Criminal – Supervised Release Hearing — Evidence – Hearsay – Crime Lab Report – Chemist’s Failure to Appear

U.S. v. Doswell (Lawyers Weekly No. 001-073-12, 9 pp.) (Motz, J.) No. 11-4190, March 2, 2012; USDC at Baltimore, Md. (Nickerson, J.) 4^th Cir. Full-text opinion.

Holding: A district court that admitted and relied on hearsay evidence of defendant’s state-court heroin charge, nolle prossed after the chemist who authored the crime lab report failed to appear in state court, violated Rule 32.1, and the 4^th Circuit vacates the district court order revoking defendant’s supervised release for an earlier robbery conviction.

Defense counsel clearly and forcefully objected to the admission of the hearsay drug analysis report based, at least in part, on the inability to question the author of the report, which sufficed to preserve the argument for appellate review.

Rule 32.1, Fed.R. Crim. P., sets forth the parameters of a defendant’s limited right to confront and cross-examine adverse witnesses at a supervised release revocation hearing. We held in 1982 that hearsay was admissible at a revocation hearing if it was “demonstrably reliable.” In 2002, Rule 32.1 was substantially amended to provide that a release subject to revocation proceedings is entitled to question any adverse witness unless the court determines the interest of justice does not require the witness to appear.

Rule 32.1(b)(2)(C) specifically requires that, prior to admitting hearsay evidence in a revocation hearing, the district court must balance the releasee’s interest in confronting an adverse witness against any proffered good cause for denying such confrontation. Our holding that Rule 32.1(b)(2)(C) requires a balancing of interests accords with that of many of our sister circuits that have addressed the question.

In this case, the chemist who authored the drug analysis report failed to appear in state court on two occasions to verify the reliability of the report, requiring dismissal of the heroin charge in state court. Even so, and notwithstanding the Supreme Court’s recognition of the potential unreliability of drug analysis reports, the government did not provide testimony from the chemist at the revocation hearing. Nor did the government put forward any explanation for its failure to do so or offer any other evidence that defendant had committed a violation involving heroin. Yet the district court admitted the drug analysis report without any reliability finding or any attempt to engage in the balancing test required by Rule 32.1. In doing so, the court abused its discretion.

This abuse of discretion does not, as the government suggests, constitute harmless error. The court clearly regarded the heroin violation as its sole basis for revoking defendant’s supervised release.

Order revoking defendant’s supervised release is vacated and this case is remanded for further proceedings.