United States v. Campbell

STATES, Appellee, UNITED CAMPBELL,

Christopher W. Class,

Private First U.S.

Army, Appellant.

No. 97-0149.

Crim.App. No. 9400527. Appeals

the Armed Forces.

Argued Dec. 1997.

Reargued June 1998. April

Decided 1999. Crawford, JJ.,

Sullivan and filed dissent-

ing opinions.

EFFRON, J., opinion of delivered the Court, COX, GIERKE, C.J., J., in which CRAWFORD, JJ., joined. SULLIVAN and dissenting opinions. filed 155 II Captain T. Michael Appellant: For (argued reargued); Colonel John Guiffre TRIAL THE RECORD OF WHETHER II, Major Holly Coffey, Ma- Phelps, T. S.G. SCIENTI- SUFFICIENT CONTAINS Hatch, Major A jor E. Leslie Michael THE FIC EVIDENCE REGARDING (on briefs); Mi- Nepper Lieutenant Colonel LEVEL FOR THE CUT-OFF BASIS Stephen P. Captain chael L. Walters and POSITIVE FOR REPORTING GC/ Bell, Jr. (200 PG/ML) TEST RESULTS MS/MS Appellee: Captain A Wendelbo For Chris COULD THAT THE MEMBERS SUCH reargued); Joseph E. (argued and Colonel OF WRONG- AN INFERENCE DRAW L. Ross and Lieutenant Colonel Frederic THE THE FROM FULNESS OF USE (on Borch, briefs); Major Virginia III G. REPORT- LSD CONCENTRATION OF (307 Beckes. SAMPLE ED IN APPELLANT’S

PG/ML). V. SEE UNITED STATES (CMA THOMPSON, 1992); MJ 287 34 opinion of Judge EFFRON delivered the HARPER, 22 V. STATES UNITED the Court. (CMA 1986). 157 special composed A officer court-martial appellant, and enlisted members convicted Ill

contrary pleas, wrongful to his use of (LSD), diethylamide lysergic acid violation THE EXPERT TESTIMO- WHETHER 112a, Military of Article Uniform Code THE OF NY REGARDING RESULTS Justice, § sen- USC 912a. members BLIND THE AND CERTIFICATION appellant discharge, to a tenced bad-conduct QUALITY AND OPEN CONTROL days, forfeiture of $549.00 confinement for TO DEM- TESTING WAS SUFFICIENT months, pay per month for and reduction to RELIABILITY ONSTRATE THE OF grade. convening the lowest enlisted THE TESTING PROCEDURE UNDER results, authority approved and the these EX- DAUBERT TO REASONABLY Appeals Court of Criminal affirmed. A CLUDE THE OF POSSIBILITY appellant’s petition, granted we On review FALSE POSITIVE RESULT. following issue: EVIDENCE, ANY, IF A. WHAT WHETHER THE MILITARY JUDGE AT TRIAL DEMON- INTRODUCED ERRED THE IN ADMITTING URI- THAT WAS STRATES TEST AND THE NALYSIS RESULTS RELIABLE WITH SUFFICIENTLY EXPERT OPINION GOVERNMENT’S TO REPORTING REGARD RESULTS THE TEST TESTIMONY REGARDING AND AS POSITIVE OR NEGATIVE A THAT THE ABSENT SHOWING WITH REGARD TO PRECISELY METHODOLO- NOVEL LSD TESTING THE CON- IDENTIFYING EXACT GY RELIABLE. WAS SUFFICIENTLY IN OF URINE. CENTRATION argument After oral in December B. THE WHAT WAS SIGNIFI- following specified the related issues: CANCE, IN TERMS ESTABLISH- OF

ING THE RELIABILITY OF GC/ MS/MS, EACH OF THE FOLLOW- OF THE ING ABOUT TEST STATEMENTS CONSTITUTION, WHETHER THE RESULTS: THE MANUAL FOR COURTS-MAR- 1. THAT THE ARMY CONCLUD- TIAL, REGULATIONS, AP- OR OTHER ED THE METHODOLOGY REQUIRE LAW A PARTIC- PLICABLE (R. 151); “VERY ACCURATE” WAS ULAR LEVEL IN ORDER CUT-OFF 2. THAT TOXICOL- THE TO ESTAB- NORTHWEST FOR PROSECUTION (NTL) AL- A LABORATORY HAS BEYOND REASONABLE OGY LISH BEEN “WITHIN PLUS APPELLANT’S KNOWING WAYS OR DOUBT 20 PERCENT OR STAN- MINUS USE OF LSD. Army’s DARD Appellant’s sample DEVIATIONS OF THE was sent to the testing laboratory Meade, MEAN” WHEN ITS ARE RESULTS Fort Ma- ryland. 4-day COMPARED TO THE TWO NAVY It was tested twice over period using radioimmunoassay analysis LABS CONFIR- CONDUCTING LSD (R. 188); (RIA) MATION AND TESTING for LSD. Both tests indicated that appellant’s urine contained LSD. The RIA THAT 3. NTL NEVER HAS IN- however, procedure, quantify does not A CORRECTLY REPORTED BLIND sample amount of the in a and has not RESULT, QUALITY I.E., CONTROL by Department been certified Defense NTL THAT HAS NEVER INCOR- for reliable under the Uniform RECTLY A REPORTED RESULT AS Military Code of Justice. POSITIVE OR NEGATIVE WHEN IT TESTS FOR THE PRESENCE OF obtained, After the RIA test results were (AS QUANTIFY- OPPOSED TO sample Toxicology was sent to Northwest ING THE CONCENTRATION OF (NTL) Laboratory Utah, City, in Salt Lake DRUG) (R. 187). THE NTL, testing. appellant’s for additional At sample through using was examined a test below, For the reasons discussed we reverse methodology. That test showed GC/MS/MS the decision of Ap- the Court of Criminal (one-trillionth a picograms level of 307 peals. gram) per milliliter of urine. The Department of Defense has established a FACTS picograms. cutoff of 200 level below, by As noted court the sole Rodger Foltz, Laboratory Director pertaining charge wrongful NTL, prosecu- testified on behalf use of LSD in this case consisted of the tion. stated He test is report urinalysis of results aof test. At principles accepted “based on scientific ... trial, defense moved counsel to exclude evi community” represents the scientific urinalysis supporting dence of and the in testing drugs. the “state the art” expert testimony ground on that He that “a stated there are few” toxi- methodology used in the confirma cology laboratories that use that same tory gas chromatography tandem mass test — widespread but he added that its use is not (GC/MS/MS) spectrometry not meet —did because the instrument about costs reliability required by the standards of Mil. $350,000. He stated this method of 702, Courts-Martial, R.Evid. Manual “presented had been at conferences (1995 ed.), and relevant case on at least occasions two fellow toxi- law. See Daubert v. Merrell Dow Pharma cologists,” subject peer where it was re- ceuticals, Inc., S.Ct. view. Dr. Foltz also testified he had (1993); 125 L.Ed.2d 469 United States v. published peer-reviewed jour- in a an article Nimmer, 43 MJ 252 Consideration nal, Chemistry, on Analytical motion, contested, which was involved testing employed at NTL. He expert testimony from three witnesses. testified that there were no other articles military judge method, denied the defense mo- practice” because the “normal Subsequently, tion. he his publish documented deci- scientists to article when appellate sion in an exhibit problem. pointed headed “Court there is a He out Fact, Law, Findings of published open Conclusions of and method been “in the had Ruling literature,” “any on the Defense Motion In Limine.” so that in- other lab with certainly free it.” strumentation to use He during The evidence at issue was obtained acknowledged, though, that he was “not inspection a unit routine which members aware, time, actually at this other labs appellant’s produce unit were using it.” samples. prompted by This was not control, duty perfor- appellant’s respect quality concern about With testified he “open quality-control mance or behavior. that NTL received 20 single arti- “publication of accuracy whether Asked samples” per month ensure asked about [he was] presented the one testing. were cle—like samples These of its peer review laboratory know analysis, did not —constitutes MeBay methodology!,]” Dr. a scientific drug, any, present or in what if what “Well, it’s review of responded: peer samples had These concentration. presentation that article —that’s particular January since when been received “[N]ow, you give if me He added: laboratory a contractual all.” first entered into accepted on that papers that are Army. agreement with the matter or different topic, that would awarding prior Foltz else, you’ve got something one” but dozen contract, the Armed Forces Institute them methodology. on the GC/MS/MS (AFIP) Pathology an “ex- had conducted peer MeBay that true review Dr. testified procedures at review” of used tensive being methodology would include same methodology was to sure the NTL make laboratory. by more than one employed given-a num- After NTL had been reliable. indeed, if, only one loss “But one is at a passed quality and samples had ber something no laboratory do and there’s could AFIP, Army had concluded control you use to check laboratory that could other detecting methodology NTL’s for LSD that sample, in- results another for with Moreover, “very blind was accurate.” acknowledged that stance.” He GC/ quality-control samples were returned methodology at NTL would used MS/MS period to AFIP over NTL several if than produce to valid more tend results Army getting the months between contract Department De- laboratory within one appellant’s sample, all receiving and of which using tests of urine for fense conducted LSD correctly. Additionally, were tested AFIP methodologies but obtained different “open per quality controls” month to sent open quality-control sam- similar to NTL on NTL, and fell past results of these tests ples. permitted within the standard deviation for quality open quality-control These control. Simon, Toxicology Dr. Robert K. owner Navy compared also tests were two International, also for the defense. testified performed testing for laboratories proce- as Dr. Simon testified to GC/MS/MS LSD, methodology, but with a different dure, as follows: significant no statistical was found deviation chromatography spec- tandem mass [G]as findings. between their results and NTL’s gas a procedure combine[s] trometer ... essentially mass chromatograph with MeBay, Dr. Arthur a foren- J. retired state having spectrometers so that instead of toxicologist, testified He sic for the defense. identify try to a spectrometer one mass that, although had been stated substance, unique drug a rather particular community accepted in the scientific for uses system been established combine has analysis, accept- as hair it had not been such together give spectrometers two mass drugs. ed as a method of for Con- hopefully that can us some additional data test, MeBay cerning the RIA indicated drug be used for identification. for that it was “a reliable means screen LSD.” He added: difficulty analyzing particu- MeBay he familiar this was urine, Chemistry publications Analytical lar substance blood

with the Chemistry biological piece even in a of—a tab Analytical fluid or the Journal the amount is ex- peer, paper had arti- is that as reviewed former, tremely that one takes well as for other small. dose cles perhaps 70 journals. there a dis- somewhere between He testified that was one- acceptance micrograms, is 70 to 100 paper tinction between very hand, gram, it is a small acceptance one millionth of a so publication, on the then, into the community quantity. That diluted the scientific methodolo- emerge into urine over paper, possibly can then gy described in such the other. period they actually use in why hours after concentrations That’s con- in pieograms really that are and that is a tract with him.

unit that is one thousand lower than the Later, Dr. was testi- Simon recalled. He appear normal substances which is fied peaks of the unusual on the because nanograms, so at we’re ten-to-the-minus- batch,” “disqualify he would th[e] entire range twelfth concentration including pertaining appellant. the results per milliliter of urine. explained He in detail how the court mem- pointed equipment Dr. Simon peaks out bers should examine these deter- Toxicology Northwest was the mine the of the test for LSD. equipment country such and that the Dr. Foltz also recalled. He testified methodology equipment of that had not been the “commercial version” of the GC/ accepted community. in the scientific He instrument introduced in 1979 MS/MS explained essentially only that with one func- and that there were more than such country tional unit one at NTL— —the world,” in operation “instruments around the way “there would be have a scientific being pharmaceu- most of them “used in the peer evaluation technique of either the industry analysis drugs tical various at this method time.” He development undergoing biological speci- very technique, stated: “This is a novel mens, including blood and urine.” added He piece equipment very novel of and a novel knowledge, only to his NTL was the methodology.” He also testified that the re- laboratory “currently using GC/MS/MS liability of NTL’s from results in confirmation of LSD urine.” He stat- also be by open could shown the use of control any ed concerning issue of absence by confirmed tests two other laboratories testing in probably universities was reflec- a employing methodologies. different high tion of equipment. cost of the The judge The following ques- then asked expert, McBay, defense also stated that for a tion member: equipment many was not available in expense. laboratories because of its Simon, Q. Dr. question I have this you. upon your experience Based gained working drug testing for DISCUSSION DoD, experimental if is in stages, why would DoD contract A drug Northwest to conduct confirma- compelling The armed forces have a inter-

tion? addressing est in impact the corrosive of is, A. think to that the answer drug abuse on the readiness of the armed certainly compelling there is a interest engage forces to in combat. Supreme in determining LSD in urine. Cer- emphasized Court primary has that “it is the tainly in the statistics and outside of fight business of or be armies navies to DoD tell us that use has re- ready fight wars should the occasion emerged in the late ’80’s and ear- arise.” v. United States ex rel. Toth ly drug ’90’s as a of choice among Quarles, 11, 17, 1, 350 U.S. 76 S.Ct. 100 individuals, great so there is a interest (1955). Congress, L.Ed. 8 in 112a of Article being in develop able to this method. Justice, Military the Uniform has Code certainly, And Foltz is recog- well proceedings against authorized court-martial toxicology nized the field of forensic “wrongfully who uses” servicemember person scientific research variety controlled substances commits highly capable do this work. So I involving illegal drugs. other offenses certainly think interest is there 112a, and I think the reason DoD To obtain a conviction under Article is, prime prosecution contract with him he’s a must introduce evi- indi- sufficient factfinder, vidual who been involved in dence to a reasonable has convince many years. beyond research reasonable doubt:

159 Haldeman, 74, (1998); 16 78 (a) Murray v. MJ accused a controlled That the Middleton, (1983); v. States substance; United Trottier, (1981); 9 MJ States v. (b) accused the use That v. Bick 345-46 wrongful. (1990), el, upholding use of a case Often, IV, Manual, 37b(2), supra. Part Para. pro urinalysis in court-martial test results wrong may prove able to ceedings, such use is con we noted that through drug ful use admission approach Supreme Court’s trast capable witnesses accused observations urinalysis programs. approach That civilian substance, identifying use of a controlled approval compulsory uri limited reflects effect on the particularly terms nalysis in circumstances where Govern accused. behavior that the duties of ment has demonstrated cases, however, In some where employees warranted such and no has no direct evidence use circum- administrative, the results were used in the form of effect on stantial evidence purposes. prosecutorial, rather than Id. the conduct of the accused. evi- Railway Labor Execu citing Skinner dence such cases be the Association, 602, 109 S.Ct. tives’ 489 U.S. drug presence that identifies the (1989), L.Ed.2d 639 and National or a accused’s metabolite Raab, Treasury Employees Von Union fluids. 656,109 1384,103 S.Ct. L.Ed.2d 685 Courts-Martial, Manual for (1989); n. 2. recognized pro- case law President has our analy- beyond Going well the constitutional viding requires proof use Supreme applied has sis that knowledge: society, prosecuto- approved civilian we have presence Knowledge of the of the con- rial use of inferences criminal component a required trolled substance is proceedings to sustain sole- convictions based Knowledge presence use. of of the the ly upon drug the results test. To sustain may substance inferred from controlled be cases, in prosecution such we have presence the in the controlled substance supported by expert that the results be the or accused’s circum- testimony explaining underlying the scientific stantial evidence. This infer- methodology significance and the test the may legally satisfy ence be the sufficient result, “provid[e] as to a rational basis so government’s burden of as to knowl- knowingly inferring that the substance was edge. wrongful.” used and that the use was Unit- 37c(10), satisfy the Para. Part IV.1 To sec- Graham, ed 58-59 States v. 50 MJ ond element of the offense—that the use was required, permitted, We but have have “wrongful”- made President has clear —the that that the factfinder to conclude on basis justifica- legal the that use must be “without the has its burden Government satisfied provides tion or Manual authorization.” The of the offense —use establish both elements wrongful “may that use be be inferred to substance, well' of the controlled as as contrary.” the absence of evidence to the See, wrongfulness e.g., use. 37c(5). Para. (CMA 1992); Thompson, v. MJ 287 States 34 Our Court has considered these inferences (CMA Ford, v. 23 MJ 331 States recognition longstanding in the context of our 1987); Murphy, 23 310 United States v. military threat readiness serious (CMA 1987); Harper, v. 22 MJ permits posed drug abuse use of evidence- (CMA 1986). gathering techniques that would neces- See, testing Urinalysis proved pow- to be a sarily pass in a context. has muster civilian Jackson, drug combat use e.g., United 48 MJ 292 erful tool effort to 1987) (discussed 160-61, (CMA infra). provision at is 1. This based on United States (CMA 1986) (discussed Harper, Manual, Analysis, supra 22 MJ 157 at See at A23-11. Drafters’ Ford, 161, infra), and and United States v. military, good maintain and require order disci- also establish pline, and Drug methodology ensure combat readiness. and testing, however, performed designed explain significance is of the the results such, humans sample. is fallible. The test of accused’s prosecu- (1) possibility aof from an expert testimony result error tion’s must show: ingestion test or from unknowing of a naturally produced the “metabolite” is “not trigger substance does not reaction body” substance other than the part (see, on e.g., the servieemember is the Harper, supra at nightmare (2) every 161); good reported worst servicemem- that the cutoff level and ber and a cause of high enough reasonably serious concern to the concentration judicial system. possibility unknowing discount in- gestion and to indicate a likeli- reasonable urinalysis on Reliance test alone in hood that the user at some have time would permits courts-martial a criminal conviction “experienced physical psychological adjudged solely to be the basis 163; drug,” Murphy, effects of the see id. at result when there is no other evidence of 312; supra at meth- criminality, including no of an ob- reliably odology presence detected the servable reaction to the substance. Such a reliably quantified the concentration may adjudged conviction in the case of a sample. metabolite See Dau- given member armed forces who has bert, supra (expert 113 S.Ct. 2786 years of country, dedicated service to testimony must a stan- ] “establish record, per- who has an unblemished whose evidentiary reliability”). dard of Once exemplary, formance has been who has made, showing not re- combat, served has and who never exhibit- quired disprove of unknow- any impairment ed in function under the ing ingestion legal in order to sustain the daily scrutiny military intensive mem- See, Ford, sufficiency of a e.g., conviction. superiors, peers, bers receive from their sub- MJ at 336. ordinates, friends, family. result, in the case of conviction under B LSD, may Article 112a for use of include a discharge, dishonorable for 5 litigated light confinement before us The case years, and total For a forfeitures. career in- well-established case law. This case servieemember, discharge alone re- volves the novel use of the test- LSD, sult in the loss of which, hundreds of thousands of ing procedure according for to pay. in record, dollars retired For the member— was by only the conducted labo- one family consequences and the member’s ratory in the United used in States and was —the may devastating. be the conse- jurisdiction purposes Because no other of criminal quences drug military may of abuse in prosecution. the be nation, devastating all the more to the we The is not whether of the issue members urinalysis sustained have use of test results may subjected urinalysis armed forces be to they logically permit where a rational factfin- may a or whether such test be used beyond der conclude a doubt reasonable as the for a basis court-martial. The answer prove wrongful that the results use. At the questions squarely both the affirma- time, permitted same we have use of test Likewise, question the tive. is not whether logical proof wrongful where such of results might presented sufficient evidence 112a; lacking. use has been Art. See sustain of the LSD. use test for Harper, v. supra. States Instead, specific question the must re- we law, applicable prosecution- Under case solve is whether the this—in rely prosecution solely pres presented cannot on the sufficient evidence case— ence of the or its constitu record the test under our case about law, permit permit ent elements. The cases which have would a reasonable factfinder to beyond wrongfulness strictly ap- inference ted the of conclude reasonable doubt that (3) pg/ml was DoD cutoff level of 200 was that the pellant the use and margin of and suffi- than error Virginia, greater 443 U.S. wrongful. See Jackson reasonably possi- ciently high to exclude 61 L.Ed.2d 560 99 S.Ct. positive and establish bility of a false In particular, wrongfulness of use. Harper, supra, our show no evidence to introduced Government recognized use the inferences of neces- had into account what is that it taken wrongfulness from a and that could be drawn of sary possibility to eliminate the reasonable positive drug-test supported by expert result ingestion positive. a false unknowing testimony explaining significance of the finding result. the evidence sufficient open the wheth- evidence left wrongful- “permissive allow a inference by DoD and the cutoff level established er case, noted NTL, ness” to be drawn in we reported by level the concentration particular aspects expert of the testimo- error, margin reason- would view ny mari- presented about positive ably possibility a false exclude the (1) reported juana testing: “read- likelihood would a reasonable and indicate ings passive ... ruled out expe- point have person at some (2) inhalation”; particular “that these psychological effects physical rienced results indicated that the user at sometime drug. we This is the of evidence experienced psychological physical use Harper to ensure that By drug.” 163. effects wrongful.2 missing It in this case. was contrast, provide did the Government wrongfulness evidence of in this case. similar C Here, introduced evidence fol- foregoing analysis us to the leads (1) naturally produced by the LSD is not granted speci- lowing disposition of the (2) body; DoD has established cutoff respect to Specified issues: With Issue fied pg/ml, samples all above which II, concerning inference of the basis LSD; (3) reported the GC/ wrongfulness, conclude that there we sample re- appellant’s test of urine MS/MS upon which factfinders rational basis ported pg/ml; a concentration level wrong- permissible draw a inference of could quantitative NTL’s with re- results fulness of use from the concentration spect have been for LSD urine reported appellant’s sample. It against validated other tests. Those other be in a ease that the Government well future however, tests, tests that DoD declined were necessary re- showing with could make the purposes. for forensic The latter validate spect significance to the the concentration therefore, point, proves the GC/ levels and produced test consistent MS/MS test or a follow-onversion that, itself, not considered pros- test. Because of the deficiencies Department pur- to be Defense valid case, however, presentation in this ecution’s poses prosecution. of criminal permit the evidence would not a reasonable factfinder conclude the GC/MS/MS importance critical the Gov Of (1) reasonably in result this case exclud- test prove frequen not ernment did the levels or (2) (1) possibility a false error, ed the cy which would indicate: that at some reliably indicated reasonable likelihood particular test de the person experienced have the presence point in the of LSD metabolites tected urine; reliably quantified physical psychological effects that GC/MS/MS metabolites; drug. the concentration of those IV, post- 37c(5), Paragraph law.

2. for Courts- does not establish new None Part Manual Martial, ed.), (1995 quoted supra at United States Harper cases cited dissent involved the 159, contrary suggestion recognizes to the consis- of whether the DoD cutoff level was issue Sullivan, 163, by Judge dissent this stan- Harper tent with the standard. precedent Harper— dard—which follows our in I, respect Specified With quire Issue no more for the members to be able to level, concerning Pabon, the cutoff we guilt. note that the determine See (1995) (evidence “require particular 404, law does not cutoff 42 MJ 406-07 sufficient level in order for the experts testify establish where that test results consis- beyond a appellant’s reasonable doubt although know tent with use accompanied by added.) ing (Emphasis use of LSD.” To the physiological psychological sufficient extent that rely Hunt, seeks on symptoms); United States v. 33 MJ cf. permissible knowledge (CMA 1991) (evidence inference from not sufficient presence sample, how expert testimony where no whatsoever ex- ever, the cutoff level must be such as to results); plaining generally see United rationally permit beyond factfinders to find Boulden, (CMA 1989). States v. reasonable doubt that an accused’s use was view, my In majority’s reliance on knowing. (CMA Harper, United States v. 22 MJ 157 considerations, view of these we decline 1986), proof requirements for additional to address Specified the Granted Issue and fatally quite flawed. This case is different Issue III in a manner that forecloses the Harper, where the before the relying Government from on the GC/MS/MS sufficiency Court was the of the Govern- test or a follow-on version of the test in a urinalysis ment’s wrongful evidence to show subsequent appropriate case. It is to decide use, marijuana use, wrongful as in this case on a more limited basis. As noted There, appellant’s quantitative case. earlier, opinion open opportu- our leaves testing evidence was offered to rule out the nity for the Government to make the neces- possibility passive marijuana inhalation of sary showing respect significance with to the smoke, not a reasonable in a case of the concentration reliability levels and the involving consumption the oral of micro-dot of this test or a follow- GS/MS/MS Moreover, Harper, LSD. supra at 163— on version of the test. Our discussion specifically this Court noted that “it could Part B questions identifies the raised not be appellant determined whether presentation Government’s trial in this actually experiencing physiological regarding case reliability psychological marijuana effects of at these procedure and also notes the of evi- places charged.]” times and (Emphasis [as dence that could sustain a conclusion of relia- added.) bility. case, presented We leave for a future therefore, reality, majority makes Harper, accordance with the issues con- process, new law case cerning rulings military judge questions military raises serious about respect expert testimony un- prosecutions past based on our cases. Har der Daubert. word, per first not the last word or word, subject sufficiency on the DECISION urinalysis evidence in cases. See United Army The decision of the United States Bond, (1997); States v. 86MJ Appeals Court of Criminal is reversed. The Pabon, supra; States v. United States v. findings and sentence are set aside. The (CMA 1992); Thompson, 34 MJ 287 Charge is dismissed. Boulden, supra; States v. United States v. (CMA 1987). Ford, Moreover, 331MJ majority’s approach drug prosecu new SULLIVAN, Judge (dissenting): goes beyond proving tions far the rules for I would affirm. There was provided by cases now President in the naturally case that LSD does not occur in the Courts-Martial, the Manual United body. proof There was also that the constit- (1998 ed.). 37(c), para. States See Part IV. appel- uent elements of were in found I must dissent. Finally, expert lant’s urine. there was testi- mony explaining proof Turning this scientific and its in first the new rule established case, meaning sufficiency to the evidentiary members. Our decisions re- it is one of quanti- majority did hold urinalysis prosecutions. The as- We in be drugs proffered Harper would knowing (wrongful) use of tative that evidence serts the proof the in the future or that required more than that in all cases requires in a itself constitutional- permissive elements are inference drug or its constituent event, body have not ly urine and that the does not In we insufficient. soldier’s addition, expert In it re- naturally produce them. required proof additional such to show quires subsequent the Government See United testimony in cases. (CMA 1987); 331, Ford, v. reported States the cutoff concen- that Boulden, v. United high reasonably see also enough tration Pabon, possibility unknowing Thompson, in- States v. the of discount Bond, supra. all and to a reasonable like- and United States gestion indicate the at some time would lihood user 37(c), addition, paragraph Manual “experienced physical psy- the have Courts-Martial, States, drug,” chological see id. effects after the of amended in 1994 decisions 168; [Harper, Murphy, supra 22 MJ] at Manual, Harper Court and Ford. See atMJ] 312. [23 (1994 ed.) A23-19. supra at A23-18 and majority 160. The concludes in this 50 MJ at now states: Paragraph 37e follows: case as inject, ingest, means “Use” Use. open question The evidence left the inhale, the hu- introduce into or otherwise the cutoff level established whether body, any man controlled substance. reported DoD and the concentration level presence con- Knowledge of the NTL, error, margin view of the component required trolled is a substance reasonably possibility would exclude the Knowledge the presence of use. a false indicate rea- and would may controlled substance be inferred from per- at sonable likelihood that some time a presence the controlled substance experienced have the physical son would body circum- accused’s psychological drug. effects of the This This permissive stantial evidence. infer- we satisfy legally ence sufficient Harper wrong- to ensure that use was government’s proof as to burden of missing ful. It is in this case. knowledge. (footnote omitted). 50 MJ at 161 ed.) added). (1998 Manual, supra (emphasis view, my majority has misread this above, majority, citing Harper, As noted case, opinion in In that Harper. Court’s we requires evidence that the controlled sub- expert did consider fact that the present stance accused’s nanogram readings ... “that the ruled out quantity expert opine such can passive inhalation.” We have felt. effects of been expert also considered the fact that the “tes- being requirement I new see basis for this that these tified indicated added above rule. RCM to the Manual See experienced user at sometime (“but 918(c), Discussion, Manual, supra some physical psychological effects of the which, either other fact or circumstance from added). drugs.” (emphasis 22 MJ at 163 together circum- alone with other facts or However, this noted this additional stances, may reasonably infer the exis- one addressing circumstantial evidence lieu tence or nonexistence of a fact in issue” whether inference added)). (emphasis knowledge drawn from of use was majority’s proof beyond note that hold alone sufficient constitute would also truly ing in in nature. sponte reasonable doubt a servicemember this case is sua knowingly drugs. citing at this court-martial was Id. issue Allen, County reliability Court v. to show Ulster 166-67, 2213, 2229-30, presence person’s in a There 99 S.Ct. 60 L.Ed.2d urine.* majority concerning showing granted does decide the issue made *The not even 164 finding guilty motion for of not

was FACTS proof basis of of knowledge insufficient appellant’s The evidence LSD use of any dispute concerning a infer urinalysis. arose as a result random knowledge being solely ence drawn on the Appellant’s sample was sent basis under DoD stan Army’s testing laboratory at Fort See stronger dards. RCM 917. While a Meade, Maryland, where it was tested twice by case could have been made the Govern 4-day using period radioimmunoassay over a ment, parties military none of the or the (RIA) analysis for LSD. Both indicat- tests judge past requiring read our decisions appellant’s ed that urine contained LSD. quantitative certainty. such quantify Because RIA does not the amount conclusion, majority’s I share the con- drug, sample was then sent great cern care taken when service- Utah, City, NTL in Salt Lake for additional are members convicted courts-martial on NTL, testing. appellant’s sample At urinalysis testing. the basis of See United by methodology tested gas known as chro- (CMA Mack, 1991); 251 33 MJ matography/tandem spectrometry mass Horn, United States v. Van 438 (GC/MS/MS). After performing that (CMA 1988); v. Murphy, appellant’s pro- urine showed a level of 307 (CMA 1987). Nonetheless, 310MJ the belat- grams per Department milliliter. suggestion ed that we have misread or mis- Defense 1010.1 Directive establishes a cut off applied the Harper decision of this Court in picograms. of 200 the President has done the same is subsequent contradicted our case law. In Foltz, Rodger laboratory director view, my majority speculates that such NTL, test is GC/MS/MS LSD, should exist for as it principles accepted “based on scientific ... marijuana, for does and now decides for the community” the scientific represents first time that its should admission be man- testing drugs. the “state of art” in (“This Bond, datory. 46 MJ at 91 Cf toxicology using Other laboratories are legal not use sufficiency will the rubric of however, test; testing same in- because the usurp powers of ... factfinders and en- $350,000, strument is not costs about its use guilt.”) join ter our own view of I do not widespread. This method of has majority’s action in case. “presented been at conferences on at least toxicologists,” two occasions fellow CRAWFORD, Judge (dissenting): subject peer where it review. published Foltz he testified that an article as this Just Court has done numerous peer-reviewed journal, majority Analytical past, recog- times Chemis- has impact nized abuse “on the try, readi- in 1992 on the em- engage the armed ness forces com- ployed at NTL. There are no articles However, bat.” 50 MJ at 158. it holds that method, however, on this because the “nor- prosecution’s testing by as to practice” publish mal is scientists to (NTL) Laboratory Toxicology Northwest problem. article there is a when sufficiently “to rehable eliminate the rea- accuracy testing, To ensure the of NTL’s positive” sonable of ... a false Pathology the Armed Institute Forces agree Id. at 161. I do LSD. Because (AFIP) twenty quality- “open sends NTL majority judge trial abused samples” samples per control month. These “gatekeeper” discretion his role under his presented analysis, and the laborato- Pharmaceuticals, Daubert Merrell Dow ry drug, any, does not what if what Inc., 579, 597, know S.Ct. (1993), drugs present. I These L.Ed.2d dissent. concentration of respect point. by the case with ford’s dissent Government in this on this Judge testing. agree with Craw- Simon, Toxicology K. samples since Dr. owner have been received Robert blind International, laboratory was for the defense. after the certified. also testified concerning Dr. Simon GC/ Additionally, AFIP itself an “ex- conducted procedure, follows: MS/MS procedures used at tensive review” of spec- chromatography tandem mass [G]as doubly methodology NTL to sure the is make gas procedure ... eombine[s] trometer prior awarding to them a contract. reliable essentially chromatograph mass given with two NTL had a number of After been having samples passed quality spectrometers so instead of and had control of AFIP, Army try identify NTL’s meth- spectrometer concluded that one mass detecting “very odology for LSD accu- substance, unique was particular drug a rather Moreover, quality-con- fifteen rate.” blind system has been established combine samples by NTL to AFIP trol were returned together give spectrometers two mass time, period over a all of which were hopefully that can us some additional data Additionally, AFIP correctly. tested sent drug be used for identification. “open quality per month to ten controls” He testified: also NTL and fell within the results these tests difficulty analyzing particu- for this permitted quality deviation for standard urine, lar blood or other substance open quality-control control. These tests piece fluid or in a of—a tab compared biological were with labs who even also two other significant paper the amount is ex- do same LSD statistical between their tremely deviation found small. The dose that one takes findings. results and NTL’s perhaps somewhere between micrograms, and 100 that is 70 100 one- McBay, Dr. Arthur J. a retired forensic gram, very it is a millionth so small toxicologist, testified that the GC/MS/MS then, quantity. That into diluted accepted community in the possibly emerge then can into urine over a However, drugs. aas method of period of hours after use concentrations say accepted he did that this test has been pecograms really and that is a are analysis. Concerning for use hair RIA unit one lower that is thousand than McBay Dr. “a that it is reli- conceded appear normal substances which is means able to screen LSD.” nanograms, so we’re at ten-to-the-minus- Moreover, McBay Dr. testified he was fa- range twelfth of concentration of this publications, miliar Analytical with the per milliliter of urine. Chemistry Analytical and the Journal of Dr. equipment asserted that Simon Chemistry, peer, as a scientific re- had Toxicology only one used at Northwest is the concerning viewed an article GC/MS/MS country accepted has not been the former. “The two reviews looked at community. the scientific accepted....” However, he indicated papers topic that there were not 100 on this He this also testified that the one, peer the single but review of equipment at NTL its be results can acceptance article does constitute shown two use blind tests confirmed review, methodology. peer True he indicat- employing different meth- laboratories ed, methodology being would the same odologies. judge asked then the follow- more than one lab. He admitted question ing for a member: validity test was GC/MS/MS Simon, Q. question have strengthened by the fact that it is used in you. upon your experience Based Navy Additionally, laboratories. in re- gained working drug testing McBay sponse hypothetical, to a said DoD, experimental if inis if getting other tests were “similar re- why DoD stages, would contract quality samples, sults” control drag Northwest conduct confirma- to validate the meth- “tend odology.” tion? is,

A. I think the answer to that provision except Department of De- — certainly compelling there is interest fense directive at issue in this case—which determining urine. Cer- establishes a cut-off level neces- tainly the statistics and outside of sary for the prove beyond DoD tell us that LSD use has re- appellant’s knowing reasonable doubt use of emerged in the late ’80’s and ear- course, regulation LSD. Of a directive or ly among ’90’s as a of choice prospectively could establish a different cut- individuals, great so there is a interest See, e.g., off level. United States v. John- in being develop able to this method. (CMA ston, 1994). 41 MJ 13 certainly, And recog- Dr. Foltz is well parties Because both concede that there is nized in the toxicology field of forensic specific level, no such cut-off I address the person and scientific research as a specified concerning second issue the suffi- highly capable to do this work. So ciency of the evidence. certainly think the interest is there and I think the reason DoD would Specified Sufficiency Issue II: of scientific is, contract him prime he’s a indi- wrongful evidence to infer use LSD vidual who has been involved Appellant contends that the Government type many years. of research for present did not sufficient scientific evidence why they That’s actually con- upon which to appel- tract draw an inference with him. knowingly wrongfully lant LSD. Later, Dr. Simon was recalled. He testi- fact, appellant argues that “[t]he Government fied peaks because of the unusual on the did not introduce direct evidence that “disqualify batch,” he would th[e] entire appellant knowingly used Fi- LSD.” Second including pertaining appellant. the results nal Brief at 8. He contends that the Govern- explained Then he in detail how the court ment did not show “sufficient evidence to peaks members should examine these explain significance report of the determine the of the test for LSD. appellant’s urine contained a concentration of contrast, Dr. Foltz testified that picograms of LSD.” Id. at 14. “commercial version” of the in- strument was introduced in 1979 and there begins argument by Government its oper- more than 300 such “instruments stating that the factfinders use “a ation around the world” to do the same wrong- inference” to determine testing. Any argument that there has not fulness. Second Answer at 13. The Gov- been similar in universities loses its ernment presented expert contends that it force probably high because it is the result of methods, testimony on the the stan- rejection process. cost rather than of the used, dards and the results of LSD use on expert, McBay, Even the defense stated body. explained the human Id. at 14. It equipment in many not available to the picogram members the DoD cut-off expensive. laboratories because it is compared pico- level to the gram in appellant’s sample DISCUSSION (307). Id. at 13-14. initially This case started with the issue of reviewing sufficiency whether When the evi- expert testimony admission of this dence, concerning knowing give great we use of LSD was error. deference to the factfin- argument, ability After oral speci- logical the Court further der’s both to draw inferences fied a number of issues. presented from the evidence and to assess credibility witnesses, including ex- Specified Issue I: Whether pert witnesses. We have stated: applicable require sources of law a certain prove knowing cut-off level in order to use determining legal The standard for beyond a reasonable doubt sufficiency supporting findings of evidence guilty Both sides at courts-martial is well estab- concede that there is no consti- tutional, Manual, statutory, Cox, regulatory Judge writing lished. (CMA many facts I am that there are Harper, 22 satisfied MJ States context, stated, members 1986), from which the sufficient the case at bar “[I]n legal appel- generally some logically means draw inference could unjusti- competent evidence from which court- knowing lant’s use of LSD beyond a may find reason- martial or infer fied, thus, wrongful. those law for able doubt facts Foltz, laboratory di- expert, An conviction.” Toxicology, rector of Northwest Pritchett, report of other sub- there has never been (CMA 1990)(footnote omitted). We went on excret- creating LSD and stances “Moreover, that, say: it is well established ing He that his it the urine. also stated applying this inferences and credi- all “clearly” laboratory’s tests differentiate bility must be drawn in favor determinations “ergot alkaloid” between LSD also, 216; see prosecution.” of the Id. at S. prescription contained in medication. Davis, and M. Federal Standards Childress (2d 1992) (“[I]f § Review 9.02 at 9-8 ed. expert specifically discounted Although no of made the inferences are to be from appellant possibility passive ingestion, the of verdict, the evidence to the court factual acknowledged during the rele- himself light review those in the most favorable must frame, signs that he vant time observed verdict”). Harper ac- to the This Court influ- anyone the in his residence was under knowledged that the absence of evi- “[i]n Appellant’s substance. ence a controlled may contrary, prosecution the the dence to testimony, combined with statements of wrongfulness] proving [of this burden meet government experts, possibility discount the a by permissive reliance on inference of innocently appellant ingested LSD.

wrongfulness long recognized which has been experienced ob- appellant or was Whether by military flowing law as from is experiencing served effects predicate drug.” fact of use of a contraband issue of he know- irrelevant to the whether Further, 22 at 162. MJ ingly drug. A who defense witness used quite paragraph 213g(5), clear is [i]t emergency technician had been an medical States, Courts-Martial, [for Manual that an indi- admitted on cross-examination (Revised edition)] ..., and our case 1969 might dosage vidual who takes low wrongfulness law that inference of signs use. exhibit outward presumption, inference or mandatory presumption. inference or It credibility de- Drawing all inferences and not relieve bur- does its I prosecution, in favor of terminations persuasion requires den of because it still logically could would hold that the members to convince factfinder appel- infer from the facts of this case that suggested wrongful- conclusion of wrongful beyond a lant’s use of LSD was predi- on ness should inferred based reasonable doubt. proven. cate facts testing Reliability Specified III: Issue (Citation omitted). procedures for LSD upheld an Harper, In Court accused’s evidentiary of review for standard marijuana for use conviction where judge issue is his discre whether abused nanogram expert testified that the Joiner, 522 tion. General Electric Co. v. marijuana sample in the urine “ruled out the -, 512, 517, 136, 139 U.S. S.Ct. passive possibility of inhalation” “indicat- Houser, (1997); L.Ed.2d 508 experienced user at ed that the sometime 864, (CMA), denied, cert. 510 U.S. physical psychological effects L.Ed.2d 141 114 S.Ct. ac- drug.” The Court also noted Daubert, 509 Supreme indicated in positive case cused in that tested three at the over addition, 113 S.Ct. the accused’s testi- occasions. arching is rele admitting theme mony “as a whole discounted” dictum, Court, reliability. The ingestion. at 163. vance and innocent then indicated that there are a empirical testing, number of addition to the test- judge, gatekeeper, factors who is a ing subject this case has been (1) (2) error; testing peer examine: peer separate publications. review in two (3) publication; review and potential er- published Dr. Foltz an article in Analytical using ror rate scientific tech- Chemistry. published He also an article in nique; degree acceptance Chromatography Journal in 1990. 593-94, community. Id. at 113 Further, pre- this method of S.Ct. 2786. sented at two other conferences fellow toxicologists. presentations Since these judge would hold that the did not abuse occurred, appellant articles point can to no admitting his discretion in the results of the adverse indicating commentaries or studies logical- test. These results were procedures are unreliable. ly reliability relevant to this case and the established the four factors mentioned positives NTL, There have been no false Daubert. The has mentioned, previously appellant’s been open-con- established the fact that sample twice tested for LSD before testing by compared trol favorably NTL Thus, it was sent NTL. the chance of two other labs on the same blind error for this test is minimal. samples. The other using laboratories were principles this case test and the of this test GC/MS are “state of the art.” toxicology Other labo- Cathcart, judicially can be noted. State v. using ratories are the same test which shows N.J.Super. 589 A.2d acceptance within community. the scientific Additionally, prior RIA ap- tests showed pellant’s sample reasons, for LSD. For these I dissent.

Case Details

Case Name: United States v. Campbell

Court Name: Court of Appeals for the Armed Forces

Date Published: Apr 20, 1999

Citation: 1999 CAAF LEXIS 712

Docket Number: 97-0149/AR

Court Abbreviation: C.A.A.F.