United States of America v. Marcus Burrage

St. Louis, MO - Criminal defense lawyer represented defendant with possession of heroin and three Grade C violations for disobeying the probation office charges.

In 2011, a jury found Burrage guilty of two counts of distributing heroin.

United States v. Burrage, 687 F.3d 1015, 1018 (8th Cir. 2012), reversed, 571 U.S.

204, 218-19 (2014) (holding that the defendant's drugs must be a but-for cause of a

death or serious bodily injury under 21 U.S.C. § 841(b)(1)(C)), remanded, 747 F.3d

995, 997-98 (8th Cir. 2014) (remanding for resentencing on lesser included offense

of distribution of heroin). The district court sentenced Burrage to 78 months'

imprisonment concurrently on each count, followed by three years of supervised

release. He began his supervised release on February 13, 2017.

On April 9, 2018, Chicago police stopped a vehicle reported as stolen.

Burrage, a passenger, was searched. According to Officer Michael Mancha, the

police found a rock chunk substance in a clear plastic bag in his pants pocket. The

officers, based on their training and experience, believed it was heroin. Forensic lab

testing confirmed 18.4 grams of heroin. Police also seized bundles of cash from him

totaling almost $7,000. A drug dog alerted to the currency as narcotics-related.

Burrage was arrested for possession of heroin and resisting-and-obstruction.

The government petitioned to revoke Burrage's supervised release for a Grade

A violation based on heroin possession. The government later added three Grade C

violations arising from the Chicago incident. While in custody in Iowa, Burrage

admitted that he had been caught in Chicago with 20 grams of heroin. The district

court found Burrage committed all four violations. The court sentenced him to 24

months' imprisonment, followed by 36 months of supervised release.

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This court reviews for abuse of discretion a district court's decision to revoke

supervised release. United States v. Sistrunk, 612 F.3d 988, 991 (8th Cir. 2010).

II.

On appeal, Burrage contests only the Grade A violation. Officer Mancha, who

seized the heroin, testified about the search and arrest. He identified the lab report

analyzing the heroin. On cross-examination, he testified about transporting and

storing the heroin. Burrage objected to the lab report for lack of foundation, chain of

custody, and "authenticity” that the lab report was "considered reliable.” On redirect,

Officer Mancha explained how the police keep track of evidence. He said that the

inventory number on the substance seized from Burrage matched the number on the

lab report. Neither the lab report's author nor the technician testified.

Burrage argues that the district court erred in finding the Grade A violation,

possession of heroin, because the only proof was the lab report and Officer Mancha's

testimony. Violations of supervised release require proof by a preponderance of the

evidence. United States v. Ahlemeier, 391 F.3d 915, 919 (8th Cir. 2004); 18 U.S.C.

§ 3583(e)(3). This court reviews for clear error the district court's factfinding about

a violation. Sistrunk, 612 F.3d at 991.

Burrage objected to the lab report for chain of custody, foundation, and

authenticity. On appeal, he presents only the argument that the district court should

have balanced his right to question the lab personnel against the government's

grounds for not requiring confrontation. See United States v. Bell, 785 F.2d 640, 642

(8th Cir. 1986). A defendant is entitled to "the minimum requirements of due

process” at a revocation hearing, including "the right to confront and cross-examine

adverse witnesses (unless the hearing officer specifically finds good cause for not

allowing confrontation).” Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972). The

Federal Rules of Criminal Procedure grant defendants "an opportunity to . . .

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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).

Burrage did not request to question the lab personnel who tested the heroin or

wrote the report. See United States v. Gorsline, 784 F. Appx. 974, 974 (8th Cir.

2019)(finding no confrontation right where releasee objected to a police report based

on foundation and hearsay but did not request to question its author). An objection

must be timely and clearly state the grounds. United States v. Pirani, 406 F.3d 543,

549 (8th Cir. 2005) (en banc). Errors not properly preserved are reviewed only for

plain error. Id. Burrage did say, "We have no idea how it was taken to the lab, how

it was tested . . . .” He did not clearly object based on his inability to confront the lab

personnel. He gave the district court no opportunity to address the absence of live

testimony. The district court did not plainly err in failing to address that issue. See

United States v. Simms, 757 F.3d 728, 732-33 (8th Cir. 2014) (holding that district

court was not obligated to apply the Bell balancing test because the defendant did not

object to lack of live testimony).2



Burrage's objections to "chain of custody”—six times—do not invoke the

limited right to confront the lab personnel. The government does not need to provide

live testimony for every step in the chain of custody unless it makes those steps a

"crucial” issue. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 n.1 (2009);

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In his opening brief on appeal, Burrage does not develop his objections

referencing authenticity, foundation, and "reliable.” See Olson v. Fairview Health

Servs. of Minn., 831 F.3d 1063, 1075 (8th Cir. 2016) (holding that appellant waived

undeveloped issues on appeal). The district court did not plainly err in addressing

them. See United States v. Chambers, 878 F.3d 616, 620-21 (8th Cir. 2017) (holding

that district court did not err by overruling reliability objection); Nichols v. United

States, 511 U.S. 738, 747 (1994) ("As a general proposition, a sentencing judge may

appropriately conduct an inquiry broad in scope, largely unlimited either as to the

kind of information he may consider, or the source from which it may come.”).

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United States v. Johnson, 688 F.3d 494, 505 (8th Cir. 2012). Submitting a lab report

does not create a crucial chain-of-custody issue when the government does not

extensively question witnesses about the chain of custody. See Johnson, 688 F.3d

at 505-06. Here, the government did not make the lab's chain of custody a crucial

issue because it did not question witnesses about the lab's evidence-handling

procedures. Nor does Burrage overcome the presumption of integrity of physical

evidence by showing bad faith, ill will, or tampering with the evidence. See id. at

505.

The district court had sufficient evidence to find Burrage committed the Grade

A violation.

III.

An Iowa state trooper testified about a search of an apartment in Nevada, Iowa,

on April 10, 2018—coincidentally, the day after the Chicago arrest. The apartment

had mail addressed to Burrage, heroin, marijuana, digital scales, and drug packaging.

Burrage objected to the trooper's testimony because he had not received written

notice of any violations arising from the Iowa search, despite his rights under due

process and Federal Rule of Criminal Procedure 32.1(b)(2)(A). The government

replied that it did not allege a separate violation of supervised release based on the

Iowa search. Instead, it offered the testimony (1) to show Burrage's intent to commit

the Chicago drug offense, under Federal Rule of Evidence 404(b), and (2) to support

the sentencing factors under 18 U.S.C. § 3553(a). Burrage acknowledged that the

government had emailed his counsel the materials and reports about the search.

Burrage argues that the district court violated his due process rights by

admitting evidence unrelated to a violation in the petition for revocation of supervised

release. See Morrissey, 408 U.S. at 489 (requiring written notice of violations); Fed.

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R. Crim. P. 32.1(b)(2)(A) (same). The revocation petition listed only the Chicago

Grade A violation and the three Grade C violations arising from the Chicago incident.

This court reviews due process claims de novo, even if the claimant also alleges a

Rule 32.1 violation. United States v. Sutton, 916 F.3d 1134, 1138 (8th Cir. 2019).

The Iowa evidence did not give rise to a new violation requiring formal notice

under Federal Rule of Criminal Procedure 32.1(b)(2)(A). See United States v. Smith,

718 F.3d 768, 773 (8th Cir. 2013) (holding that no formal notice was required when

the district court did not find a separate violation). Instead, the government used the

Iowa trooper's testimony to support its allegation that Burrage possessed heroin in

Chicago. The testimony was relevant because it suggested Burrage was connected

to heroin possession before his Chicago arrest. See United States v. Horton, 756

F.3d 569, 579 (8th Cir. 2014) (holding that prior drug convictions are relevant to

show intent and knowledge in a drug offense). The testimony was also relevant to the

sentencing factors under 18 U.S.C. § 3553. See 18 U.S.C. § 3661 (allowing courts

to consider any information concerning a defendant's background, character, or

conduct when imposing a sentence).

On appeal, Burrage also argues that admitting the Iowa evidence violated the

government's obligation to disclose adverse evidence under Federal Rule of Criminal

Procedure 32.1(b)(2)(B). Because Burrage did not raise this issue to the district

court, this court reviews for plain error. See Pirani, 406 F.3d at 549.

Burrage acknowledges that before the revocation hearing, the government

emailed his counsel materials and reports about the Iowa search. Burrage's counsel

acknowledged that the materials and reports enabled him to contest the Iowa evidence

at the hearing. The government's disclosure was adequate. See Ahlemeier, 391 F.3d

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at 921 (holding that disclosure of evidence was adequate because defendant was able

to prepare his defense).

Even if Burrage's due process rights were violated, he has not shown how

further disclosure would have helped him. He has not identified other information

that required disclosure before his hearing. Nor did he try to reopen the hearing or

explain what he would submit if it were reopened. See Sistrunk, 612 F.3d at 992

(finding no prejudice); United States v. Jones, 770 F.3d 710, 713 (8th Cir. 2014)

(same). Any error here was harmless.

The judgment is affirmed