The expert witness admitted on cross-examination that after his review of the test he could not determine whether appellant would have actually “felt the effects” of the drug. Neither the government nor military judge followed the cross-examination with any further questions of the expert that would address this conclusion by the expert witness. The expert witness never discussed the relevance of his conclusion in light of the tested nanogram level recorded for appellant’s sample. We are left with a record containing no meaningful expert interpretation of the test results and no explanation of how the test results can be relied upon given that the expert cannot conclude what amount of marijuana consumed at any given time and cannot state that the appellant ever experienced the effect of the drug. The government presented no other evidence of appellant’s wrongful use of marijuana apart from the positive test and expert interpretation. Under these circumstances, we find the evidence failed to provide us with a sufficient basis to draw the permissive inference of knowing, wrongful use of marijuana and we further find that the evidence, taken as a whole, did not support the finding of guilty for the wrongful use of marijuana specification at issue.

We find the evidence factually insufficient to support appellant’s conviction of Specification 3 of Charge IV, wrongful use of marijuana. See Turner, 25 M.J. 324 (C.M.A. 1987). The finding of guilty for this specification is set aside and the specification is dismissed.

United States v. Potter, No. 20110332, slip op. at 6-7 (A.Ct.Crim.App., Nov. 8, 2012) (unpublished). Previously mentioned here.

8 Responses to “ACCA sets-aside 112(a) conviction due to insufficient expert testimony”

  1. Charlie Gittins says:

    Really?   I have circulated x-exam q ‘s for years that compel experts to testify exactly the same.  Us v. Miller — the navy court apparently didn’t read the law.   Good luck Neal.  You are practicing in the pretend law jurisdiction. 

  2. stewie says:

    great name for a defendant in a pot case. So I assume simply by explaining nanogram level cutoff levels and why they are there would have saved this for govt?
    Because no one is going to be able to testify exactly when someone smoked pot, exactly how much, or whether or not they felt the effects except the accused or an eyewitness.

  3. Zachary Spilman says:

    simply by explaining nanogram level cutoff levels and why they are there would have saved this for govt?

    No. The fact that virtually all of these cases get a less-than-rigorous review is what saves these cases for the Government.

    Because no one is going to be able to testify exactly when someone smoked pot, exactly how much, or whether or not they felt the effects

    Yeah, you know, basically the elements of the offense. Big deal. Lab report says he’s guilty. Launch the drones.

  4. stewie says:

    Lab report says he took x amount of cocaine, you then bring someone to talk about why the nanogram cutoff levels are they and what they likely signify, and you are a long way towards proving the “elements of the offense” by circumstantial evidence
    That didn’t apparently happen here. I’m pretty sure if he’d have testified about the cutoff levels in detail, and done it in such a way to cut against the idea that this was a trivial amount, the court would have had less heartache with it.
    But the way it was presented was, appears to be, he failed a drug test, we’re done here.
    Again, it isn’t likely you will determine exactly when someone used pot, and what their levels were at any given moment, or whether the accused felt the affects short of an eyewitness/confession, but if you know the cutoff levels are there to forestall innocent ingestion, and you know how long it takes to purge the drug, and you know how much was there, you can get enough circumstantial evidence to get to BRD on these facts without direct evidence. So might require a toxicologist or someone similar perhaps (although the expert in this case was quite possible a toxicologist).

  5. Cap'n Crunch says:

    My question, I guess, is the fact that despite setting aside one of three wrongful use specs, there was no sentencing relief or any in depth discussion of that fact, along with the decretal paragraph of all rights, privileges, property taken would be restored.  So, riddle me this… you re-assess the sentence, and determine that you’d have imposed the same sentence that was given.  What, exactly, are you ordering in terms of restoring all rights, privileges, and property?  And, I get that he was convicted of a bunch of other things, but not even 1 month reduction in the sentence for vacating that third specification?  It just seems a bit bogus to me…

  6. Dave says:

    Looks like the Army court is trying to go back the Campbell standard requiring evidence that the accused would have “felt the effects” of the drug. This requirement was abandoned back in 2001 by U.S. v. Green which they actually cited but then ignored the applicable holding that   “The military judge, as gatekeeper, may determine in appropriate circumstances that the test results, as explained by the expert testimony, permit consideration of the permissive inference that presence of the controlled substance demonstrates knowledge and wrongful use. In making his determination, the military judge may consider factors such as whether the evidence reasonably discounts the likelihood of unknowing ingestion, or that a human being at some time would have experienced the physical and psychological effects of the drug, but these factors are not mandatory.”   It’s odd that they completely ignored Campbell, its dissent, and its modification by Green in coming to this decision.


  7. stewie says:

    You are correct they are not elements, although they are definitely part of the providency colloquy, and they do go to show definitively whether use was wrongful.

    I concur that you can get there without direct evidence of those things though, although from what I understand I can see why the ACCA said they didn’t quite get there in this case if evidence wasn’t presented on why the cutoff levels are what they are, etc.

  8. JW says:

    My understanding is that even with cut-off levels, there is no way to conclusively say when and how much of a drug was consumed.  I thought cutoff levels provided a baseline to prevent false positives, not to combat innocent ingestion defenses.