U.S. v. McCormick, No. 94-50591

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore DAVIS and WIENER; WIENER
Citation54 F.3d 214
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Woody Hyatt McCORMICK, Jr., Defendant-Appellant.
Decision Date24 May 1995
Docket NumberNo. 94-50591

Page 214

54 F.3d 214
UNITED STATES of America, Plaintiff-Appellee,
v.
Woody Hyatt McCORMICK, Jr., Defendant-Appellant.
No. 94-50591.
United States Court of Appeals,
Fifth Circuit.
May 24, 1995.

Page 217

Scott Peterson (court-appointed), Waco, TX, for appellant.

Richard L. Durbin, Jr., James H. DeAtley, Acting U.S. Atty., San Antonio, TX, for appellee.

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

Before DAVIS and WIENER, Circuit Judges, and VANCE, * District Judge.

WIENER, Circuit Judge:

Defendant-Appellant Woody Hyatt McCormick, Jr. appeals the district court's decision to revoke his supervised release and sentence him to two additional years in prison based on its finding that he failed to comply with the terms of his supervised release. McCormick claims in particular that the district court violated his constitutional right to confront and cross-examine adverse witnesses by relying on hearsay as evidence that he possessed a controlled substance during his period of supervised release. We conclude that no such constitutional effrontery occurred, and affirm.

I
FACTS AND PROCEEDINGS

McCormick was convicted of three counts of distribution of amphetamine and was sentenced to twenty-seven months imprisonment, followed by five years supervised release (later reduced to three years). McCormick served the prison term and began his supervised release in April, 1994, under the supervision of Probation Officer Humberto Velasquez (Officer Velasquez).

In August of that year, Officer Velasquez filed a Petition on Supervised Release with the district court, alleging that McCormick (1) "failed to work regularly at a lawful occupation"; (2) "used and possessed Amphetamine during the term of his supervised release; in that on or about July 11, 1994, the defendant tested positive for Amphetamine"; and (3) "used and possessed Methamphetamine during the term of his supervised release; in that on or about July 11, 1994, the defendant tested positive for Methamphetamine." Officer Velasquez recommended that McCormick's supervised release be revoked and that he be resentenced.

One week later, the district court held a revocation hearing at which the government offered evidence to support Officer Velasquez' allegations. He was the only witness to testify in person at that hearing.

In his testimony, Officer Velasquez first addressed the allegation that McCormick had failed to maintain lawful employment, one of the conditions of his supervised release. He testified that McCormick's former employer reported that McCormick had been fired for inexplicably failing to appear for work one day. McCormick did not object to this testimony at trial and does not challenge it on appeal.

Officer Velasquez' attention then turned to events surrounding a urine specimen submitted by McCormick on July 11, 1994. Officer Velasquez discussed the training that he had received in obtaining urine specimens, and then addressed the chain of custody linking McCormick to a particular specimen that tested positive for both amphetamine and methamphetamine. In connection with that testimony, the government introduced into evidence a document from a testing facility, PharmChem Laboratories, Inc. (PharmChem), in which document the test results and laboratory analyses of McCormick's urine specimen were reported (the "PharmChem urinalysis report"). This report reveals that the urine specimen was from McCormick, that McCormick reported taking

Page 218

Advil and Tylenol prior to providing the specimen, and that the urine tested positive for both amphetamine and methamphetamine. After stating that he "acknowledg[ed] the current status of the law," McCormick nonetheless objected to the introduction of the document in evidence, arguing that it violated his Sixth Amendment right of confrontation. The district court overruled this objection.

Officer Velasquez next testified that, pursuant to his request, David W. Fretthold, the Director of Toxicology for PharmChem (Director Fretthold), submitted an affidavit describing PharmChem's general testing procedures and results specific to analyses conducted on McCormick's urine specimen. In that affidavit, Director Fretthold stated, in particular, that McCormick's urine sample was analyzed using two separate procedures and opined that "there is virtually no possibility that the 'positive' result could be produced by any other drug taken by the subject, or by some interfering substance in the urine, since any such interfering substance would have to influence both methods to generate a false positive result." The affidavit was received in evidence over McCormick's objection that it violated his right of confrontation.

Officer Velasquez next testified that after he told McCormick that his urine tested positive, McCormick denied using drugs and claimed that he had also used "Ventolin," an inhalant that had been prescribed for his daughter, and that this medication must have caused his urine to test positive for amphetamine and methamphetamine. Officer Velasquez stated that he contacted the laboratory and was informed, that like Advil and Tylenol, Ventolin could not cause urine to test positive for either amphetamine or methamphetamine. McCormick did not object to Officer Velasquez' testimony that he was told by laboratory personnel that Ventolin could not result in urine testing positive for amphetamine or methamphetamine.

Officer Velasquez' testimony then focused on events following McCormick's admission to a Veterans Administration Hospital (VA Hospital) on August 8, 1994, just two days before the Petition on Supervised Release was filed and only nine days before the district court held the revocation hearing. Officer Velasquez stated that the VA Hospital analyzed McCormick's urine, and that again his urine tested positive for amphetamine. Although Officer Velasquez claimed that he obtained the test results from hospital records on the morning of the revocation hearing, no documentation was offered into evidence. McCormick objected to that testimony by Officer Velasquez, arguing that it was inadmissible hearsay and that it violated his right of confrontation. Both objections were overruled.

To corroborate evidence of McCormick's possession of controlled substances, Officer Velasquez then testified regarding information he had obtained from a confidential informant (CI). According to Officer Velasquez, the CI reported having seen controlled substances in a toolbox in McCormick's garage and having watched McCormick use and deal in amphetamines and methamphetamines. The CI did not testify at the revocation proceeding, Officer Velasquez explained, because McCormick had recently threatened the CI with a firearm. The court overruled McCormick's objection that this testimony by Officer Velasquez was inadmissible hearsay.

Officer Velasquez concluded his testimony on redirect by describing a visit he had recently made to McCormick's home. Officer Velasquez stated that during that visit he saw a scale similar to the type used to weigh infants, and that after he noticed the scale the first thing McCormick said was that it "was not used for drugs." At this point, the government rested its case and stood on the record; the defense offered no evidence and waived argument.

Based on all of the evidence, the district court concluded that McCormick had committed all three violations alleged in the Petition on Supervised Release, revoked his release, and sentenced him to twenty-four months imprisonment. McCormick timely appealed, challenging on confrontation grounds the admission into evidence of the PharmChem urinalysis report and Officer Velasquez' hearsay testimony, and claiming that the district court reversibly erred in failing to make findings of fact on the record

Page 219

concerning the reliability of the hearsay evidence.
II
ANALYSIS

A. GROUNDS FOR REVOCATION

A district court may revoke a defendant's supervised release if it finds by a preponderance of the evidence that a condition of release has been violated. 1 We review for abuse of discretion a decision to revoke supervised release. 2

McCormick failed to object at the revocation hearing to Officer Velasquez' testimony that he had been told by McCormick's employer that McCormick had been fired for failing to come to work. Neither does McCormick challenge the admissibility of that testimony on appeal. As maintaining employment was one of the conditions of McCormick's supervised release, and as McCormick does not challenge the district court's conclusion that he failed to comply with that requirement, the district court did not abuse its discretion in revoking McCormick's supervised release. 3

B. GROUNDS FOR IMPOSING SENTENCE

After revoking McCormick's release, the district court sentenced McCormick to twenty-four months in prison. Although the court did not expressly state on what grounds the sentence was calculated, we are entitled to assume, in light of guidance by the U.S. Sentencing Commission (Commission), 4 that the length of McCormick's sentence was determined based on findings that McCormick both failed to maintain employment and possessed a controlled substance while he was on supervised release. 5 As we have already determined that no error is presented in the court's ruling that McCormick did not remain employed, we must consider only whether the district court erred in finding that he used and possessed a controlled substance.

McCormick contends that the district court reversibly erred in failing to make findings of fact that the hearsay supporting the finding that he used and possessed a controlled substance was reliable; and that the court erred further when it admitted that hearsay without first weighing his right of confrontation against the government's reasons for not producing the hearsay declarants. McCormick insists that even if we were to conclude that those errors were not reversible, his right of...

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87 practice notes
  • Henderson v. Commonwealth of Va.., Record No. 0688–10–4.
    • United States
    • Virginia Court of Appeals of Virginia
    • June 21, 2011
    ...reliable); McCallum, 677 F.2d at 1026 (evidence corroborated by the releasee's testimony is reliable).See also United States v. McCormick, 54 F.3d 214, 224 (5th Cir.1995) (concluding that “[s]ubstantial evidence enhanced the reliability of the information contained in the ... report”); Unit......
  • In re M.P., No. 10-06-00008-CV.
    • United States
    • Court of Appeals of Texas
    • February 7, 2007
    ...focusing on the indicia of reliability of the hearsay offered." Taylor, 957 S.W.2d at 46 (citing United States v. McCormick, 54 F.3d 214 (5th Cir.1995)) (other citations omitted). This determination must be made on a case-by-case basis. Taylor, 957 S.W.2d at 46; see also Gagnon, 411 U.......
  • Adanandus v. Johnson, Civil No. SA-95-CA-415.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • August 27, 1996
    ...States v. Alexius, 76 F.3d 642, 646-47 (5th Cir. 1996); Offor v. Scott, 72 F.3d 30, 33-34 (5th Cir.1995); United States v. McCormick, 54 F.3d 214, 219 (5th Cir.), cert. denied, ___ U.S. ____, 116 S.Ct. 264, 133 L.Ed.2d 187 (1995); Cupit v. Whitley, 28 F.3d at 537-42; Shaw v. Collins, 5 F.3d......
  • United States v. Rentas-Felix, CRIMINAL NO. 10–433 (PAD)
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • February 14, 2017
    ...621, 622 (1st Cir. 1993) (applying preponderance of evidence standard to revocation of supervised release); United States v. McCormick , 54 F.3d 214, 219 (5th Cir. 1995) (same). Measured by this standard, defendant engaged in criminal activity proscribed by Article 109 of the Penal Code, in......
  • Request a trial to view additional results
87 cases
  • Henderson v. Commonwealth of Va.., Record No. 0688–10–4.
    • United States
    • Virginia Court of Appeals of Virginia
    • June 21, 2011
    ...reliable); McCallum, 677 F.2d at 1026 (evidence corroborated by the releasee's testimony is reliable).See also United States v. McCormick, 54 F.3d 214, 224 (5th Cir.1995) (concluding that “[s]ubstantial evidence enhanced the reliability of the information contained in the ... report”); Unit......
  • In re M.P., No. 10-06-00008-CV.
    • United States
    • Court of Appeals of Texas
    • February 7, 2007
    ..."particularly focusing on the indicia of reliability of the hearsay offered." Taylor, 957 S.W.2d at 46 (citing United States v. McCormick, 54 F.3d 214 (5th Cir.1995)) (other citations omitted). This determination must be made on a case-by-case basis. Taylor, 957 S.W.2d at 46; see also Gagno......
  • Adanandus v. Johnson, Civil No. SA-95-CA-415.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • August 27, 1996
    ...States v. Alexius, 76 F.3d 642, 646-47 (5th Cir. 1996); Offor v. Scott, 72 F.3d 30, 33-34 (5th Cir.1995); United States v. McCormick, 54 F.3d 214, 219 (5th Cir.), cert. denied, ___ U.S. ____, 116 S.Ct. 264, 133 L.Ed.2d 187 (1995); Cupit v. Whitley, 28 F.3d at 537-42; Shaw v. Collins, 5 F.3d......
  • United States v. Rentas-Felix, CRIMINAL NO. 10–433 (PAD)
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • February 14, 2017
    ...621, 622 (1st Cir. 1993) (applying preponderance of evidence standard to revocation of supervised release); United States v. McCormick , 54 F.3d 214, 219 (5th Cir. 1995) (same). Measured by this standard, defendant engaged in criminal activity proscribed by Article 109 of the Penal Code, in......
  • Request a trial to view additional results

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