                       UNITED STATES, Appellee

                                    v.

     Allyssa K. SIMMERMACHER, Hospital Corpsman Third Class
                      U.S. Navy, Appellant

                              No. 14-0744

                       Crim. App. No. 201300129

       United States Court of Appeals for the Armed Forces

                       Argued February 25, 2015

                         Decided June 8, 2015

ERDMANN, J., delivered the opinion of the court, in which BAKER,
C.J., and STUCKY, RYAN, and OHLSON, JJ., joined.

                                 Counsel

For Appellant:    Lieutenant Ryan W. Aikin, JAGC, USN (argued).

For Appellee: Captain Cory A. Carver, USMC (argued); Lieutenant
Commander Keith Lofland, JAGC, USN, and Brian K. Keller, Esq.
(on brief); Captain Matthew M. Harris, USMC.

Military Judge:   Charles Hale


       This opinion is subject to revision before final publication.
United States v. Simmermacher, 14-0744/NA

       Judge ERDMANN delivered the opinion of the court.

       Contrary to her pleas, a panel of officer and enlisted

members sitting as a general court-martial convicted Hospital

Corpsman Third Class (E-4) Allyssa Simmermacher of wrongfully

using cocaine and making a false official statement, in

violation of Articles 112a and 107, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 912a, 907.    Simmermacher was

sentenced to a reduction to E-3 and a bad-conduct discharge.

The convening authority approved the sentence as adjudged and

the United States Navy-Marine Corps Court of Criminal Appeals

(CCA) affirmed the findings and sentence.

       When evidence is lost or destroyed, Rule for Courts-Martial

(R.C.M.) 703(f)(2) sets forth the criteria and process a

military judge must follow in deciding whether an accused is

entitled to relief and what type of relief may be given.      We

granted review to determine whether the military judge properly

interpreted R.C.M. 703(f)(2) when he failed to abate the

proceedings as to the wrongful use of cocaine charge. 1    We hold


1
    We granted review of the following issue:

       When the government destroys evidence essential to a
       fair trial, the Rules for Courts-Martial require the
       military judge to abate the proceedings. Here, the
       government negligently destroyed the sole piece of
       evidence that provided the basis for Appellant’s
       conviction prior to both the referral of charges and
       the assignment of defense counsel. Should the
       military judge have abated the proceedings?



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United States v. Simmermacher, 14-0744/NA

that the military judge abused his discretion in failing to

abate the proceedings under R.C.M. 703(f)(2) as to the Article

112a charge and reverse the decision of the CCA.

                              BACKGROUND

     On March 7, 2011, Simmermacher provided a urine sample as

part of a random drug test.    On March 14, 2011, the Naval Drug

Screening Laboratory (NDSL) notified Simmermacher’s command that

her urinalysis tested positive for cocaine.    On March 21, 2011,

Naval Criminal Investigative Service (NCIS) agents questioned

Simmermacher about the test results, which showed a cocaine

metabolite level of 151 nanograms/milliliter (ng/ml).     The

Department of Defense (DOD) cutoff for cocaine was 100 ng/ml.

During the NCIS interview, Simmermacher denied using cocaine or

any illegal narcotics, and expressed her willingness to take a

polygraph test and provide another urine sample for testing

purposes.   When the random drug test was administered,

Simmermacher was under investigation for allegations of child

abuse, so the NCIS agents also questioned Simmermacher about

injuries to her son.




United States v. Simmermacher, No. 14-0744, 2014 C.A.A.F. LEXIS
1065 (Nov. 5, 2014).




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United States v. Simmermacher, 14-0744/NA

     On April 11, 2011, NDSL sent the full urinalysis report to

Simmermacher’s command with a letter stating that the sample

would be destroyed on March 16, 2012. 2   As NDSL had not received

a request from Simmermacher’s command to retain the sample by

that date, it was destroyed on March 16, 2012.

     Twelve days later, Simmermacher was charged with wrongful

use of cocaine, assault of a child, child endangerment, and

making a false official statement.   The child assault and

endangerment charges were later severed from the wrongful use of

cocaine and false official statement charges.    Simmermacher was

assigned counsel on April 6, 2012.   Defense counsel made a

request to access the urine sample during discovery on April 17,

2012, and requested a retest of the sample on June 18, 2012.

The government informed Simmermacher on July 10, 2012 that the

sample had been destroyed.

     Before trial, Simmermacher moved to suppress the urinalysis

results, arguing that under R.C.M. 703(f)(2) the urine sample:

(1) was relevant and necessary to the presentation of the

defendant’s case; (2) was of such central importance that it was

essential to a fair trial; (3) there was no adequate substitute;

(4) its destruction could not have been prevented by the

2
  Dep’t of Defense, Instr. 1010.16, Technical Procedures for the
Military Personnel Drug Abuse Testing Program (MPDATP) para.
E1.9.2 (Dec. 9, 1994), provides: “Specimens confirmed as
positive and not consumed in the testing process shall be
properly secured in a frozen state for a minimum of 1 year from
the date of the report.”

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United States v. Simmermacher, 14-0744/NA

defense; and (5) the defense had made a timely request to

independently test the sample.   The defense also argued that

preferral of charges against Simmermacher after the sample was

destroyed violated Simmermacher’s due process right to

meaningfully examine the evidence against her.

     The military judge denied the motion to suppress, holding

that Simmermacher had failed to show that the urinalysis

possessed an exculpatory value that was or should have been

apparent to the government before it destroyed the sample, and

also failed to show that she was unable to obtain comparable

evidence by other reasonable means.   The military judge further

found that Simmermacher was unable to prove the government had

acted in bad faith in the urine sample’s destruction.    However,

the military judge did give the panel an adverse inference

instruction regarding the government’s destruction of the

sample:   “Because the sample was destroyed after 1 year, you may

infer that the missing evidence would have been adverse to the

prosecution.   However, you are not required to draw this

inference.”

     On appeal, the CCA held that the military judge correctly

applied both the constitutional due process analysis and the

R.C.M. 703(f)(2) analysis in his ruling, and did not abuse his

discretion when he denied the motion to suppress.   United States

v. Simmermacher, No. NMCCA 201300129, 2014 CCA LEXIS 334, at *1-



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United States v. Simmermacher, 14-0744/NA

*13, 2014 WL 2434199, at *1-*5 (N-M. Ct. Crim. App. May 29,

2014).   The CCA specifically held that:   (1) R.C.M. 703(f)(2)

did not place any stricter requirements on the government to

preserve evidence than are required under the constitutional

standards, id. at *11-*12, 2014 WL 2434199, at *4 (citing United

States v. Kern, 22 M.J. 49, 51 (C.M.A. 1986)); (2) Simmermacher

was unable to prove that the destroyed sample was materially

exculpatory, id. at *8, 2014 WL 2434199 at *3; (3) as

Simmermacher had failed to show bad faith on the part of the

government, the government’s destruction of evidence was merely

negligent, id. at *9, 2014 WL 2434199, at *3; and (4) the

military judge fashioned an appropriate remedy by giving an

adverse inference instruction, id. at *9-*10, 2014 WL 2434199,

at *3.

                            DISCUSSION

Argument of the Parties

     Before this court, Simmermacher argues that under R.C.M.

703(f)(2), the military judge was required to abate the

proceedings.   Simmermacher asserts she satisfied the three

criteria of R.C.M. 703(f)(2):   (1) the destroyed urine sample

was essential to a fair trial because it was the only direct

evidence of cocaine use; (2) no adequate substitute for the

sample existed because the urinalysis report was conclusory and

the defense was unable to challenge the foundation of that



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United States v. Simmermacher, 14-0744/NA

report through a retest; and (3) the unavailability of the urine

sample was not Simmermacher’s fault nor could she have prevented

its destruction as the government discarded the sample before

Simmermacher was charged or assigned counsel.   Simmermacher also

contends that because the granting of a continuance or other

relief could not have produced the destroyed sample, abatement

of the proceedings was the only available remedy.   Finally,

Simmermacher argues that her case is controlled by United States

v. Manuel, 43 M.J. 282, 288 (C.A.A.F. 1995), in which this Court

found that R.C.M. 703(f)(2) contained a remedy beyond those

provided under constitutional due process standards, and is

“illustrative of the President’s going even further than the

Constitution and the Uniform Code in providing a safeguard for

military personnel.”   Accordingly, Simmermacher argues that

under R.C.M. 703(f)(2), an accused is not required to prove bad

faith by the government, which would be necessary under a

constitutional due process analysis.

     The government responds that Simmermacher failed to

establish a violation of R.C.M. 703(f)(2), which it contends

must be analyzed under constitutional due process standards.

The government argues that Simmermacher has not demonstrated

that it acted in bad faith, that the destroyed sample was

exculpatory, or that she was unable to obtain comparable

evidence.   As to the facial requirements of R.C.M. 703(f)(2),



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United States v. Simmermacher, 14-0744/NA

the government argues that Simmermacher failed to show either

that the urine sample was of such central importance to an issue

that it was essential to a fair trial, or that the litigation

packet and the defense’s opportunity to question the NDSL

government witness could not serve as an adequate substitute for

the destroyed sample.    The government concludes by arguing that

even if a 703(f)(2) violation did occur, the military judge had

the discretion under Manuel to fashion an appropriate remedy,

which he did by providing the members with an adverse inference

instruction.

Standard of Review

     A military judge’s failure to abate proceedings is reviewed

for an abuse of discretion.     United States v. Ivey, 55 M.J. 251,

256 (C.A.A.F. 2001).    An abuse of discretion occurs when a

court’s findings of fact are clearly erroneous or the decision

is influenced by an erroneous view of the law.    United States v.

Lubich, 72 M.J. 170, 173 (C.A.A.F. 2013).

Constitutional Due Process Standards

      As the government asks this court to read constitutional

due process standards into R.C.M. 703(f)(2), a brief overview of

those standards is necessary.    California v. Trombetta, 467 U.S.

479, 489 (1984), found that a constitutional duty to preserve

evidence exists if the following conditions are met:    the

“evidence must both possess an exculpatory value that was



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United States v. Simmermacher, 14-0744/NA

apparent before the evidence was destroyed, and be of such a

nature that the defendant would be unable to obtain comparable

evidence by other reasonably available means.”       In addition,

Arizona v. Youngblood, 488 U.S. 51, 58 (1988), established that

an appellant must prove bad faith by the government to establish

a violation of the Due Process Clause when potentially useful

evidence has not been preserved.       While Simmermacher argued

constitutional due process violations at both the court-martial

and the CCA, she is relying only on R.C.M. 703(f)(2) before this

court.

Lost or Destroyed Evidence in Courts-Martial Prior to the
Adoption of R.C.M. 703(f)(2)

     The court addressed the issue of lost or destroyed evidence

in Kern, 22 M.J. at 50, a case in which the accused was charged

with possession of stolen property, but the government could not

produce the property at trial.     Kern argued that Article 46,

UCMJ, 10 U.S.C. § 846, which provides a military defendant an

equal opportunity to obtain evidence, required a more stringent

rule governing preservation of evidence than that provided by

constitutional due process standards.       Id.   The court in Kern,

however, held that military law:

     does not place stricter requirements on the Government
     to preserve evidence which is not “apparently”
     exculpatory than is required of the states under the
     fourteenth amendment to the Constitution. The rule
     announced in Trombetta satisfies both constitutional
     and military standards of due process and should
     therefore be applicable to courts-martial.


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United States v. Simmermacher, 14-0744/NA


Id.   While Kern did reference R.C.M. 703(f)(2) in its final

footnote, the court did not analyze any rights or duties under

the rule because Kern’s court-martial occurred on April 30,

1984, and R.C.M. 703(f)(2) did not take effect until August 1,

1984.   Id. at 50, 52 n.4; Exec. Order No. 12473, 49 Fed. Reg.

17,152 (Apr. 13, 1984). 3

This Court’s R.C.M. 703(f)(2) Precedent

      R.C.M. 703(f)(2) provides:

      Notwithstanding subsection (f)(1) of this rule, a
      party is not entitled to the production of evidence
      which is destroyed, lost, or otherwise not subject to
      compulsory process. However, if such evidence is of
      such central importance to an issue that it is
      essential to a fair trial, and if there is no adequate
      substitute for such evidence, the military judge shall
      grant a continuance or other relief in order to
      attempt to produce the evidence or shall abate the
      proceedings, unless the unavailability of the evidence
      is the fault of or could have been prevented by the
      requesting party.

      The court first addressed the substance of R.C.M. 703(f)(2)

in Manuel, 43 M.J. at 284, which involved two defense requests

for a retest of a positive urine sample, where the parties later

discovered that the sample had been inadvertently destroyed.

3
  The court also referenced R.C.M. 703(f)(2) in United States v.
Ellis, 57 M.J. 375, 380 (C.A.A.F. 2002), in which the appellant
argued that the military judge should have given an adverse
inference instruction where the government had discarded
physical evidence. While the court noted that an adverse
inference instruction was an appropriate curative measure for
improperly destroyed evidence, the court did not reach the
R.C.M. 703(f)(2) issue, as it held any error was harmless in
light of the appellant’s confession. 57 M.J. at 382.



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United States v. Simmermacher, 14-0744/NA

The court held that regulations requiring preservation of

positive urine samples confer a substantial right on an accused

to have his or her sample preserved, and it was not an abuse of

discretion for the military judge to exclude the urinalysis

results where the sample had been destroyed.   Id. at 287.

Manuel clarified that constitutional due process was not the

only right implicated when a military member’s evidence was lost

or destroyed, as the provisions of R.C.M. 703(f)(2) are also

applicable.   Id. at 288.   Additionally, the court stated that

R.C.M. 703(f)(2) is “illustrative of the President’s going even

further than the Constitution and the Uniform Code in providing

a safeguard for military personnel.”   Id.   Finally, the court

held that R.C.M. 703(f)(2) “gives the court discretion to

fashion an appropriate remedy if lost ‘evidence is of such

central importance to an issue that it is essential to a fair

trial.’”   Id.

     We last discussed R.C.M. 703(f)(2) in United States v.

Madigan, 63 M.J. 118, 120-22 (C.A.A.F. 2006), where a positive

blood sample was inadvertently destroyed seven months after the

sample was taken, in violation of the military laboratory’s

policy of retaining samples for two years.   When Madigan filed a

motion to dismiss the drug charge based on the destruction of

the sample, the two-year retention period had already expired

and she had failed to request access to or retention of the



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United States v. Simmermacher, 14-0744/NA

sample during that period.    Id. at 119.   We held that “the

Government is not responsible for ensuring the availability of

the evidence after the authorized destruction date in the

absence of a timely request for access or retention.”    Id. at

121.    However, the Court also noted that this decision rested

solely upon the facts and circumstances in that case.    Id. at

121-22.    We then set forth three scenarios in which the result

might differ, the third of which was where:

       a party demonstrates that, in a particular case, the
       period between notice to the party of the test result
       and destruction of the evidence did not provide the
       party with reasonable time within which to request
       access to the evidence.

Id.

       In reviewing our precedent as to the lost or destroyed

evidence of military members, we note several inconsistencies.

There is nothing in the text or discussion of R.C.M. 703(f)(2)

which indicates that the President intended to incorporate

constitutional due process standards into that provision. 4     We



4
  See United States v. Kearns, 73 M.J. 177, 181 (C.A.A.F. 2014)
(citations omitted):

       Where the language of the statute is clear and
       “Congress has directly spoken to the precise question
       at issue,” we must “give effect to the unambiguously
       expressed intent of Congress.” As further stated by
       the Supreme Court, “It is well established that ‘when
       the statute’s language is plain, the sole function of
       the courts -- at least where the disposition required
       by the text is not absurd -- is to enforce it
       according to its terms.”   There is no rule of

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United States v. Simmermacher, 14-0744/NA

therefore agree with the holding in Manuel that constitutional

due process standards are not a part of a R.C.M. 703(f)(2)

analysis.   In addition, we find Kern’s holding that military law

does not contain stricter requirements than the constitutional

due process standards to be inapplicable to a R.C.M. 703(f)(2)

analysis, as the court-martial predated the adoption of R.C.M.

703 and the court did not analyze the rule.    While the due

process standards created by Trombetta and Youngblood, and

adopted in Kern, are still applicable to a constitutional due

process inquiry for lost or destroyed evidence, R.C.M. 703(f)(2)

is an additional protection the President granted to

servicemembers whose lost or destroyed evidence fall within the

rule’s criteria.

     We further note that Manuel and Madigan endorse, to

different degrees, the concept that R.C.M. 703(f)(2) provides

military judges with broad discretion to fashion an appropriate

remedy when they have found a violation of that rule.    Manuel,

43 M.J. at 288; Madigan, 63 M.J. at 121.     We do not read the

language of R.C.M. 703(f)(2) that broadly.    The “other relief”

language in R.C.M. 703(f)(2) is clearly applicable only to the


     statutory construction that allows for a court to
     append additional language as it sees fit.

“Ordinary rules of statutory construction apply in interpreting
the R.C.M.” United States v. Hunter, 65 M.J. 399, 401 (C.A.A.F.
2008) (citing United States v. Clark, 62 M.J. 195, 198 (C.A.A.F.
2005)).



                                13
United States v. Simmermacher, 14-0744/NA

military judge’s attempt to produce the missing evidence and

does not grant the military judge broad discretion to fashion a

remedy for violation of the rule.       If a continuance or other

relief cannot produce the missing evidence, the remaining remedy

for a violation of R.C.M. 703(f)(2) is abatement of the

proceedings. 5    We therefore overrule the language in Manuel and

Madigan to the extent they are inconsistent with this holding.

Criteria under R.C.M. 703(f)(2)

1.   The lost or destroyed evidence was of such central
     importance that it was essential to a fair trial

      In Manuel we held the destroyed urine sample was of such

central importance to the defense that it was essential to a

fair trial.      Manuel, 43 M.J. at 287, 288.   We see no meaningful

distinction between the situation in Manuel and the situation

presented in this case.     In both cases the government was

negligent in destroying the samples prior to a timely request

for a retest, the samples were the sole evidence of drug use,

the accused denied using cocaine and had no explanation for the




5
  We note that abatement of the proceedings is the remedy only if
there has been a violation of R.C.M. 703(f)(2), which requires
that all three criteria of the rule have been satisfied. For
instance, in this case, had the military judge suppressed the
urinalysis report, the urine sample may no longer have been of
central importance to the issue of Simmermacher’s cocaine use.
Under that scenario, all three of the R.C.M. 703(f)(2) criteria
would not have been met, and therefore a violation necessitating
abatement of the proceedings would not have occurred.



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United States v. Simmermacher, 14-0744/NA

positive results, and the nanogram levels were close to the DOD

cutoff. 6   Id. at 288-89.

2.   There was no adequate substitute for the lost or destroyed
     evidence

      As in Manuel, there was no adequate substitute for

Simmermacher’s destroyed urine sample.    Through her retest

request, Simmermacher was challenging whether the government’s

urinalysis test result was in fact correct and whether there had

been any adulterations to or misidentifications of the sample.

A laboratory report of the initial urinalysis process could

therefore not serve as an adequate substitute for retesting the

destroyed urine sample for such errors.    In addition, while

Simmermacher’s case-in-chief and cross-examination provided her

the ability to present a defense and challenge the procedures of

the initial testing process, it did not give her the ability to

retest the sample.    This is particularly significant where the

sample served as the sole evidence against her.

      We note that in determining whether an adequate substitute

for lost or destroyed evidence is available, a military judge

has broad discretion.    It is when no adequate substitute is

available, as in Simmermacher’s case, that military judges do

not have discretion to vary from the prescribed remedy.    Here,

we do not believe that the military judge’s permissive adverse

6
  In Manuel the nanogram level was 92 ng/ml above the then DOD
cutoff, 43 M.J. at 284, and in this case the nanogram level was
51 ng/ml over the DOD cutoff level.

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United States v. Simmermacher, 14-0744/NA

inference instruction constituted an adequate substitute.    In

providing the adverse inference instruction, the military judge

presented the members with two contradictory propositions:    the

military judge initially instructed the members that they could

infer that the laboratory procedures were proper, and that they

also could infer from the positive drug test that Simmermacher

knew she had used cocaine; however, the military judge then

instructed the members that since the urine sample had been

lost, they could infer that the missing evidence would have been

adverse to the prosecution.    The military judge made no attempt

to clarify these inconsistent inferences.

3.   The loss or destruction of the evidence was not the fault of
     nor could have it been prevented by the requesting party

      As the sample was destroyed before Simmermacher was charged

and before she was assigned counsel, there can be no reasonable

expectation that she was in any manner responsible for the

destruction of the sample.    Nor could Simmermacher have

prevented the destruction of the sample as she was not aware of

NDSL’s April 11, 2011, letter, which notified her command of the

sample retention period. 7


7
  This result is not inconsistent with Madigan, as it falls
within the third Madigan scenario, i.e., where “a party
demonstrates that, in a particular case, the period between
notice to the party of the test result and destruction of the
evidence did not provide the party with reasonable time within
which to request access to the evidence.” Madigan, 63 M.J. at
121-22.



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United States v. Simmermacher, 14-0744/NA

Conclusion

     As Simmermacher satisfied the three criteria set forth in

R.C.M. 703(f)(2), and because a continuance or other relief

could not have produced the destroyed urine sample, we hold that

the military judge abused his discretion when he failed to abate

the proceedings as to the charge of wrongful use of cocaine

under Article 112a.

                             DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed as to the charge of the wrongful

use of cocaine under Article 112a, UCMJ, and as to the sentence.

The decision is affirmed as to the charge of making a false

official statement under Article 107, UCMJ. 8   The charge of the

wrongful use of cocaine is dismissed.   The record of trial is

returned to the Judge Advocate General of the Navy for remand to

the Court of Criminal Appeals for its determination to either

reassess the sentence or to set aside the sentence and order a

rehearing.




8
  Simmermacher was charged with an official false statement for
informing NCIS agents that she had “never done any illegal
substance, including cocaine.” Simmermacher did not challenge
the false official statement conviction on appeal and two
witnesses testified that they had observed her use drugs other
than cocaine.

                                17
