U.S. v. Penn

• Decision Date: 19 December 1983
• Docket Number: No. 82-7402,82-7402
• Citation: 721 F.2d 762
• Parties: 14 Fed. R. Evid. Serv. 848 UNITED STATES of America, Plaintiff-Appellee, v. Edward Eugene PENN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 762

721 F.2d 762

14 Fed. R. Evid. Serv. 848

UNITED STATES of America, Plaintiff-Appellee, v. Edward Eugene PENN, Defendant-Appellant.

No. 82-7402.

United States Court of Appeals, Eleventh Circuit.

Dec. 19, 1983.

Stephen W. Shaw, Birmingham, Ala., for defendant-appellant.

Herbert H. Henry, III, Asst. U.S. Atty., Chief, Crim. Section, Birmingham, Ala., for plaintiff-appellee.

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

Before GODBOLD, Chief Judge, RONEY and SMITH ^*, Circuit Judges.

GODBOLD, Chief Judge:

Penn appeals from the judgment of the district court revoking his probation. His appeal raises two issues: whether the introduction of hearsay evidence during the revocation proceeding infringed on his constitutional right to confront and cross-examine witnesses, and, assuming the hearsay was admissible, whether the trial court abused its discretion in revoking probation. We find no error in admission of the hearsay and affirm the revocation order.

I. FACTS

In 1978 Penn pleaded guilty to theft of a check from the United States mails. He was placed on probation for five years on the usual general conditions; special conditions were that he should make restitution of the amount of the check, that he should be regularly employed during probation, and that he was not to be involved with firearms.

A jury found Penn guilty in 1980 of illegal possession of four Valium tablets, and the conditions of his probation were modified accordingly: he was required to submit to urine drop testing as directed by his probation officer. In 1981, on petition of Penn's probation officer, Busby, Penn's probation conditions were modified again to include requirements that he participate in both a residential community treatment program and a drug aftercare treatment program.

Busby filed for revocation of Penn's probation in 1982, alleging as violations of the conditions of probation that he had been in a state of public intoxication in violation of the city code of Birmingham, that he had violated the drug aftercare conditions by having within his body on several occasions Talwin (a controlled substance) or THC (the active ingredient in marijuana), and that he had been in possession of a stolen and forged check for $290 drawn on the account of Cameron Furniture Co.

Penn waived his right to a preliminary hearing, and at the revocation proceeding evidence centered on the drug and stolen check allegations. ¹ Busby gave the only testimony regarding the drug charge. He said that he had received a urine sample from Penn during July 1981 and had requested that the sample be tested for evidence of drugs. When the government sought to elicit from Busby the results of the urine test, Penn's counsel objected, based on U.S. v. Caldera, 631 F.2d 1227 (5th Cir.1980) (per curiam). The court held that Caldera was distinguishable, and Busby was allowed to testify to the results of the July 1981 test as well as several others. According to Busby, urine samples taken from Penn (on July 14, 1981, February 16, 1982, May 10, 1982, and September 20, 1982) tested positive for Talwin. After this testimony, the court admitted the lab reports from Fairfield Medical Laboratories, a lab in Connecticut, subject to Penn's continuing objection. The court also admitted an unsworn letter from the laboratory that summarized the results. The letter indicated "that at least five people participated in the analysis of each urine specimen." 1 Supp. Record at 13. On cross-examination Busby admitted that Penn had submitted to more than 50 such urine tests, that Busby had taken only one of these samples himself, and that all others had been taken by another officer at Busby's request.

Penn's only witness gave testimony that went to the appropriateness of revocation as a sanction rather than to the specifics of either of the two offenses.

II. ADMISSIBILITY OF HEARSAY

We must decide whether U.S. v. Caldera, 631 F.2d 1227 (5th Cir.1980) (per curiam), compels us to hold that admission of Busby's hearsay testimony as to the results of the urinalysis tests was reversible error. We find Caldera distinguishable and hold that it does not.

Caldera is a one-paragraph per curiam opinion. The stated facts, although sketchy, indicate that at Caldera's probation revocation hearing a police officer was permitted to testify as to the results of a field test and a laboratory test, both of which proved positive for cocaine. The police officer had not participated in the preparation or analysis of the tests. The court remanded for another evidentiary hearing that would comport more fully with Caldera's right to confront and cross-examine witnesses against him. Id. The only authority cited in Caldera was U.S. v. Cain, 615 F.2d 380 (5th Cir.1980), which involved a criminal trial, not a probation revocation proceeding. ²

It was only after the revocation proceeding at issue in Caldera had been held that Fed.R.Crim.P. 32.1 was adopted. This rule provides that at a revocation hearing, a probationer has certain procedural rights, which include

(A) written notice of the alleged violation of probation;

(B) disclosure of the evidence against him;

(C) an opportunity to appear and to present evidence in his own behalf;

(D) the opportunity to question witnesses against him; and

(E) notice of his right to be represented by counsel.

The Advisory Committee Notes accompanying Rule 32.1(a)(2) state that a revocation hearing is informal and that evidentiary rules should be applied in a flexible manner.

The hearing required by rule 32.1(a)(2) is not a formal trial; the usual rules of evidence need not be applied.

The adoption of Rule 32.1 demonstrates a legislative intent that probation revocation proceedings be conducted without the evidentiary formalities that characterize a criminal trial. See also Fed.R.Evid. 1101(d): "The rules [of evidence] (other than with respect to privileges) do not apply in the following situations: ... granting or revoking probation...." This intent, however, has limits in the Sixth Amendment confrontation clause, since in 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), the Supreme Court held that the confrontation clause, as incorporated by the due process clause of the Fourteenth Amendment, requires that probationers and parolees have some right to confront and cross-examine the witnesses against them. Morrissey said that parolees have "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. At the same time, however, the process was to be flexible enough for the court to consider documentary evidence that would not meet the usual evidentiary requirements that apply to criminal trials. Id. Gagnon held that a probationer is entitled to the same procedural rights as were held applicable to parolees in Morrissey. 411 U.S. at 782, 93 S.Ct. at 1759. In dicta, the Gagnon court added:

An additional comment is warranted with respect to the rights to present witnesses and to confront and cross-examine adverse witnesses. Petitioner's greatest concern is with the difficulty and expense of procuring witnesses from perhaps thousands of miles away. 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, including affidavits, depositions, and documentary evidence.

411 U.S. at 783 n. 5, 93 S.Ct. at 1760 n. 5.

What these Supreme Court cases indicate is that the hearing officer in a probation revocation proceeding must balance the probationer's right to confront and cross-examine witnesses against any good cause asserted by the government for not allowing confrontation. See Baker v. Wainwright, 527 F.2d 372, 378 (5th Cir.1976) (quoting Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604) (footnote omitted):

The Morrissey exception to the right of confrontation and cross-examination applies to cases where "the hearing officer specifically finds good cause for not allowing confrontation." In order to come within the exception there must be an explicit, specific finding of such good cause, and the reasons should be stated in the record of the revocation hearing.

We do not establish any boundaries for what does or does not constitute sufficient good cause. Obviously, since this is a balancing test, there can be no fixed rules on what would constitute good cause in every case. As the Supreme Court noted in Gagnon, "in some cases there is simply no adequate alternative to live testimony." 411 U.S. at 783 n. 5, 93 S.Ct. at 1760 n. 5. Thus, the trial court must weigh the defendant's interest in confronting a particular witness against the good cause shown by the government and then make a determination as to the appropriateness of admitting the hearsay.

The Gagnon dictum suggests several grounds for finding good cause. The difficulty and expense of procuring live witnesses would not suffice as an excuse for admitting hearsay testimony in a criminal trial, but the Court tenders this as an example of a situation in which hearsay could be admissible in a probation revocation proceeding. Likewise, the Court recommends the conventional substitutes for hearsay: affidavits, depositions and documentary evidence. These conventional substitutes tend to bear the "indicia of reliability" upon which the Court has focused in the related context of determining whether a given hearsay statement should be admissible in a criminal trial. See Ohio v. Roberts, 448 U.S. 56, 65-68, 100 S.Ct. 2531, 2538-2540, 65 L.Ed.2d 597 (1980); Dutton v. Evans, 400 U.S. 74, 88-89, 91 S.Ct. 210, 219-220, 27 L.Ed.2d 213 (1970) (plurality opinion).

Other circuits, faced with the issue of whether a given hearsay...