The Coast Guard CCA’s unpublished opinion in United States v. Sullivan, No. 20140925 (C.G. Ct. Crim. App. Sep. 25, 2014) (link to unpub. op), is notable for a number of reasons. For starters, the case involves a Coast Guard Captain (O-6) who was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of a single specification of wrongful use of cocaine in violation of Article 112a. He was sentenced to pay a $5,000 fine and to be reprimanded. That sentence does not trigger automatic review by the CCA, but the Judge Advocate General of the Coast Guard referred the case to the court under Article 69(d).
The CCA considered numerous assertions of error, ultimately rejecting them and affirming the findings and sentence. One assertion of error – involving the rebuttal testimony of a Government witness – caught my attention.
The charge against the appellant was based on a positive urinalysis result. The appellant’s defense was based on the assertion that his wife’s drug use resulted in the appellant’s “innocent and unwitting exposure to cocaine.” Slip op. at 12. In support of this assertion, the appellant’s wife “testified during the defense case concerning her procurement, storage and consumption of cocaine.” Slip op. at 12. But in the Government’s case in rebuttal:
Inspector D, a Senior Inspector for the Contra Costa County District Attorney’s Office, was offered and qualified as an expert in street-level narcotics. (R. at 1957.) He testified, based on his experience as an undercover investigator, concerning the standard process for purchasing powder cocaine, and typical practices for using powder cocaine. (R. at 1959-69.) His descriptions differed in several ways from Appellant’s wife’s descriptions of her experience and practices.
Slip op. at 11. The Defense objected to the expert’s testimony. The CCA explains that “the military judge conducted a lengthy Article 39(a) session—which included a full preview of Inspector D’s testimony—and heard extensive argument from counsel before determining that Inspector D had specialized knowledge that would be helpful to members charged with determining the facts of the case,” but it does not otherwise describe the judge’s reasoning in permitting the testimony. Slip op. at 12.
What immediately comes to mind is last term’s decision in United States v. Flesher, 73 M.J. 303 (C.A.A.F. Jul 8, 2014) (CAAFlog case page), where a divided CAAF reversed a conviction for aggravated sexual assault after determining that the judge failed to conduct the appropriate analysis prior to allowing a former sexual assault response coordinator to testify as an expert witness, and that the record ultimately did not support allowing such testimony. In particular, Judge Ohlson’s opinion of the court focused on the six-part test from United States v. Houser:
(1) the qualifications of the expert, (2) the subject matter of the expert testimony, (3) the basis for the expert testimony, (4) the legal relevance of the evidence, (5) the reliability of the evidence, and (6) whether the probative value of the testimony outweighs other considerations.
Flesher, slip op. at 14 n.3 (citing Houser, 36 M.J. 392, 397 (C.M.A. 1993)). In Sullivan, the Coast Guard court doesn’t explain what – if any – analysis the judge conducted using these factors, and it seems like the testimony is unlikely to satisfy at least some of these factors. Instead, the CCA’s opinion focuses on value of the testimony for impeachment of the appellant’s wife.
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