Case: 20-50225 Document: 00515909282 Page: 1 Date Filed: 06/22/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-50225 June 22, 2021
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Kevin Chance McElroy,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:11-CR-63-5
Before Owen, Chief Judge, and Jolly and Dennis, Circuit Judges.
Per Curiam:*
Kevin Chance McElroy appeals the district court’s revocation of his
term of supervised release, arguing that the district court erred by admitting
a positive urinalysis report despite the Government’s failure to adhere to the
procedures set forth in United States v. Grandlund,1 and by admitting the
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
1
71 F.3d 507 (5th Cir. 1995), clarified by 77 F.3d 811 (5th Cir. 1996) (per curiam).
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report in a revocation proceeding without a finding of good cause to disallow
his right to confrontation. McElroy also challenges the sufficiency of the
evidence supporting the district court’s finding that he possessed cocaine in
violation of his conditions of supervision. We affirm.
I
In 2011, McElroy pleaded guilty to conspiracy to possess with intent
to manufacture methamphetamine and was sentenced to 84 months of
imprisonment—later reduced to 65 months—and three years of supervised
release. McElroy began serving his term of supervised release in January
2018. In August 2018, the probation office filed a report stating that McElroy
had admitted to using crack cocaine. No action was taken. In July 2019, after
a random urinalysis was positive for methamphetamine, McElroy admitted
to using the drug for a two-week period and consented to a modification of
the conditions of his supervised release. Accordingly, the district court
added a condition to McElroy’s supervision requiring him to participate in
inpatient substance abuse treatment, including testing during and after
completion of the program, and to abstain from the use of alcohol and all
intoxicants. Upon arrival at drug treatment, McElroy admitted that he had
recently used methamphetamine, and his probation officer filed a report
accordingly. The court took no action and afforded McElroy the opportunity
to complete inpatient treatment, which he did in October 2019.
In January 2020, McElroy’s probation officer filed a Petition for
Warrant or Summons for Offender Under Supervision, alleging that McElroy
had violated conditions of his supervised release by possessing a controlled
substance, and requesting that McElroy’s supervised release be revoked.
The officer later filed an amended petition alleging that McElroy had a
positive urinalysis result and that he denied any drug use. The urine sample
was confirmed positive for cocaine by Alere Toxicology.
2
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During the revocation hearing, the Government sought to admit a
three-page exhibit comprised of the urinalysis report indicating the positive
result; a chain-of-custody report showing the collection, transfer, and receipt
dates of the urine specimen; and an affidavit by the records custodian at Alere
Toxicology attesting that the urinalysis was conducted “according to
established procedures certified and approved by the Administrative Office
of the United States Courts.” McElroy objected on the grounds that the
urinalysis report violated his Sixth Amendment right to cross-examination,
was hearsay, and was unfairly prejudicial. The district court overruled his
objections but permitted a running objection.
Probation Officer Maria Ureste, who was not McElroy’s probation
officer, testified for the Government that she provided the confirmatory lab
result. Ureste agreed on cross-examination that it was her understanding that
McElroy never admitted to using cocaine and that records indicated no
subsequent tests were positive. She admitted that she was not aware of, and
could not glean from the urinalysis report, the facts of ingestion. Finally, she
responded “no” when asked if she could tell from the urinalysis report if the
cocaine was ingested passively or directly.
During closing argument, the Government argued that this court, in
United States v. Courtney,2 held that there is no meaningful distinction
between the use and possession of a controlled substance and, thus, if the
court finds use it should find possession. In response, counsel for McElroy
emphasized that in Courtney, this court remanded for additional testimony
about passive use and advised that there must be a proper record, through
expert testimony, “that a positive result on tests may not reasonably be
accounted for by passive inhalation” for the court to find use. In response,
2
979 F.2d 45 (5th Cir. 1992).
3
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the district court opined that twenty-eight years after Courtney, “we’re able
not to have to go through and argue passive inhalation.”
The district court found that the three violations alleged were true,
revoked supervised release, and imposed a sentence of 24 months of
imprisonment with no additional term of supervised release. Before the
conclusion of the hearing, McElroy objected that the Government’s evidence
was legally and factually insufficient to support the trial court’s findings.
McElroy timely filed a notice of appeal.
II
First, McElroy argues that the district court abused its discretion by
admitting the report containing the positive urinalysis result despite the
Government’s failure to adhere to the specific procedures this court set forth
in United States v. Grandlund3 for the admittance of positive drug-test results
in revocation proceedings. Accordingly, McElroy contends, the district
court’s order revoking McElroy’s supervised release based on that positive
urinalysis report should be vacated.
This court reviews a district court’s ruling on the admissibility of
evidence, as well as a district court’s decision to revoke supervised release,
for abuse of discretion.4 However, because McElroy did not object in the
district court to the Government’s failure to adhere to the Grandlund
3
71 F.3d 507.
4
United States v. Smith, 481 F.3d 259, 264 (5th Cir. 2007) (“This court reviews the
admission of evidence for abuse of discretion.” (citing United States v. Guidry, 406 F.3d
314, 320 (5th Cir. 2005))); Grandlund, 71 F.3d at 509 (“The decision to revoke supervised
release is reviewed under an abuse of discretion standard . . . .” (citing United States v.
Turner, 741 F.2d 696, 698 (5th Cir. 1984) (summary calendar))).
4
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procedures, we review for plain error5 using the four-pronged test.6 The
Government correctly notes that McElroy has made no argument as to the
fourth prong of plain-error review, as required for reversal.7 Assuming
without deciding that the district court plainly erred, we decline to correct
that error in this case.
III
Next, McElroy argues that the district court improperly overruled his
Sixth Amendment objection without making any findings and conclusions in
the record on the issue of good cause—as required to abrogate McElroy’s
right to confront the lab technicians who conducted the urinalysis and
ultimately admit the urinalysis report. The Government responds that
review is for plain error because McElroy’s objection in the district court was
not sufficiently specific to preserve this claim, and—regardless—the district
court’s failure to make a good cause finding was harmless error.
This court reviews alleged violations of a defendant’s right to
confrontation in a revocation proceeding de novo, subject to a harmless error
5
United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007), abrogated on other
grounds by Holguin-Hernandez v. United States, 140 S. Ct. 762 (2020).
6
United States v. Bree, 927 F.3d 856, 859 (5th Cir. 2019) (“To prevail, [the
defendant] must demonstrate that (1) the district court erred, (2) the error was plain,
(3) the plain error affected his substantial rights, and (4) allowing the plain error to stand
would ‘seriously affect the fairness, integrity, or public reputation of judicial
proceedings.’” (quoting Puckett v. United States, 556 U.S. 129, 135 (2009))).
7
United States v. Rivera, 784 F.3d 1012, 1018 n.3 (5th Cir. 2015) (“We have also
refused to correct plain errors when, as here, the complaining party makes no showing as
to the fourth prong.” (citations omitted)); see also United States v. Andaverde-Tiñoco, 741
F.3d 509, 523 (5th Cir. 2013) (“Importantly, the burden is on the defendant to demonstrate
that the error affects the fairness, integrity, or public reputation of judicial proceedings.”
(citing United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012))).
5
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analysis.8 However, if McElroy did not preserve the error, we review for
plain error.9 We need not decide which standard of review applies, as
McElroy cannot prevail under either.
The due process right to confrontation at a revocation hearing is
“qualified.”10 The confrontation of a particular witness may be disallowed
upon “an explicit, specific finding of good cause” by the district court.11
That is, the district court is required to make its findings and conclusions part
of the record.12 Nevertheless, the failure to articulate a finding of good cause
“may be found to be harmless error whe[n] good cause exists, its basis is
found in the record, and its finding is implicit in the court’s rulings.”13
The good cause determination “requires weighing the defendant’s
interest in confrontation of a particular witness against the Government’s
proffered reasons for pretermitting the confrontation.”14 As for McElroy’s
interest in confrontation, we held in United States v. Grandlund that the
defendant’s interest in confrontation of the lab technicians who conducted
8
United States v. Jimison, 825 F.3d 260, 262 (5th Cir. 2016) (citing United States v.
Minnitt, 617 F.3d 327, 332 (5th Cir. 2010)); see also Grandlund, 71 F.3d at 509 (“[T]he
constitutional challenge about the right of confrontation of adverse witnesses is reviewed
de novo.” (italics in original) (citing United States v. McCormick, 54 F.3d 214, 219 (5th Cir.
1995))).
9
United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007), abrogated on other
grounds by Holguin-Hernandez v. United States, 140 S. Ct. 762 (2020).
10
Grandlund, 71 F.3d at 510 (citing Morrissey v. Brewer, 408 U.S. 471 (1972)).
11
Jimison, 825 F.3d at 263 (first quoting Grandlund, 71 F.3d at 510 n.6; and then
citing Minnitt, 617 F.3d at 333).
12
Grandlund, 71 F.3d at 512.
13
Id. at 510 (first citing McCormick, 54 F.3d 214; and then citing United States v.
Bell, 785 F.2d 640 (8th Cir. 1986)).
14
Jimison, 825 F.3d at 263 (brackets and internal quotation marks omitted)
(quoting Minnitt, 617 F.3d at 333).
6
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his urinalysis was “tenuous and marginal” because he offered no explanation
for seven positive urinalyses over a 15-month period and because he did not
deny ingesting cocaine,15 seek retesting, subpoena lab technicians, offer
evidence challenging the lab’s practices or procedures, provide the questions
he would have asked lab personnel, or explain how cross-examination could
be of relevance.16 Similarly, we held in United States v. Minnitt that the
defendant’s interest in confrontation was “minimal” because the defendant
had not subpoenaed the lab technician or otherwise challenged the lab
results, and “the truth of the fact can best be verified through the methods of
science rather than through the rigor of cross-examination.”17
While McElroy denied the allegations of drug use when confronted
with the positive urinalysis and reiterated that denial at the revocation
hearing, McElroy’s prior admissions to the probation office that he used
crack cocaine and methamphetamine support the reliability of the positive
urinalysis.18 Moreover, McElroy did not subpoena the lab technicians, offer
independent evidence to show that the urinalysis report was not reliable, or
explain how he would have assailed the credibility of the report had a lab
technician testified—reducing his interest in confrontation.19 Further, while
15
Grandlund, 71 F.3d at 511; see also id. at 510 (“In Kindred the government’s
interest in minimizing the difficulty and expense of procuring witnesses outweighed the
defendant’s interest, deemed minimal because he neither contested the allegations of drug
use nor the accuracy of the drug test.”); United States v. Kindred, 918 F.2d 485, 487 (5th
Cir. 1990).
16
Grandlund, 71 F.3d at 511.
17
Minnitt, 617 F.3d at 333-34 (internal quotation marks omitted) (quoting
McCormick, 54 F.3d at 222).
18
Cf. Grandlund, 71 F.3d at 511.
19
Cf. United States v. Alvear, 959 F.3d 185, 189 (5th Cir. 2020) (per curiam)
(holding that a defendant’s “interest is lessened when he had ‘ample opportunity to refute
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McElroy did otherwise contest the lab results by challenging the chain of
custody and raising a false-positive defense, he did not provide supporting
evidence for his theory. Consequently, it is unlikely that the theory provides
a “legally-significant interest in confrontation.”20 In sum, McElroy’s
interest in confrontation is minimal.
In contrast, the Government’s interests in “[a]voiding the delay,
difficulty, and expense of securing the appearance of distant witnesses” are
“substantial” and “recognized as adequate good cause.”21 Given that the
testing lab for McElroy’s urine sample is in Louisiana and his revocation
hearing was in Texas, there is little question that the Government would have
had to incur expense and delay to secure the appearance of a lab technician
from Louisiana at the revocation hearing.
As in Grandlund and Minnitt, we conclude that the record supports an
implicit finding of good cause, and the district court’s failure to articulate its
reasons for its good cause finding was harmless.
IV
Lastly, McElroy challenges the sufficiency of the evidence to support
the district court’s finding that McElroy possessed cocaine in violation of his
conditions of supervision. This court reviews the district court’s decision to
revoke supervised release for abuse of discretion.22 We “must view the
evidence and all reasonable inferences that may be drawn from the evidence
the Government’s evidence via methods other than cross-examination’” (quoting Minnitt,
617 F.3d at 333-34)); Grandlund, 71 F.3d at 511.
20
Alvear, 959 F.3d at 189 (quoting Minnitt, 617 F.3d at 335).
21
Grandlund, 71 F.3d at 511 (citing Gagnon v. Scarpelli, 411 U.S. 778 (1973)).
22
United States v. Spraglin, 418 F.3d 479, 480 (5th Cir. 2005) (per curiam) (citing
Grandlund, 71 F.3d at 509).
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in a light most favorable to the government.”23 The evidence is sufficient if
a reasonable trier of fact could reach the district court’s conclusion.24 To
revoke a term of supervised release, the district court was required to “find
by a preponderance of the evidence that [McElroy] violated a condition of his
release.”25 “All that [was] required [was] enough evidence, within a sound
judicial discretion, to satisfy the district judge that the conduct of [McElroy
had] not met the conditions of probation,”26 i.e., to satisfy the district judge
that McElroy used—and thus possessed27—a controlled substance.
McElroy challenges the sufficiency of the evidence on two grounds.
He first argues that, if the urinalysis report had been excluded, the evidence
is insufficient to support revocation because “the record contains no
evidence regarding the collection of the urine specimen and whether it was
performed properly.” This court has explicitly held that “[m]issing links in
the chain of custody go ‘to the weight and not the admissibility’ of evidence,”
and “[i]n assessing the sufficiency of evidence, we do not evaluate the weight
23
United States v. Alaniz-Alaniz, 38 F.3d 788, 792 (5th Cir. 1994) (summary
calendar) (quoting United States v. Prieto-Tejas, 779 F.2d 1098, 1101 (5th Cir. 1986)).
24
Id. (citing United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en
banc), aff’d, 462 U.S. 356 (1983)).
25
Spraglin, 418 F.3d at 480 (citing 18 U.S.C. § 3583(e)(3)).
26
Id. at 481 (quoting United States v. Garza, 484 F.2d 88, 89 (5th Cir. 1973)
(summary calendar) (per curiam)).
27
See United States v. Courtney, 979 F.2d 45, 49 (5th Cir. 1992) (“[I]n a sentencing
or revocation context it is clear that ‘use’ requires knowing and voluntary ingestion. But
once the court finds a substance has been voluntarily and knowingly ingested, then, at least
in almost any imaginable circumstance, it necessarily follows that the defendant has
possessed the substance.”).
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of the evidence or the credibility of witnesses.”28 Thus, we need not address
this argument.
McElroy—citing United States v. Courtney29—argues second that,
even if the urinalysis report was properly admitted, the evidence is
insufficient to support a finding that the positive urinalysis may not
reasonably be accounted for by passive ingestion. In Courtney, we held that—
as the record stood on appeal—there was insufficient evidence to support the
district court’s finding that the level of cocaine metabolite on the urinalysis
report could not be the result of passive inhalation.30 Undisputed testimony
showed two positive urinalyses for cocaine, but there was no evidence
regarding the significance of the confirmation level or whether the result
could reasonably be the result of passive inhalation.31 In making its finding,
the district court “merely relied, sua sponte, on [its] general recollection of
unspecified testimony, in unidentified prior cases from unidentified
witnesses,” which in the revocation context was “an informality too far” and
prevented this court “from meaningful exercise of its duty of review.”32
In this case, as in Courtney, there was no testimony or other evidence
offered explaining the significance of the level of cocaine metabolite on the
urinalysis report. However, unlike in Courtney, the district court relied on
more than just its “general recollection of unspecified testimony, in
28
United States v. Doggins, 633 F.3d 379, 383 (5th Cir. 2011) (first quoting United
States v. Ellis, 547 F.2d 863, 868 (5th Cir. 1977); and then quoting United States v. Delgado,
256 F.3d 264, 273-74 (5th Cir. 2001)).
29
979 F.2d 45 (5th Cir. 1992).
30
Id. at 50.
31
Id.
32
Id. (italics in original).
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unidentified prior cases from unidentified witnesses”33 to find that the
confirmation level could not be the result of passive inhalation. The district
court also relied on the testimony of Probation Officer Maria Ureste
regarding the positive urinalysis,34 as well as McElroy’s admission to prior
drug use and addiction35—which is suggestive of intentional drug use.36
Viewing all evidence and all reasonable inferences that may be drawn
from the evidence in a light most favorable to the Government, there was
enough evidence, within a sound judicial discretion, to satisfy the district
judge that McElroy possessed a controlled substance in violation of the
conditions of his supervision. Thus, the district court did not abuse its
discretion in revoking McElroy’s supervised release based on that finding.
* * *
For the foregoing reasons, we AFFIRM the district court’s order
revoking McElroy’s supervised release.
33
Id.
34
See supra Part I.
35
See id.
36
See Courtney, 979 F.2d at 49 n.5 (commenting that “Courtney’s prior use of the
drug and his drug addiction” corroborated the positive laboratory analyses); United States
v. Bubenik, No. 99-40153, 1999 WL 767257, at *3 (5th Cir. Sept. 8, 1999) (summary
calendar) (per curiam) (holding that a defendant’s prior drug use and drug addiction is
evidence “suggesting intentional drug usage” (quoting Courtney, 979 F.2d at 49 & n.5)).
11