United States v. Green

IN THE CASE OF

UNITED STATES, Appellee

v.

Nolan P. GREEN, Sergeant
U.S. Marine Corps, Appellant

No. 00-0268
Crim. App. No. 99-0162

United States Court of Appeals for the Armed Forces

Argued October 3, 2000

Decided June 11, 2001

EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and BAKER, J., joined. SULLIVAN, J., filed an
opinion concurring in part and in the result. GIERKE, J., filed
a dissenting opinion.

Counsel

For Appellant: Lieutenant M. Eric Eversole, JAGC, USNR (argued).

For Appellee: Lieutenant William C. Minick, JAGC, USNR (argued);
Lieutenant Colonel Marc W. Fisher, Jr., USMC, and Lieutenant Commander
Philip L. Sundel, JAGC, USNR (on brief); Colonel Kevin M. Sandkuhler,
USMC, and Commander Eugene E. Irvin, JAGC, USN.

Military Judges: R.E. Nunley and T.J. Hamilton

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Green, No. 00-0268/MC

Judge EFFRON delivered the opinion of the Court.

A special court-martial composed of a military judge

sitting alone convicted appellant, contrary to his pleas, of one

specification of unauthorized absence and two specifications of

wrongful use of cocaine, in violation of Articles 86 and 112a,

Uniform Code of Military Justice, 10 USC §§ 886 and 912a,

respectively. He was sentenced to a bad-conduct discharge,

confinement for 68 days, and reduction to the lowest enlisted

grade. The convening authority approved these results. In an

unpublished opinion, the Court of Criminal Appeals modified the

findings, reassessed the sentence, and affirmed only the bad-

conduct discharge and reduction to the lowest enlisted grade.1

On appellant’s petition, we agreed to review whether the

evidence of appellant's positive urinalysis provided a legally

sufficient basis to sustain his conviction for wrongful use of

cocaine.2 For the reasons set forth below, we affirm.

1
The court dismissed one of the specifications of wrongful use of cocaine on
the ground of factual insufficiency and affirmed the remaining findings of
guilty. The dismissed specification was based upon a urinalysis sample that
is not at issue in the present appeal.
2
We granted review of the following issues assigned by appellant:

I. WHETHER THE LOWER COURT ERRED BY IGNORING THIS
COURT'S DECISION IN UNITED STATES V. CAMPBELL, 50 MJ
154 (1999), AS BINDING PRECEDENT.

II. WHETHER APPELLANT'S CONVICTION FOR WRONGFUL USE
OF COCAINE WAS FACTUALLY AND LEGALLY INSUFFICIENT
BECAUSE THE PROSECUTION FAILED TO ESTABLISH THE

2
United States v. Green, No. 00-0268/MC

I. FACTUAL BACKGROUND

Upon returning from a lengthy period of leave, appellant

provided a urine sample for a command-directed urinalysis, the

results of which were positive for the cocaine metabolite

benzoylecgonine (BZE). At trial, the Government introduced

evidence concerning the urinalysis. The evidence, which

consisted of a laboratory report and testimony of a witness from

the laboratory who appeared "as an expert in the field of

forensic chemistry," was admitted with no defense objection.

The report reflected the chain of custody of the urinalysis

sample and the positive result of the urinalysis.

The expert witness, a senior chemist at the Navy Drug

Screening Laboratory in Jacksonville, Florida, described the

laboratory's procedures and explained the results of the

urinalysis. The witness testified that there had been three

tests of appellant's sample. First, an immunoassay test was

used to screen samples for seven different kinds of drugs. When

this yielded a positive result for BZE, a second or "rescreen"

test was performed, which also yielded a positive result. The

PREDICATE FACTS NECESSARY TO SUSTAIN A PERMISSIVE
INFERENCE.

III. WHETHER THE LOWER COURT'S DECISION TO AFFIRM
APPELLANT'S CONVICTION FOR WRONGFUL USE OF COCAINE,
WITHOUT EXPERT TESTIMONY CONCERNING THE PHYSIOLOGICAL
EFFECTS, VIOLATED THE DUE PROCESS CLAUSE.

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United States v. Green, No. 00-0268/MC

laboratory then conducted a third test, known as a "confirmation

test," using gas chromatography/mass spectrometry (GC/MS)

technology, which the witness described as "a very sophisticated

state-of-the-art test that does give you a specific

identification of a specimen." The witness testified that the

GC/MS analysis of appellant's sample revealed 213 nanograms per

milliliter (ng/ml) of BZE in appellant's urine. The laboratory

report noted that the reading of 213 ng/ml of BZE in appellant's

urine was "an amount greater than the DoD [Department of

Defense] GC-MS cut-off standard of 100 ng/ml."

The expert witness also stated:

The only way a person can produce a urine
sample that has Benzoylecgonine is for
cocaine to pass through the body. In order
for that person to produce that urine
sample, that person would have to use the
cocaine.

When trial counsel asked whether a positive result might occur

"from the use of any medications, prescription medications," the

witness replied:

To my knowledge, cocaine is not used as a
prescription drug. I don't even believe it
is used in the surgical setting. It used to
be used years ago. There will be no other
drugs that could cause a positive result for
cocaine. It has to be cocaine itself. To
my knowledge, the only place you can get it
now is pretty much on the street
clandestinely.

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United States v. Green, No. 00-0268/MC

On cross-examination, the expert witness acknowledged that

BZE could be detected through urinalysis if someone put cocaine

into the sample directly, outside the body. Additionally, he

testified that a reading of 213 ng/ml is "on the low end of

positive results." He added: "A lot of times we see samples of

100,000 nanograms or higher."

Although appellant did not testify, he offered a defense

based on his good military character through the testimony of

other witnesses. His primary contention was that it would have

been illogical for a person of appellant's character and

experience to have used cocaine. The defense also raised

questions about the chain of custody, a matter not at issue in

the present appeal, to suggest that the urine that had tested

positive for BZE belonged to someone other than appellant. He

did not affirmatively claim innocent or unknowing ingestion.

II. DISCUSSION

To obtain a conviction under Article 112a for wrongful use of a

controlled substance, the prosecution must prove:

(a) That the accused used a controlled
substance; and

(b) That the use by the accused was
wrongful.

Para. 37b(2), Part IV, Manual for Courts-Martial, United States (2000

ed.). The Manual also provides:

5
United States v. Green, No. 00-0268/MC

Knowledge of the presence of the controlled
substance is a required component of
[wrongful] use. Knowledge of the presence
of the controlled substance may be inferred
from the presence of the controlled
substance in the accused's body or from
other circumstantial evidence. This
permissive inference may be legally
sufficient to satisfy the government's
burden of proof as to knowledge.

Para. 37c(10), Part IV; see also Analysis of Punitive Articles,

Manual, supra at A23-12, citing United States v. Mance, 26 MJ

244 (CMA 1988); United States v. Ford, 23 MJ 331 (CMA 1987); and

United States v. Harper, 22 MJ 157 (CMA 1986).

The "wrongful" element in Article 112a, which has been the

source of extensive interpretative litigation, represents the

considered judgment of Congress as to the nature of the offense.

Because the statute does not have the clarity of a bright line

rule, compare, e.g., Art. 111(2), UCMJ, 10 USC § 911(2) (making

it an offense to drive with a blood alcohol level of "0.10

grams"), there has been significant litigation concerning its

meaning. Harper and its progeny reflect the challenge of

interpreting the statute in a manner that appropriately balances

disciplinary considerations, the rights of servicemembers, and

evolving legal standards concerning admissibility of expert

evidence.

Appellant contends that the evidence in his case was

insufficient to prove wrongful use, citing our opinion in United

6
United States v. Green, No. 00-0268/MC

States v. Campbell, 50 MJ 154 (1999), supplemented on

reconsideration, 52 MJ 386 (2000). The accused in Campbell was

charged with wrongful use of LSD based solely upon a positive

urinalysis that employed a novel scientific procedure. At

trial, defense counsel moved to exclude evidence of the

urinalysis and the supporting expert testimony on the grounds

that the test at issue did not meet the standards of reliability

required by Mil. R. Evid. 702, Manual, supra, and applicable

case law. The motion was denied by the military judge, and the

accused was convicted on the basis of the urinalysis results and

related testimony.

On appeal, we determined that the military judge erred in

admitting the LSD test results, in view of “the absence of

evidence establishing the frequency of error and the margin of

error in the testing process” with respect to the novel

scientific procedure. 52 MJ at 388. The identification of

deficiencies in the reliability of the test rendered the

urinalysis evidence inadmissible and, in the absence of other

evidence, resulted in reversal of the case due to insufficient

evidence. This aspect of the opinion underscored the importance

of a careful inquiry into the reliability of novel scientific

evidence.

After addressing the issue necessary to resolve the case,

our opinion in Campbell ventured beyond the issue of reliability

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United States v. Green, No. 00-0268/MC

of the methodology in an effort to provide additional guidance

concerning proof in urinalysis cases. In that context, we

described a three-part approach to consideration of urinalysis

results. Id. In our opinion upon reconsideration, we

emphasized that the three-part approach did not establish a

mandatory standard. Id. We noted that other evidence

explaining the test results could be admissible if it met

applicable reliability and relevance standards for scientific

and specialized knowledge with respect to providing a rational

basis for inferring knowing, wrongful use. Id. at 388-89.

The court below in the present case, and in the later

cases certified to us by the Judge Advocate General,

conscientiously endeavored to apply the broad guidance we

fashioned in Campbell. See, e.g., United States v. Barnes, 53

MJ 624 (N.M.Ct.Crim.App. 2000), set aside, ___ MJ ___ (Daily

Journal June 11, 2001). Our consideration of the decisions of

the lower courts, however, has led to further questions

concerning matters such as the relationship between

admissibility of novel scientific evidence and sufficiency of

proof on the merits; consideration of the permissive inference

of knowing use with respect to admissibility of novel scientific

evidence; the role of judicial notice; and the effect of waiver

or forfeiture. These questions indicate that we should give

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United States v. Green, No. 00-0268/MC

fresh attention in the present case to the applicable principles

governing litigation of urinalysis cases.

Under our case law, where scientific evidence provides the

sole basis to prove the wrongful use of a controlled substance,

"[e]xpert testimony interpreting the tests or some other lawful

substitute in the record is required to provide a rational basis

upon which the factfinder may draw an inference that [the

controlled substance] was [wrongfully] used." United States v.

Murphy, 23 MJ 310, 312 (CMA 1987). The admissibility of such

evidence is subject to applicable rules governing opinions and

expert testimony. See, e.g., Mil. R. Evid. 702; United States

v. Bush, 47 MJ 305 (1997); see also Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993) (scientific

testimony must be both reliable and relevant); General Electric

Co. v. Joiner, 522 U.S. 136, 144-45 (1997) (an expert's opinions

must be “sufficiently supported” by the “studies on which they

purport[] to rely”); Kumho Tire Co., Ltd. v. Carmichael, 526

U.S. 137, 153-55 (1999) (admissibility depends not only on the

general reasonableness of an expert's approach but also on the

particular matter to which the expert's testimony was directly

relevant).

The military judge has broad discretion as the "gatekeeper"

to determine whether the party offering expert testimony has

established an adequate foundation with respect to reliability

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United States v. Green, No. 00-0268/MC

and relevance. See id. at 142; Bush, supra at 310. The military

judge, as gatekeeper, may determine in "appropriate

circumstances" that the test results, as explained by the expert

testimony, permit consideration of the permissive inference that

presence of the controlled substance demonstrates knowledge and

wrongful use. See Mance, 26 MJ at 256. In making this

determination, the military judge may consider factors such as

whether the evidence reasonably discounts the likelihood of

unknowing ingestion, or that a human being at some time would

have experienced the physical and psychological effects of the

drug, but these factors are not mandatory. Compare, e.g.,

Harper, 22 MJ at 157, and Ford, 23 MJ at 331, with United States

v. Thompson, 34 MJ 287 (CMA 1992).

In the context of the permissive inference, the military

judge has discretion to determine the issue of admissibility by

considering whether: (1) the metabolite is naturally produced by

the body or any substance other than the drug in question; (2)

the permissive inference of knowing use is appropriate in light

of the cutoff level, the reported concentration, and other

appropriate factors; and (3) the testing methodology is reliable

in terms of detecting the presence and quantifying the

concentration of the drug or metabolite in the sample. We

emphasize, however, that this three-part approach is not

exclusive, and the military judge as gatekeeper may consider

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United States v. Green, No. 00-0268/MC

other factors, so long as they meet applicable standards for

determining the admissibility of scientific evidence.3 Given the

unique aspects of drug prosecutions in the armed forces and the

serious consequences of a positive urinalysis, the military

judge must ensure a careful and thorough Daubert-type analysis

in such cases. See, e.g., United States v. Bush, 44 MJ 646,

649-52 (A.F.Ct.Crim.App. 1996), aff'd, 47 MJ 305 (1997)

(describing the detailed inquiry conducted by the military judge

prior to admitting evidence of novel scientific evidence testing

the presence of cocaine through hair analysis).4

When the military judge is considering evidence of a test

that does not involve a novel scientific procedure, different

considerations apply. If the expert testimony has "an

established scientific, technical, legal, judicial, or

evidentiary foundation" regarding reliability and relevance, it

may be appropriate to take judicial notice under Mil. R. Evid.

3
Judge Sullivan seeks greater clarity on this important subject. As noted
earlier, however, Congress has not employed a bright line rule. In view of
the emphasis in this opinion on the broad discretion of the military judge as
to matters that may be considered in his or her gatekeeper role in assessing
the relationship between expert testimony and the presumption of knowing use,
this opinion does not adopt the interpretative gloss suggested in Judge
Sullivan's separate opinion.
4
Judge Gierke contends that this opinion transforms Article 112a into an
“absolute-liability offense,” permits a conviction based upon “the mere
presence of a drug metabolite in the body,” ___ MJ at (1), and transforms
the Daubert-type analysis. ___ MJ at (5). The present opinion does not adopt
such a position. What the military judge must determine is whether the
expert’s testimony supports the matter to which it is relevant; that is, does
the expert’s testimony permit reliance on a permissive inference of knowing
use. See Kumho Tire, supra at 153-58.

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United States v. Green, No. 00-0268/MC

201 without further litigation. See Stephen A. Saltzburg, et

al., Military Rules of Evidence Manual 841 (4th ed. 1997).

Moreover, if a party fails to challenge the admissibility of

expert testimony, the issue may be treated as waived, absent

plain error. Mil. R. Evid. 103(a)(1) and (d); see Saltzburg, et

al., supra at 840-41.

If the military judge determines that the scientific

evidence -- whether novel or established -- is admissible, the

prosecution may rely on the permissive inference during its case

on the merits. A urinalysis properly admitted under the

standards applicable to scientific evidence, when accompanied by

expert testimony providing the interpretation required by

Murphy, supra, provides a legally sufficient basis upon which to

draw the permissive inference of knowing, wrongful use, without

testimony on the merits concerning physiological effects. See

United States v. Bond, 46 MJ 86, 89 (1997). To the extent that

the prosecution, as a matter of trial tactics, includes in its

case on the merits other evidence, such as testimony concerning

physiological effects, it is the responsibility of the

factfinder to determine what weight should be given to such

evidence. Id. at 89-90.

In contrast to the accused in Campbell, appellant did not

move at trial to exclude the test results or the expert

testimony. This evidence, as summarized in Part I, supra, is

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United States v. Green, No. 00-0268/MC

sufficient to support the permissive inference of knowing,

wrongful use. Any objection appellant may have had was

forfeited, and there was no error -- much less plain error -- in

admitting the evidence. The weight of any evidence introduced

on the merits by the defense at trial was a matter for

consideration by the factfinder –- here, the military judge –-

on the question of factual sufficiency, and it did not affect

the legal sufficiency of the conviction based upon the

permissive inference of knowing, wrongful use.

III. CONCLUSION

The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.

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United States v. Green, 00-0268/MC

SULLIVAN, Judge (concurring in part and in the result):

In Belfast, during the height of the “troubles” (the

seemingly never-ending struggle between the Protestants and the

Catholics in Northern Ireland), there was a popular saying:

Anyone who isn’t confused here really
doesn’t understand what is going on.

I have sensed similar confusion in our case law concerning

urinalysis test results and, perhaps, so has the Judge Advocate

General of the Navy who recently certified no less than seven
1
drug cases to this court on this specific issue.

The Confusion Over Campbell

This Court’s more recent case law in the area of drug testing

in the military has caused this confusion. I speak primarily of

the twin Campbell opinions: United States v. Campbell, 50 MJ 154

(1999) (“Campbell I”), and United States v. Campbell, 52 MJ 386

(2000) (“Campbell II”). Hopefully, this confusion will end

because, in the instant case, our Court now recognizes the

problem. Although I still believe the Campbell decisions were

wrongly decided, I join the majority’s “fresh attention” to the

“applicable principles governing litigation of urinalysis cases.”

1
United States v. Barnes, United States v. Magyari, United
States v. Mahoney, United States v. Shelhart, and United States
v. Powe, 54 MJ 225-26 (2000); United States v. Sterne, 54 MJ 233
(2000); United States v. Ryan, 54 MJ 332 (2000). The Court of
Criminal Appeals reversed drug convictions in all these cases on
the basis of legal insufficiency of urinalysis evidence, citing
the Campbell decisions.
United States v. Green, 00-0268/MC

___ MJ at (9). In particular, I agree with the majority’s

express limitation of the twin Campbell decisions to the question

of the admission of novel scientific evidence of urinalysis

proferred by the Government to show drug use. See United States

v. Bush, 47 MJ 305 (1997); United States v. Youngberg, 43 MJ 379

(1995); United States v. Nimmer, 43 MJ 252 (1995). I also agree

with its holding in this case that there is no mandatory

foundational requirement for the admission of urinalysis evidence

(old or new) that the Government show a certain nanogram count

rules out innocent ingestion and that the Government must

establish that a normal person would have experienced the

physical and psychological effects of the drug.

Appellant’s case is but one example of the Campbell

confusion. In the instant case, the appellate court below

effectively ignored the majority decision in Campbell I on the

basis that a motion for reconsideration was pending and affirmed

this conviction using the cases cited in my dissent in Campbell

I. See Green, unpub. op. at 2; 50 MJ at 162; see also United

States v. Pugh, No. 9600811 (Army Ct. Crim. App. Dec. 8, 1998)

(unpub. op.). Another example is United States v. Tanner, 53 MJ

778 (A.F. Ct. Crim. App. 2000), where the lower appellate court

purported to follow Campbell I but still affirmed a drug

conviction. There is also United States v. Barnes, 53 MJ 624

(N.M. Ct. Crim. App. 2000), set aside, ___ MJ ___ (Daily Journal

June 11, 2001), and the cases cited in note 1, supra, where the

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United States v. Green, 00-0268/MC

lower appellate court reversed drug convictions using the

majority opinions of the twin Campbells.

Although it is my earnest hope that today’s decision will

make clear the law pertaining to drug test results, it is

important to understand the root of the Campbell confusion. In

my view, the confusion started in the portion of Campbell I which

required the Government to meet a three-part standard of proof

for “legal sufficiency,” which included evidence

that the [drug] cutoff level and reported
concentration are high enough to
reasonably discount the possibility of
unknowing ingestion and to indicate a
reasonable likelihood that the user at
some time would have “experienced the
physical and psychological effects of the
drug[.]”

50 MJ at 160. To this deviation from our case law, I dissented.

The majority, however, refused to even acknowledge this holding

was a departure from our case law. 50 MJ at 162.

Then came Campbell II. Campbell II was an opinion of our

Court in response to the Government’s motion to reconsider

Campbell I. Campbell II, however, added a lack of clarity to the

existing confusion by its apparent backing-off from the three-
2
part standard of Campbell I. It stated:

2
Campbell II also held that proof that “human beings as a
class” experienced the physical and psychological effects of the
drugs was legally sufficient (unlike Campbell I, which required
proof concerning the effects experienced by the accused person

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United States v. Green, 00-0268/MC

The petition for reconsideration raises
the issue of whether the three-part
standard is mandatory in all drug testing
cases. Given the rapid pace of
technological change, we note that the
three-part standard does not necessarily
constitute the only means of proving
knowing use. If the test results,
standing alone, do not provide a rational
basis for inferring knowing use, then the
prosecution must produce other direct or
circumstantial evidence of knowing use in
order to meet it burden of proof.

52 MJ at 388 (emphasis added).

In my view, the problem of clarity in Campbell II seems

rooted, in part, in the guidance noted above. To me, this

guidance is unclear. When does a litigant (either the

prosecution or the accused) know that in their case “the test

results, standing alone, do not provide a rational basis for

inferring knowing use?” Prosecutions and defenses of felony drug

cases should be built on firmer and clearer guidance. Without

such guidance, the law could be applied unequally (unfortunately,

this may have already happened--as I shall suggest below).

As stated before, I am pleased that the majority opinion

today takes the opportunity to substantially correct the

confusion previously caused by the twin Campbells. It makes

clear that the twin Campbells are only applying the three-part

standard (or a legally equivalent alternative) to matters

who actually took the test). 52 MJ at 389. I address the
propriety of this proof requirement later in this opinion.

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United States v. Green, 00-0268/MC

3
concerning admissibility of novel scientific evidence.

Moreover, it makes clear that proof ruling out innocent ingestion

or establishing that a normal user would have felt the effects of

the drug is not required, even for admission of novel scientific

evidence. See United States v. Bush, supra, United States v.

Youngberg, supra, and United States v. Nimmer, supra.

As I mentioned above and as a final point to illustrate the

impact of the Campbell-confusion issue, I wish to compare the

present case of Sergeant Green with the case of Lance Corporal

Warren T. Collins. United States v. Collins, No. 99-1217 (N.M.

Ct. Crim. App. July 28, 2000) (unpub. op.), pet. denied, 54 MJ

430 (2001). Both are Marines. Both trials were at Marine bases

in North Carolina at approximately the same time (Green was

sentenced in December 1997 and Collins was sentenced in July

1998). Both were convicted of using cocaine based on urinalysis

tests at the same testing site in Jacksonville, Florida. (Green

lab result was 213 nanograms per milliliter of BZE (the

metabolite for cocaine) and Collins lab result was 561 nanograms

per milliliter). The lab test procedure was the same for both

Green and Collins (radioimmunoassay analysis (“RIA”) followed by

a gas chromatography - mass spectrometry (“GCMS”) test). Both

Green and Collins went AWOL (absent without leave) weeks after

3
It is interesting to note that the phrase “admissibility of
novel scientific evidence” is not to be found in either of the
twin Campbell opinions, but the phrase “legal sufficiency” is.
52 MJ at 388; 50 MJ at 160-61. (See note 1, supra).

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United States v. Green, 00-0268/MC

their drug tests. Both had their convictions reviewed by the

same Court of Criminal Appeals. There, the similarities end.

Green today has his drug conviction affirmed, and forever he

will have the record of a federal felony drug conviction.

Collins, on the other hand, had his drug conviction reversed by

the Court of Criminal Appeals and does not have a federal drug

record. Two completely different results from the same Court of

Criminal Appeals. Why? The answer is Campbell. As the Court of

Criminal Appeals said in Collins:

The recent decision of our superior court
in Campbell significantly modified the
conditions under which the Government may
rely upon this permissive inference [the
inference of knowing use].

Although Campbell dealt with lysergic
acid diethylamide and the reliability of
the testing methodology employed in that
case, we do not believe that Campbell can
be limited to its facts . . . . Campbell,
however, provides that the “prosecution
cannot rely solely on the presence in the
body of the drug or its constituent
elements.” Campbell, 50 MJ at 160 (1999).
. . .

* * *

In the appellant’s case, the Government
adequately established that BZE does not
naturally occur in the human body, and
that the result of the urine test was
reliable. We find, however, that the
testimony of LT Taylor [the lab expert]
did not establish that the cutoff level
and the appellant’s nanogram level was
sufficient to discount unknowing use and
to indicate that the appellant experienced
the physical and psychological effects of

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United States v. Green, 00-0268/MC

the drug. Additionally, no other evidence
presented was sufficient to permit the
prosecution to rely upon the inference.
See Campbell, 52 MJ at 388-89. Since the
prosecution is not entitled to rely upon
the presumption of knowing use in this
case, and since it did not present any
other direct or circumstantial evidence of
knowing use, we find that the evidence is
legally insufficient to prove the first
element of the offense. See United States
v. Barnes, 53 MJ 624 (N.M. Ct. Crim. App.
2000).

Unpub. op. at 3-4 (emphasis added).

Since Collins was a drug conviction reversal which was never

appealed to our Court by the Government in the certification

process, Collins now stands acquitted of drug use. Yet Green has

a federal felony drug conviction on his record. To me, it seems

unfair that Green and Collins are treated differently under the

law.

Harper, Ford, and the Twin Campbells

For almost fifteen years, our military justice system has

operated on the presumption that United States v. Harper, 22 MJ

157 (CMA 1986), and United States v. Ford, 23 MJ 331 (CMA 1987),

are good law. These cases recognize that urinalysis evidence may

be admitted at court-martial but require its reliability to be

shown to the factfinder in each case in order to legally sustain

a criminal conviction. See United States v. Murphy, 23 MJ 310

(CMA 1987); cf. Skinner v. Railway Labor Executives’ Ass’n, 489

U.S. 602, 632-33 (1989) (Supreme Court approval of urinalysis

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United States v. Green, 00-0268/MC

evidence in administrative proceedings). In my view, these

decisions are still good law, and under the doctrine of stare

decisis, they deserve great weight today. See United States v.

Tualla, 52 MJ 228, 231 (2000).

I have been concerned that the twin Campbell decisions have

raised questions concerning the meaning and correctness of those

decisions, which have greatly upset the practice of military law.

More importantly, Campbell I and II called into question the

validity of hundreds of thousands of urinalysis tests and

thousands of prosecutions based on the reported results of those

tests. Today, the majority’s “fresh attention” to the Campbell

decisions, both restricting and modifying their holdings with

respect to the admission of “novel scientific evidence,”

alleviates my concern. __ MJ at (8). Nevertheless, I write to

make clear my views in this area of the law.

First, United States v. Harper, supra, did not establish an

inflexible evidentiary-sufficiency rule for all urinalysis cases.

See United States v. Boulden, 29 MJ 44, 47 (CMA 1989). It

evaluated and approved the particular evidence presented in

Harper, i.e., evidence raising a permissive inference of

wrongfulness recognized in military law and additional expert

testimony that a particular nanogram count ruled out passive

inhalation and indicated that the user at some time experienced

physical and psychological effects of the drug. United States v.

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United States v. Green, 00-0268/MC

Harper, supra at 163. In United States v. Ford, supra at 336-37,

however, this Court further addressed the legal sufficiency of

proof based on the permissive inference alone, i.e., without

additional expert testimony on the nanogram count and its bearing

on passive inhalation or the experience of physical and

psychological effects of the drug. See generally United States

v. Van Horn, 26 MJ 434, 437 (CMA 1988) (expert testimony relating

nanogram count to the degree of certainty that drug in urine);

cf. United States v. Harper, supra (expert testimony relating

nanogram count to the probability that user felt physical or

psychological effects of drug).

Second, this Court approved the more limited type of proof in

Ford and has done so repeatedly in subsequent cases. In United

States v. Campbell, 50 MJ at 162 (Sullivan, J., dissenting), I

said:

In reality, therefore, the majority
makes new law in this case and, in the
process, raises serious questions about
military drug prosecutions based on our
past cases. Harper was the first word,
not the last word or the only word, on the
subject of sufficiency of evidence in
urinalysis cases. See United States v.
Bond, 46 MJ 86 (1997); United States v.
Pabon, supra; United States v Thompson, 34
MJ 287 (CMA 1992); United States v.
Boulden, supra; United States v. Ford, 23
MJ 331 (CMA 1987). Moreover, the
majority’s new approach to drug
prosecutions goes far beyond the rules for
proving drug cases now provided by the
President in the Manual for Courts-

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United States v. Green, 00-0268/MC

Martial, United States (1998 ed.). See
para. 37(c), Part IV. I must dissent.

In short, contrary to Campbell I and II, this Court has never

required the Government (for evidentiary sufficiency purposes or

for evidentiary admissibility purposes) to introduce evidence

that a certain nanogram count discounted innocent ingestion and

indicated that the accused, or a user in general, would have

experienced the physical or psychological effects of the drug.

See United States v. Pabon, 42 MJ 404, 406-07 (1995); cf. United

States v. Hunt, 33 MJ 345, 347 (CMA 1991) (legal insufficiency

found because no testing data whatsoever or expert testimony

explaining it admitted). Accordingly, I applaud the majority’s

ending of this confusion and its rejection of an evidentiary

sufficiency approach to Campbell I and Campbell II. I also join

its adoption of a more flexible approach to the admission of

urinalysis evidence, even in cases involving novel scientific

evidence. See United States v. Bush, supra, United States v.

Youngberg, supra, and United States v. Nimmer, supra; see

generally Paul Giannelli and Edward Imwinkelried, Scientific

Evidence: The Fallout from Supreme Court’s Decision in Kumho

Tires, 14 Criminal Justice (ABA Winter 2000).

Put simply, the Government is not required to disprove

innocent ingestion or show that a particular accused in a drug

case felt the physical and psychological effects of the drug he

was accused of taking, or that a user in general would have felt

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United States v. Green, 00-0268/MC

such effects. It is unclear whether the state of the art in drug

testing would permit these requirements to be met in many cases.

The Decision in This Case

For me, this case is a simple one to decide using our

existing case law (minus the twin Campbells). The record shows

that the drug conviction at issue in this case was supported by

proper expert testimony concerning the test results on a urine

sample using RIA (R. 102-03) and GCMS analysis. (R. 104) Our

Court has approved the admission and legal sufficiency of such

evidence in United States v. Harper, supra, and more recently in

United States v. Bond, 46 MJ 86, 89 (1997). I agree with the

majority today that this evidence was admissible and legally

sufficient to prove beyond a reasonable doubt that appellant

wrongly used cocaine. See United States v. Ford, supra.

Therefore, I vote to affirm the conviction in this case.

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United States v. Green, No. 00-0268/MC

GIERKE, Judge (dissenting):

En route to affirming the decision below in this case, the

majority has offended the Due Process Clause of the Constitution,

transformed Article 112a into an absolute-liability offense, and

modified the test for admissibility of scientific evidence. I

believe that the mere presence of a drug metabolite in the body,

standing alone, is insufficient to overcome the presumption of

innocence. United States v. Bond, 46 MJ 86, 92 (1997) (Gierke,

J., dissenting); see United States v. Harper, 22 MJ 157, 163-64

(CMA 1986).

“An inference is ‘irrational’ or ‘arbitrary’ and thus

violates due process ‘unless it can at least be said with

substantial assurance’ that the inferred fact is ‘more likely

than not to flow from the proved fact on which it is made to

depend.’” Bond, supra, quoting Barnes v. United States, 412 U.S.

837, 842 (1973). Furthermore, “[i]f the permissive inference is

the only proof of guilt, then it must meet a higher standard than

‘more likely than not’; it must flow from the proved fact beyond

a reasonable doubt.” Id., citing Turner v. United States, 396

U.S. 398 (1970), and E. Imwinkelried, P. Giannelli, F. Gilligan,

and F. Lederer, Courtroom Criminal Evidence § 2920 at 975 (2d ed.

1993); see State v. Flinchpaugh, 659 P.2d 208, 212 (Kan. 1983)

(discovery of drug in person’s blood insufficient to prove

knowing possession).
United States v. Green, No. 00-0268/MC

The majority opinion permits the trier of fact to infer drug

use from the presence of the metabolite in the body, and then to

use the same evidence to infer knowing use, without any other

evidence from which knowing use may be inferred. Proof of the

first element of the offense, i.e., use, automatically proves the

second element, i.e., wrongfulness.

The majority asserts that it is not creating an absolute

liability offense. ___ MJ at (11 n.4). It recognizes that

Congress did not intend Article 112a to create an absolute-

liability offense. However, when a court-martial may convict an

accused based solely on the presence of a metabolite in the body,

we have created an absolute-liability offense, no matter how we

rationalize it or what we call it.

In Harper, supra, this Court held that a reliable urinalysis

supplemented by expert testimony that the metabolite was not

naturally produced by the body was sufficient to permit an

inference of use. This Court declined, however, to hold that the

results of a urinalysis test, standing alone, were sufficient to

prove wrongful use.

In United States v. Ford, 23 MJ 331, 336-37 (CMA 1987), this

Court specifically addressed, for the first time, the

“constitutional sufficiency” of the permissive inference of

wrongfulness. This Court concluded that it “comports with due

process,” because of the limited access to drugs in the armed

forces, which greatly reduces the probability of innocent

ingestion; the fact that servicemembers are on notice to avoid

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United States v. Green, No. 00-0268/MC

any and all contact with drugs, “which further reduces the

possibility of innocent ingestion;” the fact that “the

physiological effects from the internal presence of the drug in

the body might serve to alert the user to the presence of a

controlled substance in his system;” and the fact that a person

“generally knows what he consumes.” Based on these premises for

the permissive inference, this Court concluded that there was “no

constitutional violation” in a conviction based on the inference

of wrongfulness, even if the accused presents evidence to the

contrary. Ford cites Harper with approval in several places (23

MJ at 332, 333, 336, and 337), strongly indicating that this

Court intended Ford to be consistent with Harper, and not to

overrule it or erode it in any way.

In Bond, supra, this Court deviated from the Harper-Ford

approach and upheld a conviction based solely on the permissive

inference of knowledge, even though the factual predicate for the

inference that had been set out in Ford was missing.

Accordingly, I dissented.

In Campbell I, 50 MJ 154 (1999), and Campbell II, 52 MJ 386

(2000), this Court returned to the Harper-Ford analysis. The

majority now attempts to recast Campbell I and Campbell II as

decisions based on admissibility of novel scientific evidence,

instead of decisions based on sufficiency of the evidence.

Unfortunately, the language of the decisions belies the

majority’s attempt. While the granted issue in Campbell I was

the admissibility of evidence obtained through a novel testing

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United States v. Green, No. 00-0268/MC

procedure, this Court declined to address the granted issue.

Instead, it decided the case on the basis of two issues specified

by the Court, both involving sufficiency of the evidence. 50 MJ

161-62. Similarly, Campbell II was not decided on the basis of

admissibility of the evidence, but on the legal insufficiency of

the evidence. In Campbell II, we said:

In the present case, the deficiency was the absence of
evidence establishing the frequency of error and margin
of error in the testing process. Lacking such evidence,
we held that the prosecution did not reliably establish
that appellant’s urine sample tested at or above the
Department of Defense cut-off level and did not
reasonably exclude the possibility of unknowing
ingestion. Since the prosecution did not present any
other direct or circumstantial evidence of knowing use,
we held the evidence was legally insufficient to prove
this element of the offense.

52 MJ at 388 (emphasis added).

Furthermore, even if we decided this case solely on the basis

of the admissibility of the urinalysis test results, I would be

unable to join the majority. The majority expands the holding in

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993), to require the military judge to assess, as a condition

precedent to admissibility, whether the urinalysis test results

support the inference of “knowing use.” __ MJ at (11 n.4). By

requiring the military judge to determine, as a condition

precedent to admissibility, that the expert testimony tend to

prove “knowing use,” the majority requires that the expert

testimony tend to prove both elements of the offense: (1) use;

and (2) wrongfulness, of which knowledge is a component. See

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United States v. Green, No. 00-0268/MC

paras. 37b(2)(a) and (b) and para. 37b(5), Part IV, Manual,

supra.

In my view, Daubert established standards for determining the

reliability of scientific evidence. It did not establish

standards for overcoming the presumption of innocence, nor did it

establish a requirement that scientific evidence tend to prove

all elements of an offense as a condition of admissibility. To

be admissible, a reliable drug test need only “assist the trier

of fact to understand the evidence or to determine a fact in

issue.” Mil. R. Evid. 702, Manual for Courts-Martial, United

States (2000 ed.); Daubert, supra at 591. It need not, as the

majority requires, tend to prove both elements of the offense.

The majority’s decision goes far beyond what Daubert requires.

This Court decided long ago in Harper that a reliable

urinalysis test is relevant to prove use, because use may be

inferred from the presence of a drug metabolite in the body. The

majority now requires that, in order to be relevant, the

urinalysis test must not only support an inference of use, it

must also support an inference of knowing use.

In my view, a reliable urinalysis test is relevant under

Daubert to prove use of drugs. However, it does not prove

knowing use unless it is supplemented by expert testimony or

other evidence showing knowing use, or at least permitting

knowledge to be rationally inferred. See United States v.

Murphy, 23 MJ 310, 312 (CMA 1987). In Campbell II, this Court

held, “If the test results, standing alone, do not provide a

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United States v. Green, No. 00-0268/MC

rational basis for inferring knowing use, then the prosecution

must produce other direct or circumstantial evidence of knowing

use in order to meet its burden of proof.” 52 MJ at 388.

In the case before us, I consider it significant that the

Government has failed to present any evidence to support its

argument that this is an impossible evidentiary burden. It may

be met by circumstantial evidence of knowing use that is

extrinsic to the urinalysis test, as in United States v. Barnes,

53 MJ 624 (N.M.Ct.Crim.App. 2000), set aside, ___ MJ ___ (Daily

Journal June 11, 2001), or by expert testimony that the

metabolite level was high enough to reasonably discount the

possibility of unknowing ingestion and to indicate a reasonable

likelihood that the user would have experienced the physical and

psychological effects of the drug. As we emphasized in Campbell

II, it is not necessary that the expert testify that a particular

accused would have experienced the effects of the drug. “It is

sufficient if the expert testimony reasonably supports the

inference with respect to human beings as a class.” 52 MJ at

389.

I have consistently taken the position that the Due Process

Clause does not permit courts-martial to convict an accused of a

felony drug offense based solely on the presence of a drug

metabolite in his or her body. The majority’s decision in this

case is inconsistent with that position. Accordingly, I dissent.

See United States v. Bond, supra.

6