                                   CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                             LIND, KRAUSS, and BORGERDING
                                 Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                            Specialist COREY J. BENNETT
                             United States Army, Appellant

                                      ARMY 20111107

                        Headquarters, III Corps and Fort Hood
                          Gregory A. Gross, Military Judge
                     Colonel Stuart W. Risch Staff Judge Advocate

For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Benjamin W. Hogan, JA (on brief).

                                        28 April 2014

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

KRAUSS, Judge (Part I, Absence Without Leave):

      An officer panel sitting as a special court-martial convicted appellant,
contrary to his pleas, of two specifications of absence without leave (AWOL) and
one specification of wrongful use of marijuana in violation of Articles 86 and 112a,
Uniform Code of Military Justice, 10 U.S.C. §§ 886, 912a (2006) [hereinafter
UCMJ]. The convening authority approved the adjudged sentence of a bad-conduct
discharge, confinement for three months, forfeiture of $978.00 pay per month for
three months, and reduction to the grade of E-1.

      This case is before the court for review under Article 66, UCMJ. Appellant
assigns two errors and raises matter pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982). Appellant’s first assignment of error relative to his AWOL
convictions and his Grostefon submission relative to his wrongful use of marijuana
warrant brief discussion.
BENNETT — ARMY 20111107

                               Absence Without Leave

        Appellant asserts that the evidence is legally and factually insufficient to
support his convictions for AWOL because the government failed to prove that he
was absent from the unit alleged. We agree in part with appellant and will provide
relief in the decretal paragraph.

                                     Background

       Both specifications under Article 86, UCMJ (Specifications 1 and 2 of
Charge I) alleged that appellant was absent from “Rear Detachment, 2-7 Cavalry,
4th Brigade Combat Team (Rear) (Provisional), 1st Cavalry Division (Rear)
(Provisional), located at Fort Hood, Texas” during two different periods of time.
The panel found appellant guilty of Specification 1 of Charge I by exceptions and
substitutions, excepting the words and figures “Rear Detachment, 2-7” and
substituting the figures “2-7,” leaving the specification otherwise untouched. The
panel found appellant guilty of specification 2 of Charge I as charged.

       The evidence at trial established that appellant was assigned to 2-7 Cavalry,
4th Brigade Combat Team (BCT), 1st Cavalry Division (CD) in Iraq, and that on or
about 27 January 2011, upon completion of his authorized Rest and Relaxation leave
in the United States, he went AWOL rather than return to Iraq. The evidence further
established that on or about 21 March 2011, appellant returned to duty at the Rear
Detachment, 2-7 Cavalry on Fort Hood, Texas, but then went AWOL again a few
hours later.

       The documents admitted relevant to appellant’s status during the two periods
alleged in Specifications 1 and 2 of Charge I reflect his absences, first, from
“D Company, 2-7 Cavalry, 4th BCT, 1st CD, Fort Hood, Texas” from 28 January
2011 until return to “Rear Detachment, 2-7 Cavalry, 4th BCT, 1st CD, Fort Hood,
Texas” on 21 March 2011; and second, from “Rear Detachment, 2-7 Cavalry,
4th BCT, 1st CD, Fort Hood, Texas” on 22 March 2011 and remaining so absent
until 26 July 2011.

                                  Law and Analysis

       The government concedes its failure to prove appellant’s absence from the
charged unit in Specification 1 of Charge I, acceding to the contention that 2-7
Cavalry is a completely different unit than 2-7 Cavalry Rear Detachment and
therefore concluding a fatal variance exists requiring disapproval of that finding of
guilt.

      “Under military law, the Government must establish not only that an accused
has been absent without leave but also the organization from which he was absent.”



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United States v. Bowman, 21 U.S.C.M.A. 48, 50, 44 C.M.R. 102, 104 (1971). It is
not asking too much to expect the government to plead and prove the unit from
which an accused is absent without authority. United States v. Baumgardner,
42 C.M.R. 829, 832-33 (A.C.M.R. 1970) (Nemrow, J., dissenting). When the
evidence establishes a sufficient relationship between the unit alleged and the unit
from which appellant was absent, the government generally prevails. See United
States v. Barnes, 22 C.M.R. 439, 442 (A.B.R. 1956); see also United States v. Jack,
7 U.S.C.M.A. 235, 22 C.M.R. 25 (1956). In other words, appellant will prevail
when the evidence shows that the unit alleged is completely different than the unit
proved.

       Appellant’s case is a close one in that documentary evidence and testimony
established a close and organic relationship between “Rear Detachment, 2-7
Cavalry,” located at Fort Hood, and “2-7 Cavalry,” then located in Iraq, while also
establishing that the rear detachment was administered in large part under another
hierarchy of units apparently established for that purpose at Fort Hood. See
Bowman, 21 U.S.C.M.A. 48, 44 C.M.R. 102; Barnes, 22 C.M.R. 439. Because much
of the evidence necessary to establish the relationship between the units in question
was taken separately by the judge in an Article 39a, UCMJ, session, and never
presented to the panel, 1 under the circumstances of this case, we accept the
government’s concession to set aside the finding of guilty of Specification 1 of
Charge I.

       The evidence as to Specification 2 of Charge I is sufficient to affirm that
finding of guilty. Testimony from the rear detachment commander and acting first
sergeant, as well as the documentary evidence, sufficiently establish that appellant
was absent from the unit alleged on the dates alleged. Appellant returned to the 2-7
Cavalry Rear Detachment at Fort Hood from his first period of AWOL, was taken
under control by responsible members of that unit, and was understood to be a
member of and absent from that unit during the relevant period of time. See United
States v. Vidal, 45 C.M.R. 540, 542-43 (A.C.M.R. 1972); Bowman, 21 U.S.C.M.A. at
50, 44 C.M.R. at 104; Jack, 7 U.S.C.M.A. 235, 22 C.M.R. 25.

      Senior Judge LIND and Judge BORGERDING concur in Part I.



1
 Recognizing that while the issue of whether a variance is material and fatal is a
question of law, what unit the accused is absent from is a question of fact. See
United States v. Teffeau, 58 M.J. 62, 66-67 (C.A.A.F. 2003); Bowman,
21 U.S.C.M.A. at 50, 44 C.M.R. at 104; United States v. Murrell, 50 C.M.R. 793,
795 (A.C.M.R. 1975).




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BORGERDING, Judge (Part II, Wrongful Use of Marijuana and Sentence):

                      Sixth Amendment Right to Confrontation

       Appellant also alleges in his Grostefon matters, inter alia, that his Sixth
Amendment right to confrontation was violated when the military judge: (1) allowed
the testimony of a government expert who did not personally perform any of the
tests on appellant’s urine; and (2) admitted Prosecution Exhibit (Pros. Ex.) 7, the
drug testing laboratory report, which contained testimonial hearsay. We find that
the expert’s testimony did not violate appellant’s right to confrontation because she
properly relied on machine-generated data when giving her independent expert
opinion. We also find that while the military judge erred by failing to redact
portions of Pros. Ex. 6 and 7 that contained testimonial hearsay, such errors were
harmless beyond a reasonable doubt.

                                     Background

        The government’s case with regard to appellant’s wrongful use of marijuana
consisted of the following evidence. First, in a pretrial statement made to his
company commander, appellant admitted he had used marijuana approximately one
to two weeks prior to 26 July 2011, the date he returned from AWOL status. 2
Second, the government called Dr. CO, the Chief of Certification and Litigation at
the Tripler Army Medical Center Forensic Toxicology Drug Testing Laboratory
[hereinafter Tripler], who testified that, in her expert opinion, a laboratory document
packet, which contained primarily machine-generated data, indicated that a urine
sample with the laboratory accession number (LAN) T11H0085019 tested above the
DOD cutoff level, and therefore “positive” for tetrahydracannabinol (THC), an
active ingredient of marijuana or the cannabis family. Third, Pros. Ex. 6, a
“Specimen Custody Document” contained on Department of Defense Form (DD
Form) 2624, indicated that this LAN number was matched with appellant’s social
security number. Finally, the government offered the laboratory document packet
itself, absent the cover certification page, as Pros. Ex. 7. The military judge
admitted both Pros. Ex. 6 and 7.

                                  Law and Analysis

       The Sixth Amendment provides: “In all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses against him.” U.S.
Const. amend. VI. “Accordingly, no testimonial hearsay may be admitted against a

2
 At trial, appellant objected to the admission of this statement based on a lack of
corroboration. Military Rule of Evidence [hereinafter Mil. R. Evid.] 304(g).




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criminal defendant unless: (1) the witness is unavailable, and (2) the witness was
subject to prior cross-examination.” United States v. Blazier [hereinafter Blazier II],
69 M.J. 218, 222 (C.A.A.F. 2010) (citing Crawford v. Washington, 541 U.S. 36, 53-
54 (2004)). A statement is testimonial if “made under circumstances which would
lead an objective witness reasonably to believe that the statement would be available
for use at a later trial.” United States v. Tearman, 72 M.J. 54, 58 (C.A.A.F. 2013),
cert. denied, 134 S.Ct. 268 (2013) (quoting United States v. Sweeney, 70 M.J. 296,
301 (C.A.A.F. 2011)). 3 Under both the Confrontation Clause and the rules of
evidence, “machine-generated data and printouts are not statements and thus not
hearsay—machines are not declarants—and such data is therefore not ‘testimonial.’”
Blazier II, 69 M.J. at 224. “[A]n expert may, consistent with the Confrontation
Clause and the rules of evidence, (1) rely on, repeat, or interpret admissible and
nonhearsay machine-generated printouts of machine-generated data, and/or (2) rely
on, but not repeat, testimonial hearsay that is otherwise an appropriate basis for an
expert opinion, so long as the expert opinion arrived at is the expert’s own.” Id. at
222 (citations omitted).

                                       Waiver

       As an initial matter, we note there were three separate occasions when defense
counsel conceded to the military judge that Dr. CO could testify as to her opinion of
whether or not the sample with LAN T11H0085019 tested positive for THC. 4
Defense counsel’s only objections with regard to Dr. CO’s testimony were based on
“foundation” and the fact that “it would be a violation of [the] confrontation
[clause]” for Dr. CO to testify that LAN T11H0085019 matched appellant’s social
security number. Defense counsel argued Dr. CO could not rely on the data in Pros.
Ex. 7 to give her “expert opinion” that the LAN was connected to appellant’s social
security number. The military judge agreed with defense counsel and did not allow

3
 We recognize that “[t]he language used by the Supreme Court to describe whether
and why a statement is testimonial is “far from fixed.” See generally Tearman,
72 M.J. at 58-59 (comparing several definitions of “testimonial” used by the
Supreme Court).
4
  The dissent avers that defense counsel “acquiesced only to what would amount to
proper opinion testimony sufficient to preserve the matter for appeal.” United States
v. Bennett, ARMY 20111107, slip op. at 13 (Army Ct. Crim. App. 28* Apr. 2014)
(mem. op.) (Krauss, J., dissenting). However, even after hearing Dr. CO’s
testimony, defense counsel still did not object, which further supports the conclusion
that the defense did not find her testimony as to the positive test result
objectionable.

* Corrected




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BENNETT — ARMY 20111107

Dr. CO to testify that LAN T11H0085019 corresponded with appellant’s social
security number.

       Defense counsel objected to Pros. Ex. 7 (the laboratory document packet) on
two separate occasions, but he never specifically objected to the admission of Bates-
stamped page 018. Rather, defense counsel first objected to the inclusion of the
cover memorandum in Pros. Ex. 7, which the military judge properly excluded as
testimonial hearsay. Second, when Pros. Ex. 7 was offered absent the cover
memorandum, defense counsel’s only objection was based on relevance, whereupon
he argued there was no longer any connection between appellant and the data
contained in Pros. Ex. 7. However, defense counsel conceded that if trial counsel
was able to establish the connection at a later time, he would withdraw the
objection. The military judge allowed Pros. Ex. 7 to be admitted into evidence
absent the cover memorandum.

       Defense counsel also objected to Pros. Ex. 6 (the “Specimen Custody
Document,” DD Form 2426) “pursuant to Sweeny [sic]” and the “best evidence rule.”
Specifically, defense counsel argued that the act of assigning the LAN to appellant’s
social security number was a testimonial statement, requiring the person who
assigned the LAN to be produced at trial. 5 The military judge admitted Pros. Ex. 6
into evidence over defense objection only after properly redacting the “THC” result
written in Block G of the form. Pros. Ex. 6 showed the connection between the LAN
and appellant’s social security number (and thus the connection between Pros. Ex. 7
and appellant). Defense counsel never objected to the certification statement in
Block H of Pros. Ex. 6.

       Despite the lack of specific objections at trial, we decline to apply waiver
under the facts of this case. “[T]here is a presumption against the waiver of
constitutional rights, and for a waiver to be effective it must be clearly established
that there was an intentional relinquishment or abandonment of a known right or
privilege.” Sweeney, 70 M.J. at 303-04 (quoting United States v. Harcrow, 66 M.J.
154, 157 (C.A.A.F. 2008)). The record in this case does not support such a finding
of intentional relinquishment of a known right because trial defense counsel did
make objections to Dr. CO’s testimony and Pros. Ex. 6 and 7 based on the
Confrontation Clause, albeit not the specific objections of which appellant now
complains. Moreover, the entire defense strategy with respect to the Article 112(a),

5
  Appellant raises this same argument on appeal in his Grostefon matters. We find
the military judge properly overruled the defense’s objection. The LAN number was
assigned prior to any testing. Thus, it was done “under circumstances, which, taken
as a whole establish that [it was] made for an administrative rather than an
evidentiary purpose.” Tearman, 72 M.J. at 60 (citing Sweeney, 70 M.J. at 302).




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UCMJ, charge was to object to any evidence that corroborated appellant’s
confession, and thus we cannot find that defense counsel’s failure to object to Dr.
CO’s opinion, to the certification in Block H of Pros. Ex. 6, or to Bates-stamped
page 018 in Pros. Ex. 7 was a “strategic trial decision.” Id. at 304. See generally
Harcrow, 66 M.J. at 157-58. Therefore, we will conduct further analysis under the
plain error standard of review. See Sweeney, 70 M.J. at 304; Harcrow, 66 M.J. at
158.

       Plain error occurs when: (1) there was error, (2) the error was plain and
obvious, and (3) the error materially prejudiced a substantial right of appellant.
Sweeney, 70 M.J. at 304 (citing Harcrow, 66 M.J. at 158). “Where, as here, the
alleged error is constitutional, the prejudice prong is fulfilled where the Government
cannot show that the error was harmless beyond a reasonable doubt. Id. (citing
Harcrow, 66 M.J. at 160).

                                Dr. CO’s Testimony

       Under the principles articulated by our superior court in Blazier II, we find
Dr. CO’s testimony established that her independent expert opinion was based on a
review of and reliance upon the non-testimonial, machine-generated data contained
in the laboratory document packet. Accordingly, we find no error as to the
admission of her testimony.

       The military judge recognized Dr. CO as an expert in both pharmacology and
forensic toxicology as it pertains to drug testing in the Department of Defense
system. Trial defense counsel offered no objection to this recognition. As the Chief
of Certification, Dr. CO was in charge of the individuals who reviewed the data
coming out of the Tripler laboratory, and as the Chief of Litigation, she was the
chief expert witness for the laboratory as well as the official records custodian. Dr.
CO testified that she was familiar with the procedures for receipt and processing of
samples at Tripler and she was able to explain to the panel the laboratory procedure
for intake and processing of these samples.

      Dr. CO later testified that Pros. Ex. 7 (the laboratory document packet) “is
produced by our laboratory” and “has a hard copy or [sic] the computer generated
and any documents that pertain to the testing of a specific specimen.” She then
explained how most forensic drug laboratories (including Tripler) test for the
presence of THC in urine samples. Specifically, she told the panel that the first test
conducted on a sample is a screening analysis used to “get rid of all of the
negatives,” followed by a “confirmation” done by gas chromatography mass
spectrometry (GCMS).

       Dr. CO then relied upon the non-testimonial, machine-generated data in Pros.
Ex. 7 to explain to the panel the specific tests done on the sample with LAN



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T11H0085019. Although trial counsel’s question prompting this explanation was
inartful—“And based upon the screening and the gas chromatography and mass
spectrometry, GCMS results, do you recall what those results for Prosecution exhibit
7?”—we find that Dr. CO’s answer was her independent expert opinion of the test
results based on the non-testimonial, machine-generated data contained in Pros. Ex.
7. Instead of simply repeating that the GCMS test showed a positive result for THC,
she carefully explained that the sample with LAN T11H0085019 underwent three
separate tests, as well as the differences between these tests. The first test was a
screening, which “came up presumptively positive.” She testified that because of
the presumptive positive, a second screening test was done which also came out
presumptively positive. She then explained that a third test was done, the GCMS or
confirmation test, which showed a positive result. Finally, Dr. CO testified after
reviewing the laboratory document packet, that LAN T11H0085019 had
76 nanograms per milliliter, which was above the DoD cutoff for THC. We find that
all of the information Dr. CO needed to come to these conclusions is found in the
non-testimonial, machine-generated data contained in Pros. Ex. 7 and that she
properly relied on this data to give her independent expert opinion. See Mil. R.
Evid. 702-703; Blazier II, 69 M.J. at 224-26. While not a model of perfection, Dr.
CO’s testimony meets the requirements of Blazier II. See generally Tearman,
72 M.J. 54.

                           Prosecution Exhibits 6 and 7

       Although we find no error in Dr. CO’s testimony, we do find that the military
judge committed plain error in not redacting the certification portion of Pros. Ex. 6
(Block H of the “Specimen Custody Document,” DD Form 2624) for similar reasons
to those articulated in Sweeney and Tearman. Sweeney, 70 M.J. at 304-05; Tearman,
72 M.J. at 61. While the military judge correctly redacted the “THC” result notation
in Block G, the signed certification in Block H of Pros. Ex. 6 still contained
inadmissible testimonial hearsay because it indicated “the laboratory results . . .
were correctly determined by proper laboratory procedures, and they are correctly
annotated.” The individual who signed the certification did not testify at trial
despite providing a “formal, affidavit-like statement of evidence.” See Sweeney,
70 M.J. at 304. We also agree with appellant that the unredacted Bates-stamped
page 018 in Pros. Ex. 7 contains inadmissible testimonial hearsay because it plainly
states appellant’s LAN tested “positive” for THC and this information was certified
by two individuals, who also did not testify at trial. See Sweeney, 70 M.J. at 304-05;
Tearman, 72 M.J. at 61.

      However, we find these two erroneous admissions to be harmless beyond a
reasonable doubt. “In the context of the erroneous admission of testimonial hearsay,
our harmless beyond a reasonable doubt inquiry focuses on whether ‘there is a
reasonable possibility that the evidence complained of might have contributed to the
conviction.’” Id. (citing Blazier II, 69 M.J. at 226-27 (quoting Chapman v.



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California, 386 U.S 18, 23 (1967)). To make this determination, we apply the
balancing test found in Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). See
Tearman, 72 M.J. at 62; Sweeney, 70 M.J. at 306.

       The first Van Arsdall factor includes a consideration of “the importance of the
unconfronted testimony in the prosecution’s case.” Sweeney, 70 M.J. at 306 (citing
Van Arsdall, 475 U.S. at 684); Tearman, 72 M.J. at 62. We are confident that these
erroneously admitted portions of Pros. Ex. 6 and 7 were unimportant in relation to
the rest of the evidence considered by the panel. In her testimony, Dr. CO made
absolutely no reference to either the certification in Pros. Ex. 6 or to Bates-stamped
page 018 of Pros. Ex. 7 in her testimony, as opposed to the expert in Tearman, who
made a “passing reference” to the “THC” notation in Block G of DD Form 2624.
See Tearman, 72 M.J. at 62. We find that, similar to the expert testimony in
Tearman, “the overwhelming majority of [Dr. CO’s] testimony was squarely within
the parameters” articulated in Blazier I and Blazier II in that she relied only on the
non-testimonial portions of Pros. Ex. 7 and her own knowledge and experience as a
basis for her opinion. Id.

      The second Van Arsdall factor requires consideration of whether the
erroneously admitted testimony was cumulative with other evidence presented.
Sweeney, 70 M.J. at 306 (citing Van Arsdall, 475 U.S. at 684); Tearman, 72 M.J. at
62-63. We find the information in both the certification in Block H of Pros. Ex. 6
and Bates-stamped page 018 in Pros. Ex. 7 is merely cumulative with Dr. CO’s
testimony. Dr. CO’s independent expert opinion was that the specimen with LAN
T11H0085019 was positive for THC. In coming to this conclusion, as we found
above, Dr. CO, like the expert in Tearman, relied on the nontestimonial, machine-
generated data contained in the rest of Pros. Ex. 7. See Tearman, 72 M.J. at 62-63.
Similarly, Dr. CO testified based on her personal knowledge of the Tripler
laboratory procedures about “quality assurance,” which she stated were “steps taken
by our laboratory to make sure that the wrong results are not reported out.” She
described in detail the “internal and external quality assurances,” which included:
“both blind and open quality controls” to ensure “the instrumentation is working
properly as well as our personnel are not switching specimens on us;” the fact that
multiple tests are conducted on the same sample to ensure accurate results; and
inspections of the laboratory conducted three times a year by civilian and military
board-certified inspectors and toxicologists.

      The third Van Arsdall factor explores the existence of corroborating evidence.
Sweeney, 70 M.J. at 306 (citing Van Arsdall, 475 U.S. at 684); Tearman, 72 M.J. at
62-63. We find the testimonial portions of Pros. Ex. 6 and 7 were also
independently corroborated by Dr. CO’s testimony. With respect to Pros. Ex. 6,
Dr. CO testified that she was the Chief of Certification and Litigation at Tripler; that
she was “in charge of a group of individuals who review the data coming out of the
laboratory for technical, scientific, and forensic acceptability;” and that she was also



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“the official records custodian of the laboratory.” Thus, her testimony corroborated
the certification in Block H of Pros. Ex. 6 with “her own imprimatur of authenticity
and reliability.” Tearman, 72 M.J. at 63 (citation omitted). Indeed, she testified
there was nothing “amiss” with Pros. Ex. 6, save for the fact that “Ms. [CL] forgot
to put the purpose [for her placement of the specimen in the freezer] which is to
place it back into storage.” Dr. CO also independently corroborated the positive
THC notation in Bates-stamped page 018 of Pros. Ex. 7 when she testified the
specimen with LAN T11H0085019 tested positive for THC at “76 nanograms per
milliliter,” which was above the DOD cutoff for THC at “50 nanograms per liter.”

       The fourth Van Arsdall factor requires us to analyze the extent of
confrontation permitted. Sweeney, 70 M.J. at 306 (citing Van Arsdall, 475 U.S. at
684); Tearman, 72 M.J. at 63. Since the declarants of the testimonial portions of
Pros. Ex. 6 and 7 did not testify at trial, appellant did not have the opportunity to
cross-examine them. As in Tearman, “[w]hile this factor would weigh against a
finding that the admission of the testimonial statements was harmless beyond a
reasonable doubt, it is far outweighed by the other four Van Arsdall factors.”
72 M.J. at 63 n.15. Thus, we find this factor alone does not lead to the conclusion
that the testimonial evidence “might have contributed to the conviction.” Id. at 63
(quoting Chapman, 386 U.S. at 23).

       Finally, the fifth factor requires us to consider the strength of the
government’s case. Sweeney, 70 M.J. at 306 (citing Van Arsdall, 475 U.S. at 684);
Tearman, 72 M.J. at 63. We find the fifth Van Arsdall factor weighs against
appellant because the government’s case for this specification was strong. Apart
from Confrontation Clause objections, the defense identified no weaknesses in either
the testing itself or in Dr. CO’s testimony. As in Tearman, “although [Dr. CO]
could not cure the Confrontation Clause error by serving as a ‘surrogate witness,’”
appellant did have the opportunity to cross-examine her. 72 M.J. at 63 (citing
Blazier II, 69 M.J. at 222, 224). Appellant declined to do so in this case. In fact, as
noted above, defense counsel admitted that Dr. CO could testify as to the positive
THC result for LAN T11H0085019 and he did not object to her qualifications as an
expert witness. Moreover, appellant confessed to his use of marijuana in a sworn
statement given to his company commander. This confession was corroborated by
Dr. CO’s independently admissible expert testimony.

       Overall, an expert witness relied on machine-generated data, as well as her
personal knowledge of the drug testing procedures at Tripler, to give her
independent opinion that LAN T11H0085019 tested above the DoD cutoff level for
THC; the expert did not repeat or highlight any of the wrongfully admitted
testimonial statements in Pros. Ex. 6 and 7; and the expert’s testimony and
appellant’s confession rendered the impact of these inadmissible portions of Pros.
Ex. 6 and 7 “cumulative and de minimis.” Id. at 63. We therefore find there is “no




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reasonable possibility” that this evidence “might have contributed to [appellant’s]
conviction.” Id. (quoting Chapman, 386 U.S. at 23).

                                   CONCLUSION

      The finding of guilty of Specification 1 of Charge I is set aside and dismissed.
The remaining findings of guilty are AFFIRMED.

      Reassessing the sentence on the basis of the error noted, the entire record, and
applying the principles of United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986)
and the factors set forth in United States v. Winckelmann, 73 M.J. 11, 15-16
(C.A.A.F. 2013), we are confident the panel would have adjudged the same sentence
absent the finding of guilty of Specification 1 of Charge I.

       In evaluating the Winckelmann factors, there is no dramatic change in the
penalty landscape because appellant’s maximum punishment was capped at the
jurisdictional limit of a special court-martial: a bad-conduct discharge, confinement
for one year, forfeiture of two-thirds pay per month for twelve months, and
reduction to the grade of E-1. 73 M.J. at 15-16; UCMJ art. 19; R.C.M. 201(f)(2)(B);
R.C.M. 1003(b)(4). Furthermore, appellant remains convicted of another AWOL and
wrongful use of marijuana. The gravamen of the offenses has not changed, and
under the facts of this case, the evidence supporting the dismissed AWOL
specification remains admissible as aggravation directly related to the remaining
AWOL. Winckelmann, 73 M.J. at 16. Finally, this court reviews the records of a
substantial number of courts-martial involving AWOL and drug offenses and we
have extensive experience with the level of sentences imposed for such offenses
under various circumstances. Id.

       The sentence is AFFIRMED. All rights, privileges, and property, of which
appellant has been deprived by virtue of that portion of the findings set aside by this
decision, are ordered restored.

      Senior Judge LIND concurs.

KRAUSS, Judge, dissenting from Part II:

       I agree with appellant’s assertion that the government failed to adequately
corroborate his admission of marijuana use and therefore respectfully dissent from
the majority’s decision in that respect. Evidence corroborating an admission must
be independently admissible. See United States v. Faciane, 40 M.J. 399, 403-04
(C.M.A. 1994); see also United States v. Duvall, 47 M.J. 189, 190-91 (C.A.A.F.
1997) (accepting the propriety of establishing independent grounds for the admission
of corroborating evidence despite the lower court’s conclusion otherwise). Here, the
only thing the government accomplished, as far as proof beyond appellant’s



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admission, was admission of inadmissible testimonial hearsay in the form of a
laboratory report result reflecting appellant’s positive urinalysis for the presence of
THC.

      The expert called to testify was never asked and never testified to the
independent opinion necessary to serve as a basis upon which to corroborate the
appellant’s admission or otherwise convict the appellant. Instead, the government
merely secured the expert’s impermissible, or at least inadequate, repetition of
otherwise inadmissible testimonial hearsay. See United States v. Blazier [hereinafter
Blazier II], 69 M.J. 218, 225 (C.A.A.F. 2010).

       Much like the case in United States v. Porter, the expert here never
“specifically interpret[ed] or rel[ied] on the machine-generated portions of the
[laboratory report] to independently conclude that [appellant’s] sample had tested
positive for . . . THC.” 72 M.J. 335, 338 (C.A.A.F. 2013). Rather, here the
government asked the witness whether “based upon the screening and the gas
chromatography and mass spectrometry, GCMS results, [she] recall[ed] what those
results for Prosecution Exhibit 7 for identification [were] [sic].” (emphasis added).
The expert then merely reported the results described by the laboratory packet. The
government then ultimately asked: “So your expert opinion is that lab packet
showed a positive result?” To which the expert witness answered: “Yes. It tested
positive three times as mandated by the DoD and we were – we verified that the
chain of custody was intact and we called it positive for THC.” (emphasis added). 6

        It is apparent from the expert’s testimony as a whole that she made reference
to the royal “we” as she was not present at any of the testing and was never asked
nor ever offered her own independent opinion of what the machine-generated data
revealed. The description she provided of her duties is telling: “As a Chief of
Certification, I am in charge of a group of individuals who review the data coming
out of the laboratory for technical, scientific, and forensic acceptability. They are
the people who actual [sic] call the urinalysis negative or positive. As chief of
litigation, I am the chief expert witness for the laboratory as well as the official
records custodian of the laboratory.” (emphasis added). And, as the majority notes,
she was recognized “as an expert in both pharmacology and forensic toxicology as it
pertains to drug testing in the DoD system.” (emphasis added). In other words, this
expert’s qualification on the record set up her testimony that she reviewed the lab’s

6
  The government later asked whether “based on the results – the test results within
that laboratory packet then, can you say with certainty that the person provided that
sample and just used marijuana within the previous 30 days?” To which the expert
ultimately stated: “Yes,” and proceeded to repeat the nanogram level reported in the
packet and what that means.




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BENNETT — ARMY 20111107

work and vouches that it was in accordance with required procedures. This method
of proof is insufficient. Blazier II, 69 M.J. at 225. 7 The defense lodged sufficient
objection to admission of the report, and acquiesced only to what would amount to
proper opinion testimony sufficient to preserve the matter for appeal, and therefore,
I find the evidence insufficient to affirm Charge II and its specification. See Porter,
72 M.J. 335; United States v. Tearman, 72 M.J. 54 (C.A.A.F. 2013); Blazier II,
69 M.J. 218; United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008). 8


                                        FOR THE COURT:




                                        MALCOLM
                                        MALCOLM H.  H. SQUIRES,
                                                       SQUIRES, JR.
                                                                JR.
                                        Clerk of Court
                                        Clerk of Court




7
  It may be that this witness could have been qualified to render the required
independent opinion. But she was never asked whether her training, expertise and
education equip her to tell us what the machine-generated scientific information,
represented essentially by the graphs and numbers in Prosecution Exhibit 7 on pp.
6-8, 13-15, and 20-37, mean. She also was not asked whether she reviewed that
information and had her own opinion about what that information tells us. In this
respect, the judge did not adequately fulfill his role as “gatekeeper.” See Blazier II,
69 M.J. at 225 (citations omitted) (“[L]ack of knowledge or unwarranted reliance on
the work of others may make an expert opinion inadmissible: the military judge, in
his capacity as ‘gatekeeper,’ must determine whether the opinion is ‘based upon
sufficient facts or data’ and is the product of ‘reliable principles and methods’
reliably applied to the case.”).
8
 Even if defense counsel’s objections were deemed insufficiently clear, the
admission of the laboratory packet and expert testimony for the purpose of
corroboration and conviction constitutes plain error in light of United States v.
Sweeney, 70 M.J. 296 (C.A.A.F. 2011), decided four months prior to appellant’s
court-martial, and Blazier II, 69 M.J. 218. See also Porter, 72 M.J. 335; Tearman,
72 M.J. 54; Harcrow, 66 M.J. 154.




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