In United States v. Rose, No. 201100584 (N-M.Ct.Crim.App. Apr 30, 2013) (per curiam) (unpublished),the appellant (an E-6) was convicted of a single specification of wrongful use of cocaine. But the NMCCA finds error in “the military judge’s admission of the cover memorandum, and the ‘Results’ and ‘Certification’ blocks of DD Form 2624, over the appellant’s objection.” Slip op. at 5. Then the court finds prejudice because:

The appellant had been on active duty for nearly 19 years at the time of the alleged offense, and had no prior disciplinary issues. Throughout his career, the appellant had been randomly drug tested approximately 3-4 times a year and there was no evidence that any other test was problematic. At the time of this urinalysis, the appellant had worked at a counter-drug operations command since 2005. The defense’s strategy at trial was that the appellant may have unknowingly ingested cocaine while at a bar, and the appellant took the stand and testified that he did not use cocaine. Three different witnesses, a Navy commander (0-5), a former Navy lieutenant (0-3), and a chief operations specialist (E-7), testified that they believed the appellant had good military character and that he was truthful. No witnesses testified that the appellant used drugs, the appellant did not make any admissions to illicit use, and the Government did not present any paraphernalia or physical evidence of drug use. Thus the only evidence presented against the appellant was the positive drug test. This set the case up as a battle of the experts, and made the improper testimonial hearsay very important to the Government’s case.

The appellant’s expert raised concerns about quality control methods used in the laboratory (as evidenced by an unreported date discrepancy in the chain of custody documents), and questioned the validity and accuracy of the testing conducted on the appellant’s sample (due to significant differences in the values reported during the screen and confirmatory tests, and an apparent voltage surge that occurred during testing). Weighing against that evidence was testimony presented by the Government’s expert, Mr. Fuller, who testified that he had reviewed the drug tests and concluded that the appellant’s urine contained the metabolite for cocaine above the Department of Defense cutoff level, and that no significant problems affected the validity of those results. Had that beenthe totality of Mr. Fuller’s testimony, there would not be a problem in this case. However, Mr. Fuller used the improper testimonial hearsay to bolster his own expert opinion. Mr. Fuller stated three separate times that the results on DD Form 2624 were “certified,” and thus indirectly asserted (since he was not the certifying official) that another expert also reviewed and approved the positive cocaine result. Verbatim Record at 362, 366. This testimony significantly assisted the Government’s case by showing that two experts, not just one, believed that the specimen was properly tested and positive for cocaine.

Slip op. at 6-7. The CCA sets aside the findings and sentence and authorizes a rehearing.

Of note, the court specifically notes and applies Tearman:

We completed such an inquiry in United States v. Tearman, 70 M.J. 640 (N.M.Ct.Crim.App. 2012), and the CAAF recently affirmed our decision, United States v. Tearman, 72 M.J. 54 (C.A.A.F. 2013), so we apply the same reasoning in this case. . . . we find that the 12 pages of internal chain of custody and review documents are not testimonial, because they “were made under circumstances, which, taken as a whole, establish that they were made for an administrative rather than an evidentiary purpose.” Tearman, 2013 CAAF LEXIS 296, at *18 (citing Sweeney, 70 M.J. at 302).

Slip op. at 4-5. Unfortunately, there’s this bit:

Lastly, the 21 pages of computer generated print-outs are not hearsay because they were generated by a machine.

Slip op. at 5. Well, we’ve got autonomous weapon systems that don’t need a manual. Why not autonomous evidence generation to avoid that troublesome confrontation clause? I remember warning about just that

Edited to add: An additional interesting twist. The sentence for this single-spec conviction was reduction one grade (to E-5) and confinement and forfeitures for 90 days. But the CCA “[has] jurisdiction over this case because the Judge Advocate General (JAG) sent it to this court for review under Article 69(d), UCMJ. To facilitate our review, we ordered a verbatim record of the trial proceedings from arraignment through findings.” Slip op. at 2 N.1.

Remember United States v. Hathorne from last term? No such thing as a “sub-jurisdictional case,” implied the Court of Appeals. Very robust appellate system we have, with the possibility of an impressive six levels of review. This case proves that point.

4 Responses to “NMCCA Sets Aside Drug Conviction on Confrontation Grounds”

  1. ResIpsaLoquitur says:

    19 years?!?  In 2005?  So he’s now retirement-eligible at 27 years.  They’d be insane to take this to a rehearing.  I once saw a 5-ish year old naked UA case go back to trial on rehearing which, surprise, ended up an acquittal.  The government asked for an instruction on the procedural history of the case so they could account for the gap between offense and prosecution, which was denied.  So of course, they ask the members for post-trial feedback, and they all came back with “Why’d this case take so long?”

  2. Zachary Spilman says:

    The sentence was adjudged in March 2010. So merely a ~23 year retiree.

  3. N says:

    Presumably he’s already retired (since there was no punitive discharge) so he’ll receive a hefty lump of back pay.

  4. Tami says:

    But realistically, how often does that happen, when an Article 69 review case gets referred for Article 66 review?