CAAF will hear oral argument in the Navy case of United States v. Simmermacher, No. 14-0744/NA (CAAFlog case page), on Wednesday, February 25, 2015, at 9 a.m. The case presents a single issue regarding the destruction of Appellant’s urine sample one year after it tested positive for the metabolite of cocaine:

When the Government destroys evidence essential to a fair trial, the Rules for Courts-Martial require the military judge to abate the proceedings. Here, the Government negligently destroyed the sole piece of evidence that provided the basis for HM3 Simmermacher’s conviction prior to both the referral of charges and the assignment of defense counsel. Should the military judge have abated the proceedings?

Appellant was convicted contrary to her pleas of not guilty, by a general court-martial composed of members with enlisted representation, of making a false official statement and wrongful use of a controlled substance, in violation of Articles 107 and 112a, UCMJ. She was sentenced to reduction to E-3 and a bad-conduct discharge.

Appellant’s positive urinalysis was the result of a routine random urinalysis that occurred while she was under investigation for allegations of child abuse (charges that were later severed from the 107 and 112a offenses). But despite that ongoing investigation, the Government did not preserve the urine sample for possible retesting beyond the standard one-year retention period for a positive sample. Appellant’s brief provides the following timeline:

Mar 7, 2011 – urine sample collected
Mar 14, 2011 – command was informed that sample was positive and that it would be destroyed on March 16, 2012
Mar 16, 2012 – sample destroyed
Mar 28, 2012 – charges preferred
Apr 3, 2012 – government provided initial discovery
Apr 6, 2012 – defense counsel detailed
Jun 18, 2012 – defense counsel asked for retest of sample
Jul 10, 2012 – government notifies defense that sample was destroyed on or about March 16, 2012

App. Br. at 3. The defense moved to suppress the results of the urinalysis due to the destruction of the sample, but the military judge denied the motion. The judge ruled:

After considering all the evidence, the military judge denied the appellant’s motion to suppress. AE XLII. He concluded the following: that the appellant had not met her burden of having shown bad faith on the part of the Government; that the sample was destroyed as part of the NDSL’s normal handling procedures; and, that the appellant had provided no evidence that the retest would have had any exculpatory value. Id. As a remedial measure, however, the military judge instructed the members that the sample was destroyed and that they may “infer the missing evidence would have been adverse to the prosecution.” Record at 892.

United States v. Simmermacher, No. 201300129, slip op. at 4 (N-M. Ct. Crim. App. May 29, 2014). The NMCCA affirmed.

CAAF’s action in this case will undoubtedly clarify the court’s opinion in United States v. Manuel, 43 M.J. 282 (C.A.A.F. 1995), where CAAF affirmed a decision of the Air Force Court of Military Review that held that “the Government’s failure to exercise due diligence, comply with regulatory guidance and preserve a reported positive urine sample denied appellant equal access to all evidence as required by Article 46.” 39 M.J. 1107 (A.F.C.M.R. 1994). In Manuel, CAAF found that

Loss of this evidence was particularly significant here, as there was a genuine controversy as to nanogram level in the specimen. The initial reading was close to the 150 ng/ml cutoff. The accused testified on the merits, and he denied using cocaine and stated that he did not have any explanation for his positive urine samples. He established a sincere desire for an independent-expert test, and his attempt to obtain a retest was not perfunctory. Indeed, he offered to pay for the tests at his own expense. . . . Here, but for the destruction of the urine sample, the military judge could have afforded the right to an independent test to the accused. In the narrow facts of this case, we find that the accused raised a viable issue as to the accuracy of the urinalysis results. To require more would place an insurmountable burden on an accused.

43 M.J. at 288-289 (citations omitted). The Government’s brief in Simmermacher notes differences between this case and Manuel, such as the routine nature of the destruction of the evidence and the assertion that “there was no evidence here that contradicted the urinalysis results, Appellant did not testify on the merits, and there was no genuine controversy as to the nanogram level.” Gov’t Br. at 13.

Yet Appellant’s position is that these factors don’t matter:

The lower court’s and military judge’s reliance on this statement in their R.C.M. 703(f)(2) rulings shows a fundamental misunderstanding of the value of a retest. It assumes the initial testing was accurate and that there was no adulteration or misidentification of the sample. It is this very assumption the defense was prevented from exploring when the Government destroyed the urine sample.

To allow HM3 Simmermacher’s conviction to stand under such circumstances not only undermines servicemembers’ confidence in the fairness of the urinalysis program, it undermines the fundamental fairness of the military justice system.

App. Br. at 10-11.

CAAF may also focus on the effectiveness of the military judge’s remedial instruction in the context of the permissive inference of wrongful use that may be drawn from a positive urinalysis result:

The Military Judge, to address the destroyed urine sample, instructed the Members that they

[M]ay infer from the positive urinalysis test, for the presence of cocaine, that the accused knew she used cocaine. However, drawing of any inference is not required. Because the sample was destroyed after 1 year, you may infer that the missing evidence would have been adverse to the prosecution. However, you are not required to draw this inference.

(J.A. 114-15.)

Gov’t Br. at 5. See, generally, United States v. Bond, 46 M.J. 86 (C.A.A.F. 1997) (discussing the permissive inference of wrongful use). This instruction and its dueling inferences is somewhat confusing, and it’s debatable whether it served to remedy the destruction of the sample or whether it made the problem even worse.

Ultimately, Appellant’s position is blunt:

Under the circumstances of this case, no remedy other than suppression of the lab report or abatement of the proceedings could cure the fundamental unfairness of this trial caused by the Government’s destruction of essential evidence. The lower court’s opinion means the Government can destroy urine samples with impunity and force an accused to trade a defense for a military judge’s instruction.

App. Br. at 19. CAAF may not see the facts of this case as presenting so stark a choice.

Case Links:
NMCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

4 Responses to “Argument Preview: United States v. Simmermacher, No. 14-0744/NA”

  1. Advocaat says:

    The legal office had an affirmative duty to take all appropriate action to ensure the urine sample was preserved and their failure to do anything, followed by preferral days after the only evidence of drug use was destroyed, establishes gross negligence at the very least and arguably more given the timing.  Navy COs never get the benefit of an “oops” defense, so why should the SJA, DSJA, TC, legalman, and investigator in this case all enjoy such immunity for failing at their jobs every day for 365 days in a row when a sailor’s liberty was at stake?  Why shouldn’t the accused receive a windfall?

  2. RKincaid3 (RK3PO) says:

    Far too often people–sadly even those who are supposed to be learned members of the judiciary–miss one of the main points of confrontation–whether in the context of confronting a witness or confronting and challenging evidence.  The accused, who is presumed innocent, does NOT have to accept as true the government’s assertions that he is a criminal.  And the panel cannot accept such evidence unless the accused fails to challenge and confront that evidence–at which point the evidence then become unrebutted and consequentially true.
    So, if the government wants to allege criminal conduct by a citizen, the government must prove it–not just allege it.  Any person who argues that a true justice system necessarily includes an argument that the government’s allegations are presumed true and unsusceptible of challenge not only misunderstands human nature and the history of mankind’s government’s abuse of its citizenry through the offering of baseless allegations (often for political reasons), but they also misunderstand confrontation and why the defense must, of necessity, be allowed to challenge the government’s allegations with its own testing of that evidence following its own testing, or in the case of witnesses, cross-examination.
    It seems to me that far too often, those who rely on establishing tests for determining the remedy, as was so painfully done in this case, have forgotten that “innocent until proven guilty” is more than a slogan.  It should NOT matter what the government’s motivation was in failing to take due care to preserve the evidence.  Whether careless, indifferent or criminal and vindictive, the government’s failure to preserve the evidence that IT and only IT possesses but also needs to convict a citizen of a crime is the government’s failure to protect itself and the people. 
    Such is NOT the citizen’s fault.  As such, regardless of why the evidence is not available for independent testing and analysis, the accused–a citizen–remains INNOCENT because guilt cannot be proven.  If the government–for whatever reason–cannot prove the charged offense–it cannot and should not be allowed to convict anyone no matter how heinous the crime and/or evil the accused!
    By protecting the worst among us from  the inevitable, arbitrary government allegations of criminality, all of society–every individual regardless of political connection or wealth or poverty–is protected from that fickle creation of “the people”–government.  At least, that is how it is supposed to work.
    Just my opinion….

  3. Christian Deichert says:

    I would have priced this at a Charticle 29 (for non-Army, that’s a field grade Article 15, followed by a separation for serious misconduct under para. 14-12c, AR 635-200), not a court-martial.  Was this a turn-down from a captain’s mast?  Or does the Navy have the same tolerance level as the Air Force (and/or an empty docket and a desire to get TCs in court), such that one spec urinalysis cases like this actually merit courts-martial? 

  4. John O'Connor says:

    I’m just fascinated that members would think the accused should get a BCD and yet reduced her only one grade to E-3.  My experience is nearly 20 years old, and in the Marine Corps, but I never saw a punitive discharge that didn’t also reduce the accused to E-1.