                               Before
                HITESMAN, GASTON, and MCCONNELL,
                      Appellate Military Judges

                         _________________________

                           UNITED STATES
                               Appellee

                                     v.

                       Bailey C. ARNOLDT
                Lance Corporal (E-3), U.S. Marine Corps
                              Appellant

                             No. 201800372

                        Decided: 12 December 2019

Appeal from the United States Navy-Marine Corps Trial Judiciary. Military
Judge: Colonel Matthew M. Kent, USMC (arraignment); Major Nathaniel
Bonner, USMC (trial). Sentence adjudged 9 August 2018 by a special court-
martial convened at Marine Corps Air Ground Combat Center, Twentynine
Palms, California, consisting of officer and enlisted members. Sentence ap-
proved by the convening authority: reduction to E-1, forfeiture of two-thirds
pay per month for 44 days, and a bad-conduct discharge.

For Appellant: Lieutenant Commander William Geraty, JAGC, USN

For Appellee: Lieutenant Joshua C. Fiveson, JAGC, USN; Lieutenant Kim-
berly Rios, JAGC, USN

                         _________________________

    This opinion does not serve as binding precedent, but may be
    cited as persuasive authority under NMCCA Rule of Appellate
                           Procedure 30.2.

                         _________________________
                  United States v. Arnoldt, NMCCA No. 201800372


PER CURIAM:
    Appellant was convicted, contrary to her pleas, of one specification of wrongful
use of cocaine under Article 112a, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 912a (2012). The single issue presented is whether the evidence presented
at trial is legally and factually sufficient to support Appellant’s conviction.
    We hold that the evidence is not factually sufficient where the Government’s evi-
dence relies solely upon the permissive inference associated with a positive urinaly-
sis and the Urinalysis Program Coordinator (UPC) who testified at trial was not the
UPC who supervised the collection and labeling of the tested specimen bottle.

                                  I. BACKGROUND

   On 9 March 2018, the Commanding Officer of Combat Logistics Battalion 7
(CLB-7) ordered a unit wide urinalysis sweep. Since the CLB-7’s regular UPC and
urinalysis observers were subjects of the unit sweep, five UPCs and 15 urinalysis
observers were borrowed from other units aboard Marine Corps Air Ground Combat
Center Twentynine Palms.
    The subject bottle containing the urine that tested positive for the cocaine me-
tabolite was specimen (009) assigned with Batch #273 and corresponded to Appel-
lant’s Electronic Data Interchange Personal Identifier (EDIPI) number. At trial, the
Government called Staff Sergeant RR who was the observer for the subject speci-
men. Staff Sergeant RR did not specifically remember Appellant, but testified as to
her role as an observer during the urinalysis. In general, Staff Sergeant RR de-
scribed what she does from the time she first begins supervising a subject Marine;
through personal observation of the sample being provided; and culminating when
she escorts the Marine back to the table where the UPC is located. In particular, she
described the last step after leaving the head as follows: “I go back to the counter
where the UPC is. The individual(s) set their sample down. The UPC will walk them
through the rest of the process for labeling. At which point, I would locate this sheet
[the “Testing Register” (Pros. Ex. 1)], sign them off, generally speaking . . . .” Staff
Sergeant RR further testified that the Marine would sign the Testing Register (Pros.
Ex. 1) sometime after she did. The evidence does not address whether she and the
Marine signed the form contemporaneously, or whether the Marine executed the
form sometime later under the supervision of the UPC.
   The UPC who personally verified Appellant’s identity and was responsible for
ensuring the correct labels were applied to the correct specimen bottles did not testi-




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                  United States v. Arnoldt, NMCCA No. 201800372


fy. 1 Instead, the Government presented testimony from another UPC, Gunnery
Sergeant CS, who participated in the same unit sweep on 9 March 2018. Gunnery
Sergeant CS described the procedures that he followed during the urinalysis, to
include asking the servicemembers to verify “their label” and place their initials on
it before he placed the label on the bottle. Gunnery Sergeant CS also described the
steps he took to ensure that the servicemembers maintained control over their spec-
imen bottle with a finger placed on top of it when they return from the head.
    On cross-examination, Gunnery Sergeant CS acknowledged that the “Urinalysis
Brief Sheet” (Pros. Ex. 2), which specified the responsibilities of both observers and
coordinators, incorrectly listed him as the coordinator for the batch that included
Appellant’s urine sample. Gunnery Sergeant CS further acknowledged that his
initials were not on the label of Appellant’s urine bottle. Instead, the initials on the
bottle were K.R.C., which corresponded to a different UPC who was in charge of
verifying the Appellant’s identity and ensuring her specimen bottle was correctly
labeled. Gunnery Sergeant CS confirmed on cross-examination, with respect to the
subject bottle that “if that was a bottle from that particular testing, then, no, I did
not touch the bottle or that label.” A member submitted a question to Gunnery Ser-
geant CS asking, “Is that bottle Lance Corporal Arnoldt’s exact bottle, or is it an
example?” Gunnery Sergeant CS answered, “I couldn’t tell you without verifying the
registry with the EDIPI, which is not visible on this bottle.”
    The Urinalysis Brief Sheet (Pros. Ex. 2), states, “Urinalysis Coordinator / Ob-
server responsibilities are set forth in MCO 5300.17 and [are] reemphasized below to
ensure every urinalysis is handled with great care and positive control.” According
to the exhibit, the UPC (not the observer) is responsible for verifying the identity of
each individual. The document assigns six responsibilities to the observer, none of
which involve verifying the identity of the individual to be tested or for ensuring
that the correct label is applied to the correct urine specimen bottle.
    Staff Sergeant JS was also called by the Government and testified that he was
responsible for gathering and shipping the urine samples provided during the 9
March 2018 urinalysis to the Navy Drug Screening Laboratory (NDSL). Staff Ser-
geant JS confirmed that he signed the chain-of-custody form. NDSL received a sam-
ple from Batch 0273 with Appellant’s EDIPI number listed on the label. This sample
also had initials on top of the bottle that matched Appellant’s name. No discrepan-
cies were noted for the subject bottle.
   Over objection, Dr. DQ, an expert from NDSL, testified and explained both the
chain-of-custody and testing procedures used by the NDSL. In sum, Dr. DQ testified



   1The UPC that did process the Appellant’s specimen bottle was on temporary duty at
SERE school at the time of trial.




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                  United States v. Arnoldt, NMCCA No. 201800372


that the urine tested from the subject bottle tested positive for the metabolite of
cocaine. The gas chromatography mass spectrometry (GCMS) test returned a result
of 104 ng/ml for a metabolite of cocaine, which is above the Department of Defense
cutoff level of 100 ng/ml.
    Appellant presented two witnesses. First, Corporal DM, who had known Appel-
lant for two-and-a-half years and did not socialize with her outside of work or on
weekends, testified that he had not witnessed any manic, violent, or paranoid behav-
ior by Appellant. He further testified that he had never seen Appellant possess
cocaine or drug paraphernalia. The second witness, Lance Corporal AL, had only
known Appellant for a month prior to the urinalysis (approximately 5 months by the
time of trial) and did not socialize with her outside of the workplace. She testified
that she had not witnessed any manic, violent, or paranoid behavior by Appellant.
She also testified that although she was not really an expert, in her opinion the
initials on the urinalysis bottle did not match Appellant’s handwriting, which she
was familiar with from having worked in the same section.
    The parties also stipulated to the jurisdictional requirements; the fact that co-
caine is a Schedule II controlled substance; and the fact that the Appellant was
married and the mother of a one-year-old daughter at the time of the alleged offense.

                  II. JURISDICTION AND STANDARD OF REVIEW

    The Convening Authority approved a court-martial sentence that includes a pu-
nitive discharge, triggering Article 66(b)(1), UCMJ, jurisdiction. We are mandated to
exercise a “unique statutory function” under Article 66(c), UCMJ. United States v.
Walters, 58 M.M. 391, 395 (C.A.A.F. 2003). We must conduct a de novo review and
may “affirm only such findings of guilty” as we find are “correct in law and fact.” Art.
66(c), UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). This is
an “awesome, plenary, de novo” power of review. Walters, 58 M.J. at 395 (citations
omitted).
    We review the legal sufficiency of the evidence by determining “whether, consid-
ering the evidence in the light most favorable to the prosecution, any reasonable
fact-finder could have found all the essential elements beyond a reasonable doubt.”
United States v. Day, 66 M.J. 172, 173-74 (C.A.A.F. 2008) (citations omitted). The
test for factual sufficiency is “whether, after weighing the evidence in the record of
trial and making allowances for not having personally observed the witnesses, the
members of the [service court of appeals] are themselves convinced of the accused’s
guilt beyond a reasonable doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A.
1987). We must take “a fresh, impartial look at the evidence,” and we need not give
“deference to the decision of the trial court . . . beyond the admonition in Article
66(c), UCMJ, to take into account the fact that the trial court saw and heard the
witnesses.” Washington, 57 M.J. at 399.



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                   United States v. Arnoldt, NMCCA No. 201800372


                                         III. LAW

           By “reasonable doubt” is not intended a fanciful or ingenious doubt
       or conjecture, but an honest, conscientious doubt suggested by the ma-
       terial evidence or lack of it in this case. . . . The proof must be such as
       to exclude not every hypothesis or possibility of innocence, but every
       fair and rational hypothesis except that of guilt
United States v. Loving, 41 M.J. 213, 281 (C.A.A.F. 1994) (affirming propriety of the
military judge’s definition of reasonable doubt).
   To obtain a conviction under Article 112a for wrongful use of a controlled sub-
stance, the Government must prove:
       (a) That the accused used a controlled substance; and
       (b) That the use by the accused was wrongful.
    To prove wrongful use, the Government must also demonstrate that Appellant
had knowledge regarding the use of the controlled substance. This can be satisfied
through an inference based on the “presence of the controlled substance in the ac-
cused’s body or from other circumstantial evidence.” MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2016 ed.), Part IV, ¶ 37.c(1). See also United States v. Green, 55
M.J. 76 (C.A.A.F. 2001) (“A urinalysis . . . when accompanied by expert testimony
[interpreting the test] . . . provides a legally sufficient basis . . . to draw the permis-
sive inference of knowing, wrongful use.”). In United States v. Webb, the Court of
Appeals for the Armed Forces concluded that “if the evidence that an accused’s body
contained a controlled substance is based solely on a urinalysis, the Court must be
convinced the urine specimen that was tested was the accused’s.” 66 M.J. 89, 93
(C.A.A.F. 2008).
                                    IV. DISCUSSION

    Although we must take into account that we did not see or hear the witnesses,
we are similarly situated with the members to evaluate whether not having the
correct UPC testify at trial is sufficient to raise reasonable doubt in a permissive
inference urinalysis case with no additional evidence of guilt. 2



   2  Military servicemembers place a great deal of confidence in the urinalysis testing pro-
gram; however, the methodology, while generally reliable, is still imperfect. This imperfec-
tion is highlighted in the context of a criminal trial where the burden on the government is
proof beyond a reasonable doubt. For example, the evidence in this case revealed that the
Navy Drug Screening Laboratory that tested the Appellant’s specimen had been decertified
as recently as the spring of 2017 for reporting three false positives. Thus, the permissive
inference is just that—permissive.




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                  United States v. Arnoldt, NMCCA No. 201800372


    There is a material lack of evidence when the actual UPC does not testify be-
cause the fact-finder does not know what he would say. For example, the actual UPC
may have testified, consistent with how Gunnery Sergeant CS testified, that he was
trained, experienced, and followed all of the applicable procedures. And had that
occurred, we would have considerably less doubt that the correct label was applied to
the correct subject specimen bottle to affirmatively connect the positive sample to
Appellant. That did not happen in this case.
    In comparison, the actual UPC might have testified to a lack of training and ex-
perience or that the collection environment was chaotic with many Marines being
processed in a short period of time. His credibility, expertise, and/or biases could
have been tested on cross-examination. The lack of evidence in this regard is signifi-
cant in this urinalysis case, where the Government relies solely upon the permissive
inference without additional evidence of guilt. Here, the Government presented
essentially irrelevant testimony from a UPC who did not confirm Appellant’s identy;
did not ensure the proper bottle was labeled correctly; did not take custody of the
specimen bottle; and could not testify to whether or not the proper procedures were
followed at the time Appellant submitted her sample. In this case, the Government
asks the fact-finder to fill this hole in the chain of custody by relying upon a combi-
nation of inferences drawn from the testimony of other witnesses. None of these
witnesses had the responsibility to (a) ensure the identity of the Marine being test-
ed; or (b) supervise to ensure the correct label was applied to the correct bottle.
    Further, additional evidence presented at trial weighed in favor of Appellant and
not in favor of guilt. This additional evidence included inter alia: (1) Appellant was
married to an Army Sergeant and was the mother of a one-year-old daughter at the
time of the alleged offense; (2) the UPC that did testify told the members that he
couldn’t tell the members if the bottle he was examining belonged to Appellant,
“without verifying the registry with the EDIPI, which is not visible on this bottle”;
and (3) that a Marine familiar with Appellant’s handwriting opined that the initials
on the bottle were not Appellant’s handwriting. While this additional evidence
standing alone, or even collectively, may not carry substantial weight, it is on the
scale of justice in favor of Appellant and further spotlights that the Government did
not have additional evidence to add to a permissive inference theory constructed
upon an incomplete chain of custody.

                                 IV. CONCLUSION

    In performing our duties under Article 66(c), UCMJ, we are not ruling as a mat-
ter of law that the actual UPC must be present at trial, or even that the facts in this
case were legally insufficient. We do conclude that we have reasonable doubt under
the facts of this urinalysis case, where the Government, relying solely upon the
permissive inference without additional evidence, called the wrong UPC to testify at
trial.


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                United States v. Arnoldt, NMCCA No. 201800372


  The guilty finding and sentence as to the sole Charge and Specification are SET
ASIDE and DISMISSED WITH PREJUDICE.


                              FOR THE COURT:




                              RODGER A. DREW, JR.
                              Clerk of Court




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