

   
   
   
   U.S. v. Graham



UNITED STATES, Appellee
v.
Verdell GRAHAM, Jr., Master Sergeant
U.S. Air Force, Appellant
 
 
No. 97-0617
Crim. App. No. 32283
 
 
United States Court of Appeals
for the Armed Forces
Argued February 3, 1998
Decided March 9, 1999


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


Counsel
For Appellant: Major Ray T. Blank,
Jr. (argued); Colonel Douglas H. Kohrt (on brief); Lieutenant
Colonel Kim L. Sheffield.
For Appellee: Captain Steven D.
Dubriske (argued); Colonel Brenda J. Hollis and Major J.
Robert Cantrall (on brief); Lieutenant Colonel Michael J. Breslin,
Major
LeEllen Coacher, and Captain Mitchel Neurock.
Military Judge: Terry J. Woodhouse
 
 


This opinion is subject
to editorial correction before final publication.


Chief Judge COX delivered the opinion of the
Court.

I
Contrary to his pleas, appellant was convicted
at a general court-martial, by members, of one specification of wrongful
use of marijuana, in violation of Article 112a, Uniform Code of Military
Justice, 10 USC § 912a. This charge was the result of a urinalysis
test taken at Seymour Johnson AFB, North Carolina, in 1995. He was sentenced
to a bad-conduct discharge, confinement for 6 months, and reduction to
E-4. The Court of Criminal Appeals affirmed these results. 46 MJ 583 (1997).
On appeal, appellant challenges the admission
of evidence that he tested positive for marijuana several years prior to
the present case. 48 MJ 327 (1997). We agree that the military judge abused
his discretion in admitting the evidence, and we reverse.
At appellants trial on this charge, the prosecution
was permitted to cross-examine him about a positive urinalysis for marijuana
that occurred almost 4 years prior to trial, in England, in 1991.
The military judge allowed the questioning to rebut appellants testimony
that "there is no way I would knowingly use marijuana" and that, after
he was notified about the 1995 urinalysis, he was "shocked, upset, and
flabbergasted."
As a result of the 1991 urinalysis, appellant
was tried by a court-martial. There he presented an innocent-ingestion
defense, and he was acquitted.1/
The question whether the Government would be
allowed to cross-examine appellant about his prior acquittal was litigated
in
camera. See Art. 39(a), UCMJ, 10 USC § 839(a). The military
judge ruled that he would allow one question on cross-examination of appellant
regarding whether he had previously had a positive urinalysis result. The
judge ruled that this question was direct rebuttal to appellants testimony
in the instant trial. In his ruling, the judge specifically prohibited
the prosecution from inquiring about whether appellant had been prosecuted
for the previous urinalysis and about the results of that trial. The military
judge granted the Governments motion in part, ruling:



The fact that he [appellant] was previously
court-martialed balancing under 403, [sic] Im not going to let
in that he was . . . allow the Government to ask whether he was previously
court-martialed. The fact that the accused has testified, "there is no
way I would knowingly use marijuana" and after he was notified about the
positive test, he was "shocked, upset, and flabbergasted," the . . . this
testimony in and of itself, if I am not to allow the Government to ask
questions in that area, would it mislead the jurors? I believe that the
prosecution can ask the following question: "Did you test previously positive
for marijuana, for THC?" And I will instruct the jurors that just because
the accused tested positive previously on one occasion, thats no indication
that he knowingly used on that occasion or on this occasion, and that the
jurors may consider [this information] for the limited purpose as to what
the likelihood would be that the accused would test positive twice for
unknowing ingesting of marijuana and for the likelihood that the accused
was flabbergasted when he was informed that he tested positive at this
time, and for no other purpose. But Im not going to let you go into any
other facts and circumstances.



Regarding application of Mil. R. Evid. 403, Manual
for Courts-Martial, United States (1995 ed.), the judge further ruled:



Well, I do have to determine whether its
unfairly prejudicial to the accused. And to re-litigate the previous court-martial,
I believe would be unfairly prejudicial to the accused.



The prosecution then asked appellant whether,
on a previous occasion, his urine had tested positive for marijuana metabolites.
Appellant responded affirmatively and spontaneously added that he had been
acquitted of any misconduct. Immediately following this cross-examination,
the military judge gave the following instruction to the members regarding
the use of the evidence:



Youre instructed that just because the accused
had a positive urinalysis test for THC metabolites of marijuana previously
on one occasion, is [sic] no indication that he knowingly used on
that occasion or on this occasion. You may consider it for the limited
purpose as to what the likelihood would be that the accused would test
positive twice for unknowingly ingesting marijuana and for the likelihood
that the accused was flabbergasted when he was informed that he had tested
positive this time.



The military judge reiterated this instruction
during his findings instructions. None of the court members had any questions
about the meaning of this instruction.
We, however, do not agree that a prior positive
urinalysis is logically relevant to an accuseds surprise at testing positive
4 years later. Lack of surprise might have proved something; surprise did
not. Nor does a prior, ostensibly innocent, ingestion rebut a claim that
a subsequent ingestion was also innocent.

II
As the relevance rule explains:



"Relevant evidence" means evidence having
any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it
would be without the evidence.



Mil. R. Evid. 401; see Mil. R. Evid. 402.
Relevant evidence may be excluded, however, if "its probative value is
substantially outweighed by the danger of unfair prejudice." Mil. R. Evid.
403. Admissibility of relevant evidence is also tempered by Mil. R. Evid.
404(b), which provides that "[e]vidence of other crimes . . . is not admissible
to prove the character of a person in order to show action in conformity
therewith."
In a trilogy of cases, United States v.
Harper, 22 MJ 157 (1986); United States v. Murphy, 23 MJ 310
(1987); and United States v. Ford, 23 MJ 331 (1987), we established
the rules by which factfinders in courts-martial may infer from the presence
of a controlled substance in a urine sample that a servicemember knowingly
and wrongfully used the substance. There are three steps to the process.
First, the seizure of the urine sample must comport with law. See
Mil. R. Evid. 311-316. Second, the laboratory results must be admissible,
requiring proof of a chain of custody of the sample, i.e.,
proof that proper procedures were utilized. And last, but importantly,
there must be expert testimony or other evidence in the record providing
a rational basis for inferring that the substance was knowingly used and
that the use was wrongful.
Applying these principles to the facts of this
case, we first look to the claimed logical relevance of the proffered evidence.
The military judge ruled that the evidence was relevant to show "what the
likelihood would be that the accused would test positive twice for unknowingly
ingesting marijuana and for the likelihood that the accused was flabbergasted
when he was informed that he had tested positive." On the other hand, the
judge ruled that the evidence was not relevant to prove "that he knowingly
used on that occasion or on this occasion."
We disagree with the military judges logic.
First, there is no evidence of record that tends to prove or disprove what
the "likelihood" is for a military member to test positive twice in a 4-year
period because of innocent ingestion. We have no clue from this record,
nor from our experience, what the statistical probability is for "innocent
ingestion" to occur, nor can we say what the percentage might be for laboratory
error, errors in the chain of custody, or other like errors. These questions
are of such concern that we have repeatedly required more than a
mere paper case to prove knowing and wrongful ingestion. See,
e.g.,
United States v. Murphy, supra.
Second, although one might argue that, if a
person had tested positive 4 years ago, he would not be "flabbergasted"
at a second positive test, human experience would seem to dictate a contrary
result. In fact, we agree with the point made by trial defense counsel
during motions argument, that if appellant had innocently ingested the
drug on the prior occasion and then had turned up positive on the present
test, he would be even more outraged, flabbergasted, and angry than he
was on the first occasion. Indeed, that is precisely how many an innocent
person might react when being accused of a crime.
Last, none of the rules established by Harper,
Murphy,
and Ford, about the use of positive urinalysis results to prove
knowing and wrongful use of marijuana, were followed as to the 4-year-old
test result.
We reject outright the positions taken by our
dissenting colleagues for several reasons. First, the dissenters conclude
that the proffered evidence enjoys probative value to rebut an innocent-ingestion
defense. The military judge, however, expressly instructed the members
that the prior test result provided "no indication that he knowingly used
[marijuana] on that occasion or on this occasion." Because of this ruling,
the dissenters are attempting to save this conviction by fitting this evidence
into a theory not advanced at trial.
Moreover, it was the military judge who specifically
prohibited the prosecution from introducing information concerning the
"brownie" defense or any other details of the first trial. Under Mil. R.
Evid. 401 and 402, for the fact of appellants assertion of the
"brownie" defense at his first trial to be relevant to the members determination
of a fact "of consequence" at the second trial, it would have been necessary
for the military judge to admit the details of the entire first trial.
However, the military judge properly rejected this evidence to prevent
relitigation of the merits of the first trial -- the proverbial trial within
a trial -- and to minimize the danger of confusion of the issues. See
Mil. R. Evid. 403. There is no fact of consequence that a positive result
on a previous urinalysis, if resurrected at this trial, could rebut.
The dissent also relies on the "fact" that
appellant was using an "innocent-ingestion" defense at this trial. __ MJ
at (1 n.1). That is simply not the case. While the Air Force Court
recognized that the "thrust" of appellants defense included "unknowing
ingestion," certainly appellants defense was broader than just this possibility.
In essence, his defense was a general denial of the charge. Here, appellant
did not allege any specific instance when marijuana was placed in food
or drink that he subsequently ingested.
Appellants defense was, thus, a "good soldier"
defense, not one of "innocent ingestion." The Air Force Court recognized
this distinction when it said:



At this trial, appellant initially gave notice
pursuant to R.C.M. 701(b)(2) [,Manual, supra,] of an intent to present
an innocent ingestion defense. Later, possibly recognizing the portent
of such a strategy in view of its previous employment, appellant specifically
eschewed that defense at trial, putting on instead a "good soldier" [sic]
defense. We use the word "instead" advisedly, because the unmistakable
thrust of appellants trial theory was that he would not and did not knowingly
take marijuana.[2/]



46 MJ at 584.
Next, the dissenters view that evidence of
an unlawful substance in an accuseds urine on one occasion can be used
to prove that he knowingly used it on a later occasion is contrary
to Mil. R. Evid. 404(b), unless the evidence is logically relevant and
meets some exception to that rule. Prior-use evidence is classic "bad character"
evidence. Our rule, Mil. R. Evid. 404(b), as well as its federal civilian
counterpart, Fed. R. Evid. 404(b), establish a general prohibition against
using evidence of prior "bad" conduct to demonstrate that a person has
acted "in conformity therewith," subject to specific exceptions. The evidence
here fits none of these recognized exceptions.
Furthermore, as a leading text has noted, before
admitting evidence under one of the Mil. R. Evid. 404(b) exceptions, the
"trial judge must be certain to make the prosecution state exactly what
issue it is trying to prove in order to see whether the evidence is probative,
how probative it is, and whether it should be admitted in light of the
other evidence in the case, and the ever present danger of unfair prejudice."
S. Saltzburg, L. Schinasi, & D. Schlueter, Military Rules of Evidence
Manual 531 (4th ed. 1997). Here, the cursory explanation
offered by trial counsel, and the confusing and contradictory instructions
offered by the military judge, underscore the failure to develop a clear
relationship between the prior test result and the issues at stake in the
present case. Thus, even if the evidence had some marginally probative
value to rebut the idea that appellant was "flabbergasted" by his positive
result, the danger of unfair prejudice far outweighed the limited probative
value.
Finally, as we have discussed herein, theGovernment
laid no foundation for admissibility of the evidence. There was no chain-of-custody
evidence; no proof that the prior test had been performed in accordance
with acceptable scientific principles; and no expert to explain to the
members how they might conclude that the test proved appellant knowingly
used the drug 4 years earlier.
Our dissenting colleagues seem to forget, once
again, that our service personnel, who are called upon to defend
our Constitution with their very lives, are sometimes subject to searches
and seizures of their bodies, without probable cause, for evidence of a
crime. We should zealously guard the uses of these results and hold the
Government to the highest standards of proof required by law.
Based upon all of the foregoing, any relevance
associated with the prior test was far outweighed by the prejudice that
flowed from its admission. Furthermore, admission of the evidence materially
prejudiced appellant. Art. 59(a), UCMJ, 10 USC § 859(a).
The decision of the United States Air Force
Court of Criminal Appeals is reversed. The findings and sentence are set
aside. The record of trial is returned to the Judge Advocate General of
the Air Force. A rehearing may be ordered.
 
FOOTNOTES:
1/ According
to proffers made at the instant court-martial, appellant was stationed
in England during the time frame of the previous urinalysis and court-martial.
It was suggested that a British national may have laced a birthday cake
with marijuana. The record of the prior court-martial was a summarized
record; therefore, no further information about the previous court-martial
was included in the record for this case.
2/
We apparently view the "brownie defense" more narrowly than does Judge
Sullivan. Literally, it was derived from the explanation that "someone
put marijuana in the brownies." See United States v. Bond,
46 MJ 86 (1997) (appellant speculated that his cup of beer was laced with
cocaine by drug users he was investigating).
 
 
SULLIVAN, Judge, with whom CRAWFORD, Judge,
joins (dissenting):
Appellant used the unknowing-ingestion defense
in a court-martial for unlawful drug use some 4 years prior to his present
military prosecution and he was acquitted. When appellant was being tried
in the case at bar, he once again used this defense,1
and to bolster this defense, he took the stand and substantially asserted
that he never knowingly used marijuana, and that he was "shocked, upset,
[and] flabbergasted" to have received a positive-urinalysis result.2
After hearing arguments out of the presence of the jury, the judge allowed
the prosecution, on cross-examination, to rebut this testimony with
one question only: whether Graham had a prior positive-urinalysis result?3
To specifically address the majority opinion,
I note that it attempts to exclude this rebuttal evidence of appellants
positive urinalysis, which occurred some 4 years before the charged offenses,
under two rules of evidence. It first suggests that such evidence was not
logically relevant to rebut his trial testimony suggesting a defense of
unknowing ingestion. See Mil.R.Evid. 401. Then it cites this Courts
decision in United States v. Murphy, 23 MJ 310 (1987), for the proposition
that evidence of a prior positive-drug test alone, without expert testimony
and proper instructions, is not legally admissible under Mil.R.Evid. 403.
I disagree for the reasons stated below.
On the Mil.R.Evid. 401 question, I initially
note that relevance cannot be determined without regard to the purpose
for which the challenged evidence was offered. Appellants defense of unknowing
ingestion was supported by his assertion that "theres no way [he] would
knowingly use marijuana," and his assertion that he was "shocked, upset,
[and] flabbergasted" at the 1995 positive-urinalysis result. The evidence
of an earlier positive urinalysis (1991) was offered to rebut this defense
testimony. See United States v. Banks, 36 MJ 150, 166 (CMA
1992).
Rebuttal is a well-recognized evidentiary purpose.
Judge Wiss, writing in Banks, succinctly defined this evidentiary
purpose as follows:



We have stated in a whole series of cases:
"It is well settled that the function of rebuttal evidence is to explain,
repel, counteract or disprove the evidence introduced by the opposing party."
United
States v. Hallum, 31 MJ 254, 255 (CMA 1990); United States v. Cleveland,
29 MJ 361, 363 (CMA 1990); United States v. Wirth, 18 MJ 214, 218
(CMA 1984); United States v. Strong, 17 MJ 263, 266 (CMA 1984),
all quoting or citing United States v. Shaw, 9 USCMA 267, 271, 26
CMR 47, 51 (1958)(Ferguson, J., dissenting). The scope of rebuttal is defined
by evidence introduced by the other party. See Michelson v. United States,
335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); United States v. Baldwin,
17 USCMA 72, 37 CMR 336 (1967);
United States v. Sellers, 12 USCMA
262, 30 CMR 262 (1961).



36 MJ at 166. Quite simply, the 401 question before
us is whether the positive-urinalysis evidence is relevant "to explain,
repel, counteract or disprove the evidence introduced by" appellant. I
think it is.
In my view, the above-noted question was fair
rebuttal
to the defense of unknowing ingestion which appellant was attempting to
plant in the jurys mind. See United States v. Holmes, 39
MJ 176, 180 (CMA 1994); United States v. Spata, 34 MJ 284-86 (CMA
1992). First, his broad and unequivocal testimonial denial of knowing drug
use ("no way I would") reasonably suggested appellants total non-involvement
with illegal drugs. The prosecution was entitled to correct this misimpression
by showing that appellant twice, not once, tested positive for drugs during
his implied drug-free life. See United States v. Joyner, 29 MJ 209,
212 (CMA 1989); United States v. Trimper, 28 MJ 460, 467 (CMA),
cert.
denied, 493 U.S. 965 (1989). The fact of a prior positive-drug test
provided a more complete picture of appellants drug history and undermined
his credibility with respect to his denial of the current charges. After
all, the jury was entitled to know that appellant was in reality asserting
that he was struck by lightning twice. See United States v. Walker,
42 MJ 67, 73 (1995)("The doctrine of chances and the experience of conduct
tell us that accident and inadvertence are rare and casual; so that the
recurrence of a similar act tends to persuade us that it is not to be explained
as inadvertent or accidental." (Citation omitted)); see also United
States v. Graham, 46 MJ 583, 586 (AF Ct. Crim. App. 1997)(multiple-"dope
fairy"-visits theory).
Second, evidence of the 1991 positive urinalysis
was also admitted to rebut appellants testimony that he was "shocked,
upset, [and] flabbergasted" at the 1995 positive urinalysis. His testimony
concerning his highly agitated mental state after he received his 1995
positive-urinalysis result reasonably suggested that he never tested positive
for drugs before and his current positive-test result should be attributed
to unknowing ingestion. See 1A Wigmore, Evidence §
174 (Tillers rev. 1983)(consciousness-of-innocence evidence). The Government
was entitled to attempt to contradict this bolstering evidence by showing
that he had tested positive before and, therefore, his testimony of extreme
agitation was exaggerated or false. See also United States
v. Trimper, supra. Accordingly, this evidence was logically
relevant to circumstantially counter appellants testimony concerning his
flustered mental state and its implications concerning his innocent-ingestion
defense.
Turning to the Mil.R.Evid. 403 question, the
majoritys rationale is also unpersuasive. First of all, appellant did
not make this particular objection at trial or on appeal and, therefore,
it should more properly be considered waived under Mil.R.Evid. 103. In
any event, the challenged evidence was not offered to prove appellants
guilt beyond a reasonable doubt of the uncharged misconduct, as in the
Murphy
line of cases. Instead, it was offered to show the uncharged misconduct
probably occurred. United States v. Reynolds, 29 MJ 105, 109 (CMA
1989), sets the standard for admission of proof of uncharged misconduct,
a far lesser standard than at issue in Murphy. Finally, in view
of the restricted nature and use of the challenged evidence in this case
and the judges limiting instructions, I must reject the majoritys rationale
and uphold the judges discretionary decision. Cf. United States
v. Holmes, 39 MJ 176, 182 (CMA 1994)(impermissible argument prejudicial
despite proper instruction on limited use of evidence).
At the end of the day, this case comes down
to a question of fair rebuttal. Appellants testimony gave the jury the
false impression that he had no involvement whatsoever with illegal drugs
and he had not tested positive for drugs before. The prosecution was allowed
to bring in other evidence which prevented the jury from being misled
in determining the truth of this case. Appellants own testimony opened
the door to this government evidence, and basic fairness dictated that
the jury be allowed to hear it. See RCM 913(c)(1)(C); see also
Joyner, supra at 212 (rebuttal evidence not used to show guilt
of charged offense but to correct erroneous implications of accuseds testimony).
FOOTNOTES:
1 In my view appellant
clearly attempted to raise the defense of unknowing ingestion in this case.
He testified as follows:
Q: Sergeant Graham,
did you do this? (Held the charge
sheet up.)
A: No, Sir.
Q: Sergeant Graham, the Government
is trying to say
that the byproducts of marijuana
are in your urine.
Do you know how that happened?
A: No, Sir.
Q: Was the substance tested your
urine?
A: After it left my sight, Sir,
I have no idea where
it went, and theres no way
I would knowingly use
marijuana.
Q: Sergeant Graham, was your
urine positive for the 
for marijuana?
A: Im being told that, Sir.
I have no way of
knowing.
Q: Sergeant Graham, how were
you notified by the lab
saying your sample was positive?
A: I was called by the first
sergeant over to the
orderly room and taken on a
trip down to the OSI
office.
Q: Now, as you were driving down
to the OSI building,
did the chief tell you what
was going on?
A: No, Sir.
Q: Did you think you were in
trouble at the time?
A: No, Sir, because I was an
observer during this
sweep and stuff, and I thought
it might have had
something to do with that.
Q: Now when were you eventually
notified?
A: After we got down to the
OSI building and the
OSI notified me.
Q: And what was your reaction
to that?
A: I was shocked, upset,
flabbergasted.
(Emphasis added.)
Defense counsel also argued this
defense to the members:
Even if you can rely upon Brooks
Lab to say some sample
we got from Seymour Johnson
turned out positive for THC,
even if you can rely on the
chain back to Seymour
Johnson, even if you rely on
it back through UPS back to
first class mail, however that
happened, all the way back
to Master Sergeant Grahams
body, ask yourself what
evidence do we have of a knowing
use. You have none.
There was no one person that
came in here and [s]aid, I
saw Master Sergeant Graham use
marijuana. Theres not
one piece of evidence that was
seized and shown to you,
no drug paraphernalia, no drug,
nothing. There was not
one person thats heard Sergeant
Graham talk about using
marijuana. You heard testimony
that the OSI was involved
in this case. Using your common
sense and your knowledge
of the ways of the world, you
know how the OSI is[.]





* * *





All I ask you to do is take into
account that the OSI was
involved in this case and that
there are still no
witnesses, no evidence seized,
that were presented here
today to show that there was
a knowing use. What the
evidence does say about knowingness
of this use, you can
look to Chief Porter.
He told you Sergeant Graham wasnt
nervous. He was cooperative.
He didnt hesitate. He
went in there and gave a sample.
He was in a good mood.
He was one of the first ones
to give a sample. And . . .
Dr. Frederick told you that
the creatinine level for this
sample that purports to be Master
Sergeant Grahams is
a normal sample. He also told
you a person can force
fluid to get their level down,
and thats [sic] you do
no notice testing. Thats why
you tell people, get over
to the base gym and give a sample.
He told you that in
thirty to forty minutes, you
can see the difference in
the creatinine level. In two
hours, you can see a
significant difference. Well,
how much notice did
Master Sergeant Graham have.
Not thirty to forty
minutes, not two hours. Four
hours. Four hours
in which he could have force[d]
fluid if he would have
thought that he had knowingly
used marijuana that he
had to cover it. The bottom
line is Master Sergeant
Graham came in here today. We
presented evidence of
his outstanding military character.
He put his integrity
on the line. He looked you
in the eye and said, "I did
not knowingly use marijuana."
"I do not know how this
happened." If you look at
it objectively, why would he
knowingly use marijuana.
At the time of this incident,
he was retirement eligible.
He has a wife and son. He
owns a home. The bottom line
is, theres no evidence to
support a finding beyond a reasonable
doubt of knowing
use.
(Emphasis added.)
2
In appellants initial court-martial for drug use, he defended himself
on the basis that someone put marijuana in cake he had eaten. At his second
court-martial, he served notice of an innocent-ingestion defense that his
wife cooked marijuana in brownies which he ate "without knowledge of their
contents." His trial testimony, in the case at bar, again denied knowing
drug use but without mentioning the brownies, i.e., the "brownie
defense without the brownies." (See n. 1, supra.)
3
It was appellant who first informed the members of his prior court-martial
results in the following colloquy:
Q: Overall, Sergeant
Graham, would you agree with me
that the drug testing program
is reliable?
A: Its not a hundred percent.
Its reliable, but
its not a hundred percent.
Q: Now, Sergeant Graham, isnt
it true that on one
occasion in the past, a sample
of your urine was
correctly tested or was tested
correctly, detecting
ingestion of marijuana by you?
A: Yes, but I was found not
guilty.
(Emphasis added.) The military
judges ruling permitted the defense to admit evidence to show additional
circumstances surrounding that test. Thus the only mention of a prior court-martial
was first brought up by appellant.
 
 
CRAWFORD, Judge (dissenting):
The Government tried appellant for drug use
nearly 4 years before the charges arose in this case. During that trial,
he employed the "innocent ingestion" defense*
and was acquitted. The majority, by their ruling today, would allow appellant
to argue the innocent ingestion defense again in his second trial, while
keeping the members in the dark about his first trial.
The unknowing ingestion of a drug is a defense
to drug-use offenses. However, the fact that appellant was tried for a
drug offense and acquitted at one trial was relevant to his second trial
for a drug offense because, during the second trial, he again testified
that he was "flabbergasted" that his urinalysis was positive. Both the
Supreme Court, Dowling v. United States, 493 U.S. 342, 343-44 (1990),
and this Court, United States v. Cuellar, 27 MJ 50, cert.
denied,
493 U.S. 811 (1989), have held that the Government may present evidence
of an accuseds alleged prior bad acts without violating the Double Jeopardy
Clause or the Due Process Clause of the Constitution, even if the accused
was acquitted of offenses arising from those alleged acts.
Dowling was charged with armed robbery of a
bank. 493 U.S. at 344. At trial, the judge admitted evidence that Dowling
had
committed burglary 2 weeks after the bank
robbery. Id. at 344-45. Testimony to this effect was admitted at
the bank robbery trial, even though Dowling had been acquitted of the burglary.
Id.
at 345. This testimony indicated that appellant had a connection to another
suspect in the bank robbery; that a similar get-away car was involved in
both events; that appellant had previously worn a similar ski mask and
carried a similar handgun while committing a bad act; and that the prior
crime was in the same locality. Id. at 344-45.
The Third Circuit held that a jury should not
be permitted to consider the evidence of a bad act if there had been an
acquittal. Nonetheless, it affirmed the defendants conviction by holding
that the error was harmless. 855 F.2d 114, 122-24 (1988).
The Supreme Court held that Dowling had the
burden to demonstrate that his acquittal represented a jury determination
that he was not the person who entered the home. 493 U.S. at 352. The Court
rejected Dowlings argument that evidence relating to an acquittal is "inherently
unreliable." It noted that the defendant had an opportunity to refute this
evidence but did not. Id. at 353.
Likewise, this Court, anticipating Dowling,
held in United States v. Cuellar, supra, that collateral
estoppel did not prohibit admission of prior bad acts, even if the accused
was acquitted of offenses arising from those alleged acts in a different
jurisdiction. Cuellar was charged with molesting a 10-year-old female in
1983. 27 MJ at 51-52. The judge allowed prosecutors to introduce evidence
that Cuellar had molested four other females between 1980 and 1982, even
though he was acquitted of these charges. Id. at 52-53. This Court
held that evidence about acts resulting in the prior acquittals was not
barred by collateral estoppel. Id. at 54-55. It also ruled that
not allowing the defense, upon its request, to introduce evidence that
the accused had been acquitted in the prior proceedings was error. Id.
at 55-56.
A third case, United States v. Rocha,
553 F.2d 615 (1977), also supports admission of appellants first positive
urinalysis. Rocha was arrested for transporting 231 pounds of marijuana
in a van across the Mexican border. Id. Rocha had been charged on
a prior occasion with transportation of marijuana in a truck. Id.
at 615-16. At the prior trial, he testified that he believed "he was moving
a load of furniture" and "denied knowing the contents of the truck." Id.
He was acquitted. Id. at 616.
At the later trial, the Government introduced
evidence of Rochas prior arrest for transporting marijuana in a truck.
Id.
Rocha explained the circumstances surrounding the first arrest and that
the police found marijuana in the truck. The Ninth Circuit held that admission
of evidence surrounding the first acquittal was relevant and probative
in the later trial. Id.
All three of these cases demonstrate the doctrine
of chance, i.e., what are the odds of the same set of facts occurring
more than once to the same person? The Department of Defense has set the
cut-off level to determine a positive reading for marijuana at 300 nanograms
per milliliter. This cut-off level is set high to discount the possibility
of unknowing ingestion and to demonstrate a reasonable likelihood that
the user would note the physical and psychological effects of the drug.
In the case at bar, the members, who are well aware of the random urinalysis
program and the high cutoff levels, should have the opportunity to determine
appellants credibility and whether appellant would mistakenly test positive
for drugs twice within 4 years.
Under an abuse-of-discretion standard of review
for an evidentiary issue, we should not reverse a military judge unless
an appellant shows that the evidence admitted "clearly had no bearing upon
any of the issues involved." United States v. Marin-Cifuentes, 866
F.2d 988, 996 (8th Cir. 1989). Time and similarity of conduct are important
factors to consider when determining admissibility of prior bad acts. But,
the key here is to apply a reasonableness standard to the issue in the
case. Evidence of prior positive-urinalysis results was admissible because
it was more probative than prejudicial under Mil.R.Evid. 403, Manual for
Courts-Martial, United States (1995 ed.). Thus, the prior positive-urinalysis
results should have been admitted as substantive evidence of appellants
knowing ingestion of marijuana.
FOOTNOTE:
*RCM
701(b)(2), Manual for Courts-Martial, United States (1995 ed.); see
also United States v. Fisiorek, 43 MJ 244, 249 (1995) (Crawford, J.,
dissenting).
Home
Page           Opinions
 
 

