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United States v. Montgomery

United States Court of Appeals, Eighth Circuit

July 23, 2018

United States of America Plaintiff- Appellee
Tavares Montgomery Defendant-Appellant

          Submitted: April 13, 2018

          Appeal from United States District Court for the Northern District of Iowa - Waterloo

          Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.

          LOKEN, Circuit Judge.

         After serving a sentence for being a felon in possession of a firearm, Tavares Montgomery began serving three years of supervised release. The U.S. Probation Office filed a petition to revoke supervised release, alleging that Montgomery had violated many conditions, including use of controlled substances. After a hearing, the district court[1] revoked supervised release and sentenced Montgomery to seven months in prison. He appeals, arguing the court violated his right to confront witnesses when it admitted transcripts of a drug-testing expert's testimony in prior cases. Reviewing for abuse of discretion, we affirm.

         In March 2017, the Probation Office petitioned to revoke Montgomery's supervised release. At an April 11 revocation hearing, Montgomery admitted providing a urine sample on March 22 that tested positive for cocaine. He also admitted using cocaine on March 18, drinking a "blocker" in an unsuccessful attempt to thwart the March 22 urine analysis, and being placed on a sweat patch[2] program on March 30. Accepting Montgomery's representation that he last used cocaine on March 18, the district court adopted the Probation Office's recommendation to modify rather than revoke supervised release and imposed a 120-day home monitoring condition. But the court warned Montgomery:

Now, there's a pending sweat patch. I am assuming . . . that you are representing to this Court that that is going to be a negative for drugs. If it is not going to be, now is the time to tell me, because if we get that sweat patch back and it's positive for drugs, you will go to prison.

         On April 12 and April 19, the Probation Office filed supplements to its previous petition to revoke, alleging three additional violations: (i) failure to participate in substance abuse testing, based on Montgomery's admission that he used a "blocker" before providing his March 22 urine specimen; (ii) use of controlled substances, based on analysis of two sweat patches he wore between March 30 and April 10; and (iii) failure to truthfully answer inquiries, based on his representation at the April 11 hearing that he had not used controlled substances after March 18. Montgomery admitted the first violation but denied the other two.

         At the revocation hearing, the government introduced without objection four exhibits containing lab analyses of Montgomery's sweat patches, and documents establishing the credentials of the officers who applied and removed the sweat patches and their chain-of-custody during the testing process. Probation Officer Amy Moser testified in support of the petition to revoke. Moser testified that Montgomery was placed in the sweat patch program on March 30 at a residential reentry center, where trained officers applied and removed the sweat patches. Moser explained that, after a sweat patch is removed, it is sent to the Clinical References Laboratory for an initial screen for controlled substances, which, if positive, is confirmed by a second test. The lab analyses reported that the patch Montgomery wore from March 30 to April 6 tested positive for cocaine and THC (the metabolite for marijuana). The patch contained over five times the minimum detection value for cocaine. The patch he wore from April 6 to April 10 tested positive for THC but not for cocaine.

         Montgomery had provided a urine specimen on March 22 that tested positive for cocaine and another on March 24 that tested negative for controlled substances. Based on her training and familiarity with enforcing drug testing requirements, Officer Moser testified that cocaine can be detected in urine only if the cocaine use occurred twenty-four to forty-eight hours before a sample was taken. Therefore, Officer Moser opined, (i) Montgomery's March 18 cocaine use would not have caused the positive cocaine test on a sweat patch applied on March 30 and removed on April 6, and (ii) the two positive THC sweat patch tests resulted from THC ingested after March 24, while Montgomery was wearing the patches.

         Moser testified that she had discussed the sweat patch test results with Dr. Leo Kadehjian, a California toxicologist who is a consultant to the Administrative Office of the U.S. Courts. Over Montgomery's objection, Moser testified that Dr. Kadehjian advised that research would not support the proposition that a cocaine-positive test from the March 30 to April 6 sweat patch resulted from Montgomery's March 18 cocaine use. On cross-examination, asked if a substance other than marijuana, such as hemp seeds, could have triggered the THC-positive tests, Officer Moser replied that both the parent drug and metabolic drug were present in Montgomery's sweat patches, suggesting that marijuana was the source of the THC. Moser testified that Dr. Kadehjian advised that the FDA prohibits hemp seeds and hemp oil sold in the United States from containing THC.

         After Officer Moser testified, the government offered the evidence at issue on appeal -- transcripts of Dr. Kadehjian's lengthy testimony in two prior Northern District of Iowa cases addressing in detail the reliability and acceptance of sweat patches for drug testing, and explaining how sweat-patch testing differs from other forms of drug-detection testing, such as urine and hair tests. The government did not advise the district court, and subsequently did not explain on appeal, the purpose for which this testimony was offered. Overruling Montgomery's confrontation and hearsay objections, the district court admitted the prior testimony after balancing the cost of making Dr. Kadehjian available for cross examination against the reliability of his proffered testimony.

         Montgomery then testified and denied using cocaine after March 18. He theorized that the "blocker" he took before providing his March 22 urine specimen explained why his March 24 urine specimen tested negative for cocaine. He also testified that hemp seeds he takes for their health benefits were the likely source of the THC found in his sweat patches. The district court found Montgomery's explanations not credible, revoked his supervised release, and sentenced him to seven months imprisonment and two years supervised release.

         On appeal, Montgomery argues the district court erred in admitting into evidence two transcripts of testimony by an expert witness who was not available for cross-examination. "[A] defendant contesting revocation is entitled to 'the minimum requirements of due process,' including 'the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).'" United States v. Simms, 757 F.3d 728, 731 (8th Cir. 2014) (quotation omitted). Similarly, Rule 32.1(b)(2)(C) of the Federal Rules of Criminal Procedure provides that, at the revocation hearing, the defendant "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." The district court "must balance the probationer's right to confront a witness against the grounds asserted by the government for ...

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