                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 14 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-30208

              Plaintiff - Appellee,              D.C. No. 3:10-cr-05530-BHS-1

  v.
                                                 MEMORANDUM *
RONDELL LOVE LEETH,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                             Submitted March 9, 2012 **
                                Seattle, Washington

Before: PAEZ and MURGUIA, Circuit Judges, and TUCKER, District Judge.***

       Appellant Rondell Love Leeth’s supervised release was revoked for use of

marijuana. Leeth appeals the district court’s admission of the telephonic testimony


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Josephine Staton Tucker, United States District Judge
for the Central District of California, sitting by designation.
of a technician from the laboratory that tested Appellant’s urine samples and

reported positive results. Appellant asserts that the admission of this testimony

violated his due process right to confrontation under Morrissey v. Brewer, 408 U.S.

471 (1972), and that the district court erred by failing to engage in the balancing

required under United States v. Comito, 177 F.3d 1166, 1170 (9th Cir. 1999).

Whether a defendant has received due process at a revocation hearing is a mixed

question of law and fact that we review de novo. United States v. Perez, 526 F.3d

543, 547 (9th Cir. 2008). “A due process violation at a revocation proceeding is

subject to harmless error analysis.” Id. (internal quotation marks omitted). We do

not recite the facts here as they are known to the parties. We affirm.

      “[E]very releasee is guaranteed the right to confront and cross-examine

adverse witnesses at a revocation hearing, unless the government shows good

cause for not producing the witnesses.” Comito, 177 F.3d at 1170 (citing

Morrissey v. Brewer, 408 U.S. at 489); see also Fed. R. Crim. P. 32.1(b)(2)(C)

(providing that a releasee 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”). When the releasee claims he has been denied the opportunity

to confront an adverse witness, we balance the releasee’s right to confrontation

against the Government’s good cause for denying it. United States v. Martin, 984


                                           2
F.2d 308, 310 (9th Cir. 1993). This balancing process is required when, as here,

the admission of testimony at a revocation hearing implicates the releasee’s interest

in full confrontation of an adverse witness, including the opportunity to observe the

witness’s demeanor. Cf. Beltran-Tirado v. I.N.S., 213 F.3d 1179, 1185-86 (9th Cir.

2000) (rejecting due process claim regarding admission of telephonic testimony at

a deportation hearing after weighing the competing interests of alien and

government).

      We need not, and do not, decide here whether the telephonic testimony was

hearsay. Even if it was not, we hold that Comito balancing was required in this

case because the telephonic testimony implicated Leeth’s interest in full

confrontation. The district court erred by failing to engage in the requisite

balancing of Leeth’s right to confrontation against the Government’s good cause

for failing to produce the technician in court. Comito, 177 F.3d at 1170. However,

“[w]e still must review the underlying question to determine if [Leeth’s]

confrontation rights were violated.” Id. Here, the importance of Leeth’s interest in

confrontation was significantly lessened by his opportunity to cross-examine the

technician via telephone. Additionally, the scientific nature of the technician’s

testimony permitted a credibility determination based on her credentials as opposed

to her demeanor. Moreover, the telephonic testimony was not critical to the


                                           3
outcome of the hearing as the laboratory testing was merely confirmatory of prior

testing by the United States Probation Office. For its part, the Government cited

two reasons for introducing telephonic testimony: (1) the distance between the

technician’s location, Richmond, Virginia, and the place of the hearing, Seattle,

Washington; and (2) the interruption to the technician’s work. On balance, the

Government’s good cause in failing to produce the technician in court outweighed

Leeth’s weak interest in in-person confrontation of the technician. Although the

district court committed error by failing to engage in the requisite balancing, this

error was harmless, as Leeth’s due process rights were not violated by the

introduction of telephonic testimony.

      Finding that exceptional circumstances are present, we order that the

mandate shall issue forthwith. See Fed. R. App. P. 41(b); 9th Cir. R. 41-1

Advisory Committee Note.

      AFFIRMED.




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