United States v. Brewer

STATES, Appellee, UNITED BREWER, Sergeant, L. Master

Ronald Force, Appellant. Air

U.S.

No. 04-0567.

Crim.App. No. 34936. Appeals Court of

U.S. Forces. Armed 3,May 2005.

Argued March 2005 and Sept.

Decided 2005. one-year a period

sions over of violation 112a, Military Article Uniform Code Jus- (UCMJ), (2000). § tice 10 U.S.C. 912a He general was tried a court-martial com- posed of officer and enlisted members who guilty found him and him sentenced to con- eighteen finement for months reduction pay authority grade convening E-2. The approved mandatory the sentence but waived pay forfeitures the benefit Brewer’s dependent son. The States Air United Force Appeals Court of affirmed find- Criminal ings unpublished opinion and sentence an Brewer, 28, April on 2004. United States v. No. ACM 2004 WL 2004 CCA (A.F.Ct.Crim.App. Lexis *24 Apr. 2004). upon positive

Brewer was convicted based urinalysis results for from test analysis and a hair test. The Government permissive relied on the inference that Brew- “wrongful” er’s was in order ERDMANN, J., opinion delivered the to meet that element charge. Court, GIERKE, C.J., in which and EF- sought Brewer to counter that inference FRON, J„ joined. and BAK- CRAWFORD presenting ingestion. evidence of innocent ER, JJ., dissenting filed separate each military judge excluded opinion. frequently witnesses who had observed Appellant: Major For James M. Winner during one-year period. Brewer time McDade, (argued); Major Colonel Carlos L. military judge gave also the members an Terry McElyea, Major L. Sandra K regarding instruction the burdens of brief). (on Whittington permissive for the inference that Brewer ar- (ar- gues Major mandatory For Appellee: pre- P. created rebuttable Kevin Stiens Combs, gued); sumption. Lieutenant Colonel Robert V. Spencer, Gary Major

Lieutenant Colonel F. granted We review to determine whether Johnson, Captain Taylor John C. C. wrongly Brewer opportunity denied the brief). (on Smith permissive to counter the of wrong- upon by ful use relied the Government and Judge opinion ERDMANN delivered military judge’s whether the instruction re- of the court. garding inference was erro- Sergeant Master L. Ronald Brewer was neous.1 conclude that the errors in this We charged using marijuana rights divers occa- case violated Brewer’s under the Due granted 1. We three 112a, UCMJ, issues: CLE AN CREATING ERROR VIOLATIVE OF DUE THE PROCESS I. CLAUSE. WHETHER THE GOVERNMENT IMPROP- III. ERLY SEVERED THE APPELLANT'S RE- WHETHER THE MILITARY JUDGE’S IN- WITH LATIONSHIP HIS CONFIDENTIAL A STRUCTIONS CREATED MANDATORY DEFENSE EXPERT CONSULTANT. IN REBUTTABLE PRESUMPTION VIOLA- II. TION OF THE DUE PROCESS CLAUSE WHETHER THE MILITARY JUDGE OF THAT APPELLANT’S USE MARIJUANA ERRED BY TO PERMIT REFUSING THE WAS WRONGFUL. APPELLANT TO A PRESENT MOSAIC OF III, our resolution of Issues II and we ALIBI WITNESSES TO COUNTER THE Because of UNDER need Issue I. PERMISSIVE INFERENCE ARTI- not reach argued that period. The Government time and were not harmless be- Process Clause certain, testimony concerning witness therefore re- yond a reasonable doubt. We during wit- limited frames which that States Air time United verse decision with Brewer was relevant Appeals. ness had been Force Court of Criminal Military confusing under Rules and/or (M.R.E.) 401 and 403. Evidence BACKGROUND responded pre- that Tidal counsel defense against Government’s case Brewer The testimony senting who knew of witnesses the positive drug test upon based two re- was with him for a the well and who were accused urinalysis The test on a sults. first was charged frame period of the time substantial randomly sample obtained after Brewer was ways respond one of for the defense the drug that sam- to be tested. After selected generalized the allegations Govern- positive marijuana the ple tested for Govern- that noted it would ment. Defense counsel a search authorization test ment obtained impossible who had be to find one witness sample Brewer that test also a hair from and period, for entire been with Brewer the time result use. returned for stated, trying to “What we are do is build analysis, on hair a Government Based the The proof one at a time.” our wall of brick expert Brewer “had witness testified that testimony from defense offered Brewer’s ingested [marijuana] multiple occasions in friend, girlfriend, live-in close his direct period opin- ....” In the time that witness’ di- supervisor, people and two who worked marijuana at least ion Brewer had used thir- rectly workday during him the to show with ty preceding times in the twelve months people that these ever saw evi- none of hair test. drug dence of use Brewer. defense results, In addition to the test to meet the testimony of all these contended that charge requires element use goes proof a “wall of people together to make “wrongful,” aof controlled substance be reasonable doubt.” raises permissive relied ‘“on a infer- Government judge military granted Govern- long wrongfulness which has been ence testimony ment’s motion exclude military flowing recognized by law regard except all of the Brew- witnesses predicate use of fact of At the girlfriend. er’s live-in close Ford, drug.” United States made prosecution’s case trial defense counsel (C.M.A.1987) (quoting ruling of that a motion for reconsideration (C.M.A.1986)). Harper, To military the motion. judge but the denied inference, this counter order mount girlfriend that she and Brewer’s testified ingestion, innocent a defense of Brewer Brewer would not allow mari- were strict and testimony sought to introduce the of five juana house. also smoked in their She to be witnesses “who were with and ob- [Brewer] anything to that she had not seen testified served behavior much of the relevant marijuana. A Brewer indicate that smoked frame and that if the accused had [sic] time testified, stat- nephew friend Brewer’s also marijuana they likely have used would seen ing nephew had often that he and Brewer’s of it.” some evidence house without smoked made in limine The Government a motion knowledge they once and that had Brewer’s testimony to exclude the of these witnesses. marijua- spaghetti made sauce that contained motion, support of its the Government na and it on stove. left introducing only urinalysis argued it was prior At close of the evidence analysis and hair test results and would not deliberations, military judge Brewer instructed presenting evidence that used this, in concerning drugs any specific the members time. Because drugs utilizing an that the evi- ference of the Government contended taken almost verbatim from could offer rebuttal instruction dence defense Legal Military Judges’ who Benchbook. See Ser would be the of someone had vices, 27-9, Army, Pamphlet one-year Dep’t of Mili with Brewer for the entire been (2001) tary Judges’ Benchbook ch. 3-37-2d marijuana) had not seen him use 405(b) [hereinafter Benchbook]. There was no ob should be admissible under M.R.E. jection to this instruction at trial. “good military because evidence of charac-

ter” is an essential element of a defense to charges In rejecting argu- use. DISCUSSION ment this court found that character an essential element of the defense in that Military 1. Did Judge Err in Exclud- case and that evidence of character therefore ing the Four Witnesses? Defense reputation limited to opinion evi- Brewer contends that military 112; 405(b). dence. Id. at see also M.R.E. judge in granting erred the Government’s Because character is not an essential ele- motion to exclude the defense witnesses be Brewer, ment of by defense raised we cause those necessary witnesses were to reach the same result in this case. Testimo- permissive counter the inference of ny of these witnesses was not upon admissible which the Government was allowed 405(b). not, under M.R.E. Schelkle rely. did how- responds The Government that the ever, testimony hold that this could never be military judge properly excluded the testimo admitted and ques- we therefore turn to ny by the witnesses offered Brewer be tion type testimony of whether this cause these improper witnesses were alibi grounds. admissible on other and character testimony witnesses and their therefore was inadmissible and was irrele It important is to note that the Gov vant proceedings. We a mili review permitted ernment was prove an essential tary judge’s decision to admit or exclude element of its case—that Brewer’s use of a evidence for abuse of discretion. See United controlled wrongful by rely substance was Sullivan, (C.A.A.F. — States v. “ ing permissive ‘on a wrongful inference of 1995). ness, long which has recognized by been argues Brewer that these witnesses would military flowing law as of the they have testified that “were with [Brewer] predicate Ford, fact of drug.” use of the and observed his behavior for much of the 162). (quoting M.J. at 333 Harper, 22 M.J. at relevant time frame and that if [sic] inference, To counter this Brewer relied on a marijuana accused they had used would like- ingestion” defense of part “innocent in based ly have seen some evidence of it.” The mili- nephew on the fact that his nephew’s and his tary judge testimony excluded the because friend often smoked in his house he found it not relevant. The lower court and on put marijuana one occasion in some affirmed, noting that these witnesses could spaghetti sauce at the house. properly not serve as alibi witnesses because Ford, In permissive we discussed the in- Brewer dispute did not drug that the entered ference and relationship its to defense evi- system and therefore properly could not dence of ingestion. innocent In that case the claim that he had an alibi for the offense. Government’s evidence consisted of a The lower court further held that Brewer urinalysis testimony result expert an improperly attempting present testi- concerning that present- result. The defense mony regarding specific instances of conduct testimony ed from “several witnesses who evidence, as character when such evidence is they testified observed no abnormalities reputation opinion limited to or testimony in suggesting drug his behavior abuse.” Id. 405(a). under M.R.E. at 332. There also was evidence that agree

We with the lower court that defendant’s ex-wife had access this evidence is not admissible as character and a motive to frame the defendant. Id. evidence under M.R.E. 404 and 405. argued presenting The defense this evi- Schelkle, ingestion negated dence of innocent the Gov- (C.A.A.F.1997), argued the defense ability rely that evi ernment’s on the (state specific dence of instances of conduct prove knowing ingestion, inference to or that in ments letters friends of in required the accused it alternative the Government prove time wrongful means that Brewer could evidence of present additional ingestion, could place his innocent use. Id. 333-87. of a explanations. Part suggest possible disagreed court with these defense This requires raising ingestion defense of innocent contentions, noting that witness minds of the members that doubt in the behavior that the defendant did exhibit system drug came presence a in Brewer’s use: indicative knowing wrongful use of from a challenges upon which the the basis fact of- drug. testimony of the witnesses wrongfulness predicated inference of provides grounds for the by Brewer fered ____ It was offered the defense to question whether draw in the factfin- create a reasonable doubt marijuana was use of inference that Brewer’s concerning prosecution’s minds ders’ an wrongful, thereby raising question as to proof of A conflict in circumstantial use. charged essential element offense. concerning the existence fact, however, We no merit the Government’s predicate does not bar use find simply of this testimo- of the inference. It means contention that relevance question ny resolve before because the Government members must diminished specific should time of alleged decide whether has not use. present charge one-year be drawn case. time spans Government’s marijua- alleges frame and that Brewer used omitted). (internal at Id. 335-36 citations during period. The multiple na times that specifically Ford not address While did the specific or Government does not offer dates presented in issue this it does demon- upon times of use because the test results recognized po- strate that court has the this provide do of which it relies not that level type testimony of the tential relevance of response, specificity. Brewer evi- offers by offered Brewer. “‘Relevant evidence’ spans one-year period dence that also that any having tendency to means evidence make using goes and show he was not to that seen the existence of fact is of that conse- drugs by frequently him dur- those who saw quence to the the determination of action ing period. that time probable probable less it more than would it is unrea- Under these circumstances not the be without evidence.” M.R.E. 401. Tes- charge sonable the Government to a one- for timony people spent from who substantial period, specificity year but the lack of should throughout charged time with Brewer the provide prohibit a basis to Brewer period purpose- that had not him seen giving per- facts rise challenging the fully drugs use or observed him under the upon by missive inference relied the Govern- go of drugs influence does to the issue of permissive ment. of a The use inference knowingly wrongfully he and whether used wrongful requires use the Government thirty drugs during at least times leeway a that court allow defendant some period. Contrary charged to the assertions using testimony to rebut that dissent, we believe that if the members proffered by such Brewer in this as that credible, testimony found this it would have military course, judge, case. retains The ingestion bolstered Brewer’s innocent de- power repetitive testimony to limit under fense. M.R.E. 403. arguing The dissent is incorrect military judge in case

only testimony of those who had this observed Because in his to who precluded Brewer home would be relevant his from four witnesses during ingestion his defense. Brewer did claim the observed Brewer outside home states, period, ruling denied Brewer the occurred his house the dissent possibility present opportunity rather offered the that his to a line defense on may wrongful in his use violated ingestion have occurred home element present nephew process right had wit- where used Brewer’s due positive urinalysis explain his result. The nesses in his own defense. See Chambers 410 93 very ingestion Mississippi nature of an innocent defense U.S. S.Ct. (1973) (“Few rights If L.Ed.2d are more such an issue is raised the evidence pres- presented, fundamental than that of accused to then is on the an the burden Unit- defense.”). ent witnesses in his ed to establish the use own We military wrongful. judge find that the therefore abused his discretion. Knowledge by pres- the accused knowledge

ence of the substance its may contraband nature inferred from Military Judge’s 2. theWas Instruction However, surrounding circumstances. the Members on the Permissive Infer- drawing of the inference is not re- Wrongful ence Plain Error? Use quired. argues military Brewer instructions, Following number of other judge’s instruction to violated military judge provided following Process Due Clause because it have general instruction: “the burden of caused a reasonable member to believe that guilt establish the of the accused a mandatory presumption there was government. reasonable doubt is on the wrongfulness, permissible rather than a in burden shifts to never the accused estab- argues ference. Government disprove lish or to innocence the facts neces- military judge’s instruction the members sary to establish each of the of- element was not erroneous it because was a correct fense.” statement of the law. At the close of the objection permis As no there was evidence, deliberations, prior the mili trial, sive inference instruction at we will tary judge instructed the members concern provide only if plain relief we find error. See ing inference of use Simpson, as follows: (C.A.A.F.2003). plain To test meet the punishable 112a, To be under Article error must show Brewer that there was er of a controlled substance must be wrong- ror, obvious, plain the was or error and the ful. of a Use controlled substance is materially prejudiced error his substantial justification if wrongful legal it is without Powell, rights. 460, 49 M.J. or authorization. (C.A.A.F.1998). 463-65 If Brewer meets this of a Use controlled substance is not test, the shifts to burden the Government to (a) if wrongful such act acts or are: done show that the error was harmless a pursuant legitimate to law enforcement ac- See States v. reasonable doubt. United Car (for (C.A.A.F.2005). example, ter, tivities an informant who is The court drugs part forced to use of an questions undercov- Simpson, reviews these de novo. operation keep being er to discovered 58 M.J. at 378. use); (b) guilty wrongful by is not of done error, To determine whether was there we personnel performance authorized in the of ask whether a reasonable member could have (c) experiments; medical duties or or done interpreted the instruction create a man to knowledge

without of the contraband na- datory presumption wrongfulness of in favor (for example, per- ture of the substance a of the See v. Mon Government. Sandstrom marijuana, actually son who uses but be- tana, 510, 514, U.S. 99 S.Ct. to be a cigarette cigar, lieves it lawful or is (1979) (“That L.Ed.2d 39 [of determination guilty wrongful marijuana). not of of use presumption by the the created nature of the may jury] of a requires Use controlled substance instruction the careful at be to spoken wrongful actually to be tention to inferred the absence of to the words the However, contrary. jury ... whether a evidence to the defendant has been the rights depends of accorded his constitutional drawing required. this inference is not upon way juror the which a reasonable of going The burden forward with evi- instruction.”). interpreted could the have respect any exception dence with to such in any upon per- begins by explaining court-martial shall be the The instruction that wrongful. claiming son its must It benefit. use be then found, wrongfulness should be exceptions a is three situations which of identifies (i.e., to the they exceptions are wrongful. presumed It next controlled substance is of wrongfulness). Inclusion wrongfulness general may members infer rule of states that possibility wrongful, “exception” creates the if no evidence that it is the word there is inter- required to so. member could have are not do that a reasonable that Then, require presump- that the burden of preted it tells instruction of of the to the going wrongfulness forward evidence absent evidence tion claiming person language exceptions contrary. confusing is on the ben- Because exception. Finally, the efit instruction might the mem- of the instruction have led if raised that “such an issue is presump- states that there was a bers conclude proof presented, then the burden use of tion that Brewer’s establish that upon the United burden wrongful that Brewer had the and/or wrongful.” the use was not, it was find that proving that we erroneous. instruction was confusing it The instruction because explain the “a does not difference between plain Next we ask whether the error production, requires which burden argues that or The Government obvious. exception as to that an issue an raised in- error there was no obvious because evidence, persuasion, and a burden of the law struction was a correct statement require to affirma which would an accused from the and was taken almost verbatim tively prove some standard However, despite inclusion of Benchbook. exception.” he came within the United Benchbook, military language (C.M.A. Cuffee, 10 States v. 382-83 judge obligation an to evalu- was still under 1981). explanation, Without such an mem appli- ate the determine its instruction ber believe that it is the defendant’s cability ease at The Benchbook hand. responsibility prove excep of the that one itself the instructions should be states applies, simply rather tions than raise the subject given “only of the note if the matter by presenting issue some evidence applies to facts and circumstances of Further, troubling, effect. more even l-3(b). case.” at ch. H Other- Benchbook may believe it is not until member one wise, instruc- accompanying notes and the exceptions proven by has been explain applicabili- tions “are intended to defendant that burden shifts back to the ty generally, to alert the instruction to show use. Government judge unusual optional trial elements or applications of the instruction.” Id. military judge’s The later instruction that “[t]he burden never to the to shifts accused permissive instruction Under the inference disprove establish innocence or to the facts for a given it would be difficult this necessary to establish each element of the lay person grasp the distinction to subtle not offense” does alleviate this confusion. a rebut- permissive between a inference and clearly permissive inference instruction presumption, table or to the difference know placed burden some on the defendant. As between a burden of a burden the “burden” later instruction refers potential persuasion. for confu- Because production both a burden and burden of sion of is in a case such these terms obvious persuasion, clarify it does not nature of one, carefully this need for craft- as more in the earlier instruc- burden referenced language explanation ed and for further result, as a tion. As a the instructions whole language obvious as See United well. could still confuse reasonable member. (C.M.A.1993) Curry, v. States (“Even we, lawyers, through if as can sift

Adding to the caused confusion judge must and deduce what the instructions explain respective burdens on failure to meant, lawyers factfinders have were “excep- word parties use of the correctly resur- presumed and cannot be categorize three circum- tion.” To law.”). wrongful though rect the the instruction that make Even stances a use Benchbook, clearly taken it was exceptions suggests unless one those was from the particular erroneous under the circumstances meet that charge. essential element of the Therefore, of this case and therefore obvious error.2 the exclusion of these witnesses beyond

was not harmless a reasonable doubt permis- because without their 3. Were the Above Be- Errors Harmless unchallenged. sive inference was left yond a Reasonable Doubt? prejudice This compounded instruction, regard to the erroneous af- military judge’s confusing and erroneous finding ter obvious error we ask whether this permitted instruction. Brewer was not materially error prejudiced Brewer’s sub- challenge the inference that his use was Powell, rights. stantial atM.J. 463-65. wrongful, while at the same time reasonable Because in this case we have a constitutional have error, understood the instruc we must evaluate whether the Govern- require tion to them to wrongful find the use ment has shown that the error was harmless if Brewer did not showing make sufficient beyond a reasonable doubt. Id. at 465 n. *. contrary. Brewer was left without regard military With judge’s ruling recourse rebut an essential element of witnesses, excluding defense this court has him, charge against “[bjecause and the Government was noted that an accused has the prove relieved of its burden to that element right present witnesses under the Consti- beyond a reasonable doubt. We find that 703(b), tution and RCM the Government prejudice these errors created to Brewer must show that this error was harmless be- beyond is not harmless a reasonable yond a reasonable doubt.” United Miller, doubt. (C.A.A.F.1997). 359-60 will together

We review both errors to deter- mine right whether the denial of Brewers DECISION process due was nonetheless harmless be- The decision of the United States Air yond a reasonable doubt. Appeals Force Court of Criminal is reversed. argues Brewer that neither of the errors findings and sentence are set aside. was harmless a reasonable doubt be- The record Judge is returned to the Advo- ability cause affected his properly cate Air rehearing General of the Force. A defend himself on the element of is authorized.

use. The Government contends that er-

ror that did occur was harmless because CRAWFORD, Judge (dissenting): the extent of against the evidence Brewer. I respectfully majority’s dissent from the analysis disposition of both issues. As to excluding We find that four de II, majority Issue finds a violation of due impossible fense witnesses it made for Brew process because was not allowed to present er to his defense that those who saw specific good introduce acts of character to frequently him most por over a substantial knowing rebut a use charged tion of the time frame had not seen marijuana, despite Appellant’s own failure marijuana, him possess marijuana para advantage Military to take of the Rules of phernalia, appear or to be under the influ Evidence and our decisions to introduce marijuana. ence of This of line defense was highly similar “good evidence under the sol- relevant to rebut the his use of dier defense.” marijuana wrongful. While Govern III, strong ment is correct that its respectfully evidence was As to Issue I dissent be- support finding a majority that Brewer had the implicitly cause the overrules the marijuana system, in solely provisions his it relied on of the Manual Courts-Mar- (2002 tial, ed.) (MCM), inference of use to United States con- 23, Although (A.F.Ct.Crim.App. 2. this issue was not reached the Air WL 1539559 at *4-6 June 2004)(unpublished opinion); Voda, Force court in this it has found on two United States v. 35337, 29, previous giving occasions that this instruction No. ACM 2004 CCALexis at *5- Fuller, 10, (A.F.Ct.Crim.App. constitutes error. See United States v. No. WL at 2004 190265 *2-3 182, *11-16, Jan.26, 2004)(unpublished opinion). ACM35058 2004 CCALexis at 2004 433 liberty and strikes between properly to Constitution cerning and fails modes order. plain error doctrine. consider the 443,

Medina, 112 S.Ct. 2572. 505 U.S. at Dowling in Importantly, Supreme Court II ISSUE free, “[jjudges are emphasized impose on law process,’” to defining ‘due FACTS ‘personal “[their] enforcement officials give randomly selected to Appellant was fairness____” Dowling, private notions’ of positive for the sample, urine which tested 353, (quoting Unit 110 S.Ct. 668 493 U.S. marijuana. positive test Based on this 783, 790, Lovasco, 431 U.S. ed States result, the Government obtained search (1977)). 2044, If the 52 L.Ed.2d S.Ct. samples Ap- hair authorization to seize out and are to be ferreted Rules of Evidence positive. The pellant, which also tested Gov- Due by judges under the cloak of the made expert Appellant testified that “had ernment Clause, the law of evidence will be Process ingested [marijuana] multiple occasions “Making to those the field. inaccessible ” expert’s opinion, Appellant .... In the had is the main reason evidence law accessible thirty at least times over used influ that has become the most for the code preceding seizing of period twelve-month body of the American evidence law— ential samples. hair Rules of Evidence.” Christo the Federal Appellant readings were asserts these Kirkpatrick, pher B. & Laird C. Mueller inhalation, passive possibly from the result of Evidence, and Practice Modem Doctrine were, him, individuals who unbeknownst (1995). 1.2, Hearings § on the at 4 See also smoking sprin- at his house and Special Proposed Evidence Rules before marijuana. support kling his food with To Crimi Subcommittee on Federal Reform of unwitting, passive inhalation unknowing, Judiciary, nal Laws the Committee on ingestion, Appellant sought to call four Cong. 90 Representatives, House 93d testify him witnesses who did not live with Jr.)(“[T]he (1973)(testimony Jenner of Albert specifically had not seen justice in courts administration of the federal using drugs. though Appellant Even failed seriously. major A in this suffering factor advantage of our relaxed character to take regard maelstrom of rules of evidence is the rules, majority holds there was presently out and which must be ferreted process. a violation of due judges.”). applied by federal (C.A.A.F.2005). Brewer, 61 M.J. at (M.R.E.) Military Rules of Evidence “applicable in courts-martial ...” M.R.E. are DISCUSSION governing admission of char- 101. The rules “ set forth in M.R.E. acter evidence are ‘require[s] The Due Process Clause These rules have been inter- and 608. procedural safeguards be the most basic preted very expansively this Court: observed____’” California, Medina v. 437, 453, 112 120 L.Ed.2d U.S. S.Ct. availability good soldier The broad (1992). “[B]eyond specific guaran many legal supported by doc- defense is Rights, Bill enumerated in the tees policy arguments, but none trines and operation.” Due Process Clause has limited analysis. withstand close Cloaked States, 342, 352, Dowling v. 493 U.S. United longstanding court-martial tradi- mantle of (1990): 668, 107 L.Ed.2d 708 110 S.Ct. tion, justified by questionable doctrines salience, by judges preserved resistant Rights speaks explicit Bill terms Military Evidence’s limita- Rules of procedure, many aspects of criminal evidence, good sol- character tions on guar- expansion of those constitutional perception advances the dier defense open-ended of the under the rubric antees long privileges high rank and one of the undue interfer- Due Process Clause invites at immunity from conviction judg- service is legislative considered ence with both a privileges The defense court-martial. and the careful balance ments actions, type specific civil instances are admissible certain of accused servicemember —a high reputation negligent person of rank and there has been a entrust- when community ment, defamation, military expense of the or liable actions. None —at sys- overall fairness of the court-martial applies those in this case. tem. recognized rules The drafters Hillman, Note, Elizabeth Lutes The “Good im- past inferences from behavior would be Soldier” Character Evidence Defense: portant, but excluded such under Fed. Courts-Martial, Military Rank at 108 Yale (the 405(a)) 405(a) R.Evid. model M.R.E. (1999). so, Even the defendant L.J. reasoning that the three methods of “[0]f advantage by of these rules did take rule, provided by proving character evi- introducing law-abidingness evidence of specific dence of instances of conduct is the presenting good a soldier defense. convincing.” pos- most At the same time “it broadly applied,

However read and none of greatest capacity preju- to arouse sesses permits specific acts these rules evidence dice, confuse, surprise and to consume good pertinent character to the character Advisory time.” Fed.R.Evid. Notes of prove. trait wished to Unable to Here, indicated, on Rules. Committee rule, rely any character evidence the ma- specific instances do not cover the relevant jority relies on the “relevance” such evi- period, they. time nor could around-the-clock independent dence as an for admissibil- basis Thus, respectfully I from the fur- dissent ity prohibited by other character evidence expansion ther of character evidence rules. Setting rules. for the moment that aside cognizable category relevance alone is not a evidence, hypothetical demon- of character ISSUE III fallacy majority’s

strates the of the reliance on relevance at all. a defendant is Assume FACTS charged with vandalism of car on June assume, During preliminary instructions before p.m. disprove at 11:00 Also dire, stated, vandalism, military judge testify voir “The he offers a witness the street presumed the witness walked down accused is to be innocent of the p.m. where the car was located 9:00 has the burden of offense. Government Any not see the defendant. court would did proving guilt legal the accused’s and com- being exclude that evidence as irrelevant un- petent evidence a reasonable doubt.” less other evidence made it relevant.1 Cer- oath, agreed all of the members Under tainly, on the at 11:00 whether he was block presumed the rule of law that the accused “is p.m. of “conse- on June would be evidence guilt until his is established to be innocent action,” quence determination competent beyond a rea- legal and evidence p.m. but that he was not seen there at 9:00 agreed sonable doubt.” All of the members measurably does not reduce the likelihood guilty unless to find the accused not p.m., unless some that he was there at 11:00 beyond a reasonable doubt were “convinced other evidence establishes that likelihood. guilt. They agreed that the ...” of his also proof to establish the accused’s burden of majority oppo- would like to hold the guilt solely upon prosecution, rests (Fed. site. Like Federal Rule of Evidence shifts to the defense the burden never 405(b) R.Evid.) 405(b), prohibits M.R.E. innocence, and that establish the accused’s of conduct specific introduction of instances obligation present the defense has no unless “character or trait of character of elements of the disprove or to an element of an offense person is essential ” recognized the The members also offense. .... an issue in or defense Character is “knowing ingestion of between distinction entrap- cases when the defense of criminal unknowing- “using marijuana marijuana” and or a character for truthfulness ment is raised ly, which is not a crime.” of the defense. is an essential element 104(b). e.g„ See, 1. M.R.E. any is not re- drawing of the court military judge instructed quired.

members: Emphasis added. presence of the con- Knowledge of the component required is a trolled substance Later, the members: he instructed Knowledge presence of of the of use. advised, first, You are further from may be inferred controlled substance until presumed to be innocent accused is the controlled substance presence of compe- by legal and established guilt body circum- or from other the accused’s doubt; beyond a reasonable tent evidence permissive infer- This stantial evidence. to establish the proof of ... the burden satisfy may legally be sufficient ence beyond a reasonable guilt of the accused proof as to knowl- government’s burden of The burden government. doubt is on edge. accused to establish shifts to the never disprove the facts neces- or to innocence 112a, use punishable under Article To be of the of- sary each element to establish wrong- substance must be of a controlled fense. substance is ful. Use of controlled justification legal wrongful if it is without objection to these instruc- There was no or authorization. military portions of the tions. The italicized taken verbatim judge’s instructions were a controlled substance is not Use of United from the Manual Courts-Martial (a) wrongful such act or acts are: done if 37c(5). (2000 ed.) (MCM), IV, pt. H pursuant legitimate law enforcement Military Judges’ from the The instruction (for example, an who activities informant Benchbook is as follows: drugs part as of an under- is forced use 112a, punishable under Article To be operation keep being from discov- cover wrong- must be of a controlled substance (b) use); guilty wrongful is not of ered of a controlled substance is ful. Use personnel per- done authorized in the justification legal if wrongful it is without experi- or medical duties formance of (Use a controlled sub- or authorization. of (c) ments; knowledge or done without of wrongful if act or acts stance is not such nature the substance the contraband (a) pursuant legitimate law are: done marijua- (for example, person uses who (for example, an in- activities enforcement na, actually but believes it to be a lawful drugs part formant is forced to use who guilty wrongful cigarette cigar, or is not operation keep of an undercover marijuana). use of guilty wrongful being discovered is not may (b) Use of a controlled substance be use); personnel done authorized to be in the absence duties or performance of medical inferred However, experiments.) contrary. evidence to the drawing required. of this inference is not Knowledge by presence the accused knowledge of its con- of the substance and going with evi- The burden of forward may from the nature be inferred traband respect any exception such dence with (including surrounding circumstances per- upon a court-martial shall be (You _). not limited to claiming son its benefit. presence may infer from the by the evi- such an issue is raised If (_) in the accused’s urine presented, then the burden dence (he)(she) used the accused knew upon to establish that the United States (_).) However, wrongful. the use was required. drawing of inference is not pres- Knowledge by the accused of the may in- be Use of a controlled substance knowledge its ence of substance wrongful in ferred to be the absence However, nature inferred from contrary. contraband evidence to the However, required. drawing of this inference is not surrounding circumstances. 436 Services,

Legal Dep’t. Army cases, Pamphlet 27- Id. criminal “[I]n the ultimate test of 9, Benchbook, 3, Military Judges’ para. any ch. validity given device’s constitutional in a (2001). 3-37-2d ease remains constant: the device must not responsibility undermine the factfinder’s Argument. Appellant argues it Defense trial, by on based evidence adduced the using was error to instruct the members State, to find the ultimate facts above, portion highlighted of the instruction Id.; reasonable doubt.” see also In re Win it “mandatory because created a rebuttable 358, 364, ship, 1068, 397 U.S. 90 S.Ct. 25 presumption” Appellant’s use of (1970). L.Ed.2d 368 wrongful. He contends that reasonable court in- “[a] member could have presumptions Who creates and inferences. terpreted relieving the instruction as noted, presumptions may As Justice Powell government persuasion of its burden of by legislative be created bodies based wrongfulness shifting element and sense, experience____” on “common and Al entirely appellant.” burden Thus a len, 172, (Powell, J., 442 U.S. at 99 2213 S.Ct. court member could have understood that dissenting). authority The President has the government any “the had no burden of kind presumptions to create and inferences under wrongfulness____” on the element of 36, Military Article Uniform Code of Justice Argument. Government The Government (UCMJ), (2000). § 10 U.S.C. 836 Unless argues military judge’s instruction did prohibited by controlling contrary, law to the explicitly mandatory create a rebuttable procedure, matters of the President has presumption, because it did not direct the authority place either or both the presume members the use of production burden of persuasion on the wrongful. contrary, To the the instruc- appropriate provi defense and has done so in properly tion allowed the infer noted, sions of the MCM. As the italicized wrongful, the use was but noted that given instructions in this case were taken required. inference was not Further, verbatim from the MCM. those instructions, same benchbook taken substan DISCUSSION MCM, tially verbatim from the have been used in hundreds of cases. prosecution There was no error. The “ rely permissive entitled to ‘on a uniformly upheld The courts have as- wrongfulness, long recog which has been signment of the initial burden to the defense by military flowing nized proof law as from duress, necessity, responsi- as to and mental predicate fact drug.” of use of the Unit fact, issue, bility. as to this latter Ford, ed States v. 23 M.J. places upon MCM the defense not (C.M.A.1987)(citing Harper, v. United States presumption sanity burden rebut but (C.M.A.1986)). 22 M.J. See also requirement to do so clear and con- Pabon, 406 vincing Many special evidence.2 or affirma- (C.A.A.F.1995). tive defenses entail shifts burdens and Supreme Court has stated that “[i]n inferences, permissible e.g., entrapment and presumptions staple ferences and are a of duress. adversary system fact-finding. our It is said, All that what this case entails is a necessary often for the trier of fact to deter inference, permitted the Su- mine the existence of an element of the law, President, Court, preme our case is, crime —that an ‘ultimate’ or ‘elemental’ common sense. As to inferences fact —from the existence of one or more ‘evi presumptions, Supreme Court said: dentiary’ County or ‘basic’ facts.” Court of Allen, 140, 156, evidentiary County The most common device Ulster U.S. (1979). entirely permissive presump- inference or S.Ct. 60 L.Ed.2d 777 The infer tion, necessarily require— presumptions ences and do not which allows—but does deprive process rights. an accused of his due the trier of fact to infer the elemental fact (R.C.M.) 916(k)(3)(A). 2. Rule for Courts-Martial (presence fact of the basic of the basic the evidence prosecutor system), places drug’s metabolite in one’s places which no burden

one and In any In that situation kind on the defendant. kind on the defendant. no burden of may prima words, facie fact constitute if were to the basic even the defendant other whatsoever, fact. re- of the elemental When evidence the mem- introduce no evidence device, type of the Court has viewing this reject absolutely free to would be bers required party challenging it to demon- inference, that the Govern- permissive find invalidity him. Be- applied its as to strate use, proved wrongful and ac- ment had not presumption leaves permissive cause this Allen, 157, 442 at 99 S.Ct. 2213. quit. U.S. reject to credit or the trier of fact free in a sub- key issue this case was The of inference and does not shift the burden i.e., there wrongfulness, whether element of application of the “be- proof, it affects the by substance knowing use of controlled if, only yond a reasonable doubt” standard single in Appellant. the case which Unlike ease, there is no under the facts of the alleged to have occurred use of way make the con- rational the trier could wrong accidentally when an accused ate For permitted nection the inference. party, knowing, brownie at a the evidence any only in that situation is there risk that overwhelming. multiple usage by Appellant is explanation permissible inference an circumstances, instructing on Under these by jury, jury, to a or its use has caused permissive the existence of a presumptively rational factfinder nothing than a remind- wrongfulness is more make an erroneous factual determination. they not check er to the members need (internal Allen, 157, 442 U.S. at 99 2213 S.Ct. to the delib- their common sense at the door omitted). citations eration room. Mandatory permissible presumption vs. mandatory presumption A tells Contrary Appellant’s inference. Initial allocation. he, she, they the trier of fact that must military judge explicit argument, the upon proof find the elemental fact proving his instruction that burden fact, has come basic unless defendant Government, and wrongfulness was on the some evidence to rebut forward with produced that even if the defense presumed connection between the two facts. unknowing support an or otherwise lawful Supreme The a class of Id. Court noted use, proving wrongfulness, be- the burden quasi-mandatory presumptions merely “that doubt, yond a reasonable remained with production to the defen shift burden proof, The burden of with re- Government. dant, following the satisfaction of which the innocence, Appellant, gard to never shifted to persuasion ultimate burden of returns military judge, through his in- nor did the prosecution; presumptions entirely and structions, presumption create a rebuttable shift the burden of to the defendant.” guilt. explained the ele- The instructions 160, 16, n. Id. at 99 S.Ct. 2213. The Court wrongfulness, the members ment of stated, presumption “To the extent that a chose, if wrongfulness, could infer extremely produc imposes an low burden of determining whether to make that being by ‘any1 e.g., satisfied evidence— tion — it inference, the members should consider evi- may impact greater that its is no well be exception an dence that could establish inference, than that of a and it wrongful might otherwise be a use. He what Id.; proper analyze it as such.” be also instructed the members: “The burden of Wilbur, 684, Mullaney see also U.S. going respect forward with evidence 31, 1881, 702 n. 95 S.Ct. L.Ed.2d 508 any exception in court-martial shall such (1975). claiming upon person its benefit.” Appellant’s, In mem- cases such that his is simi arguing Fuller. case to infer use. This bers are allowed Fuller, larly States v. No. allows, situated to United entirely permissive inference but does *11- LEXIS ACM CCA require, the trier of fact to infer the (A.F.Ct.Crim. proof by 1539559 at *4-6 (wrongfulness) fact WL elemental the human 2004)(unpublished opinion), The added that because App. June marijuana rapidly, an body indi- Appellant fails to consider all the instruc metabolizes usually military judge vidual will test for THC given tions days particularly knowledge, inno three after one recreational use. those on Therefore, theory unknowing ingestion. prosecution’s at trial ingestion, cent days Appellant ingested drugs a few military judge appropriately tailored the was high urinalysis. by including instructions before his standard lighting the evidence raised the defense. prosecution presented also the results Finally, military judge in concluded his Appellant’s analysis support hair its again reminding the structions once marijuana theory Appellant had used on prosecu that the “burden is on the during charged divers occasions time- guilt tion to establish the of the accused.” testing dividing involved hair frame. error, segments Appellant. if it taken from As each Plain error. Even there were objection by segment represented approximately plain. was not There was no twelve 920(f). analysis growth, the hair would the defense in this case. R.C.M. months 39(a), UCMJ, fact, during suggest rough Appellant’s drug session the Article idea 5, instruction, prior on the there was a discussion of months for the twelve October 2000, day side com- sample these instructions and neither the hair was taken. upon mented it. In Johnson v. United cannot be found in hair unless the THC States, Supreme Court stated: body actually marijuana. metabolizes [Bjefore appellate an court can correct an marijuana in hair metabolite for is (1) trial, error not raised at there must be mar- strong indicator that the individual used (3) (2) “error,” “plain,” and ijuana, virtually impossible as it is for THC rights.” “affects substantial If all three body if to enter the hair has metabo- met, appellate conditions are an court Furthermore, expert drug. lized the testi- a for- then exercise its discretion to notice mony person that the whose hair established “ (4) error, only if error ‘seri- feited ingested was in this case had THC on tested fairness, ously integrity, pub- affects the or multiple period. occasions in the time ” judicial proceedings.’ reputation lic positive Appellant’s certainly hair tested 461, 466-67, 117 520 U.S. S.Ct. 137 marijuana, Appellant as did his urine. (1997)(internal citations omit L.Ed.2d 718 testing procedures, did not attack the lab Kho, ted); v. 54 M.J. see also United States In the interpretation of the results. (C.A.A.F.2000). 63, 65-66 analysis expert’s opinion, based on the hair alone, thirty Appellant had used at least re- “affect[s] There is no difference between marijuana creational doses of for the twelve rights” preju- ] substantial and a “material sample preceding the date the hair rights” Article months substantial under dice[ ][of] 859(a)(2000). UCMJ, provided. 59(a), § See 10 U.S.C. Kho, C.J., (C.A.A.F.2000)(Crawford, concurring in CONCLUSION result). it Even if there were error and panel Any rational court-martial would plain, it not “affect substantial did fairness, beyond a reasonable “seriously in- have been convinced

rights” or affect the knowingly wrong- judicial tegrity, public reputation of the doubt Johnson, marijuana, Appel- all of fully used even had proceedings.” 520 U.S. at testified, case, without lant’s witnesses 1544. In this there was S.Ct. inference. The Department of cutoff level instruction on that the Defense testing speak from the hair alone metabolite numbers for confirmation for (THC) at- The defense evidence nanograms per mil- for themselves. urine is fifteen in- tempting possible innocent urinalysis sample, given establish Appellant’s liliter. simply 7, 2000, passive inhalation were gestion for THC August on tested There was also evidence nanograms per milliliter. unbelievable. the amount of 97.89 instructions, Irrespective during the lant. negative reactions Appellant’s beyond a rea- testimony established expert process. search Appellant used doubt that sonable alleg- rely on the counsel did not The trial Appel- Even if all of multiple occasions. or even refer edly erroneous instructions admitted, the over- had been lant’s evidence Trial counsel closing argument. them his case whelming strength of the Government’s argument theme of his up the summed Appellant’s weakness comparative and the telling the members: defeating” “character,” “alibi,” or “inference doubt. beyond a reasonable Convinced conclude, beyond a rea- lead me to It absolutely there. in this it is And doubt, trial results would sonable no absolutely you. There is in front Kerr, same. have been the United presented hypothesis. The one reasonable (C.A.A.F.1999). absolutely not reason- by the defense is have There is no other one. We able. Thus, ma- from the respectfully I dissent hypotheses to ex- all reasonable excluded Military Rules jority’s expansion of the plain his situation. Clause, under the Due Process Evidence consider the instructions from its failure to closing argument, defense counsel During the entire military judge in the context of the the members understood made certain rejection the modes of from its apply. counsel standard to Defense correct by the President. proof promulgated argued: you apply must is whether The standard to whether any reasonable doubt exists as BAKER, (dissenting): Judge knowingly and Sergeant Master Brewer majority that the testimo- agree I with the marijuana .... wrongfully used not ny witnesses was admissible of these “Well, know, that, may I You someone feel (M.R.E.) Military Rule of Evidence under it,” or, “He didn’t probably think he did 405(b). And, majority’s general I share the urine hair tests —he prove that is allowed view that where Government any proof that make didn’t wrongdoing permissive inference Well, wrong.” urine and hair tests were test, some drug should be allowed an accused standard____ that not the is leeway presenting a defense to counter Brewer, according to the Sergeant Master inference, especially where the Government you going to Judge’s instructions which are occasions, leaving the charge divers is free to hear, prove anything. The doesn’t have to every day every minute of accused to defend government. also rests with the burden specific every rather than address week argue, went on to “[w]e Defense counsel context, And, drug test act or date. theory. present alternative don’t have (and symmetrical there- something is there present has to the scenario

The Government fair) seemingly about an accused balanc- fore it must hold true a reasonable that permissive inference ing the Government’s doubt.” of his own that with a Additionally, presented once both sides A argue that if did permits him to Witness military judge findings arguments, the their Tuesday there drug activity on then not see that “the burden instructed Tuesday drug activity on not have been must guilt of the accused proof to establish the night. govern- beyond a reasonable doubt is on the Wit- the Four The Exclusion Defense to the ac- The never shifts ment. burden nesses to dis- his innocence or cused to establish necessary each prove the facts to establish case, however, not in this question The of the offense.” element military judge might per- have whether the “exculpatory tes- Appellant’s witness” circumstances, mitted it be- is clear Under these relevance, theory of timony on a lenient instructions yond doubt that the a reasonable and, military judge abused his discre- they if whether the even at issue were not erroneous not do so. For the reasons Appel- tion when he did were, they unfairly prejudice not did 440 excluded, below, military judge probative if “its value is

stated did substantially outweighed by danger abuse his discretion when he excluded the ” testimony prejudice of three of unfair .... M.R.E. If the four witnesses. 403. witness, respect military judge weighs With to the fourth whose the evidence and ex “ excluded, it, improperly ‘appellant going the er- cludes has the burden of argument ror was harmless. forward with conclusive Shover, judge abused his discretion.’” 45 majority opinion, As recounted four Mukes, (quoting M.J. at 122 v. United States military witnesses would have testified on (C.M.A.1984)). We will not Appellant they behalf of him were with military judge’s reverse the decision unless and observed his behavior for much of the appellant persuades us that there was a frame, relevant if time and that the accused “ ” Browning, ‘clear abuse of discretion.’ marijuana they likely had used have would (C.A.A.F.2000)(quoting M.J. United seen some evidence of it. Three witnesses (C.A.A.F. Johnson, Appellant, supervisor worked with one as 1997)). They and two as his co-workers. would have problem Appellant’s theory Appellant testified to their observations of admissibility three of the four witness week, during daytime hours of the work statements were not relevant to the issue of stating had never seen evidence of Appellant’s ingestion drugs. innocent part Appellant. use on the witness, Appellant’s fourth close friend and a in- did contest he had sergeant, working former Air Force staff gested drugs. The Government offered Appellant’s duty a civilian at station urinalysis spectrum results of a and hair time, testify prepared spent that he analysis point, on this and the results were significant Appellant every time with week- undisputed. Appellant did not take the Appellant end and that while he never saw himself, stand but he did defend drugs him influ- observed under the grounds innocently ingested that he had drugs, Appellant’s ence of he had observed drugs, ingestion and that the innocent was nephew marijuana. under the influence of likely exposure more than result of his nephew’s nephew’s illegal his and his friend’s counsel, According to defense such wit- Appellant off- conduct his house while helped nesses would have to “build our wall duty. In the words of his civilian defense one brick at a time.” Trial defense counsel: argued admissibility counsel for the of these September Sergeant Master by claiming, long witnesses’ statements “as Brewer learned that his random urine wall, part as each of our it is rele- brick sample positive____ had tested military judge ultimately granted vant.” The motion to exclude this tes- Government’s timony. Brewer, Sergeant learning when Master sample, of his sat the OSI office undisputed It that an accused has a stunned, why trying figure out did this right present constitutional relevant evi “Why my sample positive? come back against charges. dence to defend That marijuana?” positive for however, right, is not absolute. United months, Fortunately, intervening in the (C.A.A.F. Browning, M.J. Sergeant Brewer has been able to Master 2000). proponent of The burden is on the likely sample caused his out what find admissibility. the evidence to show United positive. come back (C.A.A.F. Shover, States v. “ 1996). this, Now, following chronology ‘Relevant evidence’ means evidence any tendency Sergeant Brewer came home having to make the existence of when Master year consequence day, spoke he to his 20 old fact that is of to the deter Tron probable nephew, or less Antron Harris —he is called mination of the action more happened. what had And probable than it would be without the evi short —about suddenly day, Tron moves out of Relevant evidence the next dence.” M.R.E. 401. science in Brewer, dispute about the There is no Sergeant But Master that house. case____ time, this connect the events at that didn’t all. the scientific agree we with The reason agree expert substantially —is — reaches, the science that he conclusions months, he eight next six or Over the testing, are urine the hair and trying figure out lot of time spends a I de- the scenario not inconsistent with question. He is discuss- to this the answer Brew- Sergeant If Master scribed above. it, researching people, ing it with various marijuana by unknowingly ingested er had discussion, unlikely during one one during summer eating sauce spaghetti Milds, discussion, Black ’n he learns that likely he drug, it’s not containing a cigars, the kids will fre- Black ’n Milds felt intoxicated. would have ’n from Black quently unroll the tobacco likely would have tested But he Philly cigars, cheap cigars and blunt Mild urinalysis a reasonable time on the within 7-11, you get and fill cigars that can at the Moreover, it more if he ate after that. cigar up with so them back once, many spa- people will eat than marijuana tobacco are to- and the tobacco cetera, et it is also ghetti as leftovers that as a gether cigar and smoke posi- hair would test inconsistent that his body. delivering marijuana to the way of later, hair, tive, even pubic his two months it starts to he recalls —this is when And months later. twelve Tron, nephew, smoked click—that his Emphasis added. get cigars. ’n He is unable to Black Mild offered, and the Subsequently, thinking hold of Tron. He also starts testimony of military judge permitted, kids, friend, Tron’s who about one friend, to smok- nephew’s his who admitted frequently was at the house that summer making marijuana in the food ing house Tron, basically his friend in the However, drug. with the three laced area, a kid named D.J. And that kid only testify could four excluded witnesses patterned style, so to was—kind duty during at work Appellant’s conduct rapper rap star speak, after a called — testify They competent hours. were Eminem____ called Appel- Appellant’s nephew’s conduct or connecting starting to But in this and appearance or activities while outside lant’s about, this, thinking “Did think about he is Therefore, workplace. it is not evident my bring marijuana into Tron and D.J. consequence prof- as to which fact of their get And he can’t a hold of house?” testimony fered would have addressed. Tron____ But he remembers where D.J. it is not how their Specifically, evident goes to work and he works. He D.J.’s less testimony would have made it more or Bingo. confronts him. drug Appellant’s acknowledged probable that home, he ingestion place at where they marijuana, but Not did smoke occurred, inno- ingestion claimed the had was re- they marijuana. specifically ate D.J. did not wrongful. cent or These witnesses occasion, marijuana they put calls on one speak not about see it. These witnesses did get spaghetti sauce and ate it to in some proffer And the made no Appellant. it with was at the house —Master high. And that compe- were suggestion that these witnesses Sergeant Brewer’s house. conditions, testify regarding prac- tent to tices, Appellant’s house. or behaviors kept Sergeant The sauce was in Master food, refrigerator Brewer’s like other wit- respect to the fourth excluded With eating probable that this sauce and it’s Appel- testify about ness who intended spiked marijuana, Tron had that suspected off-duty activities and the lant’s Sergeant positive Master Brewer tested for nephew, his testimo- Appellant’s use of marijuana. ny improperly excluded. He would have Appellant’s

provided evidence relevant innocently marijuana ingesting claim of conclude that the exclusion of this witness’ brought neph- had been into the house testimony substantially his did influence the However, majority, ew. unlike the I cannot guilty findings. determine that this error was a constitutional Appellant’s argument To counter the Appellant’s process right

violation of due ingested marijuana unknowingly by he had against charges against defend him. passively inhaling the smoke caused his right testimony to offer the of wit- basement, nephew’s drug use in the the Gov- plain right nesses is in present terms the presented ernment testimony extensive right present defense and the the defen- Selavka, Dr. Carl Selavka. Dr. the Director dant’s Washington version of the facts. of the Massachusetts State Police Crime Texas, 14, 18, 388 U.S. 87 S.Ct. 18 Laboratory forensic chemist and toxi- (1967). L.Ed.2d 1019 Just as an accused has cologist, length passive testified at about in- right prosecution’s to confront the wit- performed halation studies that had been challenge testimony, nesses and their he has subjects with known prior who did not have right present his own witnesses to marijuana systems. in their These studies establish his defense. Id. at 87 S.Ct. sought to passive determine the likelihood of right, 1920. This rooted the Sixth Amend- giving positive inhalation findings rise to ment, pro- is a fundamental element of due samples. blood and urine Dr. Selavka stated cess. that such studies demonstrated that the less inhaled, ingested smoke is the less meta- Appellant was able to will bolite be detected in an individual’s bio- present ingestion. his defense of innocent logical Specifically, tissues. he detailed a Though Appellant stand, never took the study in which exposed individuals were nephew fiancée and a friend of his both marijuana the second hand smoke from four behalf, asserting testified on his each small, cigarettes very in a closed environ- Appellant had never witnessed the us- every day ment for hour at a one time for six ing drugs. Additionally, nephew’s friend individuals, days. according length marijuana testified at about that was study, Depart- did not test for the Appellant’s smoked in basement and food exposure. ment Defense cutoff after such prepared Appellant’s house possibly contained served to Likewise, testified, Dr. Selavka when Appellant knowledge. without his While the asked about likelihood of the excluded of the fourth witness testing positive use after in- defense, might have bolstered that the omis- gesting pasta drug: sauce laced “In with the deprive Appellant right sion did not of his ingestions, just of other absence there is present it. enough ingestion THC over period represented by logi- time the hair to examining When an error that is noneon cally give positive finding rise to the from the nature, stitutional in we seek to determine spaghetti sauce scenario itself.” This testi- harmless, whether the error was not whether mony ques- would have led the members to beyond it was harmless a reasonable doubt. Appellant’s theory by tion bringing to their Pollard, 51-52 (C.M.A.1993). attention that there were studies that demon- test for nonconstitutional explanations strated that his for his error is whether the error had a substantial drug simply plausible. tests were not Fur- findings. influence on the Kotteakos v. Unit ther, States, unlikely any testimony it is 750, 765, ed 328 U.S. 66 S.Ct. (1946). Thus, nephew’s the excluded witness about the L.Ed. 1557 if we conclude that drug negated in use the house would have substantially the error influenced the find testimony persuaded Dr. Selavka’s ings, grave or if we are in “left doubt” wheth influenced, Appellant’s possible exposure findings members that er the were so we must drug distinguishable light pre reverse. Id. of the evidence to the was somehow by Appel exposure from the of the individuals who sented the Government to rebut theory ingestion, participated study. lant’s of innocent we can in the the text and lawyers can dissect Additionally, the excluded —who meaning from directly contra- parse have alternative legitimately witness would fourth by Appellant’s presented phrase. For exam- every dicted almost word drug use in their the issue of fiancée on remain- in isolation from the ple, when read testified that she and Specifically, she home. instructions, military judge’s der drugs to be not allow would statement, exception [an “If such an issue about questioned home. used in their When pre- raised the evidence is use] Appellant’s nephew whether she knew sented, on the United then the burden is using drugs in may have been and his friend wrong- the use was to establish that basement, responded: “I was never she Of Emphasis added. problematic. ful” is it, very about— but we were strict aware always course, on the burden anything like that in our we didn’t allow that use was to establish United States I knew of it. He never house. But never the word “then” wrongful, the use of in of me.” She further stated did it front always the case. might not be suggests this years in the home that in the two she lived anything Appellant, never smelled she However, case is question anything lead her to or saw that would have plain instruc- there was and obvious whether occurring any marijuana believe that use not a case where tional error. This is home, specifically in the basement. in their objected proposed alter- counsel defense resolved language. Nor is this ease native witness would have testified The fourth by asking on the instruction could that he noticed the smell of whether nephew and that Appellant’s and his friend plain That and obvious. improved. the influence of the he observed them under im- things, plain English would Among other eyes “I there drug [sic] the home. saw If confusion alone was prove the instruction. I squinting were red or which observed error, plain in- plain then the standard high marijuana.” He others who were cascading occur with structional error would that he observed also would have testified regularity. drug paraphernalia. “I possession them in totality of the instructions Based on the they cigars Black and Mild saw that had military judge specific in the provided commonly by young people to which are used case, I not believe there context of this do marijuana.” If had been smoke this witness members, military likely part of the plain it is error. The one found credible nephew’s that his observations about unequivocally judge’s instructions that was in the have undercut house would clear, part concerning repetitive, was the Appellant’s fiancée’s claim that were never the Government his instructions being very strict about allowed the ele- relinquished prove its burden to all signs no in the house and there were Thus, at ments a reasonable doubt. house, being present thus it ever military of his instructions the outset weakening his defense. prosecu- “The is on the judge stated: burden reasons, guilt of the accused.” tion to establish I do not believe the

For these mili- military judge his discretion with re- abused And at the close of his instructions of the witnesses and with spect to three tary judge stated: fourth, erroneously who was respect advised, first, You are further excluded, harmless. I believe that error was until presumed to be innocent accused is Accordingly, respectfully I dissent on Issue compe- by legal and guilt is established II. beyond a reasonable tent Military Judge’s Instruction doubt____ lastly, proof And the burden guilt of the accused to establish the majori- respectfully from the I also dissent government. is on the a reasonable doubt sure, the ty’s on Issue III. To be conclusion never shifts to the accused The burden clarity. It at issue is no model of instruction disprove the facts innocence or to lawyers particularly establish confusing, even to —or result, I proof. As a do not necessary to each element of the ment’s burden establish plain confusing that the think it is or obvious offense. opinion language cited above and the lead confusing, nor These instructions were members to other- would cause reasonable points Fur- did address obscure of law. wise think the burden of was on ther, bracketing the mili- these instructions Appellant rather than the Government. tary judge’s packet instructional echoed foregoing, on the I would affirm the Based understanding ingrained and basic Air decision of the United States Force already Appeals. regarding would have the Govern- Court of Criminal

Case Details

Case Name: United States v. Brewer

Court Name: Court of Appeals for the Armed Forces

Date Published: Sep 13, 2005

Citation: 61 M.J. 425

Docket Number: 04-0567/AF

Court Abbreviation: C.A.A.F.