2015 WL 3554682
C.A.A.F.2015Background
- In March 2011 Simmermacher provided a urine sample that tested positive for cocaine (151 ng/ml; DOD cutoff 100 ng/ml). The Naval Drug Screening Laboratory (NDSL) notified her command and stated the sample would be destroyed one year later unless retained.
- The sample was destroyed on March 16, 2012, before charges were referred and before she had counsel; she was charged twelve days later with wrongful use of cocaine and other offenses (later severed).
- Defense requested retention/access and retest after counsel was assigned; government informed defense the sample had already been destroyed.
- Military judge denied suppression and declined to abate proceedings under R.C.M. 703(f)(2), but gave an adverse-inference instruction to the panel.
- The Navy-Marine Corps CCA affirmed; CAAF granted review to decide whether R.C.M. 703(f)(2) required abatement when the government destroyed evidence central to the defense.
- CAAF held R.C.M. 703(f)(2) provides protections beyond constitutional due process, found all three rule criteria satisfied (centrality, no adequate substitute, not fault of accused), and reversed the cocaine conviction and abated proceedings as to that charge; affirmed false-statement conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R.C.M. 703(f)(2) requires abatement when the government destroyed a urine sample central to the defense | Simmermacher: sample was essential, no adequate substitute, destruction not her fault, abatement required | Government: apply constitutional due process standards (Trombetta/Youngblood); no bad faith, adequate substitute (litigation packet, testimony), adverse-inference instruction sufficient | CAAF: R.C.M. 703(f)(2) is independent of constitutional standards; all three elements met; abatement required when other relief cannot produce evidence |
| Whether R.C.M. 703(f)(2) is coextensive with constitutional due process (Trombetta/Youngblood) | Manuel controls: rule gives additional protections beyond due process | Government: R.C.M. 703(f)(2) should be read consistent with Trombetta/Youngblood | CAAF: R.C.M. 703(f)(2) is a separate, non-constitutional protection; due-process tests remain but do not supplant the rule |
| Remedy discretion: can military judge fashion an alternative to abatement (e.g., adverse-inference instruction) | Simmermacher: abatement is the only effective remedy when sample gone | Government: military judge has discretion under Manuel to tailor relief; adverse-inference instruction was adequate | CAAF: "other relief" limited to attempts to produce the evidence; if continuance/other relief cannot produce the evidence, abatement is the prescribed remedy; adverse-inference instruction here inadequate |
| Whether the military judge abused discretion in this case | Simmermacher: judge abused discretion by not abating given the rule's criteria were satisfied | Government: judge acted within discretion (no bad faith, substitute evidence available) | CAAF: judge abused discretion; reversed CCA as to drug charge and sentence, dismissed cocaine charge |
Key Cases Cited
- California v. Trombetta, 467 U.S. 479 (establishes due-process preservation test for obviously exculpatory evidence)
- Arizona v. Youngblood, 488 U.S. 51 (requires bad-faith showing for loss of potentially useful evidence under due process)
- United States v. Manuel, 43 M.J. 282 (C.A.A.F. 1995) (held preservation rules confer military-specific rights beyond due process)
- United States v. Madigan, 63 M.J. 118 (C.A.A.F. 2006) (discussed retention obligations and scenarios where accused lacked reasonable time to request retention)
- United States v. Kern, 22 M.J. 49 (C.M.A. 1986) (applied Trombetta to military cases predating R.C.M. 703)