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U.S. v. SNYDER
February 20, 2002
UNITED STATES OF AMERICA,
JAMIE M. SNYDER, DEFENDANT.
The opinion of the court was delivered by: Howard G. Munson, Senior U.S. District Judge.
MEMORANDUM — DECISION AND ORDER
Currently before the court is a Petition for Warrant of Summons for
Offender Under Supervision (Probation Form 12C) recommending revocation
of the term of supervision for defendant Jamie M. Snyder.*fn1
On July 6, 2000, defendant was sentenced by this court to three years
of probation after pleading guilty to a charge of Possession of an
Unregistered Firearm in violation of 26 U.S.C. § 5861(d). In
addition to the standard conditions of probation, the court imposed the
following additional special conditions: (1) defendant shall serve six
months of home detention; and (2) defendant shall submit to drug/alcohol
testing and treatment as directed by the Probation Office of the United
States District Court for the Northern District of New York ("Probation
On July 17, 2000, defendant commenced his term of home detention and he
remained under monitoring until January 17, 2001. During this period of
home detention, defendant's compliance with the electronic monitoring
program was marginal. On several occasions, defendant failed to answer
his telephone during the time that he was required to be at home.
Additionally, defendant cut off his electronic transmitter at 12:02 a.m.
on January 17, 2001 without permission.
As another special condition to his probation, defendant was required
to submit to drug/alcohol testing as directed by the Probation Office.
Defendant failed to report for required drug testing on several
occasions. As a sanction for these violations and in addition to
continued urinalysis testing, the Probation Office began testing
defendant using the PharmChek sweat patch ("sweat patch") on October 20,
2000. The Probation Office uses sweat patch testing as either a sanction
or as an alternative to urinalysis in situations where an offender fails
to provide a urine specimen.
On November 3, 2000, the Probation Office received notification of a
positive test result for cocaine on a sweat patch. On November 8, 2000,
P.O. Walker and Timothy Keohane, Supervising United States Probation
Officer ("Supervising P.O. Keohane"), questioned defendant about his drug
use during an Administrative Conference. Defendant denied using cocaine
or any other illegal drug and admitted only to occasional alcohol use.
During the Administrative Conference, the Probation Office referred
defendant to Syracuse Behavioral Healthcare ("SBH") for a substance abuse
On November 20, 2000, defendant commenced outpatient substance abuse
treatment at SBH. Defendant failed to report for treatment sessions on
November 28, 2000 and December 22, 2000. As a result, his treatment
level was increased to intensive outpatient, resulting in daily treatment
On January 3, 2001, defendant and his father, Darren Francisco, met
with P.O. Walker and members of the SBH staff for a second Administrative
Conference. During the discussion, defendant refused to admit that he
had used cocaine during the course of his probation.
On January 8, 2001, defendant met with P.O. Walker and members of the
SBH staff for a treatment meeting. SBH counselors advised defendant that
if he admitted using drugs, they would refer him to an inpatient
facility. Defendant refused to do so, and SBH terminated defendant's
treatment because they were unable to treat him without an admission of
On July 28, 2001, defendant failed to report for a drug test in a
timely manner and was subsequently unable to provide a urine specimen.
On August 2, 2001, defendant produced a urine specimen to make up for the
previous failure. On August 15, 2001, the Probation Office received word
that the results of the urinalysis were positive for marijuana. On
August 17, 2001, defendant was confronted with the results of the test
and he admitted using marijuana at a rock concert during the end of
In addition to the specific instances discussed above, defendant has
violated the terms of his probation on numerous other occasions. Since
defendant was sentenced by this court on July 6, 2000, he has failed to
report for a drug test on five different occasions, in violation of
No. 2.*fn2 Additionally, defendant submitted a positive
sweat patch to the Probation Office on a total of eight different
occasions, in violation of Standard Condition No. 7.*fn3
I. Standard for Revocation of a Term of Supervised Release
Under Title 18 of the United States Code, Section 383(e)(3), the court
may revoke a term of supervised release if it finds by a preponderance of
the evidence that the defendant violated a condition of the supervised
A. Number 1 — Submission of a Positive Sweat Patch
As previously stated, defendant submitted eight sweat patches that were
positive for cocaine, in violation of Standard Condition No. 7. Prior to
a Violation Hearing scheduled for April 9, 2001, defendant challenged the
use of sweat patches for drug testing purposes. Defendant based his
challenge on a similar issue raised in United States v. Stumpf,
54 F. Supp.2d 972 (D. Nevada 1999).
In Stumpf, defendants filed a motion in limine to exclude the
admissibility of sweat patch test results from proceedings to revoke
their supervised release. Judge Pro held that drug testing by means of
the sweat patch utilized by the United States Department of Probation was
a reliable scientific method of testing for the presence of controlled
On June 11, 2001 through June 13, 2001, this court held an evidentiary
hearing to examine the sweat patch and its use in the present case. The
court heard testimony from defendant, P.O. Walker, Supervising P.O.
Keohane, Edward Cone, Ph.D., and Frederick Smith, Ph.D. During the
course of the hearing, documents obtained by defendant pursuant to a
subpoena duces tecum served on non-party PharmChem Laboratories Inc.
("PharmChem")*fn4 were discussed by the witnesses and admitted into
evidence. Initially, PharmChem resisted complying with the subpoena
without promises from counsel that all of its responses would be kept
strictly confidential. In order to avoid unnecessary delay in preparing
for the hearing, counsel agreed to an Order requiring that the
dissemination of the documents would be restricted until such time as the
court could determine whether or not the documents should remain
confidential. At the close of the hearing, defendant requested a
determination from the court that none of the subpoenaed documents should
confidential. The court will address this issue at the
conclusion of its analysis of the violations.
1. Sweat Patch Procedures
During mid-1999, the Probation Office began using the sweat patch,
produced by PharmChem, for drug testing purposes. The decision to use the
sweat patch was made because of inherent flaws in urinalysis testing.
When testing for cocaine, urinalysis is only able to detect cocaine
during the 72-hour time period that it will normally remain in an
offender's system. Utilizing the sweat patch allows the Probation Office
to expand its testing window to beyond the 72 hours that urinalysis
The sweat patch features an absorbent pad sandwiched between the skin
and an outer non-occlusive membrane that allows water vapor to pass
through. The sweat patch is affixed to an offender's skin using a
tamper-evident adhesive backing on the membrane. Once the sweat patch is
affixed, the outer layer of the absorbent pad adheres to the skin in an
unusual way, forming a bond with the skin so it stays on and will not
come off. If the absorbent patch is removed from the skin, it cannot be
reattached. After the absorbent pad bonds with the skin, it becomes a
collection device. The offender'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 offender, it is returned to PharmChem for analysis.
Members of the Probation Office, including P.O. Walker, were taught
about the sweat patch and the applicable drug testing procedures by
Senior Probation Officer Matthew Brown. The training consisted of
watching a video produced by PharmChem and a discussion of ...
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