                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4396


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JORI SHAMIR FERGUSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:01-cr-00192-HEH-1)


Argued:   March 20, 2014                  Decided:   May 21, 2014


Before GREGORY and KEENAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Reversed and remanded by published opinion. Judge Gregory wrote
the   opinion,    in   which    Senior   Judge  Davis   joined.
Senior Judge Davis wrote a separate concurring opinion.   Judge
Keenan wrote a dissenting opinion.


ARGUED: Nia Ayanna Vidal, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Richmond, Virginia, for Appellant. Michael Calvin Moore, OFFICE
OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
GREGORY, Circuit Judge:

       This is an appeal from a district court judgment revoking

Jori Ferguson’s supervised release.                     The district court found

that   Mr.    Ferguson         had    violated    the   terms    of    his   supervised

release      by,    among      other    things,    possessing         marijuana.        The

district court’s finding relied in part on a laboratory report

prepared     by     a    forensic      examiner   who   did     not    testify     at   the

hearing.       We       hold   that    the   district    court    erred      by    denying

Mr. Ferguson a chance to cross-examine this forensic examiner.

Accordingly, we vacate Mr. Ferguson’s sentence and remand.



                                             I.

       Jori Ferguson has spent ten of the last thirteen years in

prison and the remaining time on supervised release.                              He first

lost his liberty when he was nineteen years old, so he has spent

roughly one third of his life under varying levels of government

supervision, including essentially all of the years he would

have otherwise been adjusting to adulthood.

       After serving nearly a decade in prison, Mr. Ferguson began

his first period of supervised release in 2010, which was soon

revoked after a series of violations, most related to drug use.

After a second term in prison, Mr. Ferguson entered supervised

release again, but after initial success, he once more struggled

to abide by the terms of his release.                   In 2012, Mr. Ferguson was

                                             2
convicted of possession of drug paraphernalia.                         The following

year, Mr. Ferguson failed a drug test for marijuana.                            In the

same year, he was arrested twice and did not tell his probation

officer.        At the revocation hearing, Mr. Ferguson admitted to

these four violations.

     In addition, Mr. Ferguson was accused of two more serious

violations which he contested at his revocation hearing, one of

which is the crux of this appeal.                    On March 16, 2013, Officer

Jonathan McDonald of the Chesterfield County Police Department

received a report of a domestic dispute in a vehicle driven by

Mr. Ferguson.       Officer McDonald pulled the car over, and when he

approached, he smelled marijuana.                Officer McDonald searched the

car and found several plastic bags of a substance which, based

on his experience, he presumed was marijuana, as well as $470 in

cash and an ATM receipt for $300.                   In the squad car after being

arrested, Mr. Ferguson admitted that he was a marijuana dealer.

        The    marijuana   was   sent   to      a    forensic    laboratory,      which

confirmed the weight and nature of the substance.                          The analysis

was conducted by analyst Jennifer Clary.                        Ms. Clary did not

testify at the revocation hearing.                    The lab report lacks any

information       regarding      what      kind      of   test       was     conducted,

confidence intervals for the analyses performed, the measurement

instruments       used,    Ms.   Clary’s       background,      or   whether     proper

chain     of    custody     procedure      was       followed.        There     is   no

                                           3
information on the rate of false positives in the type of exam

used, or on the rate of false negatives, both of which would be

necessary to assess the reliability of the exam’s conclusions.

The lab report was introduced during the revocation hearing by

Officer     McDonald    during     his       testimony.         However,   Officer

McDonald did not perform the analysis and has no expertise in

chemistry.

     The district judge found that the facts above established

that Mr. Ferguson violated his supervised release by possessing

marijuana.      Based    on   this       violation,       the    four   additional

violations that Mr. Ferguson admitted to, and another incident

of drug possession, the judge sentenced Mr. Ferguson to forty-

two months in prison.

     Mr. Ferguson filed a timely appeal.                  He argues that in the

absence of a government showing of good cause for the chemist’s

unavailability, it was a violation of Federal Rule of Criminal

Procedure    32.1(b)(2)(C)    to    admit      a   laboratory     report   without

calling the chemist to testify. 1




     1
       In addition, Mr. Ferguson argues that the district court
abused its discretion in relying on field tests to find Ferguson
guilty for the other instance in which he allegedly possessed
drugs.   He also argues that his sentence was substantively and
procedurally unreasonable, and that this error was plain.
Because we find that Mr. Ferguson prevails on his Rule
32.1(b)(2)(C) argument, we need not reach these issues.


                                         4
                                              II.

       We    review      a   district     court’s        evidentiary         ruling    in    a

revocation hearing for abuse of discretion.                            United States v.

Doswell, 670 F.3d 526, 529 (4th Cir. 2012).                          Revocation hearings

are less formal than trials of guilt, where “the full panoply of

rights due a defendant” are in effect.                     Morrissey v. Brewer, 408

U.S.    471,       480     (1972).       Nonetheless,          from    the    defendant’s

perspective, trials and revocation hearings are similar in that

the end result may be a loss of liberty.                        Accordingly, some due

process rights apply.            Id. at 487–88.           In Morrissey, the Supreme

Court explicitly identified “the right to confront and cross-

examine          adverse     witnesses        (unless          the     hearing        officer

specifically finds good cause for not allowing confrontation)”

as one of several “minimum requirements of due process” that

apply       to    revocation         hearings.           Id.    at     488–89.          These

requirements are formalized in the Federal Rules of Criminal

Procedure.          Under    Rule     32.1,    defendants       are    entitled       to    “an

opportunity         to     appear,     present      evidence,        and   question         any

adverse witness unless the court determines that the interest of

justice does not require the witness to appear.”                           Fed. R. Crim.

P. 32.1(b)(2)(C).

       Our holding in Doswell, wherein we announced a balancing

test    governing          the   application        of     Rule      32.1(b)(2)(C),         is

directly on point and mandates reversal here.                           See 670 F.3d at

                                               5
530–31.      In that case, the government sought to introduce a

laboratory    report          without         calling     the    chemist        who    wrote     the

report.     Id. at 528–29.                The district court admitted the report

as evidence.          Id. at 529.            The government failed to provide good

cause for the chemist’s absence.                        Id.    Nonetheless, the district

court   concluded           that    the       drug      analysis       report    was    reliable

enough on its face to be admitted as evidence.                              Id.       On appeal,

we    reversed        and    held       that     “Rule        32.1(b)(2)(C)       specifically

requires     that,          prior       to     admitting        hearsay     evidence        in     a

revocation        hearing,          the       district        court     must      balance        the

releasee’s interest in confronting an adverse witness against

any proffered good cause for denying such confrontation.”                                        Id.

at 530.      We noted that the reliability of the evidence is a

“critical factor in the balancing test under Rule 32.1.”                                  Id. at

531.     However, as the Seventh Circuit described, “reliability

cannot be the beginning and end of the ‘interest of justice’

analysis.”       United States v. Jordan, 742 F.3d 276, 280 (7th Cir.

2014)   (joining        this       Court       in    adopting      a    balancing      test      for

hearsay evidence in revocation hearings).                               Put simply, unless

the    government       makes       a     showing        of    good     cause    for    why      the

relevant     witness           is         unavailable,           hearsay         evidence         is

inadmissible at revocation hearings.

       In   Mr.       Ferguson’s             revocation        hearing,     the       government

introduced        a    laboratory             report     through        Officer       McDonald’s

                                                    6
testimony, but it proffered no explanation for the laboratory

expert’s absence.          Thus, there was zero showing of good cause.

Instead, the district court allowed Officer McDonald to read the

laboratory    report       into    evidence             because    the    report     was    “on

official stationery with an official envelope” and was “signed

by a forensic examiner from the Commonwealth of Virginia.”                                  J.A.

34.    In    closing       arguments,          when       Mr.     Ferguson    renewed       his

objection    to    the    introduction             of    the    laboratory        report,   the

district court clarified that other evidence corroborated the

report.     Thus, the judge first explicitly ruled that reliability

alone justified introduction of the report.                            Then during closing

arguments, the judge made an implicit harmlessness finding by

concluding    that       other    evidence          sufficiently         corroborated       the

report’s conclusions.             Either way, the district court committed

legal error.

      As we held in Doswell, “the district court must balance the

releasee’s interest in confronting an adverse witness against

any   proffered        good    cause         for    denying       such      confrontation.”

Doswell, 670 F.3d at 530 (emphasis added).                              Reliability is an

important factor but not a dispositive one.                               Relying on the

stationery        on   which      the        report          appears     as   evidence       of

reliability does not obviate the requirement to show good cause.

Similarly,    the      existence        of    corroborating            evidence     does    not

relieve     the    government’s         burden          of     proffering     a    sufficient

                                               7
justification for the absence of the witness.                    Because there was

no evidence of good cause, as Doswell requires, the introduction

of the laboratory report was error.



                                        III.

       The government argues that even if there was a clear legal

error here given the rule stated in Doswell, this error was

harmless.       Echoing the district court’s implicit harmlessness

finding made during closing statements, the government points

out    that    Mr.     Ferguson   was    found      to    have    committed   other

violations of his supervised release, and these violations could

have       supported    the   sentence       that   was    ultimately     imposed.

Further, Officer McDonald testified that he detected a marijuana

odor in Mr. Ferguson’s car and that Mr. Ferguson admitted to

selling drugs. 2        Thus, even without the laboratory report, the




       2
        We note that Mr. Ferguson never admitted that the
substance found in the car before that arrest was marijuana.
During his testimony, Officer McDonald described a conversation
he had with Mr. Ferguson immediately after the arrest. Officer
McDonald said that “We discussed selling drugs” and testified
that Ferguson admitted that he does sell drugs.         J.A. 35.
Officer McDonald was then asked “did [Ferguson] say anything to
you about the specific drugs . . . that you found that day in
his car?” Officer McDonald’s response was that Ferguson “stated
that he sells marijuana.”      Id.    Thus, based on McDonald’s
testimony, there is no clear indication that Ferguson admitted
to the nature of the substance removed from the car, though
Ferguson did clearly admit to having dealt marijuana previously.


                                         8
government argues that adequate support exists for the district

court’s sentence.

       As   a   preliminary             matter,       we        must   define         the    correct

harmless error standard which applies here.                                  The legal error in

this    case    is    in     some       ways     a    constitutional               one,     since    it

involves Mr. Ferguson’s due process rights.                              As noted above, the

right to confrontation absent a good cause showing was first

announced       by    the        Supreme        Court       as     one        of     the     “minimum

requirements         of    due     process.”              Morrissey,         408     U.S.    at   489.

Thus, the violation here involves constitutional considerations.

At the same time, the parameters of Mr. Ferguson’s due process

right to confrontation are set forth by statute in Rule 32.1.

See    Doswell,      670     F.3d       at   530.          This    distinction             between    a

constitutional            versus    a    non-constitutional                  right    changes       the

harmless    error         standard       that    we       must    apply.           Constitutional

errors must be found harmless beyond a reasonable doubt, whereas

reversal of a non-constitutional error requires lesser proof.

Compare Chapman v. California, 386 U.S. 18, 23 (1967) (“[B]efore

a federal constitutional error can be held harmless, the court

must be able to declare a belief that it was harmless beyond a

reasonable doubt.”) with Kotteakos v. United States, 328 U.S.

750 (1946) (defining harmless error review as ensuring that an

error    was    not       harmless       only        if    it    had     a    “substantial          and

injurious       effect        or    influence             in     determining           the    jury’s

                                                 9
verdict”); see United States v. Evans, 216 F.3d 80, 89–90 (D.C.

Cir.     2000)       (describing   how     erroneous        admission    of       hearsay

evidence may run afoul of the Rules of Evidence, implicating

Kotteakos,       or    the   Confrontation      Clause,     implicating       Chapman).

As    such,     we    must   resolve     whether      the   Kotteakos       or    Chapman

standard applies here.

       Doswell compels the conclusion that the Kotteakos standard

applies.      Our reasoning in that case shows that our formulation

of the required balancing test is based on an interpretation of

Rule    32.1,    as    modified    in    2002    --   not   on     Morrissey      itself.

Doswell, 670 F.3d at 531 n.1 (noting as a contrast to its own

reasoning that “[s]ome circuits have held that Morrissey itself

requires a balancing test”).              Understood this way, the district

court violated a requirement of Rule 32.1, and this requirement

does not flow directly from Morrissey or due process.                            As such,

the    district       court’s   error    is   more      properly    understood      as   a

garden-variety         evidentiary      mistake,      not   a    constitutional      one.

See United States v. Seidel, 620 F.2d 1006, 1013 n.13 (4th Cir.

1980).     Thus, the proper harmlessness test must ensure that the

error had no “substantial and injurious effect or influence” on

the    outcome,       not    whether    the     error    was     harmless     beyond     a

reasonable doubt.

       Under either standard, the policy behind the harmless error

standard guides our application of it.                          The rule was put in

                                           10
place to prevent “courts of review” from “tower[ing] above the

trials     of    criminal        cases      as      impregnable      citadels       of

technicality.”       Kotteakos,       328      U.S.   at    759    (1946)   (quoting

Marcus A. Kavanagh, Improvement of Administration of Criminal

Justice    by   Exercise    of     Judicial      Power     11   A.B.A.J.    217,   222

(1925)).    Thus, we will not reverse every decision that contains

a legal error without regard to how inconsequential the error

may be.     Instead, reversal is reserved for more serious errors

that   affect    substantial       rights      or   that    directly   affect      the

outcome of a case.         Kotteakos, 328 U.S. at 765 (looking to both

the effect of an error on a judgment and to whether substantial

rights are affected).

       After reviewing the record, we cannot conclude that the

legal error in this case had “but very slight effect” on the

district court’s decision.               Kotteakos, 328 U.S. at 764.               The

district judge imposed a severe sentence on Mr. Ferguson, going

nine months above the maximum recommended sentence under the

guidelines.       Though     Mr.    Ferguson        was    found   guilty    of    six

violations, two of these were much more serious than the others

because they involved possession of large amounts of narcotics.

The effect of the nature and frequency of these violations is

plainly evident, as the judge reasoned that “what is serious

about this case” is Mr. Ferguson’s “continuing course of conduct

. . . of violating the nation’s drug laws, not just for personal

                                          11
use, but commercially.”                 J.A. 68.           Thus, the district judge

relied     heavily        on     the    fact        that       Mr.    Ferguson   possessed

substantial amounts of drugs on more than one occasion.                               Given

this reasoning, we cannot say that the legal error was harmless

when it calls into question one of the two violations suggesting

commercial use of drugs.

      Furthermore,         the      error    in     this       case   implicated   one   of

Mr. Ferguson’s           core       procedural        rights.           Considering      the

importance and deeply-rooted history of the constitutional right

to confrontation, its violation is much more substantive than

the type of technical or nominal error that originally motivated

the harmless error standard.                   The Supreme Court has described

the   right        to     cross-examination            as        “the    constitutionally

prescribed    method           of    assessing       reliability.”           Crawford     v.

Washington,        541     U.S.        36,    62     (2004).            “Dispensing     with

confrontation because testimony is obviously reliable is akin to

dispensing    with        jury      trial    because       a    defendant   is   obviously

guilty.”     Id.        While the instant case does not involve the Sixth

Amendment, the Supreme Court’s reasoning in Crawford illustrates

the idea that stripping a defendant of the confrontation right

may create significant harms that are invisible after the fact.

Even if a defendant may seem obviously guilty, we must test that

impression through the mechanism of a jury trial.                            In the same



                                               12
way, cross-examination is the mechanism favored in our system to

test the government’s assertion that evidence is reliable.

       Our decision today heeds Crawford’s reasoning as well as

more   recent     warnings    from    the      Supreme        Court     about   forensic

evidence.       Because cross-examination is such a vital tool for

the defendant, it is difficult, after the fact, to assess the

full harm of a legal error such as the one in this case.                             This

is   because    stripping    a   defendant        of      the   confrontation       right

shields potentially grievous errors made by the chemist.                         If the

forensic    analyst    in    this    case      had     used     a   magic   eight   ball

instead of a spectrometer to assess whether the substance was

marijuana, the defendant would have no way to find out.                          Putting

the outlandish aside, the Supreme Court has warned that forensic

techniques that wrap themselves in a veneer of science can be

riddled    with    subjectivity,      with     outdated,        unreliable      methods,

and with a lack of standardization that poses grave risks to our

system of justice.           Melendez-Diaz v. Massachusetts, 557 U.S.

305, 319–20 (2009).         Given this, a bare-bones conclusion such as

“[t]he substance was found to contain:                    Cocaine,” id. at 320, is

a    problematic    foundation       on   which      to    rest     a    revocation   of

supervised release, even if this conclusion appears “on official

stationary with an official envelope.”                    J.A. 34.       We have found

no scientific or legal support for the proposition that the type

of letterhead can cure pseudoscience or shoddy methodology.                            To

                                          13
be sure, there is no indication in this case that the forensic

techniques used were problematic.                 But this should come as no

surprise:       it is the very legal error that was committed that

prevents the defendant from searching for these indications of

harm    in    the   first   place.    Given       this,    and   given     that    the

marijuana possession violation in question is much more serious

than    the   other    violations    Mr.    Ferguson      committed,      we    cannot

conclude that the legal error here had no significant effect on

Mr. Ferguson’s sentence.

       Finally, we emphasize our displeasure with the government’s

barefaced failure to abide by our command in Doswell.                          In many

cases, a facially compelling harmlessness argument can be made

because, as noted above, defendants who have been stripped of

their   confrontation       rights   will    be    hard-pressed      to    point    to

concrete symptoms of the constitutional harm that afflicts them.

We refuse to let the government take advantage of this reality,

essentially         ignoring   our    command        in    Doswell        by     using

harmlessness as a substitute for proper procedure.                        Because we

meant what we said in Doswell, and because we cannot conclude

with adequate assurance that the clear legal error in this case

was harmless, we reverse and remand.

                                                          REVERSED AND REMANDED




                                       14
DAVIS, Senior Circuit Judge, concurring:

       I am pleased to join in full Judge Gregory’s opinion. I

offer a few words of encouragement to our somewhat beleaguered

district court colleagues.

       As a former district judge myself, I am fully aware that

supervised release revocation hearings are surely way down on

the list of things that keep busy district judges and equally

busy   Assistant    United   States    Attorneys   up   at     night.    Indeed,

supervised release revocation hearings generally mean far more

to the dedicated and equally busy Probation Officers who, as one

once told me, view revocation hearings as “failures.” This is

because they work with great dedication and attention to help

their supervisees stay on a rehabilitative path. Reappearance

before the judge signals something of a lost cause.

       No doubt it has struck some district judges as seemingly

peculiar that we have reversed, vacated, and remanded a surfeit

of these cases in the last few years. See United States v.

Doswell, 670 F.3d 526 (4th Cir. 2012); United States v. Woods, -

--   Fed.   Appx.   ---,   2014   WL   1146975   (4th   Cir.    2014);   United

States v. Banks, 542 Fed. Appx. 218 (4th Cir. 2013); see also,

e.g., United States v. Thompson, 595 F.3d 544 (4th Cir. 2010);

United States v. Pegram, --- Fed. Appx. ---, 2014 WL 572348 (4th

Cir. 2014); United States v. Chaimowitz, --- Fed. Appx. ---,

2014 WL 448443 (4th Cir. 2014); United States v. Waller, ---

                                       15
Fed. Appx. ---, 2013 WL 6727896 (4th Cir. 2013); United States

v. Stallins, 521 Fed. Appx. 104 (4th Cir. 2013); United States

v. Cazeau, 518 Fed. Appx. 139 (4th Cir. 2013); United States v.

Fisher, 514 Fed. Appx. 324 (4th Cir. 2013); United States v.

Pate, 503 Fed. Appx. 216 (4th Cir. 2013);      United States v.

Conner, 495 Fed. Appx. 367 (4th Cir. 2012); United States v.

Redwine, 488 Fed. Appx. 727 (4th Cir. 2012); United States v.

Brooks, 472 Fed. Appx. 236 (4th Cir. 2012); United States v.

Conyers, 469 Fed. Appx. 152 (4th Cir. 2012); United States v.

Carter, 468 Fed. Appx. 351 (4th Cir. 2012); United States v.

Summers, 448 Fed. Appx. 337 (4th Cir. 2011); United States v.

Tossie, 442 Fed. Appx. 844 (4th Cir. 2011); United States v.

Rumbo-Bustos, 392 Fed. Appx. 221 (4th Cir. 2010); United States

v. Ford, 384 Fed. Appx. 274 (4th Cir. 2010); United States v.

Martinez, 383 Fed. Appx. 363 (4th Cir. 2010); United States v.

Johnson, 380 Fed. Appx. 265 (4th Cir. 2010); United States v.

Caste-Lopez, 379 Fed. Appx. 286 (4th Cir. 2010); United States

v. Tolbert, 373 Fed. Appx. 363 (4th Cir. 2010); United States v.

Sosa-Sauceda, 260 Fed. Appx. 589 (4th Cir. 2008). After all, an

offender who has committed acts or omissions that involve an

“inherent breach of trust”, as a violation of supervised release

is characterized, United States v. Moulden, 478 F.3d 652, 655

(4th Cir. 2007), surely has “it” coming to him or her, and the



                               16
sooner the better if the sanction is to have any beneficial

effect.

     But there are good and sufficient reasons for the scrutiny

we give to supervised release revocation cases.

     First, as the majority opinion in this very case shows,

these are high stakes proceedings, proceedings that take on the

character     of      serious        criminal     prosecutions.      The       rights

guaranteed to defendants in actual criminal prosecutions do not

apply with their customary force, of course, but a forty-two

month     sentence       on   an    offender    whose   principal        sin   is   an

inability to defeat his addiction to marijuana (and the related

wrongfulness of selling small amounts of the drug), such as the

one imposed here by the district court on Jori Ferguson, is

serious business. The Federal Rules of Criminal Procedure set

forth the minimal standards of process to which such offenders

are entitled; they are not onerous burdens on prosecutors and

judges.    There     are      few   “I”s   to   dot   and   few   “T”s    to   cross;

accordingly, “I”s should be dotted and “T”s crossed if only for

the sole reason that it is so very simple to do.

    Second,        and     beyond    the   weighty    considerations       mentioned

above, there is the additional consideration that we published

our opinion in United States v. Doswell, 670 F.3d 526 (4th Cir.

2012), more than one year before the revocation hearing in this

case was held. Doswell is virtually on all fours with this case.

                                           17
We think it is a good idea if even busy Assistant United States

Attorneys read our published opinions and prepare their cases

accordingly. This case is a useful reminder of that truism; for

prosecutors, neither failure nor inattention to the simple rules

of the road should be an option.




                               18
BARBARA MILANO KEENAN, Circuit Judge, dissenting:

        I disagree with the majority’s harmless error analysis and

would    affirm    the      district    court’s     judgment. *      Therefore,    I

respectfully dissent.

     Initially,        I    would   employ    the   more    strict   standard     for

harmless error review established in Chapman v. California, 386

U.S. 18 (1967).            In my view, Ferguson’s due process right to a

fair revocation hearing has been violated and requires that this

Court evaluate whether the district court’s error was harmless

beyond    a    reasonable      doubt.     See   id.    at   24.      I   reach   this

conclusion notwithstanding the fact that a releasee’s rights in

a revocation proceeding are not as great as the rights of a

defendant facing criminal prosecution.                See Morrissey v. Brewer,

408 U.S. 471, 480 (1972).

     In United States v. Doswell, we explained that the Supreme

Court    has    held   that    a    “person   facing    revocation       of   release

possesses a due process ‘right to confront and cross-examine

adverse witnesses (unless the hearing officer specifically finds

good cause for not allowing confrontation).’”                  670 F.3d 526, 530

(4th Cir. 2012) (quoting Morrissey, 408 U.S. at 489).                         Indeed,


     *
        With regard to Ferguson’s other arguments raised on
appeal, I would conclude that the district court did not err in
determining that the “field test” conducted on Ferguson on April
12, 2013 was reliable. I would also conclude that the district
court’s imposition of a 42-month sentence was reasonable.


                                         19
the majority recognizes that the district court’s error in the

present case “implicated one of Mr. Ferguson’s core procedural

rights” relating to the constitutional right to confrontation,

and    that    the   error    was   “more         substantive    than    the    type       of

technical      or    nominal     error       that     originally        motivated      the

harmless error standard.”               Supra at 12.          Because the error at

issue violated Ferguson’s due process right to a fair revocation

hearing, I think that the lesser standard of harmless error set

forth in Kotteakos v. United States, 328 U.S. 750 (1946), is

inadequate to evaluate the error’s impact.

       Nevertheless,         applying     the       Chapman     standard,       I    would

conclude that the district court’s error in the present case was

harmless       beyond    a     reasonable          doubt.       The     evidence       was

overwhelming that Ferguson violated the terms of his supervised

release by possessing marijuana with the intent to distribute.

The district court credited the arresting officer’s testimony

that   he     smelled   marijuana       in   Ferguson’s       vehicle,    and       that    a

search of the vehicle resulted in the discovery of what the

officer concluded was marijuana, “packaged and quantified in a

fashion consistent with an intent to distribute.”                        The arresting

officer further testified that Ferguson admitted that he sold

marijuana.       Based on this record, which is particularly strong

given Ferguson’s statement to the arresting officer, I would

hold that it is clear beyond a reasonable doubt that the court’s

                                             20
erroneous admission of the laboratory report did not affect the

judgment rendered in this case.       See Chapman, 386 U.S. at 24.

     Finally,    I   note   my   strong   agreement   with   Judge   Davis’

remarks   in   his   concurring   opinion   cautioning   prosecutors    to

follow carefully our opinion in Doswell.          My view in this case

that the district court’s error was harmless does not affect my

concern that the government must act diligently to ensure that

revocation proceedings be conducted fairly in accordance with

the plain requirements of Federal Rule of Criminal Procedure

32.1(b)(2)(C).




                                     21
