Monday, June 13, 2005

Drug Use Resulting in Revocation Can Be Premised, In Part, on Results Falling Below Cutoffs Established In Testing Companies' Contracts

United States v. Klimek, Docket No. 04-2459 (2d Cir. June 8, 2005) (Meskill, Newman, Cabranes) (Op. by Newman): In this case, briefed and argued by our own David Lewis, the Circuit ruled that, in the context of a supervised release revocation proceeding, a district court was not "per se precluded" from relying upon confirmatory drug test results that fall below the cutoff established by contracts between an outside testing company and the Adminstrative Officer of the United States Courts ("AO").

The facts are straigtforward. Mr. Klimek, after serving a prison sentence but while still on supervised release, used drugs. Initially, he admitted using LSD, pled guilty to violating the terms of his supervised release for that reason, and was sentenced to a term of home confinement. But even before home confinement could be set up, he tested positive again, this time for cocaine use. He denied using cocaine, so his urine sample was sent to an outside testing company for confirmation. The test, which used a gas chromatography/mass spectrometry technique (I couldn't describe it if I tried, but GC/MS is specifically approved in 18 U.S.C. section 3583(d)), detected cocaine metabolite at the level of 118 nanograms per milliliter. The contract between the testing company and the AO, however, required a cutoff of 150 nanograms per millileter in order to confirm a positive test. Mr. Klimek argued that a sub-cutoff test result precluded a finding of drug use.

The district court held a hearing at which a testing company representative testified. She testified that even a 118 nanograms per millileter finding could only be explained by cocaine use. She testified further that Mr. Klimek's urine had been diluted by his drinking copious amounts of water before submitting the sample. Once "normalized" to account for dilution, cocaine metabolite would have been present at over 400 nanograms per millileter. Based on this testimony and Mr. Klimek's admitted history of drug use, the district court concluded that he had, again, violated the terms of his supervised release.

On appeal, David Lewis argued that the district court was precluded from finding that Mr. Klimek ingested cocaine, given that the confirmatory test fell below the cutoff level specified in the contract between the AO and the testing company. His position was premised on two statutes, 18 U.S.C. sections 3583(d) and 3608, which govern drug testing for defendants who face imprisonment and deny the accuracy of initial tests (section 3583(d)), and require the Director of the AO to establish drug testing programs for Federal offenders on post-conviction release which include "standards" and "guidelines" deemed necessary to ensure accurate test results (section 3608).

The Panel, however, rejected defendant's argument. The Panel held that the district court's ruling was supported in this case based on the totality of the evidence -- specifically (1) the defendant's long and uncontroverted history of supervised release violations (why it is kosher to rely on this type of 404(b) propensity evidence is left unexplained), and (2) the fact that the confirmation test, once normalized for dilution, would have reflected the presence of cocaine metabolite far in excess of the cutoff amount.

The Panel declined to decide whether supervised release could be revoked solely on the basis of a confirmatory test result that falls below the cutoff level, so that argument should still be preserved.

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