                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                       FILED
                         FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                           ________________________ ELEVENTH CIRCUIT
                                                                   JUNE 15 2007
                                 No. 06-16319                    THOMAS K. KAHN
                             Non-Argument Calendar                   CLERK
                           ________________________

                         D. C. Docket No. 99-00237-CR-4

UNITED STATES OF AMERICA,


                                                                   Plaintiff-Appellee,

                                       versus

STEVEN ANDREW CAUSEY,

                                                               Defendant-Appellant.

                           ________________________

                    Appeal from the United States District Court
                       for the Southern District of Georgia
                         _________________________

                                  (June 15, 2007)

Before ANDERSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

      Steven Andrew Causey appeals his 24 month sentence for violating a

condition of his term of supervised release–specifically, for using a controlled
substance in violation of a condition of his supervision. We conclude that the

district court did not err when it overruled his objection to the introduction of

testimony as to the specific quantities of steroids that had been found in his

specimen, as the government had provided Causey with a copy of the positive

laboratory report prior to his revocation hearing. Moreover, even assuming the

government’s report should have disclosed the specific quantities of steroids that

had been found in his specimen, the district court did not abuse its discretion in

revoking Causey’s term of supervised release, because Causey failed to show that

the court’s decision to do so was based on clearly erroneous findings of fact or an

improper application of law. Accordingly, we AFFIRM.

                                 I. BACKGROUND

      In 2000, Causey was convicted of attempting to possess with intent to

distribute methamphetamine, in violation of 21 U.S.C. § 846. Causey’s criminal

conduct was subject to a minimum mandatory sentence of ten years. However, the

government filed a motion pursuant to U.S.S.G. § 5K1.1 seeking a downward

departure below ten years, which the court granted. Ultimately, Causey was

sentenced to 78 months imprisonment, followed by five years of supervised

release. A condition of Causey’s term of supervised release was that he not




                                           2
illegally possess a controlled substance. Causey did not appeal either his

conviction or his sentence.

      Causey was released from prison in May 2005, and began the period of

supervised release on 27 May 2005. On 2 October 2006, a warrant was issued for

Causey on the basis that he violated the aforementioned condition of supervision.

The warrant alleged the following.

      Mandatory Condition - The defendant shall refrain from any
      unlawful use of a controlled substance. On August 25, 2006, a
      urine specimen was collected from Causey and submitted to STL
      Laboratories for testing. The results, which were received on
      September 25, 2006, indicated the specimen was positive for the
      anabolic steroid Nandrolone and the drug’s associated metabolites 19-
      Norandrosterone, 19-Noretiocholanolone, and 19-Norepiandrosterone.
      Nandrolone is a Schedule III controlled substance and requires a
      prescription in the United States. Causey denied ever using anabolic
      steroids and reported that he does not have a prescription for any
      anabolic steroids.

R1-118. As a result, the probation officer recommended that Causey’s term of

supervision be revoked. Causey was arrested and ordered to detention pending a

revocation hearing.

      On 6 November 2006, the government filed an emergency motion for a

continuance and special setting. In its motion, the government stated that the

original probation revocation proceeding had been set for 23 October 2006, but

because Causey’s counsel objected to the admissibility of the Scientific Laboratory



                                          3
Testing Report on the ground that the specimen had actually been tested by Aegis

Laboratory–working under contract with STL–Causey’s case had been continued

until 7 November. Subsequently, the government had obtained the original lab

report from Aegis, which showed the results of the specimen to be positive, and

had provided a hard copy of the report to Causey’s counsel, in hopes of obtaining a

stipulation. The government had further explained that without a stipulation from

Causey, the testing chemist from Aegis would have to be brought to Savannah to

testify. Causey’s counsel refused to stipulate to the contents of the report, and

advised that live testimony from the chemist would be required. For these reasons,

the government sought a continuance of the 7 November hearing and a special

setting of the new hearing date, with notice, to afford it a reasonable opportunity to

bring the chemist from Tennessee to Savannah to testify as to the contents of the

lab report. The district court granted the government’s motion for a continuance.

      Prior to the revocation hearing, the government submitted a copy of the

specimen report– a copy of which was provided to Causey– revealing that Causey

had tested positive for Nandrolone and the drug’s associated metabolites 19-

Norandrosterone, 19-Noretiocholanolone, and 19-Norepiandrosterone. The report

further revealed that the screen cut off for Nandrolone was 10ng/mL, and the three

associated metabolites were confirmed at cutoff 10ng/mL each. Nevertheless, the



                                           4
“quantity” section of the report was blank. The report was certified by Dr.

Timothy Robert.

      At the revocation hearing on 20 November 2006, David Paga, the United

States Probation Officer who was responsible for the supervision of Causey, first

testified that on 2 August 2006, he had received information from an individual in

Coffee County indicating that Causey was using steroids. Paga testified that he

had noticed “a remarkable difference in Mr. Causey’s size from the time he was on

bond until the time he was . . . arrested on the supervised release warrant.” R2 at 6.

Paga testified that on 25 August 2006, Causey had tested positive for the unlawful

use of steroids. Paga stated that, when presented with the positive test results,

Causey first said that he did not take any steroids, and later said that he had been

prescribed testosterone for impotency. Paga also testified that Causey never

presented a prescription for testosterone. Paga testified that Causey’s specimen

had been submitted to STL for the usual controlled substances and was then

submitted to a separate laboratory called Aegis Laboratories for steroid testing.

Paga testified that Nandrolone is primarily used for body building.

      Dr. Timothy Robert, laboratory director at Aegis Sciences, then testified as

an expert in the filed of forensic toxicology. He testified that “the testing

performed on the specimen indicated the presence of three distinct metabolites of



                                           5
Nandrolone, which are commonly encountered in situations where a person has

either used Nandrolone or a Nandrolone precursor.” Id. at 16. The government

further asked, “would you tell us something about the concentrations you detected

here in this sample? Were they high, low, could you make a determination?” Id. at

17. Dr. Robert stated:

       Well, I need to preface these comments with a fact that we do not
       report quantitative results on our test results, because these methods
       have not been validated for quantitative purposes. And, of course,
       urinary testing doesn’t really benefit significantly from providing
       quantitative results in most cases. But I think in this particular case, it
       is fair to say that because of the fact that we had to go back and re-
       analyze the sample with a rather large dilution factor that it is quite
       clear that there were very large concentrations of all three of these
       metabolites present in the urine specimen.

Id. at 17-18. Causey did not enter an objection at this time. The government then

sought Dr. Robert’s expert opinion by asking him:

       [t]he concentration you observed and the dilution factor you had to
       use . . . would you characterize those concentration levels as
       consistent or inconsistent with any accidental contamination ingestion,
       and why?

Id. at 18.

       Causey’s counsel objected, arguing that the disclosed copy of the report had

a category for quantity on it, but that it was blank. Thus, Causey’s counsel

objected to Dr. Robert testifying to anything beyond that which was contained in

the report. Causey’s counsel did not identify this as a constitutional or due process

                                            6
objection at this point in the hearing, nor did it refer to Fed. R. Crim. P. 32.1. The

district court overruled the objection, and directed Dr. Robert to answer the

question. Dr. Robert responded that the observed concentrations were inconsistent

with those seen in cases of accidental contamination, or contamination of a

supplement product.

      On cross-examination by Causey, Dr. Robert admitted that it was possible to

test positive for the three metabolites of Nandrolone without having injected the

parent drug, Decadron. Dr. Robert also testified that the ingestion of the precursors

could lead to a positive test result. Dr. Robert also stated that vitamin substances

have tested positive for the precursors of Nadrolone. Dr. Robert testified that in

other instances he had found traces of anabolic steroid precursors as non-labeled

ingredients in sleep-aids, vitamins, and dietary supplements. Dr. Robert also

indicated that the precursors are not illegal throughout the world, and that many

dietary supplements are manufactured outside the United States in facilities where

cross-contamination may occur. Dr. Robert also testified that there are published

accounts indicating that Nandrolone could be produced in the human body, and

speculating that the consumption of pork may cause an increased presence of

metabolite of Nandrolone in the body.




                                           7
      Dr. Robert explained on cross-examination that the quantity category in the

specimen report was blank because his laboratory did not put quantities for

positive test results of Nandrolone. Dr. Robert testified that the cutoff amount

referred to a threshold amount and that any amount over 10 nanograms per

milliliter for the three metabolites of Nandrolone would read as a positive test

result. At that point in the cross-examination, Dr. Robert stated that he did in fact

have with him at the hearing specific numerical data with respect to the three

metabolites found in the specimen.

      Upon hearing this testimony, Causey’s counsel moved to exclude any

testimony regarding the quantitative results of the tests, on the basis that the

information had not been previously disclosed to Causey. However, Causey’s

counsel still did not refer to this as a due process argument or an objection based

on Rule 32.1. The government responded that the defendant had compelled it to

bring Dr. Robert to the hearing to testify, and the fact that Dr. Robert knew more

than what was in the report was simply a benefit of having a live expert witness.

Ultimately, the district court overruled Causey’s motion to exclude the quantitative

data and its objection to Dr. Robert’s testimony.

      On redirect by the government, Dr. Robert first testified the World Anti-

Doping Agency (WADA) has set a threshold level of two nanograms to show a



                                           8
positive test result for Nandrolone in males. Dr. Robert stated that his laboratory

considers ten nanograms a positive test result for Nandrolone, thus, the threshold

level at the laboratory is five times that of WADA. The government then asked

Dr. Robert to describe the quantitative information collected in Causey’s specimen.

Causey’s counsel again objected, “on the basis of Rule 16,” that the information

had not been previously provided to them. R2-34. The government responded that

Causey’s counsel had opened the door to that evidence, by asking about the

specific data on cross-examination. The district court overruled the objection.

      Dr. Robert then testified that examination of the sample provided by Causey

revealed approximately 4,400 nanograms per milliliter of 19-Norandrostenedione,

approximately 727 nanograms per milliliter of 19-Noretiocholanolone, and

approximately 328 nanograms per milliliter of 19-Norepiandrosterone. Dr. Robert

asserted that these results would not be consistent with inadvertent incidental

exposure. Dr. Robert explained that these were not trace concentrations, but were

substantially elevated concentrations. The government rested.

      Causey presented one witness, Mark Batten, Causey’s brother-in-law, who

testified that Causey lived with him for a period in 2005, and that they lifted

weights together nearly every day for an hour to two hours. Batten testified that he




                                           9
and Causey took more than 15 different types of vitamins and supplements, which

they purchased at GNC offline or online, to try to stay fit and maintain health.

      In his closing argument at the hearing, Causey’s counsel stated that Causey

did not dispute the presence of Nandrolone in his specimen, only whether the

presence of the controlled substance was of an intentional or accidental nature, or if

the sample itself had been contaminated.

      The district court noted that, according to U.S.S.G. § 7B1.4, application note

4, because Causey’s original sentence had been the result of a downward departure

an upward departure was arguably warranted for his sentence for revocation of

supervised release. The district court found that level of ingestion of Nandrolone

in this case was “wildly in excess” of the minimum required to account for any

accidental ingestion or incidental contamination. Id. at 52. Thus, the court found

that Causey violated the terms and conditions of supervised release by ingesting a

Schedule III controlled substance. The court offered Causey an opportunity to

speak in mitigation, but he refused to make a statement. The court again noted that

Causey had received a substantial downward departure on his original sentence,

and then sentenced him to an additional 24 months imprisonment, followed by a

new three year term of supervised release. Causey timely appealed.




                                           10
                                   II. DISCUSSION

      On appeal, Causey argues that the district court abused its discretion by

admitting and relying upon testimonial evidence that had not been provided to him

prior to the hearing in violation of Fed. R. Crim. P. 32.1, and due process.

Specifically, Causey argues that the government was required to provide notice

of–and produce all–evidence against him, including the actual quantities of

Nandrolone metabolites found in his specimen. Causey also contends that there

was ample evidence in the record to support a conclusion that he may have tested

positive for metabolites through inadvertent or incidental exposure or

consumption. Causey requests that the revocation of supervised release be

reversed and remanded, and the evidence relating to the specific quantities of

Nandrolone be excluded. Causey asserts that the applicable standard of review for

all of these issues is abuse of discretion.

      When a defendant objects to a district court’s revocation of supervised

release, that will be reviewed under an abuse of discretion standard. United States

v. Copeland, 20 F.3d 412, 413 (11th Cir. 1994) (per curiam). A court abuses its

discretion when its decision “rests upon a clearly erroneous finding of fact, an

errant conclusion of law, or an improper application of law to fact.” United States




                                              11
v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005) (citation omitted), cert. denied, 126

S.Ct. 1809 (2006).

       By contrast, when a defendant does not raise an objection before the district

court initially, his claim will only be reviewed for plain error. United States v.

Olano, 507 U.S. 725, 731, 113 S. Ct. 1770, 1776 (1993). To establish plain error,

the defendant must prove: (1) error; (2) that is plain; and (3) that affects substantial

rights. Id. at 732, 113 S. Ct. at 1776 (citation and quotations omitted). We will

correct the error only if it “seriously affects the fairness, integrity or public

reputation of judicial proceedings.” Id. at 732, 113 S.Ct. at 1776 (citation and

quotations omitted). Because Causey objected to Dr. Robert’s testimony regarding

the quantity of steroids present in his sample at the revocation hearing, he

preserved his objection to the alleged failure to timely disclose the specific quantity

of steroids present in his specimen, and to the testimony itself. While Causey may

not have preserved a due process challenge or an objection based specifically on

Rule 32.1, it is not necessary for us to decide that question because, as discussed

below, under either an abuse of discretion or plain error standard of review, his

claim does not succeed.

       “Defendants involved in revocation proceedings are entitled to certain

minimal due process requirements.” United States v. Frazier, 26 F.3d 110, 114



                                            12
(11th Cir. 1994) (citation omitted). In the parole revocation context, the Supreme

Court has held that due process requires, among other things, disclosure of the

evidence against the person. Morrissey v. Brewer, 408 U.S. 471, 487-89, 92 S. Ct.

2593, 2604 (1972). Following Morrissey, this rule was codified in Federal Rule of

Criminal Procedure 32. 1(b), providing in relevant part, that the defendant in a

revocation hearing is entitled to “disclosure of the evidence against the person.”

Fed. R. Crim. P. 32.1(b)(2)(B). We have extended the “protections granted those

facing revocation of parole [to cover] those facing the revocation of supervised

release.” Copeland, 20 F.3d at 414 (citation omitted).

      In this case, it is clear that the government complied with Fed. R. Crim. P.

32.1 and due process to the extent that it provided Causey a copy of the Aegis

Laboratory report prior to the revocation hearing. This report confirmed that

Causey’s specimen tested positive for Nandrolone, at a threshold level of ten

ng/mL.

      It is true, as Causey points out, that the government failed to disclose, prior

to the revocation hearing, the evidence of the specific quantities of Nandrolone and

its metabolites found in Causey’s specimen– quantities which had not been

reported on the laboratory report. Nevertheless, we affirm, because Causey fails to




                                          13
demonstrate that the decision to revoke his term of supervised release was an abuse

of discretion or plain error. See Baker, 432 F.3d at 1202.

      First, the government sought revocation of Causey’s term of supervised

release on the grounds that he engaged in the unlawful use of a controlled

substance. It did not rely on any specific test quantity for seeking the revocation.

Second, the transcript from the revocation hearing shows that during the

government’s direct examination of Dr. Robert, the government did not ask him to

testify to the exact levels of steroids discovered in the specimen. The transcript

demonstrates that the government asked him to render an expert opinion regarding

the test results based on the data contained in the report, asking, “would you tell us

something about the concentrations you detected here in this sample. Were they

high, low, could you make a determination?” See R2 at 17. Even after Causey

objected and the court overruled his objection, Dr. Robert testified as to his expert

conclusion that, based on the ten nanograms per milliliter threshold, the observed

concentrations were inconsistent with contamination of a supplement product.

      It was not until Causey’s cross-examination of Dr. Robert that Dr. Robert

was asked whether he had with him confirmation data with respect to the specific

levels of the three metabolites found in Causey’s specimen. Causey’s counsel

asked this question immediately after Dr. Robert testified that his usual laboratory



                                          14
practice was not to put the specific quantities in the report, and that the report only

revealed whether the specimen tested above the cutoff amount. Causey then

moved to prevent Dr. Robert from testifying about this data, and the district court

denied the motion. As a result, on redirect, the government asked, and Dr. Robert

testified, as to the exact levels of the metabolites observed in Causey’s specimen.

      Even assuming the government committed some error in failing to disclose

the specific quantity of steroid found in Causey’s specimen, we conclude that the

district court did not abuse its discretion or plainly err in revoking his term of

supervised release. See Baker, 432 F.3d at 1202. It is undisputed that the

laboratory report demonstrated that Causey’s specimen tested positive for a

controlled substance, which he was prohibited from ingesting (in any amount)

according to his conditions of supervised release. The minimum “passing”

threshold levels reported on the laboratory report were five times greater than the

levels prohibited by the World Anti-Doping Agency. Furthermore, Paga testified

that he noticed a “remarkable difference” in Causey’s size, and that he had been

told by an informant that Causey was using steroids. See R2 at 6. These facts

demonstrate by a preponderance of the evidence that Causey ingested a prohibited

controlled substance, in clear violation of the conditions of his supervision.




                                           15
                              III. CONCLUSION

      Based upon the record in this case and our discussion above, we cannot

conclude that the district court abused its discretion. Accordingly, we AFFIRM.




                                       16
