United States v. Phillips

YOUNG, Chief Judge

(concurring):

I concur. I write only to suggest the Court of Appeals for the Armed Forces (CAAF) re-examine the three-part standard it established in United States v. Campbell, 50 M.J. 154, 160 (1999) (Campbell I), supplemented on reconsideration, 52 M.J. 386, 388 (2000) (Campbell II).

The appellant was charged with wrongfully using cocaine. Although some trial judges continue to instruct on the four elements listed in the Military Judges’ Benchbook, it is clear there are only two elements to this offense:

(1) That the appellant used a controlled substance; and
(2) That his use was wrongful.

See Campbell II, 52 M.J. at 388 (citing Manual for Courts-Martial, United States (MCM), Part IV, ¶37b(2) (1998 ed.)); Campbell I, 50 M.J. at 159. To convict an accused of this offense, the prosecution must show that the accused had knowledge he used a controlled substance. MCM, Part IV, ¶ 37c(10).

To prove the appellant had knowledge he was using a controlled substance, the prose*764cution relied in part upon a permissive inference established by the President: “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.” MCM, Part IV, ¶ 37c(10). The President’s authority to establish this inference stems from his power to prescribe “modes of proof’ for courts-martial, “which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with” the UCMJ. Article 36(a), UCMJ, 10 U.S.C. § 836(a) (emphasis added). See Campbell I, 50 M.J. at 159; United States v. Ford, 23 M.J. 331, 334 (C.M.A.1987); United States v. Windham, 36 C.M.R. 21, 23, 1965 WL 4773 (C.M.A.1965); United States v. McCrary, 1 C.M.R. 780, 781, 1951 WL 1796 (A.F.B.R. 1951), ajfd, 1 C.M.R. 1, 1951 WL 1497 (C.M.A.1951).

Like all permissive inferences,- the inference of knowledge allows, but does not require “the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant.” County Court of Ulster County v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).

Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the “beyond a reasonable doubt” standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.

Id. (emphasis added).

In Campbell I, the CAAF established minimum criteria the prosecution would have to meet before getting the benefit of the inference. It held that no rational factfinder could make the connection between proof of the existence of the controlled substance in an accused’s body and the fact that the accused knowingly used the controlled substance, unless the prosecution established, through expert testimony,

(1) that the “metabolite” is “not naturally produced by the body” or any substance other than the drug in question; (2) that the 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”; and (3) that the testing methodology reliably detected the presence and reliably quantified the concentration of the drug or metabolite in the sample.

Campbell I, 50 M.J. at 160 (citations omitted).

Writing for the majority in Campbell I, Judge Effron claimed that this standard does not establish new law. He claims the standard follows the CAAF’s precedent in United States v. Harper, 22 M.J. 157 (C.M.A.1986). Campbell I, 50 M.J. at 161 n. 2. If Campbell does not establish new law, I would be forced to conclude that the many trial and appellate defense counsel who practiced before me were incompetent — for none of them ever raised this issue. But, they were not incompetent, for no case prior to Campbell I, including Harper, required the prosecution to establish the reasonable likelihood that the accused experienced the physical and psychological effects of the drug. See United States v. Bond, 46 M.J. 86 (1997); United States v. Pabon, 42 M.J. 404 (1995), cert. denied, 516 U.S. 1075, 116 S.Ct. 780, 133 L.Ed.2d 731 (1996); United States v. Thompson, 34 M.J. 287 (C.M.A.1992); United States v. Boulden, 29 M.J. 44 (C.M.A.1989); United States v. Ford, 23 M.J. 331 (C.M.A.1987). Judge Effron is correct in asserting that none of these post-Harper cases dealt directly with the second part of the three-part standard. Campbell I, 50 M.J. at 161 n. 2. But, they did concern the legal sufficiency of the evidence, which the court upheld in each instance. If *765the CAAF accepts an assignment of error concerning the legal sufficiency of the evidence, it is difficult to see how the Court could overlook a basic requirement for legal sufficiency.

Regardless of whether the three-part standard is new or old, I believe it unduly burdens the use of the President’s inference. The first part of the Campbell standard requires the expert to testify that neither the drug nor the metabolite is naturally produced by the body or any substance other than the drug in question. Clearly, no conviction based on a drug test could be found legally sufficient if there is no way to determine whether the controlled substance was produced naturally by the body or from some other lawful substance. But, why does an expert need to testify about this issue? Surely, for most drugs of abuse, the scientific evidence is clear — these are adjudicative facts “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Mil. R.Evid. 201(b)(2). A military judge “shall take judicial notice” of such facts if the prosecution provides him the necessary treatises or other information establishing the facts. Mil.R.Evid. 201(d). See United States v. Pond, 36 M.J. 1050 (A.F.C.M.R.1993) (appellate court took judicial notice that methamphetamine use can be detected for 24 to 48 hours following ingestion); United States v. Brown, 33 M.J. 706 (A.C.M.R.1991) (holding military judge could appropriately take judicial notice concerning cocaine, its metabolic process, and urinalysis testing methodology); Hines v. Secretary of Department of Health & Human Sevs., 940 F.2d 1518 (Fed.Cir. 1991) (finding the incubation period of measles is a well-known medical fact capable of ready and accurate determination such as to permit judicial notice to be taken).

The second part of the standard is more troublesome and contains two sub-parts: The prosecution must demonstrate through the expert that the cutoff level on the test and the reported concentration of the metabolite or drug in the accused’s specimen are high enough (a) to reasonably discount the possibility of unknowing ingestion, and (b) to indicate a reasonable likelihood that the user at some time would have experienced the effects of the drug. Although the meaning of subpart (a) is not clear, it appears the CAAF meant that the test results must reasonably discount the possibility of a positive caused by incidental contact with the drug — such as passive inhalation from being present in a room full of marijuana smoke or innocently touching currency used by others to snort a controlled substance. See, e.g., Harper, 22 M.J. at 163. If this is indeed what the CAAF meant, they should say so. The current formulation of subpart (a) suggests that the expert must testify that it is unlikely the accused did not know he was ingesting the controlled substance. No expert can so testify. By resorting to sources whose accuracy cannot reasonably be questioned, the prosecution may be able to establish that the cutoff levels for most drugs of abuse have been set to reasonably discount the possibility that incidental contact caused the positive. If the prosecution does so, the military judge should be able to take judicial notice of such adjudicative facts. Mil.R.Evid. 201.

Subpart (b) requires the expert to testify that the cutoff level and reported concentration level indicate a reasonable likelihood that the user at some time experienced the physical and psychological effects of the drug. Judge Effron cites Harper, 22 M.J. at 163, and United States v. Murphy, 23 M.J. 310, 312 (C.M.A.1987), for this proposition. See Campbell I, 50 M.J. at 160. Murphy doesn’t even discuss the issue, and no fair reading of Harper could find such proof a requirement.

To persuade the court to draw this inference, expert testimony was again offered by the prosecution. Doctor Jain testified that the nanogram readings on the three samples ruled out the possibility of passive inhalation. Moreover, he testified that these particular results indicated that the user at sometime experienced the physical and psychological effects of the drug.

Harper, 22 M.J. at 163 (emphasis added).

How is subpart (b) relevant to determining whether or not an accused knew he was ingesting a controlled substance? The focus of the knowledge requirement is at the time of ingestion, not when and if the accused *766experienced the drug’s effects. Is it any less of a crime if the accused knowingly ingested a controlled substance, but did not experience the physical and psychological effects?

The CAAF may have based subpart (b) on an inference of its own — that individuals knowingly ingest controlled substances to experience their effects; therefore, if there is no evidence they experienced the effects, then we cannot reasonably say they knowingly ingested the controlled substances. This is just plain faulty logic. In my opinion, the prosecution’s inability to establish a reasonable likelihood that the accused experienced the effects of the drug should not deprive the prosecution of the benefit of the inference or make such a conviction legally insufficient. While the inability of the prosecution to establish the reasonable likelihood that an accused felt the effects of the drug may cause a factfinder not to draw the inference, it does not make the drawing of the inference irrational. It is a matter of weight. By applying subpart (a), we have already eliminated the reasonable possibility that incidental contact caused the positive test results. That should be enough for the prosecution to get the benefit of the inference.

An examination of the facts in the Supreme Court’s seminal case on inferences may be instructive. In County Court of Ulster County v. Allen, three adult males and a 16-year-old girl were jointly tried, inter alia, with possessing two loaded handguns found either on the floor of the front passenger seat or on the front passenger’s seat in the automobile in which they were riding. The guns were in an open handbag. Under the applicable state statute, presence of a firearm in an automobile was presumptive evidence of its illegal possession by all persons in the vehicle, unless the firearm was found upon the person of one of the occupants. The trial judge instructed the jury that they were entitled, but not required, to infer from the presence of the guns in the vehicle that each occupant was able to exercise dominion and control over the firearms. The Second Circuit concluded that the statute was unconstitutional on its face.

The Supreme Court recognized that interpretations other than that of the statutory inference were possible. The guns could have belonged to the 16-year-old girl in whose handbag they were found. The other occupants of the vehicle might not have been aware of the presence of the guns or may not have been able to exercise dominion and control over them. But, these possibilities did not deprive the prosecution of the benefit of the inference. Those were just factors the jury could consider in determining whether to apply the inference and whether the evidence was sufficient to prove beyond a reasonable doubt that the occupants actually did possess the guns. The Supreme Court held that under the circumstances of the ease, the jury would have been reasonable in rejecting the possibilities other than of guilt. The inference was valid because there was a “ ‘rational connection’ between the basic facts that the prosecution proved (the presence of the guns in an open handbag in the passenger compartment of the vehicle) and the ultimate fact presumed (that the occupants knew of the presence of the guns and could exercise dominion and control over them), and the latter is ‘more likely than not to flow from’ the former.” Id. at 165, 99 S.Ct. 2213.

In urinalysis cases, once the prosecution establishes that the controlled substance or its metabolite is not naturally produced by the body or by some other substance, there is a rational connection between its presence in the accused’s body and the “ultimate fact presumed” — that the accused knew he used the controlled substance. And, it is more likely than not that a person whose body contains such a substance knowingly ingested it. But, we have gone further. We even force the prosecution to establish that the cutoff level for the test is high enough to reasonably discount the possibility that an incidental contact caused the positive test result. The fact that there are other possible explanations for the presence of the controlled substance in the body should not negate the availability of the inference, just whether the factfinder should apply the inference and find the accused guilty beyond a reasonable doubt.

The third part of the Campbell standard requires the prosecution to demonstrate through the expert that the testing method*767ology reliably detected the presence and reliably quantified the concentration of the drug or metabolite in the sample. It is difficult to see why the testing methodology or its reliability should be considered in deciding whether the inference is applicable. These are questions of basic admissibility of the evidence and should be handled as such. If the prosecution cannot establish the reliability of the testing methodology and the results, then the military judge should exclude the evidence. See Mil.R.Evid. 702; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); United States v. Nimmer, 43 M.J. 252 (1995). Without the admission of the test results, the applicability of the inference is moot.

For confirming the presence of a controlled substance in urine, the Air Force Drug Testing Laboratory (AFDTL) uses the gas chromatograph/mass spectrometer (GC/MS). This is state-of-the-art technology for determining the presence of drugs in urine. The testing methodology employed by the AFDTL has been scrutinized for years and is universally accepted throughout the scientific community for its ability to reliably detect the presence and accurately quantify the concentration of drugs of abuse in a urine specimen. There is no reason why the military judge should not be able to take judicial notice of its reliability. See, e.g., United States v. Beasley, 102 F.3d 1440,1448 (8th Cir.1996) (holding DNA testing by the polymerase chain reaction method was reliable under Daubert, and that courts could take judicial notice of its reliability in the future); United States v. Jakobetz, 955 F.2d 786, 800 (2d Cir.1992) (holding judicial notice could properly be taken of the general acceptability of the general theory and use of the specific techniques of DNA profiling). Of course, the reliability of test results may be challenged by showing deficiencies in the procedure followed in the particular case. Beasley, 102 F.3d at 1448.

Once the military judge takes judicial notice of the reliability of the testing technique, the report of the laboratory results should be admissible, without resort to expert testimony, as a record of regularly conducted activity under Mil.R.Evid. 803(6). United States v. Porter, 12 M.J. 129 (C.M.A.1981). See United States v. Garnett, 122 F.3d 1016, 1018 (11th Cir.1997) (citing United States v. Baker, 855 F.2d 1353, 1359 (8th Cir.1988) (holding lab reports identifying drugs were admissible as business records since they were made on a routine basis)); United States v. Roulette, 75 F.3d 418 (8th Cir.1996) (holding laboratory reports identifying substance as cocaine base were admissible under Fed. R.Evid. 803(6) without testimony of person who conducted tests or proof of her unavailability). Such lab reports may be self-authenticating. Mil.R.Evid. 902(4a).

In Campbell I, the CAAF took great pains to explain their concerns with the urinalysis program. The Court noted that use of urinalysis results in court-martial proceedings “was in contrast to the Supreme Court’s approach to civilian urinalysis programs”; the CAAF has gone well beyond the constitutional analysis that the Supreme Court has applied in civilian society in approving “prosecutorial use of permissive inferences in criminal proceedings to sustain convictions based solely upon the results of a drug test”; and, “[t]he possibility of a positive result from an error in the test or from unknowing ingestion of a substance that does not trigger any reaction on the part of the servicemember is the worst nightmare of every good servicemember and a cause of serious concern to the judicial system.” Campbell I, 50 M.J. at 159-60. With all due respect, I disagree.

I readily admit that no one likes participating in the urinalysis program. It is not a pleasant experience for anyone, including appellate judges, to provide a urine specimen under direct observation. There is also some anxiety involved in the process — once servicemembers provide their specimens, they lose control of them. But, that is why the specimens are collected, shipped, and tested under chain of custody procedures and that confirmatory testing is done using state of the art technology.

Inspection testing is either constitutional or it is not. The CAAF claims it is constitutional, and I have no doubt that so would the Supreme Court. See National Treasury *768Employees Union v. Von Raab, 489 U.S. 656, 671, 109 S.Ct. 1384, 103 L.Ed.2d. 685 (1989); United States v. Bickel, 30 M.J. 277 (C.M.A. 1990). I find nothing unconstitutional about inspection testing or the use of the President’s permissive inference to show knowledge. I believe part 2(b) of the Campbell three-part test is unwarranted and based on an invalid inference of its own.