                          UNITED STATES, Appellee

                                        v.

                  Michael J. MAHONEY, Master Sergeant
                       U.S. Air Force, Appellant

                                  No. 02-0270

                            Crim. App. No. 34209

       United States Court of Appeals for the Armed Forces

                       Argued February 25, 2003

                       Decided June 25, 2003

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

                                    Counsel

For Appellant: Major Kyle R. Jacobson (argued); Colonel Beverly
B. Knott and Major Terry L. McElyea (on brief); and Major
Jeffrey A. Vires.

For Appellee: Major John D. Douglas (argued); Colonel LeEllen
Coacher and Lieutenant Colonel Lance B. Sigmon (on brief); and
Colonel Anthony P. Datillo, Major Jennifer R. Rider, and Captain
Adam Oler.

Amicus Curiae: Claudia N. McClinton (law student)(argued); Eric
L. Muller, Esq. (supervising attorney) and Heather A. Maddox
(law student) – For the University of North Carolina School of
Law.

Military Judge:     Patrick M. Rosenow




     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Mahoney, 02-0270/AF


      Chief Judge CRAWFORD delivered the opinion of the Court.

      Contrary to his plea, Appellant was convicted by an officer

and enlisted panel of wrongfully using cocaine over a 20-day

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

Justice [hereinafter UCMJ], 10 U.S.C. § 912a (2000).            The

convening authority approved only so much of the sentence as

provided for a bad-conduct discharge, reduction to senior airman

(E-4), and partial forfeiture of pay for six months.            The Air

Force Court of Criminal Appeals affirmed the findings and

sentence in an unpublished opinion.         United States v. Mahoney,

No. ACM 34209 (A.F. Ct. Crim. App. Dec. 13, 2001).            We granted

review of the following issues:

      I.    WHETHER TRIAL COUNSEL FAILED TO ENGAGE IN GOOD
            FAITH EFFORTS TO OBTAIN AND DISCLOSE DEROGATORY
            DATA CONCERNING THE GOVERNMENT EXPERT WITNESS
            FROM FILES AT THE AIR FORCE DRUG TESTING
            LABORATORY AS REQUIRED BY UNITED STATES V.
            WILLIAMS, 50 M.J. 436 (C.A.A.F. 1999).

      II.   WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS
            ERRED BY REFUSING TO ALLOW APPELLATE DEFENSE
            COUNSEL TO EXAMINE THE POTENTIALLY EXCULPATORY
            LETTER CONCERNING THE GOVERNMENT EXPERT WHEN
            GOVERNMENT APPELLATE COUNSEL HAVE REVIEWED THE
            SAME LETTER.

For the reasons set forth below, we reverse.1



1
  We heard oral argument in this case at the University of North Carolina
School of Law, Chapel Hill, North Carolina, as part of the Court's "Project
Outreach." This practice was developed as part of a public awareness program
to demonstrate the operation of a Federal Court of Appeals and the quality of
the military criminal justice system.



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United States v. Mahoney, 02-0270/AF




                                FACTS

     The charge against Appellant resulted from a random

urinalysis conducted on September 20, 1999, at Lackland Air

Force Base (AFB), Texas.   Appellant’s urine sample tested

positive for the presence of cocaine metabolites at a level of

163 nanograms per milliliter (ng/ml).    The sample was then

retested, exhibiting cocaine metabolites present at a level of

156 ng/ml.   The Department of Defense has designated 100 ng/ml

as the quantitative threshold for a positive test.

     The Government’s case was based on a random urinalysis,

with no other independent evidence of cocaine use.    The defense

strategy was to attack the procedural regularity and reliability

of the urinalysis.

     During Appellant’s trial, the Government called Dr. Philip

Mobley, the Laboratory Certifying Official at the Air Force Drug

Testing Lab, Brooks AFB, Texas, as an expert in chemistry,

toxicology, and pharmacology.   The lab examines approximately

30,000 urine samples per month.   One of Dr. Mobley’s

responsibilities is to review the litigation package compiled

for each urine sample -- an assembly of documents relating to

the sample’s testing and results.     Two of the Government’s chief

exhibits at trial were the litigation packets relating to

Appellant’s initial urinalysis and retest, about which trial


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United States v. Mahoney, 02-0270/AF


counsel extensively questioned Dr. Mobley in order to prove

Appellant’s drug use.

     After the trial, defense counsel learned of the existence

of a letter criticizing Dr. Mobley’s job performance and

questioning the value of his continued employment.   The letter

was written by Lieutenant Colonel (LtCol) Mark R. Ruppert,

command staff judge advocate (SJA) at Peterson AFB, Colorado, to

the SJA, 14th Air Force.   The letter was prompted in part by Dr.

Mobley’s testimony in two prior courts-martial, and included the

following language:

          My first negative experience with Dr. Mobley was
     during the general court-martial of US v. SSgt Castro
     in Aug 98. Dr. Mobley testified for the Government,
     but the circuit trial counsel and court members gave
     me unsolicited feedback that his testimony showed an
     obvious lack of enthusiasm or conviction about the Air
     Force’s drug testing program. In addition to the
     attitude that he really didn’t care much about the
     program, detracting from the validity of the
     urinalysis result, he left Peterson AFB while subject
     to recall, requiring a stipulation of testimony to
     court members’ questions later in the trial.

     . . . Of particular concern to me, as a former circuit
     trial counsel who has prosecuted many urinalysis
     cases, was Dr. Mobley’s testimony about drug use
     studies and the value of those studies to forensic
     toxicologists. . . . [M]y reading [of his testimony]
     is that he has criticized the value of studies
     normally used by forensic toxicologists to draw
     conclusions and render opinions based on certain fact
     scenarios - to the point he could no longer credibly
     rely on these studies as an expert witness for the
     Government. If that is his honestly held opinion, I
     question why the Air Force would want to employ
     someone undercutting the value of the studies relied
     upon by other forensic toxicologists[.]


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United States v. Mahoney, 02-0270/AF


     Given the contrast between Dr. Mobley’s positive testimony

about the lab processes contributing to Appellant’s charge, and

his apparently negative testimony in the previous courts-martial,

defense counsel questioned the impact of the letter on Dr.

Mobley’s change of perspective.    Accordingly, defense counsel

requested that the Brooks AFB legal office provide him with a

copy of the letter, along with any associated materials, noting

that the letter had not been disclosed despite the defense’s pre-

trial request for “all information potentially affecting the

credibility of the Government’s prospective witnesses.”      The base

legal office responded that all materials regarding Dr. Mobley in

its possession had been previously provided to the defense, and

that the office was unaware of the letter’s existence until after

receipt of defense counsel’s request for it.

     After his conviction, Appellant moved for production of the

letter and all associated documents on appeal before the Air

Force Court of Criminal Appeals.       The Air Force Court ordered

the Government to provide the letter and attachments for an in

camera review.   After reviewing the documents, the Air Force

Court ordered all documents produced pursuant to its orders to

be sealed.   The letter was not provided to Appellant.

     After considering Appellant’s petition for grant of review,

this Court ordered that appellate defense counsel be permitted

to examine the materials sealed by order of the Air Force Court,


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United States v. Mahoney, 02-0270/AF


absent the Government’s showing of good cause that so doing

could be expected to damage the public interest or a protected

privacy interest.    United States v. Mahoney, 57 M.J. 432

(C.A.A.F. 2002).    The Government did not challenge the order in

this regard, and appellate defense counsel has since examined

the materials originally sealed.        Accordingly, Issue II is moot.

                                DISCUSSION

       The lower court determined that because the Government did

not know of the letter until informed by defense counsel after

trial, there was “no bad faith on the part of the prosecution,”

and found that even if the Government did breach its obligation,

there was no prejudice.    Mahoney, No. ACM 34209, slip op. at

3-4.    The court further noted that even assuming error,

“[A]ppellant was not materially prejudiced,” and “no reasonable

probability existed that the result of the proceeding would have

been different.”    Id. at 4.    We disagree.   The Government’s

failure to provide the letter to the defense before trial

violated Appellant’s constitutional right to due process of law.

Brady v. Maryland, 373 U.S. 83 (1963).

       We note at the outset that even if trial counsel did not

know about the letter, it would have become known to him “by the

exercise of due diligence.”      Rule for Courts-Martial

701(a)(2)(B).    As the Supreme Court restated in Strickler v.

Greene, “the individual prosecutor has a duty to learn of any


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United States v. Mahoney, 02-0270/AF


favorable evidence known to others acting on the government’s

behalf in this case, including police.”      527 U.S. 263, 281

(1999)(quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995)).       A

command SJA wrote the letter to his superior in the legal chain

of technical supervision, criticizing the Government’s key

witness.   The letter had been disseminated widely at the Drug

Testing Laboratory and was the subject of formal training for

“DTL experts.”   It had been transmitted to various offices in

the Air Force legal community.   The Government’s key witness,

Dr. Mobley, was himself aware of the letter, as he wrote a

rebuttal to it upon receipt.   Thus, appropriate Government

inquiry of Dr. Mobley should have led to discovery of the

letter.

     “The military, like the Federal and state systems, has

hierarchical sources of rights,” and chief among those sources

is the Constitution of the United States.      United States v.

Lopez, 35 M.J. 35, 39 (C.M.A. 1992).    In rendering our

decisions, we look to the highest source of authority, “unless a

lower source creates rules that are constitutional and provide

greater rights for the individual.”    Id.

     The constitutional guarantee of due process requires that

“criminal defendants be afforded a meaningful opportunity to

present a complete defense.”   California v. Trombetta, 467 U.S.

479, 485 (1984).   Accordingly, the prosecution must disclose to


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United States v. Mahoney, 02-0270/AF


the defense “evidence favorable to an accused . . . where the

evidence is material either to guilt or to punishment.”      Brady,

373 U.S. at 87.    “Favorable” evidence under Brady includes

“impeachment evidence . . . that, if disclosed and used

effectively, . . . may make the difference between conviction

and acquittal.”    United States v. Bagley, 473 U.S. 667, 676

(1985)(citations omitted).    However, like other forms of

exculpatory evidence, impeachment evidence is “material” to

guilt or punishment “only if there is a reasonable probability

that, had the evidence been disclosed to the defense, the result

of the proceeding would have been different.”    Id. at 682.

Under the “reasonable probability” standard of materiality,

“[t]he question is not whether the defendant would more likely

than not have received a different verdict with the evidence,

but whether in its absence he received a fair trial.”    Kyles,

514 U.S. at 434.    Therefore, “[a] ‘reasonable probability’ of

a different result is . . . shown when the government’s

evidentiary suppression ‘undermines confidence in the outcome of

the trial.’”   Id. (quoting Bagley, 473 U.S. at 678).    Failing to

disclose such evidence is a due process violation “irrespective

of the good faith or bad faith of the prosecution.”     Brady, 373

U.S. at 87.    This constitutional standard controls our analysis

of Appellant’s case.




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United States v. Mahoney, 02-0270/AF


     In a prosecution for wrongful use of illegal drugs under

Article 112a, “[k]nowledge of the presence of the controlled

substance is a required component of [wrongful] use.”    Manual

for Courts-Martial, United States (2002 ed.) Part IV, para.

37.c.(10).    If the only evidence of drug use consists of test

results identifying the presence of the drug in the accused’s

body, the government must also introduce expert testimony

interpreting the tests or some other lawful substitute.    See

United States v. Ford, 23 M.J. 331 (C.M.A. 1987); United States

v. Murphy, 23 M.J. 310 (C.M.A. 1987); United States v. Harper,

22 M.J. 157 (C.M.A. 1986).    Because the expert is not required

to evaluate the specific urinalysis test conducted on the sample

provided by the accused, the government may select any qualified

expert to provide the required testimony.    In this case, the

Government chose Dr. Mobley.

     Dr. Mobley’s testimony substantiated the urinalysis process

and test results leading to Appellant’s court-martial and

conviction.   During the Government’s direct examination, Dr.

Mobley reviewed Appellant’s two litigation packages in great

detail.   In so doing, Dr. Mobley legitimized the urine sample’s

chain of custody, described the screening and confirmation

procedures used to detect cocaine metabolites in Appellant’s

sample, and essentially endorsed the positive results of both

the test and retest.    Appellant’s defense was to attack the


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United States v. Mahoney, 02-0270/AF


procedural regularity of the information contained in the

litigation packages -- the very information that Dr. Mobley

substantiated through his testimony.         Thus, any evidence calling

into question Dr. Mobley’s credibility would no doubt have been

crucial to this defense.

      LtCol Ruppert’s letter questioned Dr. Mobley’s continued

employment by the Air Force, noting Dr. Mobley’s testimony

critical of studies normally relied upon by government experts

testifying in support of the Air Force drug testing program.

This admonition arguably created a significant motive -- the

desire to receive favorable work evaluations and keep his job --

for Dr. Mobley to testify positively about lab procedures and

underlying scientific studies in future courts-martial.2             Cross-

examining Dr. Mobley about the letter may have revealed this

motive, serving to damage Dr. Mobley’s credibility, and thereby

enhance the defense’s case.       In short, the letter’s substantial

impeachment value undermines confidence in the trial’s outcome.

See Bagley, 473 U.S. at 682.        We therefore hold that the



2
  Appellant asserts that the letter eventually was sent to the Drug Testing
Laboratory, where a copy of it was given to Dr. Mobley, attached to a
staffing sheet. While the staffing sheet does not list Dr. Mobley by name as
an addressee, it contains file symbols for nine separate staff agencies
involved in the leadership and supervision of the Drug Testing Laboratory,
and it recites that, as a result of LtCol Ruppert’s complaints, a formal
training session was held for “DTL experts.” It is a fair inference from the
evidence that Dr. Mobley was one of those “DTL experts.” Moreover, the
Government has not challenged Appellant’s assertion that a copy of the letter
was given to Dr. Mobley. In the absence of evidence to the contrary, we
accept Appellant’s assertion as true.


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United States v. Mahoney, 02-0270/AF


Government’s failure to provide the letter to the defense upon

the initial discovery request was a constitutional due process

violation under Brady.         The decision of the United States Air

Force Court of Criminal Appeals is reversed.             The findings of

guilty and sentence are set aside.           The record of trial is

returned to the Judge Advocate General of the Air Force.             A

rehearing may be ordered.3




3
    The Appellant’s Petition for New Trial is denied as moot.


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