                              IN THE CASE OF


                        UNITED STATES, Appellee

                                     v.

             Richard J. ISRAEL Jr., Airman First Class
                     U.S. Air Force, Appellant

                               No. 04-0217

                          Crim. App. No. 34877


       United States Court of Appeals for the Armed Forces

                        Argued October 20, 2004

                         Decided March 16, 2005

ERDMANN, J., delivered the opinion of the Court, in which
GIERKE, C.J., CRAWFORD, EFFRON, and BAKER, JJ., joined.

                                  Counsel

For Appellant: Captain David P. Bennett (argued); Colonel
Beverly B. Knott, Major Terry L. McElyea, Captain Antony B.
Kolenc, and Captain James M. Winner (on brief).

For Appellee: Captain Stacey J. Vetter (argued); Colonel
LeEllen Coacher, Lieutenant Colonel Robert V. Combs, and Major
Michelle M. Lindo (on brief); Lieutenant Colonel Gary F.
Spencer.

Military Judge:    James L. Flanary


  This opinion is subject to editorial correction before final publication.
United States v. Israel Jr., No. 04-0217/AF

     Judge ERDMANN delivered the opinion of the Court.

     Airman First Class Richard J. Israel Jr. entered a plea of

not guilty to a specification alleging wrongful use of cocaine

in violation of Article 112a, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 912a (2000).       He was tried and convicted by

members at a general court-martial and sentenced to a bad-

conduct discharge, confinement for six months, forfeiture of all

pay and allowances, and a reduction in grade to E-1.      The

convening authority approved the findings and sentence and they

were affirmed by the Air Force Court of Criminal Appeals in an

unpublished decision.   United States v. Israel, ACM 34877 (A.F.

Ct. Crim. App. Oct. 27, 2003).

     A defendant’s right under the Sixth Amendment to cross-

examine witnesses is violated if the military judge precludes a

defendant from exploring an entire relevant area of cross-

examination.   United States v. Gray, 40 M.J. 77, 81 (C.M.A.

1994).   The prosecution primarily relied upon Israel’s positive

urinalysis test1 and the only defense raised by Israel was an

attack on the reliability of the urinalysis testing process.

Although the military judge allowed the defense counsel to

conduct limited cross-examination regarding the possibility that

errors might have occurred in the testing process, he excluded


1
  The Government did introduce the testimony from a friend of
Israel concerning a statement that Israel may have made after
the drug test. The testimony was equivocal and not probative.

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United States v. Israel Jr., No. 04-0217/AF

most of the evidence that the defense offered in support of that

possibility.    We granted review to determine whether the

military judge abused his discretion in excluding this evidence.2


                             BACKGROUND

       Israel tested positive for cocaine in an urinalysis drug

test that was obtained during a unit sweep at MacDill Air Force

Base (MacDill) on May 19, 2001.    The sample was tested at the

Brooks Air Force Drug Testing Laboratory (Brooks Laboratory) on

May 30, 2001.    The Government’s witnesses testified as to the

collection procedures at the base level and the testing

procedures at Brooks Laboratory.       Israel did not testify and his

defense consisted of an attack on the reliability of the drug

testing program through cross-examination.


Base Collection Procedures

       The MacDill Drug Testing Program Manager, Mr. Mahala,

testified regarding the standard procedures for the collection

of urine during a drug sweep and that those procedures were

followed to collect Israel’s urine.      On cross-examination he




2
    We granted review of the following issue:
       WHETHER   APPELLANT   WAS   DENIED   MEANINGFUL CROSS-
       EXAMINATION OF KEY GOVERNMENT WITNESSES IN VIOLATION
       OF THE SIXTH AMENDMENT WHERE THE MILITARY JUDGE
       PREVENTED TRIAL DEFENSE COUNSEL FROM CONFRONTING THE
       WITNESSES WITH MATERIAL IMPEACHMENT EVIDENCE.

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United States v. Israel Jr., No. 04-0217/AF

admitted that he did not have any direct recollection of

collecting Israel’s sample and that his testimony was based

entirely on the standard procedures he used in testing.    He

stated, “I don’t get away from my procedure at all, Sir.”

     Prior to the defense counsel’s cross-examination of Mr.

Mahala, the military judge addressed a motion in limine filed by

the government that asked “that the defense counsel be precluded

from presenting evidence on cross of Mr. Mahala, as well as be

precluded from any mention at all of the Drug Demand Urinalysis’

untestable rates ... from MacDill Air Force Base.”   In

opposition to the motion, the defense argued that because an

untestable sample indicates that something has gone awry in the

collection or shipping process, this evidence would be probative

with respect to “what the local lab did or did not do correctly

for the month of June and for the month of March ... just prior

to and just after the sample which was given in May.”

     The military judge excluded the evidence, finding that it

was “irrelevant because what we’re focusing on is this

particular instance of the collection process.   I don’t think

that the trial counsel has opened the door up to ... a general

assault ... on the entire testing process forever, or within the

first few months before or after.”




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United States v. Israel Jr., No. 04-0217/AF

Laboratory Procedures

     Dr. Haley testified as an expert witness regarding the

procedures used at the Brooks Laboratory for testing urine

samples for cocaine: an immunoassay test is run on all samples;

those samples that test positive undergo a second immunoassay

test; if that second test is positive, the sample is tested a

third time using the more intricate and more thorough gas

chromatography/mass spectrometry (GC/MS) testing process.    With

regard to the GC/MS confirmation test, Dr. Haley testified that

it is “considered the gold standard in drug testing[,]” and that

it is an accurate test.

     Dr. Haley walked the court through the document containing

the test reports for Israel’s urine screening and explained the

process used in each of the three tests when a positive result

is reached.   She described the standard calibration procedures

and other quality control measures taken by the lab with regard

to the machines used in the testing process and the testing

process as a whole.   When asked how she could be sure of the

test results, she responded, “Because ... the whole test is

performing as it should.   We’ve got all the knowns in there are

[sic] coming out at the correct concentrations.   If the

instrument were having some problem where it was inaccurately

detecting things, it would show up in the controls, as well.”

     Dr. Haley concluded that in her opinion the test produced



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United States v. Israel Jr., No. 04-0217/AF

“valid results[,]” and that the urine tested was produced by the

accused and tested positive for cocaine.    On cross-examination,

Dr. Haley testified that it is possible that “[s]ome mistakes

will go undetected, but there are many precautions set up to

catch those that would result in a report going out.”

        Prior to the cross-examination of Dr. Haley, a session

pursuant to Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000), was

held to address certain evidence that the defense sought to

introduce during cross-examination.    Israel’s defense counsel

argued that the areas he wished to explore challenged the

reliability of Dr. Haley’s conclusion that the urinalysis test

result was valid and were therefore appropriate for cross-

examination.    The evidence that the defense wished to introduce

related to the following incidents at Brooks Laboratory: a May

2001 calibration error; a 1997 incident where a laboratory

employee, Ms. Solis, erroneously annotated a specimen sample; a

1999 incident where Mr. Hatziz, a laboratory employee, falsified

documents to cover up an error; an August 2000 false-positive

blind quality control sample; and log book errors in April of

2001.    The military judge found that the evidence was “totally

irrelevant for what we’re here for .... None of that stuff has

anything to do with this particular testing in this particular

case.”




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United States v. Israel Jr., No. 04-0217/AF

     During closing arguments, trial counsel reinforced the

“gold standard” theme of the Government’s case.   He stressed the

reliability of the urinalysis testing process, characterizing it

as the “best,” the “Mercedes” of drug testing and that “every

precaution was taken” to ensure its accuracy “and every

precaution was met.”   Trial defense counsel attempted to impeach

the processes used by the laboratory by noting the possibility

that mistakes were made and arguing that “you can’t report a

mistake you didn’t find.”   On rebuttal, the Government again

stressed the presumption of regularity inherent in the standard

procedures of the laboratory.

                            DISCUSSION

     Israel argues that the military judge’s rulings

unreasonably restricted his ability to cross-examine witnesses

and violated his Sixth Amendment rights.   See United States v.

Bahr, 33 M.J. 228, 232 (C.M.A. 1991).    Trial rulings limiting

cross-examination are reviewed for abuse of discretion.    United

States v. Shaffer, 46 M.J. 94, 98 (C.A.A.F. 1997) (citing United

States v. Buenaventura, 45 M.J. 72, 79 (C.A.A.F. 1996)).

     A defendant’s Sixth Amendment right to confront the

witnesses against him is violated where it is found that a trial

judge has limited cross-examination in a manner that precludes

an entire line of relevant inquiry.   See United States v.

Atwell, 766 F.2d 416, 419-20 (10th Cir. 1985).    Because the



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United States v. Israel Jr., No. 04-0217/AF

alleged errors affect Israel’s constitutional right to confront

the witnesses against him, if we find that the military judge

abused his discretion, we will reverse unless the “error was

harmless beyond a reasonable doubt.”   Bahr, 33 M.J. at 231

(quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)); see

also United States v. Gray, 40 M.J. 77 (C.M.A. 1994).

     We find that while the military judge correctly excluded

much of the offered evidence, he abused his discretion in

excluding evidence of the MacDill untestable rates, the Brooks

Quality Control Report regarding an unacceptable calibrator, and

the August 2, 2000, false-positive blind quality control sample.

We further find that these errors were not harmless beyond a

reasonable doubt.


MacDill Untestable Rates

     Mr. Mahala testified on cross-examination that he did not

have any direct recollection of collecting Israel’s sample and

that his testimony was based on the standard procedures he used

in collecting urine samples during a unit sweep.   His testimony

relied on a presumption of regularity -- that those standard

procedures were followed in Israel’s case.    The evidence offered

by Israel to challenge this testimony concerned the untestable

rates for MacDill from the months of March and June.    The

untestable samples produced by the MacDill drug program during




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United States v. Israel Jr., No. 04-0217/AF

those months indicate some type of irregularity in the

collection or shipping process.

     Evidence of these irregularities could have been used to

attack Mr. Mahala’s testimony that the standard procedures

always were followed and those procedures were reliable.

Because this evidence of irregularities in the collection

process was closely related in time to the collection of

Israel’s sample, we find that the military judge abused his

discretion in excluding this evidence from use by the defense on

cross-examination.


Brooks Calibration Error

     Dr. Haley testified regarding the standard procedures used

at the Brooks Laboratory for testing urine samples for cocaine.

She described the standard calibration procedures and other

quality control measures taken by the lab with regard to both

the machines used in the testing process and the testing process

as a whole.

     In May 2001 there was a failed run of the testing process

because of an unacceptable calibrator.   The calibration error

was caught and the test in that case was rerun.   There was also

a calibration error in the batch that contained Israel’s

specimen, which caused a control sample to read positive

erroneously.   The error caused the batch in Israel’s case to be

rerun as well.   Defense counsel argued that the quality control


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United States v. Israel Jr., No. 04-0217/AF

report reflecting the earlier error should be admissible to show

that errors could, and did, occur in the calibration of the

machines.   As noted, the military judge excluded the evidence as

being irrelevant.

     The evidence in question concerned a calibration error that

occurred in May 2001, the same month in which Israel’s sample

was collected and tested.   Evidence that the same error had

occurred more than once in the same month could have been used

to raise questions about the reliability of the machines used in

the testing process and therefore to question the reliability of

the results of the test.    Considering Dr. Haley’s generalized

testimony that relied upon the “gold standard in drug testing”

and a presumption of regularity in the testing process, the

military judge’s ruling deprived Israel of the opportunity to

meaningfully challenge that presumption of reliability.

     In those cases where the Government relies on the general

reliability of testing procedures, evidence related to the

testing process that is closely related in time and subject

matter to the test at issue may be relevant and admissible to

attack the general presumption of regularity in the testing

process.    We therefore find that the military judge abused his

discretion in excluding this evidence.




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United States v. Israel Jr., No. 04-0217/AF

     False-Positive Blind Quality Control Sample

     On August 2, 2000, one of the quality control samples known

by the lab to be negative for cocaine erroneously tested

positive in a run of the GC/MS test.   As a result the entire

batch tested in that run was discarded and the test was rerun.

No explanation for the error was ever given.

     Barbara Rohde was the aliquoter on the batch that had

produced this false positive and while her name appears on the

chain of custody for Israel’s sample, she did not handle the

sample until June 7, after the testing was complete.   Defense

counsel sought to introduce this evidence to show that there had

been an error in the testing process in the past, and to test

Dr. Haley’s knowledge regarding the lab and the people involved

in the testing process “and her ability to give an opinion as to

whether or not this is a valid litigation package.”

     In United States v. Jackson, 59 M.J. 330 (C.A.A.F. 2004),

this Court dealt with the same report as the one Israel sought

to introduce, although in the context of a discovery request.

In Jackson we found error in the Government’s failure to produce

the report in response to a discovery request and characterized

the report as potentially “critical on a pivotal issue in the

case -– the reliability of the laboratory’s report that

Appellant’s specimen produced a positive result.” Id. at 335-36.

In Jackson, the laboratory testing error occurred less than four



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United States v. Israel Jr., No. 04-0217/AF

months from the test procedure, while in this case it occurred

more than nine months prior to the collection and testing of

Israel’s sample.

     While a period of nine months between a laboratory error

and the testing process may well be too remote in other cases,

under the circumstances of this case it is not. The reliability

of the testing process will always be relevant in drug test

cases to establish the admissibility of the test results.     Where

the Government goes well beyond establishing reliability and

raises the bar by characterizing the testing process as a

“Mercedes” and that the process is the “gold standard” in drug

testing, it opens the door to a broader time frame during which

laboratory errors may be relevant to challenge the testing

process.   For this reason, we find that the military judge

abused his discretion in excluding this report.


Remaining Allegations of Error

     Errors by Ms. Solis

     In May 1997 Ms. Solis, who is an employee of the Brooks

Laboratory, inadvertently annotated a negative specimen as

positive on a report.3   Dr. Haley testified that Ms. Solis was

involved with verifying the test results from Israel’s sample.


     3
       The defense also argued that another employee of the
laboratory, Dr. Papa, was involved in both tests.  Dr. Papa’s
role in the earlier test, however, was unrelated to the error
that occurred.

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United States v. Israel Jr., No. 04-0217/AF

Israel’s counsel sought to use this information to explore the

fact that errors had been made in the past, and to test Dr.

Haley’s knowledge of those errors and the impact that knowledge

had on her testimony.

     We conclude that the military judge did not abuse his

discretion in excluding evidence of the May 1997 error by Ms.

Solis.   The only connection claimed by trial defense counsel

with regard to this evidence was that Ms. Solis was involved

both in the earlier error and with Israel’s test.   However, Ms.

Solis’s only involvement with Israel’s test was in reviewing

data, not annotating specimens and, in any event, there was no

annotation error with Israel’s sample.   The evidence of this

error is too far removed in both subject matter and time to be

relevant to the reliability of the test results.


     Incident Involving Mr. Hatzis

     In November 1999 there was an incident in which Mr. Hatziz

made a testing error and then deliberately falsified documents

to cover up that error.   Following the discovery of this

misconduct, a report called a “Retention Times Summary Report”

was added to the standard litigation package.   Defense counsel

sought to introduce this information to explain why the

“Retention Times Summary Report” was included in the litigation

package even though nothing in that report was at issue at

trial.


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United States v. Israel Jr., No. 04-0217/AF

     The military judge did not abuse his discretion in

excluding evidence of misconduct by Mr. Hatzis that occurred in

November 1999.    This incident was not related to Israel’s test

other than it took place at the same laboratory.   It occurred

one and a half years prior to the testing of Israel’s sample and

Mr. Hatzis was no longer employed at the laboratory when

Israel’s sample was tested.   The evidence was too remote in time

and subject matter to be relevant to challenge Dr. Haley’s

conclusion that the urinalysis test results were valid.


     Log Book Errors

     To test Dr. Haley’s knowledge about lab procedures and

possible security breaches at the laboratory, the defense sought

to introduce evidence of an April 2001 incident in which

individuals were allowed to access areas of the Brooks

Laboratory without escorts or were not properly logged into or

out of the lab.   During the Article 39(a) hearing, Dr. Haley

stated that her only knowledge regarding those incidents related

to some entries on a log where cleaning crew members were logged

in but not properly logged out.    She did not remember that any

of the incidents involved the storage room where specimens were

kept, but only the room where papers were kept.

     Evidence of minor errors in the log book that did not

concern the area where the samples were tested or stored is

neither probative of nor relevant to the reliability of the


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United States v. Israel Jr., No. 04-0217/AF

testing process.   Accordingly, we find that the military judge

did not abuse his discretion in excluding this evidence.


Prejudice

     Where an error constitutes a violation of the defendant’s

constitutional rights, we will reverse unless the “error was

harmless beyond a reasonable doubt.”   Bahr, 33 M.J. at 231

(quoting Van Arsdall, 475 U.S. at 684).    Here, the military

judge limited Israel’s cross-examination in a manner that

precluded him from exploring the possibility that the urinalysis

testing process suffered from irregularities.

     Israel needed to be able to point out possible

irregularities in the testing process to show that there may

have been errors that went undetected, and that the positive

result presented by the prosecution may have been unreliable.

The military judge’s rulings precluded Israel from responding to

the Government’s case because they kept from him the tools he

needed to attack the reliability of the urinalysis testing

process.    While the military judge noted that evidence of errors

in controlled testing procedures was evidence that the process

was working properly, arguments that the process has had

irregularities in the past are better made to the fact-finder.

     Presenting the possibility that the positive result from

the urinalysis test was unreliable was Israel’s best defense to

the Government’s “gold standard” theory of the case.   By


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United States v. Israel Jr., No. 04-0217/AF

precluding any meaningful inquiry into those relevant

irregularities in the process, Israel was deprived of the

opportunity to confront the “gold standard” theory properly.

     “The possibility of a positive result from an error in the

test ... is the worst nightmare of every good servicemember and

a cause of serious concern to the judicial system.”   United

States v. Campbell, 50 M.J. 154, 160 (C.A.A.F. 1999).    It is

impossible to say that the members would not have taken evidence

of irregularities in the testing process and possible errors in

the results into consideration.    Having found that evidence of

the untestable rates at MacDill Air Force Base, the false-

positive blind quality control sample and the Quality Control

Report were erroneously excluded, we conclude that the error was

not harmless beyond a reasonable doubt.


                             DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is reversed.   The finding and sentence are set

aside and the record of trial is returned to the Judge Advocate

General of the Air Force.   A rehearing is authorized.




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