FILED
NOT FOR PUBLICATION MAR 14 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30208
Plaintiff - Appellee, D.C. No. 3:10-cr-05530-BHS-1
v.
MEMORANDUM *
RONDELL LOVE LEETH,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted March 9, 2012 **
Seattle, Washington
Before: PAEZ and MURGUIA, Circuit Judges, and TUCKER, District Judge.***
Appellant Rondell Love Leeth’s supervised release was revoked for use of
marijuana. Leeth appeals the district court’s admission of the telephonic testimony
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Josephine Staton Tucker, United States District Judge
for the Central District of California, sitting by designation.
of a technician from the laboratory that tested Appellant’s urine samples and
reported positive results. Appellant asserts that the admission of this testimony
violated his due process right to confrontation under Morrissey v. Brewer, 408 U.S.
471 (1972), and that the district court erred by failing to engage in the balancing
required under United States v. Comito, 177 F.3d 1166, 1170 (9th Cir. 1999).
Whether a defendant has received due process at a revocation hearing is a mixed
question of law and fact that we review de novo. United States v. Perez, 526 F.3d
543, 547 (9th Cir. 2008). “A due process violation at a revocation proceeding is
subject to harmless error analysis.” Id. (internal quotation marks omitted). We do
not recite the facts here as they are known to the parties. We affirm.
“[E]very releasee is guaranteed the right to confront and cross-examine
adverse witnesses at a revocation hearing, unless the government shows good
cause for not producing the witnesses.” Comito, 177 F.3d at 1170 (citing
Morrissey v. Brewer, 408 U.S. at 489); see also Fed. R. Crim. P. 32.1(b)(2)(C)
(providing that a releasee is entitled to “an opportunity to . . . question any adverse
witness unless the court determines that the interest of justice does not require the
witness to appear”). When the releasee claims he has been denied the opportunity
to confront an adverse witness, we balance the releasee’s right to confrontation
against the Government’s good cause for denying it. United States v. Martin, 984
2
F.2d 308, 310 (9th Cir. 1993). This balancing process is required when, as here,
the admission of testimony at a revocation hearing implicates the releasee’s interest
in full confrontation of an adverse witness, including the opportunity to observe the
witness’s demeanor. Cf. Beltran-Tirado v. I.N.S., 213 F.3d 1179, 1185-86 (9th Cir.
2000) (rejecting due process claim regarding admission of telephonic testimony at
a deportation hearing after weighing the competing interests of alien and
government).
We need not, and do not, decide here whether the telephonic testimony was
hearsay. Even if it was not, we hold that Comito balancing was required in this
case because the telephonic testimony implicated Leeth’s interest in full
confrontation. The district court erred by failing to engage in the requisite
balancing of Leeth’s right to confrontation against the Government’s good cause
for failing to produce the technician in court. Comito, 177 F.3d at 1170. However,
“[w]e still must review the underlying question to determine if [Leeth’s]
confrontation rights were violated.” Id. Here, the importance of Leeth’s interest in
confrontation was significantly lessened by his opportunity to cross-examine the
technician via telephone. Additionally, the scientific nature of the technician’s
testimony permitted a credibility determination based on her credentials as opposed
to her demeanor. Moreover, the telephonic testimony was not critical to the
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outcome of the hearing as the laboratory testing was merely confirmatory of prior
testing by the United States Probation Office. For its part, the Government cited
two reasons for introducing telephonic testimony: (1) the distance between the
technician’s location, Richmond, Virginia, and the place of the hearing, Seattle,
Washington; and (2) the interruption to the technician’s work. On balance, the
Government’s good cause in failing to produce the technician in court outweighed
Leeth’s weak interest in in-person confrontation of the technician. Although the
district court committed error by failing to engage in the requisite balancing, this
error was harmless, as Leeth’s due process rights were not violated by the
introduction of telephonic testimony.
Finding that exceptional circumstances are present, we order that the
mandate shall issue forthwith. See Fed. R. App. P. 41(b); 9th Cir. R. 41-1
Advisory Committee Note.
AFFIRMED.
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