                       UNITED STATES, Appellee

                                    v.

                  Ronald L. BREWER, Master Sergeant
                      U.S. Air Force, Appellant

                              No. 04-0567

                         Crim. App. No. 34936

       United States Court of Appeals for the Armed Forces

               Argued March 1, 2005 and May 3, 2005

                     Decided September 13, 2005

ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and EFFRON, J., joined. CRAWFORD and BAKER, JJ.,
each filed a separate dissenting opinion.

                                 Counsel

For Appellant: Major James M. Winner (argued); Colonel Carlos
L. McDade, Major Terry L. McElyea, and Major Sandra K.
Whittington (on brief).

For Appellee: Major Kevin P. Stiens (argued); Lieutenant
Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer,
Major John C. Johnson, and Captain C. Taylor Smith (on brief).

Military Judge:   Thomas G. Crossan Jr.


       This opinion is subject to revision before final publication.
United States v. Brewer, No. 04-0567/AF

     Judge ERDMANN delivered the opinion of the court.

     Master Sergeant Ronald L. Brewer was charged with using

marijuana on divers occasions over a one-year period in

violation of Article 112a, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 912a (2000).       He was tried by a general

court-martial composed of officer and enlisted members who found

him guilty and sentenced him to confinement for eighteen months

and reduction to pay grade E-2.    The convening authority

approved the sentence but waived mandatory forfeitures of pay

for the benefit of Brewer’s dependent son.      The United States

Air Force Court of Criminal Appeals affirmed the findings and

sentence in an unpublished opinion on April 28, 2004.      United

States v. Brewer, No. ACM 34936, 2004 CCA Lexis 136, at *24

(A.F. Ct. Crim. App. Apr. 28, 2004).

     Brewer was convicted based upon positive results for

marijuana from a urinalysis test and a hair analysis test.         The

Government relied on the permissive inference that Brewer’s use

of marijuana was “wrongful” in order to meet that element of the

drug charge.   Brewer sought to counter that inference by

presenting evidence of innocent ingestion.      The military judge

excluded testimony from witnesses who had frequently observed

Brewer during the one-year time period.      The military judge also

gave the members an instruction regarding the burdens of proof




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United States v. Brewer, No. 04-0567/AF

for the permissive inference that Brewer argues created a

mandatory rebuttable presumption.

       We granted review to determine whether Brewer was wrongly

denied the opportunity to counter the permissive inference of

wrongful use relied upon by the Government and whether the

military judge’s instruction regarding that permissive inference

was erroneous.1    We conclude that the errors in this case

violated Brewer’s rights under the Due Process Clause and were

not harmless beyond a reasonable doubt.    We therefore reverse


1
    We granted three issues:

                                  I.

            WHETHER THE GOVERNMENT IMPROPERLY SEVERED
            THE APPELLANT'S RELATIONSHIP WITH HIS
            CONFIDENTIAL DEFENSE EXPERT CONSULTANT.


                                 II.

            WHETHER THE MILITARY JUDGE ERRED BY REFUSING
            TO PERMIT THE APPELLANT TO PRESENT A MOSAIC
            OF ALIBI WITNESSES TO COUNTER THE PERMISSIVE
            INFERENCE UNDER ARTICLE 112a, UCMJ, CREATING
            AN ERROR VIOLATIVE OF THE DUE PROCESS
            CLAUSE.

                                 III.

            WHETHER THE MILITARY JUDGE’S INSTRUCTIONS
            CREATED A MANDATORY REBUTTABLE PRESUMPTION
            IN VIOLATION OF THE DUE PROCESS CLAUSE THAT
            APPELLANT’S USE OF MARIJUANA WAS WRONGFUL.

    Because of our resolution of Issues II and III, we need not
    reach Issue I.




                                  3
United States v. Brewer, No. 04-0567/AF

the decision of the United States Air Force Court of Criminal

Appeals.



                              BACKGROUND

     The Government’s case against Brewer was based upon two

positive drug test results.    The first was a urinalysis test on

a sample obtained after Brewer was randomly selected to be drug

tested.    After that sample tested positive for marijuana the

Government obtained a search authorization to test a hair sample

from Brewer and that test also returned a positive result for

marijuana use.   Based on the hair analysis, a Government expert

witness testified that Brewer “had ingested [marijuana] on

multiple occasions in the time period. . . .”   In that witness’

opinion Brewer had used marijuana at least thirty times in the

twelve months preceding the hair test.

     In addition to the test results, to meet the element of the

charge that requires that use of a controlled substance be

“wrongful,” the Government relied “‘on a permissive inference of

wrongfulness which has long been recognized by military law as

flowing from proof of the predicate fact of use of’ the drug.”

United States v. Ford, 23 M.J. 331, 333 (C.M.A. 1987) (quoting

United States v. Harper, 22 M.J. 157, 162 (C.M.A. 1986)).    To

counter this inference, and in order to mount a defense of

innocent ingestion, Brewer sought to introduce the testimony of



                                  4
United States v. Brewer, No. 04-0567/AF

five witnesses “who were with [Brewer] and observed his behavior

for much of the relevant time frame and that [sic] if the

accused had used marijuana they would likely have seen some

evidence of it.”

     The Government made a motion in limine to exclude the

testimony of these witnesses.    In support of its motion, the

Government argued that it was introducing only urinalysis and

hair analysis test results and would not be presenting evidence

that Brewer used drugs at any specific time.   Because of this,

the Government contended that the only evidence the defense

could offer in rebuttal would be the testimony of someone who

had been with Brewer for the entire one-year time period.    The

Government argued that witness testimony concerning only

certain, limited time frames during which that witness had been

with Brewer was not relevant and/or was confusing under Military

Rules of Evidence (M.R.E.) 401 and 403.

     Trial defense counsel responded that presenting the

testimony of witnesses who knew the accused well and who were

with him for a substantial period of the charged time frame is

one of the ways for the defense to respond to the generalized

allegations by the Government.   Defense counsel noted that it

would be impossible to find one witness who had been with Brewer

for the entire time period, but stated, “What we are trying to

do is build our wall of proof one brick at a time.”   The defense



                                  5
United States v. Brewer, No. 04-0567/AF

offered testimony from Brewer’s live-in girlfriend, a close

friend, his direct supervisor, and two people who worked

directly with him during the workday to show that none of these

people ever saw any evidence of drug use by Brewer.   The defense

contended that the testimony of all of these people together

goes to make a “wall of proof that raises reasonable doubt.”

     The military judge granted the Government’s motion to

exclude the testimony with regard to all of the witnesses except

Brewer’s live-in girlfriend.   At the close of the prosecution’s

case trial defense counsel made a motion for reconsideration of

that ruling but the military judge denied the motion.   Brewer’s

girlfriend testified that she and Brewer were strict and would

not allow marijuana to be smoked in their house.   She also

testified that she had not seen anything to indicate that Brewer

smoked marijuana.   A friend of Brewer’s nephew also testified,

stating that he and Brewer’s nephew had often smoked marijuana

in the house without Brewer’s knowledge and that they had once

made spaghetti sauce that contained marijuana and left it on the

stove.

     At the close of the evidence and prior to deliberations,

the military judge instructed the members concerning the

permissive inference of wrongful use of drugs utilizing an

instruction taken almost verbatim from the Military Judges’

Benchbook.   See Legal Services, Dep’t of Army, Pamphlet 27-9,



                                 6
United States v. Brewer, No. 04-0567/AF

Military Judges’ Benchbook ch. 3, 3-37-2d (2001) [hereinafter

Benchbook].     There was no objection to this instruction at

trial.

                              DISCUSSION

1.   Did the Military Judge Err in Excluding the Four Defense
     Witnesses?

     Brewer contends that the military judge erred in granting

the Government’s motion to exclude the defense witnesses because

those witnesses were necessary to counter the permissive

inference of wrongful use upon which the Government was allowed

to rely.   The Government responds that the military judge

properly excluded the testimony of the witnesses offered by

Brewer because these witnesses were improper alibi and character

witnesses and their testimony therefore was inadmissible and was

irrelevant to the proceedings.    We review a military judge’s

decision to admit or exclude evidence for abuse of discretion.

See United States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F. 1995).

     Brewer argues that these witnesses would have testified

that they “were with [Brewer] and observed his behavior for much

of the relevant time frame and that [sic] if the accused had

used marijuana they would likely have seen some evidence of it.”

The military judge excluded the testimony because he found it

not relevant.    The lower court affirmed, noting that these

witnesses could not properly serve as alibi witnesses because

Brewer did not dispute that the drug entered his system and


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United States v. Brewer, No. 04-0567/AF

therefore could not properly claim that he had an alibi for the

offense.   The lower court further held that Brewer was

improperly attempting to present testimony regarding specific

instances of conduct as character evidence, when such evidence

is limited to reputation or opinion testimony under M.R.E.

405(a).

     We agree with the lower court that this evidence is not

admissible as character evidence under M.R.E. 404 and 405.     In

United States v. Schelkle, 47 M.J. 110 (C.A.A.F. 1997), the

defense argued that evidence of specific instances of conduct

(statements in letters by friends of the accused that they had

not seen him use marijuana) should be admissible under M.R.E.

405(b) because evidence of “good military character” is an

essential element of a defense to charges of drug use.    In

rejecting this argument this court found that character was not

an essential element of the defense in that case and that

evidence of character therefore was limited to reputation and

opinion evidence.   Id. at 112; see also M.R.E. 405(b).

     Because character is not an essential element of any

defense raised by Brewer, we reach the same result in this case.

Testimony of these witnesses was not admissible under M.R.E.

405(b).    Schelkle did not, however, hold that this testimony

could never be admitted and we therefore turn to the question of




                                  8
United States v. Brewer, No. 04-0567/AF

whether this type of testimony may be admissible on other

grounds.

     It is important to note that the Government was permitted

to prove an essential element of its case -– that Brewer’s use

of a controlled substance was wrongful -– by relying “‘on a

permissive inference of wrongfulness, which has long been

recognized by military law as flowing from proof of the

predicate fact of use of’ the drug.”      Ford, 23 M.J. at 333

(quoting Harper, 22 M.J. at 162).       To counter this inference,

Brewer relied on a defense of “innocent ingestion” based in part

on the fact that his nephew and his nephew’s friend often smoked

marijuana in his house and on one occasion put marijuana in some

spaghetti sauce at the house.

     In Ford, we discussed the permissive inference and its

relationship to defense evidence of innocent ingestion.       In that

case the Government’s evidence consisted of a positive

urinalysis result and testimony by an expert concerning that

result.    The defense presented testimony from “several witnesses

who testified that they observed no abnormalities in his

behavior suggesting drug abuse.”       Id. at 332.   There also was

evidence that the defendant’s ex-wife had access to marijuana

and a motive to frame the defendant.      Id.   The defense argued

that presenting this evidence of innocent ingestion negated the

Government’s ability to rely on the permissive inference to



                                   9
United States v. Brewer, No. 04-0567/AF

prove knowing ingestion, or that in the alternative it required

the Government to present additional evidence of wrongful use.

Id. at 333-37.

     This court disagreed with these defense contentions, noting

that witness testimony that the defendant did not exhibit

behavior indicative of drug use:

           challenges the basis in fact upon which the
           inference of wrongfulness is predicated. . . .
           It was offered by the defense to create a
           reasonable doubt in the factfinders’ minds
           concerning the prosecution’s circumstantial proof
           of use. A conflict in evidence concerning the
           existence of the predicate fact, however, does
           not bar use of the inference. It simply means
           that the members must resolve the question before
           they decide whether the inference should be drawn
           in the present case.

Id. at 335-36 (internal citations omitted).

     While Ford did not specifically address the issue presented

in this case, it does demonstrate that this court has recognized

the potential relevance of the type of testimony offered by

Brewer.   “‘Relevant evidence’ means evidence having any tendency

to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than

it would be without the evidence.”   M.R.E. 401.   Testimony from

people who spent substantial time with Brewer throughout the

charged period that they had not seen him purposefully use drugs

or observed him under the influence of drugs does go to the

issue of whether he knowingly and wrongfully used drugs at least



                                10
United States v. Brewer, No. 04-0567/AF

thirty times during the charged period.   Contrary to the

assertions of the dissent, we believe that if the members found

this testimony credible, it would have bolstered Brewer’s

innocent ingestion defense.

     The dissent is incorrect in arguing that only testimony of

those who had observed Brewer in his home would be relevant to

his defense.   Brewer did not claim the ingestion occurred at his

house as the dissent states, but rather offered the possibility

that his ingestion may have occurred in his home where his

nephew had used the drug to explain his positive urinalysis

result.   The very nature of an innocent ingestion defense means

that Brewer could not prove the time or place of his innocent

ingestion, but could only suggest possible explanations.    Part

of a defense of innocent ingestion requires raising doubt in the

minds of the members that the presence of a drug in Brewer’s

system came from a knowing and wrongful use of the drug.    The

testimony of the witnesses offered by Brewer provides grounds

for the members to question whether to draw the inference that

Brewer’s use of marijuana was wrongful, thereby raising a

question as to an essential element of the charged offense.

     We find no merit in the Government’s contention that the

relevance of this testimony is diminished because the Government

has not alleged a specific time of use.   The Government’s charge

spans a one-year time frame and alleges that Brewer used



                                11
United States v. Brewer, No. 04-0567/AF

marijuana multiple times during that period.   The Government

does not offer specific dates or times of use because the test

results upon which it relies do not provide that level of

specificity.   In response, Brewer offers evidence that also

spans that one-year period and goes to show that he was not seen

using drugs by those who saw him frequently during that time

period.

     Under these circumstances it is not unreasonable for the

Government to charge a one-year period, but the lack of

specificity should not provide a basis to prohibit Brewer from

challenging the facts giving rise to the permissive inference

relied upon by the Government.   The use of a permissive

inference of wrongful use by the Government requires that a

court allow a defendant some leeway to rebut that inference by

using testimony such as that proffered by Brewer in this case.

The military judge, of course, retains the power to limit

repetitive testimony under M.R.E. 403.

     Because the military judge in this case precluded testimony

from four witnesses who observed Brewer outside his home during

this period, that ruling denied Brewer the opportunity to

present a line of defense on the element of wrongful use and

violated Brewer’s due process right to present witnesses in his

own defense.   See Chambers v. Mississippi, 410 U.S. 284, 302

(1973) (“Few rights are more fundamental than that of an accused



                                 12
United States v. Brewer, No. 04-0567/AF

to present witnesses in his own defense.”).    We therefore find

that the military judge abused his discretion.

2.   Was the Military Judge’s Instruction to the Members on the
     Permissive Inference of Wrongful Use Plain Error?

     Brewer argues that the military judge’s instruction to the

members violated the Due Process Clause because it may have

caused a reasonable member to believe that there was a mandatory

presumption of wrongfulness, rather than a permissible

inference.    The Government argues that the military judge’s

instruction to the members was not erroneous because it was a

correct statement of the law.    At the close of the evidence, and

prior to deliberations, the military judge instructed the

members concerning the permissive inference of wrongful use as

follows:

                  To be punishable under Article 112a,
             use of a controlled substance must be
             wrongful. Use of a controlled substance is
             wrongful if it is without legal
             justification or authorization.

                  Use of a controlled substance is not
             wrongful if such act or acts are: (a) done
             pursuant to legitimate law enforcement
             activities (for example, an informant who is
             forced to use drugs as part of an undercover
             operation to keep from being discovered is
             not guilty of wrongful use); (b) done by
             authorized personnel in the performance of
             medical duties or experiments; or (c) done
             without knowledge of the contraband nature
             of the substance (for example, a person who
             uses marijuana, but actually believes it to
             be a lawful cigarette or cigar, is not
             guilty of wrongful use of marijuana).



                                  13
United States v. Brewer, No. 04-0567/AF

               Use of a controlled substance may be
          inferred to be wrongful in the absence of
          evidence to the contrary. However, the
          drawing of this inference is not required.

               The burden of going forward with
          evidence with respect to any such exception
          in any court-martial shall be upon the
          person claiming its benefit.

               If such an issue is raised by the
          evidence presented, then the burden is on
          the United States to establish that the use
          was wrongful.

               Knowledge by the accused of the
          presence of the substance and knowledge of
          its contraband nature may be inferred from
          the surrounding circumstances. However, the
          drawing of the inference is not required.

     Following a number of other instructions, the military

judge provided the following general instruction: “the burden of

proof to establish the guilt of the accused beyond a reasonable

doubt is on the government.   The burden never shifts to the

accused to establish innocence or to disprove the facts

necessary to establish each element of the offense.”

     As there was no objection to the permissive inference

instruction at trial, we will provide relief only if we find

plain error.   See United States v. Simpson, 58 M.J. 368, 378

(C.A.A.F. 2003).   To meet the test for plain error Brewer must

show that there was error, the error was plain or obvious, and

the error materially prejudiced his substantial rights.   United

States v. Powell, 49 M.J. 460, 463-65 (C.A.A.F. 1998).    If

Brewer meets this test, the burden shifts to the Government to


                                14
United States v. Brewer, No. 04-0567/AF

show that the error was harmless beyond a reasonable doubt.    See

United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005).     The

court reviews these questions de novo.    Simpson, 58 M.J. at 378.

     To determine whether there was error, we ask whether a

reasonable member could have interpreted the instruction to

create a mandatory presumption of wrongfulness in favor of the

Government.    See Sandstrom v. Montana, 442 U.S. 510, 514 (1979)

(“That determination [of the nature of the presumption created

by the instruction to the jury] requires careful attention to

the words actually spoken to the jury . . . for whether a

defendant has been accorded his constitutional rights depends

upon the way in which a reasonable juror could have interpreted

the instruction.”).

     The instruction begins by explaining that the drug use must

be wrongful.   It then identifies three situations in which use

of a controlled substance is not wrongful.   It next states that

members may infer wrongfulness if there is no evidence that it

is not wrongful, but that they are not required to do so.    Then,

it tells the members that the burden of going forward with

evidence of any of the exceptions is on the person claiming the

benefit of the exception.   Finally, the instruction states that

if “such an issue is raised by the evidence presented, then the

burden of proof is upon the United States to establish that the

use was wrongful.”



                                 15
United States v. Brewer, No. 04-0567/AF

     The instruction is confusing because it does not explain

the difference between “a burden of production, which only

requires that an issue as to an exception be raised by the

evidence, and a burden of persuasion, which would require an

accused to affirmatively prove by some standard of proof that he

came within the exception.”   United States v. Cuffee, 10 M.J.

381, 382-83 (C.M.A. 1981).    Without such an explanation, a

member may believe that it is the defendant’s responsibility to

prove that one of the exceptions applies, rather than simply to

raise the issue by presenting some evidence to that effect.

Further, and even more troubling, a member may believe that it

is not until one of the exceptions has been proven by the

defendant that the burden shifts back to the Government to show

wrongful use.

     The military judge’s later instruction that “[t]he burden

never shifts to the accused to establish innocence or to

disprove the facts necessary to establish each element of the

offense” does not alleviate this confusion.   The permissive

inference instruction clearly placed some burden on the

defendant.   As the “burden” in the later instruction refers to

both a burden of production and a burden of persuasion, it does

not clarify the nature of the burden referenced in the earlier

instruction.    As a result, the instructions as a whole could

still confuse a reasonable member.



                                 16
United States v. Brewer, No. 04-0567/AF

     Adding to the confusion caused by the failure to explain

the respective burdens on the parties is the use of the word

“exception.”   To categorize the three circumstances that make a

use not wrongful as exceptions suggests that unless one of those

exceptions is found, wrongfulness should be presumed (i.e., they

are exceptions to the general rule of wrongfulness).   Inclusion

of the word “exception” creates the possibility that a

reasonable member could have interpreted the instruction to

require a presumption of wrongfulness absent evidence to the

contrary.   Because the confusing language of the instruction

might have led the members to conclude that there was a

presumption that Brewer’s use of marijuana was wrongful and/or

that Brewer had the burden of proving that it was not, we find

that the instruction was erroneous.

     Next we ask whether the error was plain or obvious.    The

Government argues that there was no obvious error because the

instruction was a correct statement of the law and was taken

almost verbatim from the Benchbook.   However, despite inclusion

of this language in the Benchbook, the military judge was still

under an obligation to evaluate the instruction and to determine

its applicability to the case at hand.    The Benchbook itself

states that the instructions should be given “only if the

subject matter of the note applies to the facts and

circumstances of that case.”   Benchbook at ch. 1, ¶ 1-3(b).



                                17
United States v. Brewer, No. 04-0567/AF

Otherwise, notes and the accompanying instructions “are intended

to explain the applicability of the instruction generally, or to

alert the trial judge to optional elements or unusual

applications of the instruction.”    Id.

     Under the permissive inference instruction given in this

case, it would be difficult for a lay person to grasp the subtle

distinction between a permissive inference and a rebuttable

presumption, or to know the difference between a burden of proof

and a burden of persuasion.   Because the potential for confusion

of these terms is obvious in a case such as this one, the need

for more carefully crafted language and for further explanation

of this language is obvious as well.   See United States v.

Curry, 38 M.J. 77, 81 (C.M.A. 1993) (“Even if we, as lawyers,

can sift through the instructions and deduce what the judge must

have meant, the factfinders were not lawyers and cannot be

presumed to correctly resurrect the law.”).   Even though the

instruction was taken from the Benchbook, it was clearly

erroneous under the particular circumstances of this case and

therefore obvious error.2




2
  Although this issue was not reached by the Air Force court in
this case, it has found on two previous occasions that giving
this instruction constitutes error. See United States v.
Fuller, No. ACM 35058 2004 CCA Lexis 182, at *11-*16, 2004 WL
1539559 at *4-*6.(A.F. Ct. Crim. App. June 23, 2004)(unpublished
opinion); United States v. Voda, No. ACM 35337, 2004 CCA Lexis



                                18
United States v. Brewer, No. 04-0567/AF

3.   Were the Above Errors Harmless Beyond a Reasonable Doubt?

     In regard to the erroneous instruction, after finding

obvious error we ask whether this error materially prejudiced

Brewer’s substantial rights.   Powell, 49 M.J. at 463-65.

Because in this case we have a constitutional error, we must

evaluate whether the Government has shown that the error was

harmless beyond a reasonable doubt.   Id. at 465 n.*.   With

regard to the military judge’s ruling excluding defense

witnesses, this court has noted that “[b]ecause an accused has

the right to present witnesses under the Constitution and RCM

703(b), the Government must show that this error was harmless

beyond a reasonable doubt.”    United States v. Miller, 47 M.J.

352, 359-60 (C.A.A.F. 1997).   We will review both errors

together to determine whether the denial of Brewer’s right to

due process was nonetheless harmless beyond a reasonable doubt.

     Brewer argues that neither of the errors was harmless

beyond a reasonable doubt because they affected his ability to

properly defend himself on the element of wrongful use.     The

Government contends that any error that did occur was harmless

because of the extent of the evidence against Brewer.

     We find that excluding the four defense witnesses made it

impossible for Brewer to present his defense that those who saw

him most frequently over a substantial portion of the charged


29, at *5-*10, 2004 WL 190265 at *2-*3 (A.F. Ct. Crim. App. Jan.


                                 19
United States v. Brewer, No. 04-0567/AF

time frame had not seen him use marijuana, possess marijuana

paraphernalia, or appear to be under the influence of marijuana.

This line of defense was relevant to rebut the inference that

his use of marijuana was wrongful.     While the Government is

correct that its evidence was strong to support a finding that

Brewer had the marijuana in his system, it relied solely on the

permissive inference of wrongful use to meet that essential

element of the charge.   Therefore, the exclusion of these

witnesses was not harmless beyond a reasonable doubt because

without their testimony that permissive inference was left

unchallenged.

     This prejudice was compounded by the military judge’s

confusing and erroneous instruction.    Brewer was not permitted

to challenge the inference that his use was wrongful, while at

the same time reasonable members may have understood the

instruction to require them to find the use wrongful if Brewer

did not make a sufficient showing to the contrary.    Brewer was

left without recourse to rebut an essential element of the

charge against him, and the Government was relieved of its

burden to prove that element beyond a reasonable doubt.    We find

that these errors created prejudice to Brewer that is not

harmless beyond a reasonable doubt.




26, 2004)(unpublished opinion).

                                  20
United States v. Brewer, No. 04-0567/AF

                             DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is reversed.   The findings and sentence are set

aside.   The record is returned to the Judge Advocate General of

the Air Force.   A rehearing is authorized.




                                21
United States v. Brewer, No. 04-0567/AF


     CRAWFORD, Judge (dissenting):

     I respectfully dissent from the majority’s analysis and

disposition of both issues.   As to Issue II, the majority finds

a violation of due process because Appellant was not allowed to

introduce specific acts of good character to rebut a permissive

inference of knowing use of marijuana, despite Appellant’s own

failure to take advantage of the Military Rules of Evidence and

our decisions to introduce highly similar evidence under the

“good soldier defense.”

     As to Issue III, I respectfully dissent because the

majority implicitly overrules the provisions of the Manual for

Courts-Martial, United States (2002 ed.) (MCM), concerning modes

of proof and fails properly to consider the plain error

doctrine.

                              ISSUE II

                               FACTS

     Appellant was randomly selected to give a urine sample,

which tested positive for the use of marijuana.   Based on this

positive test result, the Government obtained a search

authorization to seize hair samples from Appellant, which also

tested positive.   The Government expert testified that Appellant

“had ingested [marijuana] on multiple occasions. . . .”    In the

expert’s opinion, Appellant had used marijuana at least thirty
United States v. Brewer, No. 04-0567/AF


times over a twelve-month period preceding the seizing of the

hair samples.

     Appellant asserts that these readings were the result of

passive inhalation, possibly from individuals who were,

unbeknownst to him, smoking marijuana at his house and

sprinkling his food with marijuana.    To support his unknowing,

unwitting, passive inhalation or ingestion, the Appellant sought

to call four witnesses who did not live with him to testify that

they had not specifically seen Appellant using drugs.     Even

though Appellant failed to take advantage of our relaxed

character evidence rules, the majority holds there was a

violation of due process.   United States v. Brewer, 61 M.J. __,

__ (3, 12) (C.A.A.F. 2005).

                              DISCUSSION

     The Due Process Clause “‘require[s] that only the most

basic procedural safeguards be observed. . . .’”     Medina v.

California, 505 U.S. 437, 453 (1992).      “[B]eyond the specific

guarantees enumerated in the Bill of Rights, the Due Process

Clause has limited operation.”    Dowling v. United States, 493

U.S. 342, 352 (1990):

     The Bill of Rights speaks in explicit terms to many
     aspects of criminal procedure, and the expansion of
     those constitutional guarantees under the open-ended
     rubric of the Due Process Clause invites undue
     interference with both considered legislative
     judgments and the careful balance that the
     Constitution strikes between liberty and order.


                                  2
United States v. Brewer, No. 04-0567/AF


Medina, 505 U.S. at 443.   Importantly, the Supreme Court in

Dowling emphasized that “[j]udges are not free, in defining ‘due

process,’” to impose on law enforcement officials “[their]

‘personal and private notions’ of fairness. . . .”    Dowling, 493

U.S. at 353 (quoting United States v. Lovasco, 431 U.S. 783, 790

(1977)).   If the Rules of Evidence are to be ferreted out and

made by judges under the cloak of the Due Process Clause, the

law of evidence will be inaccessible to those in the field.

“Making evidence law accessible is the main reason for the code

that has become the most influential body of the American

evidence law -- the Federal Rules of Evidence.”    Christopher B.

Mueller & Laird C. Kirkpatrick, Modern Evidence, Doctrine and

Practice § 1.2, at 4 (1995).     See also Hearings on the Proposed

Rules of Evidence before   Special Subcommittee on Reform of

Federal Criminal Laws of the Committee on the Judiciary, House

of Representatives, 93d Cong. 90 (1973)(testimony of Albert

Jenner Jr.)(“[T]he administration of justice in the federal

courts is suffering seriously.    A major factor in this regard is

the maelstrom of rules of evidence which must be presently

ferreted out and applied by federal judges.”).

     The Military Rules of Evidence (M.R.E.) are “applicable in

courts-martial . . .”   M.R.E. 101.    The rules governing

admission of character evidence are set forth in M.R.E. 404,




                                   3
United States v. Brewer, No. 04-0567/AF


405, and 608.   These rules have been interpreted very

expansively by this Court:

     The broad availability of the good soldier defense is
     supported by many legal doctrines and policy
     arguments, but none withstand close analysis. Cloaked
     in the mantle of longstanding court-martial tradition,
     justified by doctrines of questionable salience, and
     preserved by judges resistant to the Military Rules of
     Evidence’s limitations on character evidence, the good
     soldier defense advances the perception that one of
     the privileges of high rank and long service is
     immunity from conviction at court-martial. The
     defense privileges a certain type of accused
     servicemember -- a person of high rank and reputation
     in the military community -- at the expense of the
     overall fairness of the court-martial system.

Elizabeth Lutes Hillman, Note, The “Good Soldier” Defense:

Character Evidence and Military Rank at Courts-Martial, 108 Yale

L.J. 879, 881 (1999).   Even so, the defendant did not take

advantage of these rules by introducing evidence of law-

abidingness or by presenting a good soldier defense.

     However broadly read and applied, none of these rules

permits evidence of specific acts of good character pertinent to

the character trait Appellant wished to prove.   Unable to rely

on any character evidence rule, the majority relies on the

“relevance” of such evidence as an independent basis for

admissibility of character evidence prohibited by other rules.

Setting aside for the moment that relevance alone is not a

cognizable category of character evidence, a hypothetical

demonstrates the fallacy of the majority’s reliance on relevance



                                 4
United States v. Brewer, No. 04-0567/AF


at all.    Assume a defendant is charged with vandalism of a car

on June 1, 2004, at 11:00 p.m.    Also assume, to disprove the

vandalism, he offers a witness to testify that the witness

walked down the street where the car was located at 9:00 p.m.

and did not see the defendant.    Any court would exclude that

evidence as being irrelevant unless other evidence made it

relevant.1    Certainly, whether he was on the block at 11:00 p.m.

on June 1 would be evidence of “consequence to the determination

of the action,” but that he was not seen there at 9:00 p.m. does

not measurably reduce the likelihood that he was there at 11:00

p.m., unless some other evidence establishes that likelihood.

       The majority would like to hold the opposite.     Like Federal

Rule of Evidence (Fed. R. Evid.) 405(b), M.R.E. 405(b) prohibits

the introduction of specific instances of conduct unless

“character or trait of character of a person is an essential

element of an offense or defense. . . .”    Character is an issue

in criminal cases when the defense of entrapment is raised or a

character for truthfulness is an essential element of the

defense.     In civil actions, specific instances are admissible

when there has been a negligent entrustment, defamation, or

liable actions.    None of those applies in this case.

       The drafters of the rules recognized that inferences from

past behavior would be important, but excluded such proof under

1
    See, e.g., M.R.E. 104(b).

                                   5
United States v. Brewer, No. 04-0567/AF


Fed. R. Evid. 405(a) (the model for M.R.E. 405(a)) reasoning

that “[O]f the three methods of proving character provided by

the rule, evidence of specific instances of conduct is the most

convincing.”   At the same time it possesses the greatest

capacity to arouse prejudice, to confuse, to surprise and to

consume time.”   Fed. R. Evid. 405, Notes of Advisory Committee

on Rules.   Here, as indicated, the specific instances do not

cover the relevant around-the-clock time period, nor could they.

     Thus, I respectfully dissent from the further expansion of

character evidence rules.

                            ISSUE III

                              FACTS

     During the preliminary instructions before voir dire, the

military judge stated, “The accused is presumed to be innocent

of the offense.    The Government has the burden of proving the

accused’s guilt by legal and competent evidence beyond a

reasonable doubt.”    Under oath, all of the members agreed with

the rule of law that the accused “is presumed to be innocent

until his guilt is established by legal and competent evidence

beyond a reasonable doubt.”    All of the members agreed to find

the accused not guilty unless they were “convinced beyond a

reasonable doubt . . .” of his guilt.     They also agreed that

the burden of proof to establish the accused’s guilt rests

solely upon the prosecution, that the burden never shifts to


                                 6
United States v. Brewer, No. 04-0567/AF


the defense to establish the accused’s innocence, and that the

defense has no obligation to present any evidence or to

disprove the elements of the offense.     The members also

recognized the distinction between “knowing ingestion of

marijuana” and “using marijuana unknowingly, which is not a

crime.”

     The military judge instructed the court members:

          Knowledge of the presence of the controlled
     substance is a required component of use.
     Knowledge of the presence of the controlled
     substance may be inferred from the presence of the
     controlled substance in the accused’s body or from
     other circumstantial evidence. This permissive
     inference may be legally sufficient to satisfy the
     government’s burden of proof as to knowledge.
          To be punishable under Article 112a, use of a
     controlled substance must be wrongful. Use of a
     controlled substance is wrongful if it is without
     legal justification or authorization.

          Use of a controlled substance is not wrongful if
     such act or acts are: (a) done pursuant to legitimate
     law enforcement activities (for example, an informant
     who is forced to use drugs as part of an undercover
     operation to keep from being discovered is not guilty
     of wrongful use); (b) done by authorized personnel in
     the performance of medical duties or experiments; or
     (c) done without knowledge of the contraband nature of
     the substance (for example, a person who uses
     marijuana, but actually believes it to be a lawful
     cigarette or cigar, is not guilty of wrongful use of
     marijuana).
          Use of a controlled substance may be inferred to
     be wrongful in the absence of evidence to the
     contrary. However, the drawing of this inference is
     not required.
          The burden of going forward with evidence with
     respect to any such exception in a court-martial shall
     be upon the person claiming its benefit.


                                7
United States v. Brewer, No. 04-0567/AF



          If such an issue is raised by the evidence
     presented, then the burden of proof is upon the United
     States to establish that the use was wrongful.

          Knowledge by the accused of the presence of the
     substance and knowledge of its contraband nature may
     be inferred from the surrounding circumstances.
     However, the drawing of any inference is not required.

Emphasis added.

Later, he instructed the members:

     You are further advised, first, that the accused is
     presumed to be innocent until his guilt is established
     by legal and competent evidence beyond a reasonable
     doubt; . . . the burden of proof to establish the
     guilt of the accused beyond a reasonable doubt is on
     the government. The burden never shifts to the
     accused to establish innocence or to disprove the
     facts necessary to establish each element of the
     offense.

     There was no objection to these instructions.   The

italicized portions of the military judge’s instructions were

taken verbatim from the Manual for Courts-Martial United States

(2000 ed.) (MCM), pt. IV, ¶ 37c(5).   The instruction from the

Military Judges’ Benchbook is as follows:

          To be punishable under Article 112a, use of a
     controlled substance must be wrongful. Use of a
     controlled substance is wrongful if it is without
     legal justification or authorization. (Use of a
     controlled substance is not wrongful if such act or
     acts are: (a) done pursuant to legitimate law
     enforcement activities (for example, an informant who
     is forced to use drugs as part of an undercover
     operation to keep from being discovered is not guilty
     of wrongful use); or (b) done by authorized personnel
     in the performance of medical duties or experiments.)




                                8
United States v. Brewer, No. 04-0567/AF


     Knowledge by the accused of the presence of the
     substance and knowledge of its contraband nature may
     be inferred from the surrounding circumstances
     (including but not limited to _________________).
     (You may infer from the presence of (________________)
     in the accused’s urine that the accused knew (he)(she)
     used (_________________).) However, the drawing of
     any inference is not required.

     Use of a controlled substance may be inferred to be
     wrongful in the absence of evidence to the contrary.
     However, the drawing of this inference is not
     required.

Legal Services, Dep’t. of Army Pamphlet 27-9, Military Judges’

Benchbook, ch. 3, para. 3-37-2d (2001).

     Defense Argument.   Appellant argues it was error to

instruct the members using the portion of the instruction

highlighted above, because it created a “mandatory rebuttable

presumption” that the Appellant’s use of marijuana was wrongful.

He contends that “[a] reasonable court member could have

interpreted the instruction as relieving the government of its

burden of persuasion on the wrongfulness element and shifting

that burden entirely to the appellant.”   Thus a court member

could have understood that “the government had no burden of any

kind on the element of wrongfulness. . . .”

     Government Argument.   The Government argues the military

judge’s instruction did not explicitly create a mandatory

rebuttable presumption, because it did not direct the members to

presume the use of marijuana was wrongful.    To the contrary, the




                                 9
United States v. Brewer, No. 04-0567/AF


instruction properly allowed the members to infer the use was

wrongful, but noted that the inference was not required.

                           DISCUSSION

     There was no error.   The prosecution is entitled to rely

“‘on a permissive inference of wrongfulness, which has long been

recognized by military law as flowing from proof of the

predicate fact of use of’ the drug.”    United States v. Ford, 23

M.J. 331, 333 (C.M.A. 1987)(citing United States v. Harper, 22

M.J. 157, 162 (C.M.A. 1986)).   See also United States v. Pabon,

42 M.J. 404, 406 (C.A.A.F. 1995).

     The Supreme Court has stated that “[i]nferences and

presumptions are a staple of our adversary system of fact-

finding.   It is often necessary for the trier of fact to

determine the existence of an element of the crime -- that is,

an ‘ultimate’ or ‘elemental’ fact -- from the existence of one

or more ‘evidentiary’ or ‘basic’ facts.”     County Court of

Ulster County v. Allen, 442 U.S. 140, 156 (1979).     The

inferences and presumptions do not necessarily deprive an

accused of his due process rights.     Id.   “[I]n criminal cases,

the ultimate test of any device’s constitutional validity in a

given case remains constant: the device must not undermine the

factfinder’s responsibility at trial, based on evidence

adduced by the State, to find the ultimate facts beyond a




                                10
United States v. Brewer, No. 04-0567/AF


reasonable doubt.”    Id.; see also In re Winship, 397 U.S. 358,

364 (1970).

       Who creates presumptions and inferences.    As Justice Powell

noted, presumptions may be created by legislative bodies or

based on “common sense, and experience. . . .”       Allen, 442 U.S.

at 172 (Powell, J., dissenting).       The President has the

authority to create presumptions and inferences under Article

36, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 836

(2000).    Unless prohibited by controlling law to the contrary,

in matters of procedure, the President has the authority to

place either or both the burden of production and persuasion on

the defense and has done so in appropriate provisions of the

MCM.    As noted, the italicized instructions given in this case

were taken verbatim from the MCM.      Further, those same benchbook

instructions, taken substantially verbatim from the MCM, have

been used in hundreds of cases.

       The courts have uniformly upheld the assignment of the

initial burden to the defense as to duress, necessity, and

mental responsibility.    In fact, as to this latter issue, the

MCM places upon the defense not only the burden to rebut a

presumption of sanity but the requirement to do so by clear and

convincing evidence.2    Many special or affirmative defenses



2
    Rule for Courts-Martial (R.C.M.) 916(k)(3)(A).

                                  11
United States v. Brewer, No. 04-0567/AF


entail shifts of burdens and permissible inferences, e.g.,

entrapment and duress.

     All that said, what this case entails is a permissive

inference, permitted by the Supreme Court, our case law, the

President, and common sense.   As to inferences and presumptions,

the Supreme Court said:

     The most common evidentiary device is the entirely
     permissive inference or presumption, which allows --
     but does not require -- the trier of fact to infer the
     elemental fact from proof by the prosecutor of the
     basic one and which places no burden of any kind on
     the defendant. In that situation the basic fact may
     constitute prima facie evidence of the elemental fact.
     When reviewing this type of device, the Court has
     required the party challenging it to demonstrate its
     invalidity as applied to him. Because this permissive
     presumption leaves the trier of fact free to credit or
     reject the inference and does not shift the burden of
     proof, it affects the application of the “beyond a
     reasonable doubt” standard only if, under the facts of
     the case, there is no rational way the trier could
     make the connection permitted by the inference. For
     only in that situation is there any risk that an
     explanation of the permissible inference to a jury, or
     its use by a jury, has caused the presumptively
     rational factfinder to make an erroneous factual
     determination.

Allen, 442 U.S. at 157 (internal citations omitted).

     Mandatory presumption vs. permissible inference.    A

mandatory presumption tells the trier of fact that he, she, or

they must find the elemental fact upon proof of the basic fact,

unless the defendant has come forward with some evidence to

rebut the presumed connection between the two facts.    Id.   The

Supreme Court noted a class of quasi-mandatory presumptions


                                12
United States v. Brewer, No. 04-0567/AF


“that merely shift the burden of production to the defendant,

following the satisfaction of which the ultimate burden of

persuasion returns to the prosecution; and presumptions that

entirely shift the burden of proof to the defendant.”    Id. at

160, n.16.   The Court stated, “To the extent that a presumption

imposes an extremely low burden of production -- e.g., being

satisfied by ‘any’ evidence -- it may well be that its impact is

no greater than that of a permissive inference, and it may be

proper to analyze it as such.”   Id.; see also Mullaney v.

Wilbur, 421 U.S. 684, 702 n.31 (1975).

     In drug cases such as Appellant’s, members are allowed to

infer wrongful use.   This entirely permissive inference

allows, but does not require, the trier of fact to infer the

elemental fact (wrongfulness) from proof by the evidence of

the basic fact (presence of the drug’s metabolite in one’s

system), but places no burden of any kind on the defendant.

In other words, even if the defendant were to introduce no

evidence whatsoever, the members would be absolutely free to

reject the permissive inference, find that the Government had

not proved wrongful use, and acquit.    Allen, 442 U.S. at 157.

     The key issue in this case was a sub-element of

wrongfulness, i.e., whether there was knowing use of a

controlled substance by Appellant.     Unlike the case in which a

single use of marijuana is alleged to have occurred when an


                                 13
United States v. Brewer, No. 04-0567/AF


accused accidentally ate the wrong brownie at a party, the

evidence of knowing, multiple usage by Appellant is

overwhelming.   Under these circumstances, instructing on the

existence of a permissive inference of wrongfulness is nothing

more than a reminder to the members that they need not check

their common sense at the door to the deliberation room.

     Initial allocation.   Contrary to Appellant’s argument, the

military judge was explicit in his instruction that the burden

of proving wrongfulness was on the Government, and that even if

the defense produced evidence to support an unknowing or

otherwise lawful use, the burden of proving wrongfulness, beyond

a reasonable doubt, remained with the Government.     The burden of

proof, with regard to innocence, never shifted to Appellant, nor

did the military judge, through his instructions, create a

rebuttable presumption of guilt.     The instructions explained the

element of wrongfulness, that the members could infer

wrongfulness, if they chose, and that in determining whether to

make that inference, the members should consider evidence that

could establish an exception to what might otherwise be a

wrongful use.   He also instructed the members:   “The burden of

going forward with evidence with respect to any such exception

in any court-martial shall be upon the person claiming its

benefit.”




                                14
United States v. Brewer, No. 04-0567/AF


     Fuller.    In arguing that his case is similarly situated to

United States v. Fuller, No. ACM 35058, 2004 CCA LEXIS 182, at

*11-*16, 2004 WL 1539559 at *4-*6 (A.F. Ct. Crim. App. June 23,

2004)(unpublished opinion), Appellant fails to consider all the

instructions given by the military judge in this case,

particularly those on knowledge, innocent ingestion, and

unknowing ingestion.   The military judge appropriately tailored

the standard instructions by including and highlighting the

evidence raised by the defense.    Finally, the military judge

concluded his instructions by once again reminding the members

that the “burden is on the prosecution to establish the guilt of

the accused.”

     Plain error.    Even if there were error, it was not plain.

There was no objection by the defense in this case.   R.C.M.

920(f).   In fact, during the Article 39(a), UCMJ, session on the

instruction, there was a discussion of these instructions and

neither side commented upon it.    In Johnson v. United States,

the Supreme Court stated:

     [B]efore an appellate court can correct an error not
     raised at trial, there must be (1) “error,” (2) that
     is “plain,” and (3) that “affects substantial
     rights.” If all three conditions are met, an
     appellate court may then exercise its discretion to
     notice a forfeited error, but only if (4) the error
     “‘seriously affects the fairness, integrity, or
     public reputation of judicial proceedings.’”




                                  15
United States v. Brewer, No. 04-0567/AF


520 U.S. 461, 466-67 (1997)(internal citations omitted); see

also United States v. Kho, 54 M.J. 63, 65-66 (C.A.A.F. 2000).

     There is no difference between “affect[s] substantial

rights” and a “material[] prejudice[] [of] substantial rights”

under Article 59(a), UCMJ, 10 U.S.C. § 859(a)(2000).     See United

States v. Kho, 54 M.J. 63, 66 (C.A.A.F. 2000)(Crawford, C.J.,

concurring in the result).   Even if there were error and it was

plain, it did not “affect substantial rights” or “seriously

affect the fairness, integrity, or public reputation of the

judicial proceedings.”   Johnson, 520 U.S. at 467.    In this case,

there was testimony that the Department of Defense cutoff level

for confirmation for the marijuana metabolite (THC) in urine is

fifteen nanograms per milliliter.    Appellant’s urinalysis

sample, given on August 7, 2000, tested positive for THC in the

amount of 97.89 nanograms per milliliter.    The testimony added

that because the human body metabolizes marijuana rapidly, an

individual will usually test positive for THC for only three

days after one recreational use.     Therefore, the prosecution’s

theory at trial was that Appellant ingested drugs a few days

before his urinalysis.

     The prosecution also presented the results of Appellant’s

hair analysis to support its theory that Appellant had used

marijuana on divers occasions during the charged timeframe. The

testing involved dividing hair segments taken from Appellant.


                                16
United States v. Brewer, No. 04-0567/AF


As each segment represented approximately twelve months of

growth, the hair analysis would suggest a rough idea of

Appellant’s drug use for the twelve months prior to October 5,

2000, the day the hair sample was taken.

     THC cannot be found in hair unless the body actually

metabolizes marijuana.   The metabolite for marijuana in the hair

is a strong indicator that the individual used marijuana, as it

is virtually impossible for THC to enter the hair if the body

has not metabolized the drug. Furthermore, expert testimony

established that the person whose hair was tested in this case

had ingested THC on multiple occasions in the time period.

     Appellant’s hair certainly tested positive for marijuana,

as did his urine.   Appellant did not attack the lab testing

procedures, only the interpretation of the results.   In the

expert’s opinion, based on the hair analysis alone, Appellant

had used at least thirty recreational doses of marijuana for the

twelve months preceding the date the hair sample was provided.

                             CONCLUSION

     Any rational court-martial panel would have been convinced

beyond a reasonable doubt that Appellant knowingly and

wrongfully used marijuana, even had all of Appellant’s witnesses

testified, and without any instruction on the permissive

inference.    The numbers from the hair testing alone speak for

themselves.   The defense evidence attempting to establish


                                 17
United States v. Brewer, No. 04-0567/AF


possible innocent ingestion and passive inhalation were simply

unbelievable.   There was also evidence of Appellant’s negative

reactions during the search process.

     The trial counsel did not rely on the allegedly erroneous

instructions or even refer to them in his closing argument.

Trial counsel summed up the theme of his argument by telling the

members:

     Convinced beyond a reasonable doubt. And in this
     case, it is absolutely there. It is absolutely in
     front of you. There is no reasonable hypothesis. The
     one presented by the defense is absolutely not
     reasonable. There is no other one. We have excluded
     all reasonable hypotheses to explain his situation.

     During closing argument, defense counsel made certain the

members understood the correct standard to apply.   Defense

counsel argued:

     The standard you must apply is whether any reasonable
     doubt exists as to whether Master Sergeant Brewer
     knowingly and wrongfully used marijuana. . . .

     You know, someone may feel that, “Well, I think he
     probably did it,” or, “He didn’t prove that the urine
     and hair tests -- he didn’t make any positive proof
     that the urine and hair tests were wrong.” Well, that
     is not the standard. . . .

     Master Sergeant Brewer, according to the Judge’s
     instructions which you are going to hear, doesn’t have
     to prove anything. The burden also rests with the
     government.

Defense counsel went on to argue, “[w]e don’t have to present

any alternative theory.   The Government has to present the

scenario that it must hold true beyond a reasonable doubt.”


                                18
United States v. Brewer, No. 04-0567/AF


     Additionally, once both sides presented their findings

arguments, the military judge instructed the members that “the

burden of proof to establish the guilt of the accused beyond a

reasonable doubt is on the government.    The burden never shifts

to the accused to establish his innocence or to disprove the

facts necessary to establish each element of the offense.”

     Under these circumstances, it is clear beyond a reasonable

doubt that the instructions at issue were not erroneous and,

even if they were, they did not unfairly prejudice Appellant.

Irrespective of the instructions, the expert testimony

established beyond a reasonable doubt that Appellant used

marijuana on multiple occasions.     Even if all of Appellant’s

evidence had been admitted, the overwhelming strength of the

Government’s case and the comparative weakness of Appellant’s

“alibi,” “character,” or “inference defeating” evidence lead me

to conclude, beyond a reasonable doubt, that the trial results

would have been the same.   United States v. Kerr, 51 M.J. 401,

405 (C.A.A.F. 1999).

     Thus, I respectfully dissent from the majority’s

expansion of the Military Rules of Evidence under the Due

Process Clause, from its failure to consider the instructions

of the military judge in the context of the entire case, and

from its rejection of the modes of proof promulgated by the

President.


                                19
United States v. Brewer, No. 04-0567/AF


     BAKER, Judge (dissenting):

     I agree with the majority that the testimony of these

witnesses was not admissible under Military Rule of Evidence

(M.R.E.) 405(b).   And, I share the majority’s general view that

where the Government is allowed a permissive inference of

wrongdoing from a drug test, an accused should be allowed some

leeway in presenting a defense to counter the inference,

especially where the Government is free to charge divers

occasions, leaving the accused to defend every minute of every

day or every week rather than address a specific act or date.

And, in the drug test context, there is something symmetrical

(and therefore seemingly fair) about an accused balancing the

Government’s permissive inference with a permissive inference of

his own that permits him to argue that if Witness A did not see

drug activity on Tuesday then there must not have been drug

activity on Tuesday night.

The Exclusion of the Four Defense Witnesses

     The question in this case, however, is not whether the

military judge might have permitted Appellant’s “exculpatory

witness” testimony on a lenient theory of relevance, but whether

the military judge abused his discretion when he did not do so.

For the reasons stated below, the military judge did not abuse

his discretion when he excluded the testimony of three of the
United States v. Brewer, No. 04-0567/AF


four witnesses.   With respect to the fourth witness, whose

testimony was improperly excluded, the error was harmless.

     As recounted in the majority opinion, four military

witnesses would have testified on behalf of Appellant that they

were with him and observed his behavior for much of the relevant

time frame, and that if the accused had used marijuana they

would likely have seen some evidence of it.   Three witnesses

worked with Appellant, one as his supervisor and two as his co-

workers.   They would have testified to their observations of

Appellant during the daytime hours of the work week, stating

that they had never seen evidence of drug use on the part of the

Appellant.   The fourth witness, Appellant’s close friend and a

former Air Force staff sergeant, working as a civilian at

Appellant’s duty station at the time, was prepared to testify

that he spent significant time with Appellant every weekend and

that while he never saw Appellant use drugs or observed him

under the influence of drugs, he had observed Appellant’s nephew

under the influence of marijuana.

     According to defense counsel, such witnesses would have

helped to “build our wall of proof one brick at a time.”    Trial

defense counsel argued for the admissibility of these witnesses’

statements by claiming, “as long as each brick is part of our

wall, it is relevant.”   The military judge ultimately granted

the Government’s motion to exclude this testimony.


                                 2
United States v. Brewer, No. 04-0567/AF


      It is undisputed that an accused has a constitutional right

to present relevant evidence to defend against the charges.

That right, however, is not absolute.   United States v.

Browning, 54 M.J. 1, 9 (C.A.A.F. 2000).    The burden is on the

proponent of the evidence to show admissibility.    United States

v. Shover, 45 M.J. 119, 122 (C.A.A.F. 1996).    “‘Relevant

evidence’ means evidence having any tendency to make the

existence of any fact that is of consequence to the

determination of the action more probable or less probable than

it would be without the evidence.”    M.R.E. 401.   Relevant

evidence may be excluded, if “its probative value is

substantially outweighed by the danger of unfair prejudice . . .

.”   M.R.E. 403.   If the military judge weighs the evidence and

excludes it, “‘appellant has the burden of going forward with

conclusive argument that the judge abused his discretion.’”

Shover, 45 M.J. at 122 (quoting United States v. Mukes, 18 M.J.

358, 359 (C.M.A. 1984)).   We will not reverse the military

judge’s decision unless appellant persuades us that there was a

“‘clear abuse of discretion.’”   Browning, 54 M.J. 1, 9 (C.A.A.F.

2000)(quoting United States v. Johnson, 46 M.J. 8, 10 (C.A.A.F.

1997)).

      The problem with Appellant’s theory of admissibility is

that three of the four witness statements were not relevant to

the issue of Appellant’s innocent ingestion of drugs.


                                  3
United States v. Brewer, No. 04-0567/AF


     Appellant did not contest that he had ingested drugs.    The

Government offered the results of a urinalysis and hair spectrum

analysis on this point, and the results were undisputed.

Appellant did not take the stand himself, but he did defend on

the grounds that he had innocently ingested the drugs, and that

the innocent ingestion was more than likely the result of his

exposure to his nephew’s and his nephew’s friend’s illegal

conduct in his house while Appellant was off-duty.   In the words

of his civilian defense counsel:

          In September of 2000, Master Sergeant Brewer
     learned that his random urine sample had tested
     positive . . . .

     . . . .

          Master Sergeant Brewer, when learning of his
     sample, sat in the OSI office stunned, trying to
     figure out why did this come back positive? “Why was
     my sample positive for marijuana?”

          Fortunately, in the intervening months, Master
     Sergeant Brewer has been able to find out what likely
     caused his sample to come back positive.

          Now, following the chronology of this, when
     Master Sergeant Brewer came home that day, he spoke to
     his 20 year old nephew, Antron Harris –- he is called
     Tron for short -– about what had happened. And the
     next day, Tron suddenly moves out of that house.   But
     Master Sergeant Brewer, at that time, didn’t connect
     the events at all.

     . . . .

          Over the next six or eight months, he spends a
     lot of time trying to figure out the answer to this
     question. He is discussing it with various people,
     researching it, and during one discussion, one


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United States v. Brewer, No. 04-0567/AF


     unlikely discussion, he learns that Black ‘n Milds,
     Black ‘n Milds cigars, the kids will frequently unroll
     the tobacco from Black ‘n Mild cigars and Philly blunt
     cigars, cheap cigars that you can get at the 7-11, and
     fill them back up with marijuana so the cigar tobacco
     and the marijuana tobacco are together in the cigar
     and smoke that as a way of delivering marijuana to the
     body.

          And he recalls -– this is when it starts to click
     –- that Tron, his nephew, smoked Black ‘n Mild cigars.
     He is unable to get a hold of Tron. He also starts
     thinking about one of the kids, Tron’s friend, who
     frequently was at the house that summer with Tron,
     basically his only friend in the area, a kid named
     D.J. And that kid was – kind of patterned his style,
     so to speak, after a rapper called –- a rap star
     called Eminem. . . .

          But in connecting this and starting to think
     about this, he is thinking about, “Did Tron and D.J.
     bring marijuana into my house?” And he can’t get a
     hold of Tron . . . . But he remembers where D.J.
     works. He goes to D.J.’s work and he confronts him.
     Bingo.

     . . . .

          Not only did they smoke marijuana, but they ate
     marijuana. D.J. specifically recalls on one occasion,
     they put marijuana in some spaghetti sauce and ate it
     to get high. And that was at the house -– Master
     Sergeant Brewer’s house.

          The sauce was kept in Master Sergeant Brewer’s
     refrigerator like any other food, and it’s probable
     that by eating this sauce that Tron had spiked with
     marijuana, Master Sergeant Brewer tested positive for
     marijuana.

     . . . .

          There is no dispute about the science in this
     case. . . .

          The reason we agree with the scientific expert -–
     substantially agree -- is that the conclusions that he


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United States v. Brewer, No. 04-0567/AF


        reaches, the science in this case, the hair and urine
        testing, are not inconsistent with the scenario I
        described above. If Master Sergeant Brewer had
        unknowingly ingested marijuana by eating spaghetti
        sauce during the summer containing a drug, it’s not
        likely that he would have felt intoxicated.

             But he likely would have tested positive on the
        urinalysis within a reasonable time after that.
        Moreover, if he ate it more than once, and many people
        will eat spaghetti as leftovers et cetera, it is also
        not inconsistent that his hair would test positive,
        his pubic hair, two months later, even twelve months
        later.

Emphasis added.

        Subsequently, Appellant offered, and the military judge

permitted, the testimony of his nephew’s friend, who admitted to

smoking marijuana in the house and making food laced with the

drug.    However, three of the four excluded witnesses could only

testify to Appellant’s conduct at work during duty hours.       They

were not competent to testify to Appellant’s nephew’s conduct or

Appellant’s appearance or activities while outside the

workplace.    Therefore, it is not evident as to which fact of

consequence their proffered testimony would have addressed.

        Specifically, it is not evident how their testimony would

have made it more or less probable that Appellant’s acknowledged

drug ingestion at home, the place where he claimed the ingestion

had occurred, was innocent or wrongful.    These witnesses did not

see it.    These witnesses did not speak about it with Appellant.

And the proffer made no suggestion that these witnesses were




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United States v. Brewer, No. 04-0567/AF


competent to testify regarding the conditions, practices, or

behaviors in Appellant’s house.

     With respect to the fourth excluded witness who intended to

testify about Appellant’s off-duty activities and the suspected

drug use of Appellant’s nephew, his testimony was improperly

excluded.   He would have provided evidence relevant to

Appellant’s claim of innocently ingesting marijuana that had

been brought into the house by his nephew.   However, unlike the

majority, I cannot determine that this error was a

constitutional violation of Appellant’s due process right to

defend against the charges against him.

     The right to offer the testimony of witnesses is in plain

terms the right to present a defense and the right to present

the defendant’s version of the facts.   Washington v. Texas, 388

U.S. 14, 18 (1967). Just as an accused has the right to confront

the prosecution's witnesses and challenge their testimony, he

has the right to present his own witnesses to establish his

defense.    Id. at 19.   This right, rooted in the Sixth

Amendment, is a fundamental element of due process.

     In this case, the Appellant was able to present his defense

of innocent ingestion.   Though the Appellant never took the

stand, his fiancée and a friend of his nephew both testified on

his behalf, each asserting that they had never witnessed the

Appellant using drugs.   Additionally, the nephew’s friend


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United States v. Brewer, No. 04-0567/AF


testified at length about marijuana that was smoked in

Appellant’s basement and food that was prepared at Appellant’s

house that contained marijuana and possibly served to Appellant

without his knowledge.   While the excluded testimony of the

fourth witness might have bolstered that defense, the omission

did not deprive Appellant of his right to present it.

     When examining an error that is nonconstitutional in

nature, we seek to determine whether the error was harmless, not

whether it was harmless beyond a reasonable doubt.    United

States v. Pollard, 38 M.J. 41, 51-52 (C.M.A. 1993).     The test

for nonconstitutional error is whether the error had a

substantial influence on the findings.    Kotteakos v. United

States, 328 U.S. 750, 765 (1946).    Thus, if we conclude that the

error substantially influenced the findings, or if we are “left

in grave doubt” whether the findings were so influenced, we must

reverse.   Id.   In light of the evidence presented by the

Government to rebut Appellant’s theory of innocent ingestion, we

can conclude that the exclusion of this witness’ testimony did

not substantially influence the guilty findings.

     To counter the Appellant’s argument that he had ingested

marijuana unknowingly by passively inhaling the smoke caused by

his nephew’s drug use in the basement, the Government presented

extensive testimony from Dr. Carl Selavka.   Dr. Selavka, the

Director of the Massachusetts State Police Crime Laboratory and


                                 8
United States v. Brewer, No. 04-0567/AF


a forensic chemist and toxicologist, testified at length about

passive inhalation studies that had been performed with known

subjects who did not have prior marijuana in their systems.

These studies sought to determine the likelihood of passive

inhalation giving rise to positive findings in blood and urine

samples.   Dr. Selavka stated that such studies demonstrated that

the less smoke is ingested and inhaled, the less metabolite will

be detected in an individual’s biological tissues.

Specifically, he detailed a study in which individuals were

exposed to the second hand smoke from four marijuana cigarettes

in a very small, closed environment for one hour at a time every

day for six days.   The individuals, according to the study, did

not test positive for the Department of Defense cutoff after

such exposure.

     Likewise, Dr. Selavka testified, when asked about the

likelihood of the Appellant testing positive for marijuana use

after ingesting pasta sauce laced with the drug:   “In the

absence of other ingestions, there is just not enough ingestion

of the THC over the time period represented by the hair to

logically give rise to the positive finding from the spaghetti

sauce scenario itself.”   This testimony would have led the

members to question Appellant’s theory by bringing to their

attention that there were studies that demonstrated that his

explanations for his positive drug tests simply were not


                                 9
United States v. Brewer, No. 04-0567/AF


plausible.   Further, it is unlikely that any testimony from the

excluded witness about the nephew’s drug use in the house would

have negated Dr. Selavka’s testimony or persuaded the members

that Appellant’s possible exposure to the drug was somehow

distinguishable from the exposure of the individuals who

participated in the study.

     Additionally, the excluded testimony of the fourth witness

would have directly contradicted evidence presented by the

Appellant’s fiancée on the issue of drug use in their home.

Specifically, she testified that she and the Appellant would not

allow drugs to be used in their home.    When questioned about

whether she knew that Appellant’s nephew and his friend may have

been using drugs in the basement, she responded:    “I was never

aware of it, but we were very strict about -– we didn’t allow

anything like that in our house.     But I never knew of it.   He

never did it in front of me.”   She further stated that in the

two years she lived in the home with Appellant, she never

smelled anything or saw anything that would have lead her to

believe that any marijuana use was occurring in their home,

specifically in the basement.

     The fourth witness would have testified that he noticed the

smell of marijuana on Appellant’s nephew and his friend and that

he observed them under the influence of the drug in the home.

“I saw there [sic] eyes were red or squinting which I observed


                                10
United States v. Brewer, No. 04-0567/AF


in others who were high on marijuana.”     He also would have

testified that he observed them in possession of drug

paraphernalia.   “I saw that they had Black and Mild cigars which

are commonly used by young people to smoke marijuana.”     If this

witness had been found credible by the members, it is likely

that his observations about the nephew’s drug use in the house

would have undercut Appellant’s fiancée’s claim that they were

very strict about marijuana not being allowed in the house and

that there were no signs of it ever being present in the house,

thus weakening his defense.

     For these reasons, I do not believe the military judge

abused his discretion with respect to three of the witnesses and

with respect to the fourth, who was erroneously excluded, I

believe that error was harmless.      Accordingly, I respectfully

dissent on Issue II.

The Military Judge’s Instruction

     I also respectfully dissent from the majority’s conclusion

on Issue III.    To be sure, the instruction at issue is no model

of clarity.   It is confusing, even to lawyers -- or particularly

to lawyers -- who can dissect the text and legitimately parse

alternative meaning from almost every word and phrase.     For

example, when read in isolation from the remainder of the

instructions, the military judge’s statement, “If such an issue

[an exception to wrongful use] is raised by the evidence


                                 11
United States v. Brewer, No. 04-0567/AF


presented, then the burden is on the United States to establish

that the use was wrongful” is problematic.    Emphasis added.   Of

course, the burden of proof is always on the United States to

establish that use was wrongful, but the use of the word “then”

suggests this might not always be the case.

     However, the question in this case is whether there was

plain and obvious instructional error.    This is not a case where

the defense counsel objected and proposed alternative language.

Nor is this case resolved by asking whether the instruction

could be improved.   That is plain and obvious.   Among other

things, plain English would improve the instruction.   If

confusion alone was the standard for plain error, then plain

instructional error would occur with cascading regularity.

     Based on the totality of the instructions provided by the

military judge in the specific context of this case, I do not

believe there was plain error.   The one part of the military

judge’s instructions that was unequivocally clear, and

repetitive, was the part concerning his instructions that the

Government never relinquished its burden to prove all the

elements beyond a reasonable doubt.   Thus, at the outset of his

instructions the military judge stated:   “The burden is on the

prosecution to establish the guilt of the accused.”    And at the

close of his instructions the military judge stated:




                                 12
United States v. Brewer, No. 04-0567/AF


     You are further advised, first, that the accused is
     presumed to be innocent until his guilt is established
     by legal and competent evidence beyond a reasonable
     doubt . . . . And lastly, the burden of proof to
     establish the guilt of the accused beyond a reasonable
     doubt is on the government. The burden never shifts
     to the accused to establish innocence or to disprove
     the facts necessary to establish each element of the
     offense.

These instructions were not confusing, nor did they address

obscure points of law.   Further, these instructions bracketing

the military judge’s instructional packet echoed the ingrained

and basic understanding members would already have regarding the

Government’s burden of proof.   As a result, I do not think it is

plain or obvious that the confusing language cited above and in

the lead opinion would cause reasonable members to otherwise

think the burden of proof was on the Appellant rather than the

Government.

     Based on the foregoing, I would affirm the decision of the

United States Air Force Court of Criminal Appeals.




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