United States v. Genaro Delbosque , 463 F. App'x 364 ( 2012 )

Case: 11-40639 Document: 00511775270 Page: 1 Date Filed: 03/02/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 2, 2012
No. 11-40639
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GENARO DELBOSQUE,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:10-CR-1996-1
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Genaro Delbosque appeals the district court’s revocation of his supervised
release and imposition of a term of 28 months in prison. He argues that the
district court erred by denying him his right to confront the lab technician who
prepared the report stating that a substance collected near Delbosque’s vehicle
contained cocaine. He further argues that the district court erred by admitting
the lab report and testimony regarding its contents into evidence without
making an explicit finding that good cause existed for vitiating his confrontation
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-40639 Document: 00511775270 Page: 2 Date Filed: 03/02/2012
No. 11-40639
rights. We review preserved constitutional challenges regarding confrontation
at revocation hearings de novo. United States v. Grandlund, 71 F.3d 507, 509
(5th Cir. 1995). A district court’s failure to articulate a finding of good cause1 for
denying the right to confrontation “may be found to be harmless error where
good cause exists, its basis is found in the record, and its finding is implicit in
the court’s rulings.” Id. at 510.
Delbosque argues that recent cases call into question our prior holding in
United States v. McCormick, 54 F.3d 214, 225 (5th Cir. 1995)2 that permits
“substitutes” for live testimony such as a lab report in a supervised release
revocation proceeding. See Bullcoming v. New Mexico, 131 S. Ct. 2705(2011)(defendant charged with driving while intoxicated has a right of
confrontation of lab technician– rather than a substitute analyst– who tested
the defendant’s blood for alcohol); Melendez-Diaz v. Massachusetts, 557 U.S. 305(2009)(defendant in a drug distribution case was entitled to confront lab
technician who concluded that samples contained cocaine). Contrary to
Delbosque’s contention, McCormick remains good law in the wake of these cases
since both Melendez-Diaz and Bullcoming pertain to a defendant’s confrontation
rights in a criminal trial rather than during revocation proceedings. See United
States v. Minnitt, 617 F.3d 327, 333 n.3 (5th Cir. 2010). Thus, Delbosque did not
have an absolute right to confront the lab technician who concluded that the
substance taken from the parking lot was cocaine.
1
Although Delbosque objected to admission of the challenged report, he did not object
to the district court’s failure to articulate a finding of good cause. The Government, citing
United States v. Davis, 602 F.3d 643, 646-47 (5th Cir. 2010), argues that this failure therefore
is subject only to plain error review. Because we conclude that Delbosque’s challenge fails
under the less deferential harmless error review, we need not decide whether plain error
review is the right standard to apply here.
2
McCormick was, in turn, based upon United States Supreme Court cases that
allowed “flexibility” in permitting evidence other than live testimony in revocation
proceedings. Gagnon v. Scarpelli, 411 U.S. 778, 782 n.5 (1973); Morrissey v. Brewer, 408 U.S.
471, 489 (1972).
2
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No. 11-40639
We agree that the better practice is for the district court to explicitly
articulate its finding of good cause to dispense with live testimony from the lab
technician. See McCormick, 54 F.3d at 220-21. However, because Delbosque
fails to establish more than a minimal interest in cross-examining the lab
technician in question, and given the lab report’s indicia of reliability, the
evidentiary chain of custody established by the Government, and the
Government’s substantial interest in avoiding unnecessary expense and
difficulty, we find that the district court’s failure to articulate a finding of good
cause constitutes harmless error. See McCormick, 54 F.3d at 221. Although
Delbosque makes conclusory assertions that the Government failed to satisfy the
requirements of Grandlund, 71 F.3d at 511, by timely providing him with copies
of the laboratory test and documents relating to it, he did not object on this basis
in the district court, and he fails to show plain error. See United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
Finally, in light of the strong evidence adduced during the revocation
hearing that Delbosque intended to sell the cocaine at issue to a confidential
informant, we cannot say that the district court abused its discretion by revoking
his supervised release based upon his violation of the condition that he not
commit another crime. Minnitt, 617 F.3d at 322.
AFFIRMED.
3