Legal Case Summary

The honorable, the judges of the United States Court of Appeals for the Fourth Circuit. Oye, oye, oye, all persons have any manner or form of business before the honorable, the United States Court of Appeals for the Fourth Circuit are admonished to draw an eye and give their attention for the court is now sitting. God save the United States and this honorable court. Is that all? Please support. Good morning. My name is Nia Vidal. I'm here on behalf of the appellant Joy Ferguson. Your honors, I think the central issue in this case is whether or not the district judge and this court, in this case, Judge Hudson, properly admitted hearsay evidence at a supervised release of a revocation hearing in accordance with rule 32.1 and this court is ruling in Dazwell. Both Dazwell and rule 32.1 essentially says that the court must conduct a balancing test when deciding whether or not to admit hearsay evidence. In this case, and the reason why that is is the court is recognized even since Morris and C. versus Brewer, which is a Supreme Court decision that even in violation hearings, even though it's not a trial, that a defendant has certain due process rights. And when a court is deciding whether or not to admit evidence such as hearsay, which is admissible at a violation hearing, that the court should take certain precautions before it means such important evidence. Prior to 2002, when rule 32.1 was amended, the test for hearsay was whether or not it was demonstrably reliable. After the rule was amended in 2002, it became a balancing test. So it wasn't just purely reliability, but it was whether the balance thing, the interest of the defendant and cross-examining adverse witnesses versus the government's interest in denying that right. So the court is clear in Dazwell that the district court is to consider the interest of justice, whether the interest of justice requires the attendance of the adverse witness. In this case, the particular hearsay evidence was a lab report that essentially stated it was a beer bones lab report that stated that the substance that was located in a car that Mr

. Ferguson was driving was marijuana and stated what the weight of sixth of the 17 recovered bags were. Did not state what type of test was done, how the test was administered, what the laboratory procedures are, whether or not the analysts had to use some specialized knowledge or judgment and interpreting the results. And these are the types of concerns that the Supreme Court had in Melinda's Diaz and the lab reports and whether or not they're inherently reliable. In this case, Judge Hudson simply found over my objection that the lab report came on a stationary and it was therefore reliable. The judge made no determination as to why the results themselves are reliable or why it was not necessary to have the analyst appear. There was no discussion on the record at that point at the time that the judge overruled my objection and allowed the evidence in or allowed the arresting officer to testify about what the report said. The court should have conducted the full balancing test under at least in my view under Dazwell, but why don't you have a harmless error situation here given the items that were seized, the defendant's own statement that he sells marijuana. This isn't a case of mistake and where the court principle here in Dazwell is reliability, at least as expressed by the court. Why isn't this harmless error? Well, I think although the court or as Dazwell says, reliability is a critical factor, it's not the only factor that the court is to consider. If you look at the evidence in the way that it came in, I agree that this is not a case like Dazwell where the only evidence that the court relied on to find that defendant and violation was the report itself. There's certainly in this case more evidence. However, the report, first of all, the officer, and I think it's important to point this out, which I did in my briefs, is that the officer came to court that day with the report. And there was no other copy of the report. The officer had the report in his hand while he was testifying. And the fact that he had it in his hand, he knew what the results were, influences testimony. So if it influences testimony about not only what the report said, but also the nature of the substance that was found. What about the defendant's own statement that he sells marijuana? Well, I think that statement is problematic. However, the odor of marijuana at the traffic stop. Well, the officer did testify that there was an odor of marijuana, but on cross, he was unable to determine whether or not it was burnt marijuana or unburnt marijuana

. Although there were missions from Mr. Ferguson that he did smoke marijuana earlier. And I think that goes back to the issue of harmless errors that when you take look at the evidence, including Mr. Ferguson statements that Judge Hudson apparently found credible that he actually made those statements, is that there's an addition of use as well as distribution. And so when you have, I would say equal evidence on distribution and use, it's particularly important that the court is take certain precautions before admitting here say evidence or at least conduct the balancing test. I'm sorry, is your argument in response to Judge Keenan now and me that he would have admitted to possession, but you're here on appeal because the sentence reflects the district court's belief that he was also engaged in distribution. Is that what it comes down to? Well, my argument is that where there's, he was charged with possession with intent to distribute marijuana. And I think that there was evidence about both possession and distribution. And when it's a close question. Okay, I'm sorry, I thought you were sort of conceding that if, that if, if we were only here on possession, then it clearly would be harmless. I'm not, you're not saying that that's how I'm in turn understand that you're on earth. What I'm trying to express is that in a case like this where clearly there's more evidence than in does well where there was just the report. Even in a case like this when you're dealing with a violation hearing, a defendant has certain due process rights at that violation hearing. I do agree that Mr. Ferguson statement was problematic. However, at the time, well, first of all, at the time that the evidence was admitted, the evidence meaning the report was admitted, the evidence about Mr. Ferguson statement had not been put before the court. And we had challenged or I had challenged the reliability of the report. And the officers, the arresting officer's ability to testify about what was in the report

. The judge without conducting the balancing test and without hearing the statement that he later found Mr. Ferguson to make allow the evidence in. And at the, especially important at a violation hearing that's before the district court that these findings be made by the district court first. So that if issues like at missibility of hearsay evidence are appealed that there is a record that provides meaningful review for this court to determine whether or not the interest of justice required. The, the person to appeal are the person to appear. I'm sorry. And in this case, again, judge, Hussin just strictly made a reliability determination. And does well clearly states that it's more than just reliability. I think the additional evidence that was located in the car in addition to Mr. Ferguson statement goes towards the reliability prong of it. But there was no discussion about why the analyst was not made available, whether it was going to cause some undue delay, although the analyst is located within a mile, the federal courthouse. It was just the results are on stationary and I find it reliable. And I think that's just problematic. The government argues in its brief that this test can be implicit that I think it's clear that judge Hudson did not explicitly conduct this balance inquiry. And so therefore the government advances in its brief that the test should be implicit. And if you look at the language and more C versus brewer, which is also coded in baswell, it states that the court is to specifically find good cause. And that the court is to balance the defendant's interest in and cross the eminion in a verse witness versus the government's interest and denying it. And it just it simply was not done here. And it's important to have an explicit test so that again, there's meaningful review in this court

. So you're asking us to send it back to the district court. Correct for. I think that's the appropriate solution. And then the report will be with the expert. It may very well be and then that will be a different issue. I do think that when you're dealing with a violation hearing or a defendant clearly has a right to do process and their liberty is that stake. When you're choosing to admit hearsay evidence and hearsay evidence is important because it could be prejudicial and completely damaging to the defendant without having the benefit of cross examination. So it is important for the judge to conduct its tests and it's not an arduous test. At the point where I objected to the admission of the lab report, judge Hudson could have asked me at that point where why do you need to cross examine the analyst and then I would provide the reasons. Well, I believe that there's evidence that I could obtain from the analyst regarding the accuracy of the results, how the test was conducted, which test were conducted, how the evidence was preserved. What the packages looked like, what weight was in the packages. I mean, these are questions that I could not have asked the arresting officer. And the only choice that was used before in terms of notice was for having marijuana that day in his car. Correct. For a chest or field, yes, for the chest or field charges. That's right. Yes. So, and after I make that proper, then the government, the judge could ask the government to respond, well, why did you not provide the analyst here and they would give whatever response they felt was appropriate. And the judge at that point can then say, well, the interests of justice either require the attendance of the analyst or does not require the attendance of the analyst

. This is not a complicated thing that that judges on the district court level need to do. So, your point has the stance now that only inquiry would be, is it on letterhead? Essentially for lab reports. Right. For lab reports, if it's on letterhead, then it's admissible. At least is what explicitly was said by the district court. Right. And again, even that in addition to it just simply relying on reliability, the judge can make any findings as to why the test itself. Irrespective of the fact that it was on stationary, why the test procedure itself was reliable. And I don't think the judge could have made that finding because of the bare bones nature of the of the lab report, which is on page 71 of the joint opinions. If you look at it, it just says marijuana. And what the weight of six of the 17 bags were. It doesn't say, this is the test that was done. And this is why the test is accurate or why there's a slight chance of error. But there's just nothing there that I could effectively cross examine the arresting officer on. He was certainly not qualified to testify about the results of the lab report, including course, chain of custody as well. That's correct. There are no further questions. I'll reserve the remainder of my time. Thank you

. Yes, Mr. Moore. May I please the court. My name is Michael Moore and I represent the United States in this matter. The certificate of analysis that issue in this case was reliable because it was corroborated by overwamping and uncontradicted evidence. That evidence consisted not only of officer McDonald's observations and light of his training experience, but the defendant's possession of things that the district court noted were tools of the drug trade. And most importantly, the defendant's own admissions that the substance he possessed was marijuana. So because of that overwhelmingly reliable corroboration and because there was no proper on the record from Mr. Covington as to what he hoped to achieve. You said he admitted that the substance was marijuana. Mr. Covington admitted that the substance involved that was taken from his car was marijuana, yes, when the officer interviewed him. And again, the evidence on all of those issues was uncontradicted by Mr. Covington. And because of that overwhelmingly reliable corroboration and again in the absence of any proper on the record as to what Mr. Covington hoped to achieve through cross examination. The district court not only did not abuse its discretion in admitting the evidence, but for that same reason, any error that was made in admission of the evidence was certainly harmless beyond all reasonable doubt. Why didn't you call them pardon me? Why didn't the government call the witness? Well, that's outside the record, but the government received the certificate of an outsource from the officer about five minutes before defense counsel did. So how could the government go forward with the with the hearing? Well, in other words, you got a you got a revocation hearing schedule of what two or three weeks in advance at least, right? Yes, sure

. And so the government has to prepare its case and preparing its case includes contacting the witnesses, making sure you've got your exhibits all lined up, preparing your witness. I realize it's not a, you know, it's not a racketeering trial, but still it's an adversarial proceeding before United States district judge. And I would have assumed that the government would take the rudimentary steps. And I don't mean this is criticism of you or of your office, but I mean, it's kind of shocking that you prepared to go forward before a federal district judge and you just get the document five minutes before you handed over to the defense lawyer. Well, no way to run a railroad, I guess is what I'm saying. Well, certainly, ideally, the government would have been able to obtain the certificate of analysis before then. However, also, it's not often that this issue gets raised. And in fact, we were unaware of the does well issue until it was actually raised during the hearing. I grant you this circuit has only in the last 18 months or two years or so taken rule 32.2 seriously. Because the defense bar takes it seriously now, right? I mean, that's how the law supposed to work. Certainly, but we won't see many cases like this is what you're telling us. I would say that certainly had we been aware of part of the hearing of the does well issue is going to be raised, we might have taken a different approach. And you're taking a different approach these days. Yes, Your Honor. Okay. However, it's also important that neither the substance or the text of rule 32.1 nor does well suggest that there's some type of hermetic seal between the issue of reliability and the issue of why the government can't call the witness. In fact, those two things are really joined at the hip and the more reliable the evidence is the more compelling or the less compelling the reason for that the government has to call the witness

. You agree that need alone does not factor into your reliability, does it pardon me or need the government's need. In other words, you're in a lurch five minutes before. In other words, your need and urgency does not equate to reliability, does it? No, no, you're well, does it. It doesn't equate to reliability, but at the same time, we can't find a way to deal you out. Well, to get it in just because you're a lurch can we? No, Your Honor. I would completely agree with that. However, even the the Curtis case from the 10th Circuit, which discord sites in does well explicitly states that. That the two approaches towards balancing versus only considering reliability overlap. And in fact, the Curtis case explicitly states citing another case from the 3rd Circuit United States, be loyal that the release is interest in confrontation, maybe so overwhelmed by the hearsays reliability that the government doesn't need to show cause for a declarant's absence. But that's what does well says, is it? That says good cause. Am I misrequilling does well? Well, that's not what does well says. But does well, however, does well does not suggest that good cause can that overwhelming reliability cannot constitute good cause. And that was implicit in the court district court. And the balance of the test, if you don't have to address the issue at all of cause. Well, I understand your argument. I think it's a good one that if it's if the reliability is so high, the showing of good cause is lessened. Because balancing is is is exactly that, but you can't just read out. You don't have a balancing test. If you don't consider a good cause

. Do you? Well, reliability can constitute good cause where it's this overwhelming. What? Well, there's nothing. With the logic behind that. The government's assumption that this evidence is so reliable that we don't have to do. Well, it's not an assumption. It's a conclusion that's based on the overwhelming. Now, that's a good decision to make. The court does the balancing, not the government. But the court had the rules reversed there. But the court had evidence before it that it could use to make that balancing. It wasn't the government unilaterally making that decision. What Judge Hudson had before him at the time that he made his decision on admission of this certificate of analysis. And that discussion really has to be taken in its totality because the issue of Dozwell was raised twice during the hearing. He said, not only do I have a certificate of analysis that bears in dish of reliability in that it's on letterhead, which by itself would not be sufficient. But he also said the substance that was at issue here was identified by an experienced police officers being marijuana. It was packaged consistent with the way marijuana is just packed. That's an extra normalist there argument. But I don't think that addresses why the government didn't bring the witness. And that's what good cause is

. Why didn't the government produce the witness? You know, it's just that this happens. You know, I don't mean to cite my experience. I've just seen this for years and years and years in the state court context rather than the federal. But where the government just comes in and thinks it doesn't have to play by the rules. And it just seems to me that. Dozwell says there's a balancing test. You should say to the court. You know, why you meet that test or why you don't and not not rely on the court to bail you out because the there's other overwhelming evidence. It seems to me you have to address the test. Just everybody has has to play by the rules. And I'm in complete agreement with your honor. I would just submit that the rules are that the reliability can be a factor in considering good cause. In common, good condition of good cause. Yes, sure. And there's nothing in Dozwell or in rule 30.32.1 that states otherwise. Well, but does well suggest otherwise because it talks about the due process confrontation right. Does well is very specific in saying this is important. That taking the witness out of the calculation and talks about the due process and the confrontation rights. And if does well is discussing it in the terms of a constitutional right, then it seems to me that your argument gets weaker and weaker. It is indeed important and the right to confrontation is important. But the right to confrontation is designed to serve an end, which is to test the reliability of the evidence. And that's why the third circuit is explicitly stated that the interest that the release is interest in confrontation can be overwhelmed by the hearsays reliability such that there's no need for showing cause. And indeed that the second circuit is said that. Well, I hope this court doesn't. Yes, you're in the more circuit. Judge, Judge Kennedy is talking to you about the law of the fourth circuit. And we as a reviewing court need the prosecutors good faith assistance in ensuring that district courts do what they're required to do. And that is the conduct balancing test. And we don't want these cases to be tried on the basis that it's going to be harmless. Let's be honest. That's what we're concerned about. Because if you're going to a hearing, a revocation hearing with the idea, and again I'm not saying you did this. But if everybody goes and think everybody on the government side and on the other side of the bench goes and thinking, oh, well, whatever we do here is going to be okay because at the end of the day it's going to be harmless. That's no way to run a railroad. And so, you know, it's one thing to stay up and say to the judge, judge, you know, my chemist got called out at the last minute last night. She's, she's up in, you know, in Charlottesville testifying in an important case up there

. That taking the witness out of the calculation and talks about the due process and the confrontation rights. And if does well is discussing it in the terms of a constitutional right, then it seems to me that your argument gets weaker and weaker. It is indeed important and the right to confrontation is important. But the right to confrontation is designed to serve an end, which is to test the reliability of the evidence. And that's why the third circuit is explicitly stated that the interest that the release is interest in confrontation can be overwhelmed by the hearsays reliability such that there's no need for showing cause. And indeed that the second circuit is said that. Well, I hope this court doesn't. Yes, you're in the more circuit. Judge, Judge Kennedy is talking to you about the law of the fourth circuit. And we as a reviewing court need the prosecutors good faith assistance in ensuring that district courts do what they're required to do. And that is the conduct balancing test. And we don't want these cases to be tried on the basis that it's going to be harmless. Let's be honest. That's what we're concerned about. Because if you're going to a hearing, a revocation hearing with the idea, and again I'm not saying you did this. But if everybody goes and think everybody on the government side and on the other side of the bench goes and thinking, oh, well, whatever we do here is going to be okay because at the end of the day it's going to be harmless. That's no way to run a railroad. And so, you know, it's one thing to stay up and say to the judge, judge, you know, my chemist got called out at the last minute last night. She's, she's up in, you know, in Charlottesville testifying in an important case up there. That's one thing. But to just come in and say, oh, judge, I noticed the officer brought the lab report with him to court this morning and here it is. I don't think we want to see cases handled in that manner. Well, you see, and so that's, I think that's what Judge Keenan is trying to get you to focus on. Yeah, the third circuit may have said something, the tenth circuit may have said something, but we want the district courts in this circuit to take the due process confrontation, right? Seriously, as I know you do, as I know the government does. After all, this guy got 42 months. Yes, Your Honor. He got 42 months. This is like a new criminal conviction, right? And so it ought to be treated like the serious matter that it is. And certainly the, we understand the court's concerns, but it is important to remember that confrontation is a means to an end. And that end is ensuring the reliability of the other end is ensuring the fairness of the proceeding. That's the end. And we all know enough stories about alcoholic or drug addicted or purely incompetent lab technicians all over the country. It's not a slam dunk. Just because you have the state seal on a lab report doesn't mean the man or woman who did that knew what he or she was doing or was sober when she did it. But we know that. That that may be true in other cases. We don't know that here, but in any event in this case, we had somebody who's uncontradicted testimony established all the points that the government laid out earlier. And in fact, given that overwhelming reliability, any reason that the government profored for its inability to call the witness would have been sufficient under the law

. That's one thing. But to just come in and say, oh, judge, I noticed the officer brought the lab report with him to court this morning and here it is. I don't think we want to see cases handled in that manner. Well, you see, and so that's, I think that's what Judge Keenan is trying to get you to focus on. Yeah, the third circuit may have said something, the tenth circuit may have said something, but we want the district courts in this circuit to take the due process confrontation, right? Seriously, as I know you do, as I know the government does. After all, this guy got 42 months. Yes, Your Honor. He got 42 months. This is like a new criminal conviction, right? And so it ought to be treated like the serious matter that it is. And certainly the, we understand the court's concerns, but it is important to remember that confrontation is a means to an end. And that end is ensuring the reliability of the other end is ensuring the fairness of the proceeding. That's the end. And we all know enough stories about alcoholic or drug addicted or purely incompetent lab technicians all over the country. It's not a slam dunk. Just because you have the state seal on a lab report doesn't mean the man or woman who did that knew what he or she was doing or was sober when she did it. But we know that. That that may be true in other cases. We don't know that here, but in any event in this case, we had somebody who's uncontradicted testimony established all the points that the government laid out earlier. And in fact, given that overwhelming reliability, any reason that the government profored for its inability to call the witness would have been sufficient under the law. How long is it going to take us to get you to talk about harmless error? I like your stick to it to this, but. Well, Your Honor, if you really want to win this case on the basis that there was no error. Well, for those same reasons, in fact, the government could have tried the revocation hearing on the officer's testimony alone without the lab analysis at all. And you should have been required to do. And precisely the same result would have obtained. And in fact, that kind of underscores the pointlessness of any remand here. How do you know that? You said so, so just so confidently. How do you know you weren't that confident at the revocation hearing someone so that you make sure that the report was admitted? Well, because we could have proceeded on the officers that- You could have, but you didn't want to take that risk, did you? And the risk is you may not have been able to do so. Well, again, I think the issue is more that the way things unfolded during the hearing. What's your burden now on harmless error? But harmless beyond a reasonable doubt. Are you on a reasonable doubt now? Yes, Your Honor. You had doubt that day. Well, I don't think that that's the case because the government was never really given the opportunity to make a record on that issue. You did, you know what I'm saying? You, you, you could have said, which I think kind of fair. Listen, I'm just getting this report in five minutes. I have a head of chance to look at it. I can't even vouch for it as an officer of the court or anything. You know, I'm going to use that. Testifying

. How long is it going to take us to get you to talk about harmless error? I like your stick to it to this, but. Well, Your Honor, if you really want to win this case on the basis that there was no error. Well, for those same reasons, in fact, the government could have tried the revocation hearing on the officer's testimony alone without the lab analysis at all. And you should have been required to do. And precisely the same result would have obtained. And in fact, that kind of underscores the pointlessness of any remand here. How do you know that? You said so, so just so confidently. How do you know you weren't that confident at the revocation hearing someone so that you make sure that the report was admitted? Well, because we could have proceeded on the officers that- You could have, but you didn't want to take that risk, did you? And the risk is you may not have been able to do so. Well, again, I think the issue is more that the way things unfolded during the hearing. What's your burden now on harmless error? But harmless beyond a reasonable doubt. Are you on a reasonable doubt now? Yes, Your Honor. You had doubt that day. Well, I don't think that that's the case because the government was never really given the opportunity to make a record on that issue. You did, you know what I'm saying? You, you, you could have said, which I think kind of fair. Listen, I'm just getting this report in five minutes. I have a head of chance to look at it. I can't even vouch for it as an officer of the court or anything. You know, I'm going to use that. Testifying. You could have done that, which seemed to be the fair thing to do. Instead, you insisted an urge to court to do that. And I think maybe perhaps error. Now you're saying that, oh, this would have happened. It would have been a failure to complete beyond a reasonable doubt. Are you sure of that? Well, I think it would be fair to say that the government offered the, offered the report and evidence. The council raised the DOZ well issue for the first time. And then there was a colloquy between the court and council. Please stand for the first time. I didn't. What else would they have had a chance to do that? Well, the government wasn't aware part of the hearing that the DOZ well issue. But you said that that little in your window was that, is it they were, they were necklaces or something. No, there was no. That's what you said. No, you're right. I wasn't, I wasn't suggesting that there was any duty. Well, that's however, a reasonable inference to be drawn from that reference that you made. Well, you're on her and I did, I certainly did not mind to suggest that. That's the difference

. You could have done that, which seemed to be the fair thing to do. Instead, you insisted an urge to court to do that. And I think maybe perhaps error. Now you're saying that, oh, this would have happened. It would have been a failure to complete beyond a reasonable doubt. Are you sure of that? Well, I think it would be fair to say that the government offered the, offered the report and evidence. The council raised the DOZ well issue for the first time. And then there was a colloquy between the court and council. Please stand for the first time. I didn't. What else would they have had a chance to do that? Well, the government wasn't aware part of the hearing that the DOZ well issue. But you said that that little in your window was that, is it they were, they were necklaces or something. No, there was no. That's what you said. No, you're right. I wasn't, I wasn't suggesting that there was any duty. Well, that's however, a reasonable inference to be drawn from that reference that you made. Well, you're on her and I did, I certainly did not mind to suggest that. That's the difference. However, the, the factor remains that regardless of whether, because that was the first time that was raised, the government was pretty much taken by surprise. And the court took over. It's actually, it just appears what you're saying is we didn't have any idea that she wouldn't roll over and waver constitutional rights. You know, that's what you're saying. Well, well, you're on her. That's not a basis for not following the rules. Well, you're on her and after that, the district court pretty much made the record on it and said that the, that it was going to be admissible. We're not suggesting that, that we expected the defense council roll over. However, we certainly can't predict everything that's going to happen during the course of what is normally a fairly routine supervised release violation hearing. But certainly going forward, we would handle it differently. I guess maybe, maybe what, what I'm trying to say and, and I don't mean to invade too much of your time. I think really at least, I think the fourth circuit is trying to send the government a message in these cases. And I just hope you receive it. Yes, Your Honor. And, but in any event, the government would contend that because of the other evidence that was admitted at the hearing that admission of the certificate of analysis was indeed harmless error. And for that, and the other reasons noted in our brief, we would ask that the, that the court affirmed both the judgment and the sentence. Can you tell me what explicit finding of facts that were made by the district court beyond the report. Find these of fact in terms of you said these other things that were been harm is there were found explicitly about a court. As to the substance that was involved

. However, the, the factor remains that regardless of whether, because that was the first time that was raised, the government was pretty much taken by surprise. And the court took over. It's actually, it just appears what you're saying is we didn't have any idea that she wouldn't roll over and waver constitutional rights. You know, that's what you're saying. Well, well, you're on her. That's not a basis for not following the rules. Well, you're on her and after that, the district court pretty much made the record on it and said that the, that it was going to be admissible. We're not suggesting that, that we expected the defense council roll over. However, we certainly can't predict everything that's going to happen during the course of what is normally a fairly routine supervised release violation hearing. But certainly going forward, we would handle it differently. I guess maybe, maybe what, what I'm trying to say and, and I don't mean to invade too much of your time. I think really at least, I think the fourth circuit is trying to send the government a message in these cases. And I just hope you receive it. Yes, Your Honor. And, but in any event, the government would contend that because of the other evidence that was admitted at the hearing that admission of the certificate of analysis was indeed harmless error. And for that, and the other reasons noted in our brief, we would ask that the, that the court affirmed both the judgment and the sentence. Can you tell me what explicit finding of facts that were made by the district court beyond the report. Find these of fact in terms of you said these other things that were been harm is there were found explicitly about a court. As to the substance that was involved. Yes. What was the finding what was the finding on the record that the court made to support what you say would be. Homeless error because it without the report. The report explicitly found report comes in because it's on stationery and has the indicia of reliability. And every God, what's the explicit finding of fact you said it would support otherwise the beyond reasonable doubt burden you have. That the officer who made the stop and found the marijuana officer McDonald's court made that fact finding of fact. I'm not talking about the testimony. I'm talking about the finding of fact on the record. We just we reviewed the court when it was going through its findings with respect to the violation itself. Right. Found that officer McDonald was credible. I believe it found that his testimony was uncontradicted and it was uncontradicted because there was no defense evidence on it. But he found that office in light of officer McDonald's training and experience that his testimony that the substance involved was in fact marijuana he credited that he also noted that his testimony was corroborated by the fact that it was a substance. He said he believed it was marijuana did it based on his experience. Did he say officer McDonald had said that and he engaged in a colloquy with the defendant on the scene where he. You know the defendant denied that the substance was marijuana and officer McDonald said look we can smell it. And the substance was packaged in a manner that's consistent with distribution. The defendant had tools of the drug trade with them such as scales and a grinder and most importantly. The defendant made post Miranda admissions to officer McDonald that the substance was in fact marijuana so in light of all that

. Yes. What was the finding what was the finding on the record that the court made to support what you say would be. Homeless error because it without the report. The report explicitly found report comes in because it's on stationery and has the indicia of reliability. And every God, what's the explicit finding of fact you said it would support otherwise the beyond reasonable doubt burden you have. That the officer who made the stop and found the marijuana officer McDonald's court made that fact finding of fact. I'm not talking about the testimony. I'm talking about the finding of fact on the record. We just we reviewed the court when it was going through its findings with respect to the violation itself. Right. Found that officer McDonald was credible. I believe it found that his testimony was uncontradicted and it was uncontradicted because there was no defense evidence on it. But he found that office in light of officer McDonald's training and experience that his testimony that the substance involved was in fact marijuana he credited that he also noted that his testimony was corroborated by the fact that it was a substance. He said he believed it was marijuana did it based on his experience. Did he say officer McDonald had said that and he engaged in a colloquy with the defendant on the scene where he. You know the defendant denied that the substance was marijuana and officer McDonald said look we can smell it. And the substance was packaged in a manner that's consistent with distribution. The defendant had tools of the drug trade with them such as scales and a grinder and most importantly. The defendant made post Miranda admissions to officer McDonald that the substance was in fact marijuana so in light of all that. Any error that was committed in the admission of the certificate of analysis was indeed harmless beyond a reasonable doubt. And if there are no other questions then I would ask the courts to affirm the judgment of the district court. Thank you very quickly. I think it's more of a face to town. I take it the state charges were dismissed on all costs after these proceedings last spring. I'm actually not certain I had some contact with the Commonwealth Attorney's office about it and I think they they may well have decided that given the federal sentence the game wasn't worth or it wasn't worth. Yeah, not worth the can bringing him in but and I'm just curious is it the practice in the Eastern district or in the Richmond division or wherever in situations like these. And I want you to talk out of school but but in a lot of districts. The revocation hearing is held off until the state proceedings take place that's that is that is normally what happened that is normally our practice and procedurally I'm of only got 14 seconds left but I'm glad to address this. Um procedurally this case was pretty unusual and that if the court recalls there were actually two different traffic. Right. You need to get in both the street. Well, it was even. And he the way it ended up happening was that he was arrested in Chesterfield bonded out. Then he was arrested in Richmond for some reason Chesterfield didn't revoke his bond. So he found it out again in Richmond and that's when his probation officer found out about it and he was he was detained in federal custody. And we've experienced has taught us that shuttling people back and forth particularly between two different jurisdictions. Usually doesn't work out well and our court also does not like to delay probation violations or supervised release violations for that long but it is a highly unusual instance and normally we defer to whatever happened with the state court. And normally you just walk in with the judgment of conviction right

. Any error that was committed in the admission of the certificate of analysis was indeed harmless beyond a reasonable doubt. And if there are no other questions then I would ask the courts to affirm the judgment of the district court. Thank you very quickly. I think it's more of a face to town. I take it the state charges were dismissed on all costs after these proceedings last spring. I'm actually not certain I had some contact with the Commonwealth Attorney's office about it and I think they they may well have decided that given the federal sentence the game wasn't worth or it wasn't worth. Yeah, not worth the can bringing him in but and I'm just curious is it the practice in the Eastern district or in the Richmond division or wherever in situations like these. And I want you to talk out of school but but in a lot of districts. The revocation hearing is held off until the state proceedings take place that's that is that is normally what happened that is normally our practice and procedurally I'm of only got 14 seconds left but I'm glad to address this. Um procedurally this case was pretty unusual and that if the court recalls there were actually two different traffic. Right. You need to get in both the street. Well, it was even. And he the way it ended up happening was that he was arrested in Chesterfield bonded out. Then he was arrested in Richmond for some reason Chesterfield didn't revoke his bond. So he found it out again in Richmond and that's when his probation officer found out about it and he was he was detained in federal custody. And we've experienced has taught us that shuttling people back and forth particularly between two different jurisdictions. Usually doesn't work out well and our court also does not like to delay probation violations or supervised release violations for that long but it is a highly unusual instance and normally we defer to whatever happened with the state court. And normally you just walk in with the judgment of conviction right. Yes, Your Honor. On a on a subsequent offense. Yes, finally north of 90% of the time that's the way these play out and it didn't play out that way this time for the reasons I just went in. I just went over. Thank you for that explanation. Just one question. Just when you know when you're augmenting a homeless air in terms of complying with Dozwell. You know talk about lesson learned I guess in a sense you know this is homeless air is not much of a lesson because of the evidence as you say is very strong and you still stuck by that the whole time. I guess the court almost urge you to get to homeless air that this really was so reliable but that calls wasn't even required. And then if all else fails the safety net of homeless air. Bails you out anyway doesn't so it's not much of a lesson even from this court. Well, I don't know that the purpose of the purpose of a criminal appeal is teaching a lesson. At sometimes there are lessons that are learned that are quite valuable but the questions here are the purpose of this appeal is to answer the legal questions that are before the court. You say you don't know what a come into an appeals court is an invaluable and teach a lesson to the people who are responsible for prosecuting people and putting people in jail often with credible sentences might not have some redemptive value to our society. It has an ancillary it certainly has an ancillary teaching effect but it's not the primary purpose of the proceeding. Well, I can understand we don't want to get into your philosophy we'll leave it at that. Thank you very much. Thank you. Judge Davis the second address your one of your last questions to the government

. Yes, Your Honor. On a on a subsequent offense. Yes, finally north of 90% of the time that's the way these play out and it didn't play out that way this time for the reasons I just went in. I just went over. Thank you for that explanation. Just one question. Just when you know when you're augmenting a homeless air in terms of complying with Dozwell. You know talk about lesson learned I guess in a sense you know this is homeless air is not much of a lesson because of the evidence as you say is very strong and you still stuck by that the whole time. I guess the court almost urge you to get to homeless air that this really was so reliable but that calls wasn't even required. And then if all else fails the safety net of homeless air. Bails you out anyway doesn't so it's not much of a lesson even from this court. Well, I don't know that the purpose of the purpose of a criminal appeal is teaching a lesson. At sometimes there are lessons that are learned that are quite valuable but the questions here are the purpose of this appeal is to answer the legal questions that are before the court. You say you don't know what a come into an appeals court is an invaluable and teach a lesson to the people who are responsible for prosecuting people and putting people in jail often with credible sentences might not have some redemptive value to our society. It has an ancillary it certainly has an ancillary teaching effect but it's not the primary purpose of the proceeding. Well, I can understand we don't want to get into your philosophy we'll leave it at that. Thank you very much. Thank you. Judge Davis the second address your one of your last questions to the government. Both charges and Chesterfield and Richmond were not lost after this hearing and it is frequent that we deal with. Violations that come in on charges that have not been disposed of what happens is the person is arrested probation officers notify that they've been arrested. They issue a warrant the person is arrested they're brought into custody and they don't get released because of the presumption that they be detained once they are charged with the violation. So it happens frequently that we are faced with the situation where we're dealing with violations on a on a lower standard of proof for charges that have not been disposed of. And I think that's why it's especially problematic for the government to I want to say play kind of fast and loose with with the evidence and what they're what their burden is at these violation hearings. The government stated that well we got the report just five minutes before defense counsel did if you look at the date of the report the date of the report is April 26. Mr. Ferguson was arrested two days before the hearing was on May 7. It's not in the record but I will state that I called not Mr. Moore but another a USA who actually did the hearing days before the hearing. To find out if there was going to be a lap report and then moments before the hearing here comes the lap report and not just a copy that I can keep in front of me but just a copy I can look at and hand back so the officer the arresting officer can testify about it while he's sitting in the in the witness box. I think that is just problematic I mean I think that underscores the the importance of this proceeding and why it is important for the district court to to make sure that before admitting hearsay evidence that this balancing test is conducted. The government states that well we didn't know that the Doz will issue was going to become an issue and again I didn't know was going to become an issue until I saw a copy of the the lap report moments before the hearing was to begin. And Doz will frankly I was decided in March of 2012 this hearing was in May of 2013. If I'm required to know about Doz will then certainly the government should know about Doz will as well and be prepared to at least state why the the analysts was not available or made to be available especially when it wouldn't would not have been difficult to make that person available they had the time to do it because the report was produced. I'm not sure what happened between April 26 and May 7 but that was certainly enough time for the government to get the report from Chesterfield or at least from the department of forensic science. Now with respect to the government's argument that the evidence was the remainder of the evidence was so reliable that that justified or constituted good cause for not producing the analyst. I would argue that the interest of justice does not rise and fall our reliability and that's essentially what the government is arguing so it's reliable is reliable but what about the other side of the scale there's a balance here and in Doz will was clear that reliability is a critical factor but it is not the only factor. I think what the government wants to say as well if there's other evidence that will make this report reliable then that's all we need to show that will constitute good cause

. I think if that's the role that this court adopts then it's going to tend to results and hearings that are not fair. And if the government is going to make the decision to come to court in a violation hearing and rely on hearsay evidence then they should be prepared to defend why they do not have the adverse witness available for testimony. And if the court has had any questions I can conclude. Thank you very much. Thank you so much. We'll come down and greet council and proceed to our next case