United States of America v. Jori Shamir Ferguson

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 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

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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, 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

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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 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.

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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

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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

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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.” 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

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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 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

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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, 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

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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

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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

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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 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

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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

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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, ---

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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, 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.

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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 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

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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).

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