UNITED STATES v. Captain Antony W. PHILLIPS, United States Air Force, 53 M.J. 758

OPINION OF THE COURT BURD, Judge: On 8-17 December 1998, the appellant was tried by general court-martial composed of members at Davis-Monthan Air Force Base (AFB), Arizona. Contrary to his pleas, he was found guilty of one specification of wrongfully using cocaine, in violation of

Article 112a, UCMJ, 10 U.S.C. § 912a. He was found not guilty of three other allegations: signing a false official document, wrongfully using cocaine on divers occasions, and stealing military property of a value in excess of $100.00. The appellant was sentenced to a dismissal, confinement for 1 year, and forfeiture of all pay and allowances. The approved sentence was a dismissal, confinement for 8 months, and forfeiture of all pay and allowances. The appellant asserts three errors. We find no prejudicial error and affirm the findings and sentence. We will address each issue individually after a brief

summary of the facts. I. Facts On Monday, 10 November 1997, the appellant, a C-130 pilot, was randomly selected to provide a urine sample for drug testing. The appellant was given notice of his selection at approximately 1030, and was ordered to provide the specimen no later than 1230 at a collection site at the Medical Annex on base. Instead of providing a sample as ordered, the appellant went to his off-base quarters. The appellant did not provide a urine sample until 1637 and only after he was located by personnel from his squadron and given a second order by his commander.

The appellant provided his sample at the hospital laboratory rather than the established collection site at the Medical Annex on base because he failed to appear during the time the collection site was operating. All steps in the process of collecting the appellant’s urine sample were accomplished properly at the hospital lab with one exception: Senior Airman (SrA) Wells, the lab technician who received the sample from the appellant, did not complete a DD Form 2624, Specimen Custody Document — Drug Testing, for the appellant’s sample.

This documentation error was later compounded when the sample was boxed for shipment. The sample was stored at the lab until Staff Sergeant (SSgt) Green, the base assistant drug testing program administrative manager, removed the sample from storage and boxed it with nine other samples collected during the scheduled collection hours on 10 November.

SSgt Green added the required information regarding the appellant’s sample on the front page of a DD Form 2624 that correctly listed the previously obtained nine samples, boxed the form with the ten samples, and mailed the box to the Air Force Drug Testing Laboratory (AFDTL) at Brooks AFB, Texas. The addition of the appellant’s sample to this form erroneously made it appear that his sample was collected along with the other nine listed samples and processed in the same chain of custody recorded on the back of the form.

As a result, personnel at the AFDTL tested the appellant’s sample because they were unaware of the chain of custody documentation discrepancy. Had they known that the person who originally received the sample from the appellant (SrA Wells) was not listed in the chain of custody record on the back of the DD Form 2624, they would not have tested it. See Air Force Instruction (AFI) 44-120, Drug Abuse Testing Program, Sections D and E (1 Apr. 1997). The appellant’s urine sample tested positive for cocaine. The cocaine metabolite benzoylecgonine (BE) concentration detected was 211 nanograms per milliliter (ng/ml).

The Department of Defense cutoff level for this metabolite is 100 ng/ml. At the request of the defense before trial, the appellant’s urine sample was re-tested. The re-test was accomplished at the Associated Pathologists Laboratory (APL). The APL re-test result showed BE in the appellant’s urine at a level of 220 ng/ml. The testing done at APL also showed the presence of the metabolite ecogninemethylester (EME), which confirmed that the cocaine metabolite in the appellant’s urine sample came from cocaine ingested by the appellant into his body.

The APL also tested a sample of the appellant’s hair at the request of the defense. Although the test result was below the APL cutoff level to call the result positive, it revealed the presence of cocaine and BE in the appellant’s hair. II. Right to Cross-examine Witness and Present Evidence The appellant claims he was denied his Sixth Amendment right to confront, effectively cross-examine, and present relevant evidence at his trial by the military judge’s ruling excluding evidence relating to the violation of AFI 44-120 in the collection of his urine sample. We disagree.

We see no merit to the appellant’s attempt to have this Court impose a more rigorous standard of review by asserting a Constitutional dimension to a simple evidentiary issue. The appellant confronted all of the prosecution witnesses. The appellant’s argument is essentially that he was denied the right to confront Dr. Poupko, the prosecution’s AFDTL expert, and SSgt Green because the military judge’s ruling meant the witnesses could not be asked whether the appellant’s urine sample would have been tested if AFDTL personnel had known of existing discrepancies with the documentation of the chain of custody.

A primary interest secured by the Confrontation Clause of the Sixth Amendment is the right of cross-examination. Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). “Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). In this case, the excluded evidence had no bearing on the believability of any witness or the truthfulness of their testimony.

In this context, it twists the meaning of the Sixth Amendment beyond sensibility to suggest confrontation and cross-examination are implicated in the military judge’s evidentiary ruling. The military judge’s ruling was narrow. Under Mil.R.Evid. 403, he excluded evidence that the failure to list SrA Wells, the person who actually received the urine sample from the appellant, in the documentation of the chain of custody on the back of the DD Form 2624 would have resulted in the appellant’s urine sample not being tested at the AFDTL had personnel there known of the discrepancy.

We agree with the military judge’s assessment that the probative value of this evidence was marginal at best and substantially outweighed by the danger of confusion of the issues and potential to mislead the court members. Mil.R.Evid. 403. The defense was not precluded from introducing evidence of the discrepancies related to the processing of the appellant’s urine sample or from arguing that, because of the discrepancies, the court members should not conclude that the urine specimen tested was the appellant’s.

Moreover, notwithstanding the judge’s ruling, the defense counsel brought out through cross-examination of SSgt Green that the AFDTL did not test samples in other cases when they learned before testing that the actual chain of custody was not correctly reflected on the DD Form 2624. In the appellant’s case, the evidence established that, while there were discrepancies in the paperwork, the actual chain of custody was intact. What the defense was effectively seeking was nullification because the appellant’s urine sample would not have been tested if personnel at the AFDTL had known the paperwork was in error.

In short, the policy of the AFDTL whether to test samples when discrepancies exist on a DD Form 2624 was collateral to the material issue of the actual chain of custody. See United States v. Owen, 24 M.J. 390, 393 (C.M.A.1987). The standard of review on issues of admissibility of evidence is whether the military judge clearly abused his discretion. United States v. Johnson, 46 M.J. 8, 10 (1997). Here, the military judge is entitled to wide discretion in applying Mil.R.Evid. 403 because-he performed the required balancing and explained the grounds for his ruling. United States v. Harris, 46 M.J. 221, 225 (1997).

We hold the military judge did not abuse his discretion in excluding the evidence at issue. III. Legal and Factual Sufficiency of the Evidence The appellant claims the evidence is legally and factually insufficient to sustain appellant’s conviction for knowing use of cocaine. We disagree. There are two standards of review for questions regarding sufficiency of the evidence. The test for legal sufficiency is “whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.” United States v.

Turner, 25 M.J. 324 (C.M.A.1987) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The test for factual sufficiency is “whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the members of the [Court of Criminal Appeals] are themselves convinced of the accused’s guilt beyond a reasonable doubt.” Turner, 25 M.J. at 325. Citing United States v.

Campbell, 50 M.J. 154 (1999), the appellant claims the prosecution failed to prove, both legally and factually, that the appellant’s use of cocaine was wrongful. The appellant argues the urinalysis test results and expert testimony do not permit the inference of wrongfulness because that evidence does not reasonably discount the possibility of unknowing ingestion and does not indicate a reasonable likelihood that the appellant at some time would have experienced the physical and psychological effects of the drug. See Campbell, 50 M.J. at 160.

Under the Campbell decision, the appellant is correct that the original urinalysis test result standing alone and the expert testimony regarding that test do not provide sufficient evidence to permit the inference of wrongfulness. However, this does not end our analysis. The offense of wrongful use of cocaine has two elements: that the appellant used cocaine, and that the appellant’s use was wrongful. Manual for Courts-Martial, United States (MCM), Part TV, ¶ 37b(2) (1995 ed.). Imbedded as an aspect of these elements is the requirement of knowledge, i.e., knowledge of the presence of the controlled substance.

United States v. Campbell, 50 M.J. 154, 159 (1999); MCM,

Part IV, ¶ 37c(10). We view Campbell as significant in two respects.

First, it reveals the concern of the United States Court of Appeals for the Armed Forces (CAAF) that there is a danger of automatically equating a positive urinalysis test result with sufficient proof of the elements of the offense of wrongful use of a contraband substance. “[T]he prosecution cannot rely solely on the presence in the body of the drug or its constituent elements.” Campbell, 50 M.J. at 160. “[T]he inference of wrongfulness strictly require[s] that the prosecution also establish the reliability of the testing methodology and explain the significance of the results of the test of the accused’s sample.” Id. at 160.

Second, Campbell articulates a three-part standard for what expert testimony must show in prosecutions that rely solely on a positive urinalysis test result.

The prosecution’s expert testimony must show: (1) that the “metabolite” is “not naturally produced by the body” or any substance other than the drug in question; (2) that the cutoff level and reported concentration are high enough to reasonably discount the possibility of unknowing ingestion and to indicate a reasonable likelihood that the user at some time would have “experienced the physical and psychological effects of the drug”; and (3) that the testing methodology reliably detected the presence and reliably quantified the concentration of the drug or metabolite in the sample. Id. at 160 (citations omitted).

In cases relying solely on a positive urinalysis test result, once the prosecution satisfies Campbell’s three-part standard, “the prosecution is not required to disprove the possibility of unknowing ingestion in order to sustain the legal sufficiency of a conviction.” Id. at 160. Campbell has not changed the rules of evidence or the burden of proof.

In reconsideration of its original decision, the CAAF made it clear that the three-part standard was not the only avenue of proving knowing use. “If the test results, standing alone, do not provide a rational basis for inferring knowing use, then the prosecution must produce other direct or circumstantial evidence of knowing use in order to meet its burden of proof.” United States v. Campbell, 52 M.J. 386, 388 (2000) (opinion on reconsideration). In the appellant’s case, ample evidence was presented to satisfy the burden of proof. Compare United States v.

Barnes, 53 M.J. 624 (N.M.Ct.Crim.App.2000) (facts independent of urinalysis test result found to be insufficient to support conviction). The appellant’s defense at trial was unknowing ingestion. As a result, the trial participants fully litigated the issue of knowledge. In particular, the prosecution focused during the trial on three matters in evidence independent of the original urinalysis test result and expert testimony regarding that test. Each of these matters independently provided sufficient evidence to permit an inference of wrongfulness from the original urinalysis test result.

Taken together, they established more than sufficient evidence of knowledge to meet the burden of proof. First, it was shown that the appellant went home and failed to report during the allotted time period to provide a urine sample and only did so after receiving a second order. This is strong evidence of consciousness of guilt. Mil.R.Evid. 404(b).

Additionally, while the appellant’s case focused in part on his purported preoccupation with preparing over the weekend prior to his urinalysis for a “no-notice check-ride” that he received warning of, when later asked by his commander why he showed up late, the appellant said he “forgot.” This transparently false statement is also relevant on consciousness of guilt. The court members were permitted to conclude from this evidence that the appellant knew his urine contained evidence of his use of cocaine, i.e., the appellant knew he illegally used cocaine. See United States v.

Borland, 12 M.J. 855 (A.F.C.M.R.1981); Drafter’s Analysis, MCM, A22-34. See also United States v. Stadler, 47 M.J. 206, 211 (1997) (citing United States v. Hurt, 27 C.M.R. 3, 41, 1958 WL 3505 (C.M.A.1958)); People v. McGinnis, 123 Cal.App.2d Supp. 945, 267 P.2d 458 (1953). Second, while the appellant was found not guilty of Specification 2 of Charge II, which alleged use of cocaine on divers occasions, the evidence of those uses was relevant to prove knowledge of his use of cocaine for which he was found guilty and to rebut the defense claim of unknowing ingestion. Mil. R.Evid. 404(b); United States v.

Ray, 26 M.J. 468, 471-72 (C.M.A.1988). See also United States v. Harper, 22 M.J. 157, 163 (C.M.A.1986). The possibility of impermissible spillover was precluded by the military judge’s proper limiting instruction. See United States v. Southworth, 50 M.J. 74, 76-77 (1999). See also United States v. Curtis, 44 M.J. 106, 128-29 (1996). Third, in rebuttal, Dr. Selavka, the prosecution’s expert on forensic toxicology and hair testing, testified about the significance of the hair analysis test result from APL. This was rebuttal to testimony by Dr.

Vasiliades, the defense’s expert on forensic toxicology, that the defense procured hair analysis test result was negative. Dr. Selavka testified that the hair analysis test result, while it showed the presence of cocaine and BE below that lab’s cutoff to call the result positive, was inconsistent with a single unknowing use of a small amount of cocaine. This evidence was also admissible to prove knowledge and rebut the claim of unknowing ingestion. United States v. Walker, 42 M.J. 67 (1995); Mil.R.Evid. 404(b). See also Ray, 26 M.J. at 471-72.

Considering the evidence in the light most favorable to the prosecution, we hold that a reasonable factfinder could have found all the essential elements of the offense for which the appellant was found guilty beyond a reasonable doubt. Turner. Additionally, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, we are convinced of the appellant’s guilt beyond a reasonable doubt. Turner, 25 M.J. at 325. IV. Error in Convening Authority’s Action The appellant claims the convening authority was without authority to execute his adjudged dismissal.

The government concedes the validity of the appellant’s claim. We agree. The sentence of a commissioned officer to dismissal from the service may only be ordered executed by the Secretary concerned or the Secretary’s proper designee.

Article 71(b), UCMJ, 10 U.S.C. § 871(b); Rule for Courts-Martial (R.C.M.) 1113(c)(2). V. Conclusion We conclude the findings and sentence are correct in law and fact, the sentence is appropriate, and no error prejudicial to the substantial rights of the appellant was committed. The record of trial will be returned to the convening authority for corrective action and corresponding correction of the court-martial order. R.C.M. 1107(f)(2), 1114(b); Air Force Instruction (AFI) 51-201, Administration of Military Justice, ¶ 10.4.3. See also MCM, App. 16.

The record of trial need not be returned to this Court after correction of this administrative error. The approved findings of guilty and the sentence are AFFIRMED. Senior Judge SCHLEGEL concurs. For a simple statement of the significance of BE and EME, see United States v. Mack, 33 MJ. 251, 256 (C.M.A.1991) (Cox, J., dissenting).