United States v. Sergeant JOHN R. WILLIAMSON, JR. , 2007 CCA LEXIS 265 ( 2007 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
SCHENCK, ZOLPER, and WALBURN
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant JOHN R. WILLIAMSON, JR.
United States Army, Appellant
ARMY 20030855
U.S. Army Air Defense Artillery Center and Fort Bliss
Mark P. Sposato, Military Judge
Lieutenant Colonel Tracy A. Barnes, Staff Judge Advocate
For Appellant: Major Charles L. Pritchard, Jr., JA (argued); Colonel Mark Cremin,
JA; Lieutenant Colonel Mark Tellitocci, JA; Major Allyson G. Lambert, JA (on
brief); Lieutenant Colonel Kirsten V.C. Brunson, JA (on supplemental and reply
briefs).
For Appellee: Captain Ryan R. McKinstry, JA (argued); Lieutenant Colonel Mary
M. Foreman, JA; Lieutenant Colonel Natalie A. Kolb, JA (on brief).
25 July 2007
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OPINION OF THE COURT
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SCHENCK, Senior Judge:
A general court-martial composed of officer and enlisted members convicted
appellant, contrary to his pleas, of wrongfully possessing 3.79 pounds of marijuana
with intent to distribute, in violation of Article 112a, Uniform Code of Military
Justice, 10 U.S.C. § 912a [hereinafter UCMJ]. The convening authority approved
the adjudged sentence to a bad-conduct discharge, confinement for two years, and
forfeiture of all pay and allowances. This case is before the court for review
pursuant to Article 66, UCMJ.
Appellant asserts several assignments of error. Two, alleging Sixth
Amendment violations, require discussion, but merit no relief. Specifically,
appellant contends he was denied his Sixth Amendment right to effective assistance
of counsel because his defense team, consisting of detailed military counsel and
civilian defense counsel, failed to move to suppress the marijuana as the “fruit of an
unlawful search.” We disagree and hold that appellant has not shown such a motion
WILLIAMSON – ARMY 20030855
would have been meritorious and, therefore, has not met his burden of demonstrating
a deficiency with resulting prejudice. Appellant also contends the military judge
erred by admitting a laboratory report (identifying the substance appellant possessed
as marijuana) as a business record pursuant to Military Rule of Evidence [hereinafter
Mil. R. Evid.] 803(6). He argues the military judge’s ruling contradicts the Sixth
Amendment Confrontation Clause requirements set forth in Crawford v. Washington,
541 U.S. 36 (2004), 1 because the laboratory report is testimonial in nature. We agree
and hold that, under the circumstances of this case, the laboratory report is
testimonial under Crawford and, therefore, was improperly admitted under Mil. R.
Evid. 803(6). We further find, however, the military judge’s error in admitting the
laboratory report was harmless beyond a reasonable doubt.
FACTS
In August 2003, appellant was convicted of wrongfully possessing 3.79
pounds of marijuana with intent to distribute, on or about 27 November 2002, for
possessing a box containing three bundles of marijuana, which he received through
Federal Express while he was on leave in New Orleans, Louisiana. At trial, the
government called Detective (Det.) Joel Pena from the El Paso, Texas, Police
Department during its case-in-chief. Without defense objection, the military judge
recognized Det. Pena “as an expert in the field of narcotics interdiction . . . to
include distribution and transportation.” Detective Pena, then assigned to a Drug
Enforcement Administration (DEA) Task Force, testified regarding the seizure and
controlled delivery of the marijuana that ultimately led to appellant’s arrest.
Detective Pena’s testimony was consistent with and supplemented by his affidavit
supporting the request for a search warrant (admitted into evidence as Prosecution
Exhibit (P.E.) 3 without defense objection), and by the DEA Task Force police
report (admitted into evidence as Defense Exhibit (D.E.) R without government
objection).
1
Appellant’s court-martial was completed in August 2003, and Crawford was
decided on 8 March 2004. Since military appellate cases are considered pending on
direct review, the “new rule of criminal procedure” announced in Crawford applies
retroactively to appellant’s case. See Whorton v. Bockting, __ U.S. __, __, 127 S.
Ct. 1173, 1181–84 (2007); Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (“We . . .
hold that a new rule for the conduct of criminal prosecutions is to be applied
retroactively to all cases, state or federal, pending on direct review or not yet final,
with no exception for cases in which the new rule constitutes a ‘clear break’ with the
past.”); United States v. Cabrera-Frattini, 65 M.J. 241, 245 (C.A.A.F. 2007) (stating
same); United States v. Foerster, 65 M.J. 120, 122 n.3 (C.A.A.F. 2007) (stating
same).
2
WILLIAMSON – ARMY 20030855
On 25 November 2002, Det. Pena was part of a three-officer DEA Task Force
working at the El Paso International Airport. El Paso Police Department Officers
Sal Vargas and Douglas Fairbanks 2 completed the team. During the day, the officers
conducted a drug interdiction operation in the Federal Express outbound freight
terminal. They chose outbound freight because law enforcement agencies generally
consider El Paso a narcotics source city due to its location near the Mexican border.
Oftentimes, freight leaving El Paso contains narcotics for distribution in other cities.
While at the Federal Express terminal, Officer Fairbanks was using his drug
detection dog, “JB,” to sniff outbound packages for narcotics. The DEA Task Force
team became suspicious of a particular outbound package because JB alerted on a
box, which was on the ground with several other packages. Affixed to the box was a
“FedEx USA Airbill ® ” 3 that, in Det. Pena’s opinion, contained obviously incomplete
information; sender and recipient telephone numbers were missing, and the sender
identified the recipient only as “Will” without including a last name. Detective Pena
commented that “most people . . . sending . . . an article to someone else . . . will
[include] a full name” on the Airbill. ®
Once the DEA Task Force team “determined the box was suspect,” the team
moved the box from the Federal Express terminal to the DEA Task Force office near
the airport. At the office, Det. Pena personally prepared an affidavit and a warrant
application to obtain a warrant to search the box and seize its suspected illegal
contents, i.e., narcotics.
In his affidavit supporting the request for the search warrant, Det. Pena
asserted the following facts under oath:
There is in El Paso County, . . . inside the El Paso
DEA Task Force Office[,] . . . one (1) cardboard box,
wrapped in brown paper, sealed with clear tape.
....
2
Officer Vargas testified only during the Article 32, UCMJ, investigation. Officer
Fairbanks did not testify before any proceeding in this case.
3
A FedEx USA Airbill ® is a shipping label used on packages shipped within the
United States. FedEx, at https://www.fedex.com/us/services/documents/airbill.html
(last visited 23 July 2007).
3
WILLIAMSON – ARMY 20030855
It is the belief of [the] affiant . . . that [the box
contains] . . . marijuana, cocaine, heroin and
methamphetamine.
Affiant has probable cause for the said belief by
reason of the following facts, to wit: . . . Officer Douglas
Fairbanks is employed as a police officer by the City of El
Paso and has been so employed for the past 15 years.
Off[icer] Fairbanks’s K-9 partner, “JB,” is a six (6) year
old male chocolate Labrador Retriever. K-9 “JB” was
tested under standards set forth by the North American
Police Work Dog Association (NAPWDA), and the
National Narcotic Detector Dog Association (NNDDA)
and was certified by both associations to detect the odor of
marijuana, cocaine, heroin and methamphetamine. Canine
“JB” has been working in the El Paso area along with
Officer Fairbanks for the past six months and since that
time has alerted successfully on over 40 occasions where
narcotics or narcotic related currency has been seized.
Officer Fairbanks was utilizing his narcotics detector
canine “JB” to sniff through the freight for the presence of
narcotics. At approximately 1440 [hours], Officer
Fairbanks advised the affiant that canine “JB” alerted on
the above described box for the scent of narcotics. The
box was on the ground with several other boxes at the time
of the alert.
Detective Pena testified that, in his opinion, he thought the drug dog, JB, was
certified, and made that assertion in his affidavit. On cross-examination, however,
he stated he learned after the Article 32 investigation that JB was not certified.
When civilian defense counsel asked Det. Pena about this “misinformation,”
Det. Pena said he gave the judge who issued the warrant the information “in good
faith [and i]t’s not like I knew beforehand and I [was] trying to mislead the judge.” 4
On redirect, Det. Pena stated: “JB [has] been around for a while. . . . [O]ur dogs are
4
Civilian defense counsel also cross-examined Det. Pena regarding other aspects of
the search warrant. Trial counsel objected to the line of questioning, and the
military judge stated on the record: “There is no motion on the warrant, so I will
give you latitude, but do we need to have an Article 39(a) session?” Civilian
defense counsel responded: “I don’t think we need to have one.”
4
WILLIAMSON – ARMY 20030855
certified on a yearly basis and it’s a team effort. It’s the canine and the officer that
go through various tests . . . .”
Once Det. Pena obtained the search warrant at the courthouse, he told Officers
Vargas and Fairbanks they could open the box. When Det. Pena returned to the DEA
Task Force office, he saw that the box contained “rolls of toilet paper” and “bundles
of marijuana wrapped in black tape.” The bundles of marijuana were “secured onto
the toilet paper [rolls] with the duct tape.” Consistent with his testimony on the
merits, in both the inventory section of the search warrant and in his police report,
Det. Pena described the property seized as “three (3) bundles of marijuana with the
gross approximate weight of 4.95 pounds.” 5 In accordance with “police department
policy,” no DEA Task Force team member tested the marijuana at the office, but
they “knew it was marijuana . . . based on [their] knowledge and experience with
marijuana,” the “way it was packaged[,] and how it was wrapped.” Detective Pena
and Officers Vargas and Fairbanks kept the marijuana in their continuous custody—
approximately five hours—until they transferred it for the controlled delivery in
New Orleans.
After repackaging the marijuana and rewrapping the box 6—to preserve its
original condition for the controlled delivery—Det. Pena gave the box to Sheila
Ryan, a U.S. Postal Inspector. Ms. Ryan immediately shipped the box to
Det. Jacque using U.S. Postal Service Express Mail ® next-day delivery. Detective
Jacque was also assigned to a DEA Task Force in his jurisdiction. Detective Jacque
picked up the box from the post office, locked it in the police station vault, and
obtained a search warrant for the address written on the FedEx USA Airbill. ® Ten to
fifteen minutes after the controlled delivery was made, Det. Jacque and other
officers executed the search warrant.
During the delivery, Det. Donald Nides of the New Orleans DEA Task Force
posed as a Federal Express deliveryman. Upon arrival at the residence, Det. Nides
spoke with Ms. Quillen, appellant’s sixty-two-year-old grandmother. After
announcing he had a package for “Mr. Will,” Ms. Quillen responded, “Yeah. John
5
Consistent with Det. Pena’s testimony, Det. Wayne Jacque of the New Orleans
Police Department (narcotics section) testified he also weighed the three marijuana
bundles and found they weighed “more than [three] pounds.”
6
On redirect examination, Det. Pena said he had been involved in “hundreds” of
investigations like the one in this case, which included “opening” packages he
suspected contained narcotics, “repackage[ing]” them, and “ship[ping them] out” for
controlled deliveries.
5
WILLIAMSON – ARMY 20030855
Williamson,” and called appellant and told him “he had a package.” “It’s your
package, John,” she said. Detective Nides said he needed a signature and
Ms. Quillen responded, “He can sign it. John? Come sign this, baby.” Detective
Nides apologized for the late delivery and told appellant, “Just sign your name right
there. We will definitely send his money back to him, because it’s our fault.”
Responding to Det. Nides’ comment about late delivery, appellant said, “Thank you.
. . . Oh, yeah, because I called to get a--[.]” Appellant accepted the package and
signed a document acknowledging its receipt. Detective Nides departed the area. 7
Ten to fifteen minutes later, Det. Jacque and other officers executed the
search warrant. Detective Jacque knocked on the door, and when Ms. Quillen
answered, he advised her he had a search warrant and entered the house. Shortly
thereafter, Det. Jacque found appellant in an upstairs bedroom. As the detectives
entered the bedroom, Det. Jacque said he saw appellant “raising himself from the
bed . . . and[,] also on the bed and in the immediate area where [appellant] was[,]
was the control delivered package. . . . [Appellant] appeared shocked and nervous.”
After appellant was detained on the first-floor in the living room, Det. Jacque
retrieved the box with its contents from the upstairs bedroom and confronted
appellant with the seized contraband.
When confronted in his grandmother’s presence, appellant maintained his
“shocked and nervous” demeanor. He also remained quiet and said nothing. When
Ms. Quillen left the living room, appellant gave several explanations why someone
would send a box of marijuana to his house. According to Det. Jacque, appellant
stated “he was expecting some CDs in the mail.” Then appellant said “he had a
friend in El Paso, Texas[,] that told him that he was going to mail him a package to
his house,” but appellant never asked the friend what he was sending, and did not
reveal the friend’s name to Det. Jacque. Detective Demond Lockhart, another
member of the New Orleans DEA Task Force, heard appellant say “he had a friend
that was into marijuana and that could have been a friend that mailed him that
package,” but he did not reveal that friend’s name either, and that “he didn’t know
anything about anything,” intimating he could have been set up. When Ms. Quillen
reentered the living room, appellant’s demeanor changed; he became “more
embarrassed and ashamed in front of his grandmother.”
7
These conversations with Det. Nides were monitored and recorded for officer
safety reasons. Without defense objection, assistant trial counsel played for the
panel during trial the recorded conversations that occurred during delivery of the
package. The military judge admitted the recording into evidence as P.E. 28, and
the panel had it during its deliberations on the merits.
6
WILLIAMSON – ARMY 20030855
When he testified during the defense case on the merits, appellant denied
arranging with anyone to ship marijuana to him. When he received the box,
appellant was “excited.” After appellant signed for the box, he said he took the box
upstairs, put it on the bed, and started to open it. Before he could get the box open,
however, appellant said the police were already in the house and detained him. It
was only after being detained that Det. Jacque showed appellant the contents of the
box and laid the contraband on the living room coffee table. Appellant told the
officers he did not know who sent the box, where it came from, could not have
possibly known the contents, and suggested someone had set him up.
Detectives Jacque and Pena testified that when a person possesses between
three and four pounds of marijuana, he possesses with intent to distribute it; that
large an amount is not for personal use. After appellant’s arrest, the New Orleans
Police Department retained the marijuana in its custody. Through two stipulations
of expected testimony—agreed to personally by appellant and entered into evidence
without defense objection as P.E. 11 and P.E. 12—and testimony from two U.S.
Army Criminal Investigation Command (CID) special agents, the government
demonstrated a chain of custody accounting for the marijuana from the time it left
the New Orleans Police Department, passed through the Fort Polk and Fort Bliss
CID offices, and ultimately arrived at the U.S. Army Criminal Investigation
Laboratory (USACIL) 8 in Forest Park, Georgia, for forensic chemical analysis
testing. Without defense objection, the military judge entered into evidence as
P.E. 8 a chain of custody document listing specific dates and all law enforcement
personnel who handled the marijuana. Special Agent (SA) Hector Hernandez from
the Fort Bliss CID office testified regarding the accuracy of the information
contained in this document. Special Agent Hernandez also told the panel he had
been a CID special agent for five years; prior to becoming a special agent, he had
been a military police investigator for four years.
After a senior forensic chemist at the USACIL tested the marijuana, he
generated a report confirming the substance submitted for testing was, in fact,
marijuana and weighed 1,375.69 grams (or 3.03 pounds). At trial, the government
moved to admit the laboratory report over defense objection. Specifically, trial
defense counsel argued: (1) the laboratory report was not properly self-
8
Although the USACIL is a division of the CID (the Army’s law enforcement
branch), the USACIL does not function as a prosecution support tool; rather, by its
own mission statement, USACIL exists to render neutral support to the CID by
“examin[ing] crime-related evidence to assist investigators in solving crime.” U.S.
Army Criminal Investigation Command, at http://www.cid.army.mil/mission2.htm
(last visited 23 July 2007) (emphasis added).
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WILLIAMSON – ARMY 20030855
authenticating under Mil. R. Evid. 902(4a) (self-authenticating documents or records
of the United States accompanied by an attesting certificate); (2) testimony from an
expert witness involved in the testing process was necessary to lay a proper
foundation for the laboratory report; (3) a chain of custody for the marijuana and the
laboratory report was not properly established; and (4) the laboratory report
constituted inadmissible hearsay, contrary to Mil. R. Evid. 803(6) (hearsay
exception for records of a regularly conducted activity, i.e., “business records”). In
ruling on the defense objections, the military judge made the following findings:
(1) the laboratory report was properly self-authenticating under Mil. R. Evid.
902(4a); (2) expert-witness testimony was not required to lay a foundation for the
laboratory report; (3) a chain of custody was properly established; and (4) the
laboratory report was a properly-authenticated business record, and, as such, was
admissible under Mil. R. Evid. 803(6).
INEFFECTIVE ASSISTANCE OF COUNSEL
Law
Right to Effective Assistance of Counsel
The United States Constitution’s Sixth Amendment guarantees an accused the
right to “effective assistance of counsel.” United States v. Cronic, 466 U.S. 648,
654 (1984); United States v. Cain, 59 M.J. 285, 294 (C.A.A.F. 2004); United States
v. Russell, 48 M.J. 139, 140 (C.A.A.F. 1998); United States v. Dobrava, 64 M.J.
503, 505 (Army Ct. Crim. App. 2006); see also UCMJ art. 27 (“[D]efense counsel
shall be detailed for each general and special court-martial [and] . . . must be
certified as competent to perform [defense] duties . . . .”).
We review an appellant’s ineffective assistance of counsel claims de novo.
United States v. Key, 57 M.J. 246, 249 (C.A.A.F. 2002); United States v. Wean,
45 M.J. 461, 463 (C.A.A.F. 1997). To establish such a claim, “appellant must show
not only the deficiency in counsel’s performance, but how that deficiency prejudiced
his defense.” Dobrava, 64 M.J. at 505 (citing Strickland v. Washington, 466 U.S.
668, 687 (1984), and United States v. Edmond, 63 M.J. 343, 345, 350–51 (C.A.A.F.
2006)). Specifically, “to prevail, the [accused] must show both that counsel’s repre-
sentation fell below an objective standard of reasonableness, . . . and that there
exists a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Kimmelman v. Morrison,
477 U.S. 365, 375 (1986) (internal citation omitted); Edmond, 63 M.J. at 351
(stating same).
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WILLIAMSON – ARMY 20030855
Furthermore, our retrospective review of counsel’s representation is “‘highly
deferential,’” and reinforced by “‘a strong presumption [9] that counsel provided
adequate professional service.’” United States v. Paxton, 64 M.J. 484, 488
(C.A.A.F. 2007) (quoting Edmond, 63 M.J. at 351); United States v. Shaw, 64 M.J.
460, 463 (C.A.A.F. 2007) (recognizing the “long-standing principle that counsel is
presumed to be competent”); United States v. Garcia, 59 M.J. 447, 450 (C.A.A.F.
2004); United States v. Grigoruk, 56 M.J. 304, 306–07 (C.A.A.F. 2002); United
States v. Scott, 24 M.J. 186, 188 (C.M.A. 1987). Our superior court set forth the
following three-question test to determine whether the presumption of competence
has been overcome:
(1) Are the allegations made by appellant true; and, if they
are, is there a reasonable explanation for counsel’s actions
in the defense of the case? (2) If they are true, did the
level of advocacy “fall[] measurably below the perform-
ance . . . [ordinarily expected] of fallible lawyers”? (3) If
ineffective assistance of counsel is found to exist, “is . . .
there . . . a reasonable probability that, absent the errors,
the factfinder would have had a reasonable doubt
respecting guilt?”
United States v. Christian, 63 M.J. 205, 210 (C.A.A.F. 2006) (quoting United States
v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)) (alterations in original); United States v.
Haney, 64 M.J. 101, 106 (C.A.A.F. 2006) (stating same). Moreover, where two or
more defense counsel have represented an appellant, “we evaluate the performance
of the defense team as a unit,” United States v. McConnell, 55 M.J. 479, 481
(C.A.A.F. 2001), rather than focus on individual counsel’s efforts or shortcomings.
Nevertheless, “[c]ounsel cannot be ‘ineffective’ unless his mistakes have harmed the
defense (or, at least, unless it is reasonably likely that they have). Thus, a violation
of the Sixth Amendment right to effective representation is not ‘complete’ until the
defendant is prejudiced.” United States v. Gonzalez-Lopez, __ U.S. __, __,
126 S. Ct. 2557, 2563 (2006) (citing Strickland, 466 U.S. at 685).
9
“Presumptions are pragmatic creations, ‘rooted less in the absolute certitude that
the presumption is true than in the belief that it represents a reasonable practical
accommodation of the interests of the state and the defendant in the criminal justice
process.’” United States v. Moffeit, 63 M.J. 40, 42 (C.A.A.F 2006) (Baker, J., con-
curring in the result) (quoting Richardson v. Marsh, 481 U.S. 200, 211 (1987)).
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Ineffective Assistance of Counsel and Fourth Amendment Litigation
Appellants asserting ineffective assistance claims involving Fourth
Amendment motions carry the specific burden of showing that counsel’s deficiency
in performance regarding the motion, or failure to make the motion, prejudiced their
case. As our superior court has reinforced, “[w]here a claim of ineffective
assistance of counsel is based on ‘defense counsel’s failure to litigate a Fourth
Amendment’ objection to evidence, [to demonstrate actual prejudice] appellant
‘must . . . prove that his Fourth Amendment claim is meritorious and that there is a
reasonable probability that the verdict would have been different absent the
excludable evidence.’” United States v. Loving, 41 M.J. 213, 244 (C.A.A.F. 1994)
(quoting Kimmelman, 477 U.S. at 375) (emphasis added) (third alteration in
original); see McConnell, 55 M.J. at 482 (stating same regarding counsel’s failure to
move to suppress accused’s statement). “Thus, while [appellant’s] defaulted Fourth
Amendment claim is one element of proof of his Sixth Amendment claim, the two
claims have separate identities and reflect different [C]onstitutional values.”
Kimmelman, 477 U.S. at 375.
Search Warrant Requirements
A valid search warrant must be supported by “probable cause.” Mil R. Evid.
315(f)(2) (“Probable cause to search exists when there is a reasonable belief that the
person, property, or evidence sought is located in the place or on the person to be
searched[,] . . . [and] may be based upon hearsay evidence in whole or in part[,] . . .
[w]ritten . . . [or o]ral.”); United States v. Leedy, 65 M.J. 208, 212–14 (C.A.A.F.
2007) (discussing same); United States v. Long, 64 M.J. 57, 61 (C.A.A.F. 2006)
(“Official intrusions . . . in the military require search authorization supported by
probable cause . . . .”); United States v. Berry, 90 F.3d 148, 153 (6th Cir. 1996) (“A
valid search warrant may be issued only upon a finding of probable cause . . . .”);
see Mil. R. Evid. 316(b) (“Probable cause to seize property or evidence exists when
there is a reasonable belief that the property or evidence is . . . contraband . . . .”).
The Supreme Court defines probable cause as “a fair probability that contraband or
evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S.
213, 238 (1983). In determining whether probable cause exists, the issuing
magistrate must make a “common-sense decision whether, given all the
circumstances set forth in the affidavit before him, including the ‘veracity’ and
‘basis of knowledge’ of persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be found in a particular
place.” Id.A dog sniff can be determinative of probable cause. “‘A positive indication
by a properly-trained dog is sufficient to establish probable cause for the presence of
a controlled substance.’” United States v. Robinson, 390 F.3d 853, 874 (6th Cir.
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WILLIAMSON – ARMY 20030855
2004) (quoting United States v. Diaz, 25 F.3d 392, 393–94 (6th Cir. 1994)). The
search warrant will be facially sufficient and establish the dog’s reliability “if the
affidavit states that the dog is trained and certified to detect narcotics.” United
States v. Kennedy, 131 F.3d 1371, 1376–77 (10th Cir. 1997); Berry, 90 F.3d at 153(finding reference in affidavit that dog was “trained narcotics dog” was “sufficient
to establish the training and reliability”). The affidavit does not have to state with
any degree of particularity the “dog’s track record or education.” United States v.
Sundby, 186 F.3d 873, 876 (8th Cir. 1999).
Appellate Review of Search Warrants
If the defense challenges a search warrant, “the duty of a reviewing court is
simply to ensure that the magistrate had a ‘substantial basis for . . . [concluding]’
that probable cause existed.” Gates, 462 U.S. at 238–39 (quoting Jones v. United
States, 362 U.S. 257, 271 (1960)) (alterations in original); Leedy, 65 M.J. at 213.
We review the military judge’s factually-derived “substantial basis” using a clearly-
erroneous standard, and whether the “substantial basis” legally supports a probable
cause determination de novo. Leedy, 65 M.J. at 212–13; United States v. Bethea,
61 M.J. 184, 187 (C.A.A.F. 2005) (stating same). Probable cause determinations are
entitled to “great deference by reviewing courts.” Gates, 462 U.S. at 236.
Challenging the Affidavit Supporting a Warrant—Franks Hearing
A meritorious motion to suppress evidence—invalidating a search and seizure
warrant because a government agent withheld or misrepresented material facts in the
information provided to the authorizing official—requires the defense to overcome
several hurdles. See Franks v. Delaware, 438 U.S. 154, 155–56 (1978) (“We hold
that, where the defendant makes a substantial preliminary showing that a false
statement knowing[ly] and intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, and if the alleged false statement is
necessary to the finding of probable cause, the Fourth Amendment requires that a
hearing be held at the defendant’s request.”); see United States v. Wallace, 14 M.J.
1019, 1023–24 (A.C.M.R. 1982), pet. denied, 16 M.J. 135 (C.M.A. 1983); United
States v. Lovell, 8 M.J. 613, 616–17 (A.F.C.M.R. 1979) (“[T]he Supreme Court . . .
permits an accused a hearing to go below the surface of a facially-sufficient
affidavit . . . .”), pet. denied, 9 M.J. 17 (C.M.A. 1980).
Military Rule of Evidence 311(g)(2) codifies the Supreme Court’s Franks
decision by clarifying that when “the defense makes a substantial preliminary
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WILLIAMSON – ARMY 20030855
showing that a government agent included a false statement [10] knowingly and
intentionally or with reckless disregard for the truth in the information presented to
[the magistrate issuing the warrant], and if the allegedly false statement is necessary
to the finding of probable cause, the defense, upon request, shall be entitled to a
[Franks] hearing.” See also United States v. Cravens, 56 M.J. 370, 375 (C.A.A.F.
2002) (recognizing same). At the hearing, the defense must establish, by a
preponderance of the evidence, “the allegation of knowing and intentional falsity or
reckless disregard for the truth.” Mil. R. Evid. 311(g)(2). Once that burden is met,
the prosecution must prove, by a preponderance of the evidence, that without the
false information, the “remaining information” provided to obtain the warrant from
the magistrate sufficiently establishes probable cause. Id.Discussion
Appellant contends his trial defense team was ineffective because “they knew
that Det. Pena had misled the magistrate when obtaining the warrant” regarding the
drug-detector dog’s certification, but “fail[ed] to attempt to suppress the marijuana”
as evidence. Essentially, appellant asserts the first warrant obtained by Det. Pena to
search the contents of the box for marijuana, and the second, anticipatory warrant
obtained by Det. Jacque to search appellant’s home for marijuana—in conjunction
with the controlled delivery—were “invalid” because they were based on Det. Pena’s
“fraudulent affidavit.”
We find no evidence of record to support the required “substantial
preliminary showing” that Det. Pena “knowingly and intentionally” misled the
magistrate in obtaining the first search warrant, Franks, 438 U.S. at 155 (emphasis
added), or that his misstatements regarding the drug-detector dog’s certification
amounted to a “reckless disregard for the truth.” Id. Although Det. Pena admitted
he thought JB was certified—and did not discover anything to the contrary until
after the Article 32 investigation—he stated the information he gave the magistrate
“was in good faith [and i]t’s not like I knew beforehand and I [was] trying to
mislead the judge.” He offered no information clarifying why he misstated JB’s
certification, or how he later found out he had been incorrect. Trial defense counsel
did not pursue the matter any further on the merits other than through his limited
10
Our superior court has applied this standard—used for misrepresentations—to
omissions as well. United States v. Figueroa, 35 M.J. 54, 56–57 (C.M.A. 1992)
(holding that “[o]missions do not ‘undermine probable cause’ unless they are
intentional or made ‘with reckless disregard for the’ accuracy of the information.
Merely ‘negligent omissions’ do not ‘undermine’ probable cause. United States v.
Martin, 615 F.2d [318, 329 (5th Cir. 1980)].”).
12
WILLIAMSON – ARMY 20030855
cross-examination. We find that including the misstatement in the affidavit
constitutes, at best, an innocent mistake, or, at worst, simple negligence.
Detective Pena further explained at trial that “JB [had] been around for a
while. . . . [O]ur dogs are certified on a yearly basis and it’s a team effort. It’s the
canine and the officer that go through various tests . . . .” Moreover, Det. Pena’s
affidavit did not rely solely on JB’s certification, but additionally informed the
judge that Officer Fairbanks had been an El Paso police officer for fifteen years, had
worked with JB for six months, and over this period, JB had successfully alerted to
narcotics or narcotic-related currency over forty times.
The defense has offered no evidence tending to contradict Det. Pena’s “good
faith” assertions or the facts stated in the affidavit regarding JB’s reliability, i.e.,
that JB had over forty successful alerts during the past six months. Based on the
information contained in the affidavit and elicited from Det. Pena at trial, we find
appellant has failed to persuasively marshal those facts and make the substantial
threshold showing required to obtain a Franks hearing pursuant to Mil. R. Evid.
311(g)(2). 11 As the Supreme Court clarified in Franks:
There must be allegations of deliberate falsehood or of
reckless disregard for the truth, and those allegations must
be accompanied by an offer of proof. They should point
out specifically the portion of the warrant affidavit that is
claimed to be false; and they should be accompanied by a
statement of supporting reasons. Affidavits or sworn or
otherwise reliable statements of witnesses should be
furnished, or their absence satisfactorily explained.
Allegations of negligence or innocent mistake are
insufficient.
438 U.S. at 171.
Moreover, we find the second part of the Franks analysis—whether, after the
false information is set aside, the remaining material in the affidavit adequately
establishes probable cause—cuts against appellant. The additional information
provided in the affidavit adequately establishes probable cause. Regardless of
whether JB was actually certified, the experience of JB’s handler, coupled with JB’s
11
Appellant has the burden of proof on this point, and we will not speculate about
the many possible explanations why JB was not certified. Nevertheless, appellant
has not developed this information.
13
WILLIAMSON – ARMY 20030855
forty-plus successful alerts, provided the probable cause necessary to issue the
search warrant.
We also find the second, anticipatory warrant to search appellant’s New
Orleans home depended upon the validity of the first (El Paso) warrant because the
second warrant was based upon the assertion that the El Paso DEA Task Force,
utilizing a drug-detection dog, “intercepted a package containing 4½ pounds of
marijuana through Federal Express Parcel Service.” Satisfied that Det. Pena’s El
Paso search warrant was valid, this court is also satisfied the second, anticipatory
warrant to search appellant’s home was also valid.
Based on our findings, appellant has failed to “‘prove that his Fourth
Amendment claim is meritorious and that there is a reasonable probability that the
verdict would have been different absent the excludable evidence.’” Loving, 41 M.J.
at 244 (quoting Kimmelman, 477 U.S. at 375). Appellant has, therefore, also failed
to “show not only the deficiency in counsel’s performance [by not moving to
suppress the marijuana], but how that deficiency prejudiced his defense.” Dobrava,
64 M.J. at 505. Hence, we find appellant received effective assistance of counsel
from his trial defense team.
LABORATORY REPORT
Law
Standard of Review
This court ordinarily reviews a military judge’s ruling regarding admissibility
of evidence for abuse of discretion. United States v. Datz, 61 M.J. 37, 42 (C.A.A.F.
2005); United States v. Gilbride, 56 M.J. 428, 430 (C.A.A.F. 2002) (citing United
States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995)); see, e.g., United States v.
Johnston, 41 M.J. 13, 16 (C.M.A. 1994) (admissibility of scientific evidence); see
generally S. Childress & M. Davis, 2 Federal Standards of Review § 11.02 (2d ed.
1992) (evidentiary rulings reviewed for abuse of discretion). An abuse of discretion
review entails examining a military judge’s findings of fact using a clearly-
erroneous standard and conclusions of law de novo. United States v. Rodriguez,
60 M.J. 239, 246 (C.A.A.F. 2004).
14
WILLIAMSON – ARMY 20030855
When a military judge erroneously admits hearsay 12 evidence and violates an
accused’s Sixth Amendment right to confrontation—due to a deprivation of the right
to cross-examination—the resulting error is an error of Constitutional dimension.
See United States v. Hall, 58 M.J. 90, 94 (C.A.A.F. 2003) (finding Constitutional
error where appellant was “denied her [C]onstitutional right of confrontation
through cross-examination” of hearsay declarant). Moreover, to affirm the trial
court’s decision despite the erroneous admission, we must find such Constitutional
error “harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18,
24 (1967). “We review ‘de novo’ whether the ‘[C]onstitutional error was harmless
beyond a reasonable doubt.’” United States v. Gardinier, 63 M.J. 531, 538 (Army
Ct. Crim. App. 2006) (quoting United States v. Kreutzer, 61 M.J. 293, 299 (C.A.A.F.
2005)), set aside and remanded, 65 M.J. 60 (C.A.A.F. 2007); see Arizona v.
Fulminante, 499 U.S. 279, 295 (1991); United States v. Hall, 56 M.J. 432, 436
(C.A.A.F. 2002); United States v. Grijalva, 55 M.J. 223, 228 (C.A.A.F. 2001);
United States v. George, 52 M.J. 259, 261–62 (C.A.A.F. 2000). “The inquiry for
determining whether [C]onstitutional error is harmless beyond a reasonable doubt is
‘whether, beyond a reasonable doubt, the error did not contribute to the defendant’s
conviction or sentence.’” Kreutzer, 61 M.J. at 298 (quoting United States v. Kaiser,
58 M.J. 146, 149 (C.A.A.F. 2003), quoting United States v. Davis, 26 M.J. 445, 449
n.4 (C.M.A. 1988)). Specifically, “‘[o]ur focus is not on whether the members were
right in their findings but, rather, on whether the error had or reasonably may have
had an effect upon the members’ findings.’” Hall, 58 M.J. at 94 (quoting United
States v. Bins, 43 M.J. 79, 86 (C.A.A.F. 1995)).
12
Hearsay is an out-of-court statement being offered into evidence to prove the truth
of the matter asserted in the statement. Mil. R. Evid. 801(c); see Mil. R. Evid. 802–
805 (enumerating exceptions to the general prohibition against admitting hearsay as
evidence); Mil. R. Evid. 807 (residual hearsay exception). “Although the right of
confrontation and the hearsay rule stem from the same roots, they are not
coextensive, and evidence admissible under a hearsay exception may still be
inadmissible under the Confrontation Clause.” United States v. Palacios, 32 M.J.
1047, 1051 n.5 (A.C.M.R. 1991), rev’d, 37 M.J. 366, 367–68 (C.M.A. 1993)
(upholding lower court’s finding that admission of child-victim’s videotaped
statement was erroneous, but finding admission not harmless beyond a reasonable
doubt); see California v. Green, 399 U.S. 149, 155–56 (1970) (recognizing the
overlap between hearsay rules and Confrontation Clause is not complete, and stating
“we have more than once found a violation of confrontation values even though the
statements in issue were admitted under an arguably recognized hearsay exception”).
15
WILLIAMSON – ARMY 20030855
Sixth Amendment Right to Confrontation
The Sixth Amendment to the U.S. Constitution states: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI. The “Confrontation Clause”
requires “the declarant to be physically present in the courtroom; physical presence
allows the accused to confront the declarant in person, and cross-examine him in
front of the trier of fact.” Gardinier, 63 M.J. at 539 (citing Ohio v. Roberts,
448 U.S. 56, 65 (1980)); Palacios, 32 M.J. at 1049–50. Nevertheless, the Roberts
Court held: “[H]earsay is admissible when the witness is unavailable and the
hearsay either ‘falls within a firmly rooted hearsay exception,’ see, e.g., White v.
Illinois, [502 U.S. 346, 355 (1992)], or has ‘particularized guarantees of
trustworthiness,’ see, e.g., Idaho v. Wright, [497 U.S. 805, 820 (1990)].” United
States v. Bridges, 55 M.J. 60, 62–63 (C.A.A.F. 2001) (citing Roberts, 448 U.S. at
66). 13
In 2004, the Supreme Court issued its landmark decision in Crawford,
541 U.S. at 36, extending an accused’s right to confront his accusers, by requiring
trial judges to determine whether an unavailable declarant’s out-of-court statements
are “testimonial” or “nontestimonial” in nature. Id. at 67–68. The Court held that
the Sixth Amendment’s Confrontation Clause bars “admission of testimonial
statements of a witness who did not appear at trial unless he was unavailable to
testify, and the defendant had had a prior opportunity for cross examination.” Id. at
53–54.
The U.S. Court of Appeals for the Armed Forces has further clarified that
applying the Crawford analysis “depends on the meaning of ‘testimonial,’ [as well
as] on the circumstances and context in which out-of-court statements are generated,
and whether the out-of-court statements were made under circumstances that would
lead an objective witness reasonably to believe the statement would be available for
use at a later trial by the government.” United States v. Magyari, 63 M.J. 123, 126
(C.A.A.F. 2006) (citing Crawford, 541 U.S. at 52). 14 Moreover, in deciding whether
13
In appellant’s case, the military judge admitted the laboratory report over defense
objection, finding the self-authenticating document fell within the business records
exception to the general rule barring admission of hearsay evidence. See Mil. R.
Evid. 803(6) (“Records of regularly conducted activity”).
14
In Crawford, the Supreme Court identified three types of “testimonial” statements:
(continued . . .)
16
WILLIAMSON – ARMY 20030855
a statement “made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial,”
Crawford, 541 U.S. at 52, is testimonial or nontestimonial, we must consider the
following factors:
First, was the statement at issue elicited by or made in
response to law enforcement or prosecutorial inquiry?
Second, did the “statement” involve more than a routine
and objective cataloging of unambiguous factual matters?
Finally, was the primary purpose for making, or eliciting,
the statement[] the production of evidence with an eye
toward trial?
United States v. Rankin, 64 M.J. 348, 352 (C.A.A.F. 2007). The Rankin Court based
its factors on the analytical framework developed in Davis v. Washington,
__ U.S. __, 126 S. Ct. 2266 (2007). Writing for the Court in Davis, Justice Scalia
explained what might be called a “primary purpose” test for distinguishing between
testimonial and nontestimonial statements:
Statements are nontestimonial when made in the course of
police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is
to enable police assistance to meet an ongoing emergency.
They are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that
(. . . continued)
[1] ex parte in-court testimony or its functional
equivalent—that is, material such as affidavits, custodial
examinations, prior testimony that the defendant was
unable to cross-examine, or similar pretrial statements that
declarants would reasonably expect to be used prosecu-
torially; [2] extrajudicial statements . . . contained in
formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions; [and
3] statements that were made under circumstances which
would lead an objective witness reasonably to believe that
the statement would be available for use at a later trial.
541 U.S. at 51–52 (third alteration in original) (internal citations and quotation
marks omitted); Magyari, 63 M.J. at 126.
17
WILLIAMSON – ARMY 20030855
the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal
prosecution.
Id. at 2273–74 (emphasis added).
The last of the Rankin Court’s factors requires military courts to conduct a
“contextual analysis” to determine “whether the primary purpose of the document
[or statement] was prosecutorial in nature.” Foerster, 65 M.J. at 124. “[O]ur goal is
an objective look at the totality of the circumstances surrounding the statement to
determine if the statement was made or elicited to preserve past facts for a criminal
trial.” Gardinier, 65 M.J. 60, 65 (C.A.A.F. 2007).
Discussion
Analysis of Crawford Principles
Appellant contends the military judge erred by admitting the laboratory report
(identifying the substance in the package appellant possessed as marijuana) as a
business record in accordance with Mil. R. Evid. 803(6). This ruling, appellant
argues, contradicts the Crawford Confrontation Clause requirements because the
report is testimonial in nature. The question we must decide is whether the forensic
laboratory report produced by the USACIL constitutes testimonial hearsay, or
whether, in the alternative, the report represents nontestimonial hearsay subject to a
reliability analysis under Roberts, 448 U.S. at 66. See Magyari, 63 M.J. at 126.
Based on the Crawford landscape set forth by the U.S. Court of Appeals for the
Armed Forces, 15 we must agree with appellant. Nevertheless, because “the Crawford
15
See Magyari, 63 M.J. at 123; Rankin, 64 M.J. at 348; Gardinier, 65 M.J. at 60;
Foerster, 65 M.J. at 120; see also United States v. Harcrow, __ M.J. __, 2007 CAAF
LEXIS 767 (C.A.A.F. 2007) (granting review on the issue “whether the lower court
erred by finding that two Virginia state forensic laboratory reports were not
testimonial hearsay under Crawford”). We also note that while our decision
comports with the views of some state courts, see, e.g., State v. Moss, 2007 Ariz.
App. LEXIS 86, *19 (Ariz. Ct. App. May 29, 2007) (concluding expert witness
testimony, based on laboratory report produced for the “primary reason” of using the
results “prosecutorially,” was testimonial); Johnson v. State, 929 So.2d 4, 7 (Fla.
Dist. Ct. App. 2005) (holding laboratory report establishing contraband nature of
substance was testimonial); Las Vegas v. Walsh, 124 P.3d 203, 207–08 (Nev. 2005)
(holding affidavit regarding blood draw for chemical analysis in impaired driving
case was testimonial); People v. Rogers, 8 A.D.3d 888, 891 (N.Y. App. Div. 2004)
(continued . . .)
18
WILLIAMSON – ARMY 20030855
analysis is contextual, rather than subject to mathematical application of bright line
thresholds[,]” Rankin, 64 M.J. at 352, our conclusion is limited to the facts of this
case. Civilian law enforcement officers arrested appellant and seized the marijuana
on 27 November 2002. The government preferred the charge and its specification on
4 April 2003, and the USACIL issued its laboratory report on 9 April 2003.
(. . . continued)
(holding blood test report was testimonial); State v. Crager, 844 N.E.2d 390, 394–
400 (Ohio Ct. App. 2005) (holding DNA analysis report was testimonial because it
was prepared “in anticipation of litigation”), rev. granted, 846 N.E.2d 532 (Ohio
2006), other state courts and our sister service court have divergent views, see, e.g.,
Bohsancurt v. Eisenberg, 129 P.3d 471, 478–80 (Ariz. Ct. App. 2006) (holding
calibration records for breathalyzer machine were nontestimonial business records);
Commonwealth v. Verde, 827 N.E.2d 701, 705–06 (Mass. 2005) (holding laboratory
report (“certificate of chemical analysis”) of cocaine analysis fell within business
records exception to the Confrontation Clause because it is “neither discretionary
nor based on opinion[,] . . . state[s] the results of a well-recognized scientific test[,]
. . . [and] admissible only as prima facie evidence of the composition, quality, and
weight of the substance, . . . which a defendant may rebut”) (internal citations
omitted); Crager, 844 N.E.2d at 397–98 (stating laboratory reports “prepared and
kept in the course of a regularly conducted business” are nontestimonial where they
are not “wholly” and “solely” prepared for “litigation” or “prosecution”); State v.
Dedman, 102 P.3d 628, 636 (N.M. 2004) (holding blood-alcohol report was
nontestimonial, despite being prepared for trial, because “the process is routine,
non-adversarial, and made to ensure an accurate measurement”); United States v.
Harris, 65 M.J. 594, 2007 CCA LEXIS 12, *15–*18 (N.M. Ct. Crim. App.) (finding
laboratory urinalysis report nontestimonial, even though single sample submitted
“under a probable cause premises,” because “lab personnel . . . would have no way
of knowing either the testing premise or the identity of the individual[,] . . . whether
prosecution was anticipated[,] or whether the sample was part of a normal random
urinalysis screening”), pet. filed, 65 M.J. 13 (C.A.A.F. 2007); United States v.
Harcrow, 2006 CCA LEXIS 285, *15–*18 (N.M. Ct. Crim. App. 30 Oct. 2006)
(unpub.) (finding forensic laboratory chemical analysis reports, positively indicating
presence of “heroin and cocaine,” were “non-testimonial and were admissible under
the business records hearsay exception”). Additionally, in describing the historical
development of Sixth Amendment Confrontation Clause case law, Justice Scalia also
noted: “Several [hearsay exceptions] had become well established by 1791[, but
m]ost of the hearsay exceptions covered statements that by their nature were not
testimonial—for example, business records or statements in furtherance of a
conspiracy.” Crawford, 541 U.S. at 56 (internal citations omitted) (emphasis
added).
19
WILLIAMSON – ARMY 20030855
Therefore, we base our conclusion primarily on the fact that the “statement” is a
post-apprehension 16 laboratory report, requested after local police arrested appellant.
The military judge found the laboratory report was a properly-authenticated
business record, and, as such, was admissible under Mil. R. Evid. 803(6). Pursuant
to trial counsel’s request, and aided by Fort Bliss CID special agents, the laboratory
conducted a forensic examination of the marijuana to generate evidence for use at
appellant’s court-martial, i.e., “with an eye toward trial.” Rankin, 64 M.J. at 352;
see Foerster, 65 M.J. at 123–25 (finding victim’s forgery affidavit was nontesti-
monial because it was made to ensure bank would not be defrauded and victim would
receive reimbursement for stolen funds, not with view towards a criminal trial). The
laboratory performed the examination “with the forensic needs of law enforcement
and prosecution in mind.” Gardinier, 65 M.J. at 66. The laboratory technician in
appellant’s case was “engaged in a law enforcement function, a search for evidence
in anticipation of prosecution or trial[,]” and the report was “prepared at the behest
of law enforcement” while appellant was “already under investigation, and where the
testing [was] initiated by the prosecution to discover incriminating evidence.”
Magyari, 63 M.J. at 126–27 (internal citation omitted).
Moreover, although we find generating the USACIL forensic report akin to an
“objective cataloging of unambiguous factual matters[,]” Rankin, 64 M.J. at 352,
i.e., the identity and amount of a controlled substance, 17 we also find the laboratory
technician’s “statements” responded to a law enforcement inquiry, and the “primary
purpose for making, or eliciting, the [report]” was to produce evidence “with an eye
toward trial,” i.e., the report was produced months after appellant’s arrest, and after
the government preferred the charge alleging narcotics possession with intent to
distribute. Id. Accordingly, we hold the laboratory report was testimonial and its
admission into evidence at the court-martial erroneous. This does not, however, end
our inquiry. We must now determine whether the military judge’s erroneous
admission of the laboratory report was harmless beyond a reasonable doubt.
16
“Apprehension is the taking of a person into custody.” R.C.M. 302(a)(1).
“Apprehension is the equivalent of ‘arrest’ in civilian terminology.” R.C.M.
302(a)(1) discussion. Apprehension is also considered a type of “pretrial restraint.”
R.C.M. 304(a)(3).
17
See Verde, 827 N.E.2d at 705 (finding chemical analysis certificate “admissible
only as prima facie evidence of the composition, quality, and weight of the
substance”).
20
WILLIAMSON – ARMY 20030855
Harmless Beyond a Reasonable Doubt
In reviewing de novo the military judge’s decision to admit the laboratory
report, we must determine “‘whether the error had[,] or reasonably may have had[,]
an effect upon the members’ findings.’” Hall, 58 M.J. at 94 (quoting Bins, 43 M.J.
at 86). We must find this Constitutional error was “harmless beyond a reasonable
doubt” to affirm appellant’s conviction. Chapman, 386 U.S. at 24. After setting
aside the laboratory report, which identified the marijuana and its weight, and
considering the remaining evidence properly admitted at trial, we are convinced
beyond a reasonable doubt that the military judge’s error in admitting the laboratory
report was harmless, i.e., it did not reasonably have an effect upon the members’
findings.
At trial, the government presented substantial reliable evidence other than the
laboratory report pertaining to each element of the offense of possession of a
controlled substance with intent to distribute. See UCMJ art. 112a. The military
judge recognized Det. Pena, a DEA Task Force member, “as an expert in the field of
narcotics interdiction[,] . . . includ[ing] distribution and transportation.” Detective
Pena had been working for the El Paso Police Department for fourteen and a half
years, including six years “specifically [with] drugs [and] narcotics.” He also
received extensive training from the DEA, the Texas Narcotics Officers Association,
and the El Paso Police Department in “narcotics, undercover [operations, drug]
interdiction, and various [other] topics.” Detective Pena “[c]onducted several
undercover buys[,] . . . bought, sold, and purchased different types of narcotics,”
conducted “hundreds” of interviews, made “hundreds” of arrests, participated in
“hundreds” of investigations, and secured “hundreds” of search warrants. As a
narcotics detective, Det. Pena “taught or trained . . . new officers that would come
into the . . . narcotics interdiction . . . unit.” He testified “[q]uite a few [times] . . .
in civilian court . . . as an expert [qualified] . . . in narcotics[-]related fields.”
Based on his training and experience, Det. Pena testified that “transporting
marijuana through Fed Ex” is a common method of shipping “large quantities of
marijuana” because “of the low risk to the sender.” The sender can present a
“prepackaged . . . box[ for shipping,] . . . pay [his] money, and [he is] out of there.”
He also said: “[I]f [the package] gets through the line, . . . [and] gets delivered[,]
it’s a done deal. A very low risk of getting caught . . . . If that package is
intercepted, . . . you have a bogus address on it, . . . [and] no leads.”
Officer Fairbanks—another DEA Task Force member, fifteen-year veteran of
the El Paso Police Department, and dog handler—along with the third member of the
team, Officer Vargas, discovered the suspiciously-addressed box at the Federal
Express terminal with the aid of his “K-9 partner,” drug-detector dog JB (arguably
the fourth member of the Task Force team). JB had been working with Officer
21
WILLIAMSON – ARMY 20030855
Fairbanks for six months and, during that time, “alerted successfully on over 40
occasions where narcotics or narcotic[-]related currency ha[d] been seized.”
Detective Pena told the panel: “JB [has] been around for a while . . . [and is]
certified on a yearly basis[;] . . . it’s a team effort.” “[T]he canine and the officer,”
he stated, “go through various tests” set forth by two different certification
associations, NAPWDA and NNDDA, to ensure the dog can “detect the odor of
marijuana, cocaine, heroin and methamphetamine.”
After JB alerted on the suspicious box, Officers Fairbanks and Vargas took
the box into police custody, and the DEA Task Force team obtained a search
warrant. They then opened the box and examined its contents. Detective Pena and
trial counsel discussed the box’s contents in the following colloquy:
Q. What did you find inside when you opened the box?
A. There was a roll of toilet paper. There was two--there
was bundles of marijuana wrapped in black tape.
Q. I’m showing you what has also been marked [P.E.] 14
for identification, the toilet paper wrapper with all the
rolls of toilet paper and the duct tape . . . .
A. And then it was secured onto the toilet paper with the
duct tape.
Q. What was secured onto the toilet paper?
A. The marijuana.
Q. How much marijuana?
A. 4.95 pounds.
....
Q. I’m showing you what’s previously been marked
[P.E.] 17 for identification. What is it?
A. [Examining [P.E.] 17 for ID.] It’s marijuana.
Q. How do you recognize it?
22
WILLIAMSON – ARMY 20030855
A. Well, I recognize the black tape that it was wrapped
in.
....
Q. Is this the marijuana that you previously handled when
you opened this box?
A. Yes, ma’am.
Q. And when and where did you receive this [marijuana]?
A. On the 25th of November [2002].
Q. And where were you?
A. El Paso, Texas, at the Fed Ex location.
Q. And how did you safeguard this [marijuana]?
A. It was in the custody of our officers at the Task Force.
Q. Which Officers?
A. Fairbanks and Vargas.
....
Q. These are the people you transferred the marijuana to?
A. Yes, ma’am.
Q. As best you can tell, is this the marijuana that you
took out of this box [holding up [P.E.] 14 for ID]?
A. Yes, ma’am.
Q. As best you can tell, is this the marijuana that you
took out of this box [holding up [P.E.] 14 for ID] that was
attached to these rolls of toilet paper which were in this
package?
A. Yes, ma’am.
23
WILLIAMSON – ARMY 20030855
The military judge admitted P.E. 14 (a photo of the box) and P.E. 17 (a clear, plastic
bag containing the seized marijuana) into evidence over defense objection. The
panel received these exhibits for examination during its deliberations on findings.
The panel also received the DEA Task Force police report (D.E. R), prepared
by Officer Fairbanks on 25 November 2002 (before the 9 April 2003 laboratory
report was prepared), which states, in pertinent part:
[Officer Fairbanks], a certified narcotics canine handler,
was utilizing his canine “JB” to sniff through outbound
freight [at the Federal Express terminal]. “JB” had alerted
positive on [a box] for the scent of narcotics. . . . After
obtaining a search warrant, . . . [the] Officers opened the
box[] and located three (3) bundles of marijuana with the
gross approximate weight of 4.95 pounds. The bundles of
marijuana were wrapped in black tape. The bundles were
attached with duct tape to “Soft n Touch” toilet paper.
Detective Pena further told the panel marijuana is shipped with toilet paper
“to mask the odor” of the drug and “to throw off the dog.” Although he did not test
the substance to confirm it was marijuana, Det. Pena and the other Task Force
members knew they discovered a package containing marijuana at the Federal
Express terminal. Detective Pena elaborated upon this knowledge for the panel in
further questioning by trial counsel. The following colloquy ensued:
Q. Backing up a little, did you test the marijuana once
you opened the package?
A. No, ma’am.
Q. Why not?
A. It’s not a police department policy to test marijuana.
Q. But you knew it was marijuana?
A. Right . . . based on our knowledge and experience with
marijuana, we based it on that.
Detective Jacque, a New Orleans narcotics detective, also told the panel he
weighed the marijuana, which he described as “three separate[,] . . . hard and
compressed . . . pieces of material . . . resemble[ing] . . . brick[s] or . . . bundles.”
The three bricks, he said, weighed “more than [three] pounds.” Furthermore, Det.
24
WILLIAMSON – ARMY 20030855
Jacque and Det. Pena testified that, in their professional opinions, a person
possessing three to four pounds of marijuana intends to distribute it, not to
personally use it.
After examining P.E. 17, SA Hernandez also told the panel it contained the
originally-tagged drug evidence he forwarded to the USACIL for testing. When
asked by assistant trial counsel, “[W]hat[,] to your trained eye[,] does that appear to
be inside that bag?” agent Hernandez answered, “It appears to be bundles of
marijuana . . . tape, plastic bags, and a tag from [the] New Orleans P[olice]
D[epartment].” He also said he “sent marijuana off to be tested at the lab . . .
[c]ountless times,” and that a “brick” of marijuana “is where they take the
marijuana, they compact it into brick type moldings[,] and they look like a brick.
It’s all compressed.”
Appellant’s own conduct and words further indicate criminal intent. When
the police executed the search warrant at appellant’s home, appellant appeared
“shocked and nervous,” and was initially quiet. Appellant gave Det. Jacque and
Det. Lockhart several conflicting explanations why someone would send a box of
marijuana to his house: he was expecting CDs in the mail; a friend was going to
mail him a package (but he never asked about the contents); another friend that was
“into marijuana” could have just sent the package; “he didn’t know anything about
anything;” and this all could have been a set up.
Additionally, the defense theory of the case was that appellant did not
knowingly possess marijuana because he was not involved in sending it to his
grandmother’s house, and did not know the box contained marijuana before he was
arrested. The evidence admitted at trial, however, suggests otherwise. Appellant
considered himself a rap music artist of sorts, 18 and his defense relied upon the
18
Notably, assistant trial counsel cross-examined appellant regarding some of his
song lyrics, which included: “Moved up from packaging boy to the transporter;”
“Got big figures and big bundles;” “Some call me dope man and I’m a dope man;”
“Don’t be surprised when you get six when you ask for five;” “I’m in my house at
night trying to cook it right and trying to cut it right and trying to get it right;”
“Don’t think you can arrest me or test me.” When asked if he was “talking about
drug dealing,” appellant responded, “It’s metaphors. . . . This is metaphors that
relate to music.” Assistant trial counsel also reminded appellant that when the
government moved to admit into evidence and play one of appellant’s CDs for the
panel, the military judge sustained a defense objection to the request. Assistant trial
counsel then asked appellant why the defense objected to playing these songs.
Despite being tried by court-martial on a single specification of possession of
(continued . . .)
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WILLIAMSON – ARMY 20030855
possibility that a competing artist sent the drugs to him, without his knowledge, to
set him up for a drug conviction and eliminate him as a competing artist. The box
had a FedEx USA Airbill ® attached to it with the name “Will” and appellant’s
grandmother’s address. The package also arrived at that address precisely during the
short period appellant was on leave in New Orleans for the Thanksgiving holiday,
17–30 November 2002, as indicated by appellant’s leave form (admitted into
evidence as D.E. G).
Based on the foregoing evidence, even in the absence of the cumulative
laboratory report, the panel had substantial reliable evidence to support appellant’s
conviction. The members were free to make witness-credibility determinations, give
relative weight to witness testimony and physical evidence, believe or disbelieve
witness testimony, and draw reasonable inferences from the evidence presented. 19 In
this light, we are confident the military judge’s error in admitting the laboratory
report did not affect the members’ findings of guilty. Therefore, the error was
harmless beyond a reasonable doubt.
CONCLUSION
Appellant has not shown a motion to suppress the marijuana based on
defective search warrants would have been meritorious had his defense team made
one at trial. Appellant has not met his burden of demonstrating a deficiency in
counsel’s performance with resulting prejudice. Furthermore, under the
circumstances of this case, the laboratory report confirming the presence of
marijuana was testimonial under the principles of Crawford and, therefore, was
improperly admitted as a business record under Mil. R. Evid. 803(6). The military
judge’s erroneous admission of the laboratory report, however, was harmless beyond
a reasonable doubt.
(. . . continued)
marijuana with intent to distribute, appellant said, “[I]t doesn’t relate to this. This is
not what I’m being on trial for.” Assistant trial counsel then reminded appellant:
“You’re being on trial for the distribution of narcotics . . . [a]nd your songs deal
with the distribution of narcotics . . . .”
19
See, e.g., United States v. Moran, 65 M.J. 178, 187 (C.A.A.F. 2007) (“[I]t is
axiomatic that credibility determinations are within the province of the members.”);
United States v. Ford, 23 M.J. 331, 335 (C.M.A. 1985) (drawing an inference “is a
question to be decided by the factfinder using the standard of reasonable doubt”).
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WILLIAMSON – ARMY 20030855
The findings of guilty and the sentence are affirmed.
Judge ZOLPER and Judge WALBURN concur.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court
27