United States v. Israel , 2005 CAAF LEXIS 300 ( 2005 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Richard J. ISRAEL Jr., Airman First Class
U.S. Air Force, Appellant
No. 04-0217
Crim. App. No. 34877
United States Court of Appeals for the Armed Forces
Argued October 20, 2004
Decided March 16, 2005
ERDMANN, J., delivered the opinion of the Court, in which
GIERKE, C.J., CRAWFORD, EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant: Captain David P. Bennett (argued); Colonel
Beverly B. Knott, Major Terry L. McElyea, Captain Antony B.
Kolenc, and Captain James M. Winner (on brief).
For Appellee: Captain Stacey J. Vetter (argued); Colonel
LeEllen Coacher, Lieutenant Colonel Robert V. Combs, and Major
Michelle M. Lindo (on brief); Lieutenant Colonel Gary F.
Spencer.
Military Judge: James L. Flanary
This opinion is subject to editorial correction before final publication.
United States v. Israel Jr., No. 04-0217/AF
Judge ERDMANN delivered the opinion of the Court.
Airman First Class Richard J. Israel Jr. entered a plea of
not guilty to a specification alleging wrongful use of cocaine
in violation of Article 112a, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 912a (2000). He was tried and convicted by
members at a general court-martial and sentenced to a bad-
conduct discharge, confinement for six months, forfeiture of all
pay and allowances, and a reduction in grade to E-1. The
convening authority approved the findings and sentence and they
were affirmed by the Air Force Court of Criminal Appeals in an
unpublished decision. United States v. Israel, ACM 34877 (A.F.
Ct. Crim. App. Oct. 27, 2003).
A defendant’s right under the Sixth Amendment to cross-
examine witnesses is violated if the military judge precludes a
defendant from exploring an entire relevant area of cross-
examination. United States v. Gray, 40 M.J. 77, 81 (C.M.A.
1994). The prosecution primarily relied upon Israel’s positive
urinalysis test1 and the only defense raised by Israel was an
attack on the reliability of the urinalysis testing process.
Although the military judge allowed the defense counsel to
conduct limited cross-examination regarding the possibility that
errors might have occurred in the testing process, he excluded
1
The Government did introduce the testimony from a friend of
Israel concerning a statement that Israel may have made after
the drug test. The testimony was equivocal and not probative.
2
United States v. Israel Jr., No. 04-0217/AF
most of the evidence that the defense offered in support of that
possibility. We granted review to determine whether the
military judge abused his discretion in excluding this evidence.2
BACKGROUND
Israel tested positive for cocaine in an urinalysis drug
test that was obtained during a unit sweep at MacDill Air Force
Base (MacDill) on May 19, 2001. The sample was tested at the
Brooks Air Force Drug Testing Laboratory (Brooks Laboratory) on
May 30, 2001. The Government’s witnesses testified as to the
collection procedures at the base level and the testing
procedures at Brooks Laboratory. Israel did not testify and his
defense consisted of an attack on the reliability of the drug
testing program through cross-examination.
Base Collection Procedures
The MacDill Drug Testing Program Manager, Mr. Mahala,
testified regarding the standard procedures for the collection
of urine during a drug sweep and that those procedures were
followed to collect Israel’s urine. On cross-examination he
2
We granted review of the following issue:
WHETHER APPELLANT WAS DENIED MEANINGFUL CROSS-
EXAMINATION OF KEY GOVERNMENT WITNESSES IN VIOLATION
OF THE SIXTH AMENDMENT WHERE THE MILITARY JUDGE
PREVENTED TRIAL DEFENSE COUNSEL FROM CONFRONTING THE
WITNESSES WITH MATERIAL IMPEACHMENT EVIDENCE.
3
United States v. Israel Jr., No. 04-0217/AF
admitted that he did not have any direct recollection of
collecting Israel’s sample and that his testimony was based
entirely on the standard procedures he used in testing. He
stated, “I don’t get away from my procedure at all, Sir.”
Prior to the defense counsel’s cross-examination of Mr.
Mahala, the military judge addressed a motion in limine filed by
the government that asked “that the defense counsel be precluded
from presenting evidence on cross of Mr. Mahala, as well as be
precluded from any mention at all of the Drug Demand Urinalysis’
untestable rates ... from MacDill Air Force Base.” In
opposition to the motion, the defense argued that because an
untestable sample indicates that something has gone awry in the
collection or shipping process, this evidence would be probative
with respect to “what the local lab did or did not do correctly
for the month of June and for the month of March ... just prior
to and just after the sample which was given in May.”
The military judge excluded the evidence, finding that it
was “irrelevant because what we’re focusing on is this
particular instance of the collection process. I don’t think
that the trial counsel has opened the door up to ... a general
assault ... on the entire testing process forever, or within the
first few months before or after.”
4
United States v. Israel Jr., No. 04-0217/AF
Laboratory Procedures
Dr. Haley testified as an expert witness regarding the
procedures used at the Brooks Laboratory for testing urine
samples for cocaine: an immunoassay test is run on all samples;
those samples that test positive undergo a second immunoassay
test; if that second test is positive, the sample is tested a
third time using the more intricate and more thorough gas
chromatography/mass spectrometry (GC/MS) testing process. With
regard to the GC/MS confirmation test, Dr. Haley testified that
it is “considered the gold standard in drug testing[,]” and that
it is an accurate test.
Dr. Haley walked the court through the document containing
the test reports for Israel’s urine screening and explained the
process used in each of the three tests when a positive result
is reached. She described the standard calibration procedures
and other quality control measures taken by the lab with regard
to the machines used in the testing process and the testing
process as a whole. When asked how she could be sure of the
test results, she responded, “Because ... the whole test is
performing as it should. We’ve got all the knowns in there are
[sic] coming out at the correct concentrations. If the
instrument were having some problem where it was inaccurately
detecting things, it would show up in the controls, as well.”
Dr. Haley concluded that in her opinion the test produced
5
United States v. Israel Jr., No. 04-0217/AF
“valid results[,]” and that the urine tested was produced by the
accused and tested positive for cocaine. On cross-examination,
Dr. Haley testified that it is possible that “[s]ome mistakes
will go undetected, but there are many precautions set up to
catch those that would result in a report going out.”
Prior to the cross-examination of Dr. Haley, a session
pursuant to Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000), was
held to address certain evidence that the defense sought to
introduce during cross-examination. Israel’s defense counsel
argued that the areas he wished to explore challenged the
reliability of Dr. Haley’s conclusion that the urinalysis test
result was valid and were therefore appropriate for cross-
examination. The evidence that the defense wished to introduce
related to the following incidents at Brooks Laboratory: a May
2001 calibration error; a 1997 incident where a laboratory
employee, Ms. Solis, erroneously annotated a specimen sample; a
1999 incident where Mr. Hatziz, a laboratory employee, falsified
documents to cover up an error; an August 2000 false-positive
blind quality control sample; and log book errors in April of
2001. The military judge found that the evidence was “totally
irrelevant for what we’re here for .... None of that stuff has
anything to do with this particular testing in this particular
case.”
6
United States v. Israel Jr., No. 04-0217/AF
During closing arguments, trial counsel reinforced the
“gold standard” theme of the Government’s case. He stressed the
reliability of the urinalysis testing process, characterizing it
as the “best,” the “Mercedes” of drug testing and that “every
precaution was taken” to ensure its accuracy “and every
precaution was met.” Trial defense counsel attempted to impeach
the processes used by the laboratory by noting the possibility
that mistakes were made and arguing that “you can’t report a
mistake you didn’t find.” On rebuttal, the Government again
stressed the presumption of regularity inherent in the standard
procedures of the laboratory.
DISCUSSION
Israel argues that the military judge’s rulings
unreasonably restricted his ability to cross-examine witnesses
and violated his Sixth Amendment rights. See United States v.
Bahr, 33 M.J. 228, 232 (C.M.A. 1991). Trial rulings limiting
cross-examination are reviewed for abuse of discretion. United
States v. Shaffer, 46 M.J. 94, 98 (C.A.A.F. 1997) (citing United
States v. Buenaventura, 45 M.J. 72, 79 (C.A.A.F. 1996)).
A defendant’s Sixth Amendment right to confront the
witnesses against him is violated where it is found that a trial
judge has limited cross-examination in a manner that precludes
an entire line of relevant inquiry. See United States v.
Atwell, 766 F.2d 416, 419-20 (10th Cir. 1985). Because the
7
United States v. Israel Jr., No. 04-0217/AF
alleged errors affect Israel’s constitutional right to confront
the witnesses against him, if we find that the military judge
abused his discretion, we will reverse unless the “error was
harmless beyond a reasonable doubt.” Bahr, 33 M.J. at 231
(quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)); see
also United States v. Gray, 40 M.J. 77 (C.M.A. 1994).
We find that while the military judge correctly excluded
much of the offered evidence, he abused his discretion in
excluding evidence of the MacDill untestable rates, the Brooks
Quality Control Report regarding an unacceptable calibrator, and
the August 2, 2000, false-positive blind quality control sample.
We further find that these errors were not harmless beyond a
reasonable doubt.
MacDill Untestable Rates
Mr. Mahala testified on cross-examination that he did not
have any direct recollection of collecting Israel’s sample and
that his testimony was based on the standard procedures he used
in collecting urine samples during a unit sweep. His testimony
relied on a presumption of regularity -- that those standard
procedures were followed in Israel’s case. The evidence offered
by Israel to challenge this testimony concerned the untestable
rates for MacDill from the months of March and June. The
untestable samples produced by the MacDill drug program during
8
United States v. Israel Jr., No. 04-0217/AF
those months indicate some type of irregularity in the
collection or shipping process.
Evidence of these irregularities could have been used to
attack Mr. Mahala’s testimony that the standard procedures
always were followed and those procedures were reliable.
Because this evidence of irregularities in the collection
process was closely related in time to the collection of
Israel’s sample, we find that the military judge abused his
discretion in excluding this evidence from use by the defense on
cross-examination.
Brooks Calibration Error
Dr. Haley testified regarding the standard procedures used
at the Brooks Laboratory for testing urine samples for cocaine.
She described the standard calibration procedures and other
quality control measures taken by the lab with regard to both
the machines used in the testing process and the testing process
as a whole.
In May 2001 there was a failed run of the testing process
because of an unacceptable calibrator. The calibration error
was caught and the test in that case was rerun. There was also
a calibration error in the batch that contained Israel’s
specimen, which caused a control sample to read positive
erroneously. The error caused the batch in Israel’s case to be
rerun as well. Defense counsel argued that the quality control
9
United States v. Israel Jr., No. 04-0217/AF
report reflecting the earlier error should be admissible to show
that errors could, and did, occur in the calibration of the
machines. As noted, the military judge excluded the evidence as
being irrelevant.
The evidence in question concerned a calibration error that
occurred in May 2001, the same month in which Israel’s sample
was collected and tested. Evidence that the same error had
occurred more than once in the same month could have been used
to raise questions about the reliability of the machines used in
the testing process and therefore to question the reliability of
the results of the test. Considering Dr. Haley’s generalized
testimony that relied upon the “gold standard in drug testing”
and a presumption of regularity in the testing process, the
military judge’s ruling deprived Israel of the opportunity to
meaningfully challenge that presumption of reliability.
In those cases where the Government relies on the general
reliability of testing procedures, evidence related to the
testing process that is closely related in time and subject
matter to the test at issue may be relevant and admissible to
attack the general presumption of regularity in the testing
process. We therefore find that the military judge abused his
discretion in excluding this evidence.
10
United States v. Israel Jr., No. 04-0217/AF
False-Positive Blind Quality Control Sample
On August 2, 2000, one of the quality control samples known
by the lab to be negative for cocaine erroneously tested
positive in a run of the GC/MS test. As a result the entire
batch tested in that run was discarded and the test was rerun.
No explanation for the error was ever given.
Barbara Rohde was the aliquoter on the batch that had
produced this false positive and while her name appears on the
chain of custody for Israel’s sample, she did not handle the
sample until June 7, after the testing was complete. Defense
counsel sought to introduce this evidence to show that there had
been an error in the testing process in the past, and to test
Dr. Haley’s knowledge regarding the lab and the people involved
in the testing process “and her ability to give an opinion as to
whether or not this is a valid litigation package.”
In United States v. Jackson, 59 M.J. 330 (C.A.A.F. 2004),
this Court dealt with the same report as the one Israel sought
to introduce, although in the context of a discovery request.
In Jackson we found error in the Government’s failure to produce
the report in response to a discovery request and characterized
the report as potentially “critical on a pivotal issue in the
case -– the reliability of the laboratory’s report that
Appellant’s specimen produced a positive result.” Id. at 335-36.
In Jackson, the laboratory testing error occurred less than four
11
United States v. Israel Jr., No. 04-0217/AF
months from the test procedure, while in this case it occurred
more than nine months prior to the collection and testing of
Israel’s sample.
While a period of nine months between a laboratory error
and the testing process may well be too remote in other cases,
under the circumstances of this case it is not. The reliability
of the testing process will always be relevant in drug test
cases to establish the admissibility of the test results. Where
the Government goes well beyond establishing reliability and
raises the bar by characterizing the testing process as a
“Mercedes” and that the process is the “gold standard” in drug
testing, it opens the door to a broader time frame during which
laboratory errors may be relevant to challenge the testing
process. For this reason, we find that the military judge
abused his discretion in excluding this report.
Remaining Allegations of Error
Errors by Ms. Solis
In May 1997 Ms. Solis, who is an employee of the Brooks
Laboratory, inadvertently annotated a negative specimen as
positive on a report.3 Dr. Haley testified that Ms. Solis was
involved with verifying the test results from Israel’s sample.
3
The defense also argued that another employee of the
laboratory, Dr. Papa, was involved in both tests. Dr. Papa’s
role in the earlier test, however, was unrelated to the error
that occurred.
12
United States v. Israel Jr., No. 04-0217/AF
Israel’s counsel sought to use this information to explore the
fact that errors had been made in the past, and to test Dr.
Haley’s knowledge of those errors and the impact that knowledge
had on her testimony.
We conclude that the military judge did not abuse his
discretion in excluding evidence of the May 1997 error by Ms.
Solis. The only connection claimed by trial defense counsel
with regard to this evidence was that Ms. Solis was involved
both in the earlier error and with Israel’s test. However, Ms.
Solis’s only involvement with Israel’s test was in reviewing
data, not annotating specimens and, in any event, there was no
annotation error with Israel’s sample. The evidence of this
error is too far removed in both subject matter and time to be
relevant to the reliability of the test results.
Incident Involving Mr. Hatzis
In November 1999 there was an incident in which Mr. Hatziz
made a testing error and then deliberately falsified documents
to cover up that error. Following the discovery of this
misconduct, a report called a “Retention Times Summary Report”
was added to the standard litigation package. Defense counsel
sought to introduce this information to explain why the
“Retention Times Summary Report” was included in the litigation
package even though nothing in that report was at issue at
trial.
13
United States v. Israel Jr., No. 04-0217/AF
The military judge did not abuse his discretion in
excluding evidence of misconduct by Mr. Hatzis that occurred in
November 1999. This incident was not related to Israel’s test
other than it took place at the same laboratory. It occurred
one and a half years prior to the testing of Israel’s sample and
Mr. Hatzis was no longer employed at the laboratory when
Israel’s sample was tested. The evidence was too remote in time
and subject matter to be relevant to challenge Dr. Haley’s
conclusion that the urinalysis test results were valid.
Log Book Errors
To test Dr. Haley’s knowledge about lab procedures and
possible security breaches at the laboratory, the defense sought
to introduce evidence of an April 2001 incident in which
individuals were allowed to access areas of the Brooks
Laboratory without escorts or were not properly logged into or
out of the lab. During the Article 39(a) hearing, Dr. Haley
stated that her only knowledge regarding those incidents related
to some entries on a log where cleaning crew members were logged
in but not properly logged out. She did not remember that any
of the incidents involved the storage room where specimens were
kept, but only the room where papers were kept.
Evidence of minor errors in the log book that did not
concern the area where the samples were tested or stored is
neither probative of nor relevant to the reliability of the
14
United States v. Israel Jr., No. 04-0217/AF
testing process. Accordingly, we find that the military judge
did not abuse his discretion in excluding this evidence.
Prejudice
Where an error constitutes a violation of the defendant’s
constitutional rights, we will reverse unless the “error was
harmless beyond a reasonable doubt.” Bahr, 33 M.J. at 231
(quoting Van Arsdall, 475 U.S. at 684). Here, the military
judge limited Israel’s cross-examination in a manner that
precluded him from exploring the possibility that the urinalysis
testing process suffered from irregularities.
Israel needed to be able to point out possible
irregularities in the testing process to show that there may
have been errors that went undetected, and that the positive
result presented by the prosecution may have been unreliable.
The military judge’s rulings precluded Israel from responding to
the Government’s case because they kept from him the tools he
needed to attack the reliability of the urinalysis testing
process. While the military judge noted that evidence of errors
in controlled testing procedures was evidence that the process
was working properly, arguments that the process has had
irregularities in the past are better made to the fact-finder.
Presenting the possibility that the positive result from
the urinalysis test was unreliable was Israel’s best defense to
the Government’s “gold standard” theory of the case. By
15
United States v. Israel Jr., No. 04-0217/AF
precluding any meaningful inquiry into those relevant
irregularities in the process, Israel was deprived of the
opportunity to confront the “gold standard” theory properly.
“The possibility of a positive result from an error in the
test ... is the worst nightmare of every good servicemember and
a cause of serious concern to the judicial system.” United
States v. Campbell, 50 M.J. 154, 160 (C.A.A.F. 1999). It is
impossible to say that the members would not have taken evidence
of irregularities in the testing process and possible errors in
the results into consideration. Having found that evidence of
the untestable rates at MacDill Air Force Base, the false-
positive blind quality control sample and the Quality Control
Report were erroneously excluded, we conclude that the error was
not harmless beyond a reasonable doubt.
DECISION
The decision of the United States Air Force Court of
Criminal Appeals is reversed. The finding and sentence are set
aside and the record of trial is returned to the Judge Advocate
General of the Air Force. A rehearing is authorized.
16