

   
   
   
   U.S. v. Campbell



United States, Appellee
v.
Christopher W. CAMPBELL, Private First
Class
U.S. Army, Appellant
 
 
No. 97-0149
Crim. App. No. 9400527
 
 
United States Court of Appeals for
the Armed Forces
Argued December 4, 1997
Reargued June 4, 1998
Decided April 20, 1999


EFFRON, J., delivered the opinion
of the Court, in which COX, C.J., and GIERKE, J., joined. SULLIVAN and
CRAWFORD, JJ., filed dissenting opinions.

Counsel
For Appellant: Captain T. Michael
Guiffre (argued and reargued); Colonel John T. Phelps, II, Major
Holly S.G. Coffey, Major Michael E. Hatch, and Major Leslie
A. Nepper (on briefs); Lieutenant Colonel Michael L. Walters
and Captain Stephen P. Bell, Jr.
For Appellee: Captain Chris A. Wendelbo
(argued and reargued); Colonel Joseph E. Ross and Lieutenant
Colonel Frederic L. Borch, III (on briefs); Major Virginia G. Beckes.
Military Judges: Peter E. Brownback,
III and Charles J. Heffernan



THIS OPINION IS
SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.


Judge EFFRON delivered the opinion
of the Court.
A special court-martial composed of
officer and enlisted members convicted appellant, contrary to his pleas,
of wrongful use of lysergic acid diethylamide (LSD), in violation of Article
112a, Uniform Code of Military Justice, 10 USC § 912a. The members
sentenced appellant to a bad-conduct discharge, confinement for 75 days,
forfeiture of $549.00 pay per month for 2 months, and reduction to the
lowest enlisted grade. The convening authority approved these results,
and the Court of Criminal Appeals affirmed.
On appellants petition, we granted
review of the following issue:



WHETHER THE MILITARY JUDGE ERRED
IN ADMITTING THE URINALYSIS TEST RESULTS AND THE GOVERNMENT'S EXPERT OPINION
TESTIMONY REGARDING THE TEST ABSENT A SHOWING THAT THE NOVEL LSD TESTING
METHODOLOGY WAS SUFFICIENTLY RELIABLE.



After oral argument in December 1997,
the Court specified the following related issues:


I
 

WHETHER THE CONSTITUTION, THE MANUAL
FOR COURTS-MARTIAL, REGULATIONS, OR OTHER APPLICABLE LAW REQUIRE A PARTICULAR
CUT-OFF LEVEL IN ORDER FOR THE PROSECUTION TO ESTABLISH BEYOND A REASONABLE
DOUBT APPELLANT'S KNOWING USE OF LSD.

II

 
WHETHER THE RECORD OF TRIAL CONTAINS
SUFFICIENT SCIENTIFIC EVIDENCE REGARDING THE BASIS FOR THE CUT-OFF LEVEL
FOR REPORTING POSITIVE GC/MS/MS TEST RESULTS (200 PG/ML) SUCH THAT THE
MEMBERS COULD DRAW AN INFERENCE OF WRONGFULNESS OF THE USE FROM THE CONCENTRATION
OF LSD REPORTED IN APPELLANT'S SAMPLE (307 PG/ML). SEE UNITED
STATES V. THOMPSON, 34 MJ 287 (CMA 1992); UNITED STATES V. HARPER,
22 MJ 157 (CMA 1986).

III

 
WHETHER THE EXPERT TESTIMONY REGARDING
THE RESULTS OF THE CERTIFICATION AND BLIND AND OPEN QUALITY CONTROL TESTING
WAS SUFFICIENT TO DEMONSTRATE THE RELIABILITY OF THE TESTING PROCEDURE
UNDER DAUBERT TO REASONABLY EXCLUDE THE POSSIBILITY OF A FALSE POSITIVE
RESULT.
A. WHAT EVIDENCE, IF ANY, INTRODUCED
AT TRIAL DEMONSTRATES THAT GC/MS/MS WAS SUFFICIENTLY RELIABLE WITH REGARD
TO REPORTING RESULTS AS POSITIVE OR NEGATIVE AND WITH REGARD TO PRECISELY
IDENTIFYING THE EXACT CONCENTRATION OF LSD IN URINE.
B. WHAT WAS THE SIGNIFICANCE, IN TERMS
OF ESTABLISHING THE RELIABILITY OF GC/MS/MS, OF EACH OF THE FOLLOWING STATEMENTS
ABOUT THE TEST RESULTS:
 

1. THAT THE ARMY CONCLUDED THE GC/MS/MS
METHODOLOGY WAS "VERY ACCURATE" (R. 151);
2. THAT NORTHWEST TOXICOLOGY LABORATORY
(NTL) HAS ALWAYS BEEN "WITHIN PLUS OR MINUS 20 PERCENT OR 2 STANDARD
DEVIATIONS OF THE MEAN" WHEN ITS RESULTS ARE COMPARED TO THE TWO NAVY LABS
CONDUCTING LSD CONFIRMATION TESTING (R. 188); AND
3. THAT NTL HAS NEVER INCORRECTLY REPORTED
A BLIND QUALITY CONTROL RESULT, I.E., THAT NTL HAS NEVER INCORRECTLY REPORTED
A RESULT AS POSITIVE OR NEGATIVE WHEN IT TESTS FOR THE PRESENCE OF LSD
(AS OPPOSED TO QUANTIFYING THE CONCENTRATION OF THE DRUG) (R. 187).





For the reasons discussed below, we reverse
the decision of the Court of Criminal Appeals.

FACTS
As noted by the court below, the sole
evidence pertaining to the charge of wrongful use of LSD in this case consisted
of the report of results of a urinalysis test. At trial, defense counsel
moved to exclude evidence of the urinalysis and the supporting expert testimony
on the ground that the scientific methodology used in the confirmatory
test -- gas chromatography tandem mass spectrometry (GC/MS/MS) -- did not
meet the standards of reliability required by Mil.R.Evid. 702, Manual for
Courts-Martial, United States (1995 ed.), and relevant case law. See
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993);
United States v. Nimmer, 43 MJ 252 (1995). Consideration of the
motion, which was contested, involved testimony from three expert witnesses.
The military judge denied the defense
motion. Subsequently, he documented his decision in an appellate exhibit
headed "Court Findings of Fact, Conclusions of Law, and Ruling on the Defense
Motion In Limine."
The evidence at issue was obtained
during a routine unit inspection in which members of appellant's unit were
required to produce urine samples. This was not prompted by any concern
about appellant's duty performance or behavior.
Appellants sample was sent to the
Army's drug testing laboratory at Fort Meade, Maryland. It was tested twice
over a 4-day period using radioimmunoassay analysis (RIA) for LSD. Both
tests indicated that appellants urine contained LSD. The RIA procedure,
however, does not quantify the amount of the drug in a sample and has not
been certified by the Department of Defense as reliable for prosecution
under the Uniform Code of Military Justice.
After the RIA test results were obtained,
the sample was sent to Northwest Toxicology Laboratory (NTL) in Salt Lake
City, Utah, for additional testing. At NTL, appellant's sample was examined
through a test using GC/MS/MS methodology. That test showed a level of
307 picograms (one-trillionth of a gram) of LSD per milliliter of urine.
The Department of Defense has established a cutoff level of 200 picograms.
Doctor Rodger Foltz, the Laboratory
Director of NTL, testified on behalf of the prosecution. He stated that
the GC/MS/MS test is "based on scientific principles . . . accepted by
the scientific community" and represents the "state of the art"
in testing for drugs. He stated that there are "a few" other toxicology
laboratories that use that same test, but he added that its use is not
widespread because the testing instrument costs about $350,000. He stated
that this method of testing had been "presented at conferences on at least
two occasions by two fellow toxicologists," where it was subject to peer
review. Dr. Foltz also testified that he had published an article in a
peer-reviewed journal, Analytical Chemistry, in 1992 on the
GC/MS/MS testing employed at NTL. He testified that there were no other
articles on this method, because the "normal practice" is for scientists
to publish an article only when there is a problem. He pointed out that
this method had been published "in the open literature," so "any other
lab with that instrumentation is certainly free to use it." He acknowledged,
though, that he was "not aware, at this time, of any other labs actually
using it."
With respect to quality control, he
testified that NTL received 20 "open quality-control samples" per month
to ensure the accuracy of its testing. These samples were presented for
analysis, and the laboratory did not know what drug, if any, was present
or in what level of concentration. These samples had been received since
January 1993, when the laboratory first entered into a contractual agreement
with the Army.
Dr. Foltz testified that, prior to
awarding them a contract, the Armed Forces Institute of Pathology (AFIP)
had conducted an "extensive review" of the procedures used at NTL to make
sure the methodology was reliable. After NTL had been given a number
of samples and had passed the quality control of AFIP, the Army had concluded
that NTL's methodology for detecting LSD was "very accurate." Moreover,
15 blind quality-control samples were returned by NTL to AFIP over the
period of several months between getting the Army contract and receiving
appellants sample, all of which were tested correctly. Additionally, AFIP
sent 10 "open quality controls" per month to NTL, and the past results
of these tests fell within the standard deviation permitted for quality
control. These open quality-control tests also were compared with two Navy
laboratories that performed urine testing for LSD, but with a different
methodology, and no significant statistical deviation was found between
their results and NTLs findings.
Dr. Arthur J. McBay, a retired state
forensic toxicologist, testified for the defense. He stated that, although
GC/MS/MS had been accepted in the scientific community for uses such as
hair analysis, it had not been accepted as a method of testing for drugs.
Concerning the RIA test, Dr. McBay indicated that it was "a reliable means
to screen for LSD."
Dr. McBay testified that he was familiar
with the publications Analytical Chemistry and the Journal of
Analytical Chemistry and, as a scientific peer, had reviewed articles
for the former, as well as for other journals. He testified that there
was a distinction between acceptance of a paper for publication, on the
one hand, and acceptance by the scientific community of the methodology
described in such a paper, on the other. Asked whether "publication of
a single article - like the one that [he was] asked about by the prosecution
- constitutes peer review of a scientific methodology[,]" Dr. McBay responded:
"Well, its peer review of that particular presentation of that article
 thats all." He added: "[N]ow, if you give me 100 papers that are accepted
on that particular topic, that would be a different matter or a dozen or
something else, but youve got one" on the GC/MS/MS methodology.
Dr. McBay testified that true peer
review would include the same methodology being employed by more than one
laboratory. "But one is at a loss if, indeed, only one laboratory could
do something and theres no other laboratory that you could use to check
the results with another sample, for instance." He acknowledged that the
GC/MS/MS methodology used at NTL would tend to produce valid results
if more than one laboratory within the Department of Defense conducted
tests of urine for LSD using different methodologies but obtained results
similar to NTL on open quality-control samples.
Dr. Robert K. Simon, owner of Toxicology
International, also testified for the defense. Dr. Simon testified as to
GC/MS/MS procedure, as follows:



[G]as chromatography tandem mass
spectrometer procedure ... combine[s] a gas chromatograph with essentially
two mass spectrometers so that instead of having one mass spectrometer
to try to identify a particular drug substance, a rather unique system
has been established to combine two mass spectrometers together to give
us some additional data that can hopefully be used for drug identification.



He added:



The difficulty in analyzing for this
particular. substance in urine, blood or any other biological fluid or
even in a piece of -- a tab of LSD paper  is that the amount is extremely
small. The dose  that one takes of LSD is somewhere between perhaps
70 and 100 micrograms, that is 70 to 100 one-millionth of a gram, so it
is a very small quantity. That then, diluted into the body can then possibly
emerge into urine over a period of hours after use in concentrations that
are in picograms and that really is a unit that is one thousand lower than
the normal drug substances appear which is nanograms, so were at ten-to-the-minus-twelfth
range of concentration of this drug per milliliter of urine.



Dr. Simon pointed out that the equipment
used at Northwest Toxicology was the only such equipment in the country
and that the methodology of that equipment had not been accepted in the
scientific community. He explained that with essentially only one functional
unit in the country -- the one at NTL -- "there would be no way to have
a scientific peer evaluation of either the technique or this particular
method at this time." He stated: "This is a very novel technique, a novel
piece of equipment and a very novel methodology." He also testified that
the reliability of NTLs results from GC/MS/MS could be shown by the use
of open control tests confirmed by two other laboratories employing
different methodologies.
The judge then asked the following
question for a member:

Q. Dr. Simon, I have this question
for you. Based upon your experience gained from working drug testing for
DoD, if GC/MS/MS is in experimental stages, why would DoD contract Northwest
to conduct drug confirmation?
A. I think the answer to that question
is, there is certainly a compelling interest in determining LSD in urine.
Certainly the statistics in and outside of DoD tell us that LSD use has
reemerged in the late 80s and early 90s as a drug of choice among individuals,
so there is a great interest in being able to develop this method. And
certainly, Dr. Foltz is well recognized in the field of forensic toxicology
and scientific research as a person highly capable to do this work. So
I certainly think the interest is there and I think the reason DoD would
contract with him is, hes a prime individual who has been involved in
this type of research for many years. Thats why they would actually contract
with him.

Later, Dr. Simon was recalled. He testified
that, because of the unusual peaks on the test, he would "disqualify th[e]
entire batch," including the results pertaining to appellant. He explained
in detail how the court members should examine these peaks and determine
the reliability of the test for LSD.
Dr. Foltz also was recalled. He testified
that the "commercial version" of the GC/MS/MS instrument was introduced
in 1979 and that there were more than 300 such "instruments in operation
around the world," most of them being "used in the pharmaceutical industry
for analysis of various drugs undergoing development in biological specimens,
including blood and urine." He added that, to his knowledge, NTL was the
only laboratory "currently using GC/MS/MS for confirmation of LSD in urine."
He also stated that any issue concerning the absence of testing in universities
was probably a reflection of the high cost of the equipment. The defense
expert, Dr. McBay, also stated that the equipment was not available in
many laboratories because of its expense.

DISCUSSION
A
The armed forces have a compelling
interest in addressing the corrosive impact of drug abuse on the readiness
of the armed forces to engage in combat. The Supreme Court has emphasized
that "it is the primary business of armies and navies to fight
or be ready to fight wars should the occasion arise." United States
ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955). Congress, in Article
112a of the Uniform Code of Military Justice, has authorized court-martial
proceedings against any servicemember who "wrongfully uses" controlled
substances or commits a variety of other offenses involving illegal drugs.
To obtain a conviction under Article
112a, the prosecution must introduce sufficient evidence to convince a
reasonable fact-finder, beyond a reasonable doubt:



(a) That the accused used a controlled
substance; and
(b) That the use by the accused was
wrongful.



Para. 37b(2), Part IV, Manual, supra.
Often, the prosecution may be able to prove wrongful drug use through an
admission by the accused or observations by witnesses capable of identifying
use of a controlled substance, particularly in terms of the effect on the
behavior of the accused.
In some cases, however, the prosecution
has no direct evidence of use and no circumstantial evidence in the form
of any effect on the conduct of the accused. The only evidence in such
cases may be the results of a drug test that identifies the presence of
the drug or a metabolite in the accuseds body fluids.
In the Manual for Courts-Martial, the
President has recognized our case law providing that proof of drug
use requires proof of knowledge:



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.



Para. 37c(10), Part IV.1
To satisfy the second element of the offense -- that the use was "wrongful"
-- the President has made clear that the use must be "without legal justification
or authorization." The Manual provides that use "may be inferred to be
wrongful in the absence of evidence to the contrary." Para. 37c(5).
Our Court has considered these inferences
in the context of our longstanding recognition that the serious threat
to military readiness posed by drug abuse permits use of evidence-gathering
techniques that would not necessarily pass muster in a civilian context.
See, e.g., United States v. Jackson, 48
MJ 292 (1998); Murray v. Haldeman, 16 MJ 74, 78 (1983); United
States v. Middleton, 10 MJ 123 (1981); United States v. Trottier,
9 MJ 337, 345-46 (1980). In United States v. Bickel, 30 MJ 277 (1990),
a case upholding use of urinalysis test results in court-martial proceedings,
we noted that such use is in contrast to the Supreme Court's approach to
civilian urinalysis programs. That approach reflects limited approval of
compulsory urinalysis in circumstances where the Government has demonstrated
that the duties of the employees warranted such testing and where the results
were used for administrative, rather than prosecutorial, purposes. Id.
at 281, citing Skinner v. Railway Labor Executives' Association,
489 U.S. 602 (1989), and National Treasury Employees Union v. Von Raab,
489 U.S. 656 (1989); and n.2.
Going well beyond the constitutional
analysis that the Supreme Court has applied in civilian society, we have
approved prosecutorial use of permissive inferences in criminal proceedings
to sustain convictions based solely upon the results of a drug test. To
sustain a prosecution in such cases, we have required only that the results
be supported by expert testimony explaining the underlying scientific methodology
and the significance of the test result, so as to "provid[e] a rational
basis for inferring that the substance was knowingly used and that the
use was wrongful." United States v. Graham, 50 MJ 56, 58-59 (1999).
We have permitted, but have not required, the factfinder to conclude on
that basis that the Government has satisfied its burden to establish both
elements of the offense -- use of the controlled substance, as well as
the wrongfulness of the use. See, e.g., United
States v. Thompson, 34 MJ 287 (CMA 1992); United States v. Ford,
23 MJ 331 (CMA 1987); United States v. Murphy, 23 MJ 310 (CMA 1987);
United States v. Harper, 22 MJ 157 (CMA 1986).
Urinalysis testing has proved to be
a powerful tool in the effort to combat drug use in the military, maintain
good order and discipline, and ensure combat readiness. Drug testing, however,
is designed and performed by humans and, as such, is fallible. The possibility
of a positive result from an error in the test or from unknowing ingestion
of a substance that does not trigger any reaction on the part of the servicemember
is the worst nightmare of every good servicemember and a cause of serious
concern to the judicial system.
Reliance on urinalysis test results
alone in courts-martial permits a criminal conviction to be adjudged
solely on the basis of a test result when there is no other evidence of
criminality, including no evidence of an observable reaction to the substance.
Such a conviction may be adjudged in the case of a member of the armed
forces who has given years of dedicated service to the country, who has
an unblemished record, whose performance has been exemplary, who has served
in combat, and who never has exhibited any impairment in function under
the intensive daily scrutiny that military members receive from their superiors,
peers, subordinates, friends, and family.
The result, in the case of conviction
under Article 112a for use of LSD, may include a dishonorable discharge,
confinement for 5 years, and total forfeitures. For a career servicemember,
the discharge alone may result in the loss of hundreds of thousands of
dollars in retired pay. For the member -- and the member's family -- the
consequences may be devastating. Because the consequences of drug abuse
in the military may be all the more devastating to the nation, we have
sustained use of urinalysis test results where they logically permit a
rational factfinder to conclude beyond a reasonable doubt that the results
prove wrongful use. At the same time, we have not permitted use of test
results where such logical proof of wrongful use has been lacking. See
Art. 112a; United States v. Harper, supra.
Under applicable case law, the prosecution
cannot rely solely on the presence in the body of the drug or its constituent
elements. The cases which have permitted the inference of wrongfulness
strictly require that the prosecution also establish the reliability of
the testing methodology and explain the significance of the results of
the test of the accuseds sample. The prosecution's expert testimony must
show: (1) that the "metabolite" is "not naturally produced by the body"
or any substance other than the drug in question (see, e.g.,
Harper, supra at 161); (2) that the cutoff level and reported
concentration are high enough to reasonably discount the possibility of
unknowing ingestion and to indicate a reasonable likelihood that the user
at some time would have "experienced the physical and psychological effects
of the drug," see id. at 163; Murphy, supra
at 312; and (3) that the testing methodology reliably detected the presence
and reliably quantified the concentration of the drug or metabolite in
the sample. See Daubert, supra at 590 (expert
scientific testimony must "establish[] a standard of evidentiary reliability").
Once this showing is made, the prosecution is not required to disprove
the possibility of unknowing ingestion in order to sustain the legal sufficiency
of a conviction. See, e.g., Ford, 23 MJ at
336.

B
The case before us was litigated in
light of this well-established case law. This case involves the novel use
of the GC/MS/MS testing procedure for LSD, which, according to the record,
was conducted by only one laboratory in the United States and was used
in no other jurisdiction for purposes of criminal prosecution.
The issue is not whether members of
the armed forces may be subjected to urinalysis testing or whether such
a test may be used as the basis for a court-martial. The answer to both
questions is squarely in the affirmative. Likewise, the question is not
whether sufficient evidence might be presented to sustain use of the GC/MS/MS
test for LSD.
Instead, the specific question we must
resolve is whether the prosecution -- in this case - presented sufficient
evidence on the record about the test that, under our case law, would permit
a reasonable factfinder to conclude beyond a reasonable doubt that appellant
used LSD and that the use was wrongful. See Jackson v. Virginia,
443 U.S. 307, 319 (1979).
In United States v. Harper,
supra, our Court recognized the inferences of drug use and wrongfulness
that could be drawn from a positive drug-test result supported by expert
testimony explaining the significance of the result. In finding the evidence
sufficient to allow a "permissive inference of wrongfulness" to be drawn
in that case, we noted in particular two aspects of the expert testimony
presented by the prosecution about marijuana testing: (1) that the reported
"readings ... ruled out the possibility of passive inhalation"; and (2)
"that these particular results indicated that the user at sometime experienced
the physical and psychological effects of the drug." 22 MJ at 163. By contrast,
the Government did not provide similar evidence of wrongfulness in this
case.
Here, the prosecution introduced evidence
that (1) LSD is not naturally produced by the body; (2) DoD has established
a cutoff level of 200 pg/ml, above which all samples are reported as positive
for LSD; (3) the GC/MS/MS test of appellants urine sample reported a concentration
level of 307 pg/ml; and (4) NTLs quantitative results with respect to
testing for LSD in urine have been validated against other tests. Those
other tests, however, were tests that DoD declined to validate for forensic
purposes. The latter point, therefore, proves only that the GC/MS/MS test
produced results consistent with a test that, itself, was not considered
by the Department of Defense to be valid for purposes of criminal prosecution.
Of critical importance is that the
Government did not prove the levels or frequency of error, which would
indicate: (1) that the particular GC/MS/MS test reliably detected the presence
of LSD metabolites in urine; (2) that GC/MS/MS reliably quantified the
concentration of those metabolites; and (3) that the DoD cutoff level of
200 pg/ml was greater than the margin of error and sufficiently high to
reasonably exclude the possibility of a false positive and establish the
wrongfulness of any use. In particular, the Government introduced no evidence
to show that it had taken into account what is necessary to eliminate the
reasonable possibility of unknowing ingestion or a false positive.
The evidence left open the question
whether the cutoff level established by DoD and the concentration level
reported by NTL, in view of the margin of error, would reasonably
exclude the possibility of a false positive and would indicate a reasonable
likelihood that at some point a person would have experienced the physical
and psychological effects of the drug. This is the type of evidence we
required in Harper to ensure that any use was wrongful.2
It is missing in this case.

C
The foregoing analysis leads us to
the following disposition of the granted and specified issues: With respect
to Specified Issue II, concerning the basis for the inference of wrongfulness,
we conclude that there was no rational basis upon which the factfinders
could draw a permissible inference of wrongfulness of use from the concentration
of LSD reported in appellant's urine sample. It may well be in a
future case that the Government could make the necessary showing with respect
to the significance of the concentration levels and the reliability of
this particular GC/MS/MS test or a follow-on version of the test. Because
of the deficiencies in the prosecution's presentation in this case, however,
the evidence would not permit a reasonable factfinder to conclude that
the GC/MS/MS test result in this case (1) reasonably excluded the possibility
of a false positive and (2) indicated a reasonable likelihood that
at some point a person would have experienced the physical and psychological
effects of the drug.
With respect to Specified Issue I,
concerning the cutoff level, we note that the law does not "require a particular
cutoff level in order for the prosecution to establish beyond a reasonable
doubt appellant's knowing use of LSD." (Emphasis added.) To the extent
that the prosecution seeks to rely on the permissible inference of knowledge
from the presence of the drug in the sample, however, the cutoff level
must be such as to rationally permit factfinders to find beyond a reasonable
doubt that an accused's use was knowing.
In view of these considerations, we
decline to address the Granted Issue and Specified Issue III in a manner
that forecloses the Government from relying on the GC/MS/MS test or a follow-on
version of the test in a subsequent case. It is appropriate to decide this
case on a more limited basis. As noted earlier, our opinion leaves open
the opportunity for the Government to make the necessary showing with respect
to the significance of the concentration levels and the reliability of
this particular GS/MS/MS test or a follow-on version of the test. Our discussion
in Part B identifies the questions raised by the Government's presentation
at trial in this case regarding the reliability of the testing procedure
and also notes the type of evidence that could sustain a conclusion of
reliability. We leave for a future case, presented in accordance with Harper,
the issues concerning the rulings of a military judge with respect to reliability
of expert testimony under Daubert.

DECISION
The decision of the United States Army
Court of Criminal Appeals is reversed. The findings and sentence are set
aside. The Charge is dismissed.
FOOTNOTES:
1 This provision
is based on United States v. Harper, 22 MJ 157 (CMA 1986) (discussed
at 18 and 20, infra), and United States v. Ford, 23 MJ 331
(CMA 1987) (discussed at 19, infra). See Drafters' Analysis,
Manual, supra at A23-11.
2
Para. 37c(5), Part IV, Manual for Courts-Martial, United States (1998 ed.),
quoted supra at 14, recognizes that, contrary to the suggestion
in the dissent by Judge Sullivan, __ MJ __ (3-5) this standard -- which
follows our precedent in Harper -- does not establish new law. None
of the post-Harper cases cited by the dissent involved the issue
of whether the DoD cutoff level was consistent with the Harper standard.
 
 
SULLIVAN, Judge (dissenting):
I would affirm. There was proof in
this case that LSD does not occur naturally in the body. There was also
proof that the constituent elements of LSD were found in appellants urine.
Finally, there was expert testimony explaining this scientific proof and
its meaning to the members. Our decisions require no more for the members
to be able to determine guilt. See United States v. Pabon,
42 MJ 404, 406-07 (1995) (evidence sufficient where experts testify that
test results consistent with use although not accompanied by sufficient
physiological or psychological symptoms); cf. United States v.
Hunt, 33 MJ 345, 347 (CMA 1991) (evidence not sufficient where no expert
testimony whatsoever explaining test results); see generally
United States v. Boulden, 29 MJ 44, 47 (CMA 1989).
In my view, the majoritys reliance
on United States v. Harper, 22 MJ 157 (CMA 1986), for additional
proof requirements is fatally flawed. This case is quite different from
Harper, where the question before the Court was the sufficiency
of the Governments urinalysis evidence to show wrongful marijuana use,
not wrongful LSD use, as in appellants case. There, the quantitative testing
evidence was offered to rule out the possibility of passive inhalation
of marijuana smoke, not a reasonable possibility in a case involving the
oral consumption of micro-dot LSD. Moreover, in Harper, supra
at 163-64, this Court specifically noted that "it could not be determined
whether appellant was actually experiencing the physiological or psychological
effects of marijuana at these times and places [as charged.]" (Emphasis
added.)
In reality, therefore, the majority
makes new law in this case and, in the process, raises serious questions
about military drug prosecutions based on our past cases. Harper
was the first word, not the last word or the only word, on the subject
of sufficiency of evidence in urinalysis cases. See United States
v. Bond, 46 MJ 86 (1997); United States v. Pabon, supra;
United States v. Thompson, 34 MJ 287 (CMA 1992); United States
v. Boulden, supra; United States v. Ford, 23 MJ 331 (CMA
1987). Moreover, the majoritys new approach to drug prosecutions goes
far beyond the rules for proving drug cases now provided by the President
in the Manual for Courts-Martial, United States (1998 ed.). See
para. 37(c), Part IV. I must dissent.
Turning first to the new rule established
in this case, it is one of evidentiary sufficiency in urinalysis prosecutions.
The majority asserts that knowing (wrongful) use of drugs requires more
than scientific proof that the drug or its constituent elements are in
a soldiers urine and that the body does not naturally produce them. In
addition, it requires the Government to show



that the cutoff level and reported
concentration are high enough to reasonably discount the possibility of
unknowing ingestion and to indicate a reasonable likelihood that the user
at some time would have "experienced the physical and psychological effects
of the drug," see id. [Harper, 22 MJ] at 163; Murphy,
supra [23 MJ] at 312.



__ MJ at (19). The majority concludes
in this case as follows:



The evidence left open the question
whether the cutoff level established by DoD and the concentration level
reported by NTL, in view of the margin of error, would reasonably exclude
the possibility of a false positive and would indicate a reasonable likelihood
that at some time a person would have experienced the physical and psychological
effects of the drug. This is the type of evidence we required in Harper
to ensure that any use was wrongful. It is missing in this case.



__ MJ at (22-23) (footnote omitted).
In my view, the majority has misread
this Courts opinion in Harper. In that case, we did consider the
fact that the expert testified "that the nanogram readings . . . ruled
out the possibility of passive inhalation." We also considered the fact
that the expert "testified that these particular results indicated that
the user at sometime experienced the physical and psychological
effects of the drugs." Id. at 163 (emphasis added). However, this
Court noted this additional circumstantial evidence in lieu of addressing
the question whether a permissive inference of knowledge drawn from proof
of use was alone sufficient to constitute proof beyond a reasonable
doubt that a servicemember knowingly used drugs. Id. at 163, citing
Ulster County Court v. Allen, 442 U.S. 140, 166-67, 99 S.Ct. 2213,
2229-30 (1979). We did not hold that the quantitative evidence proffered
in Harper would be required in all cases in the future or that the
permissive inference itself was constitutionally insufficient. In any event,
we have not required such additional proof and expert testimony in subsequent
cases. See United States v. Ford, 23 MJ 331, 336 (CMA 1987);
see also United States v. Boulden, United States
v. Thompson, United States v. Pabon, and United States v.
Bond, all supra.
In addition, paragraph 37(c), Manual
for Courts-Martial, United States, 1984, was amended in 1994 after the
decisions of this Court in Harper and Ford. See Manual,
supra (1994 ed.) at A23-18 and A23-19. Paragraph 37c now states:



(10) Use. Use means to inject,
ingest, inhale, or otherwise introduce into the human body, any controlled
substance. 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.



Manual, supra (1998 ed.) (emphasis
added). As noted above, the majority, citing Harper, requires evidence
that the controlled substance is present in the accuseds body in such
a quantity that an expert can opine that the effects of the drug would
have been felt. I see no basis for this new requirement being added to
the above Manual rule. See RCM 918(c), Discussion, Manual, supra
("but some other fact or circumstance from which, either alone or together
with other facts or circumstances, one may reasonably infer the existence
or nonexistence of a fact in issue" (emphasis added)).
I would also note that the majoritys
holding in this case is truly sua sponte in nature. The only
issue at this court-martial was the reliability of the GC/MS/MS test to
show the presence of LSD in a persons urine.*
There was no motion for a finding of not guilty on the basis of insufficient
proof of knowledge or any dispute concerning a permissive inference of
knowledge being drawn solely on the basis of positive test results under
DoD standards. See RCM 917. While a stronger case could have been
made by the Government, none of the parties or the military judge read
our past decisions as requiring such quantitative certainty.
In conclusion, I share the majoritys
concern that great care be taken when servicemembers are convicted at courts-martial
on the basis of urinalysis testing. See United States v. Mack,
33 MJ 251 (CMA 1991); United States v. Van Horn, 26 MJ 434, 438
(CMA 1988); United States v. Murphy, 23 MJ 310 (CMA 1987). Nonetheless,
the belated suggestion that we have misread or misapplied the decision
of this Court in Harper and that the President has done the same
is contradicted by our subsequent case law. In my view, the majority speculates
that such scientific proof should exist for LSD, as it does for marijuana,
and now decides for the first time that its admission should be mandatory.
Cf. Bond, 46 MJ at 91 ("This Court will not use the rubric
of legal sufficiency to usurp the powers of . . . factfinders and enter
our own view of guilt.") I do not join the majoritys action in this case.
FOOTNOTE:
* The majority
does not even decide the granted issue concerning the showing of reliability
made by the Government in this case with respect to GC/MS/MS testing. I
agree with Judge Crawfords dissent on this point.
 
 
CRAWFORD, Judge (dissenting)
Just as this Court has done numerous
times in the past, the majority has recognized the impact of drug abuse
"on the readiness of the armed forces to engage in combat." ___ MJ at (14).
However, it holds that the prosecutions evidence as to testing by Northwest
Toxicology Laboratory (NTL) is not sufficiently reliable "to eliminate
the reasonable possibility of ... a false positive" for LSD. Id.
at (23). Because I do not agree with the majority that the trial
judge abused his discretion in his "gatekeeper" role under Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993), I dissent.

FACTS
The evidence of appellants use of
LSD arose as a result of a random urinalysis. Appellant's urine sample
was sent to the Army's drug testing laboratory at Fort Meade, Maryland,
where it was tested twice over a 4-day period using radioimmunoassay analysis
(RIA) for LSD. Both tests indicated that appellants urine contained LSD.
Because RIA does not quantify the amount of the drug, the sample was then
sent to NTL in Salt Lake City, Utah, for additional testing. At NTL, appellant's
sample was tested by a methodology known as gas chromatography/tandem mass
spectrometry (GC/MS/MS). After performing that test, appellant's urine
showed a level of 307 picograms of LSD per milliliter. Department of Defense
Directive 1010.1 establishes a cut off level of 200 picograms.
Doctor Rodger Foltz, the laboratory
director of NTL, testified that the GC/MS/MS test is "based on scientific
principles ... accepted by the scientific community" and represents the
"state of the art" in testing for drugs. Other toxicology laboratories
are using the same test; however, because the testing instrument costs
about $350,000, its use is not widespread. This method of testing has been
"presented at conferences on at least two occasions by two fellow toxicologists,"
where it was subject to peer review. Dr. Foltz testified that he published
an article in a peer-reviewed journal, Analytical Chemistry, in
1992 on the GC/MS/MS testing employed at NTL. There are no other articles
on this method, however, because the "normal practice" is for scientists
to publish an article only when there is a problem.
To ensure the accuracy of NTLs testing,
the Armed Forces Institute of Pathology (AFIP) sends NTL twenty "open quality-control
samples" per month. These samples are presented for analysis, and the laboratory
does not know what drug, if any, or what concentration of drugs is present.
These blind samples have been received since 1993, after the laboratory
was certified.
Additionally, AFIP itself conducted
an "extensive review" of the procedures used at NTL to make doubly sure
the methodology is reliable prior to awarding them a contract. After NTL
had been given a number of samples and had passed the quality control of
AFIP, the Army concluded that NTL's methodology for detecting LSD was "very
accurate." Moreover, fifteen blind quality-control samples were returned
by NTL to AFIP over a period of time, all of which were tested correctly.
Additionally, AFIP sent ten "open quality controls" per month to NTL and
the results of these tests fell within the standard deviation permitted
for quality control. These open quality-control tests also were compared
with two other labs who do the same type of testing and no significant
statistical deviation was found between their results and NTLs findings.
Dr. Arthur J. McBay, a retired forensic
toxicologist, testified that the GC/MS/MS was not accepted in the scientific
community as a method of testing for drugs. However, he did say that this
test has been accepted for use in hair analysis. Concerning the RIA test,
Dr. McBay conceded that it is "a reliable means to screen for LSD."
Moreover, Dr. McBay testified he was
familiar with the publications, Analytical Chemistry and the Journal
of Analytical Chemistry, and, as a scientific peer, had reviewed an
article concerning GC/MS/MS in the former. "The two reviews are looked
at and accepted...." However, he indicated that there were not 100 papers
on this topic but one, and that peer review of the single article does
not constitute acceptance of the methodology. True peer review, he indicated,
would be the same methodology being used by more than one lab. He admitted
that the validity of the GC/MS/MS test was strengthened by the fact that
it is used in two Navy laboratories. Additionally, in response to a hypothetical,
Dr. McBay said that if other tests were getting "similar results" with
quality control samples, this would "tend to validate the GC/MS/MS methodology."
Dr. Robert K. Simon, owner of Toxicology
International, also testified for the defense. Dr. Simon testified concerning
the GC/MS/MS procedure, as follows:



[G]as chromatography tandem mass
spectrometer
procedure ... combine[s] a gas chromatograph
with essentially two mass spectrometers
so
that instead of having one mass spectrometer
to try to identify a particular drug
substance,
a rather unique system has been established
to
combine two mass spectrometers together
to give
us some additional data that can hopefully
be
used for drug identification.



He also testified:



The difficulty in analyzing for this
particular
substance in urine, blood or any other
biological
fluid or even in a piece of -- a tab
of LSD paper
is that the amount is extremely small.
The dose
that one takes of LSD is somewhere
between perhaps
70 and 100 micrograms, that is 70
to 100
one-millionth of a gram, so it is
a very small quantity. That then, diluted into the body then can possibly
emerge into urine over a period of
hours after use in concentrations
that are in pecograms and that really is a unit that is one thousand lower
than the normal drug substances appear which is nanograms, so were at
ten-to-the-
minus-twelfth range of concentration
of this drug
per milliliter of urine.



Dr. Simon asserted that the equipment
used at Northwest Toxicology is the only one in the country and has not
been accepted in the scientific community.
He also testified that the reliability
of this equipment at NTL and its results can be shown by use of blind tests
confirmed by two other laboratories employing different methodologies.
The judge then asked the following question for a member:



Q. Dr. Simon, I have this question
for you. Based
upon your experience gained from working
drug
testing for DoD, if GC/MS/MS is in
experimental
stages, why would DoD contract Northwest
to
conduct drug confirmation?





 





A. I think the answer to that question
is, there is certainly a compelling interest in determining LSD in urine.
Certainly the statistics in and outside of DoD tell us that LSD use has
reemerged in the late ´80s and early ´90s as a drug of choice
among individuals, so there is a great interest in being able to develop
this method. And certainly, Dr. Foltz is well recognized in the
field of forensic toxicology and scientific
research as a person highly capable
to do this
work. So I certainly think the interest
is
there and I think the reason DoD would
contract
with him is, hes a prime individual
who has
been involved in this type of research
for many
years. Thats why they would actually
contract
with him.



Later, Dr. Simon was recalled. He testified
that, because of the unusual peaks on the test, he would "disqualify th[e]
entire batch," including the results pertaining to appellant. Then he explained
in detail how the court members should examine these peaks and determine
the reliability of the test for LSD.
In contrast, Dr. Foltz testified that
the "commercial version" of the GC/MS/MS instrument was introduced in 1979
and there are more than 300 such "instruments in operation around the world"
to do the same type of testing. Any argument that there has not been similar
testing in universities loses its force because it is probably the result
of high cost rather than rejection of the process. Even the defense expert,
Dr. McBay, stated that the equipment is not available in many laboratories
because it is expensive.

DISCUSSION
This case initially started with the
issue of whether admission of this expert testimony concerning knowing
use of LSD was error. After oral argument, the Court further specified
a number of issues.
Specified Issue I: Whether any
of the sources of applicable law require a certain cut-off level in order
to prove knowing use of LSD beyond a reasonable doubt
Both sides concede that there is no
constitutional, Manual, statutory, or regulatory provision--except the
Department of Defense directive at issue in this case--which establishes
a particular cut-off level necessary for the prosecution to prove beyond
a reasonable doubt appellants knowing use of LSD. Of course, a directive
or regulation prospectively could establish a different cut-off level.
See, e.g., United States v. Johnston, 41 MJ 13 (CMA
1994).
Because both parties concede that there
is no such specific cut-off level, I address the second specified issue
concerning the sufficiency of the evidence.
Specified Issue II: Sufficiency
of scientific evidence to infer wrongful use of LSD
Appellant contends that the Government
did not present sufficient scientific evidence upon which to draw an inference
that appellant knowingly or wrongfully used LSD. In fact, appellant argues
that "[t]he Government did not introduce any direct evidence that appellant
knowingly used LSD." Second Final Brief at 8. He contends that the Government
did not show "sufficient evidence to explain the significance of the report
that appellants urine contained a concentration of 307 picograms of LSD."
Id. at 14.
The Government begins its argument
by stating that the factfinders may use "a permissive inference" to determine
wrongfulness. Second Answer at 13. The Government contends that it presented
expert testimony on the testing methods, the standards used, and the results
of LSD use on the human body. Id. at 14. It explained to the members
the DoD picogram cut-off level (200) and compared that to the picogram
level in appellants urine sample (307). Id. at 13-14.
When reviewing the sufficiency of the
evidence, we give great deference to the factfinders ability both to draw
logical inferences from the evidence presented and to assess the credibility
of the witnesses, including expert witnesses. We have stated:



The standard for determining the
legal sufficiency of evidence supporting findings of guilty at courts-martial
is well established. Judge Cox, writing in United States v. Harper,
22 MJ 157, 161 (CMA 1986), stated, "[I]n this context, sufficient evidence
generally means some legal and competent evidence from which a court-martial
may find or infer beyond a reasonable doubt those facts required by law
for conviction."



United States v. Pritchett, 31
MJ 213, 216 (CMA 1990)
(footnote omitted). We went on to
say: "Moreover, it is well established that, in applying this test, all
inferences and credibility determinations must be drawn in favor of the
prosecution." Id. at 216; see also, S. Childress and M. Davis,
Federal Standards of Review § 9.02 at 9-8 (2d ed. 1992) ("[I]f
inferences are required to be made from the factual evidence to the verdict,
the court must review those in the light most favorable to the verdict").
This Court in Harper acknowledged that "[i]n the absence of evidence
to the contrary, the prosecution may meet this burden [of proving wrongfulness]
by reliance 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 a contraband drug." 22 MJ at 162. Further,



[i]t is quite clear from paragraph
213g(5), Manual [for Courts-Martial, United States, 1969 (Revised edition)
. . . , and our case law that the inference of wrongfulness is a permissive
inference or presumption, not a mandatory inference or presumption. It
does not relieve the prosecution of its burden of persuasion because it
still requires the prosecution to convince the factfinder that the suggested
conclusion of wrongfulness should be inferred based on the predicate facts
proven.



(Citation omitted).
In Harper, this Court upheld
an accuseds conviction for use of marijuana where an expert testified
that the nanogram level of marijuana in the urine sample "ruled out the
possibility of passive inhalation" and "indicated that the user at sometime
experienced the physical and psychological effects of the drug." The Court
also noted that the accused in that case tested positive on three occasions.
In addition, the accuseds testimony "as a whole discounted" the possibility
of innocent ingestion. 22 MJ at 163.
I am satisfied that there are many
facts in the case at bar from which the members logically could draw an
inference that appellants use of LSD was knowing and unjustified, and,
thus, wrongful.
An expert, Dr. Foltz, the laboratory
director of Northwest Toxicology, testified that there has never been a
report of other substances creating LSD in the body and excreting it in
the urine. He also stated that his laboratorys drug tests "clearly" differentiate
between LSD and any other "ergot alkaloid" contained in prescription medication.
Although no expert specifically discounted
the possibility of passive ingestion, appellant himself acknowledged that,
during the relevant time frame, he observed no signs that anyone in his
residence was under the influence of a controlled substance. Appellants
testimony, combined with statements of the government experts, discount
the possibility that appellant innocently ingested LSD.
Whether appellant experienced or was
observed experiencing the effects of LSD is irrelevant to the issue of
whether he knowingly used the drug. A defense witness who had been an emergency
medical technician admitted on cross-examination that an individual who
takes a low dosage of LSD might not exhibit outward signs of drug use.
Drawing all inferences and credibility
determinations in favor of the prosecution, I would hold that the members
logically could infer from the facts of this case that appellants use
of LSD was wrongful beyond a reasonable doubt.
Specified Issue III: Reliability
of testing procedures for LSD
The standard of review for this evidentiary
issue is whether the judge abused his discretion. General Electric Co.
v. Joiner, 118 S. Ct. 512, 517 (1997); United States v. Houser,
36 MJ 392 (CMA), cert. denied, 510 U.S. 864 (1993). The Supreme
Court indicated in Daubert, 509 U.S. at 589, that the overarching
theme for admitting evidence is relevance and reliability. The Court, in
dictum, then indicated that there are a number of factors that the judge,
who is a gatekeeper, may examine: (1) testing for error; (2) peer review
and publication; (3) the potential error rate using a particular scientific
technique; and (4) the degree of acceptance in the scientific community.
Id. at 593-94.
I would hold that the judge did not
abuse his discretion in admitting the results of the GC/MS/MS test. These
results were logically relevant to this case and the reliability is established
by the four factors mentioned in Daubert. The reliability of the
testing has been established by the fact that open-control testing by NTL
compared favorably with two other labs testing on the same blind samples.
The other laboratories were using the GC/MS test and the reliability of
this test can be judicially noted. State v. Cathcart, 589 A.2d 193,
199 (N.J. Super. 1991). Additionally, two prior RIA tests showed appellants
urine sample was positive for LSD.
In addition to empirical testing, the
testing used in this case has been subject to peer review in two separate
publications. Dr. Foltz published an article in Analytical Chemistry.
He also published an article in the Journal of Chromatography
in 1990. Further, this method of testing was presented at two other conferences
by fellow toxicologists. Since these presentations and articles occurred,
appellant can point to no adverse commentaries or studies indicating that
GC/MS/MS procedures are unreliable.
There have been no false positives
at NTL, and, as previously mentioned, appellants sample twice tested positive
for LSD before it was sent to NTL. Thus, the chance of error for this test
is minimal.
The scientific principles used in this
case are "state of the art." Other toxicology laboratories are using the
same test which shows acceptance within the scientific community.
For these reasons, I dissent.
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