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United States v. Anderson

United States District Court, D. Minnesota

October 11, 2017

United States of America, Plaintiff,
v.
Paul Edward Anderson, Defendant.

          Benjamin Bejar, Assistant United States Attorney, United States Attorney's Office, counsel for Plaintiff.

          Jean M. Brandl, Esq., Brandl Law, LLC, counsel for Defendant.

          ORDER

          DONOVAN W. FRANK UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the government's allegations that Defendant Paul Edward Anderson violated the conditions of his supervised release by using cocaine. The government contends that the defendant used cocaine in violation of his conditions of supervised release based upon a positive sweat-patch test for cocaine metabolite. The test was collected on April 17, 2017, and received by PharmChem on April 27, 2017. The defendant denies that he used cocaine and asserts that the sweat-patch test is not sufficiently reliable to show by a preponderance of the evidence that he used cocaine.

         By way of background, on September 25, 2008, the defendant entered a plea of guilty to Possession with Intent to Distribute 176.3 grams or more of Cocaine Base. On March 19, 2009, the Honorable James M. Rosenbaum sentenced the defendant to the custody of the Bureau of Prisons for 66 months, followed by 5 years of supervised release. On January 14, 2014, the defendant was released from the custody of the Bureau of Prisons and placed on supervised release.

         Anderson first violated the conditions of his release by using cocaine in 2016, when he tested positive for cocaine pursuant to a urinalysis on October 31, 2016. At the time, he admitted to using cocaine. Since that admitted use, the defendant has been tested for the use of cocaine and other controlled substances using sweat patches. Additionally, as a result of the positive test in October 2016, the Court directed that each week the defendant participate in not-less-than-one AA or NA meeting or 12-step program. This condition was to begin after the defendant completed a relapse-treatment program at New Directions. The Court also directed that the defendant make a good-faith effort to obtain and work with an AA or NA sponsor. These additions to the defendant's conditions of supervised release were made by the Court pursuant to a November 4, 2016 modification, to which the defendant agreed.

         On December 8, 2016, the defendant appeared before this Court for a Zero Tolerance[1] hearing after again testing positive for cocaine and admitted on the record that his sweat patch tested positive on November 22, 2016, because he had used cocaine. He also admitted at the hearing that the sweat patch being tested at the time of the hearing, as well as the sweat patch he was wearing at the hearing, would test positive because he had used cocaine. But the defendant later told his probation officer, Steven H. Blanding, that he had not used cocaine and only admitted to doing so based on the advice and encouragement of his counsel at the time. At the next Zero Tolerance hearing on March 17, 2017, the defendant again did not dispute the results of a positive sweat-patch test for cocaine metabolite from the sweat patch which was removed on February 22, 2017. The defendant maintained that he did not use cocaine, but could not explain why his sweat patch was positive for cocaine.

         In United States v. Meyer, 483 F.3d 865 (8th Cir. 2007), the Eighth Circuit explained how the sweat-patch test worked:

[The sweat-patch test, ] marketed by PharmChem, Inc., is composed of an absorbent pad and outer membrane. After the skin is cleaned with alcohol, the patch is applied to the wearer[], and the absorbent pad collects the wearer's sweat, over a period of a week or more. The [wearer]'s sweat wets the pad, the water in the sweat eventually evaporates through the non-occlusive membrane, and any drugs remain in the absorbent pad. Once the sweat patch is removed from the [wearer], it is returned to PharmChem for analysis.

Meyer, 483 F.3d 865 at 866 (citations omitted). Anderson has been tested 32 times with a sweat patch from November 2016 and going through July 18, 2017. Of those 32 tests, Anderson tested positive 5 times, including his most recent positive test on April 17, 2017. The defendant tested negative before and after April 17, 2017. Since the end of July 2017, Anderson has been tested via urinalysis, which have also returned negative results. At the August 30, 2017 evidentiary hearing, the issue before the Court was whether the defendant used cocaine as indicated by the sweat patch collected on April 17, 2017. (Gov.'s Ex. 1.)

         In a revocation proceeding, a violation “need only be found by a judge under a preponderance of the evidence standard, not . . . beyond a reasonable doubt.” United States v. Woodward, 675 F.3d 1147, 1152 (8th Cir. 2012) (quoting Johnson v. United States, 529 U.S. 694, 700 (2000)). At the evidentiary hearing, the Court received evidence from both parties, including the defendant's probation officer; the defendant; an expert who tested the defendant's hair sample; and a forensic scientist who discussed sweat-patch testing, nail testing, and hair testing.

         The defendant previously tested positive for cocaine metabolite and admitted to using cocaine at the end of October 2016, consistent with the positive sweat patches collected on November 22, 2016, and November 29, 2016. Nonetheless, the defendant now disputes the accuracy of those positive results, stating that he had not used cocaine. The defendant hypothesizes that he tested positive due to some unknown exposure from his job as a mechanic, where he predominately works on taxicabs. As a preventive measure, the defendant started wearing gloves at work after his positive test in April 2017. Probation Officer Blanding corroborates Defendant's belief, testifying that on December 5, 2016, the defendant had told Blanding that perhaps the earlier positive sweat-patch results were due to having sexual intercourse with a woman who was either using or had recently used cocaine. The next day, December 6, the defendant told Probation Officer Blanding that the positive test could have been because he had recently been given novocaine for a root canal.

         In United States v. Meyer, the defendant contended that his employment and work conditions (similar to those here) were the cause of the positive sweat-patch tests for cocaine metabolite:

I can come up with one possibility, that up until that point I was employed by a company who hauled high-end cars, Corvettes, Mercedeses, Jaquars, Cadillacs, all high[-]end stuff, stuff that was going to clients who were rich people. I changed [to] hauling cars that were repossessed, bought from auctions, they weren't clean, they weren't detailed. There would have been any chance and every chance for me to come into contact with contamination from somebody who had done drugs in their cars, touched a steering wheel, touched the gearshift, ...

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