                         UNITED STATES, Appellee

                                         v.

                  Rachel K. Bradford, Staff Sergeant
                       U.S. Air Force, Appellant


                                  No. 10-6003
                  Crim. App. Misc. Dkt. No. 2009-07

       United States Court of Appeals for the Armed Forces


                       Decided February 26, 2010


                                   PER CURIAM

                                     Counsel



For Appellant:    Captain Michael S. Kerr and Dwight H. Sullivan,
Esq.


For Appellee:    Lieutenant Colonel Jeremy S. Weber.



Military Judge:    William M. Burd




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Bradford, No. 10-6003/AF


     PER CURIAM:

                           I.   BACKGROUND

     This case arises out of a interlocutory Government appeal

under Article 62, Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 862 (2006), in a pending special court-martial.

Appellant, who has been charged with one specification of

wrongful use of cocaine in violation of Article 112a, UCMJ, 10

U.S.C. § 912a (2006), entered a plea of not guilty at her

arraignment.   At this stage of the proceedings, the parties have

not made opening statements, and no evidence has been offered on

the merits.

     During consideration of preliminary matters, the military

judge addressed a number of motions, including the motion at

issue in the present appeal -- the prosecution’s request that

the military judge “preadmit” a document from the Air Force Drug

Testing Laboratory.   The drug testing report at issue contained

the results of urinalysis tests on a specimen attributed to

Appellant.    In pertinent part, the report stated that the

“specimen was determined to be presumptive positive” by two

initial screening procedures and that the specimen “was then

confirmed positive” in a subsequent test.    Other than the

document, the prosecution did not present any evidence in

support of the motion.




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     In the hearing on the motion, trial counsel stated that the

prosecution would “call an expert who’s familiar with the

procedures of the lab” as part of the prosecution’s case-in-

chief during trial on the merits.    According to trial counsel,

the witness, who would review the chain of custody and the test

results, would “be able to testify live based on [the witness’s]

own personal analysis of the Drug Testing Report and the

analysis from this case [that] the sample tested positive for

cocaine.”   Arguing that admission of the report without the in-

court testimony of the individuals who made certifying

statements in the report violated the Confrontation Clause of

the Sixth Amendment, the defense opposed the motion, citing

Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).

     The military judge denied the prosecution’s motion to

“preadmit” the document.   In the course of his ruling, the

military judge focused on portions of the document that he

viewed as containing “testimonial” evidence that would trigger

the requirement for confrontation under Melendez-Diaz:

     If there’s any part of the drug testing process
     that would not be testimonial . . . it would be
     the initial screen; the collection, the chain of
     custody leading up to and including the initial
     screening test. . . . [B]ut once a sample test is
     presumptively positive, everything changes
     because then the lab personnel know what they’re
     doing is confirming or invalidating that initial
     screen. At that point it becomes testimonial and
     that’s when confrontation attaches to the
     documents.


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     In that context, the military judge indicated that portions

of the report might receive different treatment with respect to

the prosecution’s motion to preadmit the document:

     So, if the government can pull out portions if
     this report or any records that pertain to the
     initial screen that would be something I would
     consider in the Motion to Preadmit. But the lab
     report, as it now stands, as contained in
     Appellate Exhibit VII, will not be preadmitted.

     Trial counsel asked for further clarification from the

military judge with regard to the witnesses the Government would

need to call in order to introduce the report in its entirety.

The military judge explained that the Government would be

required to provide “the testimony of anyone involved at any

stage in the testing after the initial screening.”   Trial

counsel then asked, “So any witness involved in any capacity

with this particular sample, after the first positive or first

immunoassay, would be required to introduce any portion of the

[drug testing report] that goes beyond that first immunoassay?”

The military judge responded, “Yes.”   The prosecution did not

identify specific witnesses in that regard by name or specific

position.

     After a brief recess, trial counsel informed the military

judge that the Government was “strongly considering” filing an

interlocutory government appeal under Article 62(a)(1)(B), UCMJ,

which permits such appeals when a ruling by the military judge



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“excludes evidence that is substantial proof of a fact material

in the proceeding.”   The military judge observed that his ruling

on “the Government’s Motion to Preadmit the Drug Testing Report

. . . . does not constitute a ruling that excludes evidence . .

. . [and] there is no basis at this point to appeal my decision

under Article 62.”    When trial counsel asked for a further

explanation, the military judge stated:   “I haven’t excluded any

evidence.   I’ve just said I’m not going to preadmit it and I’ve

explained why.”

     The Government subsequently filed an interlocutory appeal

with the United States Air Force Court of Criminal Appeals under

Article 62, UCMJ, asking the Court to overturn the military

judge’s ruling.   Appellant moved to dismiss the appeal on the

grounds that the decision of the military judge to not preadmit

evidence was not appealable under Article 62, UCMJ, because it

did not amount to a ruling excluding evidence.

     The Court of Criminal Appeals concluded that it had

jurisdiction to address the merits of the appeal, stating that

“[t]he military judge’s ruling had the effect of excluding

evidence that is substantial proof of a fact material for the

government’s case.”   United States v. Bradford, No. 2009-07,

slip op. at 4 (A.F. Ct. Crim. App. Nov. 23, 2009).   The court

then held that the military judge erred in denying the

Government’s motion to preadmit the drug testing report.   Id. at


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United States v. Bradford, No. 10-6003/AF


12.   The lower court granted the Article 62, UCMJ, appeal,

vacated the military judge’s ruling, and remanded the case for

further proceedings.    Id. at 13.       Appellant then sought review

in this Court, contending that the lower court erred both with

respect to the jurisdictional issue and on the merits of the

appeal.


                           II.   DISCUSSION

      Prosecution appeals are disfavored and are permitted only

upon specific statutory authorization.        See United States v.

Wuterich, 67 M.J. 63, 70 (C.A.A.F. 2008).        The statute at issue

in the present appeal authorizes the Government to pursue an

interlocutory appeal of “[a]n order or ruling which excludes

evidence that is substantial proof of a fact material in the

proceeding.”   Article 62(a)(1)(B), UCMJ.

      The present appeal concerns the military judge’s denial of

the Government’s motion to “preadmit” a document.        Trial on the

merits has not begun.   The Government has not moved to admit the

document at trial.   The Government has not demonstrated at trial

that it cannot establish a proper foundation for the

admissibility of the evidence.1      The procedural posture of the

case underscores the observation by the military judge that, at

1
 The circumstances of the present case, at this stage in the
proceedings, do not raise the question of whether foundational
requirements might be such that they rise to a level of
excluding evidence.

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this stage of the proceedings, there has not been a ruling

excluding any evidence.

     The case before us is distinguishable from United States v.

Hendricks, 395 F.3d 173 (3d Cir. 2005), cited by the court

below.   In Hendricks, the district court denied the

prosecution’s motion in limine to admit specific statements made

by specific persons unless the person who made the statement

testified at the trial.   Id. at 175-76.    On appeal, the court

treated the lower court’s decision as a definitive ruling

excluding specific evidence of particular statements by specific

persons, id. at 181, and the opinion does not reflect any

controversy about the court’s jurisdiction.    By contrast, the

military judge in the present case has set forth foundational

criteria for the admissibility of a document, but has not

excluded specific evidence of particular statements by specific

persons.   In that context, the military judge’s decision to not

“preadmit” the document did not constitute “[a]n order or ruling

which excludes evidence that is substantial proof of a fact

material in the proceeding” under Article 62, UCMJ.    As such,

the lower court did not have jurisdiction to review the

substance of the decision by the military judge at this stage in

the proceedings.   Under these circumstances, we take no position

on the validity of the military judge’s decision to deny the




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motion to preadmit the document.2   Likewise, we take no position

regarding the propriety of the criteria for admission set forth

by the military judge.

                         III.   DECISION

     Accordingly, we reverse the decision of the United States

Air Force Court of Criminal Appeals.   We remand the record of

trial to the Judge Advocate General of the Air Force for return

to the military judge for further proceedings consistent with

this opinion.




2
 In a separate case on direct review, United States v. Blazier,
68 M.J. 240 (C.A.A.F. 2009) (order granting petition for
review), we have under consideration the Sixth Amendment
implications of a laboratory report of a drug test relied upon
by the prosecution in its case-in-chief.


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