Case: 09-10711 Document: 00511214987 Page: 1 Date Filed: 08/25/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 25, 2010
No. 09-10711 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MELVIN ODELL MINNITT, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before JONES, Chief Judge, PRADO, Circuit Judge, and O’CONNOR, District
Judge.*
REED O’CONNOR, District Judge:
Defendant-Appellant Melvin Odell Minnitt, Jr. appeals the district court’s
decision to revoke his supervised release based on its finding that he failed to
comply with the terms of the supervised release. Minnitt claims that the district
court violated his due process right to confrontation by relying on hearsay as
evidence that, during the period of his supervised release, he: (1) possessed
controlled substances; and (2) failed to attend mandatory drug counseling
*
District Judge of the Northern District of Texas, sitting by designation.
Case: 09-10711 Document: 00511214987 Page: 2 Date Filed: 08/25/2010
No. 09-10711
sessions. We conclude that the district court did not err in revoking Minnitt’s
supervised release, and affirm.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Minnitt was convicted of being a felon in possession of a firearm. He was
sentenced to thirty-three months’ imprisonment, followed by three years of
supervised release. Minnitt served the prison term and began his supervised
release in May 2008 under the supervision of Probation Officer Greg Cruz
(“Officer Cruz”).
In June 2009, Officer Cruz filed a Petition for Offender Under Supervision
(the “Petition”) with the district court. The Petition alleged that Minnitt violated
the terms of his supervised release because he: (1) used and/or possessed illegal
controlled substances during the term of his supervised release; and (2) missed
required counseling sessions throughout the period of his supervised release.
Officer Cruz requested issuance of a violator’s warrant, which the district court
ordered the following day.
The next week, the Government filed a Motion to Revoke Supervised
Release (“Motion to Revoke”). The Motion to Revoke alleged that Minnitt
violated three conditions of his supervised release by using and possessing the
illegal controlled substances of cocaine and marijuana, and further, that Minnitt
violated one condition of his supervised release by failing to attend required
counseling sessions with the local drug aftercare provider. Particularly, the
Government alleged that Minnitt submitted a urine specimen on May 20, 2009
that tested positive for cocaine and another on June 1, 2009 that tested positive
for marijuana. The Government also alleged that Minnitt failed to attend at
least one required counseling session in each of the months of July, August,
September, October, and November 2008 and in January, April, and June 2009.
The district court held a revocation hearing two weeks later. Officer Cruz
was the only witness to testify in person at the hearing.
2
Case: 09-10711 Document: 00511214987 Page: 3 Date Filed: 08/25/2010
No. 09-10711
A. Evidence Related to Controlled Substances
At the hearing, Officer Cruz first addressed the allegation that Minnitt
used and possessed illegal controlled substances. Without objection, Officer
Cruz testified that Minnitt’s May 2009 urine specimen tested positive for cocaine
and his June 2009 urine specimen tested positive for marijuana.
Also without objection, Officer Cruz testified about the process used to
evaluate urine samples. He stated that the sample is first sent to a laboratory
in Arlington, Texas for testing. If the first test is positive, the lab re-runs the
same type of test to verify the result. The lab then notifies the probation office
of the results. If the results are positive, a probation officer discusses the results
with the urine donor, and if the donor denies the indicated drug use, the
specimen is sent to a national laboratory, Kroll Laboratory (“Kroll”), for
additional testing. Kroll first re-runs the same type of test to confirm the
positive result. If it is confirmed, Kroll performs a different, more detailed type
of test on the specimen.1 Kroll then reports the test results back to the probation
office.
When the Government asked Officer Cruz whether Kroll tested Minnitt’s
samples, Minnitt objected, arguing that the testimony would violate his limited
due process right to confront and cross-examine witnesses. Minnitt urged that
Officer Cruz’s answer could only be based on hearsay and that the due process
clause afforded Minnitt the opportunity to confront the hearsay declarant,
absent the judge’s specific finding of good cause to deny the confrontation. The
district court found such good cause and overruled Minnitt’s objection, but did
not state on the record the reasons for its finding.
1
This test is called a gas chromatography/mass spectrometry test (“GC/MS”).
Congress has expressly approved of the use of GC/MS urinalysis test results in proceedings
to revoke a defendant’s supervised release for possession or use of a controlled substance. See
18 U.S.C. § 3583(d), (g).
3
Case: 09-10711 Document: 00511214987 Page: 4 Date Filed: 08/25/2010
No. 09-10711
The Government then moved to admit the lab results from Minnitt’s May
2009 urine specimen and from his June 2009 urine specimen. Minnitt again
objected based on his due process right to confrontation. The district court
overruled Minnitt’s objection and admitted the exhibits. Minnitt obtained a
running objection as to testimony on the two exhibits.
Officer Cruz first testified about the May 2009 sample and two possible
alternate explanations Minnitt had given for why the sample tested positive for
cocaine. Officer Cruz testified that when he confronted Minnitt about the
results, Minnitt denied knowingly ingesting cocaine. At that time, Minnitt
stated that he had accepted a cigarette from a family member, and he implied
that, unbeknownst to him, the cigarette may have been laced with cocaine. On
the morning of the revocation hearing, Minnitt offered a second possible
explanation to Officer Cruz. Minnitt claimed that the positive result might have
occurred because he had taken a medicine containing phenazopyridine
hydrochloride, a chemical that may have caused a false-positive result. Officer
Cruz contacted Kroll just before the hearing to determine whether
phenazopyridine hydrochloride may have caused a false-positive. Over Minnitt’s
objection, Officer Cruz testified that immediately prior to the hearing, he
received documentation from Kroll stating that “phenazopyridine hydrochloride
would not result in a positive urine sample.” On cross-examination, Minnitt
presented Officer Cruz with information printed from the Internet stating that
phenazopyridine hydrochloride might cause a false result (negative or positive)
in certain types of tests. Minnitt did not offer this documentation into evidence.
Officer Cruz next testified that he again confronted Minnitt after the June
2009 sample tested positive for marijuana. Minnitt denied knowingly using
marijuana and indicated that another individual had smoked a marijuana blunt
in his home, presumably implying that his inhalation of secondhand smoke could
have caused a false-positive result. Officer Cruz testified that he obtained
4
Case: 09-10711 Document: 00511214987 Page: 5 Date Filed: 08/25/2010
No. 09-10711
documentation from Kroll stating passive inhalation of marijuana could not have
caused a false-positive result because the cutoff level used for testing is such that
passive smoke inhalation could not have triggered the positive result.
Finally, Officer Cruz testified that Minnitt has a history of abuse of
controlled substances, including marijuana and cocaine. He then turned to the
allegations of Minnitt’s absence from required counseling sessions.
B. Evidence Related to Missed Counseling Sessions
Without objection, Officer Cruz testified that Minnitt violated a condition
of his supervised release because he missed both individual counseling sessions
and group counselling sessions that were required parts of his drug treatment
program. Officer Cruz then testified more specifically that Minnitt had missed
at least one group counseling session for five consecutive months in 2008 and for
one month in 2009. Minnitt objected, asserting that the testimony violated his
limited due process right to confrontation, and was overruled. Officer Cruz
stated that Minnitt failed to attend at least one individual counseling session for
five consecutive months in 2008 and for three months in 2009. Officer Cruz did
not have first-hand knowledge of these facts; he obtained them from the session
counselors. Without objection, Officer Cruz stated that he had confronted
Minnitt about some of the missed sessions and that Minnitt never denied that
he missed the sessions. Officer Cruz explained that Minnitt had problems
securing reliable transportation and that as a result of Minnitt’s absences from
the sessions, he had modified the terms of Minnitt’s supervised release in an
attempt to accommodate the transportation problems.
After hearing the evidence, the district court found that Minnitt had
committed all of the violations alleged, revoked Minnitt’s supervised release, and
sentenced him to eighteen months’ imprisonment. Minnitt timely appealed,
challenging the district court’s admission of hearsay testimony as a violation of
his limited due process right to confront and cross-examine witnesses.
5
Case: 09-10711 Document: 00511214987 Page: 6 Date Filed: 08/25/2010
No. 09-10711
II. Analysis
“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.”
United States v. McCormick, 54 F.3d 214, 219 (5th Cir. 1995); see 18 U.S.C.
§ 3583(e)(3). “We review for abuse of discretion a decision to revoke supervised
release.” McCormick, 54 F.3d at 219.
A. Drug Possession and Use
Minnitt first challenges the district court’s admission of various evidence
that supports its conclusion that Minnitt used and possessed illegal controlled
substances. Particularly, Minnitt challenges the admission of the two urinalysis
reports, of hearsay testimony regarding the tests used to produce those reports,
and of hearsay testimony regarding Minnitt’s absences from counseling. Minnitt
alleges that admission of these pieces of evidence violated his limited due process
right to confrontation. We review alleged violations of this right de novo, but
subject to a harmless error analysis. McCormick, 54 F.3d at 219. We first
address the admission of the urinalysis reports.
1. Admissibility of Lab Reports
Minnitt argues that the district court erred by admitting the two
urinalysis lab reports, as well as testimony about their contents, without first
requiring the Government to show good cause to deny Minnitt the opportunity
to cross-examine the lab technicians who conducted the tests.
A defendant facing revocation of parole enjoys more limited rights than
does a defendant facing a criminal prosecution. Morrissey v. Brewer, 408 U.S.
471, 480 (1972). While due process provides the defendant in a revocation
proceeding the right to confront and cross-examine adverse witnesses, the
district judge may deny such right if there is good cause to do so. Id. at 489;
6
Case: 09-10711 Document: 00511214987 Page: 7 Date Filed: 08/25/2010
No. 09-10711
United States v. Grandlund, 71 F.3d 507, 510 (5th Cir. 1995).2 To deny
confrontation, the district court must specifically find good cause and must make
the reasons for its finding part of the record. Grandlund, 71 F.3d at 510 n.6;
McCormick, 54 F.3d at 220–21. In evaluating good cause, the district court must
weigh the defendant’s interest in confrontation of a particular witness against
the Government’s proffered reasons for pretermitting the confrontation.
Grandlund, 71 F.3d at 510; McCormick, 54 F.3d at 221.
In this case, the district court explicitly found good cause for curtailment
of Minnitt’s right to confront the technicians, but it did not articulate the basis
for its finding. Failure to articulate the reasons “may be found to be harmless
error where good cause exists, its basis is found in the record, and its finding is
implicit in the court’s rulings.” Grandlund, 71 F.3d at 510; see also McCormick,
54 F.3d at 220 n.7 (explaining how judicial resources are conserved when
appropriate findings are articulated on the record, yet finding the error to do so
harmless in that case). Our review of the record has shown that the district
court’s error was harmless. We first examine Minnitt’s interest in confrontation
of the technicians.
a. Minnitt’s Interest
The laboratory results were no doubt important to the district court’s
finding that Minnitt used and possessed a controlled substance: Minnitt denied
using drugs, and the two urinalysis reports are the most reliable evidence to
support the Government’s allegation. See McCormick, 54 F.3d at 222 (on similar
facts, discussing a defendant’s interest in confrontation). Additionally, a finding
that Minnitt used and/or possessed a controlled substance triggered a mandatory
revocation of Minnitt’s supervised release. 18 U.S.C. § 3583(g)(1); see
2
“‘[T]he same protections granted those facing revocation of parole are required for
those facing the revocation of supervised release.’” McCormick, 54 F.3d at 221 (quoting United
States v. Copeland, 20 F.3d 412, 414 (11th Cir. 1994)).
7
Case: 09-10711 Document: 00511214987 Page: 8 Date Filed: 08/25/2010
No. 09-10711
McCormick, 54 F.3d at 222 (finding the interest in confrontation magnified
where the evidence, if believed, triggers application of a mandatory minimum
sentence).
Nonetheless, Minnitt’s interest in confronting the laboratory technicians
was minimal. As this Court noted in McCormick, “a releasee’s interest in cross-
examining a laboratory technician regarding a scientific fact” is minimal because
the truth of the fact can best be “verified through the methods of science” rather
than “through the rigor of cross-examination.” McCormick, 54 F. 3d at 222.3
Minnitt had ample opportunity to refute the Government’s evidence via methods
other than cross-examination. For example, he could have requested that his
samples be re-tested (see id. at 222) or he “could have introduced evidence to
support his unsupported conclusionary contention that the presence of [another
medication] in his system could cause his specimen to test positive for [a
controlled substance].” Id. at 223. Minnitt failed to pursue these options.4 If
pursued, these methods would have produced scientifically-verifiable facts that
the district court could have compared to the Government’s proffered
3
Minnitt asserts that this Court’s conclusion in McCormick that a defendant has no
significant interest in confronting laboratory technicians is undermined by the recent Supreme
Court opinion in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). However, as Minnitt
recognizes, Melendez-Diaz interprets a defendant’s right to confrontation under the Sixth
Amendment in a criminal prosecution, not the limited due process right to confrontation
afforded a defendant in a revocation proceeding. Compare id. at 2531–32, with McCormick,
54 F.3d at 220–21. While standards of the Sixth Amendment may extend to a revocation
proceeding, because a revocation proceeding is not a criminal prosecution, the Amendment
does not fully apply. See United States v. Hodges, 460 F.3d 646, 650 (5th Cir. 2006).
Melendez-Diaz does not change the analysis used in McCormick for applying the limited due
process right to confrontation in a revocation proceeding. McCormick followed the Supreme
Court’s opinion in Morrissey v. Brewer, 408 U.S. 471 (1972), which is unaffected by Melendez-
Diaz.
4
On cross-examination, Minnitt confronted Officer Cruz with information he gleaned
from the Internet in an apparent attempt to support one of his false-positive theories.
Favorably characterized, this information is mere speculation. It was not shown to be from
a reliable source, was not shown to relate to either of the types of tests used on Minnitt’s
samples, and in any event, was not offered into evidence.
8
Case: 09-10711 Document: 00511214987 Page: 9 Date Filed: 08/25/2010
No. 09-10711
scientifically-verifiable facts. Moreover, if Minnitt truly believed that the
technicians may have been able to provide helpful testimony, he could have
subpoenaed them himself. See id. at 222.
b. Government’s Good Cause
The record reveals good cause to deny confrontation of the lab technicians.
First, the reliability of the challenged evidence weighs in the Government’s
favor. Reliability of the challenged hearsay is a “critical consideration” in a
district court’s determination of whether good cause exists to disallow
confrontation. Grandlund, 71 F.3d at 510. Although urinalysis reports are “not
so inherently reliable as to be automatically admissible,” they are regular
business records and therefore bear “substantial indicia of reliability.”
McCormick, 54 F.3d at 223–24; United States v. Kindred, 918 F.2d 485, 487 (5th
Cir. 1990).
The following evidence supports a finding that the urinalysis reports were
reliable: Officer Cruz testified that he collected the sample himself; each sample
was tested by two different labs a total of four times using two different types of
tests; and Kroll’s director of toxicology submitted documentation debunking
Minnitt’s unsupported false-positive theories.5 Additionally, Minnitt failed to
offer any evidence of weakness in the lab’s practices or otherwise in the
reliability of the test results. On the whole, the lab results bear a substantial
indicia of reliability, which weighs in favor of the Government’s good cause to
deny confrontation of the technicians. Further, the Government had a
substantial interest in avoiding the expense, difficulty, and delay in securing the
lab technicians to testify. Grandlund, 71 F.3d at 511; McCormick, 54 F.3d at
224; Kindred, 918 F.2d at 487.
5
Minnitt also challenges the admissibility of this documentation, a matter addressed
below.
9
Case: 09-10711 Document: 00511214987 Page: 10 Date Filed: 08/25/2010
No. 09-10711
Under the totality of the circumstances, the district court’s finding of good
cause sufficient to overcome Minnitt’s limited right to confrontation of the lab
technicians is supported by the record, and therefore, the failure to articulate
these reasons on the record constitutes harmless error.
B. Hearsay Testimony Regarding Testing Procedures
Minnitt additionally challenges the portions of Officer Cruz’s testimony
where he repeats hearsay statements from the Director of Toxicology for Kroll
Laboratory, Pat Pizzo. Prior to the hearing, Officer Cruz questioned Pizzo about
the feasibility of Minnitt’s proffered false-positive theories. Pizzo explained why
the scenarios identified by Minnitt would not have resulted in false-positive
results, and Officer Cruz relayed these facts to the district court.
Minnitt had no more substantial an interest in cross-examination of Pizzo
than he had in cross-examination of the laboratory technicians. All of this
testimony involves scientifically-verifiable facts. Further, if a releasee presents
speculative false-positive theories to the district court but offers no supporting
evidence, he has no legally-significant interest in confrontation of witnesses
adverse to his theories. See McCormick, 54 F.3d at 225.
The Government, on the other hand, had at least as substantial an
interest in not being required to produce Pizzo at the hearing as it had in not
being required to present the lab technicians. As previously noted, Minnitt
offered no evidence in support of either of his false-positive theories. Further,
Minnitt waited to raise one of his theories until the morning of the revocation
hearing. His delay strengthened the good cause for the Government’s failure to
produce a live expert witness to rebut the theory, as it would have been difficult,
if not impossible, for the Government to fly in the witness on such short notice.
Considering the totality of the circumstances, the Government was not
required to secure a live expert witness to explain why Minnitt’s unsupported
theories were not scientifically feasible. The record contains good cause for the
10
Case: 09-10711 Document: 00511214987 Page: 11 Date Filed: 08/25/2010
No. 09-10711
district court’s curtailment of confrontation as to this evidence. We find the
district court’s error harmless.
C. Missed Counseling Sessions
Finally, Minnitt challenges testimony provided by Officer Cruz regarding
the frequency and timing of his missed counseling sessions. Officer Cruz did not
have first-hand knowledge of these facts, but rather, the information was relayed
to him by Minnitt’s counselors. Unlike the evidence addressed above, these facts
are not easily verified by scientific methods and therefore present a more
troublesome confrontation question. See id. at 222 (stating that the reliability
of non-scientific facts such as eyewitness observations is best tested through
cross-examination); id. at 222 n.49 (expressing concern that the district court
apparently admitted hearsay eyewitness testimony without specifically finding
good cause to deny confrontation of the eyewitness).
Without objection, however, Officer Cruz testified to the following facts:
(1) Minnitt violated a condition of his supervised release by missing counseling
sessions that were part of his required drug treatment program; (2) he had
confronted Minnitt about some of the missed sessions, and Minnitt never denied
the absences; and (3) Officer Cruz modified Minnitt’s supervised release as a
result of Minnitt’s absences from counseling, in an attempt to accommodate
Minnitt’s transportation issues. Minnitt does not challenge these facts on
appeal.
Although Minnitt objected in the district court as to some of Officer Cruz’s
testimony on this topic, these unobjected-to portions of his testimony provide an
adequate basis to support the district court’s finding that Minnitt missed
counseling sessions, in violation of one of the terms of his supervised release.
See Grandlund, 71 F.3d at 511 (considering the releasee’s failure to deny his
violative behavior when confronted by his probation officer); id. (considering the
releasee’s failure to object or dispute his probation officer’s testimony that the
11
Case: 09-10711 Document: 00511214987 Page: 12 Date Filed: 08/25/2010
No. 09-10711
terms of his supervised release were modified because of his violative behavior).
All that is required for the revocation of supervised release “‘is enough
evidence to satisfy the district judge that the conduct of the petitioner has not
met the conditions’” of supervised release. McCormick, 54 F.3d at 219 n.3
(quoting United States v. Irvin, 820 F.2d 110, 111 (5th Cir. 1987)). Accordingly,
we need not decide whether it would have been error for the district court to rely
solely upon the counselors’ hearsay statements that are challenged on appeal.
See McCormick, 54 F.3d at 226 (finding it unnecessary to reach grounds
presented on appeal where other grounds adequately supported the district
court’s decision); United States v. Turner, 741 F.2d 696, 698 (5th Cir. 1984)
(same).
III. CONCLUSION
Properly-admitted evidence supports each of the district court’s findings.
For the foregoing reasons, the district court did not err in revoking Minnitt’s
supervised release.
AFFIRMED.
12