finding of a [supervised release] violation will be based on verified facts." See Morrissey, 408 U.S. at 484, 92 S.Ct. at 2601.

In cases involving the Morrissey right to confrontation, we employ "a process of balancing the [releasee's] right to confrontation against the Government's good cause for denying it." United States v. Simmons, 812 F.2d 561, 564 (9th Cir.1987). See also United States v. Kindred, 918 F.2d 485, 486 (5th Cir.1990); United States v. Bell, 785 F.2d 640, 642 (8th Cir.1986); United States v. Penn, 721 F.2d 762, 764 (11th Cir.1983). We address each side of this balance in turn.

A

Simmons and the other cases offer minimal instruction on weighing the releasee's right to confrontation. The cases have tended to focus nearly exclusively on the "good cause" side of the balance. The Fifth Circuit has defined the "right" side of the balance as measuring the defendant's "interest in confronting a particular witness," Kindred, 918 F.2d at 486, but that definition provides little in the way of guidance. In general, the Morrissey right to confrontation has itself been but murkily defined. A releasee's right to confrontation is not equivalent to that afforded a criminal defendant at trial. Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604; Simmons, 812 F.2d at 564. But aside from the "upper limit" imposed by this conclusion, precedent provides sparse indication of the more specific parameters of a releasee's right to confrontation.

This dearth of guidance does not mean that we can simply ignore one side of the Simmons right-cause balance. Doing so would suggest a static right, but Morrissey emphasizes the flexible nature of due process. "Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure." 408 U.S. at 481, 92 S.Ct. at 2600. Morrissey invoked this precept in arriving at the minimal due process requisites of a revocation hearing, but the principle of flexibility applies equally to our further interpretation of the skeletal framework of rights put forward by the Court.

In addition to being unfaithful to Morrissey, a static right to confrontation would undercut the balancing process adopted in Simmons. The test would make little sense if one side of the balance was a constant. If the right were unchanging, we could simply define a requisite level of government good cause to overcome it, and measure each case against this single-variable barometer. Cf. Penn, 721 F.2d at 765 ("[o]bviously, since this is a balancing test, there can be no fixed rules on what would constitute good cause in every case"). We adopted a balancing approach because sufficient good cause in one set of circumstances may be insufficient in another. We must therefore weigh Martin's right to confrontation under the specific circumstances presented.

Recognizing that a releasee's Morrissey rights at a revocation hearing do not rise to the level of similar rights at a criminal trial, we nonetheless have no difficulty in concluding that Martin's Morrissey right to confrontation was substantial under these circumstances. The factors that lead us to this conclusion include the importance of the evidence to the court's ultimate finding, the virtually complete denial of any opportunity to refute the evidence, and the consequences of the court's finding. ⁴

Our first consideration--the importance of the evidence to the court's ultimate finding--follows from the Supreme Court's emphasis on assuring that findings be based on "verified facts." Morrissey, 408 U.S. at 484, 92 S.Ct. at 2602. The more significant particular evidence is to a finding, the more important it is that the releasee be given an opportunity to demonstrate that the proffered evidence does not reflect "verified fact." Cases from this and other circuits focusing upon "reliance" by the trier of fact further support this principle. See, e.g., United States v. Garcia, 771 F.2d 1369, 1371 n. 2 (9th Cir.1985) (appellate court's first inquiry should be into "evidence actually relied upon by the trier of fact"); United States v. Taylor, 931 F.2d 842, 847 (11th Cir.1991) (probationer must show "that the court explicitly relied on the information"), cert. denied, --- U.S. ----, 112 S.Ct. 1191, 117 L.Ed.2d 433 (1992).

Here, the laboratory results were uniquely important to the court's finding that Martin possessed a controlled substance. Martin denied using cocaine, and the government presented no other evidence of cocaine use, much less possession. ⁵ Thus, Martin had a very strong interest in refuting the laboratory results, upon which the district court exclusively relied in finding possession.

Despite this strong interest, Martin had virtually no opportunity to refute the test results. This nearly complete denial of any confrontation is the second factor contributing to our conclusion that Martin's right weighs heavily in the Simmons balance. That this factor is an appropriate consideration follows from the Morrissey flexibility principle, as well as our own cases emphasizing "prejudice." See, e.g., Standlee v. Rhay, 557 F.2d 1303, 1307-08 (9th Cir.1977) (parolee must show absence of procedural safeguard was prejudicial). Had Martin been given some opportunity--even if not the traditional opportunity to cross-examine a live witness--to refute this important evidence, then...