United States v. Canada
ACM S32298
| A.F.C.C.A. | Oct 20, 2016Background
- On 22 Jan 2014 Senior Airman Courtney R. Canada provided a urine sample that tested positive for benzoylecgonine (BZE) at 274 ng/mL (DoD cutoff 100 ng/mL); she was charged with wrongful use of cocaine and convicted at a special court-martial.
- Government’s case consisted of chain-of-custody witnesses, a redacted Drug Testing Report (DTR), and expert testimony from the AFDTL Laboratory Certifying Official (Dr. DT); defense presented no witnesses.
- Dr. DT explained cocaine metabolism, test procedures, and opined the level was consistent with recreational, knowing use 1.5–3 days before the sample; he also acknowledged limits of the testing (could not fix time of use, amount, or whether ingestion was knowing) and that his conclusion assumed no contamination.
- Defense cross-examination elicited alternate contamination/tampering scenarios and challenged laboratory handling; the judge limited scope of challenges to ±1 month around the test and permitted a permissive inference instruction that a positive BZE result may permissibly support an inference of knowing use.
- Military judge admitted a redacted DTR and allowed Dr. DT to testify despite his not performing the specific tests; the court concluded the DTR and expert testimony were not testimonial hearsay under controlling precedent.
- The members convicted; appellant appealed raising sufficiency (permissive inference), confrontation/hearsay, voir dire and closing about the inference, reasonable-doubt instruction, prosecutorial misconduct, unanimity/panel composition, and post-trial delay. The AFCCA affirmed findings and sentence.
Issues
| Issue | Government's Argument | Canada’s Argument | Held |
|---|---|---|---|
| Permissive inference to prove "knowing" ingestion | A positive BZE plus expert explanation and chain of custody suffices; permissive inference may be used and the members decide whether to draw it. | Permissive inference improperly applied; BZE can be present without human metabolism (contamination) so inference cannot alone prove knowledge. | Permissive inference permissible; combined with expert testimony and collection evidence the members reasonably found knowing use beyond a reasonable doubt (legal and factual sufficiency upheld). |
| Voir dire and closing using permissive inference | Voir dire and argument explained that circumstantial evidence (positive test) may suffice; judge later instructed correctly; no prejudice. | Voir dire mischaracterized the law and closing misstated burden, risking confusion between permissive inference and mandatory presumption. | Voir dire/closing were imperfect but not plain error; correct instructions from the judge cure any ambiguity and no material prejudice shown. |
| Admission of DTR and Dr. DT testimony (Confrontation/hearsay) | Redacted DTR and testimony by a Lab Certifying Official satisfy confrontation precedents; technicians’ worksheet entries are non-testimonial. | DTR and associated lab records are testimonial; defense should have access to all lab personnel for cross-examination. | Military judge did not abuse discretion; DTR (redacted) and Dr. DT’s testimony admissible and not testimonial hearsay under prevailing case law. |
| Reasonable-doubt instruction | Standard AF panel instruction was proper and long-used; no plain-error shown. | Instruction improperly directed verdict-like language and violated Supreme Court precedent. | Instruction upheld as an accepted formulation in Air Force practice; no relief warranted. |
| Prosecutorial argument (vouching, disparagement, facts not in evidence) | Arguments were fair comment on evidence and hypotheticals elicited at trial; context shows no improper vouching or prejudice. | Counsel vouched for lab/personnel, disparaged defense counsel, and argued facts not in evidence. | No plain error; statements viewed in context were permissible and did not materially prejudice Canada. |
| Panel size and nonunanimous verdict | Congress authorized three-member nonunanimous special court-martial panels; precedent supports constitutionality. | Nonunanimous three-member panel unconstitutional, especially when permissive inference is discretionary. | Rejected; appellant failed to meet heavy burden to overturn congressional scheme; prior decisions controlling. |
| Post-trial/appellate delay (Moreno/Tardif) | Delays—126 days to convening authority action and >18 months to appellate opinion—were explained and not prejudicial; no relief warranted. | Delays presumptively unreasonable and warrant relief. | No due process violation; no Moreno or Tardif relief granted after Barker-factor analysis. |
Key Cases Cited
- County Court v. Allen, 442 U.S. 140 (1979) (permissive inferences and Leary test framework)
- Leary v. United States, 395 U.S. 6 (1969) (standards for permissive inferences)
- Jackson v. Virginia, 443 U.S. 307 (1979) (legal sufficiency standard)
- Sandstrom v. Montana, 442 U.S. 510 (1979) (caution on jury instructions that create presumptions)
- Martin Linen Supply Co. v. Michigan State Univ., 430 U.S. 564 (1977) (instructions cannot direct guilty verdict)
- Crawford v. Washington, 541 U.S. 36 (2004) (confrontation clause hearsay principles)
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (forensic lab reports and confrontation)
- Bullcoming v. New Mexico, 564 U.S. 647 (2011) (confrontation and surrogate testimony)