1

The Honorable Gary A. Fenner, United States District Judge for the Western

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-1178

___________

United States of America, *

*

Plaintiff-Appellee, * Appeal from the United States

* District Court for the Western

v. * District of Missouri.

*

Tucson D. Redd, *

*

Defendant-Appellant. *

___________

Submitted: September 13, 2002

 Filed: February 4, 2003 

___________

Before BYE, BEAM, and MELLOY, Circuit Judges.

___________

MELLOY, Circuit Judge.

Tucson D. Redd appeals the district court's1

 revocation of his supervised

release and imposition of an 18 month sentence of imprisonment. Because the district

court did not err when it admitted written drug test results or abuse its discretion

when it refused to continue the revocation hearing and refused to grant counsel leave

to withdraw, we affirm. 
2

For the purpose of the present opinion, a detailed explanation of sweat patch

technology is unnecessary. Generally, as the name suggests, sweat patches are

absorbent patches that may be worn by monitored individuals to collect sweat for

chemical analysis. Redd made no challenge under Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), to the underlying technology of the sweat

patches. Rather, Redd asserted hearsay and foundation objections to the admission

of the written sweat patch test results. Accordingly, because no Daubert challenge

was raised, this opinion should not be read as a general endorsement or rejection of

sweat patch technology.

3

The docket does not reflect that Millin entered a formal appearance on behalf

of Redd.

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I.

Redd pled guilty to one count of conspiracy to commit mail fraud and money

laundering. He was sentenced to 12 months and one day of imprisonment to be

followed by three years of supervised release. He began his term of supervised

release on February 28, 2001. Over the next seven months, four violation reports

were filed alleging cocaine use. The allegations were based on six positive "sweat

patch" test results.2

 

On September 24, the district court ordered that Redd show cause to explain

why his supervised release should not be revoked. On October 3, attorney F. Russell

Millin notified the United States Attorney that he represented Redd in the revocation

action.3

 On October 10, the United States Attorney notified Millin of its intent to call

an expert witness and, on October 12, provided discovery to Millin. On October 22,

attorney Bruce Houdek filed an appearance as additional counsel for Redd. 

On December 4, Houdek filed a document entitled Motion for Leave to

Withdraw as Counsel for Defendant Tucson Redd and Alternative Motion for a

Continuance. In that motion (the December 4 Motion), Houdek explained that he
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originally expected to be paid by Redd with proceeds from the sale of Redd's real

estate but had not been paid because restitution liens made the real estate

unmarketable. Houdek further stated that although Redd was employed full time, he

was unable to pay a retainer or raise funds for the payment of counsel or experts. The

December 4 Motion did not provide a showing of Redd's indigency, include a request

for the appointment of new counsel, contain an application for payment of current

counsel with CJA funds, nor include an application for the payment of expert witness

fees under 18 U.S.C. § 3006A(e)(1). Rather, it contained conclusory statements to

explain the need for the proposed continuance: "It is the belief of the Defendant that

if the matter is continued by a period of sixty (60) days, he will be able to raise

sufficient funds to employ counsel on his own." It stated further that, "significant

legal, scientific, and chemical research" would be necessary in addition to the

employment of an "expert or experts to consult with counsel and/or testify at the

scheduled hearing . . ." Finally, the motion did not identify a specific expert,

contained no specific explanation of how an expert would assist Redd, and failed to

allege a factual basis to suggest how the patches might have become contaminated

with cocaine from a source other than Redd's sweat.

The district court denied the motion in an order dated December 17. At the

December 20 revocation hearing, Houdek renewed the December 4 Motion stating

that Redd lacked sufficient resources to provide a defense. On the day of the hearing,

Houdek, for the first time, made a request for the appointment of new counsel. He

provided no affidavits or specific evidence regarding Redd's finances. The district

court denied both the renewed motion and the last minute request for the appointment

of new counsel.

At the hearing, the government introduced United States Exhibits 1A-1F over

Redd's hearsay and Confrontation Clause objections. Each one of these six exhibits

was a two-page document received by the probation office from its private, drug

laboratory contractor, Pharm-Chem, Inc. Each of the exhibits contained the results
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of one of the six separate sweat patch analyses as well as a chain of custody report.

Redd's Supervising Probation Officer testified that the reports served as the

foundation for her recommendation of revocation but that she had not participated in

preparation of the reports. Redd argued that exhibits 1A-1F were hearsay because the

technicians who created the records (local technicians who applied and removed the

sweat patches and laboratory technicians from California who conducted analyses of

the patches) were not present to provide a foundation and respond to questioning.

The United States next called an expert, Dr. Kadehjian, who interpreted the test

results, discussed sweat patch methodology, and vouched for the reliability and

validity of the sweat patch results. The United States also introduced a Senior United

States Probation Officer who described the certification procedures for the

technicians who administered and handled the patches. The technicians' training

certifications were entered as exhibits.

Following the hearing, in an order dated February 15, 2002, the district court

revoked Redd's supervised release and sentenced him to 18 months imprisonment.

The district court relied on the sweat patch evidence to find that Redd had continued

cocaine use during his term of supervised release. In addition, the district court found

that Redd failed to take advantage of treatment options offered by the United States

Probation Office. The district court noted that negative (no drugs detected) urinalysis

test results submitted by Redd from tests conducted during his period of supervised

release were consistent with the sweat patch test results – none of the negative

urinalysis tests coincided with the specific time periods when Redd wore sweat

patches that tested positive. The district court also noted that no evidence was

submitted to indicate that the sweat patches were contaminated in any manner.

Finally, the court found Redd not credible and stated that his claim to have "no idea"

regarding how the sweat patches in question tested positive for cocaine was

unpersuasive. Redd correctly notes that the record contains no description of the

district court's findings of reliability or the district court's balancing of Redd's
4

Redd also argues on appeal that it was error to admit United States Exhibit 6,

Pharm-Chem's "litigation packages" that contained full laboratory reports regarding

United States Exhibits 1A-1F. The United States' expert reviewed this exhibit, but

it was not admitted into evidence. Accordingly, we need not address Redd's

objections to United States Exhibit 6. "An expert may 'testify about facts and data

outside of the record for the limited purpose of exposing the factual basis of the

expert's opinion.'" Sphere Drake Ins., PLC v. Trisko, 226 F.3d 951, 955 (8th Cir.

2000) (quoting Brennan v. Reinhart Institutional Foods, 211 F.3d 449, 451 (8th Cir.

2000)).

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Confrontation Clause rights against any good cause shown for the failure to procure

direct testimony from the proposed technician-witnesses.

Redd now argues that the district court abused its discretion by denying the

motion for a continuance, alternative motion for leave to withdraw, and oral request

for appointment of new counsel. He also argues that the admission of United States

Exhibits 1A-1F violated Fed. R. Crim. Pro. 32.1(a)(2)(D) as well as his Sixth

Amendment Confrontation Clause rights because he was deprived of the opportunity

to examine the technicians who created the records.4

II.

We reverse a district court's denial of a requested continuance only upon a

showing of a prejudicial abuse of discretion. United States v. Cotroneo, 89 F.3d 510,

514 (8th Cir. 1996) ("Continuances generally are not favored and should be granted

only when the party requesting one has shown a compelling reason. We will reverse

a District Court's decision to deny a motion for continuance only if the court abused

its discretion and the moving party was prejudiced by the denial.") (citation omitted).

In this case, the district court did not abuse its discretion when it denied the motion

for continuance. The motion for continuance contained no details that would have

allowed the district court to determine whether Redd would have been capable of

raising funds to employ counsel. Further, Redd did not state with any specificity
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what assistance an expert would have provided, did not offer any facts to suggest that

contamination of his sweat patches occurred through some means other than his

cocaine use, and did not represent that he had consulted with an expert to assess the

time required for assistance. In short, Redd presented no basis for the requested

continuance other than a conclusory statement that he believed he could raise

sufficient funds to employ counsel if granted a continuance of sixty days. Based on

this dearth of information, it was not an abuse of discretion for the district court to

deny Redd's requested continuance. See Ungar v. Sarafite, 376 U.S. 575, 589 (1964)

(stating that the determination of whether a denial of a motion for continuance is

arbitrary is rooted "particularly in the reasons presented to the trial judge at the time

the request is denied.").

A similar lack of supporting evidence leads us to conclude that the district

court did not abuse its discretion when it denied Houdek leave to withdraw as

counsel. United States v. Swinney, 970 F.2d 494, 499 (8th Cir. 1992) ("Whether to

grant a continuance and substitution of counsel is a matter committed to the sound

discretion of the district court."). Although Redd argues on appeal that the purpose

of the requested leave to withdraw was to permit the reappointment of Houdek as

CJA counsel, this argument was not advanced in the December 4 Motion. Rather, the

motion merely recited the conclusory statement regarding Redd's ability to raise

sufficient funds if granted a sixty day continuance and a claim that competent

representation could not be provided absent "necessary expenditures for expert

witnesses and scientific and chemical research." No evidence was provided to

support the claims that Redd was unable to pay the "necessary expenses" or to inform

the court as to the nature and extent of the vaguely referenced expenses. In light of

the limited information and arguments actually presented to the district court, it was

reasonable for the district court to conclude that the motion was merely intended to

cause delay. The refusal to grant leave for Houdek to withdraw was not an abuse of

discretion. 
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Finally, we find no abuse of discretion in the denial of the December 4 Motion

as orally renewed at the December 20 hearing. Redd did not even request appointed

counsel until December 20, the day of the hearing. This request was untimely and the

district court's refusal to provide new counsel on the day of the hearing was not an

abuse of discretion. 

III.

Next we address Redd's objections to the introduction of United States Exhibits

1A-1F, the test results and chain of custody reports for the six sweat patches. Redd

objected to the exhibits as hearsay and as a deprivation of his right to confront

adverse witnesses. As an initial matter, we note that the Federal Rules of Evidence

do not apply in revocation hearings. Fed. R. Evid. 1101(d)(3) ("The rules . . . do not

apply in the following situations: . . . Proceedings for . . . granting or revoking

probation . . ."). That is not to say, of course, that all hearsay is admissible. Rather,

probationers and parolees enjoy due process and statutory protections in the context

of their revocation hearings. See Morrissey v. Brewer, 408 U.S. 471, 488-489 (1972)

(stating that a parolee is entitled to confront adverse witnesses in a revocation hearing

unless the hearing officer specifically finds good cause for not allowing such

confrontation); Fed. R. Crim. Pro. 32.1(a)(2)(D) (providing that a person accused of

violating probation or supervised release is entitled to a revocation hearing and an

opportunity to confront adverse witnesses).

In United States v. Bell, 785 F.2d 640, 642-43 (8th Cir. 1986), we held that the

trial court in a revocation proceeding must "balance the [defendant's] right to confront

a witness against the grounds asserted by the government for not requiring

confrontation." Id. (holding that it was not error to allow the government to

introduce urinalysis laboratory results from a California laboratory through a

probation officer who had not prepared the report and without live testimony from the

laboratory technicians because the hearsay was reliable and the proposed testimony
8

was of little value). The need to apply this balancing test is well established in our

circuit. See United States v. Reynolds, 49 F.3d 423, 426 (8th Cir. 1995) (holding that

it was reversible error for a district court to fail to applying a balancing test before

admitting oral hearsay testimony recounting a third party's allegations of sexual

assault by the probationer); United States v. Zentgraf, 20 F.3d 906, 909-10 (8th Cir.

1994) (applying balancing test and determining that it was reversible error to admit

oral hearsay testimony rather than direct testimony from probationer's accomplice

who was in custody and available to testify); United States v. O'Meara, 33 F.3d 20,

20-21 (8th Cir. 1994) (per curiam) (holding that it was reversible error to admit oral

hearsay in the form of probation officer's comments on police reports, testimony

about conversations with a state agent concerning criminal sexual conduct charges

against O'Meara, and videotapes prepared by a state agent who was not a witness).

The record is sufficient for our application of the balancing test which supports

the implicit findings of the district court, namely, that the evidence admitted was

reliable and that the de minimis value of testimony from the proposed technicianwitnesses did not outweigh the government's inconvenience and expense in making

those witnesses available. 

The present case is analogous to Bell because the hearsay that was admitted

was reliable and the testimony proposed by Redd is of little value. Unlike the

Reynolds, Zentgraf, and O'Meara cases, the evidence at issue here was not oral

hearsay. Rather the evidence was documentary evidence of a type normally

understood to be reliable. See United States v. Baker, 855 F.2d 1353, 1359 (8th Cir.

1988) ("When made on a routine basis, laboratory analyses of controlled substances

are admissible as business records under Federal Rule of Evidence 803(6).").

Documentary hearsay evidence generally provides greater indicia of reliability than

oral hearsay. This distinction is reflected in numerous long-standing exceptions to

the hearsay rule. See, e.g., Fed. R. Evid. 803 (6)-(18) (permitting the admission of

various records or the absence of record entries in various settings). We believe that
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here, as in Bell, the laboratory reports "bear substantial indicia of reliability. They

are the regular reports of a company whose business it is to conduct such tests, and

which expects its clients to act on the basis of its reports." Bell, 785 F.2d at 643

(citation omitted). 

We do not believe that any possible testimony from laboratory technicians

(who likely would not remember their treatment of an individual sample as having

been distinct from the treatment of any other sample) outweighs the expense and

inconvenience to the government of bringing such ministerial witnesses from

California. As this court stated in Bell:

We conclude that under these circumstances there was good cause to

permit the government to avoid the difficulty and expense of bringing

the chemist or chemists who performed the tests from California to

Arkansas to testify. In our experience, that sort of formal testimony

rarely leads to any admissions helpful to the party challenging the

evidence. 

Id. (emphasis added). The Seventh Circuit has concurred in this view. See United

States v. Pierre, 47 F.3d 241, 243 (7th Cir. 1995) (admitting the results of a urinalysis

test over hearsay objections based on the absence of the laboratory technician). The

Seventh Circuit stated:

What was the technician going to say on the stand? One vial of urine

looks like another; the technicians would not have remembered what

they did with [the probationer's] specimens and therefore would have

described their normal procedures, and the judge would not have been

enlightened.

Id. Accordingly, with regard to the absence of testimony from the California

laboratory technicians, we find that the district court's implicit findings are supported

under our application of the requisite balancing test. Regarding the United States'

failure to call the local officers who applied and removed Redd's sweat patches as
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witnesses, we again find, for the reasons set forth above, that the reliability of the

documentary evidence and the minimal value of the desired testimony outweigh the

need for confrontation. 

Had it been error for the district court to fail to vindicate Redd's confrontation

rights regarding these witnesses, such error would have been harmless. Redd–who

was necessarily present for the application and removal of the sweat patches–was

capable of describing the process of applying and removing the patches from his

body. Notwithstanding the availability of Redd's first hand observations, the district

court concluded that "there is no evidence of any conditions that could potentially

produce a false positive result to any of the sweat patches that were applied to

defendant." In other words, Redd, having observed the handling of the patches, failed

to articulate any theory or allege any facts to suggest how the patches might have

become contaminated other than by his own drug use. Here as in Bell, any

examination of the technicians would have been a mere "fishing expedition." Bell,

785 F.2d at 643 ("Bell has made only general, unsubstantiated claims that the

laboratory tests may have been defective."). The lack of evidence to support a theory

of contamination coupled with the fact that there were six separate positive test

results (when only one positive result would be sufficient to support revocation)

supports our conclusion that the failure to permit a fishing expedition with the

technician-witnesses would have been harmless error had it been error at all.

The district court is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT