UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Staff Sergeant JARED W. STOUT
United States Air Force
ACM S32199
1 July 2015
Sentence adjudged 28 September 2013 by SPCM convened at Buckley
Air Force Base, Colorado. Military Judge: Bradley A. Cleveland.
Approved Sentence: Bad-conduct discharge, hard labor without
confinement for 30 days, restriction to base for 30 days, and reduction
to E-4.
Appellate Counsel for the Appellant: Major Jeffrey A. Davis.
Appellate Counsel for the United States: Major Daniel J. Breen;
Major Roberto Ramírez; and Gerald R. Bruce, Esquire.
Before
HECKER, TELLER, and BENNETT
Appellate Military Judges
OPINION OF THE COURT
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA Rule of Practice and Procedure 18.4.
BENNETT, Judge:
A special court-martial composed of officer members convicted the appellant,
contrary to his plea, of using cocaine on divers occasions, in violation of Article 112a,
UCMJ, 10 U.S.C. § 912a. He was sentenced to a bad-conduct discharge, hard labor
without confinement for 30 days, restriction to base for 30 days, and reduction to E-4.
The convening authority approved the sentence as adjudged.
On appeal, the appellant contends the military judge abused his discretion by
(1) finding the defense’s appointed expert consultant was an adequate substitute for an
expert requested by name, (2) requiring the defense to admit certain documents into
evidence, (3) failing to take appropriate remedial action in response to an improper
sentencing argument, (4) allowing the panel to enter sentencing deliberations after a
14-hour day, and (5) allowing a government witness to testify about inadmissible
material.1 Finding that no error materially prejudicial to a substantial right of the
appellant occurred, we affirm.
Background
The appellant’s involvement with cocaine came to light after he provided a urine
specimen on 12 April 2013 as part of a unit-wide inspection ordered by his commander.
All members of the unit, including the appellant, were recalled to base and directed to
provide a urine sample. Several weeks later, the Air Force drug testing laboratory
reported that his sample was positive for cocaine. Consistent with the base policy
following a positive result, the appellant was directed to provide a second urine sample
on 7 May 2013. That sample was also positive for cocaine.
The defense theory at trial was that any ingestion of cocaine by the appellant was
neither knowing nor intentional. Through cross-examination of government witnesses,
the defense contested whether the tested samples belonged to the appellant, whether the
laboratory tests were accurate, and whether the appellant would experience any effects
from ingesting the low level of cocaine found in the urine samples. The appellant was
convicted, as charged, of divers uses of cocaine between 12 March 2013 and 7 May 2013.
Adequacy of Defense Expert
Prior to trial, the defense submitted a request for a confidential defense expert in
forensic toxicology.2 In response, the convening authority appointed a civilian forensic
toxicologist to assist the defense. Several weeks later, trial defense counsel noted her
concerns about the qualifications, experience, and professionalism of the appointed
expert based on her observations of the expert’s performance in another case, and
subsequently moved to compel the appointment of a different individual as the defense
consultant. She also indicated the appointed expert was unfamiliar with the testing
procedures used by the Air Force and the admissibility of various documents created by
the laboratory, and that his education level was inferior to that of the government expert.
1
This issue is raised pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982).
2
Trial defense counsel initially asked for an expert consultant without requesting one by name. After receiving the
convening authority’s appointment of an individual to serve in that role, the defense initially agreed he was
acceptable. Later, when the defense became dissatisfied with this expert, they moved to compel the appointment of
another expert they had found through their own efforts.
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Neither the defense nor the government requested a hearing on this matter, and the
appointed expert did not testify concerning his qualifications. Instead, the military judge
adopted the qualifications in the expert’s curriculum vitae as fact, and concluded he was
qualified to be an expert in forensic toxicology. The military judge then found the
appointed expert to be an adequate substitute for the expert the defense had requested by
name and that the appointed expert’s qualifications were equal to or better than those of
the government’s expert. The military judge recognized that the appointed expert seemed
to lack a “satisfying bedside manner” and that the expert could have been more
accommodating to the defense, but found no evidence the expert had refused to meet with
the defense to assist in the preparation of the appellant’s case. Finally, the military judge
concluded the expert was qualified to assist the defense in evaluating the government’s
evidence and preparing a defense.
When the court-martial convened, the filings and ruling on this matter were
entered into the record as appellate exhibits. The adequacy of the defense consultant was
not raised again before the military judge.
On appeal, the appellant contends the military judge erred in two respects. First,
the appellant attacks the appointed expert’s qualifications to provide assistance before
and at trial, and he also alleges the expert was so inferior to the government’s expert as to
call into question the fairness of the appellant’s court-martial. See United States v.
Warner,
62 M.J. 114, 119 (C.A.A.F. 2005). Second, he questions whether the appointed
expert was an adequate substitute for the expert the defense requested by name. He does
not provide any information about the performance of the expert before and at the
court-martial.
Article 46, UCMJ, 10 U.S.C. § 846, provides, in part, that trial counsel and
trial defense counsel shall have equal opportunity to obtain witnesses. It is also
applicable to defense requests for expert consultants.
Warner, 62 M.J. at 118. An
accused is “not entitled to a specific expert of [his] own choosing, especially where the
Government offers a qualified substitute.” United States v. Weisbeck,
50 M.J. 461,
464–65 (C.A.A.F. 1999). Instead, the issue is whether the appellant received “competent
assistance.” United States v. Burnette,
29 M.J. 473, 475 (C.M.A. 1990); United States v.
Ndanyi,
45 M.J. 315, 319 (C.A.A.F. 1996). “A military judge’s ruling on a request for
expert assistance is reviewed for an abuse of discretion.” United States v. Lloyd,
69 M.J. 95, 99 (C.A.A.F. 2010). “An abuse of discretion occurs when the trial [judge’s]
findings of fact are clearly erroneous or if [his] decision is influenced by an erroneous
view of the law.” United States v. Freeman,
65 M.J. 451, 452 (C.A.A.F. 2008). “The
challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.”
United States v. McElhaney,
54 M.J. 120, 130 (C.A.A.F. 2000) (internal quotation marks
omitted).
Based on the appointed expert’s extensive background, the military judge found
3 ACM S32199
that he was a qualified expert in the field of forensic toxicology with the academic and
professional experience needed to assist the defense. The appointed defense expert had
worked for decades in the field of forensic toxicology, including supervising a state’s
forensic toxicology program. Although his experience may have been focused on issues
relating to alcohol, there is ample evidence that he had experience with testing for other
drugs as well. The military judge’s findings of fact regarding those qualifications were
not clearly erroneous.
Moreover, the military judge found that the appointed expert was equally, if not
more, qualified than the government’s expert. This finding was also not clearly
erroneous. The military judge acknowledged the two experts had differing academic
backgrounds but found the defense expert had significantly more practical experience
than the government expert. Therefore this situation is distinguishable from that found in
Warner where the defense expert lacked specific expertise relevant to the case, and the
government’s expert possessed that
expertise. 62 M.J. at 119–120 (holding an accused
was entitled to expert assistance by an individual whose qualifications were “reasonably
similar to those of the government’s expert”).
In sum, because the appointed expert was qualified to provide the defense with
expert assistance in the field of forensic toxicology and because his qualifications were
sufficiently similar to those of the government expert, the military judge did not abuse his
discretion when he denied the defense motion to compel the appointment of a different
defense expert.3
Admission of Defense Exhibits
During cross-examination of the government’s expert witness, trial defense
counsel asked him about information contained in three documents that were prepared by
the laboratory to document errors made during its processing of the appellant’s
12 April 2013 urine specimen.4 The expert initially indicated he could not answer the
questions without seeing the documents. After learning these errors were not found in
any documentation that had been admitted, the military judge asked if the defense
intended to admit the documents into evidence. Trial defense counsel replied that she
simply wanted to cross-examine the expert about the laboratory errors and was unsure
3
Because the standard articulated in Article 46, UCMJ, 10 U.S.C. § 846, is equal access, and the military judge did
not abuse his discretion in holding that the defense expert’s qualifications were reasonably similar to the government
expert’s, we need not reach the issue of whether the defense expert’s qualifications were equal to some other expert
requested by the defense. There is no evidence the expert fell below the due process standard of competence.
See United States v. Burnette,
29 M.J. 473, 475 (C.M.A. 1990).
4
Defense Exhibit A is a memorandum for record (MFR) documenting that the sample batch had to be re-analyzed
after the initial testing failed to identify a blind quality control. Defense Exhibit B is an MFR memorializing that the
lab technician who tested the appellant’s sample ran the test under another technician’s log in. Defense Exhibit C is
an “Intervention Log”—a document used by the chemists to document processes as they are occurring.
4 ACM S32199
she could establish the foundation needed to admit them as business records. She denied
there was any other reason behind her hesitation in admitting the documents. Ultimately,
she was successful in laying that foundation, and the exhibits were admitted. The expert
then responded to her questions about the errors documented by these exhibits.
Trial counsel asked the military judge to instruct the panel not to draw an adverse
inference or speculate why these three documents were not presented as part of the
government’s exhibits, and that certain information had been redacted or excluded from
the drug testing reports in accordance with evidentiary rules and case law. Trial
counsel’s concern was that the members might have believed the government was hiding
evidence when, in fact, the government had not admitted these documents due to
Confrontation Clause5 concerns. Trial defense counsel objected to the instruction and,
for the first time, claimed that the defense had not initially intended to introduce these
exhibits.
Agreeing with the government and over defense objection, the military judge gave
the following instruction:
Defense Exhibits A, B and C were excluded from the drug
testing report that was provided to the defense prior to trial.
You are not to draw an adverse inference against the
government for the exclusion of these documents.
The appellant now contends (1) it was error for the military judge to require the
defense to admit the documents into evidence before allowing the expert to be
cross-examined about their content, and (2) the instruction was factually erroneous and
improperly bolstered the credibility of the government before the panel.
First, we disagree with the appellant that the military judge required the defense to
admit any evidence in this case. Before these documents were admitted, the military
judge and trial defense counsel had a fulsome discussion about the reasons why the
defense had not sought to admit them. During their colloquy, the defense told the
military judge that its only reason for not offering these exhibits was concern about being
able to lay a proper foundation and that the defense had no tactical reason for not offering
these exhibits. Thus, it is a mischaracterization to argue that the military judge “forced”
the defense to admit Defense Exhibits A, B, and C.
Moreover, the military judge did not abuse his discretion by admitting Defense
Exhibits A, B, and C into evidence. See United States v. Ayala,
43 M.J. 296, 298
(C.A.A.F. 1995) (holding a military judge’s evidentiary decisions are reviewed for abuse
of discretion). The appellant is correct that, under Mil. R. Evid. 703, the facts or data in a
5
U.S. CONST. amend. VI.
5 ACM S32199
case upon which an expert bases his opinion need not be admissible in evidence if “of a
type reasonably relied upon by experts in the particular field” in forming such opinions.
Here, however, the expert was initially uncertain about the content of these documents.
When queried by the military judge about admitting the evidence, the defense made a
tactical decision to introduce the extrinsic evidence of those errors.
These documents established a factual basis for the expert’s testimony concerning
the laboratory’s errors and helped put his testimony into context. Under these
circumstances, the military judge’s finding that the panel members might be confused if
the documents were not introduced was not clearly erroneous or influenced by an
erroneous view of the law. See United States v. Rader,
65 M.J. 30, 32 (C.A.A.F. 2007).
Ultimately, these exhibits supported the defense argument that the Air Force Drug
Testing Laboratory’s processes were flawed and its results unreliable. Under these
circumstances, we find the military judge did not abuse his discretion. Furthermore, the
appellant has not presented any argument as to how he was prejudiced by the admission
of these exhibits.
The appellant also argues that the military judge gave the members an erroneous
instruction concerning Defense Exhibits A, B, and C, a question of law we review
de novo. See United States v. McDonald,
57 M.J. 18, 20 (C.A.A.F. 2002). Generally, a
military judge has “substantial discretionary power” to decide whether to issue a jury
instruction.
Id. (citation and internal quotation marks omitted); United States v. Hopkins,
56 M.J. 393, 395 (C.A.A.F. 2002) (holding the military judge has “considerable
discretion in tailoring instructions to the evidence and law”).
Apparently, trial defense counsel had received copies of Defense Exhibits A, B,
and C. However, the military judge’s finding that there was a chance that the panel
members could draw an adverse inference against the government under these
circumstances was not clearly erroneous, nor was his decision to issue an instruction
influenced by an erroneous view of the law. His instruction did not “bolster” the
government’s credibility, as claimed by the appellant. The military judge’s instruction
was narrowly tailored, and he did not abuse his discretion by instructing the panel in this
manner.
Sentencing Argument
The appellant contends the military judge abused his discretion in denying the
defense’s request to prohibit the panel from adjudging a punitive discharge due to the
government’s improper sentencing argument. Trial counsel made the following
argument during sentencing:
Staff Sergeant Stout illegally ingested a highly addictive drug,
while -- and he did so while as [a noncommissioned officer].
6 ACM S32199
He was in a position of leadership and responsibility, a
position of trust. Staff Sergeant Stout was illegally ingesting
cocaine, also, while he held a top secret sensitive
compartment information security clearance. As some of you
may be aware, this is a special security clearance that allowed
and entrust --
Trial defense counsel immediately objected, and the military judge sustained that
objection citing his concern that trial counsel might be “seeking a higher punishment
based on the accused’s duties.”
During a subsequent Article 39(a), UCMJ, 10 U.S.C. § 839, session, trial counsel
conceded the argument was improper but argued that the impact was minimal because the
defense objected so quickly and the objection was sustained. Trial counsel further argued
that individual voir dire and a curative instruction would adequately remedy the problem.
Trial defense counsel disagreed, arguing the bad-conduct discharge should be eliminated
as a potential punishment.
The military judge found trial counsel made improper comments about the
appellant’s security status, which was related to his job, and that there was no evidence
that the appellant’s drug use affected his duties. The military judge further found trial
counsel’s improper argument to be not so egregious that it could not be cured with an
instruction and panel member voir dire. The military judge gave the members the
following curative instruction:
Members, during the sentencing argument you heard [] trial
counsel make an improper sentencing argument and argue
facts that were not in evidence. Specifically, trial counsel
improperly commented on Staff Sergeant Stout’s security
clearance, and by implication, his duties in the Air Force.
The court is concerned that the improper argument by trial
counsel and his arguing facts not in evidence has prejudiced
you in being able to provide a fair and appropriate sentence
for Staff Sergeant Stout in this case, and you are to disregard
trial counsel’s improper argument in determining whether you
should adjudge any punishment or no punishment in this case.
At this point I want to ask the members, collectively, if they
can adhere to the court’s instruction to disregard [] trial
counsel’s improper argument and arguing facts not in
evidence as they deliberate on a fair and appropriate sentence,
7 ACM S32199
and to consider only the evidence that has been admitted into
this court-martial for your review and consideration?
Do the court members agree that they are able to put aside the
improper argument by trial counsel, and solely decide this
case on the evidence as presented and come up with a fair and
appropriate punishment, if any, for Staff Sergeant Stout?
All the members responded affirmatively.
During individual voir dire, the panel president stated the argument made by trial
counsel—the words that were objected to—did not impact his thinking on the appellant’s
sentence, and that “[i]t simply didn’t play a role.” The other two panel members stated
the comments concerning the appellant’s security clearance did not and would not affect
their determination of an appropriate sentence in this case.
Trial counsel completed his sentencing argument without any further objection
from the defense. He asked the panel to sentence the appellant to a bad-conduct
discharge, confinement for six months, reduction to E-1, and forfeiture of two thirds pay
for one year. Trial defense counsel argued against the bad-conduct discharge and
confinement. Instead, she asked the panel members to sentence the appellant to hard
labor without confinement. Ultimately, the appellant was sentenced to a bad-conduct
discharge, hard labor without confinement for 30 days, restriction to base for 30 days,
and reduction to E-4.
The government conceded at trial that the argument was improper, so we must
decide whether the error was prejudicial under Article 59(a), UCMJ, 10 U.S.C. § 859(a).
See United States v. Fletcher,
62 M.J. 175, 184–85 (C.A.A.F. 2005). Improper argument
is prejudicial if it so tainted the proceeding that we cannot be confident that the members
sentenced the appellant on the basis of the evidence alone.
Id. We evaluate the impact
by balancing: (1) the severity of the improper argument, (2) the measures adopted to cure
the improper argument, and (3) the weight of the evidence supporting the conviction.
See
id.
We find that the appellant was not prejudiced. The severity of the improper
argument was limited by the timely action of trial defense counsel and the military judge.
The improper aspect of the argument arose only once and was terminated almost at
inception. Furthermore, the military judge undertook thorough measures to cure any
taint. He provided a strongly worded instruction and permitted both sides to voir dire the
members. Our superior court has endorsed a curative instruction as a remedy for
improper argument. See United States v. Jenkins,
54 M.J. 12, 20 (C.A.A.F. 2000)
(“Court members are presumed to follow the military judge’s instructions. . . . an
improper argument can often be cured by an appropriate limiting instruction.”). The
8 ACM S32199
evidence adduced at trial, in the form of two separate urinalysis tests showing the
presence of cocaine metabolite in the appellant’s urine, was convincing evidence of the
appellant’s guilt supporting the conviction without reference to the improper argument.
We are confident that the members sentenced the appellant on the basis of the evidence
alone.
Furthermore, we “may affirm only such findings of guilty and the sentence or such
part or amount of the sentence, as [we] find[] correct in law and fact and determine[], on
the basis of the entire record, should be approved.” Article 66(c), UCMJ,
10 U.S.C. § 866(c). “We assess sentence appropriateness by considering the particular
appellant, the nature and seriousness of the offenses, the appellant’s record of service,
and all matters contained in the record of trial.” United States v. Bare,
63 M.J. 707, 714
(A.F. Ct. Crim. App. 2006); see also United States v. Snelling,
14 M.J. 267, 268
(C.M.A. 1982). We have considered this particular appellant, the nature and seriousness
of his offense, his record of service, all matters contained in the record of trial, and his
arguments on appeal, and we find the approved sentence is appropriate.
Timing of Sentencing Phase
The appellant was found guilty at around 1720 on 25 September 2013,
approximately nine hours after that day’s trial proceedings began. The military judge
asked the panel president whether the members wanted to continue into the evening with
the sentencing phase or recess until the next day. The president responded that the panel
preferred to continue for a short time and then recess and reconvene the next afternoon.
For reasons related to payment of the court reporter, the government asked to recess and
reconvene the next day. When the military judge asked trial defense counsel whether
they desired to continue or recess for the evening, the following discussion took place:
DC: Yes, Your Honor, and certainly the interest of all parties
are important, but Sergeant Stout’s preference is to finish
this evening. I think it’s unfair to him to have go home, in
light of the verdict, and wait until tomorrow. And I have
concerns with that as well. . . .
MJ: Defense Counsel, you said you had concerns about not
continuing into this evening. Does -- can you elaborate on
those concerns, or is that something you’re not willing to go
into?
DC: I would prefer not to go into it, Your Honor.
(Emphasis added).
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Based on the defense’s preference and their concern for the appellant, the military
judge decided to proceed with presentencing rather than recessing for the evening. The
military judge confirmed that a panel member who had a social commitment that evening
would be able to give “full and due consideration” to all the matters presented during
presentencing and would be able to complete his duties to the best of his ability.
Following the admission of sentencing evidence and the arguments of counsel, the
panel began its sentencing deliberations at 2237 hours that evening. At 2358, 80 minutes
later, the panel reached its decision on the appellant’s sentence. This was approximately
16 hours after the court-martial had convened that morning.
The appellant now argues that the military judge abused his discretion by deciding
to proceed “without first confirming with defense and the members that they were
confident they could competently continue with the case.” We disagree.
Judges are owed great deference on matters of scheduling and continuances, and
“only an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a
justifiable request for delay’” will result in reversal. Morris v. Slappy,
461 U.S. 1, 11–12
(1983). There is no evidence that any of the participants in this court-martial were unable
to competently proceed with the trial into the evening. In fact, the defense raised
concerns about the panel not continuing into the evening. The military judge fully
considered each of the participant’s concerns and he based his decision to proceed on the
needs and request of the appellant. There was nothing “unreason[able]” or “arbitrary”
about this decision, and the military judge did not abuse his discretion.
Testimony regarding Redacted Information
At trial, the defense moved to have the appellant’s signature and initials redacted
from the documentation and specimen bottles relating to both of his urinalysis tests.
Citing to Mil. R. Evid. 304, the defense argued these were statements of the accused and
the defense had not received the required notice that the government intended to offer
them as evidence against him.6 The military judge agreed and ordered the redaction of
the appellant’s signatures and his initials. However, the military judge advised that he
would allow the witnesses to “testify whether or not they observed [the appellant]
acknowledging the process and steps that [he] went through.” Further explaining his
ruling, the military judge said, “I’m not going to restrict the government from identifying
that bottle as belonging -- or it being the bottle of Sergeant Stout.”
6
We note that the parties and the military judge referred to a version of Mil. R. Evid. 304 that had recently been
superseded based on the President’s 15 May 2013 Executive Order implementing the 2013 amendments to the
Manual for Courts-Martial. See Proclamation No. 13643, 78 Fed. Reg. 29559 (May 25, 2013). We find no
prejudice to the appellant from this error because the pertinent provisions of Mil. R. Evid. 304 in the new rule were
substantially the same as the predecessor rule.
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During the testimony of the Drug Testing Program Administrative Manager
(DTPAM) about the processes used to collect the appellant’s urine specimens, the
witness explained the standard practice of creating a memorandum for record (MFR) if
any flaws were noted during the drug testing quality control process. The government
then entered into evidence, without defense objection, an MFR the witness prepared
because the appellant’s initials on the sample bottle were illegible. Additionally, after the
government entered into evidence the drug testing register for the appellant’s
12 April 2013 drug test where the appellant’s signature had been redacted, the DTPAM
testified the appellant signed this document.
Although the defense did not object, this testimony prompted the military judge to
sua sponte issue the following instruction to the members:
[T]he witness mentioned something about a signature. You
are to disregard his comment about that and you’re not to
speculate on whose signatures he may have been speaking
about, and you are not to consider that as part of the evidence.
The noncommissioned officer who verified the appellant’s identity when he
arrived for his 12 April 2013 urinalysis also testified that he observed the appellant sign
the drug testing register and initial his specimen bottle. Similarly, the individual who
performed that role at the 7 May 2013 urinalysis testified that he saw the appellant sign
the register for that test.
Out of concern that witnesses may have inadvertently testified about information
that he ordered redacted, the military judge decided to issue a remedial instruction. With
the concurrence of the parties, the military judge instructed the members:
Prosecution exhibits 6, 7, 9 and 11 have been redacted. These
documents were redacted by an order of the Court to remedy
a failure to provide notice to the defense as required by the
Military Rules of Evidence. It is not your job to discern what
has been redacted and you are not to speculate on what has
been redacted from these documents. You may only consider
the information that is present on the particular document.
Pursuant to Grostefon, the appellant argues that the military judge abused his
discretion by allowing testimony regarding information he ordered the government to
redact and by failing to give an adequate remedial instruction. We disagree.
When court-members have heard evidence deemed inadmissible by a military
judge, a curative instruction is the preferred remedy for correcting that error, so long as
11 ACM S32199
the instruction is adequate to avoid prejudice to the accused. United States v. Taylor,
53 M.J. 195, 198 (C.A.A.F. 2000). Whether a panel was properly instructed is a question
of law we review do novo.
McDonald, 57 M.J. at 20. A military judge’s decision to
provide an instruction is reviewed for an abuse of discretion. United States v. Maxwell,
45 M.J. 406, 424. The military judge has “considerable discretion” in tailoring
instructions to the evidence and the law.
Hopkins, 56 M.J. at 395. Here, we find the
military judge’s instruction was adequate to avoid prejudice to the appellant.
The DTPAM spontaneously uttered a vague comment about the appellant’s
signature while he was referring to Prosecution Exhibit 6: a document that, in addition to
the appellant’s redacted signature, also contained the appellant’s printed name, social
security number, and the batch and specimen number of his urine specimen. The defense
did not object to this utterance despite having been instructed by the military judge that
there was no standing Mil. R. Evid. 304 objection and that it was their obligation to
object whenever they felt it was appropriate. Nevertheless, the military judge instructed
the DTPAM to not comment on any redacted material and instructed the members to
disregard any such comments. The military judge also cautioned trial counsel to better
prepare the government witnesses in light of his ruling that the appellant’s signatures and
initials had to be redacted. Thus, the military judge did all that he could to prevent the
DTPAM from testifying about the redacted material.
The military judge did not fail to give the panel members an appropriate remedial
instruction. The limiting instruction concerning Prosecution Exhibits 6, 7, 9, and 11 was
appropriate under the circumstances. It clearly identified the redacted exhibits, and it was
unambiguous in its prohibition against speculation over what was redacted. The military
judge issued this instruction out of a concern the appellant may not have fully benefitted
from the initial redaction order. Moreover, trial defense counsel agreed that the
instruction was adequate and necessary. The testimony from the DTPAM concerning the
redacted information was minimal and the military judge reacted immediately to prevent
members from considering it, making the remedial instruction largely unnecessary. In
any case, it did no harm. As summarized above, there was sufficient physical and
testimonial evidence, independent of the DTPAM’s cursory testimony about redacted
information, to prove beyond a reasonable doubt that the appellant’s urine specimen
twice tested positive for the metabolite for cocaine. Thus, we are confident that the
appellant was in no way prejudiced by the DTPAM’s general testimony concerning
redacted information or the military judge’s subsequent remedial instruction.
Conclusion
The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ.
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Accordingly, the approved findings and sentence are AFFIRMED.
FOR THE COURT
STEVEN LUCAS
Clerk of the Court
13 ACM S32199
