United States v. Bond

GIERKE, Judge

(dissenting):

This case involves an undercover policeman who volunteered to infiltrate a drug ring. Unfortunately, his undercover work became known within the local community. He readily submitted to urinalysis testing. He had advance notice of the urinalysis. He had the ability to delay the urinalysis but did not. He tested positive for cocaine. At his court-martial he denied knowingly using drugs and suggested that those whom he had been investigating may have set him up.

The sole evidence of knowing use was a permissive inference of knowledge based on the positive urinalysis. The majority finds this evidence legally sufficient to establish guilt beyond a reasonable doubt. In my view appellant’s conviction based on the permissive inference of knowledge, under the facts of this case, offends due process. It places every undercover drug investigator at the mercy of the drug users. Accordingly, I dissent.

As the majority recognizes, evidence sup-poi’ting a conviction is legally sufficient if a reasonable factfinder could have found all the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Turner, 25 MJ 324 (CMA 1987). When evaluating the evidence under this standard, we “draw every reasonable inference from the evidence of record in favor of the prosecution.” United States v. Blocker, 32 MJ 281, 284 (CMA 1991). In my view a reasonable factfinder could not find knowing use based on the evidence of record because knowing use is not a “reasonable inference” from that evidence.

In County Court of Ulster County, New York v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2224-25, 60 L.Ed.2d 777 (1979), decided less than a month before Jackson v. Virginia, supra, the Supreme Court held that the validity of permissive inferences is reviewed “as applied” to a particular appellant under the specific facts of his or her case. There must be a rational connection between the fact proved and the fact inferred. 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.” Barnes v. United States, 412 U.S. 837, 842, 93 S.Ct. 2357, 2361, 37 L.Ed.2d 380 (1973), quoting Leary v. United States, 395 U.S. 6, 36, 89 S.Ct. 1532, 1548, 23 L.Ed.2d 57 (1969). If 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. See Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970); see also E. Imwinkelried, P. Giannelli, F. Gilligan, and F. Lederer, Courtroom Criminal Evidence § 2920 at 975 (2d ed. 1993) (“The foundational fact must prove the inferred fact’s existence beyond a reasonable doubt only if the inference is the only possible basis for a guilty finding in the case.”).

The rational basis for the inference of knowing use of drugs was first articulated by this Court in United States v. Ford, 23 MJ 331, 337 (1987). In Ford this Court justified the inference because of three circumstances: (1) drugs are contraband for all servicemem-bers, thus reducing access to drugs as well as innocent ingestion; (2) servicemembers are on notice “to avoid any and all contact with these substances, a fact which further reduces the possibility of innocent ingestion”; and (3) the physiological effects of drugs are *93commonly known, so that a servicemember “generally knows what he consumes.”

None of these circumstances justifying the inference is present in this case. In the first place, appellant’s access to drugs was not reduced by the military environment. His military duties as an undercover policeman increased it. Secondly, he was not on notice to avoid “any and all contact” with drugs. His law enforcement duties required close contact with drugs and drug users. Finally, the Government’s own expert testified that the low level of cocaine metabolites in appellant’s urine was consistent with unknowing use.

Based on the foregoing, I find no rational basis for the permissive inference of knowing use in this case. Under the specific facts of this case, the permissive inference of knowledge does not even pass the “more likely than not” test. It falls far short of proving knowledge beyond a reasonable doubt. The only evidence on the issue of appellant’s knowledge is his own sworn denial of knowing use and the testimony of the government expert that the low metabolite level was consistent with unknowing use. In my view the prosecution failed to meet its constitutional burden of proving guilt beyond a reasonable doubt. I would set aside the conviction and dismiss the charge.