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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-50591
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
WOODY HYATT MCCORMICK, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Texas
(May 24, 1995)
Before DAVIS and WIENER, Circuit Judges, and VANCE,* District
Judge.
WIENER, Circuit Judge:
Defendant-Appellant Woody Hyatt McCormick, Jr. appeals the
district court's decision to revoke his supervised release and
sentence him to two additional years in prison based on its finding
that he failed to comply with the terms of his supervised release.
McCormick claims in particular that the district court violated his
constitutional right to confront and cross-examine adverse
*District Judge of the Eastern District of Louisiana,
sitting by designation.

witnesses by relying on hearsay as evidence that he possessed a
controlled substance during his period of supervised release. We
conclude that no such constitutional effrontery occurred, and
affirm.
I
FACTS AND PROCEEDINGS
McCormick was convicted of three counts of distribution of
amphetamine and was sentenced to twenty-seven months imprisonment,
followed by five years supervised release (later reduced to three
years). McCormick served the prison term and began his supervised
release in April, 1994, under the supervision of Probation Officer
Humberto Velasquez (Officer Velasquez).
In August of that year, Officer Velasquez filed a Petition on
Supervised Release with the district court, alleging that McCormick
(1) "failed to work regularly at a lawful occupation"; (2) "used
and possessed Amphetamine during the term of his supervised
release; in that on or about July 11, 1994, the defendant tested
positive for Amphetamine"; and (3) "used and possessed
Methamphetamine during the term of his supervised release; in that
on or about July 11, 1994, the defendant tested positive for
Methamphetamine." Officer Velasquez recommended that McCormick's
supervised release be revoked and that he be resentenced.
One week later, the district court held a revocation hearing
at which the government offered evidence to support Officer
Velasquez' allegations. He was the only witness to testify in
2

person at that hearing.
In his testimony, Officer Velasquez first addressed the
allegation that McCormick had failed to maintain lawful employment,
one of the conditions of his supervised release. He testified that
McCormick's former employer reported that McCormick had been fired
for inexplicably failing to appear for work one day. McCormick did
not object to this testimony at trial and does not challenge it on
appeal.
Officer Velasquez' attention then turned to events surrounding
a urine specimen submitted by McCormick on July 11, 1994. Officer
Velasquez discussed the training that he had received in obtaining
urine specimens, and then addressed the chain of custody linking
McCormick to a particular specimen that tested positive for both
amphetamine and methamphetamine. In connection with that
testimony, the government introduced into evidence a document from
a testing facility, PharmChem Laboratories, Inc. (PharmChem), in
which document the test results and laboratory analyses of
McCormick's urine specimen were reported (the "PharmChem urinalysis
report"). This report reveals that the urine specimen was from
McCormick, that McCormick reported taking Advil and Tylenol prior
to providing the specimen, and that the urine tested positive for
both amphetamine and methamphetamine. After stating that he
"acknowledg[ed] the current status of the law," McCormick
nonetheless objected to the introduction of the document in
evidence, arguing that it violated his Sixth Amendment right of
confrontation. The district court overruled this objection.
3

Officer Velasquez next testified that, pursuant to his
request, David W. Fretthold, the Director of Toxicology for
PharmChem (Director Fretthold), submitted an affidavit describing
PharmChem's general testing procedures and results specific to
analyses conducted on McCormick's urine specimen. In that
affidavit, Director Fretthold stated, in particular, that
McCormick's urine sample was analyzed using two separate procedures
and opined that "there is virtually no possibility that the
`positive' result could be produced by any other drug taken by the
subject, or by some interfering substance in the urine, since any
such interfering substance would have to influence both methods to
generate a false positive result." The affidavit was received in
evidence over McCormick's objection that it violated his right of
confrontation.
Officer Velasquez next testified that after he told McCormick
that his urine tested positive, McCormick denied using drugs and
claimed that he had also used "Ventolin," an inhalant that had been
prescribed for his daughter, and that this medication must have
caused his urine to test positive for amphetamine and
methamphetamine. Officer Velasquez stated that he contacted the
laboratory and was informed that like Advil and Tylenol, Ventolin
could not cause urine to test positive for either amphetamine or
methamphetamine. McCormick did not object to Officer Velasquez'
testimony that he was told by laboratory personnel that Ventolin
could not result in urine testing positive for amphetamine or
methamphetamine.
4

Officer Velasquez' testimony then focused on events following
McCormick's admission to a Veterans Administration Hospital (VA
Hospital) on August 8, 1994, just two days before the Petition on
Supervised Release was filed and only nine days before the district
court held the revocation hearing. Officer Velasquez stated that
the VA Hospital analyzed McCormick's urine, and that again his
urine tested positive for amphetamine. Although Officer Velasquez
claimed that he obtained the test results from hospital records on
the morning of the revocation hearing, no documentation was offered
into evidence. McCormick objected to that testimony by Officer
Velasquez, arguing that it was inadmissible hearsay and that it
violated his right of confrontation. Both objections were
overruled.
To corroborate evidence of McCormick's possession of
controlled substances, Officer Velasquez then testified regarding
information he had obtained from a confidential informant (CI).
According to Officer Velasquez, the CI reported having seen
controlled substances in a toolbox in McCormick's garage and having
watched
McCormick
use
and
deal
in amphetamines and
methamphetamines. The CI did not testify at the revocation
proceeding, Officer Velasquez explained, because McCormick had
recently threatened the CI with a firearm. The court overruled
McCormick's objection that this testimony by Officer Velasquez was
inadmissible hearsay.
Officer Velasquez concluded his testimony on redirect by
describing a visit he had recently made to McCormick's home.
5

Officer Velasquez stated that during that visit he saw a scale
similar to the type used to weigh infants, and that after he
noticed the scale the first thing McCormick said was that it "was
not used for drugs." At this point, the government rested its case
and stood on the record; the defense offered no evidence and waived
argument.
Based on all of the evidence, the district court concluded
that McCormick had committed all three violations alleged in the
Petition on Supervised Release, revoked his release, and sentenced
him to twenty-four months imprisonment. McCormick timely appealed,
challenging on confrontation grounds the admission into evidence of
the PharmChem urinalysis report and Officer Velasquez' hearsay
testimony, and claiming that the district court reversibly erred in
failing to make findings of fact on the record concerning the
reliability of the hearsay evidence.
II
ANALYSIS
A.
GROUNDS FOR REVOCATION
A district court may revoke a defendant's supervised release
if it finds by a preponderance of the evidence that a condition of
release has been violated.1 We review for abuse of discretion a
decision to revoke supervised release.2
McCormick failed to object at the revocation hearing to
Officer Velasquez' testimony that he had been told by McCormick's
1See 18 U.S.C. � 3583(e)(3) (1988).
2United States v. Turner, 741 F.2d 696, 698 (5th Cir. 1984).
6

employer that McCormick had been fired for failing to come to work.
Neither does McCormick challenge the admissibility of that
testimony on appeal. As maintaining employment was one of the
conditions of McCormick's supervised release, and as McCormick does
not challenge the district court's conclusion that he failed to
comply with that requirement, the district court did not abuse its
discretion in revoking McCormick's supervised release.3
B.
GROUNDS FOR IMPOSING SENTENCE
After revoking McCormick's release, the district court
sentenced McCormick to twenty-four months in prison. Although the
court did not expressly state on what grounds the sentence was
calculated, we are entitled to assume, in light of guidance by the
U.S. Sentencing Commission (Commission),4 that the length of
McCormick's sentence was determined based on findings that
McCormick both failed to maintain employment and possessed a
3Id. ("`Where there is an adequate basis for the district
court's discretionary action of revoking probation, the reviewing
court need not decide a claim of error as to other grounds that
had been advanced as a cause of revocation.'" (quotation
omitted)); see United States v. Irvin, 820 F.2d 110, 111 (5th
Cir. 1987) ("All that is required for the revocation of probation
is enough evidence to satisfy the district judge that the conduct
of the petitioner has not met the conditions of probation.").
4The Commission has promulgated policy statements in which
it recommends certain periods of incarceration for various
classes of violations of supervised release. See U.S.S.G.
�� 7B1.1-7B1.5.
When a Category IV offender, like McCormick, commits a Grade C
violation, such as failure to maintain employment, the Commission
recommends a range of imprisonment from 6-12 months. See id.
� 7B1.4(a).
7

controlled substance while he was on supervised release.5 As we
have already determined that no error is presented in the court's
ruling that McCormick did not remain employed, we must consider
only whether the district court erred in finding that he used and
possessed a controlled substance.
McCormick contends that the district court reversibly erred in
failing to make findings of fact that the hearsay supporting the
finding that he used and possessed a controlled substance was
reliable; and that the court erred further when it admitted that
hearsay without first weighing his right of confrontation against
the government's reasons for not producing the hearsay declarants.
McCormick insists that even if we were to conclude that those
errors were not reversible, his right of confrontation was violated
by the admission into evidence of (1) the PharmChem urinalysis
report; (2) Officer Velasquez' testimony that tests conducted at
the VA Hospital detected the presence of amphetamines; and
(3) Officer Velasquez' testimony that he was told by the CI that
she saw McCormick use and deal in narcotics. Alleged violations of
the Confrontation Clause are reviewed de novo, but are subject to
a harmless error analysis.6
5If a releasee possesses a controlled substance during a
period of supervised release, then the court is required to
revoke supervised release and impose a prison term not less than
one-third the term of the supervised release))in this case, not
less than one year. 18 U.S.C. � 3583(g); see United States v.
Kindred, 918 F.2d 485, 487 (5th Cir. 1990).
6See United States v. Frazier, 26 F.3d 110, 113 (11th Cir.
1994) (finding harmless district court's error in failing to make
on the record findings that hearsay was reliable or to weigh on
the record defendant's right of confrontation against
8

1.
Failure To Make Explicit Findings: "A Stitch
in Time . . . ."
We first consider whether the district court reversibly erred
in failing to make discrete findings of fact regarding the
reliability of the hearsay evidence or in failing to conduct the
requisite balancing on the record. Although we are disappointed by
the district court's failure to heed both our and the Supreme
Court's clear mandate to make appropriate findings on the record,
we nevertheless cannot conclude that these omissions, in this
particular case, constitute harmful error.7
In United States v. Kindred,8 we noted that procedural due
process requires that a district court render a written statement
specifying the evidence on which it relies in revoking supervised
government's reasons for not producing witness); see, e.g.,
Kindred, 918 F.2d at 448 (holding remand unnecessary to obtain
written statement specifying evidence upon which revocation was
based as evidence overwhelmingly showed defendant possessed a
controlled substance).
7We take this opportunity to entreat the district courts of
this circuit to discharge their obligation to make appropriate
findings on the record whenever such findings are called for. By
so doing, a district court can save significant judicial
resources, as a complete record facilitates appellate review and
decreases the likelihood that a matter will be remanded to
conduct an evidentiary hearing and find facts that could have
easily been found and recounted on the record the first time
through. See, e.g., United States v. O'Meara, 33 F.3d 20 (8th
Cir. 1994) (per curiam). This opinion is a case in point. Had
the district court favored us with record findings and
conclusions such as, for example, whether it found Officer
Velasquez to be a credible witness, whether it credited testimony
that McCormick inhaled Ventolin before providing his specimen, or
that good cause excused the CI from testifying, this case would
likely have resulted in an easy affirmance, probably without the
need for an opinion beyond a simple affirmance consistent with
5th Circuit Rule 47.6.
8918 F.2d 485 (5th Cir. 1990).
9

release.9 In that case, however, we also found that failing to
provide such a statement can be harmless if the evidence presented
at the proceeding overwhelmingly shows that the defendant had
violated the conditions of his supervised release.10
In the instant case, the district court concluded that the
government established the allegations in the Petition for
Supervised Release, and the record makes clear what evidence the
government proffered. Implicit in the district court's judgment,
not to mention its rulings rejecting McCormick's objections, is its
finding that the government's hearsay evidence is reliable.11 Thus,
like the court in Kindred, we find harmless the district court's
otherwise reversible error in failing to identify specifically the
item or items of the government's evidence on which the court
relied.12
A court must expressly find that there is "good cause" to deny
a defendant the right to confront and cross-examine an adverse
9Id. at 488.
10Id.
11See, e.g., United States v. Alaniz-Alaniz, 38 F.3d 788,
791 n.8 (5th Cir. 1994) (stating that implicit in court's ruling
that defendant violated conditions of supervised release was
finding that hearsay testimony was sufficiently credible to
support the government's charge), cert. denied, 115 S. Ct. 1412
(1995).
12Kindred, 918 F.2d at 488; see also United States v.
Copeland, 20 F.3d 412, 414 (11th Cir. 1994) (stating that oral
findings can satisfy Morrissey "when those findings create a
record sufficiently complete to advise the parties and the
reviewing court of the reasons for the revocation of supervised
release and the evidence the decision maker relied upon").
10

witness in a parole revocation hearing.13 McCormick claims that the
district court reversibly erred in failing to make an explicit
finding, on the record, that there was good cause for dispensing
with confrontation during his hearing. We disagree.
The district court overruled McCormick when he objected on
confrontation grounds to the admission of the PharmChem urinalysis
report and to Officer Velasquez' testimony regarding the CI's
observations and the results of the urinalysis conducted at the VA
Hospital. Implicit in those rulings is the conclusion that the
district court believed that the government established good cause
to forego confrontation. Although in some cases the failure to
make such a finding on the record can constitute reversible error
that is not harmless,14 the clarity of the testimony and the quality
and extent of the documentary evidence in the instant case are
sufficient to enable us to review the district court's implicit
13Morrissey v. Brewer, 408 U.S. 471, 489 (1972).
14See, e.g., United States v. O'Meara, 33 F.3d 20, 21 (8th
Cir. 1994) (per curiam). In O'Meara, the Eight Circuit ruled in a
per curiam opinion that a district court reversibly erred in
admitting challenged hearsay evidence without expressly engaging
in the requisite balancing on the record. Unlike O'Meara, which
concerned the admission of oral hearsay, the instant case
involves the reliability of hearsay contained in a urinalysis
report, which we have noted is "ordinarily more reliable than
oral hearsay statements." Kindred, 918 F.2d at 487 n.2. We
further infer from the O'Meara opinion that the record in that
case, unlike here, was insufficient to permit meaningful review
by the appellate court, making remand necessary. Otherwise a
remand would not have been necessary, as confrontation challenges
are subject to harmless error analysis. See United States v.
Frazier, 26 F.3d 110, 113 (11th Cir. 1994); Kindred, 918 F.2d at
488.
11

conclusions.15 As such, we deem it unnecessary to remand to that
court for it to make explicit that which is already implicit.
Whether the naked record, absent such express findings, is
sufficient to withstand scrutiny is another matter, to which we now
advert our attention.
2.
Right of Confrontation
In Morrissey v. Brewer,16 the Supreme Court held that a
defendant must receive a fair and meaningful opportunity to refute
or impeach evidence against him "to assure that the finding of a
parole violation will be based on verified facts."17 That means,
according to the Court, that among a defendant's rights in a
parole-revocation hearing is "the right to confront and cross-
examine adverse witnesses (unless the hearing officer specifically
finds good cause for not allowing confrontation)."18 The due
process requirements recognized in Morrissey are incorporated in
Federal Rule of Criminal Procedure 32.1(a)(2), which is applicable
15See, e.g., Alaniz-Alaniz, 38 F.3d at 791 n.8 (finding
harmless district court's error in failing explicitly to engage
in balancing test); United States v. Bell, 785 F.2d 640, 643 n.3
(8th Cir. 1986) (stating that, although district court did not
make explicit finding of "good cause" to dispense with
confrontation, such finding was implicit in decision overruling
releasee's objections, and record was "sufficiently clear to
enable us to review the district court's implicit findings,"
making remand unnecessary); see also Kindred, 918 F.2d at 488
(requiring no remand where evidence "overwhelming showed"
releasee possessed controlled substance).
16408 U.S. 471 (1972).
17Id. at 484.
18Id. at 489. In Gagnon v. Scarpelli, 411 U.S. 778, 782
(1973), the Court extended those same rights to probationers.
12

to supervised release revocation proceedings.19 Therefore, "[t]he
same protections granted those facing revocation of parole are
required for those facing the revocation of supervised release."20
In determining whether to invoke the Morrissey "good cause"
exception to a defendant's right of confrontation, courts are
instructed to employ a balancing test in which they are to weigh
"the [defendant's] interest in confronting a particular witness
against the government's good cause for denying it, particularly
focusing on the `indicia of reliability' of a given hearsay
statement."21 We must now determine whether the government met its
burden of showing that the good cause for pretermitting live
testimony outweighed McCormick's right to confront the hearsay
declarants.
a.
PharmChem Urinalysis Report
McCormick complains that his right of confrontation was
violated when he challenged the reliability of the PharmChem
urinalysis test results but was not permitted to cross-examine the
laboratory technicians who performed those tests. In particular,
McCormick contends that he offered a reasonable explanation how his
specimen could have tested positive for amphetamines and
methamphetamines without his having ingested those narcotics; and
19FED. R. CRIM. P. 32.1(a)(2).
20United States v. Copeland, 20 F.3d 412, 414 (11th Cir.
1994).
21United States v. Kindred, 918 F.2d 485, 486 (5th Cir.
1990) (quoting Farrish v. Mississippi State Parole Bd., 836 F.2d
969, 978 (5th Cir. 1988)).
13

that his right of confrontation was infringed when he was denied
the opportunity to cross-examine the technicians regarding his
theory. We are not convinced, however, that under the totality of
the circumstances McCormick's interest in confronting those
witnesses is sufficient to overcome the government's good cause for
denying confrontation.
i.
McCormick's Interest
The laboratory results were obviously important to the
district court's finding that the releasee possessed a controlled
substance: McCormick denied using narcotics, and the PharmChem
urinalysis report is the most reliable evidence that, to the
contrary, he did use drugs.22 The significance of those test
results is magnified further by the fact that a finding of
McCormick's use and possession of narcotics triggered application
of the mandatory minimum sentence specified in 18 U.S.C.
� 3583(g).23
Still, we find minimal McCormick's interest in confronting the
technicians who conducted the tests. In United States v. Pierre,24
Judge Easterbrook recently reasoned in another context, but in
words equally applicable here:
22Id. at 487 n.2 ("Regular business reports, like the
urinalysis tests, are ordinarily more reliable than oral hearsay
statements.").
23See United States v. Martin, 984 F.2d 308, 312 (9th Cir.
1993) (noting that importance of urinalysis test results was
increased due to consequences of finding that releasee possessed
and used drugs).
2447 F.3d 241, 242 (7th Cir. 1995).
14

What was the technician going to say on the stand? One
vial of urine looks like another; the technicians would
not have remembered what they did with [the releasee's]
specimens and therefore would have described their normal
procedures, and the judge would not have been
enlightened.25
Continuing, Judge Easterbrook noted that "[a] court cannot resolve
scientific controversies by looking witnesses in the eye; the
question is not whether a technician believes the tests accurate
but whether they are accurate."26 Furthermore, "[t]o find out
whether tests are accurate, one uses the methods of science."27 It
follows, therefore, that a releasee's interest in cross-examining
a laboratory technician regarding a scientific fact is less than
would be his interest, for example, in confronting a hearsay
declarant regarding what that declarant may have seen. The truth
of the former can be verified through methods of science; the truth
of the later can best be verified through the rigor of cross-
examination, conducted under the circumspect eye of the district
court. As McCormick is essentially contesting an issue of science,
i.e., whether a certain medication can produce a specific result
during laboratory testing, his interest in confronting the
technicians who conducted the tests is not substantial.
Moreover, denying McCormick the right to cross-examine the
laboratory technicians did not significantly deny him the
opportunity to impeach or refute the government's evidence of his
25Id. at 243.
26Id. (emphasis in original).
27Id.
15

possession. Innumerable avenues were available to McCormick to
refute the government's proof; he merely failed to pursue them.
For example, had McCormick wanted to question the technicians who
performed the analyses, or even Director Fretthold, he could have
sought a subpoena ordering their appearance.28 But this he did not
do. McCormick could also have requested that his specimen be
retested by PharmChem or another laboratory.29 But this he did not
do. He could have sought to obtain evidence impugning the
reliability of the laboratory or its testing methods.30 But this
he did not do. Perhaps the avenue most likely to help the argument
he pursued during the revocation hearing, McCormick could have
introduced evidence to support his unsupported conclusionary
contention that the presence of Advil, Tylenol, or Ventolin in his
system could cause his specimen to test positive for the presence
of amphetamines and methamphetamines.31 But this too he did not do.
In sum, McCormick had available a host of alternative ways to
challenge the hearsay in the PharmChem urinalysis report, but he
28See id.; United States v. Siqueiros, 21 F.3d 1118 (9th
Cir. 1994) (table opinion) (text available at 1994 WL 134527),
cert. denied, 115 S. Ct. 161 (1994).
29It is PharmChem's policy to maintain positive specimens
for at least three months, but there is no evidence in the record
that McCormick requested, or that the district court denied a
request, to have the specimen retested. Compare United States v.
Martin, 984 F.2d 308, 312 (9th Cir. 1993) (finding violation of
confrontation rights where, inter alia, "court denied Martin the
opportunity to retest the samples independently").
30See Pierre, 47 F.3d at 243.
31See generally id. at 242-43 (discussing types of evidence
that defendant could have, but did not, adduce to "cross-examine"
urinalysis reports).
16

either did not seek or could not find the evidence to support those
alternatives. In any event, however, the record makes clear that
McCormick was not denied in any manner whatsoever the opportunity
to rebut with his own proof the government's evidence of his
possession and use of illegal narcotics.
This fact makes the instant case distinguishable from United
States v. Martin,32 another case in which a defendant argued that
the admission into evidence of a PharmChem urinalysis report
violated his right of confrontation. In that case, the Ninth
Circuit found that a releasee was given virtually no opportunity to
refute urinalysis results, as the government proffered no evidence
regarding either the particular tests employed on the specimens or
PharmChem's general testing and handling procedures. Furthermore,
the district court denied without explanation the defendant's
request to allow an independent retesting of his specimens. Here,
in stark contrast to the facts of Martin, the government offered
the affidavit of Director Fretthold describing in detail
PharmChem's general testing procedures and the results of the
particular analyses conducted on McCormick's specimen, and
specifically refuting McCormick's allegation that a positive result
could be produced by taking another medication.33 More important,
McCormick, unlike the defendant in Martin, was not refused any
32984 F.2d 308 (9th Cir. 1993).
33See United States v. Siqueiros, 21 F.3d 1118 (9th Cir.
1994) (table opinion) (text available at 1994 WL 134527)
(distinguishing Martin on similar grounds), cert. denied, 115 S.
Ct. 161 (1994).
17

request to obtain evidence to refute the government's case))he
simply made no effort to obtain such potentially exculpatory
proof.34 And, harking once more to Judge Easterbrook, we hear:
"Judges rely on the self-interest of the parties to flag declarants
to be unreliable, and they rely on their own skills to get at the
truth."35
ii.
Government's Good Cause
The reliability of the hearsay is an important consideration
in determining whether sufficient good cause exists to forego
confrontation.36 We, like other courts, have consistently
recognized that urinalysis reports bear substantial indicia of
reliability,37 as they "`are the regular reports of a company whose
business it is to conduct such tests, and which expects its clients
to act on the basis of its reports.'"38 Still, they are not so
34Compare Pierre, 47 F.3d at 243 (noting that releasee
"insisted that the prosecutor bore the entire burden, that by
relying on written submissions the prosecutor had not shouldered
the burden, and that he [the releasee] therefore need not present
any evidence").
35Id. (quoting United States v. Atkin, 29 F.3d 267, 269 (7th
Cir. 1994)).
36United States v. Kindred, 918 F.2d 485, 486 (5th Cir.
1990) (noting that courts "particularly focus[] on the indicia of
reliability" when assessing good cause to deny confrontation).
37See, e.g., Pierre, 47 F.3d at 242 (stating urinalysis
reports, as "written reports of medical tests," are "in the main
reliable"); United States v. Bell, 785 F.2d 640, 643 (8th Cir.
1986) (stating that "urinalysis laboratory reports bear
substantial indicia of reliability. They are the regular reports
of a company whose business it is to conduct such tests, and
which expects its clients to act on the basis of its reports").
38 United States v. Martin, 984 F.2d 308, 314 (9th Cir.
1993) (quoting Bell, 785 F.2d at 643).
18

inherently reliable as to be automatically admissible in any
revocation hearing.39
In this case, however, the government proffered significant
evidence demonstrating that the information reported in this
particular PharmChem urinalysis report is extremely reliable.
Officer Velasquez testified to his extensive training in obtaining
urine specimens.40 He described, step-by-step, the specimen's
unbroken chain of custody, starting with McCormick and continuing
until the specimen was mailed to PharmChem.
Director Fretthold picked up the story from there. In his
affidavit, he described PharmChem's general procedures for
receiving specimens through the mail and then ensuring the
integrity of those specimens throughout the entire testing
process.41 He further explained, in detail, PharmChem's experience,
its certifications, the various testing procedures that it employs,
the reliability of those procedures, and the company's quality
control measures. Next he discussed the records pertinent to
McCormick's specimen. He stated that PharmChem's records indicate
that the specimen had been tested using standard PharmChem
procedures; that testing detected the presence of amphetamine; and
39Id. at 313.
40Compare id. at 314 n.10 (noting that probation officer had
only three and one-half months experience obtaining specimens for
urinalysis testing).
41Compare id. at 313 (distinguishing United States v.
Burton, 866 F.2d 1057, 1058 (8th Cir.), cert. denied, 490 U.S.
1110 (1989), on basis that in that case "government supported
urinalysis results with an affidavit from the director of the
laboratory").
19

that, as per PharmChem's standard procedures, the positive specimen
was retested using a second methodology, which additional test
confirmed the presence of amphetamine and methamphetamine.
Officer Velasquez' testimony and Director Fretthold's
affidavit establish that this particular urinalysis report provided
extremely reliable information regarding McCormick's possession of
illegal narcotics. We note too that requiring laboratory
technicians to appear in person at McCormick's parole revocation
hearing would have incurred some difficulty and expense.42
Substantial evidence enhanced the reliability of the
information contained in the PharmChem urinalysis report. We
cannot fathom what additional, enlightening information the
district court could have gleaned had McCormick been permitted to
cross-examine the laboratory technicians. In light of the at-best
marginal benefit to be gained by requiring those technicians to
submit to cross-examination, the significant number of available
but unavailed options to confront the urinalysis report, the
reliability of this particular urinalysis report, and the
difficulty and cost associated with requiring those technicians to
appear at the hearing, we conclude that the record supports an
implicit finding by the district court that the government showed
good cause for denying McCormick's right to confront the laboratory
technicians.
b.
Director Fretthold's Affidavit
42See United States v. Kindred, 918 F.2d 485, 486 n.1 (5th
Cir. 1990) (quoting Gagnon v. Scarpelli, 411 U.S. 778, 783 n.5
(1973)).
20

Although McCormick does not specifically complain that he was
denied an opportunity to confront Director Fretthold, we infer such
a challenge from his contention that he should have been permitted
to cross-examine laboratory "technicians." Further, as Director
Fretthold's statements are the ones that unequivocally refute
McCormick's "false positive" theory, we will interpret McCormick's
argument broadly and consider whether the admission into evidence
of Director Fretthold's affidavit infringed McCormick's right of
confrontation.
i.
McCormick's Interest
We begin with the observation that Director Fretthold stated
in his affidavit that "there is virtually no possibility that the
`positive' result could be produced by any other drug taken by the
subject, or by some interfering substance in the urine, since any
such interfering substance would have to influence both methods to
generate a false positive result." This statement completely
debunks McCormick's "false positive" theory.
Had McCormick presented any evidence to support his theory,
his interest in confronting Director Fretthold's statement might
have had legal significance.43 Indeed, the district court would
43See, e.g., United States v. Bell, 785 F.2d 640, 643 n.4
(8th Cir. 1986) (finding no violation of right of confrontation
where, inter alia, "no evidence was presented to contradict
Bell's drug usage, and [Bell] made only general, unsubstantiated
claims that the laboratory tests may have been defective"
(emphasis added)); United States v. Penn, 721 F.2d 762, 766 (11th
Cir. 1983) (noting that Penn's confrontation rights were not
infringed "[i]n the absence of any evidence tending to contradict
Penn's drug usage or the accuracy of the tests" (emphasis
added)); see also Kindred, 918 F.2d at 487 (citing Penn with
approval).
21

then have had before it contradictory evidence whether those
medications could cause a false result, making more important the
issue of the credibility and knowledge of the witnesses who
provided contradictory expert testimony. As it is, however, the
only such evidence before the court was Director Fretthold's
affidavit. Although his testimony is important to support a
finding that the PharmChem urinalysis report is reliable, it is not
necessary to contradict any exculpatory evidence proffered by
McCormick. As Director Fretthold's affidavit was used in such a
limited manner, we find McCormick's interest in confronting
Fretthold analogous to))and no more important than))his interest in
confronting any ordinary laboratory technician involved in testing
the specimen.
ii.
Government's Good Cause
Turning to the government's good cause for denying McCormick
an opportunity to confront Director Fretthold, we note at the
outset that oral hearsay, such as that found in Director
Fretthold's affidavit, is generally considered to be less reliable
than a business record, such as the PharmChem urinalysis report.44
Nonetheless, we discern in this particular affidavit significant
indicia of reliability.
First, Director Fretthold submitted his oral hearsay under
oath and penalty of perjury, thus making his statements more
reliable than unsworn hearsay generally. Second, whether a given
medication can cause a specimen to test positive for a given
44Kindred, 918 F.2d at 487 n.2.
22

controlled substance is essentially a scientific fact which, as
observed above, can be verified or refuted through scientific
methods. We comfortably assume that a substantial laboratory of
national prominence, which performs a significant volume of
urinalyses for the government and relies substantially on such work
for its economic viability, values its reputation for accuracy and
expertise in the field))as would its director of toxicology. As we
view Director Fretthold's testimony as tantamount to that of a
"scientist" who is merely confirming under oath a scientific fact
that is verifiable and within his area of expertise, we are
satisfied that his testimony has significant indicia of
reliability.
Furthermore, we believe that the government has good cause not
to require a laboratory director, such as Director Fretthold, to
testify in person in every proceeding in which a defendant baldly
asserts, without presenting any supporting evidence whatsoever,
that a positive urinalysis was or could have been caused by some
medication that he was then taking. Such a requirement would
likely be disruptive to the laboratory and costly to the
government, yet add little if anything to the reliability of the
test results in question.
In Morrissey, the Supreme Court urged courts to apply
evidentiary rules flexibly in revocation hearings,45 and in Gagnon,
45Morrissey v. Brewer, 408 U.S. 471, 489 (1972) (stating
that "the process should be flexible enough to consider evidence
including letters, affidavits, and other material that would not
be admissible in an adversary criminal trial").
23

the Court explained further that, "[w]hile in some cases there is
simply no alternative to live testimony, we emphasize that we did
not in Morrissey intend to prohibit use where appropriate of the
conventional substitutes for live testimony, including affidavits,
depositions, and documentary evidence."46 We find entirely
appropriate as a substitute for live testimony the government's use
of documentary evidence such as the PharmChem urinalysis reports
here when, as here, the reliability of the information in the
document is supported by both live and affidavit testimony. We
further find that an affidavit of a laboratory director is also an
appropriate substitute for his live testimony, especially when the
purpose of that affidavit is merely to relate easily verifiable
scientific information, such as that provided by Director Fretthold
here.47
3.
Other Evidence
The combination of the undisputed proof of McCormick's work
failure, the PharmChem urinalysis report, and Director Fretthold's
affidavit, provide sufficient competent evidence from which a
district court could reasonably conclude that McCormick violated
the terms of his supervised release by failing to maintain
employment and by unlawfully possessing and using a controlled
substance, thereby requiring revocation of his supervised release
46Gagnon v. Scarpelli, 411 U.S. 778, 782 n.5 (1973).
47See generally United States v. Pierre, 47 F.3d 241, 243
(7th Cir. 1995) ("A court cannot resolve scientific controversies
by looking witnesses in the eye . . . . To find out whether
tests are accurate, one uses the methods of science.").
24

and justifying his sentence.48 It is therefore unnecessary for us
to reach the issue whether the district court erred in admitting
the additional evidence of McCormick's possession of narcotics.49
Concluding for the foregoing reasons that the evidence which we
here find to have been properly admitted was sufficiently reliable
and probative))and at most harmlessly violated McCormick's
confrontation right))to support revocation of supervised release
and imposition of an additional sentence of two years, we affirm
the judgment of the district court in all respects.
AFFIRMED.
48See Morrissey, 408 U.S. at 484 (requiring evidence be
sufficient to "assure that the finding of a parole violation [is]
based on verified facts").
49We are troubled by the district court's apparent admission
of Officer Velasquez' testimony regarding the CI. Had that been
the only evidence of McCormick's drug possession, we are
confident that the district court would have erred in relying on
it as competent evidence, see Farrish v. Mississippi State Parole
Bd., 836 F.2d 969 (5th Cir. 1988), unless, of course, the court
made a specific finding that good cause excused the CI from
testifying, see Morrissey, 408 U.S. at 489.
25