US v. Jori Ferguson

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 3:01-cr-00192-HEH-1. [999360032]. [13-4396]

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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.

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GREGORY, Circuit Judge:
This is an appeal from a district court judgment revoking
Jori Ferguson’s supervised release.

The district court found

that

terms

Mr.

release

Ferguson
by,

among

had

violated

other

things,

the

of

possessing

his

supervised

marijuana.

The

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

by
We

a

forensic
hold

that

examiner
the

who

district

did

not

court

testify

erred

at

by

the

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.
2

In 2012, Mr. Ferguson was

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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,

confirmed the weight and nature of the substance.
was conducted by analyst Jennifer Clary.
testify at the revocation hearing.
information

regarding

what

kind

which

The analysis

Ms. Clary did not

The lab report lacks any
of

test

was

conducted,

confidence intervals for the analyses performed, the measurement
instruments
chain

of

used,
custody

Ms.

Clary’s

procedure

background,
was
3

or

followed.

whether
There

proper
is

no

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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 fortytwo 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.
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II.
We

review

a

district

court’s

evidentiary

revocation hearing for abuse of discretion.
Doswell, 670 F.3d 526, 529 (4th Cir. 2012).

ruling

in

a

United States v.
Revocation hearings

are less formal than trials of guilt, where “the full panoply of
rights due a defendant” are in effect.
U.S.

471,

480

(1972).

Morrissey v. Brewer, 408

Nonetheless,

from

the

defendant’s

perspective, trials and revocation hearings are similar in that
the end result may be a loss of liberty.
process rights apply.

Id. at 487–88.

Accordingly, some due

In Morrissey, the Supreme

Court explicitly identified “the right to confront and crossexamine

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

opportunity

to

Rule

appear,

32.1,

defendants

present

are

evidence,

entitled

and

to

“an

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

directly on point and mandates reversal here.
5

32.1(b)(2)(C),

is

See 670 F.3d at

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530–31.

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In that case, the government sought to introduce a

laboratory
report.

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report

without

Id. at 528–29.

as evidence.

calling

the

chemist

Id.

court

analysis

the

drug

Nonetheless, the district
report

enough on its face to be admitted as evidence.
we

reversed

requires

and

that,

revocation

held

that

prior

hearing,

the

The government failed to provide good

cause for the chemist’s absence.
that

wrote

The district court admitted the report

Id. at 529.

concluded

who

to

“Rule

Id.

district

hearsay
court

reliable

On appeal,

32.1(b)(2)(C)

admitting

the

was

specifically

evidence

must

in

balance

a
the

releasee’s interest in confronting an adverse witness against
any proffered good cause for denying such confrontation.”
at 530.

We noted that the reliability of the evidence is a

“critical factor in the balancing test under Rule 32.1.”
531.

Id.

Id. at

However, as the Seventh Circuit described, “reliability

cannot be the beginning and end of the ‘interest of justice’
analysis.”
2014)

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

(joining

this

Court

in

adopting

a

hearsay evidence in revocation hearings).
the

government

relevant

makes

witness

a

is

showing

of

unavailable,

good

balancing

test

for

Put simply, unless
cause

hearsay

for

why

the

evidence

is

inadmissible at revocation hearings.
In

Mr.

introduced

Ferguson’s
a

laboratory

revocation
report
6

hearing,

through

the

government

Officer

McDonald’s

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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.”
34.

In

closing

objection

to

the

arguments,

when

introduction

Mr.

of

the

J.A.

Ferguson

renewed

his

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

report’s conclusions.

evidence

sufficiently

corroborated

the

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

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

Reliability is an

important factor but not a dispositive one.
stationery

on

which

the

report

appears

confrontation.”

Relying on the
as

evidence

of

reliability does not obviate the requirement to show good cause.
Similarly,
relieve

the

the

existence

government’s

of

corroborating

burden
7

of

evidence

proffering

a

does

not

sufficient

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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.
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government argues that adequate support exists for the district
court’s sentence.
As

a

preliminary

matter,

we

must

define

harmless error standard which applies here.
this

case

is

in

some

ways

a

correct

The legal error in

constitutional

involves Mr. Ferguson’s due process rights.

the

one,

since

it

As noted above, the

right to confrontation absent a good cause showing was first
announced

by

requirements

the
of

Supreme

due

Court

one

of

the

“minimum

Morrissey,

process.”

as

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

constitutional
harmless

error

F.3d

versus

at
a

standard

530.

This

distinction

non-constitutional
that

we

must

right

apply.

between

changes

a

the

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

injurious

not

harmless

effect

or

only

if

influence
9

it
in

had

a

“substantial

determining

the

and

jury’s

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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,
As

or

such,

the

we

must

Confrontation
resolve

Clause,

whether

the

implicating
Kotteakos

Chapman).

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.
the

district

garden-variety

court’s

error

evidentiary

is

more

mistake,

properly
not

a

As such,

understood

constitutional

as

a

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.
10

The rule was put in

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

of

criminal

technicality.”

cases

Kotteakos,

as

328

impregnable

U.S.

at

759

citadels
(1946)

of

(quoting

Marcus A. Kavanagh, Improvement of Administration of Criminal
Justice
(1925)).

by

Exercise

of

Judicial

Power

11

A.B.A.J.

217,

222

Thus, we will not reverse every decision that contains

a legal error without regard to how inconsequential the error
may be.
that

Instead, reversal is reserved for more serious errors

affect

substantial

outcome of a case.

rights

or

that

directly

affect

the

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
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use, but commercially.”

J.A. 68.

relied

fact

heavily

on

the

Thus, the district judge

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,
Mr. Ferguson’s

the

core

error

in

this

procedural

case

implicated

rights.

one

Considering

of
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

right

to

The Supreme Court has described

cross-examination

prescribed

method

of

Washington,

541

U.S.

assessing
36,

62

as

“the

constitutionally

reliability.”
(2004).

Crawford

“Dispensing

v.
with

confrontation because testimony is obviously reliable is akin to
dispensing
guilty.”

with
Id.

jury

trial

because

a

defendant

is

obviously

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.

12

In the same

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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

evidence.

warnings

from

the

Supreme

Court

about

forensic

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.
is

because

stripping

a

defendant

of

the

confrontation

shields potentially grievous errors made by the chemist.
forensic

analyst

in

this

case

had

used

This

a

magic

right
If the

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:
a

problematic

foundation

on

which

to

Cocaine,” id. at 320, is
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.
13

To

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be sure, there is no indication in this case that the forensic
techniques used were problematic.
surprise:

But this should come as no

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

harmlessness as a substitute for proper procedure.

by

using

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

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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

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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

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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.
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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.

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BARBARA MILANO KEENAN, Circuit Judge, dissenting:
I disagree with the majority’s harmless error analysis and
would

affirm

the

district

court’s

judgment. *

Therefore,

more

standard

I

respectfully dissent.
Initially,

I

would

employ

the

strict

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.
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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

technical

or

error

was

nominal

“more

error

harmless error standard.”

substantive
that

than

originally

Supra at 12.

the

type

motivated

of
the

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
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erroneous admission of the laboratory report did not affect the
judgment rendered in this case.
Finally,
remarks

in

I

his

note

my

See Chapman, 386 U.S. at 24.

strong

concurring

agreement

opinion

with

cautioning

follow carefully our opinion in Doswell.

Judge

Davis’

prosecutors

to

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