           Case: 15-13293   Date Filed: 09/28/2016   Page: 1 of 10


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-13293
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 5:06-cr-00092-MTT-CHW-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                versus

WILLIE EVANS, JR.,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                      ________________________

                            (September 28, 2016)

Before WILSON, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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       Defendant Willie Evans appeals the district court’s revocation of his

supervised release. On appeal, he argues that the district court abused its discretion

and violated his constitutional rights by admitting laboratory reports without the

testimony of the chemists who prepared them. After careful review, we affirm.

I. BACKGROUND

       In 2007, Defendant was sentenced to 188 months’ imprisonment followed

by four years of supervised release after pleading guilty to two counts of

possession with intent to distribute more than five grams of cocaine base, in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(viii). After several sentence

reductions, Defendant’s sentence was ultimately reduced to 81 months’

imprisonment.

       Defendant began his term of supervised release in November 2012, and

before the term expired, the probation officer filed a petition seeking revocation of

Defendant’s supervised release. According to the petition, Defendant had violated

mandatory conditions of his supervised release by: (1) violating the law by

committing the offenses of possession of cocaine, possession of marijuana,

possession of MDMA, and possession of methamphetamine; and (2) possessing or

using a controlled substance, namely testing positive for marijuana use following a

urinalysis test.




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      At the revocation hearing, Defendant admitted the second violation, but

contested the first violation. As a result, the Government called Monroe County

Sheriff’s Office Sergeant Michael Hull, who testified that he was on patrol on

April 17, 2015, when he noticed a large number of vehicles and people gathered in

a gas station parking lot. After running the license plate numbers of the vehicles in

the lot, one of the vehicles came back registered to an individual who had a

suspended driver’s license and an active warrant for her arrest. Sergeant Hull

approached that vehicle and arrested the driver. Because another officer detected

the smell of marijuana emanating from the car, Sergeant Hull asked the passenger

in the back seat of the car, later identified as Defendant, to exit the vehicle.

Sergeant Hull observed that Defendant’s eyes were blood shot, he was intoxicated,

and he smelled of marijuana.

      When Defendant did not comply with a search, Sergeant Hull placed him

under arrest. Upon searching Defendant’s person, Sergeant Hull found what he

believed to be two bags of marijuana, a bag containing nine MDMA pills, a bag of

crack cocaine, a bag of powder cocaine, and two bags of suspected

methamphetamine. Although he did not conduct any field tests on the substances,

Sergeant Hull’s conclusions were based on his 19 years of experience, multiple

drug arrests, narcotics sight identification classes, and over 2,000 hours of training.

He also stated that the packaging of the substances was consistent with the sale of


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illegal narcotics. Sergeant Hull logged the narcotics in with the Sheriff’s Office,

where the suspected marijuana was tested; the other narcotics were forwarded to

the Georgia Bureau of Investigation (“GBI”) for chemical analysis.

      At the revocation hearing, the Government then sought to admit the GBI

laboratory reports through the testimony of Sergeant Hull. Defendant objected to

the admissibility of the contents of the reports because the chemists who performed

the tests were not present to testify. Although Defendant acknowledged that the

Federal Rules of Evidence did not apply to revocation hearings, he asserted that the

district court must conduct a balancing test before determining whether to admit

hearsay evidence. The district court reserved ruling on the objection until the

conclusion of Sergeant Hull’s testimony. Sergeant Hull testified that the

laboratory reports confirmed that the substances Defendant possessed were

cocaine, methamphetamine, and marijuana.

      On cross-examination, Defendant questioned Sergeant Hull about some

discrepancies between his initial identifications of the substances and what the GBI

had ultimately determined the substances to be. Sergeant Hull admitted that he had

initially suspected that two bags containing a pink substance were

methamphetamine, but the laboratory report listed the substance as ethylone, not

methamphetamine. Of the two bags that he had initially suspected were cocaine

and cocaine base, the GBI confirmed that one of the bags was cocaine. Sergeant


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Hull had also initially identified pink and yellow tablets as MDMA pills, but the

GBI concluded that those were instead methamphetamine.

       The district court admitted the laboratory reports over Defendant’s objection

that there was no live testimony from the preparers of the report and no

corroboration for the information contained in those reports. The Government

responded that there was no reason to question the reliability of the reports and the

district court acknowledged that there was nothing unusual about the process by

which the reports were generated. The Government further explained the

impracticability of routinely requiring chemists to testify about their reports, given

the busy schedules of the latter and the more relaxed standard of proof for

revocation proceedings. The district court acknowledged the difficulty of

scheduling chemists to testify as a routine matter, given their workload, but

acknowledged that live testimony from a chemist should be required in a

revocation proceeding when the circumstances warranted it. The court concluded

that the circumstances in this proceeding did not mandate calling the chemists to

testify.

       Defendant testified on his own behalf. According to him, the drugs were

found in the backseat of the car, not on his person. He also denied that the drugs

belonged to him. However, he admitted that he had used marijuana approximately




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25 days before submitting to the urinalysis test on May 4, 2015, which time period

was close to the date when he was arrested.

      After Defendant’s testimony, the district court concluded that the

Government had established by a preponderance of the evidence that Defendant

was in possession of cocaine and methamphetamine. In short, the district court

concluded that the Government had met its burden of establishing the first

violation. Because the first violation was a Grade B violation and Defendant’s

criminal history category was VI, the district court calculated a guideline range of

21 to 27 months’ imprisonment. Consequently, the district court revoked

Defendant’s supervised release and sentenced him to 24 months’ imprisonment.

II. DISCUSSION

      The applicability of the Federal Rules of Evidence to a supervised release

revocation hearing is a question of law that we review de novo. United States v.

Frazier, 26 F.3d 110, 112 (11th Cir. 1994). We review evidentiary decisions, in

addition to the revocation of supervised release, for an abuse of discretion. United

States v. Ridgeway, 319 F.3d 1313, 1315 (11th Cir. 2003) (revocation of

supervised release); United States v. Novaton, 271 F.3d 968, 1005 (11th Cir. 2001)

(evidentiary decisions).

      Under 18 U.S.C. § 3583(e), a district court may revoke a defendant’s

supervised release and impose a sentence of imprisonment if the district court


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determines by a preponderance of the evidence that the defendant has violated a

condition of supervised release. 18 U.S.C. § 3583(e)(3).

      Although the Federal Rules of Evidence do not apply to supervised release

revocation proceedings, the admission of hearsay evidence is not “automatic” and

a defendant is entitled to certain minimal due process rights, including the right to

confront and cross-examine witnesses. United States v. Frazier, 26 F.3d 110, 114

(11th Cir. 1994). To determine whether or not to admit hearsay, a district court

“must balance the defendant’s right to confront adverse witnesses against the

grounds asserted by the Government for denying confrontation.” Id. The hearsay

evidence must also be reliable. Id. The district court’s failure to conduct the

balancing test constitutes error. Id. However, we have concluded that a due

process violation is harmless if there is other sufficient, properly considered

evidence, which establishes that the defendant violated the terms of his supervised

release. Id.

      Here, the district court did not abuse its discretion or violate Defendant’s due

process rights by admitting the laboratory reports without the testimony of the

chemists who prepared them. The record shows that the district court and the

parties thoroughly discussed the requirements of the balancing test as established

by Frazier, and that the court carefully considered the issue.




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       As to any lack of reliability in the GBI’s determination that the seized

substances were, in fact, cocaine and methamphetamine, Defendant pointed to

nothing that would suggest that the GBI’s determination was unreliable. It is true

that the arresting officer, based on many years of experience and training, believed

that, in addition to marijuana, the substances he discovered consisted of cocaine,

methamphetamine and MDMA pills, whereas the lab report agreed that the

substances included the first two items, but not the third. But that discrepancy

between how the officer assessed the identity of the drugs and what the lab report

revealed the substances to be does not undermine the reliability of the lab report.

If anything, that the lab report identified one of the substances as ethylone, which

is not a controlled substance, suggests that the chemist was exacting in his

examination. In fact, the district court noted that there was no assertion or

indication that the evidence was improperly handled or that the lab reports were

compiled in anything but the usual and typical manner. Cf. United States v.

Taylor, 931 F.2d 842, 847 (11th Cir. 1991) (“Admission of hearsay evidence in

probation hearings does not violate due process, as long as it bears some indicia of

reliability.”).

       As to the Government’s practice of not routinely requiring chemists to

appear at revocation hearings, absent some particular reason to do so, the district

court indicated that the busy schedules of the two chemists involved would not, by


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itself, justify a failure to call them if there were some genuine question as to the

reliability of their reports. But in this case there was no such question. And the

logical extension of Defendant’s position is that chemists should be required to

offer live testimony in every case, which would mean ignoring the principle

permitting admission of reliable hearsay evidence in a revocation proceeding.

       In short, on the facts of this case, we conclude that the district court did not

abuse its discretion nor violate Defendant’s due process rights by admitting the

laboratory reports.1 To the extent Defendant also argues that his Sixth Amendment

rights were violated because he was not being permitted to cross-examine the

chemists, this argument is unavailing. In United States v. Reese, 775 F.3d 1327,

1329 (11th Cir. 2015), we held that the Sixth Amendment does not apply to

supervised release revocation proceedings. Id. As a result, we determined that the

district court did not err by admitting laboratory reports through the testimony of a

police officer rather than through the testimony of the chemist who performed the

test. Indeed, we noted that eight other circuit courts had similarly ruled. Id.

Defendant likewise cannot show that the admission of the laboratory reports

violated his Sixth Amendment rights.




1
  Because we conclude that the district court did not abuse its discretion or violate Defendant’s
due process rights by admitting the laboratory reports, we do not address the Government’s
argument that any purported error in the district court’s admission of the reports was harmless.
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      In summary, the Government met its burden of establishing by a

preponderance of the evidence that Defendant violated the terms of his supervised

release. We therefore AFFIRM the district court’s revocation of Defendant’s

supervised release.




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