United States v. Solis

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Senior Airman LUIS A. SOLIS
United States Air Force
ACM S32160
30 July 2015
Sentence adjudged 26 April 2013 by SPCM convened at Shaw
Air Force Base, South Carolina. Military Judge: Lynn Schmidt.1
Approved Sentence: Bad-conduct discharge, confinement for 6 months,
forfeiture of $1000.00 pay per month for 6 months, and reduction to E-1.
Appellate Counsel for the Appellant: Major Jeffrey A. Davis (argued) and
Captain Travis L. Vaughan.
Appellate Counsel for the United States: Captain Richard J. Schrider
(argued); Colonel Katherine E. Oler; Lieutenant Colonel C. Taylor Smith;
and Gerald R. Bruce, Esquire.
Before
ALLRED, HECKER, and MITCHELL
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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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.
HECKER, Senior Judge:
A special court-martial composed of officer members convicted the appellant,
contrary to his pleas, of violating a lawful general order by using spice, distributing
marijuana, wrongfully appropriating military property, and distributing spice, in violation
1
The military judge’s name in this case is now Lynn Watkins due to a change in marital status.
of Articles 92, 112a, 121, and, 134, UCMJ, 10 U.S.C. §§ 892, 912a, 921, 934. The court
sentenced him to a bad-conduct discharge, confinement for 6 months, forfeiture of $1,000
pay per month for six months, and reduction to E-1. The convening authority approved
the sentence as adjudged.
On appeal, the appellant contends the military judge abused her discretion by
(1) denying his motion to suppress a drug test report on confrontation clause grounds,
(2) failing to give a limiting instruction to the panel regarding the use of that report,
(3) denying a defense request to travel its expert witness, (4) denying a defense request
for discovery, and (5) denying a defense challenge for cause against a panel member. We
also address whether the time between docketing with this court and the date of this
opinion amounts to unreasonable post-trial delay that warrants relief.
We heard oral argument2 on the following issue:
Whether the results of scientific testing admitted as a business
record under Military Rule of Evidence 803(6) for the limited
purpose of corroborating an accused’s confession under
Military Rule of Evidence 304(g) must comply with the
confrontation clause requirements applicable to evidence
submitted on the substantive issue of wrongful involvement
with drugs, and, if so, whether the admission of the test
results in this case complied with those requirements.
Finding prejudicial constitutional error, we dismiss Charge I and its three
specifications and Charge IV and its specification. We affirm the remaining charges and
reassess the sentence accordingly.
Background
The appellant became the subject of an investigation by the Air Force Office of
Special Investigations (AFOSI) in December 2012 after another military member
reported the appellant had contacted him to ask about buying marijuana. At the request
of AFOSI, the military member contacted the appellant, and the appellant agreed to sell
marijuana to the informant at an off-base location on 18 December 2012.
AFOSI provided the military member with $60 in marked bills, and he went to the
pre-arranged location. The appellant arrived in his car, walked up to the other military
member’s vehicle, and the two men made the exchange. When the appellant returned to
2
Oral argument in this case was heard at the George Washington University School of Law, in Washington, D.C.,
on 23 February 2015, as part of the court’s Project Outreach. Members of the law school’s Military Law Society
participated in the argument as amici curiae.
2 ACM S32160
his car, he was apprehended by AFOSI agents and law enforcement personnel from the
Sumter County (South Carolina) Sheriff’s Office. The appellant’s civilian roommate was
also in his car. When AFOSI agents searched those present at the scene of the
transaction, the appellant was in possession of the marked bills, and the confidential
informant was in possession of a green leafy substance that field tested positive for
marijuana.
Under rights advisement, the appellant made several admissions about his
involvement with marijuana and the intoxicant “spice.” A search of the appellant’s car
and his residence revealed several containers containing green leafy substances. The
testing of the contents of a container found in his residence was admitted as corroboration
of the appellant’s confession and forms the basis of the appellant’s confrontation clause
issue.
Following a litigated trial, the appellant was convicted of violating a lawful
general order or regulation by using spice on divers occasions between 15 April 2010 and
19 December 2012, and possessing spice on 19 December 2012.3 He was also convicted
of distributing spice on one occasion between 11 April 2011 and 19 December 2012, and
distributing marijuana on divers occasions between 1 October 2012 and 19 December
2012. Lastly, he was convicted of wrongfully appropriating military property,
specifically two government laptops found during the search of his residence.
Results of Testing Admitted at Trial
During a consent search of the appellant’s residence following his apprehension,
agents found a large green plastic bag outside the upstairs bedroom of the appellant’s
roommate (the appellant’s bedroom was downstairs). This bag contained a large amount
of a green leafy substance that an AFOSI agent suspected was spice because it did not
smell or look like marijuana. The bag was labeled “Damiana Leaf,” which an AFOSI
agent testified was an ingredient used in spice.
According to the AFOSI agents who testified at trial, the large bag labeled
“Damiana Leaf” was seized by personnel from the Sumter County Sheriff’s Office, and
its contents were tested in its toxicology laboratory. A photograph of this bag admitted at
trial actually shows an unlabeled small bag of a green material inside the larger bag
which contains the “Damiana” label.
No personnel from Sumter County testified about the seizure or testing of this
material. Instead, the test results were admitted, over defense objection, through a
3
For the uses that allegedly occurred between 15 April 2010 and 10 April 2011, the lawful general order was the
15 April 2010 Air Combat Command General Order prohibiting the use and possession of salvia and spice. For the
possession and the uses that occurred on or after 11 April 2011, the lawful general regulation was Air Force
Instruction 44-121, Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program (11 April 2011).
3 ACM S32160
two-page report signed by a chemist named Joseph Powell. The report (on Sumter
County Sheriff’s Office letterhead) lists the appellant and his roommate by name as
“subjects” in a drug offense case. It states that certain items were received from a named
member of the sheriff’s office on 19 December 2012 and tested the following day:
Item 2A: Plastic bag containing green plant material
Item 2B: Plastic bag inside 2A containing green plant material
Under “results,” the report states:
Item 2A: No prescription or controlled substance found
Item 2B: JWH-250 (1-pentyl-3-(2methoxyphenylacetyl)indole) found C-I
No explanation was provided during the motions session or before the panel regarding
the connection between this result and spice, nor any explanation for the different test
results for the two items.
Included on the report itself is the following language:
This is an official report of the Sumter County Sheriff’s
Office Forensic Services Unit and is to be used in connection
with an official criminal investigation. This report is to be
maintained in the case file.
In an admitted document entitled “certification of records custodian,” Mr. Powell
certified that the report:
[W]as made at or near the time of the occurrence of the
matters set forth by, or from information transmitted by, a
person with knowledge of those matters. . . . [and] that the
[pages of the report] are true and exact copies of documents
maintained in the files of the Sumter County Sheriff’s Office
in accordance with applicable law or regulation and kept in
the course of the regularly conducted business and as a part of
the regularly conducted activities of the Sumter County
Sheriff’s Office.
4 ACM S32160
This language mirrors the requirements in Mil. R. Evid. 902(11) which provides for the
self-authentication of domestic business records through a declaration of a custodian or
qualified witness.4
Admission of Sumter County Sheriff’s Office Report
Prior to trial, the government notified the defense of its intention to offer the
Sumter County report into evidence through the testimony of the chemist who conducted
the testing. After the defense then filed a motion to compel the appointment of a defense
expert, the government responded by removing the chemist from the witness list and
moving to instead admit the report as a business record under the hearsay exception for
records of regularly conducted activity—Mil. R. Evid. 803(6)—without calling an expert
witness or anyone from the Sumter County Sheriff’s Office. Trial counsel acknowledged
that this process would violate the Confrontation Clause if the report was being offered
“on the substantive issue of the presence of drugs.” However, trial counsel contended the
Sixth Amendment5 jurisprudence was inapplicable because the report was being offered
only for the limited purpose of corroborating the appellant’s confession and that our
superior court’s decision in United States v. Grant, 56 M.J. 410 (C.A.A.F. 2002), was
controlling on the interaction between Mil. R. Evid. 803(6) and 304(g).
The military judge denied the appellant’s motion, finding the test results could be
admitted without expert or foundational testimony. Since the government intended to use
this document only to corroborate the confession, she found its admission through this
process did not implicate the appellant’s right to confrontation. Citing to an Army case,
she determined “a statement properly admitted under a hearsay exception may violate
constitutional [confrontation] rights” and still be admissible. She also noted the majority
decision in Crawford v. Washington, states the Confrontation Clause “does not bar the
use of testimonial statements for purposes other than establishing the truth of the matter
asserted.” 541 U.S. 36, 59 n.9 (2004). The military judge then admitted the report as
corroboration over a continuing defense objection, including Mil. R. Evid. 403. She did
not make an express ruling that the statement was admissible as a business record under
Mil. R. Evid. 803(6). The military judge also did not instruct the panel how they were
permitted to use this report in assessing the appellant’s guilt.
4
According to a document which was not given to the members, Mr. Powell is a forensic chemist employed by the
Sumter County Sheriff’s Office to perform testing and analysis on evidence, including controlled substances
prohibited by state law. This same document states he tested the items using the “legally reliable forensic laboratory
procedures approved by the Sumter County Sheriff’s Office,” specifically gas chromatography, mass spectroscopy,
and published literature. This was not admitted into evidence because the military judge sustained a defense
objection based upon “improper bolstering” and “hearsay.” In doing so, she also found the evidence “gets into
testimonial hearsay.”
5
U.S. CONST. amend. VI.
5 ACM S32160
The appellant contends the admission of this report into evidence constituted
prejudicial error. We agree.
Applicability of Confrontation Clause to Evidence that Corroborates a Confession
At the time of the appellant’s court-martial, Mil. R. Evid. 304 read, in relevant
part:
An admission or a confession of the accused may be
considered as evidence against the accused . . . only if
independent evidence . . . has been introduced that
corroborates the essential facts admitted to justify sufficiently
an inference of their truth.
Mil. R. Evid. 304(g) (emphasis added).6
The primary issue in this case is whether the scientific evidence used to
corroborate the appellant’s confession was properly admitted into evidence such that it
could be used for that purpose.
Even though a military judge’s decision to admit evidence is reviewed under an
abuse of discretion standard, United States v. Clayton, 67 M.J. 283, 286 (C.A.A.F. 2009),
the question of whether the admitted evidence violates the Confrontation Clause of the
Sixth Amendment is reviewed de novo. United States v. Blazier, 68 M.J. 439, 442
(C.A.A.F. 2010) [hereinafter Blazier I]. If we find a violation of the Confrontation
Clause, we cannot affirm the conviction unless this court is convinced beyond a
reasonable doubt that the error was harmless. United States v. Rankin, 64 M.J. 348, 353
(C.A.A.F. 2007).
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses against him.” Therefore, “no
testimonial hearsay may be admitted against a criminal defendant unless (1) the witness
is unavailable, and (2) the witness was subject to prior cross-examination.” United States
v. Blazier, 69 M.J. 218, 222 (C.A.A.F. 2010) [hereinafter Blazier II] (citing Crawford,
541 U.S. at 53–54). The Sixth Amendment bars only testimonial statements because
6
Through an executive order signed on 15 May 2013 (three weeks after the appellant’s court-martial), the President
implemented a complete revision of the Military Rules of Evidence. Mil. R. Evid. 304(g) was moved to Mil. R.
Evid. 304(c)(2). The new rule uses the phrase “has been admitted into evidence” instead of the phrase “has been
introduced.” However, this is not a substantive change as there has been a longstanding requirement that the
corroborating evidence be admitted into evidence. See United States v. Duvall, 47 M.J. 189, 191–92
(C.A.A.F. 1997); United States v. Adams, 74 M.J. 137, 139 n.6 (C.A.A.F. 2015) (noting that Mil. R. Evid. 304(c)
remains substantively the same as Mil. R. Evid. 304(g)). Furthermore, the revised rule uses the words “admitted”
and “introduced” interchangeably. Cf. Mil. R. Evid. 304(c)(2) and 304(c)(5).
6 ACM S32160
“[o]nly statements of this sort cause the declarant to be a ‘witness’ within the meaning of
the Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821 (2006).
At trial, the appellant contended his Sixth Amendment right to confrontation
would be violated if the Sumter County laboratory report was admitted without testimony
from laboratory personnel. Trial counsel acknowledged this would be the case if there
waere no confession but successfully argued that our superior court’s decision in Grant,
authorizes the admission of business records without confrontation when the records are
admitted to corroborate a confession.
In Grant, the government attempted to admit a laboratory report for the limited
purpose of corroborating the accused’s confession to ingesting drugs. A doctor at an
overseas base ordered a drug screen analysis as part of his effort to determine why the
accused was unconscious; not realizing the local hospital could not conduct such testing.
Grant, 56 M.J. at 412. Instead, this testing was performed by the epidemiology division
of an Air Force laboratory at a different base, and it revealed the appellant’s urine was
positive for cannabinoids. Because a qualified witness from the local hospital testified
the hospital procured and kept the report in the normal course of its business and relied
upon its accuracy in making treatment decisions for patients, our superior court found the
laboratory report was admissible as a hospital business record despite the lack of
testimony from laboratory personnel. Id. at 414. Thus, the starting point for Grant was
that the report was a properly-admitted business record.7 Id. at 416 n.6 (emphasizing the
case was “about corroborating a confession with a business record”). Here, however, the
laboratory report was not a properly-admitted business record.
“Records of regularly conducted activity” (commonly referred to as “business
records”) which are created by an entity on a consistent and routine basis under methods
and circumstances indicating trustworthiness are not excluded by the hearsay rule
regardless of whether the declarant is available as a witness. Mil. R. Evid. 803(6) defines
those records as:
7
In Grant, the court also rejected the appellant’s assertion that “aside from establishing the report as a business
record, the government was required to put on expert testimony to interpret the results” of the testing for the panel.
56 M.J. 410, 415 (C.A.A.F. 2002). Case law at that time did require the government, when relying on scientific
evidence to prove drug use, to put on expert testimony interpreting the test results in order to “provide a rational
basis upon which the factfinder may draw an inference that [the illegal drug] was used.” Id. citing United States v.
Murphy, 23 M.J. 310, 312 (C.M.A. 1987). The court held, however, that these “additional foundational
requirements” for such a urinalysis test “do[] not change the law of evidence pertaining to the admissibility of a
business record offered to corroborate a confession.” Id. at 416. Accordingly, the military judge did not err when
he did not require the government “to support its offer of the report with expert testimony.” Id. The court reached a
similar conclusion regarding chain of custody evidence. We find that this language about expert testimony and
chain of custody does not trump the confrontation clause requirements described in this opinion.
7 ACM S32160
A memorandum, report, record or data compilation, in
any form, of . . . conditions, opinions, or diagnoses, made at
or near the time by, or from information transmitted by, a
person with knowledge, if kept in the course of a regularly
conducted business activity, and if it was the regular practice
of that business activity to make [said material], unless the
source of the information or the method or circumstances of
preparation indicate a lack of trustworthiness.
Because of the regular and routine circumstances of their creation, such business
records are generally not testimonial and thus can be admitted without confrontation
clause concerns. Crawford, 541 U.S. at 56. Even if a document could qualify as
nonhearsay or for a hearsay exception, however, the document’s admission may violate
the Sixth Amendment’s confrontation requirement if it constitutes testimonial hearsay.
Id. at 61–62. Thus, for a forensic laboratory report to be admitted under Mil. R. Evid.
803(6), it must not include any testimonial statements within it. Although the Supreme
Court’s 2009 decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), became
the definitive case for this proposition, our superior court had already made similar
pronouncements.
In Magyari, the government introduced a laboratory report from the Navy Drug
Screening Laboratory that showed the accused’s urine sample tested positive for
methamphetamine. 63 M.J. 123 (C.A.A.F. 2006). In introducing the evidence, the
government called three chain of custody witnesses and a quality assurance officer from
the laboratory (who was not involved in the testing of the appellant’s sample). On
appeal, the accused argued the statement in the report was inadmissible testimonial
hearsay and could not be used against him at trial. The court rejected the government’s
contention that laboratory reports are “inherently not testimonial because they are
business and public records.” Id. at 127. The court did conclude that this type of
laboratory report can qualify as a business record, based on the language of Mil. R. Evid.
803(6) which implied that such forensic reports are included in the definition of business
records because forensic laboratories are impartial examining centers, and a laboratory
report is a record of “regularly conducted” activity.8 Id. The court explicitly warned,
however, that laboratory results or other types of routine records could be testimonial
when a defendant is already under investigation and the reports are prepared at the behest
of law enforcement in anticipation of a prosecution. Id.
8
“At trial, the Government elicited ample testimony verifying that [the] report was completed in the normal course
of the Navy Drug Screening Laboratory’s business. Further, lab results, DNA analyses, and hospital records, are
oftentimes prepared in the course of routine, ‘regularly conducted’ business.” United States v. Magyari,
63 M.J. 123, 127 (C.A.A.F. 2006).
8 ACM S32160
That situation arose two years later in a case with very similar facts to the instant
case and where the laboratory reports were also admitted to serve as corroboration for a
confession. In United States v. Harcrow, 66 M.J. 154, 158–59 (C.A.A.F. 2008), a
civilian sheriff’s deputy arrested the accused at his home for desertion and unrelated state
charges. During the arrest, deputies seized items of drug paraphernalia and sent them for
analysis by the Virginia Division of Forensic Science, which subsequently issued two
laboratory reports documenting the presence of cocaine and heroin on several of the
items. The primary evidence against the accused at trial was his confession that he had
recently used cocaine and possessed a bag containing cocaine and heroin at his home.
Our superior court found the confrontation clause applied to the laboratory reports which
were admitted to serve as corroboration of that confession.
The court noted that, prior to Crawford, hearsay statements could be admitted if
they carried adequate indicia of reliability and that, at the time of Harcrow’s trial,
forensic laboratory reports were “normally admissible” under Mil. R. Evid. 803(6)
because they generally met the criteria for a business records exception to the hearsay
rule. Harcrow, 66 M.J. at 158. Given the change brought by Crawford and the warning
it had made in Magyari, our superior court had “no difficulty” concluding that laboratory
reports constitute testimonial statements. Id.; see also United States v. Cavitt,
69 M.J. 413, 414 (C.A.A.F. 2011). In Harcrow, the laboratory analysis was conducted at
the behest of a civilian sheriff’s office after arresting the accused for suspected drug use.
The reports pertained to items seized from the accused’s home at the time of the arrest,
and the reports expressly identify the accused as a “suspect.” 66 M.J. at 158. The court
thus concluded the reports were testimonial and were erroneously admitted and could not
be used to corroborate the appellant’s confession. Id. at 159–60.
Our superior court’s analytical framework was solidified the following year by the
Supreme Court’s decision in Melendez-Diaz, 557 U.S. at 305. Although it acknowledged
that documents kept in the regular course of a business may ordinarily be admitted at trial
despite their hearsay status, the Supreme Court continued, “[T]hat is not the case if the
regularly conducted business activity is the production of evidence for use at trial.” Id. at
321. Under those circumstances, when forensic laboratory reports state a suspect
substance was an illegal drug, it is testimonial for Sixth Amendment purposes.
“Analysts’ certificates—like police reports generated by law enforcement officials—do
not qualify as business or public records” if “calculated for use essentially in the court,
not in the business.” Id. at 321–22.; see also Blazier II, 69 M.J. at 226 n.8. The Court
went on to explain the relationship between the business/official records hearsay
exceptions and the Confrontation Clause:
Business and public records are generally admissible absent
confrontation not because they qualify under an exception to
the hearsay rules, but because--having been created for the
administration of an entity’s affairs and not for the purpose of
9 ACM S32160
establishing or proving some fact at trial--they are not
testimonial. Whether or not they qualify as business or
official records, the analysts’ statements here--prepared
specifically for use at petitioner’s trial--were testimony
against petitioner, and the analysts were subject to
confrontation under the Sixth Amendment.
Melendez-Diaz, 557 U.S. at 324.9
Since that time, our superior court has again found the confrontation clause
applicable to laboratory reports offered as corroboration of confessions. In Henderson,
the accused confessed to using cocaine and marijuana, and the government offered two
positive urinalyses as corroboration. The government did not call the individuals who
performed the testing and observed the chain of custody for the appellant’s urine sample,
relying instead on the testimony of an expert forensic toxicologist from that laboratory
who opined the samples analyzed in those exhibits contained the relevant metabolite.
Our sister court had found the appellant waived any confrontation clause objection and,
citing to Grant, held the urinalysis reports were admissible corroborative evidence.
United States v. Henderson, Army 20090613 (Army Ct. Crim. App. 27 May 2011)
(unpub. op.), vacated, 71 M.J. 102 (C.A.A.F. 2012). Our superior court vacated that
decision and remanded it for consideration whether, in light of Bullcoming v.
New Mexico, 131 S. Ct. 2705 (2011), the appellant had been denied meaningful cross
examination of those who performed and observed the testing. United States v.
Henderson, 71 M.J. 102 (C.A.A.F. 2012) (mem). If the confrontation clause did not
apply to evidence submitted solely to corroborate a confession, there would be no need
for such a remand order.10 On remand, the Army Court then applied the confrontation
clause jurisprudence to the urinalysis reports. United States v. Henderson, Army
20090613 (Army Ct. Crim. App. 1 June 2012) (unpub. op.).
Application of Confrontation Clause Jurisprudence to the Sumter County Report
Having found the confrontation clause applies to reports offered by the
government to corroborate a confession, we turn to whether the introduction of the report
in this case violated the appellant’s right to confrontation.
9
Two years later, in Bullcoming v. New Mexico, the Court confirmed the Sixth Amendment’s application to
laboratory reports prepared as part of a criminal investigation. 131 S. Ct. 2705 (2011).
10
Our superior court also recently granted review of a confrontation clause issue in a case where the Army Court of
Criminal Appeals applied the confrontation clause jurisprudence to a urinalysis report and expert testimony used to
corroborate an accused’s confession. United States v. Bennett, Army 20111107 (Army Ct. Crim. App.
28 April 2014) (unpub. op.), review granted, __ M.J. __ No. 14-0658/AR (C.A.A.F. 2 October 2014). The issue
being reviewed is whether an expert was erroneously allowed to repeat testimonial hearsay, denying the accused’s
right to confrontation and, if so, whether the appellant’s confession is adequately corroborated.
10 ACM S32160
An item of evidence is “testimonial” if its “primary purpose . . . is to establish or
prove past events potentially relevant to later criminal prosecution.” Davis, 547 U.S. at
822; accord United States v. Porter, 72 M.J. 335, 337–38 (C.A.A.F. 2013); United States
v. Tearman, 72 M.J. 54, 60 (C.A.A.F. 2013); United States v. Squire, 72 M.J. 285, 290
(C.A.A.F. 2013). An objective test is applied when identifying the primary purpose of
an out-of-court statement. Williams v. Illinois, 132 S. Ct. 2221, 2243 (2012) (plurality
opinion). To assess a statement’s “primary purpose,” we conduct an “objective analysis
of . . . the statements and actions of the parties.” Michigan v. Bryant, 562 U.S. 344, 361
(2011).
“[A] statement is testimonial if ‘made under circumstances which would lead an
objective witness reasonably to believe that the statement would be available for use at a
later trial.’” United States v. Sweeney, 70 M.J. 296, 301 (C.A.A.F. 2011) (quoting
Blazier I, 68 M.J. at 442). “[T]he focus has to be on the purpose of the statements in the
drug testing report itself . . . .” Id. at 302. Even though those performing the testing
“may well be ‘independent scientist[s]’ carrying out ‘non-adversarial public dut[ies],’
that does not mean that their statements are not produced to serve as evidence.” Id.
(quoting Bullcoming, 131 S. Ct. at 2717) (alternations in original). Indicia of formality or
solemnity that would suggest an evidentiary purpose is one factor relevant to whether
statements are testimonial. Tearman, 72 M.J. at 61 (citing Bullcoming, 131 S. Ct. at
2717). Business records are not testimonial when they are “created for the administration
of an entity’s affairs and not for the purpose of establishing or proving some fact at trial.”
Melendez-Diaz, 557 U.S. at 324.
Applying this framework to the Sumter County report, we find the report to be
testimonial and admitted in violation of the confrontation clause. Its primary, if not sole,
purpose was to establish or prove past events for a future criminal prosecution. It was
made under circumstances which would lead an objective witness reasonably to believe
that it was made for use at a later trial. The appellant is listed as the “subject” of the
report, law enforcement officers seized the material and delivered it to a government
laboratory, the chemist performing the testing was employed by a civilian law
enforcement entity, the chemist tested the evidence and prepared a signed report covering
the results of his analysis, and the report itself stated it was to be used in connection with
an official criminal investigation and maintained in that case file. See Sweeney, 70 M.J.
at 302–03 (holding a document created solely for an evidentiary purpose made in aid of a
police investigation is testimonial); Harcrow, 66 M.J. at 159 (rejecting the government’s
argument that laboratory reports will always be nontestimonial and noting that such
records may be testimonial if an investigation is already pending against an individual
and the testing is conducted by the government to discover evidence).
11 ACM S32160
Under these circumstances, this report cannot be admitted as a business record as
was the report in Grant. We find the military judge erred by admitting the Sumter
County report into evidence.11
Prejudice
Having found constitutional error, we assess for prejudice. Confrontation Clause
errors are subject to harmless-error analysis under which the beneficiary of the error must
prove beyond a reasonable doubt that the error did not contribute to the guilty verdict.
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986); Chapman v. California,
386 U.S. 18, 24 (1967). This is a question of law we review de novo. Tearman,
72 M.J. at 62.
The government bears this burden of establishing that the constitutional error
“‘has no causal effect upon the findings.’” Clayton, 67 M.J. at 288 (quoting
United States v. Othuru, 65 M.J. 375, 377 (C.A.A.F. 2007)). To meet this burden, the
government must demonstrate there is no reasonable possibility that the testimonial
hearsay contributed to the contested findings of guilty. Chapman, 386 U.S. at 23;
Tearman, 72 M.J. at 62; Porter, 72 M.J. at 338; Othuru, 65 M.J. at 377.12
When assessing the potential prejudicial impact of a Confrontation Clause
violation, we look at the entire record and assess the context in which the inadmissible
hearsay was admitted, how it was used at trial, and how it compares to any properly
admitted evidence. See Tearman, 72 M.J. at 62; accord United States v. Chaves,
481 F.3d 1274, 1277 (10th Cir. 2007).13 The prejudice depends upon a host of factors,
11
The military judge also referred to testimonial statements being admissible without confrontation if admitted for a
nonhearsay purpose, citing to a footnote in Crawford that states the Confrontation Clause “does not bar the use of
testimonial statements for purposes other than establishing the truth of the matter asserted.” 541 U.S. 36, 59 n.9
(2004). The Supreme Court’s reference to this proposition in Crawford is inapplicable here. As our superior court
emphasized in its recent Adams decision, independent evidence of the confession’s essential “facts” must be
admitted into evidence through corroborative evidence. United States v. Adams, 74 M.J. 137, 140 (C.A.A.F. 2015).
By definition, to be proof of a “fact,” the evidence must be offered for the truth of the matter asserted in the
evidence. See Mil. R. Evid. 401 (stating relevant evidence is evidence that has “any tendency to make the existence
of any fact more probable or less probable than it would be without the evidence”). Here, the results of the scientific
testing were used by the government to prove that spice was found in the appellant’s house and that fact was then
used to corroborate the appellant’s confession to using spice and as substantive evidence that he possessed and used
spice.
12
Our superior court’s decision in Sweeney states the standard is a “reasonable probability” but that appears to be in
error. United States v. Sweeney, 70 M.J. 296, 306 (C.A.A.F. 2011). This reference in Sweeney is found in a citation
to our superior court’s decision in United States v. Blazier, 69 M.J. 218, 222 (C.A.A.F. 2010) [hereinafter Blazier
II], but Blazier II uses the words “reasonable possibility,” using the language found in Chapman v. California,
386 U.S. 18 (1967).
13
In Harcrow, as discussed above, our superior court concluded certain laboratory reports were erroneously
admitted in violation of the Confrontation Clause and therefore could not serve as corroboration of the appellant’s
12 ACM S32160
including the importance of the testimonial hearsay in the prosecution’s case, whether
that hearsay was cumulative with other evidence, the presence or absence of evidence
corroborating or contradicting the material points of the disputed evidence,14 the extent of
confrontation permitted regarding the disputed evidence, and the overall strength of the
prosecution’s case. See Van Arsdall, 475 U.S. at 684; Tearman, 72 M.J. at 62; Sweeney,
70 M.J. at 306.
The government’s evidence relating to spice consisted of the appellant’s
admissions to investigators and evidence found on his person and in his apartment.15
During his lengthy interview with investigators prior to the search of his residence, the
confession, and in doing so, found plain and obvious error. 66 M.J. 154, 160 (C.A.A.F. 2008). The court then
found the admission of the reports was harmless beyond a reasonable doubt and therefore did not violate a
substantial right. Id. at 155. In reaching this conclusion, the court noted the accused’s admissions, rather than the
laboratory reports, served as the primary evidence against him on the drug-related offenses and then assessed
whether the government met its burden of showing the error was harmless beyond a reasonable doubt by evaluating
whether there was sufficient evidence independent of those reports to corroborate the admissions. Id. at 160.
Finding the uncontested testimony of two arresting deputies provided sufficient corroboration of the appellant’s
admission that he used and possessed cocaine and heroin, the court found the government had met its burden of
demonstrating the erroneous admission of the laboratory reports was harmless beyond a reasonable doubt and the
accused had failed to demonstrate that the error materially prejudiced a substantial right. Id. In reaching this
conclusion, the court did not reference the Van Arsdall factors and did not explicitly analyze whether there was a
reasonable possibility the improperly admitted evidence might have contributed to the conviction. See Delaware v.
Van Arsdall, 475 U.S. 673 (1986). Given the lack of any logical explanation as to why that line of harmless error
jurisprudence would not apply in this context, however, we interpret the Harcrow decision as finding (1) the
accused’s admissions were sufficiently corroborated by other evidence in the case and thus were admissible as
evidence against him, and (2) the testimonial hearsay was unimportant in light of those corroborated admissions plus
other admissible evidence considered by the panel. In other words, we find our superior court applied the Van
Arsdall line of cases in finding the error was harmless beyond a reasonable doubt. In reaching this conclusion, we
also assume the panel in Harcrow was properly instructed about how the members could use corroborative evidence
in deciding what weight to give to the appellant’s admissions. That instruction was not given here and the members
were also erroneously instructed on the limited purpose for which it had been admitted.
14
In this case, we do not give the government any benefit relating to this factor. After hearing telephonic testimony
from a defense forensic toxicology expert regarding problems he had discovered with the Sumter County laboratory
and its procedures, the military judge found the government’s pretrial discovery efforts regarding the laboratory
were deficient but then concluded this failure did not disadvantage the defense because the laboratory report was
only being offered as corroboration. She then required the defense to proceed to trial without further discovery. She
also denied a defense request to travel its forensic toxicology expert to testify at trial, concluding he was not
necessary because the government was not calling the chemist as a witness. On appeal, the appellant argues the
military judge abused her discretion in making these rulings. We agree, as these rulings stemmed from the military
judge’s erroneous admission of the laboratory report, as discussed above. Our remedy for these erroneous rulings is
to not weigh this factor in favor of the government since the rulings prevented the defense from contradicting the
material points of the disputed evidence.
15
The appellant concedes that his conviction for wrongfully distributing marijuana on divers occasions between
1 October and 19 December 2012 (the day after the drug bust) was not affected by the admission of the Sumter
County report. To support this specification, the government presented evidence of the appellant’s communications
with the other military members regarding marijuana, the drug transaction he participated in on 18 December 2012,
and the appellant’s admission that he had distributed marijuana on 18 December 2012 and on 10–11 other occasions
since 2008.
13 ACM S32160
appellant first said he recently started smoking spice after being introduced to it by his
roommate. After the agents accused him of lying, the appellant eventually admitted to
smoking spice on numerous occasions since joining the Air Force and to procuring spice
for at least one other military member. He denied ever possessing anything other than
marijuana.16
The government also presented the testimony of two Air Force investigators as
proof of the appellant’s involvement with spice. Through these agents, the following
evidence was adduced before the members:
1. When the appellant was apprehended at the drug bust, he was in possession of a
green leafy substance inside a clear plastic bottle labeled “Legal Devil Potpourri,
not for human consumption.” This substance was never tested. No evidence was
presented about whether it was or appeared to be an illegal substance.
2. During the search of the appellant’s apartment, the agents found a box in the
appellant’s bedroom which contained a small plastic bottle like the one found on
the appellant at the drug bust. The bottle was empty and was labeled “Kush. All
legal.” The agent testified that spice can be packaged in many ways, including in
these types of bottles.
3. The agents also found a green leafy substance on a coffee table in the living
room. One of the agents suspected it was spice. This substance was never tested.
4. A large bag of a green leafy substance was found upstairs outside the room of
the appellant’s roommate (the appellant’s bedroom was downstairs). The bag was
labeled “Damiana Leaf.” An agent testified this was an ingredient used in spice.
The other agent testified that he suspected it was spice because it resembled
marijuana but did not smell like it. A smaller plastic bag was contained within the
larger labeled bag.
The appellant never admitted possessing spice. Outside of the test results, the only
evidence that the appellant possessed spice on 19 December 2012 came from the
testimony of the agents about what they found in the appellant’s apartment, namely a
small amount of green leafy substance found on a coffee table that was never tested but
that an agent suspected was spice, and a bag of a green leafy substance the same agent
suspected was spice but whose label indicated to another agent that it was an ingredient
used in spice. In light of this, there is a definite possibility that the laboratory report
16
During cross-examination of the agents, trial defense counsel raised issues about techniques they used to get the
appellant to confess (which included using a small room, talking about his family, and lying to him), as well as
pointing out significant internal inconsistencies within his oral and written statements.
14 ACM S32160
contributed to the guilty verdict for this specification.17 The report’s definitive
conclusion that spice was found in the appellant’s apartment was vitally important to the
prosecution’s claim the appellant possessed spice.
For the spice use and distribution specifications, the government presented the
additional evidence of the appellant’s admissions that he had distributed spice on one
occasion and used it on multiple occasions during the charged time frames. In his
findings argument, trial counsel told the panel that the evidence of the appellant’s
distribution and use of spice was found in his confession and that the other evidence in
the case demonstrated the credibility and reliability of that confession. Trial counsel’s
argument relied heavily on the results of the laboratory testing as corroborating the
appellant’s statement. For the distribution specification, the only evidence trial counsel
urged the panel to rely on was the confession and the one pound bag allegedly containing
a large amount of spice which he argued made the confession credible.18 Trial counsel
made a similar argument relative to the use specification, while also pointing out the
suspected spice found on the table in the appellant’s apartment, the bottle found on the
appellant after the drug bust, and the similar empty bottle found in his apartment. In his
rebuttal argument, trial counsel again argued that the laboratory report demonstrated the
reliability and believability of the appellant’s confession. Trial counsel’s repeated
reliance on the results of the drug testing report as both direct evidence of the offenses
and as corroborating evidence of the confession demonstrates the importance of this
evidence to the prosecution’s case.
Even if the evidence of the appellant’s admissions and the above evidence about
what was found on his person and in his apartment would be sufficient to uphold the
appellant’s convictions for using and distributing spice, we are required to assess whether
there is a reasonable possibility that the laboratory report might have contributed to the
distribution and use convictions, not whether the evidence was legally sufficient without
the testimonial evidence. See Chapman, 386 U.S. at 23; Tearman, 72 M.J. at 62; Porter,
72 M.J. at 338. After considering the Van Arsdall factors, we conclude the government
has failed to meet its burden to demonstrate there was no reasonable possibility the
erroneously admitted evidence contributed to the verdict. The panel in all likelihood
gave some, if not great, weight to the laboratory report as independent evidence and when
deciding whether to give any weight to the appellant’s admission to using and
distributing spice. Its admission, therefore, was not harmless beyond a reasonable doubt,
and we cannot uphold the findings of guilty to these specifications.
17
As the military judge did not instruct the panel that the report had only been admitted for the limited purpose of
corroborating the appellant’s confession, the panel was able to consider it as substantive proof of the appellant’s
guilt.
18
Notably, the large bag tested negative for any controlled substances. It was the smaller bag inside this large bag
that had a positive result during the Sumter County testing.
15 ACM S32160
In sum, for all specifications relating to spice, we are not convinced beyond a
reasonable doubt that the laboratory report was unimportant in light of everything else the
court members considered on the issue in question. As there is a reasonable possibility
the laboratory report contributed to the verdict, we cannot affirm these convictions
because we are not convinced beyond a reasonable doubt that the error “was not a factor
in obtaining that conviction.” Othuru, 65 M.J. at 377 (quoting United States v. Kreutzer,
61 M.J. 293, 299 (C.A.A.F. 2005)). Therefore, we set aside and dismiss Charge I and its
three specifications, and Charge IV and its specification.
Sentence Reassessment
Having set aside a finding of guilty to two charges and their specifications, we
must now “determine what sentence the court-martial would probably have adjudged if
the error had not been committed at trial.” United States v. Davis, 48 M.J. 494, 495
(C.A.A.F. 1998). Our superior court has held that a court of criminal appeals can
reassess a sentence to cure the effect of prejudicial error where that court can be
confident “that, absent any error, the sentence adjudged would have been of at least a
certain severity.” United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986). This court has
“broad discretion” when reassessing sentences. United States v. Winckelmann, 73 M.J.
11, 12 (C.A.A.F. 2013).
In determining whether to reassess a sentence or order a rehearing, we consider the
totality of the circumstances with the following as illustrative factors: (1) dramatic
changes in the penalty landscape and exposure, (2) the forum, (3) whether the remaining
offenses capture the gravamen of the criminal conduct, (4) whether significant or
aggravating circumstances remain admissible and relevant, and (5) whether the remaining
offenses are the type with which we as appellate judges have the experience and
familiarity to reliably determine what sentence would have been imposed at trial.
Winckelmann, 73 M.J. at 15–16. We find we are able to reassess the sentence on the
basis of the error noted and do so after conducting a thorough analysis of the record in
accordance with the principles articulated by our superior court. Because there are
factors favoring both sides in this case, we set out our rationale in some detail below.
Although we have set aside all the spice offenses, the appellant remains convicted
of wrongfully distributing marijuana on multiple occasions and wrongfully appropriating
military property. The penalty landscape is not significantly different because the
remaining offenses still reach the statutory maximum for a special court-martial. We
recognize the appellant chose to be sentenced by members, which generally weighs in
favor of remanding a case for a rehearing on sentence. See Winckelmann, 73 M.J. at 16
(observing “judges of the courts of criminal appeals are more likely to be certain of what
a military judge would have done as opposed to members”). The remaining marijuana
offense captures the gravamen of the appellant’s criminal conduct—being involved with
illegal drugs and involving others (including military members) in that activity by
16 ACM S32160
distributing to them. Furthermore, the offenses of which the appellant remains convicted
are those with which we are experienced and familiar in determining sentence
appropriateness, and our combined experience provides a substantial basis to judge how
members tend to treat such offenses.
Under the totality of the circumstances, we are confident that we can reliably
determine the members would have imposed no less than a reduction to E-1, confinement
for 3 months, and a bad-conduct discharge.
Challenge for Cause
The appellant argues the military judge erroneously denied a challenge for cause
against Lieutenant Colonel (Lt Col) JJ for implied bias because he had regular contact
with members of the legal office based on his role as a commander on base. During voir
dire, Lt Col JJ indicated he had received this legal advice from one of the two trial
counsel in the case, including as recently as a week before the appellant’s trial. Lt Col JJ
also described a situation involving an Airman in his squadron who had used spice.
Rule for Courts-Martial (R.C.M.) 912(f)(1)(N) provides that a member shall be
excused for cause whenever it appears that the member “[s]hould not sit as a member in
the interest of having the court-martial free from substantial doubt as to legality, fairness,
and impartiality.” “This rule encompasses challenges based upon both actual and implied
bias.” United States v. Elfayoumi, 66 M.J. 354, 356 (C.A.A.F. 2008) (citing
United States v. Clay, 64 M.J. 274, 276 (C.A.A.F. 2007)).
The test for assessing an R.C.M. 912(f)(1)(N) challenge for implied bias is
“objective, viewed through the eyes of the public, focusing on the appearance of
fairness.” United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010) (quoting
Clay, 64 M.J. at 276) (internal quotation marks omitted). “The hypothetical ‘public’ is
assumed to be familiar with the military justice system.” Id. (citing United States v.
Downing, 56 M.J. 419, 423 (C.A.A.F. 2002)). We review issues of implied bias “under a
standard less deferential than abuse of discretion but more deferential than de novo.”
United States v. Strand, 59 M.J. 455, 458 (C.A.A.F. 2004) (quoting United States v.
Miles, 58 M.J. 192, 195 (C.A.A.F. 2003)) (internal quotation marks omitted). “[M]ilitary
judges must follow the liberal-grant mandate in ruling on challenges for cause, but we
will not overturn the military judge’s determination not to grant a challenge except for a
clear abuse of discretion in applying the liberal-grant mandate.” United States v. White,
36 M.J. 284, 287 (C.M.A. 1993). “The liberal grant mandate recognizes the unique
nature of military courts-martial panels, particularly that those bodies are detailed by
convening authorities and that the accused has only one peremptory challenge.”
United States v. Moreno, 63 M.J. 129, 134 (C.A.A.F. 2006) (citing United States v.
James, 61 M.J. 132, 139 (C.A.A.F. 2005)).
17 ACM S32160
The military judge did not abuse her discretion in denying the challenge for cause
against Lt Col JJ. In response to questioning, Lt Col JJ fully explained his professional
dealings with the legal office and the case of the Airman in his squadron. He also
understood the government’s obligation regarding the burden of proof in the case and
stated that he did not believe confinement or a punitive discharge was required if the
appellant was convicted. The military judge observed Lt Col JJ’s demeanor when
answering the individual questions and considered both actual bias and implied bias with
the liberal grant mandate. We find no error in the military judge’s denial of the challenge
for cause against Lt Col JJ.
Appellate Review Time Standards
In a supplemental assignment of error filed in April 2015, the appellant argues,
citing Moreno, 63 M.J. at 135, that the unreasonable post-trial delay from the date the
case was docketed with this court in July 2013 until this opinion warrants relief. The
appellant further cites United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), noting this
court’s responsibility to affirm only those findings and sentence that should be approved.
We review de novo whether an appellant has been denied the due process right to
speedy post-trial review and whether any constitutional error is harmless beyond a
reasonable doubt. United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006). A
presumption of unreasonable delay arises when appellate review is not completed and a
decision is not rendered within 18 months of docketing the case before this court.
Moreno, 63 M.J. at 142. The Moreno standards continue to apply as a case continues
through the appellate process; however, the Moreno standard is not violated when each
period of time used for the resolution of legal issues between this court and our superior
court is within the 18-month standard. United States v. Mackie, 72 M.J. 135–36
(C.A.A.F. 2013); see also United States v. Roach, 69 M.J. 17, 22 (C.A.A.F. 2010).
If the Moreno standards are violated, the delay is presumptively unreasonable and
triggers an analysis of the four factors elucidated in Barker v. Wingo, 407 U.S. 514
(1972), and Moreno. See United States v. Arriaga, 70 M.J. 51, 55 (C.A.A.F. 2011).
Those factors are “(1) the length of the delay; (2) the reasons for the delay; (3) whether
the appellant made a demand for a speedy trial; and (4) prejudice to the appellant.”
United States v. Mizgala, 61 M.J. 122, 129 (C.A.A.F. 2005); see also Barker, 507 U.S. at
530; United States v. Morita, 73 M.J. 548, 567 (A.F. Ct. Crim. App. 2013).
The time between docketing with this court and our initial decision was facially
unreasonable, triggering analysis according to the Barker factors. When we assume error
but are able to directly conclude that any error was harmless beyond a reasonable doubt,
we do not need to engage in a separate analysis of each factor. See Allison, 63 M.J. at
370. This approach is appropriate in the appellant’s case. The post-trial record contains
no evidence that the delay has had any negative impact on the appellant. Even the “stress
18 ACM S32160
and anxiety” argued by the appellant is minimal in its impact and no more than any other
appellant waiting appellate review. We recognize that our decision today grants the
appellant some relief by setting aside and dismissing three specifications, but there is no
reason to believe the appellant was prejudiced in any way by waiting for this relief.
Furthermore, when there is no showing of prejudice under the fourth factor, “we
will find a due process violation only when, in balancing the other three factors, the delay
is so egregious that tolerating it would adversely affect the public’s perception of the
fairness and integrity of the military justice system.” United States v. Toohey,
63 M.J. 353, 362 (C.A.A.F. 2006). Having considered the totality of the circumstances
and the entire record, when we balance the other three factors, we find the post-trial delay
in this case not to be so egregious as to adversely affect the public’s perception of
fairness and integrity of the military justice system. We are convinced the error is
harmless beyond a reasonable doubt.
Article 66(c), UCMJ, 10 U.S.C. § 866(c), empowers appellate courts to grant
sentence relief for excessive post-trial delay without the showing of actual prejudice
required by Article 59(a), UCMJ, 10 U.S.C. § 859(a). Tardif, 57 M.J. at 224; see also
United States v. Harvey, 64 M.J. 13, 24 (C.A.A.F. 2006). In United States v. Gay,
__ M.J. __, ACM 38525 (A.F. Ct. Crim. App. 12 June 2015), we identified a list of
factors to consider in evaluating whether Article 66(c), UCMJ, relief should be granted
for post-trial delay. Those factors include how long the delay exceeded appellate review
standards, the reasons for the delay, whether the government acted with bad faith or gross
indifference, evidence of institutional neglect, harm to the appellant or to the institution,
whether relief is consistent with the goals of both justice and good order and discipline,
and whether this court can provide any meaningful relief. Id., slip op. at 11. No single
factor is dispositive, and we may consider other factors as appropriate. Id., slip op. at 12.
We have the authority to tailor an appropriate remedy without giving the appellant a
windfall. See Tardif, 57 M.J. at 225.
After considering the relevant factors in this case, we determine that no additional
relief is warranted. We acknowledge that the time between docketing and issuing this
opinion exceeded established standards. However, even analyzing the entire period from
the time the case was first docketed in late July 2013 until today, we find there was no
bad faith or gross negligence in the post-trial processing. The record of trial is
5 volumes, including a 586 page transcript. The appellant’s assignment of errors was
filed in February 2014, and a reply brief in March 2014, well after he was released from
confinement from his adjudged sentence. After conducting its review in advance of the
18-month Moreno standard, this court ordered oral argument on an issue not fully
addressed by the parties’ briefs. After that argument was held in February 2015, this
court continued its review of this complex case, to include incorporating recently issued
decisions by our superior court. We find no evidence of harm to the integrity of the
military justice system by allowing the full appellate review of this issue. Based on our
19 ACM S32160
review of the entire record, setting aside any of the remaining portions of the appellant’s
sentence would be an intolerable windfall. We conclude that additional sentence relief
under Article 66, UCMJ, is not warranted.
Conclusion
Charge I and its three specifications and Charge IV and its specification are set
aside and dismissed. We affirm the remaining findings. We reassess the sentence to
reduction to E-1, confinement for 3 months, and a bad-conduct discharge.
The approved findings, as modified, and sentence, as reassessed, are correct in law
and fact, and no error materially prejudicial to the substantial rights of the appellant
remains. Articles 59(a) and 66(c), UCMJ. Accordingly, the findings, as modified, and
the sentence, as reassessed, are AFFIRMED.
FOR THE COURT
LEAH M. CALAHAN
Deputy Clerk of the Court
20 ACM S32160