                                    IN THE CASE OF


                            UNITED STATES, Appellee

                                            v.


                  Neftali RIVERANIEVES, Staff Sergeant
                          U.S. Army, Appellant


                                     No. 00-0516


                             Crim. App. No. 9701655

        United States Court of Appeals for the Armed Forces

                            Argued December 6, 2000

                             Decided April 18, 2001

    SULLIVAN, J., delivered the opinion of the Court, in which
     CRAWFORD, C.J., GIERKE, EFFRON, and BAKER, JJ., joined.

                                        Counsel

For Appellant:  Major Mary M. McCord (argued); Lieutenant Colonel David A.
    Mayfield (on brief); Colonel Adele H. Odegard, Major Jonathan F. Potter,
    and Major Kirsten V. C. Brunson.


For Appellee: Captain Daniel G. Brookhart (argued); Colonel David L. Hayden
     and Lieutenant Colonel Edith M. Rob (on brief); Major Mary E. Braisted.




Military Judge: James J. Smith

            THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Riveranieves, 00-0516/AR


    Judge SULLIVAN delivered the opinion of the Court.


    During August and October of 1997, appellant was tried by a

special court-martial composed of officer and enlisted members at

Fort Bragg, North Carolina.   Contrary to his pleas, he was found

guilty of wrongfully using cocaine between May 30 and June 30,

1997, in violation of Article 112a, Uniform Code of Military

Justice, 10 USC § 912a.   He was sentenced to a bad-conduct

discharge and reduction to the grade of private.   The convening

authority approved this sentence on April 2, 1998, and the Court

of Criminal Appeals affirmed in an unpublished opinion on May 18,

1999.



    On September 5, 2000, this Court granted review on the

following issue:



           WHETHER THE MILITARY JUDGE’S ERRORS IN
           FAILING TO GIVE A CURATIVE INSTRUCTION
           FOLLOWING TRIAL COUNSEL’S MISSTATEMENT OF
           THE EVIDENCE AND COMPOUNDING THE ERROR
           PREJUDICED APPELLANT’S RIGHT TO A FAIR
           TRIAL.


We hold that trial counsel’s erroneous argument on the evidence

presented in this case and the military judge’s affirmation of

that argument materially prejudiced appellant’s substantial

rights.   Article 59(a), UCMJ, 10 USC § 859(a).



    Appellant was charged with wrongfully using cocaine “at or

near Fort Bragg, North Carolina, between on or about 30 May 1997,



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United States v. Riveranieves, 00-0516/AR


and on or about 30 June 1997.”   The prosecution presented its

standard urinalysis case based on a positive urinalysis report,

expert testimony explaining it, and chain-of-custody evidence.

See United States v. Murphy, 23 MJ 310 (CMA 1987).      The defense’s

theory was that appellant’s urine sample was tampered with or

adulterated after it was seized from him.



    As part of its case in chief, the prosecution called Major

Brian J. Lukey, U.S. Army, a board-certified toxicologist and

officer-in-charge of Tripler Forensic Toxicology Drug Testing

Laboratory in Hawaii.   He testified on direct examination as

follows:



           Q. Could you explain for the panel
           members how the use of cocaine is detected
           in the human body?

           A. Yes. When cocaine enters the body,
           whether you inhale it, smoke it, you can
           snort it, intravenously administer it or
           even ingest it, it will enter into the
           blood system. The blood will move it
           through the body to the brain, where it
           exerts its pharmacological effect, the
           high; but also, the body recognizes any
           substance, like cocaine, as a foreign
           substance and it tries to get rid of it.
           One of the ways it gets rid of it is it
           tries to make it more water-soluble, so it
           would attach a chemical moiety to it or
           break it into components that we call
           “metabolites.” And, it’s the metabolites
           that go into the urine and eliminate it
           from the body. And one particular
           metabolite - it’s called “Benzoylecgonine”
           or “BZE” - is the one that we particularly
           look at for cocaine abuse.

           Q. Now, in your experience, can the
           metabolite referred to as BZE be produced



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United States v. Riveranieves, 00-0516/AR


          in any other - from any other substance,
          but cocaine?

          A.   No.

          Q. Can the human body naturally make and
          produce BZE?

          A.   It cannot.

          Q. If the human body consumes cocaine,
          can that body then produce the metabolite
          BZE?

          A.   Yes.

          Q. So is it true that a human body which
          produces urine that contains the
          metabolite BZE has consumed or ingested
          somehow cocaine?

          A.   Yes.

          Q. What types of tests are done on urine
          to detect the metabolite BZE?

          A. We actually do two different tests at
          our laboratory. We do a first test. It’s
          called a “Screening Test,” which is
          immunological based. It’s called “Kinetic
          Interaction of Microparticles in
          Solution.” . . .

(Emphasis added.)     He further stated:



          Q. You mentioned a fingerprint. Is that
          a fingerprint for the metabolite BZE?

          A.   That’s correct.

          Q. Is there any way for the machine to
          mistake the BZE fingerprint with any other
          metabolite fingerprint?

          A.   No.

          Q. So if your machine registers a
          fingerprint for BZE, then there was BZE in
          the specimen?

          A.   That’s correct.



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United States v. Riveranieves, 00-0516/AR


          Q. Can you state for the panel what the
          cutoff level is, established by DoD, for
          the GC/MS test?

          A. Yes, it’s 100 nanograms per
          milliliter.

(Emphasis added.)



    On cross-examination, Major Lukey answered additional

questions from defense counsel as follows:



          Q. Okay, sir. And, a question about the
          BZE produced by cocaine - and I believe
          there was a prior witness who briefly
          discussed this. You said that the body
          processes that out. It comes out through
          the urine. It’s detected there.

          A.   Correct.

          Q. If - if there were cocaine, basically,
          dumped into urine and shipped to your lab,
          what happens there?

          A. It all depends upon the Ph of the
          urine itself. The more basic the urine,
          the cocaine can actually go and form BZE
          itself. So, you actually find BZE and,
          actually, in this case, the urine was
          fairly basic. It was - actually, I think
          we - I don’t have my chain - I had it on
          the other chain of custody form - but, I
          think it was 7 something, which, if
          cocaine was added to that urine, it could
          form BZE.

          Q. Okay. So, that is possible, unlike
          with say marijuana, whereas you can’t - it
          couldn’t be dropped into a urine specimen
          and then it would just - it wouldn’t come
          up with anything?

          A.   That’s correct.

(Emphasis added.)




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United States v. Riveranieves, 00-0516/AR


    Trial counsel, in his rebuttal argument on findings, stated:



          Mr. President, members of the panel, the
          defense was right about one thing, testing
          procedures don’t prove the accused’s
          guilt. It was the accused’s use of
          cocaine that proves him guilty. It’s the
          evidence that proves him guilty. It’s the
          fact that he provided a urine sample. The
          urine sample was tested. The testing was
          positive. That proves him guilty. . . .


                            *   *       *

          He had the control where he was in his own
          room, where he could control everything
          without anyone coming in and he had the
          latrine, a mere 10 to 15 feet away. The
          bottom line is the sample taken from the
          accused was properly taken. It was his
          urine. It showed BZE. BZE only appears
          when you’ve been using cocaine. These
          simple facts --

          ADC:   Your Honor, that’s not a fact.

          MJ: That was the testimony of the expert.
          Please be seated.

          (The assistant defense counsel did as
          directed.)

(Emphasis added.)



                            ___ ___ ___

    RCM 919, Manual for Courts-Martial, United States (1995 ed.),

stated:



          Rule 919.   Argument by counsel on findings
          (a) In general. After the closing of
          evidence, trial counsel shall be permitted
          to open the argument. The defense counsel
          shall be permitted to reply. Trial



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United States v. Riveranieves, 00-0516/AR


          counsel shall then be permitted to reply
          in rebuttal.

          (b) Contents. Arguments may properly
          include reasonable comment on the evidence
          in the case, including inferences to be
          drawn therefrom, in support of a party’s
          theory of the case.


(Emphasis added).   The Court of Criminal Appeals held that trial

counsel’s argument that the evidence presented in this case

showed “BZE only appears when you’ve been using cocaine” was a

misstatement.   Unpub. op. at 2.       We agree with the lower

appellate court’s conclusion.



    RCM 919(c) further provides:



          (c) Waiver of objection to improper
          argument. Failure to object to improper
          argument before the military judge begins
          to instruct the members on findings shall
          constitute waiver of the objection.
                           Discussion

            If an objection that an argument is
          improper is sustained, the military judge
          should immediately instruct the members
          that the argument was improper and that
          they must disregard it. In extraordinary
          cases improper argument may require a
          mistrial. See RCM 915. The military
          judge should be alert to improper argument
          and take appropriate action when
          necessary.


Here, the defense immediately objected to the prosecutor’s

misstatement of the evidence in his closing argument.        Instead of

sustaining that objection and instructing the members to

disregard the prosecutor’s misstatement, the military judge



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United States v. Riveranieves, 00-0516/AR


agreed with trial counsel’s reading of the record and

communicated this belief to the members.



    The remaining question before us is whether appellant was

prejudiced by trial counsel’s erroneous argument and the military

judge’s compounding of that error.       In United States v. Iglesias,

915 F.2d 1524, 1529 (11th Cir. 1990), the Eleventh Circuit held

that an erroneous-misstatement-of-evidence argument by trial

counsel may be cured by an immediate instruction from the trial

judge that the jury members, not counsel, must decide what

evidence was admitted in a case.       However, in United States v.

Achtenberg, 459 F.2d 91, 98 (8th Cir.), cert. denied, 409 U.S.

932 (1972), the Eighth Circuit, in different circumstances, found

prejudice despite a curative instruction that the members of the

jury “alone” were “judges of what the evidence” was.       The

particular circumstances of each case are controlling.



    In appellant’s case, there was no immediate curative

instruction given by the trial judge as to the prosecutor’s

erroneous argument, (R. 220) nor a timely one specifically

repudiating his asserted view of the evidence in this case. (R.

226).   Moreover, this was a urinalysis case and the misstatement

pertained to a critical issue and its resolution based on

scientific principles.   Cf. United States v. Mack, 33 MJ 251 (CMA

1991) (urinalysis conviction set aside because of inconsistent

scientific proof); United States v. Murphy, supra at 312

(urinalysis conviction set aside for inadequate scientific



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United States v. Riveranieves, 00-0516/AR


proof).   Finally, the judge’s comments effectively blunted

appellant’s previously noted defense that his urine sample had

been purposefully tampered with after he submitted it to military

authorities.   See United States v. Lewis, 51 MJ 376 (1999).    We

find material prejudice in these circumstances.   Article 59(a).



    The decision of the United States Army Court of Criminal

Appeals is reversed and the findings of guilty and the sentence

are set aside.   The record of trial is returned to the Judge

Advocate General of the Army.   A rehearing may be ordered.




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