                        UNITED STATES, Appellee

                                     v.

                    Patricia C. MADIGAN, Captain
                      U.S. Air Force, Appellant

                               No. 05-0417
                         Crim. App. No. 35087

       United States Court of Appeals for the Armed Forces

                        Argued January 11, 2006

                          Decided May 1, 2006

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


                                  Counsel

For Appellant: Captain John S. Fredland (argued); Colonel
Carlos L. McDade, Lieutenant Colonel Mark R. Strickland, Major
L. Martin Powell, Major Sandra K. Whittington, and Captain
Christopher S. Morgan (on brief).


For Appellee: Captain Jin-Hwa L. Frazier (argued); Lieutenant
Colonel Robert V. Combs and Lieutenant Colonel Gary F. Spencer
(on brief).



Military Judge:    Patrick M. Rosenow



        THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Madigan, No. 05-0417/AF


    Judge EFFRON delivered the opinion of the Court.

    At a general court-martial composed of a military judge

sitting alone, appellant was convicted, pursuant to mixed pleas,

of dereliction of duty (two specifications), wrongful use of a

controlled substance (diazepam), wrongful possession of a

controlled substance (hydrocodone) (two specifications), and

uttering fraudulent prescriptions for hydrocodone (two

specifications), in violation of Articles 92, 112a, and 123,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 912a,

923 (2000), respectively.   The adjudged and approved sentence

included dismissal and confinement for seven months.      The Court

of Criminal Appeals affirmed in an unpublished opinion.     United

States v. Madigan, No. ACM 35087, 2005 CCA LEXIS 69, at *10,

2005 WL 486364, at *4 (A.F. Ct. Crim. App. Feb. 17, 2005).

     On Appellant’s petition, we granted review of the following

issue concerning Appellant’s conviction for wrongful use of

diazepam:

            WHETHER THE MILITARY JUDGE ERRED BY RULING
            THAT THE PURPORTED POSITIVE BLOOD LAB TEST
            FOR DIAZEPAM WAS ADMISSIBLE WHEN THE
            GOVERNMENT DENIED THE DEFENSE ACCESS TO THE
            EVIDENCE BY DESTROYING THE BLOOD SAMPLE.

For the reasons set forth below, we affirm.




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United States v. Madigan, No. 05-0417/AF


                            I.   BACKGROUND

     Appellant, a nurse, was stationed at Lackland Air Force

Base in Texas at the time of the charged offenses.    Pursuant to

a search warrant, the Air Force Office of Special Investigations

(AFOSI) obtained a sample of Appellant’s blood on May 17, 1999,

and transmitted it to the Armed Forces Institute of Pathology

(AFIP).   The validity of the search is not at issue in the

present appeal.

     AFIP received the sample on May 20, 1999, and conducted

five separate tests.   An AFIP report, dated June 2, 1999, stated

that Appellant’s blood sample tested positive for diazepam.      At

the conclusion of the testing process, about five milliliters of

the sample remained intact.

     On July 14, 1999, the legal office at Lackland Air Force

Base asked AFIP to return Appellant’s blood sample to Lackland’s

AFOSI detachment by July 25, 1999.     AFIP did not return the

container to Lackland, although it was the normal practice of

AFIP to return a container upon such a request.    There is no

indication in the record that the Lackland office issued a

follow-up request or otherwise expressed concern when AFIP did

not return the container.

     On December 8, 1999, AFIP inadvertently destroyed

Appellant’s blood sample in the course of completing the

scheduled destruction of negative samples.    Under AFIP


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United States v. Madigan, No. 05-0417/AF


procedures, negative samples may be destroyed six months after

receipt.   When there is a positive test result, AFIP procedures

require retention of a blood sample for two years, and

Department of Defense policy requires retention for one year.

Dep’t of Defense, Instr. 1010.16, Technical Procedures for the

Military Personnel Drug Abuse Testing Program para. E1.9.2 (Dec.

9, 1994) [hereinafter DoD Instr. 1010.16].      The premature

destruction of Appellant’s blood sample violated these

requirements.

     During the following two years, drug-related charges

preferred against Appellant were the subject of three

investigations under Article 32, UCMJ, 10 U.S.C. § 852 (2000),

three requests by Appellant for resignation in lieu of court-

martial, and numerous other proceedings related to the charges,

at which Appellant was represented by counsel.      There is no

indication in the record that Appellant requested access to the

sample or a retest during the two-year period in which AFIP was

precluded from destroying the sample.

     In September, 2001, more than two years and three months

after the sample was received by AFIP, defense counsel discussed

the test with officials at AFIP.       Laboratory officials informed

defense counsel, incorrectly, that the sample had been discarded

after two years in accordance with standard AFIP procedure.       On

November 2, 2001, trial counsel noticed an AFIP memorandum


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United States v. Madigan, No. 05-0417/AF


stating that the laboratory had destroyed the sample

inadvertently on December 8, 1999.    The next day, November 3,

2001, the prosecution turned this information over to defense

counsel.

     On November 5, the defense moved to dismiss the diazepam

charge on the grounds that AFIP’s destruction of the remainder

of Appellant’s blood sample improperly denied Appellant the

opportunity to retest critical evidence.   The defense proceeded

on the theory that the sample had been destroyed at the end of

the two-year period following receipt, apparently overlooking

the information about premature destruction by AFIP.   In

responding to the motion, the prosecution also did not discuss

the evidence of destruction prior to completion of AFIP’s two-

year retention period.    The military judge, who focused on the

information provided by the parties, denied the motion on the

grounds that there was no departure from the AFIP’s regulatory

retention requirements.   Although the military judge did not

exclude the evidence of AFIP’s test results, he required that

the Government stipulate that the sample had been destroyed

before Appellant had the opportunity to obtain further testing.

Appellant declined to contest the charge, but entered a

conditional plea, thereby preserving the opportunity to

challenge the military judge’s ruling on appeal.




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United States v. Madigan, No. 05-0417/AF


     Following the conclusion of trial, defense counsel asked

the military judge to reconsider his ruling on the motion to

dismiss the diazepam charge, citing AFIP’s premature destruction

of the blood sample.   The military judge denied the request for

reconsideration.



                           II.   DISCUSSION

     Rule for Courts-Martial (R.C.M.) 703(f)(1) provides:   “Each

party is entitled to the production of evidence which is

relevant and necessary.”   R.C.M. 703(f)(2) governs unavailable

evidence:

            Notwithstanding subsection (f)(1) of this
            rule, a party is not entitled to the
            production of evidence which is destroyed,
            lost, or otherwise not subject to compulsory
            process. However, if such evidence is of
            such central importance to an issue that it
            is essential to a fair trial, and if there
            is no adequate substitute for such evidence,
            the military judge shall grant a continuance
            or other relief in order to attempt to
            produce the evidence or shall abate the
            proceedings, unless the unavailability of
            the evidence is the fault of or could have
            been prevented by the requesting party.

     The issue before us involves the relationship between the

requirements of R.C.M. 703 and applicable rules governing

retention and destruction of drug testing samples.   In United

States v. Pollard, 27 M.J. 376, 377 (C.M.A. 1989), we stated:

            [D]eviating from a regulation or instruction
            which sets out procedures for collecting,


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United States v. Madigan, No. 05-0417/AF


            transmitting, or testing urine samples does
            not render a sample inadmissible as a matter
            of law; however, such deviation may be
            considered along with all other factors in
            determining if the evidence lacks sufficient
            reliability to be considered by the finders
            of fact . . . . [T]he military judge may
            exclude drug-test results if he finds there
            has been a substantial violation of
            regulations intended to assure reliability
            of the testing procedures.

     Regarding AFIP’s nonresponsiveness to the request by

Lackland’s legal office for return of the blood sample,

Appellant notes that AFIP had a routine practice of responding

to base-level requests for return of drug testing samples, yet

AFIP did not respond to the request from the Lackland legal

office.   The defense had the opportunity, before and during

trial, to explore the reasons for the Lackland request and the

circumstances surrounding AFIP’s failure to respond, and did not

do so.    Instead, the defense chose simply to rely on the fact of

the request and the lack of a response.    There is nothing in the

record demonstrating that the request was intended to protect

the integrity of the evidence, or that the absence of a response

was a matter of concern to Lackland.   Under these circumstances,

Appellant has not established that return of the sample was

required by a regulation or procedure intended to assure the

reliability of the testing process.

     The premature destruction of the sample, in violation of

AFIP procedure and DoD Instr. 1010.16, represents a more


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United States v. Madigan, No. 05-0417/AF


significant concern.   As noted in Section I, supra, AFIP was

required to retain the sample for one year under DoD Instr.

1010.16 and for two years under AFIP procedure.      Instead, the

sample was destroyed after seven months.

     In United States v. Manuel, 43 M.J. 282 (C.A.A.F. 1995),

this Court considered the implications of premature destruction

of a drug testing sample in the context of a defense request for

retesting.    When the accused in Manuel requested a retest six

months after the initial test, the government advised the

defense of the inadvertent premature destruction of the sample.

Id. at 284.    The military judge denied a motion to exclude the

test results, and the Court of Military Review reversed, citing

noncompliance with applicable rules on retention of positive

samples.    Id. at 285-86.

     In our review of the case under certification from the

Judge Advocate General, see Article 67(a)(2), UCMJ, 10 U.S.C. §

867(a)(2) (1994), we agreed with the lower court that the

applicable regulations concerning retention of drug testing

samples conferred a right on servicemembers to discover

evidence.    Id. at 287.     We added that the regulations did not

confer on servicemembers the right to any particular remedy, and

that there was “considerable discretion for courts to fashion a

remedy to address any deviation from regulatory testing

procedures.”   Id.   We also noted that in a case involving:


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United States v. Madigan, No. 05-0417/AF


           gross negligence in the handling of a urine
           sample and a significant violation of
           regulations intended to insure reliability
           of testing procedures, we will not require
           an accused to make a further demonstration
           of specific prejudice before we sustain the
           remedial relief fashioned by a lower court
           in the exercise of its discretion.

Id.   In the course of sustaining the lower court’s exercise of

discretion, we specifically noted that we were not deciding

whether the lower court was required to suppress the evidence as

a matter of law, and that we were not holding “that suppression

is the appropriate legal remedy in all instances of lost or

destroyed evidence.”   Id. at 289.

      Appellant has not challenged the validity of the AFIP

procedures and DoD Instr. 1010.16 regarding scheduled

destruction of positive samples.       Indeed, Appellant relies upon

the requirement for AFIP to retain positive samples for two

years.   In the context of the destruction of evidence under a

regulatory schedule that is not under challenge, the Government

is not responsible for ensuring the availability of the evidence

after the authorized destruction date in the absence of a timely

request for access or retention.       Without such a request, the

responsibility for the unavailability of the evidence after the

authorized destruction date rests with the party that failed to

make the request that could have prevented the destruction.      See

R.C.M. 703(f)(2).   Such circumstances eliminate the need for



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United States v. Madigan, No. 05-0417/AF

analysis under R.C.M. 703(f)(2) of whether the evidence in

question “is of such central importance to an issue that it is

essential to a fair trial” and whether “there is no adequate

substitute for such evidence.”

     In the present case, the defense did not submit a timely

request.   The two-year period following receipt of the sample by

AFIP in May 1999 was marked by multiple proceedings related to

the charges at which Appellant was represented by counsel.    The

record contains no defense request during this entire period for

access to, or retesting of, Appellant’s blood sample.   Moreover,

the defense was notified of disciplinary proceedings related to

the positive drug test well in advance of the destruction of the

sample.

     The first indication that the defense had any interest in

obtaining access to, or retesting Appellant’s sample, came in

November 2001, more than two years after the sample was obtained

and tested by AFIP.    The sample was subject to authorized

destruction two years after it was obtained, well before the

defense request.   Appellant’s later demand for the evidence fell

outside the window of the Government’s regulatory obligation to

retain the evidence.   Under these circumstances, the premature

destruction, which occurred after the defense was notified of

the drug test results and disciplinary proceedings, did not

impede defense access under the regulation.   Accordingly, we


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United States v. Madigan, No. 05-0417/AF

decline Appellant’s invitation to rely on the premature

destruction as a basis for finding that the military judge erred

in not excluding the evidence.

     We emphasize that our decision today rests upon the facts

and circumstances before us in this case.   Different

considerations might apply in other circumstances, such as when:

(1) a party seeks access to, or retention of, the evidence

within a regulatory retention period (including the period

between any premature destruction and the end of the required

retention period); (2) a party demonstrates that the regulatory

retention period was so short that it did not permit a

reasonable opportunity to request access; or (3) a party

demonstrates that, in a particular case, the period between

notice to the party of the test result and destruction of the

evidence did not provide the party with reasonable time within

which to request access to the evidence.    Those circumstances

are not before us in the present case, and we reserve judgment

on the implications of such considerations.



                       III.   CONCLUSION

     The decision of Air Force Court of Criminal Appeals is

affirmed.




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