              UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                               UNITED STATES

                                                          v.

                               Senior Airman COURTNEY R. CANADA
                                        United States Air Force

                                                  ACM S32298

                                                20 October 2016

            Sentence adjudged 24 October 2014 by SPCM convened at Joint Base San
            Antonio – Randolph, Texas. Military Judge: Bradley A. Cleveland
            (arraignment) and Mark W. Milam.

            Approved Sentence: Bad-conduct discharge and reduction to E-2.

            Appellate Counsel for Appellant: Major Isaac C. Kennen.

            Appellate Counsel for the United States: Major Mary Ellen Payne and Gerald
            R. Bruce, Esquire.
                                              Before

                                MAYBERRY, J. BROWN, and BENNETT
                                     Appellate Military Judges

             This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                                 under AFCCA Rule of Practice and Procedure 18.4.



MAYBERRY, Senior Judge:

       At a special court-martial composed of officer members, Appellant was convicted,
contrary to her plea, of wrongful use of cocaine in violation of Article 112a, UCMJ, 10
U.S.C. § 912a, and sentenced to a bad-conduct discharge and reduction to E-2. The
convening authority approved the sentence as adjudged.

       On appeal, Appellant raises 10 issues: (1) the evidence is legally and factually
insufficient; 1 (2) the military judge’s instruction allowing a permissive inference of
knowing ingestion based on the presence of a metabolite of cocaine in Appellant’s urine

1
 Appellant’s error is characterized as one of factual sufficiency, but we analyzed the error for both legal and factual
sufficiency.
sample was erroneous; 2 (3) the military judge erred in allowing the government’s expert
witness to testify that “assuming there was no contamination then you would have to
assume [the cocaine] was taken…purposefully”; 3 (4) the military judge erred in allowing
trial counsel to voir dire the members regarding the use of the permissive inference; (5) the
military judge erred in ruling that the drug testing report (DTR) was not testimonial hearsay
and allowing the government’s expert witness to testify; (6) the military judge erred in
admitting hand-written notes in the DTR; 4 (7) the military judge’s instruction on reasonable
doubt was erroneous; (8) the trial counsel’s closing argument was improper; (9) the non-
unanimous verdict violates the Due Process Clause; and (10) post-trial processing delay.

                                                 Background

       On 22 January 2014, Appellant provided a urine sample pursuant to an order
generated by the Drug Demand Reduction Office on Joint-Base Fort Sam Houston, Texas.
The sample was tested at the Air Force Drug Testing Laboratory (AFDTL) on Lackland
Air Force Base, Texas. The results of that testing showed the presence of benzoylecgonine
(BZE) in Appellant’s urine at a level of 274 ng/mL. The Department of Defense (DoD)
cutoff for BZE is 100 ng/mL. Appellant was charged with a single specification of
wrongful use of cocaine between on or about 8 January 2014 and on or about 22 January
2014. The government’s only evidence at trial consisted of testimony from witnesses
involved in the collection of the urine sample Appellant provided on 22 January 2014 and
a DTR introduced through the testimony of an expert in drug urinalysis testing, Dr. DT.

        Additional facts necessary to resolve the assignments of error are included below.

                       Legal and Factual Sufficiency—Permissive Inference

       We review issues of factual and legal sufficiency de novo. Article 66(c), UCMJ, 10
U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002); see
United States v. Cole, 31 M.J. 270, 271 (C.M.A. 1990). Our assessment of legal and factual
sufficiency is limited to the evidence presented at trial. United States v. Dykes, 38 M.J.
270, 272 (C.M.A. 1993).

         The test for factual sufficiency is “whether, after weighing the evidence in the record
of trial and making allowances for not having personally observed the witnesses, [this court
is] convinced of the [Appellant]’s guilt beyond a reasonable doubt.” United States v.
Turner, 25 M.J. 324, 325 (C.M.A. 1987); see United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000).



2
  Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
3
  Id.
4
  Id.


                                                        2                         ACM S32298
       The test for legal sufficiency requires courts to review the evidence in the light most
favorable to the government. If any rational trier of fact could have found essential
elements of the crime beyond a reasonable doubt, the evidence is legally sufficient. Reed,
51 M.J. at 41 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979) and Turner, 25 M.J.
324 (C.M.A. 1987)); see also United States v. Humphreys, 57 M.J. 83, 94 (C.A.A.F. 2002).
The term “reasonable doubt” does not mean that the evidence must be free from conflict.
United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986). “[I]n resolving questions of
legal sufficiency, we are bound to draw every reasonable inference from the evidence of
record in favor of the prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F.
2001).

       Appellant argues that use of the permissive inference should not have been allowed
to prove the knowledge element in this case. She relies on Cnty. Court v. Allen, 442 U.S.
140 (1979), for the proposition that there must be “ample evidence” other than the
permissive inference to sustain a conviction. Appellant also looks to United States v. Ford,
23 M.J. 331 (C.M.A. 1987), for the proposition that this court must conduct a case-specific
analysis of the facts to determine whether the permissive inference was properly applied.

       In Ford, decided nearly 30 years ago, our superior court noted that “evidence of
urinalysis tests, their results, and expert testimony explaining them is sufficient to show
beyond a reasonable doubt that an accused used marihuana.” 23 M.J. at 332. The court
recognized that “military law for over 35 years has provided that a permissive inference of
wrongfulness may be drawn from such a circumstantial showing of marihuana use.” Id.
Further, such an inference “may still be drawn where the defense evidence contrary to the
inference may be reasonably disbelieved by the factfinder.” Id. at 334. (emphasis in the
original).

       The Court of Appeals for the Armed Forces (CAAF) more recently encapsulated
the proper use of the inference as follows:

              Whether to draw an inference of wrongfulness is a question to
              be decided by the factfinder using the standard of reasonable
              doubt. It may be drawn where no contrary evidence is
              admitted. However, if the prosecution fails to persuade the
              factfinder beyond a reasonable doubt that this inference should
              be drawn, a finding of not guilty is required. Similarly, the
              inference of wrongfulness may be drawn where contrary
              evidence is admitted. However, if the prosecution fails to
              persuade the factfinder beyond a reasonable doubt that this
              contrary evidence should be disbelieved or that the inference
              should be drawn, a finding of not guilty is required.

United States v. Bond, 46 M.J. 86, 90 (C.A.A.F. 1997).


                                              3                                  ACM S32298
      The simple fact that defense has raised an innocent or unknowing ingestion defense
does not require the government to rebut such a defense in order for members to find
Appellant guilty. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).

        Appellant contends that the facts of this case do not support the permissive inference
of a “knowing” use. Specifically, she notes that the government’s expert witness, Dr. DT,
testified that, based on the scientific evidence, he could not say when Appellant used
cocaine, how much was used, whether the user would have felt any physiologic or
psychological effects, or whether the ingestion was knowing. Additionally, Appellant
relies on Dr. DT’s acknowledgement that another metabolite, ecgonine methyl ester
(EME), is the metabolite of cocaine that proves cocaine has actually been enzymatically
processed through a human’s body. 5 Consequently, Appellant argues that without more
evidence, the results of the drug testing alone should not be sufficient evidence to find the
element of knowing use beyond a reasonable doubt.

        Dr. DT’s testimony was comprehensive, providing evidence of how cocaine is
metabolized in the body, how long cocaine and the metabolite BZE are typically retained
in the body, how the drug testing process works at AFDTL, and a summary of the scientific
results of Appellant’s specimen tests. In addition to his testimony that the scientific results
could not reveal when cocaine was used, how much was used, or whether the user
experienced any effects, Dr. DT testified that a recreational dose of cocaine (40-50 mg)
could stay in the body for 1.5 to 2 days, with the literature suggesting the maximum
detection window for a recreational dose to be 2 to 3 days. He ultimately concluded that
based on his assessment that the tests on Appellant’s sample were valid and done in
accordance with laboratory procedures, Appellant’s nanogram level was consistent with a
recreational, knowing use of cocaine between 1.5 and 3 days prior to providing a urine
sample.

       The cross-examination of Dr. DT elicited a number of possibilities, other than
knowing ingestion, for how Appellant’s urine sample could have tested positive for 274
ng/mL of BZE, including that lab technicians and others in the chain of custody could have
either accidentally or intentionally placed BZE 6 or cocaine into Appellant’s sample. 7
While BZE was available in the lab, there was no evidence elicited that cocaine was

5
  Dr. DT testified that, to his knowledge, no laboratory would use ecgonine methyl ester (EME) to test for cocaine,
unless they were asked to look for that metabolite.
6
  However, based on the amount of urine Appellant provided, someone would have had to put at least 3000ng of
benzoylecgonine (BZE) in Appellant’s urine sample in order for the sample to test positive for BZE above the
Department of Defense (DoD) cutoff.
7
  Appellant’s Grostefon assignment of error VIII asserts that Dr. DT impermissibly testified that, assuming there was
no contamination, you would then have to assume it was taken purposefully. This was in response to a hypothetical
question raised by trial defense counsel asking the expert to commit to the fact that even if there was no contamination,
actual ingestion of cocaine, or laboratory processing errors, the test result could not determine where it was ingested.
This question challenged the government’s evidence as to jurisdiction over the charge, not the remaining element of
the offense. As such, we find this error to be without merit.


                                                           4                                            ACM S32298
available to anyone at the lab. Dr. DT conceded that his opinion was necessarily dependent
on his assumption that everything was done correctly at the laboratory and there was no
contamination of the sample. The military judge limited trial defense counsel’s efforts to
challenge the reliability of the actions of the technicians and non-conforming events at the
lab to one month before or after Appellant’s test.

       At the conclusion of the government’s case, trial defense counsel made a motion for
a finding of not guilty pursuant to Rule for Courts-Martial (R.C.M.) 917 based, in part, on
the government’s failure to present evidence that ingestion, if there was any, was knowing.
Trial counsel countered this allegation with the instruction regarding permissive inference,
arguing that because the DTR showed the presence of BZE, the permissive inference met
the standard. The government also cited United States v. Faile, ACM S32098 (A.F. Ct.
Crim. App. 7 November 2013) (unpub. op.), pet. denied, 73 M.J. 294 (C.A.A.F. 2014).
With regard to the permissive inference instruction, trial defense counsel argued that
because BZE could be present in Appellant’s urine sample without having been processed
in the body and there was no other evidence offered by the prosecution, use of the
permissive inference should not be permitted. The military judge ruled that he, like the
court in Faile, was not persuaded to ignore precedent of our superior court that allows the
prosecution to rely on a permissive inference.

        Trial defense counsel requested the military judge reconsider his ruling as to the
knowing use presumption, distinguishing Faile because it involved multiple positive
urinalyses, it relied on United States v. Harper, 22 M.J. 157, 162 (C.M.A. 1986), which
also involved multiple positive urinalyses, and because the defense affirmatively presented
evidence in Faile. The military judge denied the motion for reconsideration. Immediately
after the military judge’s ruling on the R.C.M. 917 motion, the defense rested, putting on
no evidence.

        In Allen, the United States Supreme Court stated that “inferences and presumptions
are a staple of our adversary system of factfinding.” Allen, 442 U.S. at 157. The Court
went on to state that “[a]s long as it is clear that the presumption is not the sole and
sufficient basis for a finding of guilty, it need only satisfy the test described in Leary [v.
United States, 395 U.S. 6 (1969)].” Id. at 160. Applying the Leary test to the facts before
us, we look to see if there is a sufficient logical link between the evidence that BZE was in
Appellant’s urine and her knowing use of cocaine. Thus, if, under the circumstances of
this case, we find that “it can be said with substantial assurance that the presumed fact is
more likely than not to flow from the proved fact,” then the permissive inference was
appropriate and permissible. Leary, 395 U.S. at 36. Applying this test, we find that there
is a sufficient logical link between the evidence and the inference.

       Furthermore, the members were not required to make this inference. The military
judge gave the following instruction:



                                              5                                  ACM S32298
              The accused may not be convicted of the use of a controlled
              substance if the accused did not know she was actually using
              the substance. The accused’s use of the controlled substance
              must be knowing and conscious. For example, if a person
              places a controlled substance into the accused’s drink, food or
              cigarette without the accused becoming aware of the substance
              presence, then the accused’s use was not knowing and
              conscious. It is not necessary that the accused was aware of
              the exact identity of the contraband substance. The knowledge
              requirement is satisfied if the accused knew the substance was
              prohibited. Similarly, if the accused believes to be a
              contraband substance, such as heroine (sic) when in fact it was
              cocaine, the accused had sufficient knowledge.
              …

              In this case, evidence has been introduced that BZE, the
              metabolite for cocaine was present in the accused’s urine on
              22 January 2014. Based upon this evidence you may
              permissibly infer that the accused ingested cocaine and did so
              knowingly; however, the drawing of this inference is not
              required and the weight and the effect of this evidence, if any,
              will depend upon all the facts and circumstances as well as the
              other evidence in this case. I have instructed you that you must
              be satisfied beyond a reasonable doubt that the accused
              knowingly ingested cocaine during the charged timeframe.
              This knowledge, like any other fact, may be proven by
              circumstantial evidence. In deciding this issue, you must
              consider all relevant facts and circumstances. (Emphasis
              added.)

        In the case before us, the permissive inference was pervasive throughout the trial.
Trial counsel raised the permissive inference with members during voir dire, as will be
discussed below, and returned to it to argue against the motion for a finding of not guilty
pursuant to R.C.M. 917. The permissive inference was raised again in closing. Having
reviewed the entire record, it is clear that the government relied heavily on the permissive
inference throughout their case. Nevertheless, the members were also required to consider
the testimony elicited during the cross-examination of Dr. DT to determine whether the
government proved the element of knowing ingestion beyond a reasonable doubt. The
instruction correctly indicated that the members were not required to draw the inference,
but, if they did, doing so was not erroneous under the law.

      Finally, the evidence regarding the collection of the specimen, along with the results
of the drug-testing process and the expert testimony of Dr. DT, provided sufficient


                                             6                                   ACM S32298
additional evidence for the members to find that Appellant knowingly used cocaine beyond
a reasonable doubt. The members were not persuaded by Appellant’s alternative theories
as to how either cocaine or BZE could have contaminated her specimen. Together with
the permissive inference, the other evidence available to the members was factually
sufficient to support the conviction beyond a reasonable doubt.

        We find that there is sufficient evidence to convince a rational trier of fact beyond
a reasonable doubt that the Appellant is guilty of wrongful use of cocaine, and that the
evidence is, therefore, legally sufficient. Furthermore, weighing all the evidence admitted
at trial and mindful of the fact that we did not see or hear the witnesses, this court is
convinced beyond a reasonable doubt that the Appellant is guilty of the offense. 8

             Permissive Inference Discussion during Voir Dire & Closing Argument 9

       A military judge is given wide discretion in determining the nature and scope of voir
dire. R.C.M. 912(d), Discussion; United States v. Williams, 44 M.J. 482, 485 (C.A.A.F.
1996). When reviewing issues involving a military judge’s scope and content of voir dire,
this court should reverse only when a clear abuse of discretion, prejudicial to a defendant,
is shown. Id. Improper argument is a question of law that is reviewed de novo. United
States v. Pope, 69 M.J. 328, 334 (C.A.A.F. 2011). In the absence of objection by the
defense at trial, we review for plain error. See United States v. Nieto, 66 M.J. 146, 147
(C.A.A.F. 2008) (citing United States v. Moran, 65 M.J. 178, 181 (C.A.A.F. 2007) and
United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F 2007)). In order to prevail under a
plain error analysis, an appellant must demonstrate that: “(1) there was an error; (2) it was
plain or obvious; and (3) the error materially prejudiced a substantial right.” Id.

       Appellant asserts that the military judge improperly allowed trial counsel to “elicit
a promise” that they would not require the government to present more than the
circumstantial evidence that Appellant’s urine contained the metabolite of cocaine.
Appellant characterizes trial counsel’s question regarding the permissive inference as a
misstatement of the law. Appellant relies on United States v. Brewer, 61 M.J. 425, 430
(C.A.A.F. 2005), to assert that in order for this court to determine the propriety of a voir
dire question concerning the permissive inference, we must consider the extent to which
the question was faithful to the law regarding permissive inferences.

       Appellant asserts that trial counsel’s reference to the reasonable doubt instruction
during closing argument misstated the law by requiring the members to convict if they
believed Dr. DT’s testimony concerning the testing process and results of that process.
Appellant relies on United States v Vargas, 583 F.2d 380, 386 (7th Cir. 1978) for the



8
    The analysis of this issue also resolves Appellant’s assignment of error VII raised pursuant to Grostefon.
9
    For ease, we re-ordered and address the issues together.


                                                             7                                          ACM S32298
proposition that a prosecutor’s misstatements of law in closing arguments can be grounds
for reversal.

        Trial counsel’s voir dire questions regarding direct and circumstantial evidence
were, at times, confusing, particularly when she attempted to differentiate between direct
and circumstantial evidence. Eventually, trial counsel asked whether the members would
be able to consider circumstantial evidence by itself to convict Appellant, and then, whether
anyone would require direct evidence such as a photograph, video, or something of that
nature in order to convict. One panel member asked if the result of a urinalysis was
considered direct evidence. Trial counsel started to respond to the question but the military
judge intervened, correctly instructing the members that direct evidence was not required
for a conviction. The military judge further indicated he would instruct them on what
constituted direct and circumstantial evidence. He then asked them if they would follow
his instructions. They all stated they would.

        Trial counsel then moved on to question the members regarding the burden of proof,
stating that the permissive inference “lets you conclude that the accused is guilty based on
just one piece of circumstantial evidence, such as the accused’s positive drug test.” Trial
counsel then asked the members if anyone thought that legal principle was unfair. All
members provided a negative response. Defense counsel did not object to the question at
the time. However, as noted in our opinion on Appellant’s first issue, the military judge
later correctly instructed the members as to the permissive inference, stating that they were
not required to draw the inference, and that the members had to consider all facts and
circumstances and be convinced beyond a reasonable doubt that Appellant knowingly used
cocaine.

       In closing argument, trial counsel stated:

              Based on what the government has shown you, that is that
              we’ve shown you chain of custody - - that the specimen was
              from the accused. We’ve showed you that the specimen tested
              positive for cocaine. And we brought Dr. [DT] in here to
              confirm that, to tell you that the metabolite was present in her
              urine. That alone, with that evidence, you may find that she,
              in fact, knew that she used . . . [T]he military judge just
              instructed you on this but I just want to focus on one term on
              there, that if based on your consideration of the evidence, you
              are firmly convinced - - which you are at this point - - that the
              accused is guilty, you must find her guilty. . . [The AFDTL]
              provided you the [DTR] that the metabolite for cocaine was
              present in the accused’s urine. Now there’s one final step that’s
              left here. That’s that you need to find the accused guilty of
              wrongful use of cocaine.


                                              8                                   ACM S32298
       The Brewer case addressed whether the permissive inference instruction provided
by the judge may have caused a reasonable member to believe that there was a mandatory
presumption rather than a permissive inference. It did not address voir dire. Although the
holding in Brewer can be distinguished on that basis, our superior court did address the
danger associated with the possible confusion between permissive inference and
mandatory presumption. Quoting Sandstrom v. Montana, 442 U.S. 510, 514 (1979), a case
also dealing with jury instructions, CAAF noted that the nature of the presumption
“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.” Brewer at 430.

       We find that trial counsel’s voir dire addressing the use of the permissive inference
was at best an incomplete statement of the law. Her specific question to the members was
whether they found her characterization of the burden unfair. They all agreed it was not.
Had she properly characterized what the burden was, her question would not give us cause
to address any possible error. The defense counsel did not object, and at the time, the
military judge did not take any corrective action. Additionally, trial counsel’s closing
argument relies almost singularly on the fact that the DTR established the metabolite for
cocaine was present in the accused’s urine to prove guilt. Again, there was no objection
by defense counsel.

       Applying the plain error standard, trial counsel’s oversimplification of the evidence
necessary to establish proof beyond a reasonable doubt was not plain error. Even if it was
plain error, we find it did not result in material prejudice to Appellant’s substantial rights.
The military judge provided accurate statements of the law during voir dire and again in
his instructions to the members regarding the proper employment of the permissive
inference instruction as well as the true burden of proof required to support a conviction.
Absent evidence to the contrary, this court may presume that members follow a military
judge‘s instructions. See United States v. Taylor, 53 M.J. 195, 198 (C.A.A.F. 2000).
Accordingly, no relief is required or warranted.

        Military Judge’s Admission of Expert Testimony and Drug Testing Report
       Whether evidence is testimonial hearsay is a question of law reviewed de novo.
United States v. Katso, 74 M.J. 273, 278 (C.A.A.F. 2015). This court reviews the military
judge’s ruling on a motion to exclude evidence for an abuse of discretion, considering the
evidence in the light most favorable to the prevailing party. Id. Under this standard, the
military judge’s findings of fact are upheld unless they are clearly erroneous or unsupported
by the record. A military judge abuses his discretion when (1) the findings of fact upon
which he predicates his ruling are not supported by the evidence of record; (2) incorrect
legal principles were used; or (3) his application of the correct legal principles to the facts



                                              9                                  ACM S32298
is clearly unreasonable. United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010) (citing
United States v. Mackie, 66 M.J. 198, 199 (C.A.A.F. 2008)).

   a. Expert Testimony of Dr. DT
      The defense motion to preclude Dr. DT from testifying was based on the following:
he was not present for any of the testing of Appellant’s urinalysis specimen; he did not
conduct a visual examination of the evidence; he did not run any of the tests or analysis;
and he did not observe any of the technicians perform any of the tests on Appellant’s
sample. His only role was as the Laboratory Certifying Official.

      For the purpose of the motion, the parties stipulated to the following:

          1. On January 22, 2014, [Appellant] provided a urinalysis
             pursuant to a random urinalysis test. On 27 Jan 2014, the
             sample was sent to the Air Force Drug Testing Lab (AFDTL)
             for analysis. The sample was received at AFDTL the same day
             and released by WM for “screen batch set up and aliquotting”
             on 3 February 2014. Starting on 3 February and lasting for
             several days, the sample was released, stored, tested,
             manipulated, destroyed, and reviewed by a number of AFDTL
             employees . . . .
          2. On 11 February 2014, AFTDL notified Mr. HP at the JBSA-Ft
             Sam Houston Drug Demand Reduction Program that
             Appellant’s specimen allegedly tested positive for cocaine.
             That same day, the results were submitted to the Medical
             Review Officer, Dr. KW, an Occupational Medicine Physician,
             for review. Dr. KW completed his review the same day.
          3. On 12 February 2014, the DDRP Manager, Mr. JK, notified
             AFOSI of the positive result in a memorandum. That same
             memorandum indicates that [Appellant’s] command and 502
             ABW/JA were also notified.
          4. On 18 February 2014, 502 FSG/JA requested the DTR,
             Specimen Bottle, and Aliquots from the AFDTL in anticipation
             of preferral of court-martial charges. On 19 February 2014, the
             AFDTL result reporting assistant, Ms. AL, produced an
             additional memorandum for 502 FSG/JA. The memorandum,
             along with the attached report, indicated the results of the
             positive urinalysis, the method of detection, and the DoD
             cutoff levels. The attachments to this memorandum included

                                            10                                  ACM S32298
              the DD Form 2624 along with the required AFDTL standard
              drug report and documents.
          5. One charge and one specification of wrongful use of cocaine
             was preferred on 20 March 2014. The charge was referred on
             25 March 2014 and served on [Appellant] on 26 March 2014.
          6. On 29 September 2014 the government identified Dr. DT as
             its expert witness from AFDTL. Dr. DT was not present for
             the testing of [Appellant’s] urinalysis specimen. Furthermore,
             Dr. DT did not conduct a visual examination of the evidence,
             he did not run any of the tests or analyses, and he did not
             observe any of the AFDTL technicians perform any of the tests
             or analyses on this particular sample. His only role was that of
             Laboratory Certifying Official.
        At the motion hearing, Dr. DT testified that approximately .5% of the 400,000 to
500,000 tests performed at AFDTL generate a presumptive positive for any drug; after a
presumptive positive result is obtained, samples are batched together for GC/MS testing
based upon the drug detected; 80% of the positive GC/MS test results do not go to court;
technicians do not know who the sample belongs to or what happens to a positive test; and
the test results and reports are generated and printed automatically by the computer—the
process is “computer driven, personnel empowered.”

       The military judge’s findings of fact, conclusions of law, and ruling on the motion
to exclude the DTR and the testimony of Dr. DT comprise 10 pages in the transcript. His
findings of fact contain the information previously stipulated to by the parties as well as
additional facts, including the following:

              [D]uring testimony for this motion, Dr. [DT] testified that
              about only .5 percent of the samples tested at AFDTL are
              presumptively positive. Although Dr. [DT] did not know the
              percentage of the presumptive positives that were for cocaine,
              his guess was about five to ten percent. Dr. [DT] also testified
              that the laboratory technicians testing the urine samples do not
              know what the test results would be used for. Dr. [DT] stated
              he, himself, did not know for what purpose positive results
              would necessarily be used. Finally, he stated the laboratory
              technicians do not know anything about a particular sample
              after completing their process with it.

       His conclusions of law addressed the application of the Confrontation Clause of the
Sixth Amendment, Mil. R. Evid. 803, and case law. Ultimately, he concluded:


                                            11                                   ACM S32298
                  [W]hile the defense wants this court to carve out an exception
                  for the drug cocaine to higher court rulings regarding the DTR
                  and what is considered testimonial in it, I am unwilling to do
                  so. Dr. [DT] was clear that the technicians are performing their
                  jobs without specific knowledge of how the positive test results
                  will be used. It matters not to them what outcome will occur
                  because of a positive result, no matter what drug. By analogy,
                  and without intending to impugn or degrade, the technicians
                  are similar to assembly-line workers, each doing their
                  individual parts to get a finished product. For what the
                  laboratory technicians do, that product is to get a valid result
                  for the entity or person submitting the samples. Therefore,
                  their chain of custody and internal review worksheets are non-
                  testimonial, and they are admissible.

    b. Admission of Drug Testing Report

       Trial defense counsel moved to exclude admission of the DTR generated from the
drug testing laboratory, claiming it should be excluded until the United States made
available for cross-examination all laboratory personnel involved in the testing of
Appellant’s urine sample. Trial defense counsel also moved to exclude Dr. DT, the
government’s expert, from testifying because he did not conduct the drug analysis testing
himself or even certify the testing done on Appellant’s sample.

       The defense theory to exclude the DTR was based on their assertion that a
presumptive positive for cocaine using the immunoassay screen would more likely than
not end up resulting in punitive action against the person who provided the sample due to
the fact that the metabolite that is identified in the test is not produced by any other
substance. The defense counsel advocated that because the follow-on testing would be
done for the purpose of producing evidence, all of the confirmatory drug testing results
were testimonial in nature. Defense counsel acknowledged our superior court’s opinions
but nevertheless requested the military judge—and now this court—carve out an exception
for cases where the immunoassay test results were presumptively positive for cocaine.

       The DTR offered in this case had been modified in accordance with case law
allowing for the admission of a DTR. 10 See Crawford v. Washington, 541 U.S. 36 (2004);
Bullcoming v. New Mexico, 564 U.S. 647 (2011); Katso, 74 M.J. at 273; United States v.

10
   Columns G and H of DD Form 2624 were redacted; both the cover memo and affidavits had been removed; and
information regarding samples of other tested individuals were redacted. The cover memo was attached to the
government’s motion for the purpose of establishing that the documents contained within the Drug Testing Report
(DTR) were generated in the course of regularly conducted business and that Dr. DT certified the report in his capacity
as a Lab Certifying Official.


                                                          12                                          ACM S32298
Tearman, 72 M.J. 54 (C.A.A.F. 2013); United States v. Sweeney, 70 M.J. 296 (C.A.A.F.
2011); United States v. Blazier (Blazier I), 68 M.J. 439 (C.A.A.F. 2010); United States v.
Blazier (Blazier II), 69 M.J. 218 (C.A.A.F. 2010); Melendez-Diaz v. Massachusetts, 557
U.S. 305 (2009); United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006).

        During the government’s case in chief, Dr. DT testified and explained that he was a
Laboratory Certifying Official at the drug testing laboratory where Appellant’s sample was
tested. In that capacity, he reviewed data and was familiar with all laboratory operating
procedures, as well as quality assurance and quality control programs. Dr. DT testified
that the types of tests used by the drug testing laboratory “are used throughout the world
for all kinds of testing as well as forensic testing, medical testing, research, everything.”
He further stated that the same protocols are used by all laboratories, both inside and
outside of the Department of Defense.

       Additionally, Dr. DT testified as to how Prosecution Exhibit 1, the DTR, was
prepared. He said that all of the documents except for the chain of custody documents
were generated by the computer. Dr. DT explained that the information found within the
DTR was the type of information he would regularly review as a Laboratory Certifying
Official. Dr. DT reviewed and analyzed the raw data from the entire DTR in the presence
of the members.

       In accordance with the military judge’s ruling, Dr. DT did not repeat any redacted
testimonial hearsay he may have reviewed. As to the three handwritten annotations
contained on pages 10 and 12 of the DTR, these were required modifications to the
computer print-out based upon automated quality control checks necessitating machine
calibrations. The computer-generated reports documenting these checks were included in
the DTR. These annotations do not constitute testimonial hearsay and Dr. DT was
permitted to testify regarding these annotations.

       The military judge denied the defense motion to exclude the entire DTR. He held
that the government’s redacted version of the DTR, as seen in Prosecution Exhibit 1 for
Identification, was admissible subject to a proper foundation. Furthermore, he ruled Dr.
DT, the anticipated government expert witness in Pharmacology, Toxicology, and AFDTL
procedures, if qualified as such an expert, could discuss the DTR. However, he ruled that
the government could not elicit testimony reciting excluded testimonial evidence to the
members. The military judge did not abuse his discretion in admitting the DTR or allowing
Dr. DT to testify. His findings of fact were not clearly erroneous or unsupported by the
record. He applied the correct legal principles, and his application of the law to the facts
was not clearly unreasonable. 11



11
     The analysis of this issue also resolves Appellant’s assignments of error VIII and IX raised pursuant to Grostefon.


                                                            13                                          ACM S32298
                                       Reasonable Doubt Instruction

       After the court was assembled, and again prior to deliberations, the military judge
instructed the members of the following with respect to proof beyond a reasonable doubt:

                  A “reasonable doubt” is a conscientious doubt based upon
                  reason and common sense, and arising from the state of
                  evidence. Some of you may have served as jurors in civil cases,
                  or as members of an administrative board[], where you were
                  told that it is only necessary to prove that a fact is more likely
                  true than not true. In criminal cases, the government’s proof
                  must be more powerful than that. It must be beyond a
                  reasonable doubt. Proof beyond a reasonable doubt is proof
                  that leaves you firmly convinced of the accused’s guilt. There
                  are very few things in this world that we know with absolute
                  certainty, and in criminal cases the law does not require proof
                  that overcomes every possible doubt. If, based on your
                  consideration of the evidence, you are firmly convinced that
                  the accused is guilty of any offense charged, you must find her
                  guilty. If, on the other hand, you think there is a real possibility
                  that the accused is not guilty, you must give her the benefit of
                  the doubt and find her not guilty.

       Although trial defense counsel did not object to this instruction, Appellant now
argues that this instruction violates Supreme Court precedent prohibiting a trial judge from
“directing the jury to come forward with a [guilty verdict], regardless of how
overwhelmingly the evidence may point in that direction.” United States v. Martin Linen
Supply Co., 430 U.S. 564, 572–73 (1977). Moreover, Appellant now asserts that trial
defense counsel was not required to lodge an objection given the fact that the instructions
were so plainly in violation of controlling Supreme Court precedent and because the
instruction in question concern a topic of fundamental importance to any criminal trial—
the burden placed upon the government.

        We review de novo the military judge’s instructions to ensure that he correctly
addressed the issues raised by the evidence. United States v. Maynulet, 68 M.J. 374, 376
(C.A.A.F. 2010); United States v. Thomas, 11 M.J. 315, 317 (C.M.A. 1981). Where, as
here, trial defense counsel made no challenge to the instruction now contested on appeal,
Appellant forfeits the objection in the absence of plain error. 12 R.C.M. 920(f). If we find
error, we must determine whether the error was harmless beyond a reasonable doubt.
United States v. Medina, 69 M.J. 462, 465 (C.A.A.F. 2011).

12
  Although we recognize that the rule speaks of “waiver,” this is, in fact, forfeiture. United States v. Sousa, 72 M.J.
643, 651–52 (A.F. Ct. Crim. App. 2013).


                                                          14                                          ACM S32298
       The language used by the military judge in Appellant’s case is—and has been for
many years—an accepted reasonable doubt instruction used in Air Force courts-martial.
See United States v. Sanchez, 50 M.J. 506, 510–11 (A.F. Ct. Crim. App. 1999). It was also
offered by our superior court as a suggested instruction. See United States v. Meeks, 41
M.J. 150, 157 n.2 (C.M.A. 1994) (citing Federal Judicial Center, Pattern Criminal Jury
Instructions at 17–18 (instruction 21) (1987) (“If, based on your consideration of the
evidence, you are firmly convinced that the defendant is guilty of the crime charged, you
must find him guilty.”). Sanchez and Meeks were decided after the authorities cited in
Appellant’s brief. No relief is warranted.

                              Prosecutor’s Closing Argument

       Appellant asserts four areas of trial counsel’s finding’s argument (including the
visual aids used) were improper. Having already addressed one of these in our analysis of
the permissive inference, the remaining three are: (1) trial counsel improperly vouched for
drug testing laboratory personnel and the urinalysis results; (2) trial counsel made
disparaging comments about trial defense counsel; and (3) trial counsel argued facts not in
evidence. As Appellant made no objection at trial to any of these arguments, this court
reviews trial counsel’s argument for plain error.
         Prosecutorial misconduct occurs when trial counsel “oversteps the bounds of that
propriety and fairness which should characterize such an officer in the prosecution of a
criminal offense.” United States v. Fletcher, 62 M.J. 175, 178 (C.A.A.F. 2005). A
prosecutor “may strike hard blows” but is “not at liberty to strike foul ones.” Berger v.
United States, 295 U.S. 78, 88 (1935). Improper argument is thus prosecutorial misconduct
if it is counter to the Berger articulation of the role of a prosecutor. Fletcher, 62 M.J. at
179.
       Appellant asserts that trial counsel’s closing argument improperly vouched for the
urinalysis results, lab procedures, and lab personnel. Specifically, Appellant claims that
trial counsel’s speculation as to defense counsel’s theory—“intentional tampering,
confusion of specimens, or inadvertent contamination”—runs counter to common sense,
as well as the visual aid stating “no contamination or tampering” and the argument “that if
something had gone wrong, you would have heard it from Dr. DT” “vouched” for the
AFDTL process by asking the members to use their common sense to presume that there
was no tampering or contamination. As our superior court stated in United States v. Baer,
53 M.J. 235, 238 (C.A.A.F. 2000), argument by trial counsel must be viewed within the
context of the entire court-martial: “our inquiry should not be on words in isolation but on
the argument as ‘viewed in context.’” In the case before us, trial counsel’s argument did
not contain personal views, but amounted to fair comments on the evidence presented to



                                             15                                 ACM S32298
include the various hypothetical possibilities regarding contamination raised during the
cross-examination of Dr. DT.
        Appellant next asserts that trial counsel’s characterization of the defense theory as
running “counter to logic and common sense” constitutes disparaging comments against
defense counsel. This argument was not personal; it was nothing more than trial counsel’s
comment on the evidence and theory proffered by the defense’s tactics and strategy during
the trial.
       Lastly, Appellant asserts that trial counsel argued facts not in evidence when she
stated that the government “had brought each and every person involved in the [drug
testing] process [to testify].” Again, our superior court’s ruling in Baer is determinative
here: it is improper to “surgically carve” out a portion of the argument with no regard to
its context. Baer at 238. There is no doubt that every technician from the drug testing
laboratory did not testify, and the law does not require them to testify. However, all of the
witnesses involved in the chain of custody—from selection, to test, to delivery of the
specimen to the laboratory—did testify. Under the law, trial counsel’s exuberance did not
amount to improper argument regarding required AFDTL witnesses.
      Having reviewed the claims by Appellant and the content of trial counsel’s closing
argument, we find no error that materially prejudiced Appellant.

                            Composition of the Court-Martial

      The constitutionality of an act of Congress is a question of law that appellate courts
review de novo. United States v. Ali, 71 M.J. 256, 265 (C.A.A.F. 2012).

       Appellant argues that having a three-member panel that is not required to produce a
unanimous verdict is unconstitutional. In doing so, she acknowledges that the recent
decision by this court of United States v. Spear, ACM 38537 (A.F. Ct. Crim. App. 30 July
2015) (unpub. op.), aff’d without opinion, 75 M.J. 50 (C.A.A.F. 2015), addressed this very
issue and was decided contrary to Appellant’s position. Appellant seeks to differentiate
this case from Spear because this case involved a permissive inference.

       Appellant cites no case law supporting her position that this case should be treated
differently solely because it involved the employment of a permissive inference. Rather,
she hypothesizes that a requirement for unanimity could have resulted in an acquittal if
even one of the members in Appellant’s trial was disinclined to employ the permissive
inference, even if the government’s evidence was sufficient to justify employment, because
drawing the permissive inference is entirely discretionary.

       As this court opined in Spear, “[j]udicial deference is ‘at its apogee’ when an
appellant is challenging the authority of Congress to govern military affairs. It is the


                                             16                                 ACM S32298
appellant’s heavy burden to demonstrate that Congress’ determinations about panel size
and unanimity should not be followed.” Spear, unpub. op. at 5 (citations omitted). We
find the analysis of Spear persuasive. As in Spear, Appellant here has failed to meet her
heavy burden to demonstrate that Congress’ determinations should not be followed.

                                  Post-Trial Processing

       We also consider two periods of post-trial processing delays. First, the delay
between completion of trial and convening authority action, and also the delay between
docketing at this court and issuance of this opinion (raised by Appellant). Under United
States v. Moreno, courts apply a presumption of unreasonable delay “where the action of
the convening authority is not taken within 120 days of the completion of trial.” 63 M.J.
129, 142 (C.A.A.F. 2006). There is also a presumption of unreasonable delay when the
time from docketing at this court to issuance of the decision exceeds 18 months. Id.
        In conducting this review, we assess the four factors laid out in Barker v. Wingo,
407 U.S. 514, 530 (1972): (1) the length of the delay, (2) the reasons for the delay, (3)
Appellant’s assertion of the right to timely review and appeal, and (4) prejudice. Id. There
is a presumption of unreasonable appellate delay when a Court of Criminal Appeals does
not render a decision within 18 months of docketing. Id. at 142.
       If the appellate delay in a given case does not rise to the level of a due process
violation, this court may nonetheless exercise its broad authority under Article 66(c),
UCMJ, to grant sentence relief even in the absence of a showing of material prejudice.
United States v. Tardif, 57 M.J. 224. In United States v. Toohey, 63 M.J. 353, 362
(C.A.A.F. 2006), our superior court held that a service court may grant relief even when
the delay was not “most extraordinary.” CAAF held, “The essential inquiry remains
appropriateness in light of all circumstances, and no single predicate criteria of ‘most
extraordinary’ should be erected to foreclose application of Article 66(c), UCMJ,
consideration or relief.” Id.
       This court set out a non-exhaustive list of factors we consider when evaluating the
appropriateness of Tardif relief in United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim.
App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016). Those factors include how long the delay
exceeded appellate review standards, the reasons noted by the government for the delay,
whether the government acted with bad faith or gross indifference, evidence of institutional
neglect, harm to the appellant or the institution, the goals of justice and good order and
discipline, and, finally, whether the court can provide any meaningful relief given the
passage of time. Id. No single factor is dispositive, and we may consider other factors as
appropriate. Id.




                                             17                                ACM S32298
       a. Trial to Convening Authority Action—126 days.

       Trial concluded on 24 October 2014. The record of trial was completed on 10
February 2015. Appellant provided clemency matters pursuant to R.C.M. 1105 on 24
February 2015. The convening authority took action on 26 February 2015. As such, 126
days elapsed between the completion of trial and the convening authority’s action.
Appellant does not assert any prejudice, and we find Appellant suffered no prejudice from
the delay that would authorize Moreno relief.

       Having found no prejudice, we next consider granting relief under United States v.
Tardif, 57 M.J. 219, 223–24 (C.A.A.F. 2002). Under Article 66(c), UCMJ. Applying the
standards in Gay, we conclude Appellant is not entitled to any Tardif relief. The relatively
minor nature of the post-trial processing delay, given the factors involved, does not rise to
the level which would adversely affect the public’s perception of the fairness and integrity
of the military justice system, and thus it is not necessary to vindicate Appellant’s right to
timely post-trial processing in this case.

       b. Docketing to Opinion

        This case was docketed with this court on 23 March 2015. Appellant filed her
assignments of error on 16 January 2016. On 9 March 2016, almost 12 months after the
case was docketed, the government filed a Motion to remand the case for new post-trial
processing after discovering that the first arraignment had been omitted from the record of
trial. Appellant opposed the motion, instead requesting the court order the government to
file a motion to attach the missing pages. On 14 March 2016, this court ordered the
government to obtain a certificate of correction from the military judge and to file a motion
to attach this missing portion of the transcript. On 5 April 2016, the government filed a
motion, but the certificate of correction was not signed by the presiding judge in accordance
with R.C.M. 1104(d). On 13 April 2016, the government submitted, and this court granted,
a Motion to Attach in compliance with R.C.M. 1104(d). On 29 September 2016, Appellant
filed a supplemental assignment of error requesting the findings and sentence be set aside
and the charge be dismissed with prejudice due to post trial processing delay.
       We decline to grant sentence relief in this case. Having analyzed the four Barker
factors, we find the delay in rendering this opinion does not constitute a due process
violation. We also find that Tardif relief is not appropriate in this case. Therefore,
Appellant is not entitled to relief based on the fact that more than 18 months elapsed after
docketing until today’s opinion.




                                             18                                  ACM S32298
                        Additional Issue: Record of Trial Errors
        The Personal Data Sheet (PDS) attached to the Staff Judge Advocate
Recommendation (SJAR) is erroneous. The PDS admitted at trial, Prosecution Exhibit 17,
is correct. However, the PDS attached to the SJAR had been modified to reflect the
reduction in rank and the corresponding reduction in basic pay. Appellant did not suffer
any forfeitures as part of the adjudged or approved sentence, so we find the error to be
harmless. Additionally, neither Appellant nor Appellant’s trial or appellate counsel raised
the issue.
       The original arraignment pages are included in the record of trial but only as an
attachment to the government’s motion, which was addressed above. We note that the
missing pages have not been properly incorporated into the original record of trial and the
date of the original arraignment is not reflected on the cover sheets of each volume of the
record of trial.
                                       Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and
66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
sentence are AFFIRMED.


              FOR THE COURT



              KURT J. BRUBAKER
              Clerk of the Court




                                            19                                ACM S32298
