              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                               Before
           J.R. MCFARLANE, K.M. MCDONALD, J.A. FISCHER
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        ZOYA JOURAVSKA
              LANCE CORPORAL (E-3), U.S. MARINE CORPS

                            NMCCA 201300251
                        SPECIAL COURT-MARTIAL


Sentence Adjudged: 22 February 2013.
Military Judge: Col C. Philip Betz, Jr., USMC.
Convening Authority: Commanding Officer, 1st Supply
Battalion, Combat Logistics Regiment 15, 1st Marine
Logistics Group, MarForPac, Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: Maj A.J. Workman,
USMC.
For Appellant: LT Gabriel K. Bradley, JAGC, USN.
For Appellee: CDR James E. Carsten, JAGC, USN; LCDR Keith
B. Lofland, JAGC, USN.

                            19 August 2014

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.


PER CURIAM:

     A special court-martial composed of officer and enlisted
members convicted the appellant, contrary to her pleas, of
wrongful use of cocaine and wrongful distribution of ecstasy in
violation of Article 112a, Uniform Code of Military Justice, 10
U.S.C. § 912a. The members sentenced the appellant to six
months’ confinement, reduction to pay grade E-1, forfeiture of
$1010.00 pay per month for six months, a fine of $80.00 and a
bad-conduct discharge. The convening authority (CA) approved
the sentence as adjudged, and except for the punitive discharge,
ordered the sentence executed.

     The appellant raises the following five assignments of
error (AOEs): (1) that the military judge erred by admitting the
urinalysis results; (2) that the military judge erred by failing
to order the production of Corporal (Cpl) M as a witness; (3)
that the military judge erred by admitting the inculpatory
statements the appellant made to Lance Corporal (LCpl) S; (4)
that the appellant received ineffective assistance of counsel at
trial; and, (5) that the appellant’s conviction for distributing
ecstasy was not legally and factually sufficient.1

     After carefully considering the record of trial and the
submissions of the parties, we find partial merit in the fifth
AOE listed above. After taking corrective action in our
decretal paragraph and reassessing the sentence, we conclude
that the remaining findings and the reassessed sentence are
correct in law and fact and that no error materially prejudicial
to the substantial rights of the appellant remains. Arts. 59(a)
and 66(c), UCMJ.

                                 Background

     On 4 October 2012, the appellant’s company commander,
ordered a unit wide urinalysis for Ammo Company, 1st Supply
Battalion. The urinalysis was prompted by an anonymous note,
discovered the day prior, that stated there was a drug problem
within Ammo Company and that a number of company members were
avoiding detection because they were not on the urinalysis
roster. The note named two Marines who were using drugs and
were not on the urinalysis roster. The appellant was named as
not being on the urinalysis roster; however, the note did not
specifically accuse the appellant of using drugs. When Master
Gunnery Sergeant (MGySgt) F, the company operations chief,
became aware of the note, he checked the company alpha roster
against the company urinalysis roster and discovered
approximately 60 Marines, roughly one-third of the company,
absent from the urinalysis roster. MGySgt F then notified the
company commander of this discrepancy and recommended they

1
  AOE’s II, III, and IV are raised pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1992). AOE V is a summary assignment of error.
                                      2
conduct a company-wide unit sweep urinalysis of Ammo Company.
MGySgt F testified he made this recommendation to ensure
compliance and accountability with the company urinalysis
program. The commander agreed and ordered the unit sweep
urinalysis. The appellant provided a sample for the urinalysis
and it tested positive for cocaine. At trial, the military
judge denied a defense motion to suppress the results from the
urinalysis and concluded the urinalysis was an “inspection”
within the meaning of MILITARY RULE OF EVIDENCE 313(b), MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.).

     The drug distribution charge stemmed from LCpl S’s
controlled buy of narcotics from the appellant during which LCpl
S was acting as a cooperating informant for the Naval Criminal
Investigative Service (NCIS). LCpl S testified that NCIS
contacted her about assisting them after she told two security
battalion friends that she was concerned about a drug problem
within Ammo Company. She further testified that she agreed to
help NCIS because she didn’t like Marines selling drugs to other
Marines. LCpl S met the appellant and the appellant’s
boyfriend, LCpl E, in the barracks smoking area and testified
that the appellant and LCpl E were open about their drug use.
When LCpl S informed NCIS Special Agent S about this, he asked
her to set up the controlled buy.

     On 1 October 2012, the appellant conducted the controlled
drug buy from the appellant. Following standard procedure,
Special Agent S searched LCpl S and her vehicle prior to the
controlled buy and found no narcotics. LCpl S was under NCIS
agent surveillance both to and from the appellant’s barracks
room. LCpl S testified that, once in the appellant’s room, she
gave the appellant the $80.00 Special Agent S had provided her
and the appellant gave her a baggie containing a white powdery
substance the appellant represented that it was ecstasy. LCpl S
returned from the appellant’s room with the baggie of white
powdery substance and gave it to Special Agent S. Special Agent
S indicated the substance field tested positive for ecstasy,
however when it was analyzed at the lab it was discovered to be
a different controlled substance.

     Additional facts necessary for the resolution of each AOE
are developed below.




                                 3
                           Discussion

Suppression of Urinalysis Results

     In the appellant's first AOE, she asserts that the military
judge erred to her substantial prejudice by denying the defense
motion to suppress the positive results of her urinalysis. The
appellant asks that this court set aside the findings of guilty
to using cocaine, set aside the sentence, and remand for a
sentence rehearing.

     A military judge’s ruling denying a motion to suppress
evidence is reviewed for abuse of discretion. United States v.
Michael, 66 M.J. 78, 80 (C.A.A.F. 2008). In conducting a review
of a ruling on a motion to suppress, the evidence is considered
“in the light most favorable to the prevailing party.” United
States v. Reister, 44 M.J. 409, 413 (C.A.A.F. 1996) (citations
and internal quotation marks omitted). We accept the findings
of fact made by the military judge unless they are clearly
erroneous. United States v. Leedy, 65 M.J. 208, 213 (C.A.A.F.
2007).

      A command may constitutionally require its military members
to submit specimens for urinalysis drug testing as part of a
valid military inspection without any showing of probable cause.
United States v. Bickel, 30 M.J. 277, 285 (C.M.A. 1990). An
inspection is an examination, in whole or part, of a unit,
organization, installation, vessel, aircraft, or vehicle. MIL.
R. EVID. 313(b). The primary purpose of an inspection is to
ensure security, military fitness, or good order and discipline.
Id. An inspection includes, but is not limited to, an
examination ensuring that personnel are present, fit, and ready
for duty. Id. “An order to produce body fluids, such as urine,
is permissible in accordance with this rule.” Id. An
examination made for the primary purpose of obtaining evidence
for use in a trial by court-martial is not a valid inspection.
Id.

      “[MIL. R. EVID. 413(d)] also provides analysis to apply to
inspections that may be suspect.” United States v. Moore, 41
M.J. 812, 815 (N.M.Ct.Crim.App. 1995) (citation omitted). “In
general, the Government must prove by a preponderance of
evidence that the examination was a valid inspection, i.e., not
a subterfuge to search. Suspect examinations are those whose
purpose is to locate weapons or contraband. Urinalysis
inspections are commonly considered suspect examinations for the
purpose of further analysis to determine if the inspection

                                4
program is being used as a subterfuge search. . . . If [a]
purpose of the examination is to discover contraband and if ‘(1)
the examination was directed immediately following a report of a
specific offense in the unit, organization, installation,
vessel, aircraft, or vehicle and was [not] previously scheduled;
(2) specific individuals are selected for examination; or (3)
persons examined are subject to substantially different
intrusions during the same examination,’ the Government's burden
is to establish by clear and convincing evidence that the
examination was a legitimate inspection. If none of these three
factors is present, the Government's burden is by
preponderance.” Id. at 815-16 (quoting MIL. R. EVID. 313(b)).

     In this case the military judge applied a preponderance of
the evidence standard in concluding the Government met its
burden of proving the urinalysis results were acquired from an
inspection pursuant to MIL. R. EVID. 313(b). Appellate Exhibit
XIII at 4. As expressed in Moore, urinalysis tests are commonly
considered suspect examinations in search of contraband for
purposes of further analysis under MIL. R. EVID. 313(b). The
urinalysis test at issue was previously unscheduled and
immediately followed an anonymous report of drug use within the
unit. Therefore, we find the military judge erred in applying a
preponderance of the evidence standard vice the clear and
convincing standard required by MIL. R. EVID. 313(b). In this
case, however, we are satisfied beyond a reasonable doubt that
the military judge’s error was harmless because even applying
the more stringent clear and convincing standard we agree with
the military judge’s conclusion that the urinalysis test at
issue was an inspection within the meaning of MIL. R. EVID.
313(b). See United States v. Vassar, 52 M.J. 9, 12 (C.A.A.F.
1999) (military judge’s error in applying an appellate review
standard was harmless because the evidence was admissible even
if the judge applied the correct standard).

     The military judge determined the primary purpose of the
unit sweep urinalysis was to “reestablish compliance with unit
urinalysis requirements and maintain proper states of
readiness.” AE XIII at 4. We agree. The urinalysis was
clearly prompted by the anonymous note which named specific
Marines as using drugs and or not participating in the
urinalysis program and also spoke to a drug problem within the
company. However, the record is clear that MGySgt F made his
recommendation for a unit sweep urinalysis based on the
significant percentage of Marines in the company that had not
been subject to the company urinalysis program because they were
not on the urinalysis roster. Ordering a company-wide unit

                                5
sweep urinalysis to remedy this program discrepancy was a
reasonable and justified reaction to ensure unit fitness and
readiness and therefore the urinalysis qualifies as an
inspection under MIL. R. EVID. 313(b). See United States v.
Jackson, 48 M.J. 292, 295 (C.A.A.F. 1998) (information that
drugs were being sold in the unit was more than adequate to
provide the commander with a reasonable basis to assess the
health and welfare of his unit); United States v. Shover, 45
M.J. 119 (C.A.A.F. 1996) (urinalysis ordered to reduce tension
in the unit after someone had placed marijuana in officer’s
briefcase while it was in her office supported military judge’s
finding that primary purpose of urinalysis was valid inspection
rather than subterfuge search). We find the Government
satisfied its burden, by clear and convincing evidence, to
establish the urinalysis was an inspection. Accordingly, we
hold that the results of the urinalysis were properly admitted
at trial.

Failure to Compel Production

     In this AOE, the appellant argues that the military judge
abused his discretion by denying the motion to compel production
of Cpl M.

     The standard of review for rulings denying the production
of a witness is abuse of discretion. United States v.
McElhaney, 54 M.J. 120, 126 (C.A.A.F. 2000). An appellate court
will not set aside a military judge’s denial of a witness unless
it has a “definite and firm conviction” that the military judge
committed “a clear error of judgment.” Id. at 126 (citation and
internal quotation marks omitted). After taking evidence on the
defense motion to compel, the military judge denied the motion,
noting: (1) that the request for Cpl M was untimely and (2) that
the defense proffer indicated the witness would testify
regarding specific instances of conduct of a Government witness
and such testimony was inadmissible under MIL. R. EVID. 608(b).
Record at 56; AE XI. Furthermore, the military judge found that
the defense had failed to establish that Cpl M was material,
relevant and necessary to the case. AE XI.

     We find that the military judge did not abuse his
discretion in denying the request to compel production of Cpl M.
Though the military judge cited lack of timeliness as a basis
for his denial of the defense requested witness, he analyzed the
defense proffer of Cpl M’s testimony and rightly concluded Cpl
M’s proffered testimony would not be admissible. In a post-
trial declaration, the appellant claims that Cpl M would have

                                6
testified regarding the LCpl S’s character for untruthfulness,
however there is no further indication in the record that Cpl M
would have provided such testimony. Moreover, we are convinced
that any testimony Cpl M would have provided would not have
impacted the results of the court-martial. We are satisfied
that the military judge did not abuse his discretion in making
his ruling based on the defense counsel’s proffer of Cpl M’s
expected testimony and decline to grant relief on this AOE.

     We similarly find the appellant's third AOE, alleging that
the military judge erred by admitting inculpatory statements the
appellant made to Lance Corporal (LCpl) S, to be without merit
and not worthy of further comment.

Ineffective Assistance of Counsel

     By way of a post-trial declaration the appellant contends
that her trial defense counsel was ineffective because: (1) he
failed to have finger print analysis done on the baggie of white
substance LCpl S testified she purchased from the appellant; (2)
he failed to call two witnesses to challenge LCpl S’s
credibility and to testify about her drug use; (3) he failed to
call Cpl S as a good military character witness; (4) he did not
submit a timely witness request which led to the military judge
denying a defense motion to compel a witness; and, (5) he failed
to cast doubt on the nature of the substance in the baggie LCpl
S testified she purchased from the appellant.

     We apply a presumption that counsel provided effective
assistance. Strickland v. Washington, 466 U.S. 668, 687 (1984);
United States v. Garcia, 59 M.J. 447, 450 (C.A.A.F. 2004). This
presumption is rebutted only by “a showing of specific errors
made by defense counsel that were unreasonable under prevailing
professional norms.” United States v. Davis, 60 M.J. 469, 473
(C.A.A.F. 2005) (citing United States v. McConnell, 55 M.J. 479,
482 (C.A.A.F. 2001)). Even if defense counsel's performance was
deficient, the appellant is not entitled to relief unless he was
prejudiced by that deficiency. United States v. Quick, 59 M.J.
383, 385 (C.A.A.F. 2004) (citing Strickland, 466 U.S. at 687).
If the issue can be resolved by addressing the prejudice prong
of this test, we need not determine whether counsel's
performance was deficient. Id. at 386 (citing Strickland, 466
U.S. at 697) (additional citations omitted). The appellant
bears the burden to demonstrate a level of prejudice that
indicates a denial of a fair trial or a trial whose result is
unreliable. United States v. Dewrell, 55 M.J. 131, 133
(C.A.A.F. 2001). The appropriate test for prejudice under

                                7
Strickland is whether there is a reasonable probability that,
but for counsel's error, there would have been a different
result. Quick, 59 M.J. at 387.

     The appellant’s claims of prejudice from her trial defense
counsel’s alleged errors are speculative at best. The
Government’s case against the appellant was strong. The
Government introduced evidence showing the appellant’s urine
sample tested positive for cocaine. With respect to the
distribution charge, LCpl S and Special Agent S testified in
detail regarding LCpl S’s controlled narcotics purchase from the
appellant. Special Agent S confirmed LCpl S did not possess any
drugs prior to the controlled buy. LCpl S was under NCIS agent
surveillance the entire time with the exception of when she was
in the appellant’s room. LCpl S returned from the appellant’s
room with the baggie of white powdery substance and without the
$80.00 Special Agent S had given her. Nothing in the
appellant’s post-trial declaration disputes these facts.
Instead the appellant asserts that witnesses she requested her
trial defense counsel call would have discredited LCpl S by
detailing specific instances of LCpl S’s own misconduct.
However, such evidence is generally inadmissible and, even if it
was admitted, we conclude it would not have affected the outcome
of the appellant’s case. The appellant has not demonstrated a
reasonable probability that there would have been a different
result but for her counsel's actions. Quick, 59 M.J. at 387.
Based on the record before us, we conclude that the appellant
has failed to overcome the strong presumption of effective
assistance of counsel.

Legal and Factual Sufficiency

     In a summary assignment of error, the appellant contends
that there was insufficient evidence to conclude that the white
powdery substance in the baggie was ecstasy and requests this
court affirm a conviction for the lesser included offense of
attempt to distribute ecstasy.2 The United States concedes the
substance was not ecstasy and that it is appropriate for this
court to grant the relief requested by the appellant and affirm
a conviction for attempt to distribute ecstasy. We agree and
will take appropriate action in our decretal paragraph.




2
  Evidence in the record indicates that despite the substance field testing
positive for ecstasy, a laboratory test confirmed the substance was not
ecstasy.
                                      8
Forum Selection

     Although not raised by the appellant as an AOE, we note
that the military judge did not obtain on the record the
appellant’s personal request for trial by enlisted members. In
response to the military judge’s question, the trial defense
counsel confirmed the appellant’s forum selection as enlisted
members; however, the appellant did not personally indicate her
forum selection on the record. Record at 88-89. While this
failure represented a violation of Article 25(c)(1), UCMJ, under
the circumstances of this case, there was substantial compliance
with Article 25 and the error did not prejudice the substantial
rights of the appellant. See United States v. Townes, 52 M.J.
275, 276-77 (C.A.A.F. 2000).

                           Conclusion

     We set aside the guilty findings to the Additional Charge
and its specification and affirm a guilty finding to the lesser
included offense of attempt to distribute ecstasy, in violation
of Article 80, UCMJ. In accordance with United States v. Sales,
22 M.J. 305, 307-08 (C.M.A. 1986), United States v. Peoples, 29
M.J. 426, 428 (C.M.A. 1990), and United States v. Buber, 62
M.JU. 476, 479 (C.A.A.F. 2006), and finding no dramatic change
in the penalty landscape, we have reassessed the sentence and
find no further relief is warranted. Accordingly, we affirm the
remaining findings and the adjudged sentence, as approved by the
CA.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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