U.S. v. Bell

• Decision Date: 10 March 1986
• Docket Number: No. 85-1632,85-1632
• Parties: UNITED STATES of America, Appellee, v. Bruce BELL, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 640

785 F.2d 640

UNITED STATES of America, Appellee, v. Bruce BELL, Appellant.

No. 85-1632.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 15, 1985.

Decided March 10, 1986.

Karen L. Queen, Little Rock, Ark., for appellant.

Don Curdie, Asst. U.S. Atty., Little Rock, Ark., for appellee.

Before ARNOLD and WOLLMAN, Circuit Judges, and GUNN, ^* District Judge.

ARNOLD, Circuit Judge.

Bruce Bell appeals from the decision of the District Court for the Eastern District of Arkansas to revoke his probation for violating state and federal laws. With respect to one of the grounds upon which revocation was apparently based, the United States did not demonstrate the requisite "good cause" for dispensing with confrontation and instead admitting the hearsay evidence that constituted the government's case. We therefore vacate the judgment and remand to the District Court for further proceedings in accordance with this opinion.

I.

In 1980, Bell was convicted of conspiracy to possess cocaine with intent to distribute, a violation of 21 U.S.C. Sec. 846, and of using the telephone to facilitate the conspiracy, a violation of 21 U.S.C. Sec. 843(b). On the first count Bell was sentenced to three years' imprisonment. On the second count he was given two years of probation, consecutive to service of his sentence on Count I. Bell served 20 months in prison and a halfway house and completed 16 months of parole; his two-year probation period apparently began in December 1983. At the beginning of this period Bell lived in Arkansas but in October 1984 he moved to Wichita, Kansas.

As a condition of his probation, Bell was required to "obey all local, state and federal laws." In March 1985 the government, alleging that Bell had violated this provision, petitioned for revocation of Bell's probation. The petition cited three instances in late 1984 in which urine samples taken from Bell tested positive for THC, indicating that Bell was using marijuana. It also stated that Bell had been arrested in February 1985 by Wichita, Kansas police for driving while intoxicated, possession of marijuana, and possession of narcotic paraphernalia. The petition alleged that, on this occasion, Bell was in fact guilty of the offenses of driving while intoxicated and possession of narcotic paraphernalia. It also left the clear implication that he was guilty of possession of marijuana as well.

On May 9, 1985 there was a hearing before the District Court on the revocation petition. The government presented two witnesses: Gary Duke, the probation officer who had explained the conditions of probation to Bell in 1980, and Arlo Lindsey, Bell's probation officer in Wichita, Kansas. Through Lindsey, the government introduced reports from the California chemical laboratory which analyzed Bell's urine and police reports of Bell's arrest. ¹ There were two witnesses for the defense: Bell, and David Lehren, who had been Bell's probation officer when Bell lived in Arkansas. In cross-examining Lehren, government counsel elicited testimony from him concerning an Arkansas State Police investigation of Bell for dealing in cocaine. At the close of the hearing the District Court revoked Bell's probation.

II.

Bell argues that his Sixth Amendment right to confront and cross-examine witnesses against him was violated by the introduction of three categories of evidence considered by the District Court: (1) the urinalysis lab reports, (2) the police reports of his arrest, and (3) Lehren's testimony about the suspicions of the Arkansas State Police that Bell was again involved in cocaine sales.

Bell's challenge is based on the requirements of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). In Morrissey, the Supreme Court held that the Sixth Amendment confrontation clause affords parolees in parole-revocation proceedings

the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation). [But such proceeding nevertheless is a] narrow inquiry ... flexible enough to consider ... material that would not be admissible in an adversary criminal trial.

408 U.S. at 489, 92 S.Ct. at 2604. Gagnon held that probationers are entitled to the same rights as Morrissey held applicable to parolees. 411 U.S. at 782, 93 S.Ct. at 1759. Addressing the right of confrontation, the Gagnon court responded to governmental concerns over the difficulty and expense of procuring distant witnesses by stating, "While in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not in Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence." 411 U.S. at 783 n. 5, 93 S.Ct. at 1760 n. 5.

These decisions indicate that the trial court in a probation-revocation proceeding must balance the probationer's right to confront a witness against the grounds asserted by the government for not requiring confrontation. United States v. Penn, 721 F.2d 762, 764 (11th Cir.1983). As is true of any balancing test, it is not possible to articulate fixed rules on what the government must show to establish "good cause" in every case. However, there are several factors which should be evaluated in examining the basis cited by the government for dispensing with confrontation.

First, the court should assess the explanation the government offers of why confrontation is undesirable or impractical. For example, the government might contend that live testimony would pose a danger of physical harm to a government informant, see Birzon v. King, 469 F.2d 1241, 1244 (2d Cir.1972), or, as suggested by Gagnon, that procuring live witnesses would be difficult or expensive.

A second factor that must be considered, and one that has been focused upon by a number of courts, is the reliability of the evidence which the government offers in place of live testimony. See, e.g., United States v. Burkhalter, 588 F.2d 604, 607 (8th Cir.1978); United States v. McCallum, 677 F.2d 1024, 1026-27 (4th Cir.), cert. denied, 459 U.S. 1010, 103 S.Ct. 365, 74 L.Ed.2d 400 (1982). ² Thus, where the government demonstrates that the burden of producing live testimony would be inordinate and offers in its place hearsay evidence that is demonstrably reliable, it has made a strong showing of good cause. Where, on the other hand, the government neither shows that presenting live testimony would be unreasonably burdensome nor offers hearsay evidence that bears indicia of reliability, the probationer is entitled to confrontation.

III.

Assessing the evidence challenged by Bell, we conclude that the government met the good cause requirement in the case of the laboratory and police reports. ³ However, we agree with Bell that the good-cause requirement was not met for the testimony concerning the Arkansas State Police investigation.

The urinalysis laboratory reports bear substantial indicia of reliability. See Penn, 721 F.2d at 765. They are the regular reports of a company whose business it is to conduct such tests, and which expects its clients to act on the basis of its reports. Moreover, we note that no evidence was presented to contradict Bell's drug usage, and that Bell has made only general, unsubstantiated claims that the laboratory tests may have been defective. ⁴ We conclude that under these circumstances there was good cause to permit the government to avoid the difficulty and expense of bringing the chemist or chemists who performed the tests from California to Arkansas to testify. In our experience, that sort of formal testimony rarely leads to any admissions helpful to the party challenging the evidence.

The police reports of Bell's arrest do not bear the same indicia of reliability as the laboratory reports. Police reports are inherently more subjective than laboratory reports of chemical tests and are not intended by their authors to be relied upon in the same manner as laboratory reports. The relationship between police officers and those whom they arrest is much more personal and adversarial in nature than that between chemists and those whose urine they test. While police reports may be demonstrably reliable evidence of the fact that an arrest was made, see United States v. Pattman, 535 F.2d 1062 (8th Cir.1976), they are significantly less reliable evidence of whether the allegations of criminal conduct they contain are true. We note that Congress exhibited similar doubts about the reliability of such reports when it specifically excluded them from the public records exception to the hearsay rule in criminal cases. See Fed.R.Evid. 803(8)(B). Furthermore, the officers who arrested Bell were subject to the District Court's subpoena power. Fed.R.Crim.P....