

   
   
   
   U.S. v. Campbell



UNITED STATES, Appellee
v.
Christopher W. CAMPBELL, Private First Class
U.S. Army, Appellant
 
No. 97-0149
Crim. App. No. 9400527
 
United States Court of Appeals for the Armed
Forces
ON RECONSIDERATION
Submitted August 16, 1999
Decided March 22, 2000
PER CURIAM. SULLIVAN, J., filed a dissenting
opinion.
Counsel
For Appellant: Colonel Adele H. Odegard,
Captain
Donald P. Chisholm, and Captain Kirsten V. Campbell-Brunson.
For Appellee: Colonel Russell S. Estey,
Lieutenant
Colonel Eugene R. Milhizer, and Major Patricia A. Ham.
Military Judges: Peter E. Brownback, III and
Charles J. Heffernan
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
 
 
ON RECONSIDERATON
PER CURIAM:

I
The Government has filed a petition for reconsideration,
requesting clarification of our opinion at 50 MJ 154 (1999). Appellant
contends that the petition should be rejected because the requested clarification
would constitute an advisory opinion. Answer at 3. We disagree.
The present appeal involves an actual case
and controversy between two opposing parties with concrete, adverse interests
as to the validity of a conviction under the Uniform Code of Military Justice.
Although we are not required to articulate reasons for our decision, the
issuance of reasoned opinions constitutes standard appellate practice,
and clarification of the reasoning is an appropriate object of a petition
for reconsideration. See United States v. Berg, 31 MJ 38
(CMA 1990). The parties in a subsequent case are free to argue that specific
aspects of an opinion, including an opinion on reconsideration, should
be treated as non-binding dicta, but such a possibility does not
transform a decision into an inappropriate advisory opinion.

II
Appellant also contends that the Government's
petition should be rejected because of an alleged conflict of interest
involving one of appellant's initial counsel on appeal. The counsel was
transferred from the Defense Appellate Division to another Army agency
while our initial decision was pending. Subsequently, while the Government
was considering whether to file a petition for reconsideration, the counsel
assisted the Government in obtaining an affidavit. The Government then
moved to file the affidavit (Govt App Ex B), but we denied the Government's
motion. __ MJ ___ (Daily Journal, Aug. 30, 1999). There is no evidence
that the counsel otherwise assisted the Government in this appeal.
Under the circumstances, it is unnecessary
to decide whether the particular actions taken by counsel created a conflict
of interest requiring remedial action. Because we denied the Government's
motion to file the affidavit, our action rendered moot, or at least harmless,
the impact of the allegedly conflicted counsel on the present petition
for reconsideration.

III
Appellant also disagrees with the Government's
interpretation of this Court's opinion. As a general matter, if a party's
interpretation of this Court's opinion is strained or unreasonable, we
will not grant a petition for reconsideration. In certain cases, however,
we have determined that it is desirable to issue a clarification upon reconsideration
even if we do not agree with a party's characterization of our opinion.
See
United States v. Berg, supra. In the present case,
which addresses the frequently litigated subject of drug testing, clarification
upon reconsideration may provide a useful means of reducing potential for
unnecessary litigation in the future. Accordingly, we have determined that
it is appropriate to issue a brief opinion upon reconsideration to supplement
the decision reported at 50 MJ 154.

IV
As we noted in our original opinion, Article
112a of the Uniform Code of Military Justice, 10 USC § 912a, includes
a prohibition against wrongful use of illegal drugs. The prosecution in
such a case must introduce sufficient evidence to convince a reasonable
factfinder, beyond a reasonable doubt:



(a) That the accused used a controlled substance;
and
(b) That the use by the accused was wrongful.



Para. 37b(2), Part IV, Manual for Courts-Martial,
United States (1995 ed.). See 50 MJ at 158-59. Under the Manual,
"[k]nowledge of the presence of the controlled substance is a required
component of use." Para. 37c(10), Part IV. When the only evidence of drug
use consists of a report of a test identifying the presence of the drug
or a metabolite in the accuseds body fluids, knowledge of the presence
of the controlled substance may be inferred if the prosecution presents
"expert testimony explaining the underlying scientific methodology and
the significance of the test result, so as to provid[e] a rational basis
for inferring that the substance was knowingly used and that the use was
wrongful." 50 MJ at 159 (internal quotation marks omitted). See
United States v. Graham, 50 MJ 56, 58-59 (1999), United States
v. Harper, 22 MJ 157 (1986), United States v. Murphy, 23 MJ
310 (1987), and United States v. Ford, 23 MJ 331 (1987).
We have held that the prosecution may demonstrate
the relationship between the test result and the permissive inference of
knowing, wrongful use through expert testimony showing: "(1) that the metabolite
is not naturally produced by the body or any substance other than the
drug in question"; (2) "that the cutoff level and reported concentration
are high enough to reasonably discount the possibility of unknowing ingestion
and to indicate a reasonable likelihood that the user at some time would
have experienced the physical and psychological effects of the drug'";
and (3) "that the testing methodology reliably detected the presence and
reliably quantified the concentration of the drug or metabolite in the
sample." 50 MJ at 160.
In the present case, the deficiency was the
absence of evidence establishing the frequency of error and margin of error
in the testing process. Lacking such evidence, we held that the prosecution
did not reliably establish that appellant's urine sample tested at or above
the Department of Defense cut-off level and did not reasonably exclude
the possibility of unknowing ingestion. Since the prosecution did not present
any other direct or circumstantial evidence of knowing use, we held the
evidence was legally insufficient to prove this element of the offense.

V
The petition for reconsideration raises the
issue of whether the three-part standard is mandatory in all drug testing
cases. Given the rapid pace of technological change, we note that the three-part
standard does not necessarily constitute the only means of proving knowing
use. If the test results, standing alone, do not provide a rational basis
for inferring knowing use, then the prosecution must produce other direct
or circumstantial evidence of knowing use in order to meet its burden of
proof. If the Government relies upon test results, it is not precluded
from using evidence other than the three-part standard if such evidence
can explain, with equivalent persuasiveness, the underlying scientific
methodology and the significance of the test results, so as to provide
a rational basis for inferring knowing, wrongful use. Such evidence must
be supported by more than an expert's qualifications and generalized theories.
It must meet applicable evidentiary standards for scientific and specialized
knowledge in terms of reliability and relevance to the specific proposition
at issue. See Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 589 (1993) (scientific testimony must be both reliable and
relevant); General Electric Co. v. Joiner, 522 U.S. 136, 144-45,
118 S.Ct. 512, 518 (1997) (an expert's opinions must be "sufficiently supported"
by the "studies on which they purport to rely"); Kumho Tire Co., Ltd.
v. Carmichael, 119 S.Ct. 1167, 1177 (1999) (focusing not simply on
the reasonableness in general of an expert's approach but also on the particular
matter to which the expert's testimony was directly relevant). Factors
that may be used to establish the reliability and relevance of the scientific
evidence include the expert's credentials, the data used to formulate the
opinion, whether that data was used by other experts in the field, whether
the methodology can be used by another expert, and whether there has been
reenactment or other simulations. Cf. Kumho Tire Co., supra
at 1176-79.

VI
The petition for reconsideration also raises
the issue of whether, in using the three-part standard, the prosecution
must introduce scientific evidence tailored to the specific characteristics
of the person whose test results are at issue. We have not established
such a requirement in the past, and we do not do so here. These cases involve
the type of permissive inference that has been applied for many years to
members of the armed forces. It is sufficient if the expert testimony reasonably
supports the inference with respect to human beings as a class. If the
defense seeks to demonstrate that the inference should not be applied to
a person with the characteristics of the accused, that is a matter for
consideration by the factfinder on the question of guilt or innocence and
does not affect the legal sufficiency of the inference.

VII
We adhere to the views, as stated in our original
opinion, "that the serious threat to military readiness posed by drug abuse
permits use of evidence-gathering techniques" and permissive inferences
"that would not necessarily pass muster" in the context of a civilian criminal
trial. 50 MJ at 159. At the same time, we have recognized that the basic
elements of fairness embodied in the Uniform Code of Military Justice require
that any such inference must be based on scientific evidence that would
permit a rational factfinder to conclude beyond a reasonable doubt that
the results prove wrongful use. The approach set forth in our original
decision, as supplemented by the present opinion on reconsideration, is
designed to provide the appropriate balance between the Government's need
for a flexible, dynamic drug testing program and the interest of members
of the armed forces in a program that is administered in a fair and just
manner.

VIII
The petition for reconsideration is granted.
On reconsideration, we supplement the previous opinion as set forth in
this opinion.


SULLIVAN, Judge (dissenting):
I would grant the petition for reconsideration
with full oral argument. I dissented from the Courts prior opinion in
this case, which created the requirement for scientific proof "that the
user at some time would have experienced the physical and psychological
effects of the drug." United States v. Campbell, 50 MJ 154, 160
(1999). The majority does not meaningfully depart from this position today,
so I again dissent.
In my previous dissenting opinion, I expressly
stated that I disagreed with the majoritys creation of a new requirement
in urinalysis cases for "evidence that the controlled substance is present
in the accuseds body in such a quantity that an expert can opine that
the effects of the drug would have been felt." Campbell, 50 MJ at
163 (Sullivan, J., dissenting). In my view, this requirement is contrary
to what is stated in United States v. Harper, 22 MJ 157, 163-64
(CMA 1986); paragraph 37(c), Part IV, Manual for Courts-Martial, United
States, 1984; and a host of our cases after Harper. See 50
MJ at 162.

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