UNITED STATES of America, Plaintiff-Appellee, v. James Stanley BENTLEY, Defendant-Appellant.
No. 88-1606.
United States Court of Appeals, Fifth Circuit.
June 12, 1989.
Rehearing and Rehearing En Banc Denied Aug. 2, 1989.
875 F.2d 1114
Flores further asserts that the convictions should be considered “related” because all six were consolidated for sentencing. His argument is based on the fact that the six sentences ran concurrently. His argument fails. While two judges ordered that the sentence for the separate convictions begin on September 8, 1972, they made no reference to any of the other convictions. The third judge did not specify September 8 as the starting date; however, that date was the effective date because the court ordered that Flores receive credit for the 688 days he had already served. It was through operation of the law then that the sentences ran concurrently.
The commission shall assure that the guidelines specify a sentence to a substantial term of imprisonment for categories of defendants in which the defendant—(1) has a history of two or more prior federal, state, or local felony convictions for offenses committed on different occasions; . . .
We find that Flores has more than two convictions that are “unrelated” as to their trials and sentences. Flores is a “career offender” under the Guidelines.
IV. Conclusion
We affirm the sentence imposed by the district court. We find enough evidence in the record to uphold the district court‘s determination that the prior convictions of Flores were for burglaries of residences, and thus, “crimes of violence.” The district court also correctly found that at least two of the convictions were not related. His sentence then was correctly imposed by the court using the classification of “career offender.”
AFFIRMED.
Before BROWN, WILLIAMS and JOLLY, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
James Stanley Bentley appeals from a conviction for drug offenses, asserting various errors in the trial court. We affirm.
I
On September 16, 1987, a radar operator for the United States Customs Service detected an airplane on the Mexican side of the border heading toward the United States. Radar tracked the plane, and customs aircraft followed it. Eventually, the plane ran out of fuel and crashed near Lubbock, Texas. Bentley, the sole passenger in the plane, ran away from the wreck across a field and then lay face down. Customs agents, who had landed their aircraft nearby, found Bentley conscious but injured, with a brief case containing personal items and a change of clothing. In the wrecked plane, the agents detected a strong odor of marijuana. They also found in the plane a current driver‘s license, an expired driver‘s license, a credit card and a business card belonging to Bentley, and they found marijuana scattered around the crash site. Bentley was given first aid and taken to the hospital. The pilot, who had been pinned in the wreck, was also taken to the hospital but did not survive.
Bentley was charged with five counts of possessing, smuggling, and importing marijuana and conspiracy, in violation of federal statutes. See
During trial, the prosecution put into evidence medical records from Lubbock General Hospital, detailing Bentley‘s medical condition and treatment after being taken to the hospital from the wreck. The records included the results of a urine test revealing the presence of cannabinoids (found in marijuana) in Bentley‘s system. The prosecution also put on the stand the custodian of records at Lubbock General. The defendant‘s objection to admission of the records was overruled.
The defendant also objected, at least during an informal discussion, to the following jury instruction relating to the two counts that involved facilitation of transportation of marijuana: “Proof of defendant‘s possession of such goods, unless explained to the satisfaction of the jury, shall be deemed evidence sufficient to authorize conviction for violation of this section.” The court deleted the clause “unless explained to the satisfaction of the jury.” The defense then objected generally to any denial of its requested instructions and to the inclusion of any instruction it had opposed. The trial court overruled these objections.
Bentley was convicted of all five counts and filed a timely notice of appeal.
We first consider whether Bentley‘s conviction must be reversed because, as he argues, the trial court erred in admitting the medical records into evidence. At trial the defendant objected, correctly, that the medical records were hearsay. See
It is unnecessary to reach these questions, however, if the alleged errors were sufficiently harmless. The Federal Rules of Criminal Procedure provide that any error which does not affect substantial rights shall be disregarded.
In this case, the other evidence of Bentley‘s guilt leaves us with no doubt that any error involving Bentley‘s right to confront witnesses was harmless. It is obvious that Bentley was in the airplane that came from Mexico, attempted to evade the authorities and crashed only when it ran out of gas. That he was one of only two people in the airplane, especially when unexplained by any evidence in the case, is thoroughly damning. It is further obvious that a substantial quantity of marijuana was in the airplane and that it was discharged from the airplane while in flight. Customs agents testified that a strong odor of marijuana was present in the airplane even after the crash. An El Paso police officer testified that in 1986 she caught Bentley smoking marijuana and in possession of a small amount of additional marijuana when she pulled him over for speeding. This testimony was admitted into evidence for the purpose of establishing Bentley‘s familiarity with marijuana and to prove that, given the strong odor of marijuana in the airplane, Bentley could not have been an unknowing bystander. These facts, completely aside from the medical records challenged on appeal, would have compelled a reasonable jury to convict Bentley. In other words, we are convinced beyond a reasonable doubt that, even in the absence of the report showing the presence of cannabinoids in Bentley‘s system, no reasonable juror would have voted to acquit. The report added very little to the evidence before the jury. It indicated only that Bentley was familiar with marijuana, including its smell, when that familiarity was independently demonstrated by the El Paso police officer‘s testimony. Jurors are instructed to use their common sense. Given these facts, no reasonable person would have concluded that Bentley was an innocent hitchhiker. Thus, even if the admission of the records violated the hearsay rules or the confrontation clause, an issue we do not decide, such error was harmless beyond a reasonable doubt.
III
The next question is whether the trial court improperly declined to exclude evidence as a sanction against the government for untimely disclosure of prior extraneous transactions, statements made to officers and a witness list. The defense argues that it had insufficient notice, contrary to a pretrial discovery order, of the prosecution‘s intent to introduce evidence of three prior extraneous offenses and evidence of statements made by Bentley to customs agents, as well as a list of intended witnesses. The government responds that it was unable to contact defense counsel, and that it then filed the information with the court. In addition, the government claims that Bentley had no right under the order or otherwise to the officer‘s reports. Bentley nevertheless argues that the evidence of extraneous offenses and his statements to customs agents should have been excluded as a sanction against the government for failing to comply with the court‘s discovery order.
The district court has the power to remedy a party‘s failure to comply with discovery.
IV
Finally, we address whether the jury instruction on evidence of possession as sufficient to prove fraudulent and knowing concealment and facilitation of transportation was erroneous, and whether any objection was waived. Bentley argues that the jury instruction on counts one and five allows evidence of mere possession to shift the burden to the criminal defendant of disproving fraudulent and knowing concealment and transportation; he complains that shifting the burden violated his right to remain silent and his right to have the government prove his guilt beyond a reasonable doubt.
The government primarily relies on its position that any objection was waived. Defense counsel successfully requested the deletion of the clause “unless explained to the satisfaction of the jury.” Counsel appears to have been fully satisfied with the court‘s ruling since he pressed no further objection except for a later general objection. Under the circumstances, the government is correct that the specific objection was not preserved. Thus we will not reverse the conviction based on Bentley‘s argument that the instruction violated his constitutional rights unless the jury instruction was plain error. See
We hold that the instruction was not plain error. In addition, even if the instruction were erroneous, it was harmless beyond a reasonable doubt. Chapman, 386 U.S. at 24, 87 S.Ct. at 828. The instruction, as originally proposed, came directly from the statute, which provides in part:
Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law—
Shall be fined not more than $10,000 or imprisoned not more than five years, or both.
Proof of defendant‘s possession of such goods, unless explained to the satisfaction of the jury, shall be deemed evidence sufficient to authorize conviction for violation of this section.
In conclusion, we find no basis for reversing Bentley‘s conviction. First, any error committed by allowing the medical records into evidence was harmless beyond a reasonable doubt. Second, the district court did not abuse its discretion in deciding not to exclude evidence as a discovery sanction. Finally, the jury instruction did not constitute plain error. Bentley‘s conviction is therefore
AFFIRMED.
JERRE S. WILLIAMS, Circuit Judge, dissenting:
I concur in parts III and IV of the majority opinion.1 The majority errs, however, in holding that it was harmless error to admit as a business record a laboratory report that indicated, simply by the presence of a check mark, that Bentley‘s urine tested positive for marihuana use.2 The majority concludes that this evidence was inconsequential, suggesting that Bentley is unquestionably guilty of importing and possessing marihuana because he was a passenger in a plane transporting odiferous drugs. I cannot join in this misapplication of the harmless error analysis. Moreover, I conclude that the constitutional right to confront adverse witnesses is violated by admitting the results of a urine drug test as a business record when the laboratory report contained no indication of how the test was conducted and the defendant had no opportunity to elicit this information on cross-examination.
I. Harmless Error
The majority holds that any error in admitting the positive results of Bentley‘s urine drug test was harmless. They correctly cite the test for harmless error: error is harmless where, after reviewing the facts of the case and surrounding circumstances, the evidence unrelated to the alleged constitutional violation “remains not only sufficient to support the verdict but so overwhelming as to establish the guilt of the accused beyond a reasonable doubt.” Germany v. Estelle, 639 F.2d 1301, 1303 (5th Cir.), cert. denied, 454 U.S. 850, 102 S.Ct. 290, 70 L.Ed.2d 140 (1981). In applying this test, however, the majority simply concludes that “it is obvious” that Bentley was a passenger in the plane, that marihuana was discharged from the plane during flight (this evidence is not obvious although it is a distinct possibility), and that the odor of marihuana was present when the plane crashed. Supra, p. 1118. Some of this may be obvious, but it is not evidence of Bentley‘s guilt that is so overwhelming that we can be certain beyond a reasonable doubt that the laboratory test indicating Bentley‘s marihuana use did not contribute to the guilty verdict. See Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705 (1967).
Harmless error “is an exacting standard that must be uncompromisingly applied.” Harryman v. Estelle, 616 F.2d 870, 876 (5th Cir.), cert. denied, 449 U.S. 860, 101 S.Ct. 161, 66 L.Ed.2d 76 (1980). Error is harmless only when the evidence is unusually strong and convincing, so that no reasonable doubt remains as to the disputed issue. See Spears v. Circuit Court, Ninth Judicial Dist., 517 F.2d 360, 366-67 (5th Cir.1975) (In prosecution of midwife for performing illegal abortion, it was harmless error for the state to have failed to call as witnesses the nurse and receptionist at the laboratory that performed the pregnancy test on the woman who received the abortion. The error was harmless because the testimony of two physicians, the lab technician who performed the pregnancy test, and the woman who received the abortion conclusively established her preg-
The majority concludes that the fact “that [Bentley] was in the airplane, especially when unexplained by any evidence of the case, is thoroughly damning.” Supra, p. 1118. The clear implication of this statement is that an individual‘s presence when a drug crime is being committed is conclusive evidence of his guilt. This Court, however, has consistently held to the contrary. Mere presence at the site of criminal activity is not sufficient evidence to convict an individual of participating in a drug conspiracy or possessing a controlled substance. United States v. Espinoza-Seanez, 862 F.2d 526, 537 (5th Cir.1988). See also United States v. Sneed, 705 F.2d 745, 749-50 (5th Cir.1983) (Son was present when twenty men congregated on his father‘s property to unload approximately 35,000 pounds of marihuana from a boat during the night. This evidence was found insufficient to sustain the son‘s conviction for possessing marihuana with intent to distribute). The fact that the smell of marihuana pervaded the plane and the crash site is also not overwhelming evidence of Bentley‘s guilt. In words particularly applicable to this case, we have noted that “it is not enough for [the evidence] merely to establish a climate of activity that reeks of something foul.” United States v. Galvan, 693 F.2d 417, 419 (5th Cir.1982).
In short, the fact that Bentley was a passenger (and not the pilot) of an airplane that contained marihuana, while certainly evidence of his guilt, is not so overwhelming as to render any other improperly admitted evidence harmless beyond a reasonable doubt. Moreover, in holding that any error in admitting the laboratory report was harmless, the majority fails to consider the impact this evidence had on Bentley‘s defense. Throughout the trial, Bentley‘s counsel argued that the government had failed to prove that Bentley had knowledge of the criminal activity and possession of the marihuana. In support of this defense, the trial testimony indicated that Bentley ran a business selling Mexican folk art, and thus had a legitimate reason to travel to and from Mexico. The evidence also established that it was the pilot who purchased, fueled, and flew the plane; Bentley was not licensed to fly.
The laboratory report indicating that Bentley‘s urine tested positive for marihuana after the crash severely undermines Bentley‘s contention that he did not possess the marihuana. It is for this reason, of course, that the government specifically mentioned the positive urine test in its closing argument.4 In view of Bentley‘s defense and the circumstantial evidence upon which the government relied, the admission of the laboratory report, which provided the only physical evidence linking Bentley to marihuana, was not harmless error.
II. Admission of the Laboratory Report
Turning to the merits of Bentley‘s claim, I conclude that the admission of the labo-
The Confrontation Clause protects “the accuracy of the truth-determining process in criminal trials by assuring that the trier of fact has a satisfactory basis for evaluating the truth of [a] prior [out-of-court] statement.” Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed.2d 213 (1970). In determining whether hearsay can be admitted consistent with this constitutional guarantee, the focus is on the “indicia of reliability” accompanying a statement. Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S.Ct. 2308, 2313, 33 L.Ed.2d 293 (1972). Evidence admitted pursuant to a “firmly rooted” exception to the hearsay rule is usually, but not always, found to be sufficiently reliable to comport with constitutional requirements. See Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980).7
In short, none of the indicia of reliability that are usually present when the results of a laboratory drug test are admitted into evidence accompanied the report in this case.8 Other courts have concluded that medical reports admitted “without a detailed explication of either the facts or reasoning processes on which they were based” violate a defendant‘s right to confront adverse witnesses. Phillips v. Neil, 452 F.2d 337, 347 (6th Cir.1971), cert. denied, 409 U.S. 884, 93 S.Ct. 96, 34 L.Ed.2d 141 (1972); Pickett v. Bowen, 626 F.Supp. 81, 85 (M.D.Ala.1985), aff‘d per curiam, 798 F.2d 1385 (11th Cir.1986). This is a sound rule to apply in the drug testing context, where some of the common laboratory procedures produce a high rate of false positive results and are considered adequate only for screening purposes.9
This Court has expressly recognized that the reliability of urine drug tests varies greatly according to the type of laboratory procedure employed.10 When a laboratory report omits this crucial information, and no witness is available at trial to explain the testing procedure, there is no way to determine if the test results are reliable. The laboratory report in this case, which contained a check mark and nothing more, is simply hearsay without any indicia of reliability. As such, its admission into evidence violated Bentley‘s constitutional right to confront adverse witnesses.
III. Conclusion
As the majority concedes, Bentley‘s conviction rests on circumstantial evidence. The results of a laboratory test indicating marihuana use was the only physical evidence linking Bentley to marihuana. The admission of the laboratory report into evidence was error and was not harmless.
Bentley had no opportunity to question the accuracy of the laboratory report indicating that his urine tested positive for marihuana use. A check mark alone was deemed sufficiently reliable to overcome
In an era where urine drug testing is increasingly common, reports of positive tests will undoubtedly appear, not infrequently, in criminal trials. Under the Confrontation Clause, a defendant must be afforded the opportunity to ascertain how this devastating information was obtained. The Constitution does not allow a simple check mark on a piece of paper to be used to establish conclusively the drug use of a criminal defendant. I must dissent. The case should be reversed for a new trial.
UNITED STATES of America, Plaintiff-Appellee, v. Javier LOPEZ, Defendant-Appellant.
No. 88-2765.
United States Court of Appeals, Fifth Circuit.
June 12, 1989.
Patrick J. McGuire, Corpus Christi, Tex. (Court-appointed), for defendant-appellant.
Paula C. Offenhauser, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.