United States v. Gonzalez

UNITED STATES, Appellee
v.
Hector R. GONZALEZ Jr., Airman First Class
U.S. Air Force, Appellant
No. 03-0394
Crim. App. No. 34691
United States Court of Appeals for the Armed Forces
Argued October 19, 2005
Decided February 1, 2006
ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and CRAWFORD, EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant: Captain John N. Page III (argued); Colonel
Carlos L. McDade, Colonel Beverly B. Knott, Major Terry L.
McElyea, Major Sandra K. Whittington, and Captain Jennifer K.
Martwick (on brief).
For Appellee: Major Jin-Hwa L. Frazier (argued); Lieutenant
Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer, and
Major John C. Johnson (on brief); Captain Matthew J. Mulbarger.
Military Judge: Kirk R. Granier
This opinion is subject to revision before final publication.
United States v. Gonzalez Jr., No. 03-0394/AF
Judge ERDMANN delivered the opinion of the court.
Airman First Class Hector Gonzalez pled guilty to wrongful
possession of marijuana in violation of Article 112a, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 912a (2000).
Gonzalez pled not guilty to wrongful use of ecstasy and carrying
a concealed weapon in violation of Articles 112a and 134 of the
UCMJ, respectively. 10 U.S.C. §§ 912a, 934 (2000). He was
convicted on all of the charges and sentenced to a bad-conduct
discharge, 148 days of confinement, forfeiture of all pay and
allowances and a reduction in grade to E-1. The convening
authority approved the sentence and the findings and sentence
were affirmed by the United States Air Force Court of Criminal
Appeals in an unpublished opinion. United States v. Gonzalez,
No. ACM 34691, 2003 CCA LEXIS 57, 2003 WL 827254 (A.F. Ct. Crim.
App. Feb. 28, 2003). On appeal, this court set aside the Air
Force court’s decision and remanded for reconsideration of a
specified issue. United States v. Gonzalez, 59 M.J. 159(C.A.A.F. 2003). Following the Air Force court’s ruling on
remand, United States v. Gonzalez, No. ACM 34691, 2004 CCA LEXIS
198, 2004 WL 1944723 (A.F. Ct. Crim. App. Aug. 17, 2004), this
court again granted review.
Where the Government fails to disclose discoverable
material pursuant to a specific request, “the appellant will be
entitled to relief unless the Government can show that
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nondisclosure was harmless beyond a reasonable doubt.” United
States v. Roberts, 59 M.J. 323, 327 (C.A.A.F. 2004). We have
previously held that the Government’s failure to turn over a
Brooks Laboratory Discrepancy Report was error under Rule for
Courts-Martial (R.C.M.) 701(a)(2)(B). United States v. Jackson,
59 M.J. 330, 335 (C.A.A.F. 2004). We have also held that the
Government’s failure to turn over the Discrepancy Report is to
be treated as prejudicial error where the other available
evidence does not constitute “independent evidence of illegal
drug use.” Id. Where there is sufficient independent evidence
of illegal drug use, the Government’s error may be treated as
harmless. We granted review in this case to determine if there
was sufficient independent evidence that Gonzalez had wrongfully
used ecstasy. We also considered whether defense counsel was
ineffective in failing to discover that that the Discrepancy
Report was not provided.1 We find that the Government’s failure
to turn over the report was erroneous, but that the error was
1
We granted review of the following issues:
WHETHER BRADY v. MARYLAND, 373 U.S. 83 (1963), AND R.C.M.
701 REQUIRED THE GOVERNMENT TO DISCLOSE EVIDENCE REGARDING
AN AUGUST 2000 BROOKS LAB ANALYTICAL FALSE POSITIVE
URINALYSIS RESULT AND PREJUDICIALLY ERRED IN FAILING TO DO
SO.
WHETHER THE COURT OF CRIMINAL APPEALS ERRED ON REMAND WHEN
IT FOUND NO INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE
DEFENSE COUNSEL FAILED TO DISCOVER EXCULPATORY EVIDENCE
REGARDING AN AUGUST 2000 BROOKS LAB ANALYTICAL FALSE
POSITIVE URINALYSIS RESULT.
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harmless beyond a reasonable doubt. We also find that that
Gonzalez was not denied effective assistance of counsel.
BACKGROUND
Agents from the Air Force Office of Special Investigations
(OSI) called Gonzalez into their office for questioning after a
pacifier believed to belong to Gonzalez was found at the Central
Quarters (CQ) desk in Gonzalez’s dormitory. The Military
Training Leader who found the pacifier knew that Gonzalez had no
children and that pacifiers are considered drug paraphernalia
associated with ecstasy use. During the OSI interview Gonzalez
admitted to sucking on the pacifier found at the CQ desk and
attending at least one “rave” party. He claimed that he
innocently ingested ecstasy at that rave and he expressed
familiarity with the effects of ecstasy. Gonzalez consented to
a search of his dormitory room, his car and a rental car. The
search uncovered two more pacifiers and more than a dozen fliers
advertising raves.
Gonzalez also consented to a urinalysis, which was positive
for ecstasy,2 and the observer from his drug test testified that
Gonzalez behaved oddly during the test, stating that he was
“excited” and “talkative” and that “his eyes were a little
2
There was testimony at trial that the metabolites found in
Gonzalez’s urine could not have been the result of the alleged
innocent ingestion incident, which had allegedly occurred
sixteen days earlier.
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glassy.” Several months later, Gonzalez’s car was searched as
he tried to enter Sheppard Air Force Base because Security
Forces had reason to believe that Gonzalez had stolen a gun.
The search turned up a weapon, as well as a baggie of marijuana.
Gonzalez’s urine sample was tested by the Air Force Drug
Testing Laboratory at Brooks Air Force Base in early September
2000. Aware that the Government would rely heavily on the
results of his drug test, Gonzalez made several discovery
requests for background information relevant to the drug-testing
program at the Brooks Lab. He asked for reports created at or
written about the Brooks Lab, particularly those concerning
inspections, “false positives” and “false negatives”,
contamination, misplacement and mishandling of samples, and any
testing, processing or administrative errors. He also asked for
reports written in the month Gonzalez’s sample was tested as
well as several preceding and following months.
In response the Government produced quality assurance
monthly inspection reports for June through October 2000. The
Government also produced five months of quality control monthly
reports, including a report dated August 10, 2000, which
included the annotations “BQC Unacceptable – 1,” and “Technician
Error – 1”. The Government also produced fourteen discrepancy
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reports, including five from August 2000 and one from September
2000.3
The Government did not, however, produce an August 2, 2000
Discrepancy Report, which explained that on July 31, 2000 the
lab had improperly identified a negative “blind quality control”
specimen as positive for cocaine metabolites. That report also
explained that no conclusion could be drawn about what caused
the false positive result and that all lab personnel were
encouraged to “pay closer attention” to their tasks. The false
positive quality control sample was processed by the lab one
month before Gonzalez’s sample was tested and at least one of
the employees who handled the misidentified quality control
sample also handled Gonzalez’s sample.
It is of some significance that the Discrepancy Report
which was not produced was the only one that described a false
positive result. The others produced by the Government
concerned ten incidents where the intralaboratory chain of
custody was broken –- including several instances of employees
forgetting to properly sign or annotate the chain of custody
sheet, one where a chemist failed to perform an “in-run prime”
3
A discrepancy report is generated any time the Quality
Assurance section of the Brooks Lab determines that there was
some deviation from standard procedures or some problem with a
quality control sample. The report identifies each individual
who handled the specimen in question, reaches a conclusion about
the cause and impact of the error and makes a recommendation
about how similar problems can be avoided in the future.
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when restarting the equipment after a mechanical failure, one
instance of unacceptable chromatography, and two incidents of
improperly performed extractions.
At trial, Lieutenant Colonel Dale Haak, an Army Drug
Testing Program Manager and expert in forensic toxicology and
biochemistry, testified concerning the results of Gonzalez’s
drug test, as well as the Brooks Lab quality control procedures.
He testified about the difference between internal and external,
and open and blind quality controls. He testified that Brooks
Lab has never misanalyzed an external quality control sample and
that there was no error with regard to the controls run in the
same batch as Gonzalez’s sample. On cross-examination, however,
Haak testified that internal blind quality control samples come
back with incorrect results approximately two percent of the
time.
DISCUSSION
I. Failure to Produce August 2 Discrepancy Report
Rule for Courts-Martial 701 (a)(2)(B) requires the
Government, upon request, to turn over “results or reports . . .
of scientific tests or experiments” that are “material to the
preparation of the defense.” When a defendant makes a specific
request for discoverable information, it is error if the
Government does not provide the requested information, and “the
appellant will be entitled to relief unless the Government can
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show that nondisclosure was harmless beyond a reasonable doubt.”
Roberts, 59 M.J. at 327. Harmless beyond a reasonable doubt is
a high standard, but it is not an impossible standard for the
Government to meet. See Neder v. United States, 527 U.S. 1, 18
(1999) (“To set a barrier so high that it could never be
surmounted would justify the very criticism that spawned the
harmless-error doctrine in the first place: ‘Reversal for error,
regardless of its effect on the judgment, encourages litigants
to abuse the judicial process and bestirs the public to ridicule
it.’”) (quoting R. Traynor, The Riddle of Harmless Error 50
(1970)); United States v. Vazquez-Rivera, 407 F.3d 476, 489-90
(1st Cir. 2005) (describing harmless beyond a reasonable doubt
as “an extremely difficult, but not impossible, standard to
meet”). We have previously held that the Government’s failure
to turn over the August 2 Discrepancy Report should be treated
as prejudicial error where the other available evidence does not
constitute “independent evidence of illegal drug use.” Jackson,
59 M.J. at 335.
There is no dispute in this case that Gonzalez made a
specific request for documents concerning the operations and
accuracy of the Brooks Lab. It is equally clear that the
Government did not produce the August 2 Discrepancy Report. The
Government’s failure to provide the Discrepancy Report violated
Gonzalez’s right to discovery under R.C.M. 701(a)(2)(B).
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Jackson, 59 M.J. at 335. Thus, there was error and the burden
is on the Government to show that it was harmless beyond a
reasonable doubt.
With respect to prejudice, this case differs from our prior
cases due to the level and character of the independent evidence
of illegal drug use. See Jackson, 59 M.J. at 335; see also
United States v. Israel, 60 M.J. 485, 486 (C.A.A.F. 2005). In
addition to the positive drug test, the prosecution introduced
independent evidence of drug use including evidence that
Gonzalez had drug paraphernalia associated with ecstasy both in
his car and at his work station, and that he had sucked on at
least one of the pacifiers.4 Gonzalez also admitted that he
attended at least one rave party and had fliers for thirteen
rave parties in his car. Although drug use is not a necessary
element of a rave, the two are often linked.5
4
Pacifiers are linked to ecstasy because they alleviate the
involuntary tightening of the jaw muscles and grinding of the
teeth that can be caused by ecstasy use. See McClure v.
Ashcroft, 335 F.3d 404, 407 (5th Cir. 2003).
5
Merriam-Webster’s Collegiate Dictionary defines a rave as “a
large overnight dance party featuring techno music and usu[ally]
involving the taking of mind-altering drugs.” Merriam-Webster’s
Collegiate Dictionary 1033 (11th ed. 2004); see also Nat’l Drug
Intelligence Center, U.S. Dep’t of Justice, Information
Bulletin: Raves, Prod. No. 2001-L0424-004 (Apr. 2001),
available at
http://www.prevlink.org/clearinghouse/catalog/drugs/club_drugs/r
aves.pdf (last visited Feb. 1, 2006) (“While techno music and
light shows are essential to raves, drugs such as MDMA . . .
[ecstasy], ketamine, GHB . . . , Rohypnol, and LSD . . . , have
become an integral component of the rave culture.”); United
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Gonzalez also admitted to prior drug use and to possession.
He told investigators that he innocently ingested ecstasy at a
rave he attended and testified that he was familiar with its
effects. The observer at Gonzalez’s drug test testified that he
behaved oddly during the test and that he was “excited” and
“talkative” and that “his eyes were a little glassy.”
Additionally, Gonzalez pled guilty to possessing marijuana.
We have taken into account the available independent
evidence that Gonzalez used ecstasy and weighed that evidence
against the claimed error. Although the missing Discrepancy
Report may have raised some questions about the accuracy of the
testing process at the Brooks Lab, we also considered that
Gonzalez’s urine sample was subjected to four different tests,
each of which showed positive for ecstasy use. When the missing
report is balanced with the evidence arrayed against Gonzalez,
the scales tip strongly in favor of Gonzalez’s conviction.
Thus, we conclude that the Government’s error in failing to
produce the Discrepancy Report was harmless beyond a reasonable
doubt.
States v. Price, No. ACM 33503, 2001 CCA LEXIS 103, at *10, 2001
WL 322121, at *3 (A.F. Ct. Crim. App. Mar. 30, 2001) (defining a
rave as “a dance or music party at which drugs are known to be
readily available”); People v. Fitzner, No. 233210, 2002 Mich.
App. LEXIS 1885, at *1 n.2 2002 WL 31947943, at *1 n.2 (Mich.
Ct. App. Dec. 3, 2002) (“a ‘rave’ party is marked by dancing,
music and drugs, often in an abandoned warehouse and typically
‘after hours’”).
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Our finding of harmlessness is further supported by
testimony elicited at trial concerning internal blind quality
control error rates at the Brooks Lab. Although the August 2
Discrepancy Report was not produced, defense counsel had
sufficient information to attack the reliability of the
laboratory testing process. During the cross-examination of
Haak, defense counsel elicited testimony that approximately two
percent of internal blind aliquots are reported as false
positives or with other incorrect results. Thus, while the
Government’s failure to produce the Discrepancy Report remains
error, the evidence the defense would have introduced if it had
the Discrepancy Report would have been to some degree cumulative
of the overall false positive rate already in evidence. In
addition, Gonzalez was tried by a military judge sitting alone.
The expert testimony provided by Haak was of a type that is
regularly considered by military judges. Accordingly, it is
unlikely that the missing Discrepancy Report would have had a
substantial impact on the military judge’s ruling in light of
the four different positive test results that were also in
evidence.
II. Ineffective Assistance of Counsel
Servicemembers are guaranteed the right to effective
assistance of counsel at trials by court-martial. United States
v. Davis, 60 M.J. 469, 473 (C.A.A.F. 2005) (citing United States
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v. Knight, 53 M.J. 340, 342 (C.A.A.F. 2000)). Gonzalez alleges
that he received ineffective assistance of counsel because his
counsel failed to determine, based on the documents produced by
the Government, that the August 2 Discrepancy Report existed and
had not been produced.
Under Strickland v. Washington, 466 U.S. 668, 687 (1984),
Gonzalez must show both that his counsel’s performance was
deficient and that the deficiencies were so serious as to
deprive him of a fair trial. An appellant “who seeks to
relitigate a trial by claiming ineffective assistance of counsel
must surmount a very high hurdle.” United States v. Saintaude,
61 M.J. 175, 179 (C.A.A.F. 2005) (quoting United States v.
Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997) (quotation marks
omitted)). There is a presumption that counsel provided
adequate professional service. United States v. Garcia, 59 M.J.
447, 450 (C.A.A.F. 2004). This presumption is rebutted only by
“a showing of specific errors made by defense counsel that were
unreasonable under prevailing professional norms.” Davis, 60
M.J. at 473 (citing United States v. McConnell, 55 M.J. 479, 482
(C.A.A.F. 2001)). In addition, even where counsel made an
error, the error must have been so prejudicial “as to indicate a
denial of a fair trial or a trial whose result is unreliable.”
Davis, 60 M.J. at 473 (citing United States v. Dewrell, 55 M.J.
131, 133 (C.A.A.F. 2001)). As we have previously explained,
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this court applies a three-prong test to determine if the
presumption of competence has been overcome:
(1) Are the allegations true; if so, “is there a
reasonable explanation for counsel’s actions?”;
(2) If the allegations are true, did defense counsel’s
level of advocacy fall “measurably below the
performance . . . [ordinarily expected] of fallible
lawyers?”; and
(3) If defense counsel was ineffective, is there a
“reasonable probability that, absent the errors,”
there would have been a different result?
Garcia, 59 M.J. at 450 (citing United States v. Grigoruk, 56
M.J. 304, 307 (C.A.A.F. 2002)). Where the case can be resolved
by addressing the third prong -- the question of prejudice --
first, the court need not determine whether counsel’s
performance was deficient. United States v. Quick, 59 M.J. 383,
386 (C.A.A.F. 2004) (citing Strickland, 46 U.S. at 697).
Applying the Grigoruk three-prong test, we find that
Gonzalez did not receive ineffective assistance of counsel
because there is no reasonable probability that the missing
Discrepancy Report would have produced a different result. As
we noted above, there was enough independent evidence that
Gonzalez used ecstasy that the Government’s failure to turn over
the report was harmless error. For the same reasons, we cannot
say that if defense counsel had read all of the materials that
were produced, drawn all reasonable inferences and conclusions
from the materials and made further inquiry into the meaning of
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the notations “BQC Unacceptable – 1” and “Technician Error – 1,”
any additional documents that might have been produced by the
Government would have changed the outcome of this case,
especially in light of the fact that it was a bench trial. As
Gonzalez has not established that his counsel’s performance
prejudiced the outcome of his case, he has not established that
his Sixth Amendment right to counsel was violated.
DECISION
The decision of the Court of Criminal Appeals for the
United States Air Force is affirmed.
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