United States v. Mahoney , 2003 CAAF LEXIS 629 ( 2003 )

UNITED STATES, Appellee
v.
Michael J. MAHONEY, Master Sergeant
U.S. Air Force, Appellant
No. 02-0270
Crim. App. No. 34209
United States Court of Appeals for the Armed Forces
Argued February 25, 2003
Decided June 25, 2003
CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Major Kyle R. Jacobson (argued); Colonel Beverly
B. Knott and Major Terry L. McElyea (on brief); and Major
Jeffrey A. Vires.
For Appellee: Major John D. Douglas (argued); Colonel LeEllen
Coacher and Lieutenant Colonel Lance B. Sigmon (on brief); and
Colonel Anthony P. Datillo, Major Jennifer R. Rider, and Captain
Adam Oler.
Amicus Curiae: Claudia N. McClinton (law student)(argued); Eric
L. Muller, Esq. (supervising attorney) and Heather A. Maddox
(law student) – For the University of North Carolina School of
Law.
Military Judge: Patrick M. Rosenow
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Mahoney, 02-0270/AF
Chief Judge CRAWFORD delivered the opinion of the Court.
Contrary to his plea, Appellant was convicted by an officer
and enlisted panel of wrongfully using cocaine over a 20-day
period, in violation of Article 112a, Uniform Code of Military
Justice [hereinafter UCMJ], 10 U.S.C. § 912a (2000). The
convening authority approved only so much of the sentence as
provided for a bad-conduct discharge, reduction to senior airman
(E-4), and partial forfeiture of pay for six months. The Air
Force Court of Criminal Appeals affirmed the findings and
sentence in an unpublished opinion. United States v. Mahoney,
No. ACM 34209 (A.F. Ct. Crim. App. Dec. 13, 2001). We granted
review of the following issues:
I. WHETHER TRIAL COUNSEL FAILED TO ENGAGE IN GOOD
FAITH EFFORTS TO OBTAIN AND DISCLOSE DEROGATORY
DATA CONCERNING THE GOVERNMENT EXPERT WITNESS
FROM FILES AT THE AIR FORCE DRUG TESTING
LABORATORY AS REQUIRED BY UNITED STATES V.
WILLIAMS, 50 M.J. 436 (C.A.A.F. 1999).
II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS
ERRED BY REFUSING TO ALLOW APPELLATE DEFENSE
COUNSEL TO EXAMINE THE POTENTIALLY EXCULPATORY
LETTER CONCERNING THE GOVERNMENT EXPERT WHEN
GOVERNMENT APPELLATE COUNSEL HAVE REVIEWED THE
SAME LETTER.
For the reasons set forth below, we reverse.1
1
We heard oral argument in this case at the University of North Carolina
School of Law, Chapel Hill, North Carolina, as part of the Court's "Project
Outreach." This practice was developed as part of a public awareness program
to demonstrate the operation of a Federal Court of Appeals and the quality of
the military criminal justice system.
2
United States v. Mahoney, 02-0270/AF
FACTS
The charge against Appellant resulted from a random
urinalysis conducted on September 20, 1999, at Lackland Air
Force Base (AFB), Texas. Appellant’s urine sample tested
positive for the presence of cocaine metabolites at a level of
163 nanograms per milliliter (ng/ml). The sample was then
retested, exhibiting cocaine metabolites present at a level of
156 ng/ml. The Department of Defense has designated 100 ng/ml
as the quantitative threshold for a positive test.
The Government’s case was based on a random urinalysis,
with no other independent evidence of cocaine use. The defense
strategy was to attack the procedural regularity and reliability
of the urinalysis.
During Appellant’s trial, the Government called Dr. Philip
Mobley, the Laboratory Certifying Official at the Air Force Drug
Testing Lab, Brooks AFB, Texas, as an expert in chemistry,
toxicology, and pharmacology. The lab examines approximately
30,000 urine samples per month. One of Dr. Mobley’s
responsibilities is to review the litigation package compiled
for each urine sample -- an assembly of documents relating to
the sample’s testing and results. Two of the Government’s chief
exhibits at trial were the litigation packets relating to
Appellant’s initial urinalysis and retest, about which trial
3
United States v. Mahoney, 02-0270/AF
counsel extensively questioned Dr. Mobley in order to prove
Appellant’s drug use.
After the trial, defense counsel learned of the existence
of a letter criticizing Dr. Mobley’s job performance and
questioning the value of his continued employment. The letter
was written by Lieutenant Colonel (LtCol) Mark R. Ruppert,
command staff judge advocate (SJA) at Peterson AFB, Colorado, to
the SJA, 14th Air Force. The letter was prompted in part by Dr.
Mobley’s testimony in two prior courts-martial, and included the
following language:
My first negative experience with Dr. Mobley was
during the general court-martial of US v. SSgt Castro
in Aug 98. Dr. Mobley testified for the Government,
but the circuit trial counsel and court members gave
me unsolicited feedback that his testimony showed an
obvious lack of enthusiasm or conviction about the Air
Force’s drug testing program. In addition to the
attitude that he really didn’t care much about the
program, detracting from the validity of the
urinalysis result, he left Peterson AFB while subject
to recall, requiring a stipulation of testimony to
court members’ questions later in the trial.
. . . Of particular concern to me, as a former circuit
trial counsel who has prosecuted many urinalysis
cases, was Dr. Mobley’s testimony about drug use
studies and the value of those studies to forensic
toxicologists. . . . [M]y reading [of his testimony]
is that he has criticized the value of studies
normally used by forensic toxicologists to draw
conclusions and render opinions based on certain fact
scenarios - to the point he could no longer credibly
rely on these studies as an expert witness for the
Government. If that is his honestly held opinion, I
question why the Air Force would want to employ
someone undercutting the value of the studies relied
upon by other forensic toxicologists[.]
4
United States v. Mahoney, 02-0270/AF
Given the contrast between Dr. Mobley’s positive testimony
about the lab processes contributing to Appellant’s charge, and
his apparently negative testimony in the previous courts-martial,
defense counsel questioned the impact of the letter on Dr.
Mobley’s change of perspective. Accordingly, defense counsel
requested that the Brooks AFB legal office provide him with a
copy of the letter, along with any associated materials, noting
that the letter had not been disclosed despite the defense’s pre-
trial request for “all information potentially affecting the
credibility of the Government’s prospective witnesses.” The base
legal office responded that all materials regarding Dr. Mobley in
its possession had been previously provided to the defense, and
that the office was unaware of the letter’s existence until after
receipt of defense counsel’s request for it.
After his conviction, Appellant moved for production of the
letter and all associated documents on appeal before the Air
Force Court of Criminal Appeals. The Air Force Court ordered
the Government to provide the letter and attachments for an in
camera review. After reviewing the documents, the Air Force
Court ordered all documents produced pursuant to its orders to
be sealed. The letter was not provided to Appellant.
After considering Appellant’s petition for grant of review,
this Court ordered that appellate defense counsel be permitted
to examine the materials sealed by order of the Air Force Court,
5
United States v. Mahoney, 02-0270/AF
absent the Government’s showing of good cause that so doing
could be expected to damage the public interest or a protected
privacy interest. United States v. Mahoney, 57 M.J. 432
(C.A.A.F. 2002). The Government did not challenge the order in
this regard, and appellate defense counsel has since examined
the materials originally sealed. Accordingly, Issue II is moot.
DISCUSSION
The lower court determined that because the Government did
not know of the letter until informed by defense counsel after
trial, there was “no bad faith on the part of the prosecution,”
and found that even if the Government did breach its obligation,
there was no prejudice. Mahoney, No. ACM 34209, slip op. at
3-4. The court further noted that even assuming error,
“[A]ppellant was not materially prejudiced,” and “no reasonable
probability existed that the result of the proceeding would have
been different.” Id. at 4. We disagree. The Government’s
failure to provide the letter to the defense before trial
violated Appellant’s constitutional right to due process of law.
Brady v. Maryland, 373 U.S. 83 (1963).
We note at the outset that even if trial counsel did not
know about the letter, it would have become known to him “by the
exercise of due diligence.” Rule for Courts-Martial
701(a)(2)(B). As the Supreme Court restated in Strickler v.
Greene, “the individual prosecutor has a duty to learn of any
6
United States v. Mahoney, 02-0270/AF
favorable evidence known to others acting on the government’s
behalf in this case, including police.” 527 U.S. 263, 281
(1999)(quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995)). A
command SJA wrote the letter to his superior in the legal chain
of technical supervision, criticizing the Government’s key
witness. The letter had been disseminated widely at the Drug
Testing Laboratory and was the subject of formal training for
“DTL experts.” It had been transmitted to various offices in
the Air Force legal community. The Government’s key witness,
Dr. Mobley, was himself aware of the letter, as he wrote a
rebuttal to it upon receipt. Thus, appropriate Government
inquiry of Dr. Mobley should have led to discovery of the
letter.
“The military, like the Federal and state systems, has
hierarchical sources of rights,” and chief among those sources
is the Constitution of the United States. United States v.
Lopez, 35 M.J. 35, 39 (C.M.A. 1992). In rendering our
decisions, we look to the highest source of authority, “unless a
lower source creates rules that are constitutional and provide
greater rights for the individual.” Id.
The constitutional guarantee of due process requires that
“criminal defendants be afforded a meaningful opportunity to
present a complete defense.” California v. Trombetta, 467 U.S.
479, 485 (1984). Accordingly, the prosecution must disclose to
7
United States v. Mahoney, 02-0270/AF
the defense “evidence favorable to an accused . . . where the
evidence is material either to guilt or to punishment.” Brady,
373 U.S. at 87. “Favorable” evidence under Brady includes
“impeachment evidence . . . that, if disclosed and used
effectively, . . . may make the difference between conviction
and acquittal.” United States v. Bagley, 473 U.S. 667, 676
(1985)(citations omitted). However, like other forms of
exculpatory evidence, impeachment evidence is “material” to
guilt or punishment “only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different.” Id. at 682.
Under the “reasonable probability” standard of materiality,
“[t]he question is not whether the defendant would more likely
than not have received a different verdict with the evidence,
but whether in its absence he received a fair trial.” Kyles,
514 U.S. at 434. Therefore, “[a] ‘reasonable probability’ of
a different result is . . . shown when the government’s
evidentiary suppression ‘undermines confidence in the outcome of
the trial.’” Id. (quoting Bagley, 473 U.S. at 678). Failing to
disclose such evidence is a due process violation “irrespective
of the good faith or bad faith of the prosecution.” Brady, 373
U.S. at 87. This constitutional standard controls our analysis
of Appellant’s case.
8
United States v. Mahoney, 02-0270/AF
In a prosecution for wrongful use of illegal drugs under
Article 112a, “[k]nowledge of the presence of the controlled
substance is a required component of [wrongful] use.” Manual
for Courts-Martial, United States (2002 ed.) Part IV, para.
37.c.(10). If the only evidence of drug use consists of test
results identifying the presence of the drug in the accused’s
body, the government must also introduce expert testimony
interpreting the tests or some other lawful substitute. See
United States v. Ford, 23 M.J. 331 (C.M.A. 1987); United States
v. Murphy, 23 M.J. 310 (C.M.A. 1987); United States v. Harper,
22 M.J. 157 (C.M.A. 1986). Because the expert is not required
to evaluate the specific urinalysis test conducted on the sample
provided by the accused, the government may select any qualified
expert to provide the required testimony. In this case, the
Government chose Dr. Mobley.
Dr. Mobley’s testimony substantiated the urinalysis process
and test results leading to Appellant’s court-martial and
conviction. During the Government’s direct examination, Dr.
Mobley reviewed Appellant’s two litigation packages in great
detail. In so doing, Dr. Mobley legitimized the urine sample’s
chain of custody, described the screening and confirmation
procedures used to detect cocaine metabolites in Appellant’s
sample, and essentially endorsed the positive results of both
the test and retest. Appellant’s defense was to attack the
9
United States v. Mahoney, 02-0270/AF
procedural regularity of the information contained in the
litigation packages -- the very information that Dr. Mobley
substantiated through his testimony. Thus, any evidence calling
into question Dr. Mobley’s credibility would no doubt have been
crucial to this defense.
LtCol Ruppert’s letter questioned Dr. Mobley’s continued
employment by the Air Force, noting Dr. Mobley’s testimony
critical of studies normally relied upon by government experts
testifying in support of the Air Force drug testing program.
This admonition arguably created a significant motive -- the
desire to receive favorable work evaluations and keep his job --
for Dr. Mobley to testify positively about lab procedures and
underlying scientific studies in future courts-martial.2 Cross-
examining Dr. Mobley about the letter may have revealed this
motive, serving to damage Dr. Mobley’s credibility, and thereby
enhance the defense’s case. In short, the letter’s substantial
impeachment value undermines confidence in the trial’s outcome.
See Bagley, 473 U.S. at 682. We therefore hold that the
2
Appellant asserts that the letter eventually was sent to the Drug Testing
Laboratory, where a copy of it was given to Dr. Mobley, attached to a
staffing sheet. While the staffing sheet does not list Dr. Mobley by name as
an addressee, it contains file symbols for nine separate staff agencies
involved in the leadership and supervision of the Drug Testing Laboratory,
and it recites that, as a result of LtCol Ruppert’s complaints, a formal
training session was held for “DTL experts.” It is a fair inference from the
evidence that Dr. Mobley was one of those “DTL experts.” Moreover, the
Government has not challenged Appellant’s assertion that a copy of the letter
was given to Dr. Mobley. In the absence of evidence to the contrary, we
accept Appellant’s assertion as true.
10
United States v. Mahoney, 02-0270/AF
Government’s failure to provide the letter to the defense upon
the initial discovery request was a constitutional due process
violation under Brady. The decision of the United States Air
Force Court of Criminal Appeals is reversed. The findings of
guilty and sentence are set aside. The record of trial is
returned to the Judge Advocate General of the Air Force. A
rehearing may be ordered.3
3
The Appellant’s Petition for New Trial is denied as moot.
11