United States v. Matthews

STATES, Appellee, UNITED MATTHEWS, Sergeant, L. Staff

Sherrie Force, Appellant. Air

No. 99-0487.

Crim.App. No. S29326.

U.S. Court Forces.

the Armed

Argued Dec. 1999. Aug.

Decided

GIERKE, J., opinion delivered the Court, EFFRON, J., in which and EVER- ETT, S.J., EVERETT, S.J., joined. filed a SULLIVAN, J., concurring opinion. filed an opinion concurring in the result. CRAW- FORD, J., dissenting opinion. filed a C. Wink, Appellant: Major For Robin S. (argued); USAFR Lieutenant Colonel Reuth, Jeanne M. Lieutenant Colonel James (on Wise, Major R. and Thomas R. Uiselt brief); Colonel Theodore J. Fink. Appellee: Major R. For Rider Jennifer Dattilo, (argued); Anthony P. Colonel Lieu- Rodgers, Cap- tenant A. Colonel Ronald (on brief); Captain tain James C. Fraser Tony R. Roberts.

Judge opinion GIERKE delivered the the Court. special composed

A court-martial of officer appellant, contrary members convicted to her pleas, wrongfully using marijuana, in viola- 112a, tion of Mili- Article Uniform Code of Justice, tary adjudged 10 USC 912a. The approved provides sentence for a bad- discharge reduction to the low- conduct grade. est enlisted of Criminal Court findings affirmed and sentence. granted 50 MJ Our Court military review to determine whether judge permitting abused his discretion prosecution appel- introduce marijuana a time after the lant used second case-in-chief, trial, during the defense At was tried. For the offense for which she below, several affidavits attest- we reverse.1 introduced set out reasons character, military and she

ing good Regard- career. testified about her Background Factual urinalysis, she testified first sergeant with Appellant is a married staff as follows: duty. as- years over 14 of active She was Q. you’ve the documents from And seen signed the noncommissioned officer-in- as aware, you are I laboratory and Management charge at the Information know, has the Government (OSI) Investigations Special Office detach- wrongful you use with Base, ment, Air Florida. On Tyndall Force April 1996 and on or about 24, 1996, April Special Wednesday, OSI you are aware of that? (SA) Agent notified Lockwood Yes, A. sir. urinaly- randomly selected she for had been report test- testing. sis was told to for She you Q. Did that? do Shortly morning. the next after she No, A. sir. notified, appellant told SA Lockwood that ill, early. she and she went home On Well, then; felt question Q. you a let me ask told day, next she called SA Lockwood and you how the do idea results him ill. that she was still She returned you? positive came on back duty Friday, April 26. No, sir, A. I do not. 29,1996, Monday, April reported On she Q. anything Is at all? there urinalysis-testing provided site and No, A. sir. sample sample. urine tested marijuana with a concentration level of 57 Q. pending court-martial What —has this nanograms per Appellant milliliter. or- any way? you in affected sample, provide dered another and she my They away security A. Yes took sir. provided sample May 21. This the second my job. clearance and sample posi- also tested Q. you How feel about the fact that do tive level 45 nano- with concentration you grams having per milliliter. this test has identified granted following OLATED FOURTH AMENDMENT This Court review of is- HER sues: FROM RIGHTS TO BE FREE UNLAWFUL I SEARCH AND SEIZURE. AIR FORCE WHETHER THE COURT OF IV CRIMINAL APPEALS IMPROPERLY AP- MILITARY JUDGE'S WHETHER THE RUL- OF PLIED THE ABUSE DISCRETION OPENED THE DOOR ING THAT APPELLANT STANDARD OF REVIEW BY CONSIDERING APPELLANT’S TO ADMISSION OF COM- APPELLANT’S GOOD CHARACTER AFFIDA- MAND-DIRECTED URINALYSIS UNDER VITS —EVIDENCE THE MILITARY JUDGE 311(b) WAS AN ABUSE OF DIS- MIL.R.EVID. DID NOT CONSIDER —IN DETERMINING CRETION. DEFENSE WHETHER THE OPENED THE V ADMISSION OF DOOR TO APPELLANT’S AIR FORCE COURT OF WHETHER THE COMMAND-DIRECTED URINALYSIS. CRIMINAL APPEALS ERRED WHEN THEY II APPELLANT RAISED THE CONCLUDED AIR FORCE OF WHETHER THE COURT DEFENSE, INGESTION” "UNKNOWING APPEALS ERRED NOT CRIMINAL BY CONTRARY TO THIS HONORABLE COURT’S APPLYING STRICTLY MIL.R.EVID. GRAHAM, STATES V. OPINION IN UNITED QUESTION SIDESTEPPING THE OF WHILE 50 MJ 56 WHETHER THE RESULTS OF APPEL- VI COMMAND-DIRECTED URINALY- LANT’S ADMISSION OF APPEL- WHETHER THE ILLEGALLY SEIZED EVIDENCE SIS WERE LANT’S URINALY- COMMAND-DIRECTED UNDER THE FOURTH AMENDMENT. SIS UNDER MIL.R.EVID. WAS AN III ABUSE OF DISCRETION. OF WHETHER ADMISSION THE RESULTS we Issue do IV, Since reverse on the basis of we OF APPELLANT’S COMMAND-DIRECTED IN HER COURT-MARTIAL VI- not address the other issues. URINALYSIS frame; marijuana during ply” “innocently used the time ingested that she had mari- you juana five-day how does that make feel? period,” twice within a and she redirect, responded, possible.” “It’s On she A. Mad. why testified that she did not know both Q. way you Has it affected the relate positive. tests were She was people your with unit? asked, you marijuana?” “Did She re- Yes, A. sir. “No, sponded, sir.” Q. way you Has it affected the relate appellant completed testimony, After your family? with military judge allowed trial counsel to Yes, A. more stressed. present testimony Papa, expert from Dr. witness, reading from the Following testimony, this trial counsel urinalysis command-directed could not have evidentiary hearing asked for an without the marijuana been from the same use of that 39(a), See Art. present. UCMJ, members positive reading resulted in a from the ran 839(a). hearing, USC At argued this he urinalysis. During dom evidentiary an hear appellant that opened the door for the ing present, without the Papa members Dr. of the results later command-directed urinal- positive urinalysis testified that the second ysis impeachment to be admitted as evidence. marijuana, was consistent with chronic use of military judge agreed. He ruled that i.e., “more than two or three times a week.” the May through evidence obtained on the record, apparent For reasons not from the urinalysis was admissible Papa’s testimony concerning Dr. possibil- the impeach appellant’s testimony to that she did ity appellant’s of pre- chronic use marijuana was not any not use at April time between sented to the response members. to and 29. He also ruled that members, questions from Papa two court Dr. evidence was relevant and admissible under 404(b), scientifically testified it possible that was not Mil.R.Evid. Manual for Courts-Mar- (1995 tial, ed.),2 for samples both urine States to show have tested that marijuana ingestion. based on a knowing use of one-time Trial was counsel Finally, pursue use, and citing theory conscious. did not of Mil.R.Evid. chronic but probative proceeded he ruled appel- that its value instead on the substantially outweighed by marijuana “not danger separate lant used on two occa- prejudice, of unfair confusion to court mem- sions. bers, anything or else.” he would testified, Papa Before Dr. permit any reference to the command- judge instructed the members that the evi- urinalysis directed in rebuttal to or cross- dence of urinalysis the second any examination of defense character wit- purpose admissible for “the limited ... specifically nesses. He ruled that Mil. prove knowledge knowing either ... and 608, allowing R.Evid. cross-examination ingestion opportunity conscious ... and an specific about instances of conduct when it is and, part on her to use ... I truthfulness, probative player” of a was “not guess say, may I your should as it affect in this case. credibility testimony assessment of the of her resumed, When the trial on the merits trial you.” before appellant “good military counsel asked if deliberations, began Before the members drugs,” ... responded,

members and she military judge instructed as follows: “No, appellant provid- sir.” He asked if she May 21, 1996, a sample earlier, ed urine if you and As I have advised some evi- sample positive. responded tested She pur- dence has been admitted for limited affirmatively case, questions. poses specifically, both Trial coun- in this and more “attempting sel asked her if testimony she was to im- Prosecution Exhibit and re- changed, provisions otherwiseindicated. unless 2. All Manual are cited to the version applicable at trial. The 1998 version is un- Mil.R.Evid. specimen Evidence offered under regarding a urine lated thereto 404(b) satisfy admissi by the or about must three tests to be provided accused on First, “reasonably test- subsequent the evidence must ble. thereof; tendency by finding that is court members that support a evidence, any, requisite crimes, if such wrongs, or prior committed part oppor- or knowledge on the accused’s Second, the must make a acts.” evidence tunity alleged to commit the offense before probable. consequence more or less fact of court, may have or as such this evidence Third, satisfy the balanc the evidence must any, your if impact, assessment i.e., pro by ing required Mil.R.Evid. testimony credibility of the accused’s “substantially out value must not be bative the court. not consider before You prejudice, weighed danger of unfair And purpose. for this evidence other issues, misleading or confusion you may not conclude from this members, or of undue de considerations person person, that the accused is bad time, presentation lay, or needless waste character, criminal of bad moral or has cumulative evidence.” United States therefore, she, and that com- tendencies (CMA 1989). Reynolds, 29 MJ charged. offense This evidence mitted the military judge specifically cited Mil.R.Evid. you purpose was not admitted and 403 when he ruled that evi it may purpose. not consider for that You was admissible. dence say, may, only as I use it for the limited 608(b) that the credi- provides Mil.R.Evid. tendency, any, prove purposes of if by bility may of a witness not be attacked knowledge opportunity or the accused’s on charged, part specific to commit the or its evidence of instances of con- offense extrinsic any, credibility impact, duct, if may but a witness be cross-examined you testimony. weight give decide to her conduct, specific probative if it of about military The truthfulness or untruthfulness. object limiting not Defense counsel did to the judge specifically ruled that Mil.R.Evid. 608 request or instructions. instruction additional player” “not a in this case. Neverthe- Discussion less, permitted counsel to cross-ex- he trial amine about the second 404(a) prohibits Mil.R.Evid. admission of urinalysis. “propensity provides: so-called evidence.” It person’s “Evidence of a character or a trait scope by “The of rebuttal is defined character person’s of a is not admissible for party.” evidence introduced the other purpose proving person of acted that the Banks, 150, v. United States 36 MJ 166 conformity particular in therewith occa- 1992) (CMA (citing v. United Michelson has sion.” This Court held that the mere States, 469, 213, 335 U.S. 93 L.Ed. 69 S.Ct. person had drugs fact that a used at times Baldwin, (1948); 168 United v. 17 States previous charged “not offenses does 72, (1967); 37 USCMA CMR 336 probable make it more or less that” the Sellers, 262, person knowingly 12 30 CMR drugs used on the date States v. USCMA Cousins, (1961)). charged. 35 MJ United States v. A broad an accused 262 assertion (1992). 70, 74 that he” or she “has “on direct examination engaged type in a miscon never certain permits Mil.R.Evid. evi- may open impeachment “by the door to duct” crimes, wrongs, acts” to dence of “other or evidence of misconduct.” Unit extrinsic character, than person’s facts other (CMA), Trimper, 467 ed States 28 MJ “motive, intent, opportunity, prepara- such as denied, 493 110 107 cert. S.Ct. tion, knowledge, plan, identity, or absence of (1989); see Walder v. United L.Ed.2d legal mistake or accident.” This rule was the States, 98 L.Ed. S.Ct. judge’s ruling that the basis for the (1954). military judge ruled that May urinalysis in was ad- command-directed testimony appellant’s of mari- that she did use appellant’s missible to show use juana marijuana April 1 April knowing and conscious. at time between April opened impeachment by the door to unlawful substance in an accused’s urine af- marijuana charged extrinsic evidence that she had ter the date of the offense and not metabolite her urine on 21. He connected to the offense specifically cited Trimper support of his prove knowing used to use on the date ruling. charged. military judge’s error in ad- mitting compounded by the evidence was his The Court of Criminal held telling they instruction the members that appellant’s testimony raised the issue of proof could consider the evidence as ingestion. innocent But it held that the sec knowledge,"knowing ingestion, and conscious ond, urinalysis initiated on opportunity. May 21 directly did not contradict testimony knowingly that she did not dissenting colleague sug Our April 1 and 29. 50 gests that the evidence of the second held, however, MJ at 588. The court below prove guilty was admissible to positive urinalysis that the second was rele knowledge under the “doctrine of chances.” appellant’s credibility vant to and to rebut posits unlikely This doctrine that “it is good military her evidence of character. Id. repeatedly innocently defendant would be at 590. suspicious involved in the similar situations.” Imwinkelried, Uncharged E. Misconduct disagree. We Extrinsic evidence of (1999). Evidence 5:28 at 78 specific acts is not admissible to rebut evi good military dence of character. See Unit quarrel While we have no with this Pruitt, ed States v. 46 MJ admissibility, there is no factual Although cross-examination character wit predicate applying init this case. Fur specific permissible nesses about acts is un thermore, chances, under the doctrine of 405(a), der Mil.R.Evid. “cross-examination proponent required of the evidence would be should be limited to acts that would have subsequent ingestion to show that the of prior occurred charged, the crime because marijuana was under circumstances suffi the court wants to test character at that ciently ingestion similar the first as to Stephen Saltzburg, time.” A. D. Lee Schina justify an ingestion inference that the first of si, Schlueter, Military and David A. Rules of marijuana knowing. Id. at 79-80. See (4th ed.1997) Evidence Manual 572 (empha Aguilar-Aranceta, States v. 58 F.3d original). sis in military We note that the (1st 796, Cir.1995) (similarity between judge did not instruct the members on this uncharged charges act and current is “touch admissibility. of relevance); stone” test for United States military judge’s ruling A on admis (9th Cir.1994) 1174, Mayans, 17 F.3d only sion of evidence will be overturned if (prosecution must show more than “the crud military there is an abuse of discretion. A charged est sort” of similarities between judge ruling abuses his if discretion his “is uncharged misconduct); United States v. influenced an erroneous view of the law.” Gordon, (2d Cir.1993) 987 F.2d 908-09 Sullivan, United States v. 42 MJ 363 (abuse of discretion to admit evidence of if other acts the other act or acts are not “sufficiently similar to the conduct at issue” military We hold that the judge provide reasonable basis to infer knowl abused his discretion when he admitted the edge). evidence of the second command-directed urinalysis. rejected case, This Court has appellant’s prosecution the no pro- the case,” tion that evidence of an “paper producing unlawful in ceeded on a labora- substance an tory reports accused’s urine at a time absolutely before the but no evidence of the offense be used to surrounding know circumstances either the first or Graham, charged. ingestion. use on the date alleged See second The record is de- 60; Cousins, 50 MJ at see also 35 MJ at 74. void of evidence that the circumstances of the reject We also alleged ingestion notion that evidence of an second were similar to the ease, evidence, In this legal in a correct framework. there is no first. Without such military applying judge admitted evidence on for “doctrine of factual basis legal an incorrect basis and submitted it to Accordingly, we conclude that a chances.” ambiguous erroneous and based on the the members with theory of relevance “doctrine Accordingly, we must reverse. applicable to this instructions. chances” is not case. presumed members are to fol Court Decision military judge’s low the instructions. United 1991). Holt, (CMA States v. MJ States Air The decision of the United Thus, presume that the mem we must court Appeals is Force Court of Criminal reversed. bers the evidence of the second considered findings sentence guilty and the are purpose. urinalysis improper an trial is set aside. The record of returned to Judge of the Air Advocate General military judge also instructed rehearing may A be ordered. Force. that the second urinal members ysis could considered their assessment EVERETT, Judge (concurring): credibility. gave He Senior appellant’s them no guidance. military judge Since the further April After tested on been rejected Mil.R.Evid. 608 as a for admit basis of the results of 1996—and because evidence, ting prosecution ruled that the test, she tested on was further would not be allowed to attack nanogram respec- In view of levels of the character cross-examination tests, they expert tive an testified that did acts, specific specifically about cited drugs single not reflect a use of —unless Trimper support ruling of his person tested was a chronic user. admissible, it is evidence was clear that he Thus, might charg- existed for basis that the members sec intended consider the ing appellant separate with two instances of contradicting ap ond as evidence drug use. did not The Government choose to pellant’s carefully limited denial she Perhaps do this. this decision was made April used might because issue exist as admissibil- the period charged. which, ity results of the second

judge did not translate his into rationale test — test, part unlike the first was not of an setting permissible legal out the instructions “inspection” but instead was command-or- evaluating appellant’s framework for credibil I question dered. some as to have whether ity. Harper, See United States v. 22 MJ Fourth receipt the Amendment would bar in (CMA 1986) (“Where 164 the members are by evidence of of a test ordered a the results fact, finders of it is incumbent on the commander those under circumstances. judge clearly concerning instruct them readily I defer to what seems to law.”) applicable] principles [the We military judge’s position have been the that agree the below that with court the evidence only those if the results were admissible door through obtained the uri command-directed opened by were the defense. nalysis appellant’s does not contradict direct Thus, testimony. to the extent that the mili If the Fourth Amendment otherwise would tary judge’s permitted instructions the mem in receipt of the results barred evi- bers to consider the second dence, exception provided I doubt that the contradiction, impeachment by they in were 311(b)(1) change Mil.R.Evid. would the out- adequate and incorrect. My reading suggests come. the record highly inflammatory the nature of that the here was not Given evidence “used positive impeach by the in-court evidence of second contradiction the testi- mony Although I urinalysis, danger improp- recognize the of a of the conviction accused.” erly by propensity required loophole that the first created Walder v. based on States, carefully limiting crafted instructions. United S.Ct. Simi- (1954), by larly, put credibility expanded appellant once on L.Ed. has been later Havens, line, the such she was entitled to have it evaluated cases as United States issues,----”). prejudice, confusion of the [or] 100 S.Ct. 64 L.Ed.2d (1980),* effect, testimony given appellant the still the accused is forced to defend drug go enough against separate two incidents of did not far to eliminate admitting being charged only evi while with one. Absent Fourth Amendment bar to special dence of the results of the second test. described in Gra- circumstances ham, I evi- where decided the rebuttal Even if the Fourth Amendment would not “prior positive dence of the result” was nec- test, drug exclude evidence the second misled, essary prevent jury being from receipt at trial was barred Mil.R.Evid. join majority I here. I do result Judge As makes Gierke so because to do otherwise would increase clear, that if it test —even were deemed danger command-directed-urinalysis establish that had committed a sec- positive, results that are like in this case and 404(b) only ond offense —is admissible under cases, may in future similar become admissi- purposes” “for other than to bad char- simply ble because a servicemember’s de- Moreover, “danger prej- acter. of unfair ingestion. Accordingly, I fense is innocent udice, issues, misleading confusion of the or join majority’s authorizing a result very great the members” is relation to the rehearing under the circumstances of this “probative value” of the evidence about the case. drug results of the second test. Therefore, Judge I concur with Gierke. CRAWFORD, Judge (dissenting): Chief SULLIVAN, Judge (concurring in the majority I overlooks dissent because result): the common-law of contradiction and Supreme misreads the Court cases concern- Graham, My dissent in States v. ing impeachment by extrinsic evidence. (1999), grounded principle MJ 56 was on the of fair rebuttal in a where the accused case in- had made use of a similar “innocent FACTS gestion” prior drug in a I defense trial. held Special Investiga- Appellant, an Office of specific

that under the circumstances in Gra- agent, Wednesday, tions when notified on (where possibly ham the accused at trial was 24, 1996, randomly that she had been misleading jury explanation with his urinalysis testing, pale selected for became “flabbergasted” he uri- to see early. and ill and went home called in She nalysis) jury was entitled to know about Thursday provide did not sick on prior positive urinalysis “light- under the following Monday sample urine until ning striking theory. twice” Id. at 60-63 morning. sample That tested (Sullivan,,J., dissenting). marijuana. Appellant then ordered to In the instant case we have different cir- provide sample urine Immediately being told that cumstances. sample posi- 1996. That also tested positive drugs, appellant for she tested marijuana. tive for required to submit to a command-directed (which trial, urinalysis proved positive began case-in-chief later for At defense by introducing good drugs). Campbell, v. seven affidavits as to the See United States (CMA 1994). Although may appellant. it character of The first live defense MJ 177 agent for a commander to order witness was another who indicated he been reasonable 313(b), appellant urinalysis, that second see Mil.R.Evid. had attended the same luncheon as Appellant put it is fair to introduce it at trial and an and also became sick. was the not unjustified on the defense witness and testified that she double burden accused. next (probative why positive value “sub- had to tested and See Mil.R.Evid. no idea as she stantially outweighed by danger unfair that was mad that the test identified her she * (CMA), Trimper, L.Ed.2d 676 28 MJ 460 493 U.S. 110 S.Ct. States Cf. denied, (1990). cert. 110 S.Ct. Illinois, (1989); L.Ed.2d 374 see also James v. un- after the before or incident occurs of the marijuana. At the conclusion using as incident, the doc- under charged [because] examination, for prosecutor asked direct uncharged incident is 39(a) trine of chances argued at which he Article session innocent probability of to lower the door to relevant testimony opened the urinaly- mind.” Id. at 79. state of of the admission rebuttal to as under Mil.R.Evid. sis split are that “courts The treatise notes knowledge oppor- of and show proponent question whether over marijuana. tunity use to if chances may invoke the doctrine relevance, govern- a logical To determine only one similar evidence of proponent has He Papa, Dr. was recalled. expert, ment Fed- § “[u]nder at 22. act.” 5:07 length of time testified that because single even a Evidence eral Rule of sample, the the first and second material to of conduct can be similar instance to the sample could not be attributed second rea.” Id. likelihood of mens increase the prosecution, ingestion. Based on the first omitted). (footnote example: For prosecu- judge then allowed proffer, the implausible judge that it is If the believes the second question appellant about tion to physical act person perform a that a could urinalysis. acts more than once without or series of rea, single un- mens a forming a certain DISCUSSION the doctrine is relevant under act subsequent act involves use of a This case Relying on his to show intent. of chances appellant’s trial assertion that to contradict experience, life sense and or her common why tested she had no idea she in- judge may conclude that innocent her mad that the test identified that she was type incident is a in this volvement marijuana. prevailing is using “view experience. in lifetime” “once admissible,” “logi- subsequent if acts are Id. at 23. Imwinkelried, Un- cally relevant.” See E. knowledge as Appellant’s claim of lack of § at 72 charged Misconduct Evidence 2:12 urinalysis results test- why 29th marijuana precisely is such ed “ however, recognizes, That same treatise im- experience.” It is ‘once in a lifetime’ (but in- “subsequent often acts are again tested plausible that she could be variably) prove the defendant’s irrelevant month, again and once following knowledge.” Further- prior Id. at 73-74. urinalysis positive for results test have her more, theory, prosecu- “depending on the have an innocent state of uncharged may prior tor be restricted to in all mind. The act at issue is similar re- misconduct or similar acts or urine drug found in the respects: the same uncharged quired prove more than one closely related in time.1 person of a (footnote omitted). act.” 5:24 at 66 Moreover, marijuana complex is a act categories then discusses four The treatise steps. premeditated requiring several frequently prosecutors are of cases in which Therefore, appellant’s subsequent positive uncharged misconduct allowed to introduce is admissible under the test knowledge. guilty the defendant’s logical relevance. - category styled §§ fourth 5:25 5:28. The majority asserts that the evidence is Uncharged Tend To Prove Acts Which charged act. I Guilty Knowledge by insufficiently to the of Doctrine of similar Virtue majority by the According disagree. The cases cited to this 5:28 at 78. Chances. example, in entirely dissimilar. For doctrine, unlikely that the defendant are “it is Aguilar-Aranceta, 58 F.3d in v. repeatedly innocently involved United States would (1st Cir.1995), particular- the court found Id. In 796 suspicious situations.” the similar “[wjhether four-year period ly troubling “the between category, it does not matter this circumstances, certainly change lapse there long in notes: "So as the time 1. The treatise logical § 2:12 at 73. an interven- relevance.” and there is no evidence of is short 474 prior Appeals

[the conviction Mayans accused’s] and the facts The Court of in cited a with leading present charges.” concerning case facts similar to this one to the The court proof logical of “a connection between the nonetheless found “that the district court did knowledge gained as a result of the commis finding Agui- abuse its discretion in prior sion of act knowledge and the at prior specially lar-Araneeta’s conviction was charged issue in the act.” Id. at 1181-82. knowledge.” relevant to the issue of The (9th Sinn, In United States v. 622 F.2d 415 court found also the evidence should Cir.1980), denied, cert. 101 have been excluded under “Rule 403 balanc- (1980), S.Ct. 66 L.Ed.2d 51 the accused (id. 800) ing” at due “the remoteness in apprehended Angeles airport “was at the Los prior danger time of her conviction” and the following flight a from Ecuador and was prejudice. “Aguilar-Aranceta of unfair carrying concealing found a camera case” spoke English”; postal little or no “win- court, cocaine. As noted the Sinn which Aguilar-Aranceta dow clerk was aware that then-Judge Kennedy, included “It was shown packages” would be arrested if she took the objection years previous over that about five containing “might cocaine clerk ly appellant possession had been in of cocaine especially encouraging been in zealous her to during illegal buy-and-sell an transaction.” packages.” take the Id. at 801. “Where, here, The court held: as the sole intent, question is one of think it Gordon, we within In United States v. F.2d 902 (2d discretion the trial court to decide that Cir.1993), the court concluded that defen- previous dealing a is relevant on the issue of possession dant “Gordon’s 16 months earlier knowledge participant of the in a second of a modest triple- amount of crack and a event, where, here, particularly there was beam scale had so little value to his knowledge substantial evidence from which Ghullkie, knowledge that whom he had met might apart prior be inferred from the only recently, importing large quantity was Here, prior act.... in both the and the of cocaine and that it was inadmis- offenses, subsequent drug the identical sible.” Id. at 909. person involved and was found on the Mayans, United States v. the defendant appellant.” 622 at F.2d conspiracy with to distribute majority opinion present appeal The in the possession with intent to distribute co “paper laboratory denounces the case” of the caine, possession “[F]ive cocaine. co results as insufficient to show the circum- buyers ‘mule,’ caine and the sellers’ Andres surrounding stances either the first or sec- Ortiz, were all in act arrested of consum alleged ingestion. ond None of the cases deal; mating drug three others ... were majority opinion require cited a more leaving arrested at or the course of predicate detailed factual for admission of apartment just ... which Ortiz had visited prior subsequent or acts. All that needs Appellant Mayans before the deal.” “Pablo i.e., logical be demonstrated is relevance: up was arrested as he drove and down the drug identical was found in the urine of the apartment, street in front of’ the which was occasions, person separate and in this family. government owned his “The ... case, only apart. one month It doesn’t mat- prior drug introduced evidence ... of appellant joint deals ter whether smoked a on one next; Mayans buyers” bong way, occasion and a and three of the either why the evidence shows that she knew knowledge show and intent. “The trial court marijuana. urine tested ... was satisfied with information of the crudest sort —the mere fact that Supreme v. Court Harris New allegedly prior drug made deals with the York, 222, 224-25, U.S. S.Ct. 1174, 1177, co-defendants.” 17 F.3d 1182-83 (1971),relying L.Ed.2d 1 on Walder Unit- (9th Cir.1994). Court found States, ed 98 L.Ed. S.Ct. “put that this him not have (1954), approved illegally use of seized notice of the facts about which he disclaimed impeach testimony. evidence to the accused’s knowledge impeachment in this case.” Id. at 1183. But Walder involved on a col-

475 justify nothing ‘to cross- Agnello had done the Court said point. The Walder lateral the evidence respect in in of deny” elements examination “must be free to defendant by the search.’ opening or herself to have been obtained himself claimed the case without Agnello is that by illegally implication seized evidence. of Walder impeachment The having rejected and too implicitly that limitation of cross-examination Harris was a case subject sweeping rejected requirement for a the a connection with thus tenuous may illegally permit be seized evidence examination to opened upon denial before direct by evidence.” U.S. impeachment admitted. tainted 625,100 1912. at S.Ct. in v. Supreme Court United States The 1912, Havens, 620, 100 S.Ct. U.S. joined by Mar Brennan Justices Justice (1980), specifically the L.Ed.2d 559 noted Stewart, Stevens, shall, Jus dissented. illegal- holding “that Appeals’ of below Court majority complained that the tice Brennan impeach- may used for ly evidence seized impeachment the “ex passed control of par- only if the evidence contradicts a ment Government, prose ception to the since by a defendant in the ticular statement made admitting lay predicate cutor can 623, at his direct examination.” Id. course of suppressible evidence with his own otherwise on a holding was based 100 S.Ct. 1912. 631, 100 questioning.” 446 U.S. at S.Ct. reading Agnello v. very narrow of majority up complained set He 1912. 4, States, 20, 46 70 L.Ed. 145 S.Ct. proceeded it to de “pitiful scarecrow” which 623-25, 1912. 446 U.S. at 100 S.Ct. Agnello that He noted both molished. proposition “that stand for Walder conspiracy to Agnello was with may employ power Government package of cocaine. He testified sell a predicate the admission cross-examination possessed the direct examination that he had 630, at 100 S.Ct. illegal evidence.” Id. in them. packages but did not know what was also noted “cross-examination 1912. He that having ever cross-examination he denied On previous with co Agnello’s connection about in the narcotics that were the can seen reasonably his direct related to caine was Supreme suppressed. The cocaine that was knowledge testimony that he lacked that suppressed that evidence Court held transporting cocaine.” commodity he impeach Agnello since could not be used fact, 630-31, 1912. Id. at S.Ct. testify he did not con- on direct examination in noted that Walder Brennan dissent cerning cocaine. 269 U.S. at the can of that a defendant specifically stated “decision S.Ct. deny all the elements of the ‘must be free to Supreme in Havens noted that Court thereby giving against him without case Agnello and the other cases were erroneous- by way introduce to the Government”to leave ly illegally that evidence read to mean seized it, illegally secured of rebuttal impeach a statement could be used case-in- not available for its and therefore direct, but not brought out defendant on ” 631, 100 citing 347 Id. at S.Ct. chief.’ brought first time on cross- out “for the truth-seeking 354. While U.S. at 74 S.Ct. recognized The Court examination.” thought that the important, is the dissenter Walder, Harris, Hass, Oregon police not aid officers Supreme Court should 43 L.Ed.2d 570 95 S.Ct. violating 446 U.S. at the law. (1975), illegally impeachment obtained with S.Ct. 1912. permitted because of what the evidence was truth-finding analyzing But Rather than said on direct examination. defendant “[tjhese objective, majority of this Court in trial repudiated the statement cases in Havens. takes the view dissenters Agnello that no use at all be made Fortunately, not the law. Unfortu- Supreme illegally evidence.” The obtained majority For nately, seems to think it is. “also Court noted that Court of reason, ... I dissent. Agnello this relied on the statement

Case Details

Case Name: United States v. Matthews

Court Name: Court of Appeals for the Armed Forces

Date Published: Aug 31, 2000

Citation: 2000 CAAF LEXIS 950

Docket Number: 99-0487/A

Court Abbreviation: C.A.A.F.