                                    IN THE CASE OF


                             UNITED STATES, Appellee

                                            v.

                       Mark S. JACKSON, Staff Sergeant
                          U.S. Air Force, Appellant

                                      No. 03-0336
                               Crim. App. No. 34419

       United States Court of Appeals for the Armed Forces

                            Argued November 19, 2003

                             Decided March 23, 2004

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

                                         Counsel

For Appellant: Captain Andrea M. Gormel (argued); Colonel
    Beverly B. Knott, Major Andrew S. Williams and Captain James
    M. Winner (on brief); Major Jefferson B. Brown and Major
    Terry L. McElyea.

For Appellee: Major John C. Johnson (argued); Colonel LeEllen
    Coacher, Lieutenant Colonel Robert V. Combs, and Major James
    K. Floyd (on brief); Major Linette I. Romer.



Military Judge:        M. R. Ruppert


        THIS   OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Jackson, No. 03-0336/AF



    Judge EFFRON delivered the opinion of the Court.

    At a general court-martial composed of officer and enlisted

members, Appellant was convicted, contrary to his pleas, of one

specification of wrongful use of methamphetamine, in violation

of Article 112a, Uniform Code of Military Justice [hereinafter

UCMJ], 10 U.S.C. § 912a (2000).    He was sentenced to a bad-

conduct discharge, confinement for 30 days, and reduction to the

lowest enlisted grade.    The convening authority approved these

results, and the Court of Criminal Appeals affirmed in an

unpublished opinion.

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

modified issue:

          WHETHER BRADY v. MARYLAND AND R.C.M. 701
          REQUIRED THE GOVERNMENT TO DISCLOSE EVIDENCE
          REGARDING AN AUGUST 2000 BROOKS LAB
          DISCREPANCY REPORT TO DEFENSE COUNSEL PRIOR
          TO TRIAL.

     For the reasons set forth below, we hold that the

Government erred in failing to disclose this evidence and that

the error was prejudicial.



                             I. BACKGROUND

                  A. PRETRIAL DISCOVERY: INFORMATION
                     PERTAINING TO QUALITY CONTROL

     In March 2000, Appellant provided a urine specimen during

an unannounced inspection of his unit, which was stationed at


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United States v. Jackson, No. 03-0336/AF


Nellis Air Force Base, Nevada.   The unit forwarded the specimen

to the Air Force Drug Testing Laboratory at Brooks Air Force

Base (Brooks Laboratory), Texas.       The Brooks Laboratory

performed a urinalysis test on the specimen, which yielded a

positive test for the presence of methamphetamine.      A further

test achieved the same result.   After the results were certified

by the Brooks Laboratory and transmitted to Appellant’s unit,

Appellant was charged with one specification of wrongful use of

methamphetamine.

     On May 26, 2000, defense counsel submitted a detailed

pretrial discovery request to the Government.      A substantial

portion of the request sought information concerning testing

procedures at the Brooks Laboratory, identifying a variety of

specific forms of information regarding personnel and procedures

involved in the testing process.       One of the specific requests

asked for “any reports, memos for record or other documentation

relating to Quality Control and/or inspections pertaining to

quality control at the Brooks Lab for the three quarters prior

to [Appellant]’s sample being tested, and the available quarters

since [Appellant]’s sample was tested.”      The defense submission

also stated that the discovery request was a “continuing

request” that “includes any information which you may later

discover before, during or after trial of this case, or which is

not requested in a specific manner.”


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United States v. Jackson, No. 03-0336/AF


     The prosecution sent a memorandum to Brooks Laboratory on

June 6, 2000, regarding discovery, which required it to provide

only those items expressly identified in the memorandum as

matters “deemed relevant to litigation.”   Instead of using the

term “quarters” when referring to the time frame, the

prosecution’s memorandum to the Brooks Laboratory referred to

“months,” and did not include the continuing nature of the

defense request.   According to the memorandum, the Brooks

Laboratory was required to provide only the following

information:

            [C]opies of the Quality Assurance (QA)
            monthly reports and QA monthly inspections
            for the three months prior to testing
            [Appellant]’s specimen, the month of
            testing, and the month after testing.
            Please also provide the AFIP monthly
            proficiency reports for the three months
            prior to testing [Appellant]’s sample, the
            month of testing, and the month after
            testing.

     On June 12, 2000, the prosecution sent a memorandum to the

defense providing a variety of responses to the various defense

requests.   Some of the responses contained substantive

information; some reported on the status of the request; others

asserted that the requested information was not relevant and

would not be provided; and still others asked the defense to

narrow the request.




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United States v. Jackson, No. 03-0336/AF


     With respect to quality control, the prosecution’s

memorandum stated:

           The Quality Control quarterly inspections
           were discontinued after January 1999 when it
           became a Quality Assurance (QA) function.
           The QA monthly reports and QA monthly
           inspections for the three months prior to
           the member’s specimen, the month of testing,
           and the month after testing have been
           requested from Brooks AFB Drug Testing
           Division.

In contrast to the prosecution’s responses on other subjects,

the memorandum did not ask the defense to narrow the scope of

the request pertaining to quality control, nor did it assert

that the Government was unwilling to provide documents within

the request.



     B. THE REPORT OF AN ERRONEOUS TEST RESULT AT THE BROOKS

                            LABORATORY

     Two and a half months later, on August 2, the Brooks

Laboratory mistakenly identified a specimen as positive despite

the fact that the specimen was negative.   This error was

discovered as part of its quality control process, which

involved the routine insertion of “Blind Quality Control”

specimens in each batch of urine specimens provided by service

members.   The Blind Quality Control specimens were either

“positive” -- containing a reportable presence of an illegal

substance, or “negative” -- not containing a reportable presence


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United States v. Jackson, No. 03-0336/AF


of an illegal substance.   Although the operators of the testing

system knew that Blind Quality Control specimens were included

in each testing batch, they did not know which specimens within

a batch were the real specimens provided by service members and

which were the Blind Quality Control specimens.

     The error on August 2 occurred when Brooks Laboratory

testing operators reported that a particular specimen produced a

positive result for the presence of a metabolite of cocaine,

even though the sample was a negative Blind Quality Control

specimen.   As a result of this error, it generated a Discrepancy

Report, which identified each individual who handled the

negative Blind Quality Control specimen.   The Discrepancy Report

stated that it was “inconclusive as to how the negative [Blind

Quality Control specimen] came to have a positive result” and

recommended “that each technician and observer pay closer

attention” to their duties.

     Three of the laboratory personnel who were identified as

participating in the preparation and testing of the erroneously

identified Blind Quality Control specimen in August also were

involved in testing Appellant’s several months earlier.

Although the laboratory’s report of the erroneous testing of a

quality control specimen in August was generated a month before

Appellant’s trial while discovery was still ongoing, the report

was not provided to the parties prior to trial.


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United States v. Jackson, No. 03-0336/AF




                       C. TRIAL PROCEEDINGS

     Defense counsel submitted additional discovery requests on

September 14 and September 17, prior to the scheduled beginning

of trial on the merits on September 25.    Several days before

trial, trial counsel and defense counsel had a discussion about

discovery.   Defense counsel asked the trial counsel to contact

the Brooks Laboratory and obtain all reports completed between

its June 6 response and the date of their discussion, as well as

any other recently identified items that would be responsive to

the initial discovery request.   Throughout the trial, the

defense received additional items from the Brooks Laboratory in

response to the discovery request.

The defense, however, did not receive

the report of the erroneous test that had taken place in August.

     At trial, the prosecution’s case relied primarily on a

litigation package prepared by the Brooks Laboratory detailing

Appellant’s positive urinalysis, along with expert extrapolation

testimony by Dr. Vincent Papa, a forensic toxicologist and

certifying official at the laboratory.    Dr. Papa explained the

contents of the litigation package and concluded that Appellant

ingested methamphetamine.   The prosecution also introduced

evidence that: (1) Appellant “rolled his eyes,” shook his head

“in a no fashion,” and “seemed a little upset” when his


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United States v. Jackson, No. 03-0336/AF


superiors announced the unit sweep; (2) in the context of a

discussion about evicting his girlfriend from his apartment,

Appellant expressed “concerns that there may [have been] drugs

in [his] residence”; and (3) that on two prior occasions,

Appellant discussed teas or other substances that one could

consume to produce a negative result in a urinalysis test.

     The defense focused its trial strategy on attacking the

reliability of the Brooks Laboratory positive urinalysis report.

During cross-examination of Dr. Papa, defense counsel raised

questions concerning the possibility that Appellant’s positive

urinalysis was the result of contamination in the testing

process.   Defense counsel highlighted fifteen prior incidents

that the laboratory discovered four months prior to testing of

Appellant’s urine specimen in which the Chief of the

Confirmation Section at Brooks Laboratory had altered data

regarding the testing process.   Defense counsel also noted that

the Brooks Laboratory did not have a Quality Assurance Officer

at the time Appellant’s urine specimen was tested, and that that

the Brooks Laboratory had received an inspection report critical

of the quality of its testing procedures in place through April

of that year.   Defense counsel further noted that one urine

specimen that was correctly identified as negative had been

reported as positive as a result of an incorrect notation on the

report.    Defense counsel further pointed out that one individual


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United States v. Jackson, No. 03-0336/AF


who handled Appellant’s urine specimen subsequently had been

decertified because many of his April 2000 testing runs failed.

In addition, defense counsel explored the possibility that

methamphetamine could have been ingested innocently by

Appellant.

     In his closing argument on findings, trial counsel relied

primarily on the positive urinalysis and Dr. Papa’s testimony to

support the contention that Appellant knowingly and wrongfully

used methamphetamine.    To buttress the credibility of the

testing procedures at the Brooks Laboratory, trial counsel

asserted that --

             the military judge has told you [that] you
             are entitled to infer that the procedures in
             the lab for handling and testing the samples
             were regular and proper, unless you have
             evidence to the contrary. This is a
             certified forensic laboratory. Dr. Papa
             told you what it takes to have that happen
             and how easily . . . being two standard
             deviations off, could cause decertification
             as a forensic lab. They call in these
             civilian places and pay them lots of money
             to do these studies . . . to pick them apart
             . . . . All of that has to be thrust out
             into the public domain. Everybody is going
             to know, because they are a forensic lab,
             and that is why, ladies and gentlemen, you
             could trust that they followed the rule.
             And if you haven’t seen any evidence to the
             contrary in this case, you may assume that
             there were no problems.

     Defense counsel’s argument on findings attacked the

credibility of the positive urinalysis result and the litigation



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United States v. Jackson, No. 03-0336/AF


package prepared by the Brooks Laboratory.   Following

instructions and deliberation the members announced a finding of

guilty to the charge and specification.



                    D. POST-TRIAL DEVELOPMENTS

     Eleven months after trial, appellate defense counsel first

learned of the August 2 error at the Brooks Laboratory.    On

appeal, Appellant contends the Government erred by failing to

disclose the report on the erroneous testing of the Blind

Quality Control specimen, violating his right to discovery under

the Rules for Courts-Martial, the UCMJ, and the Constitution.

See R.C.M. 701 (discovery); Article 46, UCMJ, 10 U.S.C. § 846

(2000)(opportunity to obtain witnesses and other evidence);

Brady v. Maryland, 373 U.S. 83 (1963)(discovery obligations as a

matter of due process; U.S. Const. Art. V and amend. XIV).



          II. DISCOVERY - TRIAL AND APPELLATE STANDARDS

     Discovery in the military justice system, which is broader

than in federal civilian criminal proceedings, is designed to

eliminate pretrial “gamesmanship,” reduce the amount of pretrial

motions practice, and reduce the potential for “surprise and

delay at trial.”   Manual for Courts-Martial, United States (2002

ed.), Analysis of the Military Rules of Evidence A21-32.




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United States v. Jackson, No. 03-0336/AF


     Under R.C.M. 701(a)(2)(B), the Government must allow the

defense, upon request, to inspect “[a]ny results or reports. . .

of scientific tests or experiments, or copies thereof, which are

within the possession, custody, or control of military

authorities, the existence of which is known or by the exercise

of due diligence may become known to the trial counsel, and

which are material to the preparation of the defense.”    In the

absence of a defense request, R.C.M. 701(a)(6) requires the

Government to disclose known evidence that “reasonably tends to”

negate or reduce the accused’s degree of guilt or reduce the

punishment that the accused may receive if found guilty.   See

United States v. Williams, 50 M.J. 436, 440 (C.A.A.F. 1999)

(citing Brady).   These rules encompass “[e]vidence that could be

used at trial to impeach” witnesses or other evidence presented

by the Government.   Id.; see United States v. Watson, 31 M.J.

49, 54-55 (C.M.A. 1990)).

     Discovery is not limited to matters within the scope of

trial counsel’s personal knowledge.   “[T]he individual

prosecutor has a duty to learn of any favorable evidence known

to others acting on the [G]overnment’s behalf.”   United States

v. Mahoney, 58 M.J. 346, 348 (C.A.A.F. 2003)(quoting Strickler

v. Greene, 527 U.S. 263, 281 (1999)).   “Trial counsel must

exercise due diligence in discovering [favorable evidence] not

only in his possession but also in the possession . . . of other


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United States v. Jackson, No. 03-0336/AF


‘military authorities’ and make them available for inspection.”

United States v. Simmons, 38 M.J. 376, 381 (C.M.A. 1993).

“[T]he parameters of the review that must be undertaken outside

the prosecutor’s own files will depend in any particular case on

the relationship of the other governmental entity to the

prosecution and the nature of the defense discovery request.”

Williams, 50 M.J. at 441.     The parties bear a “[c]ontinuing duty

to disclose” responsive evidence or material.    R.C.M. 701(d).

     If the Government fails to disclose discoverable evidence,

the error is tested on appeal for prejudice, which is assessed

“in light of the evidence in the entire record.”    United States

v. Stone, 40 M.J. 420, 423 (C.M.A. 1994)(quoting United States v

Agurs, 427 U.S. 97 (1976)).    As a general matter, when an

appellant has demonstrated error with respect to nondisclosure,

the appellant will be entitled to relief only if there is a

reasonable probability that there would have been a different

result at trial if the evidence had been disclosed.    When an

appellant has demonstrated that the Government failed to

disclose discoverable evidence with respect to a specific

request or as a result of prosecutorial misconduct, the

appellant will be entitled to relief unless the Government can

show that nondisclosure was harmless beyond a reasonable doubt.

See United States v. Roberts, ___ M.J. ___ (C.A.A.F. 2004).




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United States v. Jackson, No. 03-0336/AF


                         III.   DISCUSSION

     The August 2, 2000, report at issue in this case concerned

the failure of the Brooks Laboratory to properly identify a

“Blind Quality Control” specimen by reporting a “negative”

specimen as “positive” for the presence of an illegal substance.

This document is within the defense May 26, 2000 discovery

request for reports or inspections “pertaining to quality

control.”   The report was generated on August 2, 2000, less than

four months after Appellant’s specimen was tested, and less than

three months after the defense discovery request.    The defense

asked for reports during “the three quarters prior to

[Appellant]’s sample being tested, and the available quarters

since,” and further stated that this was a “continuing request”

that included “any information which you may later discover

before, during or after trial.”    The report, which was generated

a month before Appellant’s trial, falls well within the temporal

span of the defense discovery request.

     The prosecution’s June 12, 2000, response to the overall

defense discovery request appropriately identified those items

that the Government declined to provide.     The prosecution’s

response also asked the defense to narrow its request with

respect to a number of other specific items.    In responding to

the defense request for matters “pertaining to quality control,”

however, the prosecution did not assert that the Government


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United States v. Jackson, No. 03-0336/AF


would decline to provide the requested information, nor did it

ask the defense to narrow the scope of that request.    The

Government’s response identified changes in the quality

assurance program at the Brooks Laboratory, and described the

reports that had been requested from it, covering the three

months before Appellant’s specimen was tested, the month of the

testing, and the month after his specimen was tested.    On

appeal, the Government asserts that the defense waived the

continuing nature of the discovery request by not objecting to

the Government’s response.    We decline to infer waiver in this

case.    The defense made a specific request.   The Government

expressly identified those items where it rejected or sought to

narrow the defense request, and did not identify matters

“pertaining to quality control” as one of those items.    The

defense in this case could reasonably view the Government’s

response as informational in nature and was under no obligation

to infer that the Government was rejecting the continuing nature

of the defense request.

        The failure to provide the requested information violated

Appellant’s right to discovery under R.C.M. 701(a)(2)(B).     With

respect to prejudice, we note that the prosecution’s case rested

primarily on the urinalysis, including the litigation package

and Dr. Papa’s testimony in support and in explanation of that

package.    Although the additional circumstantial evidence


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United States v. Jackson, No. 03-0336/AF


introduced by the prosecution regarding Appellant’s attitude on

various occasions might have had some marginal value in

rebutting defense suggestions of innocent ingestion, it did not

constitute independent evidence of illegal drug use.

     The defense focused its case primarily on the reliability

of the laboratory process.   What the defense did not have was a

report, generated by the Government between the time of

Appellant’s urinalysis and the trial, demonstrating that the

laboratory processes had misidentified a negative Blind Quality

Control specimen as positive for the presence of drugs.    The

defense could have used the report to demonstrate the existence

of quality control problems, and there is a reasonable

probability that such evidence could have influenced the

members’ judgment about the reliability of the testing process.

     A number of factors underscore the prejudicial impact of

the failure to provide the August 2 report.   First, the report

provided evidence of potential errors in the testing process

that was more compelling than the other information used by

defense counsel in cross-examination of Dr. Papa.   At trial, the

prosecution argued that the deficiencies pointed out by defense

were the result of identifiable problems that could not have

occurred in Appellant’s case.   By contrast, the undisclosed

August 2 report stated that “it is inconclusive as to how the

negative [Blind Quality Control] came to have a positive


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United States v. Jackson, No. 03-0336/AF


result,” and then recognized the possibility of human error by

recommending “that each technician and observer pay closer

attention” to their tasks.   This is particularly significant in

light of the fact that three persons involved in the Blind

Quality Control specimen performed the same tasks in preparation

of Appellant’s specimen.

     Second, trial counsel emphasized that the defense had

failed to demonstrate specific errors in the testing process,

and contended that the weakness in the defense case served to

validate the accuracy of Appellant’s positive urinalysis result.

Trial counsel stated during closing argument that, “the military

judge has told you [that] you are entitled to infer that the

procedures in the lab for handling and testing the samples were

regular and proper, unless you have evidence to the contrary . .

. [a]nd if you haven’t seen any evidence to the contrary in this

case, you may assume that there were no problems.”   Had the

defense possessed the August 2 report at trial, the defense

could have argued that the members had been presented with

evidence of a specific problem in the testing procedures.

     We conclude that the error deprived the defense of

information that could have been considered by the members as

critical on a pivotal issue in the case -- the reliability of

the laboratory’s report that Appellant’s specimen produced a

positive result.   Given the significance of this information in


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United States v. Jackson, No. 03-0336/AF


the context of Appellant’s trial the error was prejudicial under

the “harmless beyond a reasonable doubt” standard, see Roberts,

___ M.J. at ___ (standard of review applicable to specifically

requested information), as well as under the standard advocated

in the separate opinion in Roberts, ___ M.J. at ___ (Crawford,

C.J., concurring in the result)(applying the standard of “a

reasonable probability of a different result” in all cases,

regardless of the specificity of the request or prosecutorial

misconduct).



                             DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is reversed.   The findings and sentence are set

aside.   A rehearing may be ordered.




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United States v. Jackson, No. 03-0336/AF



     CRAWFORD, Chief Judge (concurring in the result):

     See my separate opinion in United States v. Roberts,

___ M.J. ___ (C.A.A.F. 2004)(concurring in the result).
