U.S. v. Bentley

• Decision Date: 12 June 1989
• Docket Number: No. 88-1606,88-1606
• Parties: 28 Fed. R. Evid. Serv. 111 UNITED STATES of America, Plaintiff-Appellee, v. James Stanley BENTLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1114

875 F.2d 1114

28 Fed. R. Evid. Serv. 111

UNITED STATES of America, Plaintiff-Appellee, v. James Stanley BENTLEY, Defendant-Appellant.

No. 88-1606.

United States Court of Appeals Fifth Circuit.

June 12, 1989.

Rehearing and Rehearing En Banc Denied Aug. 2, 1989.

Charles Louis Roberts, El Paso, Tex., for defendant-appellant.

Delonia A. Watson, Asst. U.S. Atty., Dallas, Tex., Steven M. Sucsy, Roger L. McRoberts, Asst. U.S. Attys. Gen., Marvin Collins, U.S. Atty., Lubbock, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before BROWN, WILLIAMS and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

James Stanley Bentley appeals from a conviction for drug offenses, asserting various errors in the trial court. We affirm.

I

On September 16, 1987, a radar operator for the United States Customs Service detected an airplane on the Mexican side of the border heading toward the United States. Radar tracked the plane, and customs aircraft followed it. Eventually, the plane ran out of fuel and crashed near Lubbock, Texas. Bentley, the sole passenger in the plane, ran away from the wreck across a field and then lay face down. Customs agents, who had landed their aircraft nearby, found Bentley conscious but injured, with a brief case containing personal items and a change of clothing. In the wrecked plane, the agents detected a strong odor of marijuana. They also found in the plane a current driver's license, an expired driver's license, a credit card and a business card belonging to Bentley, and they found marijuana scattered around the crash site. Bentley was given first aid and taken to the hospital. The pilot, who had been pinned in the wreck, was also taken to the hospital but did not survive.

Bentley was charged with five counts of possessing, smuggling, and importing marijuana and conspiracy, in violation of federal statutes. See 18 U.S.C. Sec. 2 (aiding and abetting); 18 U.S.C. Sec. 545 (fraudulent and knowing concealment and facilitation of the transportation of merchandise imported contrary to law); 19 U.S.C. Sec. 1484 (requirements for entry of merchandise); 21 U.S.C. Sec. 841(a)(1) (possession of controlled substance with intent to distribute); 21 U.S.C. Sec. 952 (importation of controlled substance); 21 U.S.C. Sec. 955 (possession of controlled substance aboard an aircraft); and 21 U.S.C. Sec. 963 (drug conspiracy). A pretrial order instructed the prosecution to disclose various items at least three days before trial, including evidence of extraneous offenses, statements made by the defendant to law enforcement officials, and names of witnesses. Defense counsel did not receive this information until Sunday evening, May 1, 1988, the night before trial. The prosecution claims, however, that on the previous Friday it had attempted to contact defense counsel regarding discovery. On defendant's motion in limine, the trial court declined to sanction the government by excluding evidence of prior extraneous offenses and the defendant's statements to customs agents.

During trial, the prosecution put into evidence medical records from Lubbock General Hospital, detailing Bentley's medical condition and treatment after being taken to the hospital from the wreck. The records included the results of a urine test revealing the presence of cannabinoids (found in marijuana) in Bentley's system. The prosecution also put on the stand the custodian of records at Lubbock General. The defendant's objection to admission of the records was overruled.

The defendant also objected, at least during an informal discussion, to the following jury instruction relating to the two counts that involved facilitation of transportation of marijuana: "Proof of defendant's possession of such goods, unless explained to the satisfaction of the jury, shall be deemed evidence sufficient to authorize conviction for violation of this section." The court deleted the clause "unless explained to the satisfaction of the jury." The defense then objected generally to any denial of its requested instructions and to the inclusion of any instruction it had opposed. The trial court overruled these objections.

Bentley was convicted of all five counts and filed a timely notice of appeal.

II

We first consider whether Bentley's conviction must be reversed because, as he argues, the trial court erred in admitting the medical records into evidence. At trial the defendant objected, correctly, that the medical records were hearsay. See Fed.R.Evid. 801. The court admitted the evidence, however, under the business record exception. See Fed.R.Evid. 803(6). The defendant argues that treating the medical records as admissible under the business record exception was contrary to the rules. He relies primarily on United States v. Oates, 560 F.2d 45 (2d Cir.1977). In Oates, the prosecution introduced a report from a government lab that had analyzed and identified a substance as heroin. Id. at 63. Since it was a criminal case, admission of the report as a public record under Rule 803(8) was not allowed. The Second Circuit held that the report expressly excluded under the public record exception was similarly inadmissible under Rule 803(6) as a business record. Id. at 63-84. The Fifth Circuit followed Oates in United States v. Cain, 615 F.2d 380, 382 (5th Cir.1980), stating that "[f]or the reasons set forth in Oates, we conclude that statements inadmissible as public agency reports under Rule 803(8) may not be received merely because they satisfy Rule 803(6) and that section (6) does not open a back door for evidence excluded by section (8)". But see United States v. Quezada, 754 F.2d 1190, 1193 (5th Cir.1985) (disapproving Oates ). Bentley further argues that, even if not technically an error under the rules, the admission of the records was constitutionally improper since he had no opportunity to confront and cross-examine the individual behind the medical report. Specifically, the defense lacked the opportunity to question the type of test used, the chain of custody, the efficacy of the test, possible confusion of substances, the odds of false positives, and the qualifications of the technician, doctor, or whoever performed the test. Bentley contends that, as a result, he was deprived of his sixth amendment right to confront witnesses against him. See generally Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

It is unnecessary to reach these questions, however, if the alleged errors were sufficiently harmless. The Federal Rules of Criminal Procedure provide that any error which does not affect substantial rights shall be disregarded. Fed.R.Crim.Pro. 52(a). Furthermore, even constitutional error may be deemed harmless when it is found to be harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Thus, an error is harmless where, after reviewing the facts of the case, the evidence adduced at trial, and the impact the constitutional violations had on the trial process, the evidence unrelated to the alleged constitutional violation "remains not only sufficient to support the verdict but so overwhelmingly as to establish the guilt of the accused beyond a reasonable doubt." Germany v. Estelle, 639 F.2d 1301, 1303 (5th Cir.1981) (quoting Harryman v. Estelle, 616 F.2d 870, 876 (5th Cir.1980)). See also United States v. Hastings, 461 U.S. 499, 512, 103 S.Ct. 1974, 1982, 76 L.Ed.2d 96 (1983). This rule has been applied to cases where evidence was admitted in violation of the constitutional right to confront witnesses. See, e.g., Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969); Hoover v. Beto, 467 F.2d 516, 534-39 (5th Cir.1972). Furthermore, constitutional error has been found harmless in circumstantial evidence cases. Zilka v. Estelle, 529 F.2d 388, 392 (5th Cir.1976); but see Fontaine v. California, 390 U.S. 593, 596, 88 S.Ct. 1229, 1231, 20 L.Ed.2d 154 (1968) (constitutional error not harmless beyond a reasonable doubt where jury was asked to convict based on circumstantial evidence). Indeed, alleged constitutional error involving a urine test has been found harmless. See Spears v. Circuit Court, Ninth Jud'l Dist., Warren Cty., Miss., 517 F.2d 360 (5th Cir.1975). In Spears, a criminal defendant argued that she was denied her right to confront adverse witnesses by the state's failure to produce all laboratory personnel who participated in the pregnancy test which was used as evidence of an essential element in the prosecution for abortion. Id. at 364-65. This court held that, assuming arguendo that constitutional error was committed, it was harmless beyond a reasonable doubt where other evidence fully supported the jury's finding of pregnancy. Id at 367.

In this case, the other evidence of Bentley's guilt leaves us with no doubt that any error involving Bentley's right to confront witnesses was harmless. It is obvious that Bentley was in the airplane that came from Mexico, attempted to evade the authorities and crashed only when it ran out of gas. That he was one of only two people in the airplane, especially when unexplained by any evidence in the case, is thoroughly damning. It is further obvious that a substantial quantity of marijuana was in the airplane and that it was discharged from the airplane while in flight. Customs agents testified that a strong odor of marijuana was present in the airplane even after the crash. An El Paso police officer testified that in 1986 she caught Bentley smoking marijuana and in possession of a small amount of additional marijuana when she pulled him over for speeding. This testimony was admitted into evidence for the purpose of establishing Bentley's familiarity with marijuana and to prove that, given the strong odor of marijuana in the airplane, Bentley could not have been an unknowing bystander. These facts, completely aside from the...