

   
   
   
   U.S. v. Matthews



UNITED STATES, Appellee
v.
Sherrie L. MATTHEWS, Staff Sergeant
U.S. Air Force, Appellant
 
No. 99-0487
Crim. App. No. S29326
 
United States Court of Appeals for the Armed
Forces
Argued December 16, 1999
Decided August 31, 2000
GIERKE, J., delivered the opinion of the
Court, in which EFFRON, J., and EVERETT, S.J., joined. EVERETT, S.J., filed
a concurring opinion. SULLIVAN, J., filed an opinion concurring in the
result. CRAWFORD, C.J., filed a dissenting opinion.
Counsel
For Appellant: Major Robin S. Wink,
USAFR (argued); Lieutenant Colonel Jeanne M. Reuth, Lieutenant
Colonel James R. Wise, and Major Thomas R. Uiselt (on brief);
Colonel Theodore J. Fink.
For Appellee: Major Jennifer R. Rider
(argued); Colonel Anthony P. Dattilo, Lieutenant Colonel Ronald
A. Rodgers, and Captain James C. Fraser (on brief); Captain
Tony R. Roberts.
Military Judge: James J. Blommers
 

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 
 

Judge GIERKE delivered the opinion of the Court.
A special court-martial composed of officer
members convicted appellant, contrary to her pleas, of wrongfully using
marijuana, in violation of Article 112a, Uniform Code of Military Justice,
10 USC § 912a. The adjudged and approved sentence provides for a bad-conduct
discharge and reduction to the lowest enlisted grade. The Court of Criminal
Appeals affirmed the findings and sentence. 50 MJ 584, 591 (1999). Our
Court granted review to determine whether the military judge abused his
discretion by permitting the prosecution to introduce evidence that appellant
used marijuana a second time after the offense for which she was tried.
For the reasons set out below, we reverse.1

Factual Background
Appellant is a married staff sergeant with
over 14 years of active duty. She was assigned as the noncommissioned officer-in-charge
of Information Management at the Office of Special Investigations (OSI)
detachment, Tyndall Air Force Base, Florida. On Wednesday, April 24, 1996,
OSI Special Agent (SA) Lockwood notified appellant that she had been randomly
selected for urinalysis testing. She was told to report for testing the
next morning. Shortly after she was notified, appellant told SA Lockwood
that she felt ill, and she went home early. On the next day, she called
SA Lockwood and told him that she was still ill. She returned to duty on
Friday, April 26.
On Monday, April 29, 1996, she reported to
the urinalysis-testing site and provided a urine sample. The sample tested
positive for marijuana with a concentration level of 57 nanograms per milliliter.
Appellant was ordered to provide another sample, and she provided the second
sample on May 21. This command-directed sample also tested positive with
a concentration level of 45 nanograms per milliliter.
At trial, during the defense case-in-chief,
appellant introduced several affidavits attesting to her good military
character, and she testified about her military career. Regarding the first
positive urinalysis, she testified as follows:

Q. And youve seen the documents from the
laboratory and you are aware, I know, the Government has charged you with
wrongful use of marijuana between on or about 1 April 1996 and 29 April
1996, you are aware of that?
A. Yes, sir.
Q. Did you do that?
A. No, sir.
Q. Well, let me ask you a question then; do
you have any idea how the results came back positive on you?
A. No, sir, I do not.
Q. Is there anything at all?
A. No, sir.
Q. What - - has this pending court-martial
affected you in any way?
A. Yes sir. They took away my security clearance
and my job.
Q. How do you feel about the fact that this
test has identified you as having used marijuana during the time frame;
how does that make you feel?
A. Mad.
Q. Has it affected the way that you relate
with people in your unit?
A. Yes, sir.
Q. Has it affected the way you relate with
your family?
A. Yes, more stressed.

Following this testimony, trial counsel asked
for an evidentiary hearing without the members present. See Art.
39(a), UCMJ, 10 USC § 839(a). At this hearing, he argued that appellant
had opened the door for the results of the later command-directed urinalysis
to be admitted as impeachment evidence.
The military judge agreed. He ruled that the
evidence obtained on May 21 through the command-directed urinalysis was
admissible to impeach appellants testimony that she did not use marijuana
at any time between April 1 and April 29. He also ruled that the evidence
was relevant and admissible under Mil. R. Evid. 404(b), Manual for Courts-Martial,
United States (1995 ed.),2
to show that appellants use of marijuana was knowing and conscious. Finally,
citing Mil. R. Evid. 403, he ruled that its probative value was "not substantially
outweighed by the danger of unfair prejudice, confusion to court members,
or anything else." However, he would not permit any reference to the command-directed
urinalysis in rebuttal to or cross-examination of any defense character
witnesses. He specifically ruled that Mil. R. Evid. 608, allowing cross-examination
about specific instances of conduct when it is probative of truthfulness,
was "not a player" in this case.
When the trial on the merits resumed, trial
counsel asked appellant if "good military members . . . use drugs," and
she responded, "No, sir." He asked appellant if she provided a urine sample
on May 21, 1996, and if that sample tested positive. She responded affirmatively
to both questions. Trial counsel asked her if she was "attempting to imply"
that she had "innocently ingested marijuana twice within a five-day period,"
and she responded, "Its possible." On redirect, she testified that she
did not know why both urinalysis tests were positive. She was asked, "Did
you use marijuana?" She responded, "No, sir."
After appellant completed her testimony, the
military judge allowed trial counsel to present testimony from Dr. Papa,
an expert witness, that the positive reading from the command-directed
urinalysis could not have been from the same use of marijuana that resulted
in a positive reading from the random urinalysis. During an evidentiary
hearing without the members present, Dr. Papa testified that the second
positive urinalysis was consistent with chronic use of marijuana, i.e.,
"more than two or three times a week."
For reasons not apparent from the record, Dr.
Papas testimony concerning the possibility of appellants chronic use
was not presented to the members. In response to questions from two court
members, Dr. Papa testified that it was not scientifically possible for
both urine samples to have tested positive based on a one-time ingestion.
Trial counsel did not pursue the theory of chronic use, but proceeded instead
on the theory that appellant used marijuana on two separate occasions.
Before Dr. Papa testified, the military judge
instructed the members that the evidence of the second positive urinalysis
was admissible for "the limited purpose . . . to either prove knowledge
. . . knowing and conscious ingestion and . . . an opportunity on her part
to use marijuana . . . and, I guess I should say, as it may affect your
assessment of the credibility of her testimony before you."
Before the members began deliberations, the
military judge instructed as follows:

As I have advised you earlier, some evidence
has been admitted for limited purposes in this case, and more specifically,
Prosecution Exhibit 14 and testimony related thereto regarding a urine
specimen provided by the accused on or about 21 May 1996, and subsequent
urinalysis testing thereof; and that is the tendency of such evidence,
if any, to prove the requisite knowledge on the accuseds part or opportunity
to commit the alleged offense before this court, or as such evidence may
have an impact, if any, on your assessment of the credibility of the accuseds
testimony before the court. You may not consider this evidence for any
other purpose. And you may not conclude from this evidence that the accused
is a bad person, a person of bad moral character, or has criminal tendencies
and that she, therefore, committed the offense charged. This evidence was
not admitted for that purpose and you may not consider it for that purpose.
You may, as I say, use it only for the limited purposes of its tendency,
if any, to prove knowledge or opportunity on the accuseds part to commit
the offense charged, or its impact, if any, on the credibility and weight
you decide to give to her testimony.

Defense counsel did not object to the limiting
instruction or request additional instructions.

Discussion
Mil. R. Evid. 404(a) prohibits admission of
so-called "propensity evidence." It provides: "Evidence of a persons character
or a trait of a persons character is not admissible for the purpose of
proving that the person acted in conformity therewith on a particular occasion."
This Court has held that the mere fact that a person had used drugs at
times previous to the charged offenses does "not make it more or less probable
that" the person knowingly used drugs on the date charged. United States
v. Cousins, 35 MJ 70, 74 (1992).
However, Mil. R. Evid. 404(b) permits evidence
of "other crimes, wrongs, or acts" to prove facts other than a persons
character, such as "motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident." This rule was the legal basis
for the military judges ruling that the command-directed urinalysis in
May was admissible to show that appellants use of marijuana in April was
knowing and conscious.
Evidence offered under Mil. R. Evid. 404(b)
must satisfy three tests to be admissible. First, the evidence must "reasonably
support a finding by the court members that appellant committed prior crimes,
wrongs, or acts." Second, the evidence must make a fact of consequence
more or less probable. Third, the evidence must satisfy the balancing required
by Mil. R. Evid. 403, i.e., its probative value must not be "substantially
outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the members, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence." United States
v. Reynolds, 29 MJ 105, 109 (CMA 1989). The military judge specifically
cited Mil. R. Evid. 404(b) and 403 when he ruled that the evidence was
admissible.
Mil. R. Evid. 608(b) provides that the credibility
of a witness may not be attacked by extrinsic evidence of specific instances
of conduct, but a witness may be cross-examined about specific conduct,
if it is probative of truthfulness or untruthfulness. The military judge
specifically ruled that Mil. R. Evid. 608 was "not a player" in this case.
Nevertheless, he permitted trial counsel to cross-examine appellant about
the second positive urinalysis.
"The scope of rebuttal is defined by evidence
introduced by the other party." United States v. Banks, 36 MJ 150,
166 (CMA 1992) (citing Michelson v. United States, 335 U.S. 469
(1948); United States v. Baldwin, 17 USCMA 72, 37 CMR 336 (1967);
United States v. Sellers, 12 USCMA 262, 30 CMR 262 (1961)). A broad
assertion by an accused "on direct examination that he" or she "has never
engaged in a certain type of misconduct" may open the door to impeachment
"by extrinsic evidence of the misconduct." United States v. Trimper,
28 MJ 460, 467 (CMA), cert. denied, 493 U.S. 965 (1989); see
Walder v. United States, 347 U.S. 62 (1954). The military judge
ruled that appellants testimony that she did not use marijuana at any
time between April 1 and April 29 opened the door to impeachment by extrinsic
evidence that she had marijuana metabolite in her urine on May 21. He specifically
cited Trimper in support of his ruling.
The Court of Criminal Appeals held that appellants
testimony raised the issue of innocent ingestion. But it held that the
second, command-directed urinalysis initiated on May 21 did not directly
contradict appellants testimony that she did not knowingly use marijuana
between April 1 and April 29. 50 MJ at 588. The court below held, however,
that the second positive urinalysis was relevant to appellants credibility
and to rebut her evidence of good military character. Id. at 590.
We disagree. Extrinsic evidence of specific
acts is not admissible to rebut evidence of good military character. See
United States v. Pruitt, 46 MJ 148, 151 (1997). Although cross-examination
of character witnesses about specific acts is permissible under Mil. R.
Evid. 405(a), "cross-examination should be limited to acts that would have
occurred prior to the crime charged, because the court wants to
test character at that time." Stephen A. Saltzburg, Lee D. Schinasi, and
David A. Schlueter, Military Rules of Evidence Manual 572 (4th
ed. 1997) (emphasis in original). We note that the military judge did not
instruct the members on this theory of admissibility.
A military judges ruling on admission of evidence
will be overturned only if there is an abuse of discretion. A military
judge abuses his discretion if his ruling "is influenced by an erroneous
view of the law." United States v. Sullivan, 42 MJ 360, 363 (1995).
We hold that the military judge abused his
discretion when he admitted the evidence of the second command-directed
urinalysis. This Court has rejected the notion that evidence of an unlawful
substance in an accuseds urine at a time before the charged offense may
be used to prove knowing use on the date charged. See Graham,
50 MJ at 60; see also Cousins, 35 MJ at 74. We also reject
the notion that evidence of an unlawful substance in an accuseds urine
after the date of the charged offense and not connected to the charged
offense may be used to prove knowing use on the date charged. The military
judges error in admitting the evidence was compounded by his instruction
telling the members that they could consider the evidence as proof of knowledge,
knowing and conscious ingestion, and opportunity.
Our dissenting colleague suggests that the
evidence of the second positive urinalysis was admissible to prove guilty
knowledge under the "doctrine of chances." This doctrine posits that "it
is unlikely that the defendant would be repeatedly innocently involved
in the similar suspicious situations." 1 E. Imwinkelried, Uncharged
Misconduct Evidence § 5:28 at 78 (1999).
While we have no quarrel with this theory of
admissibility, there is no factual predicate for applying it in this case.
Furthermore, under the doctrine of chances, the proponent of the evidence
would be required to show that the subsequent ingestion of marijuana was
under circumstances sufficiently similar to the first ingestion as to justify
an inference that the first ingestion of marijuana was knowing. Id.
at 79-80. See United States v. Aguilar-Aranceta, 58 F.3d
796, 799 (1st Cir. 1995) (similarity between uncharged act and
current charges is "touchstone" in test for relevance); United States
v. Mayans, 17 F.3d 1174, 1183 (9th Cir. 1994) (prosecution
must show more than "the crudest sort" of similarities between charged
and uncharged misconduct); United States v. Gordon, 987 F.2d 902,
908-09 (2d Cir. 1993) (abuse of discretion to admit evidence of other acts
if the other act or acts are not "sufficiently similar to the conduct at
issue" to provide reasonable basis to infer knowledge).
In appellants case, the prosecution proceeded
on a "paper case," producing laboratory reports but absolutely no evidence
of the circumstances surrounding either the first or second alleged ingestion.
The record is devoid of evidence that the circumstances of the second alleged
ingestion were similar to the first. Without such evidence, there is no
factual basis for applying the "doctrine of chances." Accordingly, we conclude
that a theory of relevance based on the "doctrine of chances" is not applicable
to this case.
Court members are presumed to follow the military
judges instructions. United States v. Holt, 33 MJ 400, 408 (CMA
1991). Thus, we must presume that the court members considered the evidence
of the second urinalysis for an improper purpose.
The military judge also instructed the members
that the second positive urinalysis could be considered in their assessment
of appellants credibility. He gave them no further guidance. Since the
military judge rejected Mil. R. Evid. 608 as a basis for admitting the
evidence, ruled that the prosecution would not be allowed to attack appellants
character evidence by cross-examination about specific acts, and specifically
cited Trimper in support of his ruling that the evidence was admissible,
it is clear that he intended that the members consider the second urinalysis
as evidence contradicting appellants carefully limited denial that she
used marijuana between April 1 and April 29, the period charged. However,
the military judge did not translate his rationale into instructions setting
out the permissible legal framework for evaluating appellants credibility.
See United States v. Harper, 22 MJ 157, 164 (CMA 1986) ("Where
members are the finders of fact, it is incumbent on the military judge
to clearly instruct them concerning [the applicable] principles of law.")
We agree with the court below that the evidence obtained through the command-directed
urinalysis does not contradict appellants direct testimony. Thus, to the
extent that the military judges instructions permitted the members to
consider the second urinalysis as impeachment by contradiction, they were
inadequate and incorrect.
Given the highly inflammatory nature of the
evidence of appellants second positive urinalysis, the danger of a conviction
improperly based on propensity evidence required carefully crafted limiting
instructions. Similarly, once appellant put her credibility on the line,
she was entitled to have it evaluated in a correct legal framework. In
this case, the military judge admitted the evidence on an incorrect legal
basis and submitted it to the members with erroneous and ambiguous instructions.
Accordingly, we must reverse.

Decision
The decision of the United States Air Force
Court of Criminal Appeals is reversed. The findings of guilty and the 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 This Court granted
review of the following issues:


I
WHETHER THE AIR FORCE COURT OF
CRIMINAL APPEALS IMPROPERLY APPLIED THE ABUSE OF DISCRETION STANDARD OF
REVIEW BY CONSIDERING APPELLANTS GOOD CHARACTER AFFIDAVITS--EVIDENCE THE
MILITARY JUDGE DID NOT CONSIDER--IN DETERMINING WHETHER THE DEFENSE OPENED
THE DOOR TO ADMISSION OF APPELLANTS COMMAND-DIRECTED URINALYSIS.

II
WHETHER THE AIR FORCE COURT OF
CRIMINAL APPEALS ERRED BY NOT STRICTLY APPLYING MIL.R.EVID. 311(b) WHILE
SIDESTEPPING THE QUESTION OF WHETHER THE RESULTS OF APPELLANTS COMMAND-DIRECTED
URINALYSIS WERE ILLEGALLY SEIZED EVIDENCE UNDER THE FOURTH AMENDMENT.

III
WHETHER ADMISSION OF THE RESULTS
OF APPELLANTS COMMAND-DIRECTED URINALYSIS IN HER COURT-MARTIAL VIOLATED
HER FOURTH AMENDMENT RIGHTS TO BE FREE FROM UNLAWFUL SEARCH AND SEIZURE.

IV
WHETHER THE MILITARY JUDGES
RULING THAT APPELLANT OPENED THE DOOR TO ADMISSION OF APPELLANTS COMMAND-DIRECTED
URINALYSIS UNDER MIL.R.EVID. 311(b) WAS AN ABUSE OF DISCRETION.

V
WHETHER THE AIR FORCE COURT OF
CRIMINAL APPEALS ERRED WHEN THEY CONCLUDED APPELLANT RAISED THE "UNKNOWING
INGESTION" DEFENSE, CONTRARY TO THIS HONORABLE COURTS OPINION IN UNITED
STATES V. GRAHAM, 50 MJ 56 (1999).

VI
WHETHER THE ADMISSION OF APPELLANTS
COMMAND-DIRECTED URINALYSIS UNDER MIL.R.EVID. 404 WAS AN ABUSE OF DISCRETION.

Since we reverse on the basis of
Issue IV, we do not address the other issues.
2 All
Manual provisions are cited to the version applicable at trial. The 1998
version is unchanged, unless otherwise indicated.


EVERETT, Senior Judge (concurring):
After appellant had been tested on April 29,
1996  and because of the results of that test, she was further tested
on May 21, 1996. In view of the nanogram levels of the respective tests,
an expert testified that they did not reflect a single use of drugs  unless
the person tested was a chronic user.
Thus, a basis might have existed for charging
appellant with two separate instances of drug use. The Government did not
choose to do this. Perhaps this decision was made because an issue might
exist as to admissibility of the results of the second test  which, unlike
the first test, was not part of an "inspection" but instead was command-ordered.
I have some question as to whether the Fourth Amendment would bar receipt
in evidence of the results of a test ordered by a commander under those
circumstances. However, I defer readily to what seems to have been the
military judges position that those results were admissible only if the
door were opened by the defense.
If the Fourth Amendment otherwise would have
barred receipt of the results in evidence, I doubt that the exception provided
in Mil.R.Evid. 311(b)(1) would change the outcome. My reading of the record
suggests that the evidence here was not "used to impeach by contradiction
the in-court testimony of the accused." Although I recognize that the loophole
first created by Walder v. United States, 347 U.S. 62 (1954), has
been expanded by later cases such as United States v. Havens, 446
U.S. 620 (1980), 1 the
testimony given by appellant still did not go far enough to eliminate any
Fourth Amendment bar to admitting evidence of the results of the second
test.
Even if the Fourth Amendment would not exclude
evidence of the second drug test, its receipt at trial was barred by Mil.R.Evid.
404(b) and 403. As Judge Gierke makes clear, that test  even if it were
deemed to establish that appellant had committed a second offense  is
admissible under 404(b) only "for other purposes" than to prove bad character.
Moreover, the "danger of unfair prejudice, confusion of the issues, or
misleading the members" is very great in relation to the "probative value"
of the evidence about the results of the second drug test.
Therefore, I concur with Judge Gierke.
FOOTNOTE:
1 Cf. United
States v. Trimper, 28 MJ 460 (CMA), cert. denied, 493 U.S. 965
(1989); see also James v. Illinois, 493 U.S. 307 (1990).


SULLIVAN, Judge (concurring in the result):
My dissent in United States v. Graham,
50 MJ 56 (1999), was grounded on the principle of fair rebuttal in a case
where the accused had made use of a similar "innocent ingestion"
defense in a prior drug trial. I held that under the specific circumstances
in Graham (where the accused at trial was possibly misleading the
jury with his explanation that he was "flabbergasted" to see a positive
urinalysis) the jury was entitled to know about the prior positive urinalysis
under the "lightning is striking twice" theory. Id. at 60-63 (Sullivan,
J., dissenting).
In the instant case we have different circumstances.
Immediately on being told that she tested positive for drugs, appellant
was required to submit to a command-directed urinalysis (which later proved
positive for drugs). See United States v. Campbell, 41 MJ
177 (CMA 1994). Although it may have been reasonable for a commander
to order that second urinalysis, see Mil. R. Evid. 313(b), it is
not fair to introduce it at trial and put an unjustified double burden
on the accused. See Mil. R. Evid. 403 (probative value "substantially
outweighed by the danger of unfair prejudice, [or] confusion of the issues,
. . . .). In effect, the accused is forced to defend against two
separate incidents of drug use while being charged with only one. Absent
the special circumstances described in Graham, where I decided that
the rebuttal evidence of the "prior positive result" was necessary to prevent
the jury from being misled, I join the result of the majority here.
I do so because to do otherwise would increase the danger that command-directed-urinalysis
results that are positive, like in this case and in future similar cases,
may become admissible simply because a servicemembers defense is innocent
ingestion. Accordingly, I join the majoritys result in authorizing a rehearing
under the circumstances of this case.


CRAWFORD, Chief Judge (dissenting):
I dissent because the majority overlooks the
common-law theory of contradiction and misreads the Supreme Court cases
concerning impeachment by extrinsic evidence.

FACTS
Appellant, an Office of Special Investigations
agent, when notified on Wednesday, April 24, 1996, that she had been randomly
selected for urinalysis testing, became pale and ill and went home early.
She called in sick on Thursday and did not provide the urine sample until
the following Monday morning. That sample tested positive for marijuana.
Appellant was then ordered to provide a command- directed urine sample
on May 21, 1996. That sample also tested positive for marijuana.
At trial, the defense began its case-in-chief
by introducing seven affidavits as to the good character of appellant.
The first live defense witness was another agent who indicated he had attended
the same luncheon as appellant and also became sick. Appellant was the
next defense witness and testified that she had no idea as to why she tested
positive and that she was mad that the test identified her as using marijuana.
At the conclusion of the direct examination, the prosecutor asked for an
Article 39(a) session at which he argued that appellant's testimony opened
the door to admission of the command-directed urinalysis under Mil.R.Evid.
404(b) as rebuttal to show appellant had knowledge of and opportunity to
use marijuana.
To determine logical relevance, a government
expert, Dr. Papa, was recalled. He testified that because of the length
of time between the first and second sample, the second sample could not
be attributed to the first ingestion. Based on the prosecution proffer,
the judge then allowed the prosecution to question appellant about the
second urinalysis.

DISCUSSION
This case involves use of a subsequent act
to contradict appellants trial assertion that she had no idea why she
tested positive and that she was mad that the test identified her as using
marijuana. The prevailing "view is that subsequent acts are admissible,"
if "logically relevant." See 1 E. Imwinkelried, Uncharged Misconduct
Evidence § 2:12 at 72 (1999).
That same treatise recognizes, however, that
"subsequent acts are often (but not invariably) irrelevant to prove the
defendants prior knowledge." Id. at 73-74. Furthermore, "depending
on the theory, the prosecutor may be restricted to prior uncharged misconduct
or similar acts or may be required to prove more than one uncharged act."
§ 5:24 at 66 (footnote omitted).
The treatise then discusses four categories
of cases in which prosecutors are frequently allowed to introduce uncharged
misconduct to prove the defendants guilty knowledge. §§ 5:25
 5:28. The fourth category is styled Uncharged Acts Which Tend To Prove
Guilty Knowledge by Virtue of Doctrine of Chances. § 5:28 at 78.
According to this doctrine, "it is unlikely that the defendant would be
repeatedly innocently involved in the similar suspicious situations." Id.
In this category, it does not matter "[w]hether the incident occurs before
or after the uncharged incident, [because] under the doctrine of chances
the uncharged incident is relevant to lower the probability of innocent
state of mind." Id. at 79.
The treatise notes that "courts are split over
the question whether the proponent may invoke the doctrine of chances if
the proponent has evidence of only one similar act." § 5:07 at 22.
However, "[u]nder Federal Rule of Evidence 401, even a single similar instance
of conduct can be material to increase the likelihood of mens rea." Id.
(footnote omitted). For example:

If the judge believes that it is implausible
that a person could perform a physical act or series of acts more than
once without forming a certain mens rea, a single uncharged act is relevant
under the doctrine of chances to show intent. Relying on his or her common
sense and life experience, the judge may conclude that innocent involvement
in this type of incident is a "once in a lifetime" experience.

Id. at 23.
Appellants claim of lack of knowledge as to
why her April 29th urinalysis results tested positive for marijuana is
precisely such a "once in a lifetime experience." It is implausible that
she could be tested again the following month, on May 21, and once again
have her urinalysis results test positive for marijuana and have an innocent
state of mind. The act at issue is similar in all respects: the same drug
found in the urine of a person and closely related in time.1
Moreover, marijuana use is a complex act requiring several premeditated
steps. Therefore, appellants subsequent positive urinalysis test is admissible
under the theory of logical relevance.
The majority asserts that the evidence is insufficiently
similar to the charged act. I disagree. The cases cited by the majority
are entirely dissimilar. For example, in United States v. Aguilar-Aranceta,
58 F.3d 796 (1st Cir. 1995), the court found particularly troubling
"the four-year period between [the accuseds] prior conviction and the
facts leading to the present charges." The court nonetheless found "that
the district court did not abuse its discretion in finding that Aguilar-Arancetas
prior conviction was specially relevant to the issue of knowledge." The
court also found that the evidence should have been excluded under "Rule
403 balancing" (id. at 800) due to "the remoteness in time of her
prior conviction" and the danger of unfair prejudice. "Aguilar-Aranceta
spoke little or no English"; the postal "window clerk was aware that Aguilar-Aranceta
would be arrested if she took the packages" containing cocaine and the
clerk "might have been especially zealous in encouraging her to take the
packages." Id. at 801.
In United States v. Gordon, 987 F.2d
902 (2d Cir. 1993), the court concluded that defendant "Gordons possession
16 months earlier of a modest amount of crack and a triple-beam scale had
so little value to prove his knowledge that Ghullkie, whom he had met only
recently, was importing a large quantity of cocaine and marijuana that
it was inadmissible." Id. at 909.
In United States v. Mayans, the defendant
was charged with conspiracy to distribute and possession with intent to
distribute cocaine, and possession of cocaine. "[F]ive cocaine buyers and
the sellers mule, Andres Ortiz, were all arrested in the act of consummating
a drug deal; three others ... were arrested at or in the course of leaving
an apartment ... which Ortiz had visited just before the deal." Appellant
"Pablo Mayans was arrested as he drove up and down the street in front
of" the apartment, which was owned by his family. "The government ... introduced
evidence ... of prior drug deals between Mayans and three of the buyers"
to show knowledge and intent. "The trial court ... was satisfied with information
of the crudest sortthe mere fact that appellant had allegedly made prior
drug deals with the co-defendants." 17 F.3d 1174, 1177, 1182-83 (9th
Cir. 1994). The Court of Appeals found that this evidence may not have
"put him on notice of the facts about which he disclaimed knowledge in
this case." Id. at 1183.
The Court of Appeals in Mayans cited
a case with facts similar to this one concerning proof of "a logical connection
between the knowledge gained as a result of the commission of the prior
act and the knowledge at issue in the charged act." Id. at 1181-82.
In United States v. Sinn, 622 F.2d 415 (9th Cir.), cert.
denied, 449 U.S. 843 (1980), the accused "was apprehended at the Los
Angeles airport following a flight from Ecuador and was found carrying
a camera case" concealing cocaine. As noted by the Sinn court, which
included then-Judge Kennedy, "It was shown over objection that about five
years previously appellant had been in possession of cocaine during an
illegal buy-and-sell transaction." The court held: "Where, as here, the
sole question is one of intent, we think it within the discretion of the
trial court to decide that a previous dealing is relevant on the issue
of the knowledge of the participant in a second event, particularly where,
as here, there was substantial evidence from which knowledge might be inferred
apart from the prior act. . . . Here, in both the prior and the subsequent
offenses, the identical drug was involved and was found on the person of
the appellant." 622 F.2d at 416.
The majority opinion in the present appeal
denounces the "paper case" of the laboratory results as insufficient to
show the circumstances surrounding either the first or second alleged ingestion.
None of the cases cited in the majority opinion require a more detailed
factual predicate for admission of prior or subsequent acts. All that needs
to be demonstrated is logical relevance: i.e., the identical drug
was found in the urine of the person on separate occasions, and in this
case, only one month apart. It doesnt matter whether appellant smoked
a joint on one occasion and a bong the next; either way, the evidence shows
that she knew why her urine tested positive for marijuana.
The Supreme Court in Harris v. New York,
401 U.S. 222, 224-25 (1971), relying on Walder v. United States,
347 U.S. 62 (1954), approved use of illegally seized evidence to impeach
the accuseds testimony. But Walder involved impeachment on a collateral
point. The Walder Court said the defendant "must be free to deny"
elements in the case without opening himself or herself to impeachment
by illegally seized evidence. Harris implicitly rejected that limitation
and thus rejected the requirement for a sweeping denial before illegally
seized evidence may be admitted.
The Supreme Court in United States v. Havens,
446 U.S. 620 (1980), noted specifically the Court of Appeals holding below
"that illegally seized evidence may be used for impeachment only if the
evidence contradicts a particular statement made by a defendant in the
course of his direct examination." Id. at 623. The holding was based
on a very narrow reading of Agnello v. United States, 269 U.S. 20
(1925). 446 U.S. at 623-25.
Agnello was charged with conspiracy to sell
a package of cocaine. He testified on direct examination that he had possessed
the packages but did not know what was in them. On cross-examination he
denied ever having seen the narcotics that were in the can of cocaine that
was suppressed. The Supreme Court held that the suppressed evidence could
not be used to impeach Agnello since on direct examination he did not testify
concerning the can of cocaine. 269 U.S. at 35.
The Supreme Court in Havens noted that
Agnello and the other cases were erroneously read to mean
that illegally seized evidence could be used to impeach a statement brought
out by defendant on direct, but not brought out "for the first time on
cross-examination." The Court recognized that in Walder, Harris,
and Oregon v. Hass, 420 U.S. 714 (1975), impeachment with illegally
obtained evidence was permitted because of what the defendant said on direct
examination. But "[t]hese cases repudiated the statement in Agnello
that no use at all may be made of illegally obtained evidence." The Supreme
Court noted that the Court of Appeals "also relied on the statement in
Agnello ... that Agnello had done nothing 'to justify cross-examination
in respect of the evidence claimed to have been obtained by the search.
The implication of Walder is that Agnello was a case of cross-examination
having too tenuous a connection with any subject opened upon direct examination
to permit impeachment by tainted evidence." 446 U.S. at 625.
Justice Brennan joined by Justices Marshall,
Stewart, and Stevens, dissented. Justice Brennan complained that the majority
had passed control of the impeachment "exception to the Government, since
the prosecutor can lay the predicate for admitting otherwise suppressible
evidence with his own questioning." 446 U.S. at 631. He complained the
majority set up a "pitiful scarecrow" which it proceeded to demolished.
He noted that both Agnello and Walder stand for the proposition
"that the Government may not employ its power of cross-examination to predicate
the admission of illegal evidence." Id. at 630. He also noted that
"cross-examination about Agnellos previous connection with cocaine was
reasonably related to his direct testimony that he lacked knowledge that
the commodity he was transporting was cocaine." Id. at 630-31. In
fact, the Brennan dissent noted that in Walder the "decision specifically
stated that a defendant must be free to deny all the elements of the case
against him without thereby giving leave to the Government to introduce
by way of rebuttal evidence illegally secured by it, and therefore not
available for its case-in-chief." Id. at 631, citing 347 U.S. at
65. While truth-seeking is important, the dissenter thought that the Supreme
Court should not aid police officers in violating the law. 446 U.S. at
633.
Rather than analyzing truth-finding as a trial
objective, the majority of this Court takes the view of the dissenters
in Havens. Fortunately, that is not the law. Unfortunately, the
majority seems to think it is. For this reason, I dissent.
FOOTNOTE:
1 The treatise notes:
"So long as the time lapse is short and there is no evidence of an intervening
change in circumstances, there certainly is logical relevance." §
2:12 at 73.


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