United States v. Lusk

UNITED STATES, Appellee

v.

Harley T. LUSK, Staff Sergeant
U.S. Air Force, Appellant

No. 11-0166
Crim. App. No. S31624
United States Court of Appeals for the Armed Forces

Argued April 7, 2011

Decided August 24, 2011

PER CURIAM

Counsel

For Appellant: Captain Phillip T. Korman (argued); Colonel Eric
N. Eklund and Lieutenant Colonel Gail E. Crawford (on brief);
Dwight Sullivan, Esq.

For Appellee: Major Jamie L. Mendelson (argued); Colonel Don M.
Christensen and Gerald R. Bruce, Esq. (on brief).

Amicus Curiae for Appellant: Greg Young (law student) (argued);
George Fisher (supervising attorney) (on brief) -- Stanford
University School of Law.

Military Judge: David S. Castro

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Lusk, No. 11-0166/AF

PER CURIAM:

Contrary to his pleas, a special court-martial composed of

officer members convicted Appellant of one specification of

wrongful use of cocaine in violation of Article 112a, Uniform

Code of Military Justice, 10 U.S.C. § 912a (2006). The sentence

adjudged by the court-martial and approved by the convening

authority included a bad-conduct discharge and reduction to the

lowest enlisted grade. The United States Air Force Court of

Criminal Appeals affirmed. United States v. Lusk, No. ACM

S31624, 2010 CCA LEXIS 367, 2010 WL 4068922 (A.F. Ct. Crim. App.

Oct. 14, 2010) We granted review to consider issues relating to

the admissibility of information from a drug testing laboratory

and related testimony of an expert witness. United States v.

Lusk, 69 M.J. 481-82 (C.A.A.F. 2011) (order); id. at 483 (order

granting additional specified issue).1

I

Appellant, upon request, provided a urine sample during a

unit inspection. The Government subjected the sample to two

different tests. The first test, conducted by the Air Force

Drug Testing Laboratory (AFDTL), yielded a positive result, as

1
We heard oral argument in this case at the Stanford University
School of Law, Stanford, California, as part of the Court’s
“Project Outreach.” This practice was developed as a public
awareness program to demonstrate the operation of a federal
court of appeals and the military justice system.

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documented in a report issued by the laboratory. The second

test, conducted by the Armed Force Institute of Pathology (AFIP)

in response to a request by trial counsel for a retest by a

different laboratory, also yielded a positive result. The

report issued by the institute included variety of items,

including a cover memorandum summarizing the positive test

results. The cover memorandum bore the names of Barry Levine,

the Director of the Forensic Toxicology Laboratory, and John F.

Jemionek, Certifying Scientist. Neither Levine nor Jemionek

testified at Appellant’s trial.

The prosecution introduced into evidence the AFDTL report

of the first test without objection by the defense. The defense

moved to exclude the AFIP report of the second test prior to

entering Appellant’s plea.

The military judge granted the defense motion to exclude

the AFIP report of the second test on the grounds that the

second report contained testimonial hearsay. As such, the

military judge concluded that introduction of the AFIP report of

the second test, without testimony by the individual who

prepared the report, would deny the defense the right of

confrontation guaranteed by the Sixth Amendment, citing United

States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008) (applying

Crawford v. Washington, 541 U.S. 36 (2004), to the military

justice system). The military judge reserved the question of

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whether the prosecution could introduce the AFIP report of the

second test into evidence later in the proceedings in the event

that the defense opened the door to rebuttal.

In addition to the AFDTL report of the first test, the

prosecution relied on the testimony of an expert in forensic

toxicology, Dr. Smith, who testified as to the reliability of

the AFDTL results. Citing the AFDTL report of the first test,

Dr. Smith testified that the results of the first test showed

that Appellant’s urine specimen tested positive for the

metabolite of cocaine.

The defense undertook an extensive cross-examination of Dr.

Smith, challenging the validity of the first test by raising

numerous questions about the reliability of testing by the

AFDTL. At the prosecution’s request, the military judge then

considered whether the prosecution could rebut the defense

attack on the reliability of the laboratory by asking Dr. Smith

about the details the AFIP report of the second test as a basis

for his expert testimony about the reliability of the first

test. The defense objected on the grounds that to allow

testimony based on the second test would allow the prosecution

to rely improperly on inadmissible hearsay.

The military judge ruled that the prosecution could ask the

expert witness about the basis of his expert testimony under

M.R.E. 703 in light of the questions raised by the defense about

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the reliability of the laboratory. The military judge then

emphasized the limited scope of his ruling, noting that “I am

still not going to allow the AFIP report [into evidence].” In

that regard, he cited concerns about “testimonial hearsay” and

reiterated that AFIP report of the second test “will not come

in.” He further noted that the expert’s testimony about

specific testing levels in the second test conducted by AFIP

would not be more prejudicial than probative under M.R.E. 403

because such testimony would be consistent with the position of

both parties. He reiterated that he would not allow the AFIP

report of the second test into evidence, but would allow the

expert “to testify in a limited fashion that [the AFIP report of

the second test] is part of his reaching his conclusions about

the reliability of the lab and the report that he did consider

[included] a confirmatory test that was conducted by AFIP and

that was part of the basis for his opinion.” He added that

testimony about the report of the second test conducted by AFIP

“falls within [M.R.E.] 703, that is something that he clearly

considered and that is what he testified to and that is what I’m

going to allow.”

At that point, the trial counsel asked the military judge

whether the prosecution would be allowed to ask the expert

witness on redirect examination about the specific numerical

results in the AFIP report of the second test. The military

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judge responded that he would allow the expert to testify that

“he considered a second test, which was a confirmatory test

conducted by AFIP.” He added that he would then “need to craft

an instruction that they [the panel members] are not to consider

that for the truth of the matter asserted but rather for the

manner in which the expert witness went about reaching his

conclusion which he is allowed to do under [the] Military Rules

[of] Evidence.”

Trial counsel inquired into the consequences of questions

about the numerical results, asking whether questions by the

prosecution about the numerical results would open an

opportunity for the defense to ask on cross-examination about

the entire AFIP report of the second test. The military judge

responded that if “the defense chooses to cross-examine in a

limited fashion then that is what you are stuck with.” He added

that if “the defense chooses to conduct an extensive cross-

examination then clearly that would open up more issues for you

on redirect.”

Defense counsel sought to clarify the relationship between

the scope of cross-examination as to the basis for an expert’s

opinion and the scope of cross-examination that might result in

introduction of substantive evidence on the merits. Defense

counsel contended that the AFIP report on the second test

contained testimonial hearsay, and that the breadth of his

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cross-examination as to the AFIP report of the second test, in

terms of the basis for the expert testimony, would waive “the

requirement from the court that the government lay the proper

foundation of Crawford to get the [report] submitted.”

Trial counsel then agreed with the general principle that

information relied upon by an expert as the basis for his

opinion under M.R.E. 703 could include evidence that is

otherwise inadmissible, adding that “the government would have

no objection to [the defense] cross examining on the report

without admitting it.” The military judge added: “I do not

think that that is going to trigger the admission of that

document, [and] I will tell you that I am just inclined to

continue to keep their report out.” Trial counsel responded:

“The government agrees, your Honor.”

When the proceedings before the members resumed, the

prosecution asked Dr. Smith for his opinion as to the

reliability of the first test conducted by AFDTL. Dr. Smith

responded: “Yes, that was a reliable result.” The prosecution

followed up by asking whether the first test conducted at the

AFDTL provided “the only basis for your opinion that the drug

test was reliable and that drug testing report?” Dr. Smith

responded that he “had other information,” noting that the

“Armed Forces Institute of Pathology where I work also tested a

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portion of that specimen.” He added that “[i]t was a

confirmation test, it was a GCMS test.”

After establishing that the expert had relied on the second

test, which had been conducted by AFIP, the prosecution asked

the expert if he recalled the result of the second test. Dr.

Smith responded: “Yes, it showed the presence of

benzoylecgonine” -- the major metabolite of cocaine.

Defense counsel then conducted a detailed cross-examination

of Dr. Smith, including examination into Dr. Smith’s reliance on

the AFIP report on the second test regarding the presence of

benzoylecgonine. Without introducing the AFIP report into

evidence, defense counsel cross-examined the expert about the

basis for his reliance on the second test in view of the numerical

results. In particular, defense counsel brought out that

although the second test showed the presence of benzoylecgonine,

the numerical value was below the cut-off level established by

the Department of Defense to show the presence of cocaine. Dr.

Smith responded: “Yes, but for a retest we don’t have to be

over the cut off. We just have to be able to detect and

identify the compound.” On redirect, the trial counsel asked

the expert to explain the discrepancy between the numerical

results of the first and second tests, and the expert noted both

the possibility of deterioration over time and the fact that the

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Department of Defense did not require a retest to meet the cut-

off levels of an initial test.

After the parties concluded the presentation of evidence on

the merits, the military judge discussed instructions with

counsel. Although not requested to do so by either party, the

military judge decided to not give a limiting instruction

regarding the manner in which the members could consider the

second test performed by AFIP. The military judge recalled that

he had earlier said that he “was going to instruct them [the

members] that they are basically [to] just consider that for the

purposes of how he came to this conclusion and [the] basis for

his opinion.” He then said:

After the extensive direct examination,
cross examination and extensive questioning
by the members I am inclined not to give
that instruction because it is out there on
the table for them now so, does that make
sense?

We have gone so far down the path . . . . At
this point, we had relatively extensive
direct examination and cross examination. I
think the results from AFIP and their
processes are pretty much before the court.
I can’t put the genie back in the bottle in
light of counsel.

The trial counsel responded: “It’s hard to put the toothpaste

back in the tube . . . . The government has no issue with that.”

Defense counsel responded by objecting that “it is still

hearsay that you relied upon, it is testimonial hearsay and the

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evidence was not introduced before the members.” The military

judge responded that “the evidence is in front of the members

through his additional testimony so, I will review it and I will

consider it but I am likely just going to delete that from the

instructions.” As a result, the military judge declined to give

a limiting instruction regarding the AFIP report on the second

test -- the report that had been relied upon the expert but

which had not been introduced into evidence.

The prosecution’s closing argument discussed the testimony

of the expert witness, the details of the two test results, and

the reliability of the test results. The prosecution treated

the reports of both tests as if the report of the second test

had been introduced into evidence, arguing that “for you to

believe that this test is not reliable and that it does not meet

the beyond a reasonable doubt standard you would have to

essentially expect that lightning struck twice for [Appellant].”

The prosecution further stated that “you can rely on the result

for several reasons: . . . number two, [the expert witness] also

testified that he didn’t just rely on the first drug test

report; there was another test out there that confirmed it.”

II

In United States v. Neeley, 25 M.J. 105, 107 (C.M.A. 1987),

we observed that “the military judge should give a limiting

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instruction concerning the appropriate use of [inadmissible

evidence relied upon for the basis of the expert opinion].” See

M.R.E. 105 (“When evidence which . . . is . . . not admissible .

. . for another purpose is admitted, the military judge . . .

shall restrict the evidence to its proper scope and instruct the

members accordingly.”); United States v. Affleck, 776 F.2d 1451

(10th Cir. 1985); United States v. Sims, 514 F.2d 147, 149–50

(9th Cir.), cert. denied, 423 U.S. 845 (1975) (when “such

evidence” is admitted, it “becomes necessary for the court to”

give a limiting instruction to the jury). Importantly, such

instructions can ensure that the testimony is not transformed

from evidence introduced for the limited purpose of showing what

the expert witness relied upon into substantive evidence

introduced for the purpose of establishing a truth of the

matter, particularly in view of the potential that the latter

case could raise constitutional issues under the Confrontation

Clause of the Sixth Amendment. See United States v. Blazier, 69

M.J. 218, 224 (C.A.A.F. 2010). Limiting instructions are

particularly important when evidence that is inadmissible, or

admissible for only a limited purpose, involves a discrete fact

or set of facts. See Adamson v. Cathel, 633 F.3d 248, 256 (3d

Cir. 2011). Here, although the military judge initially

recognized his obligation to provide such instructions, he

ultimately declined to do so. His failure to do so was

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compounded by trial counsel’s reliance on testimony regarding

the AFIP retest as substantive evidence during his closing

arguments.

In Neeley, we held that the failure to give such an

instruction sua sponte did not constitute plain error. In the

present case defense counsel objected, and specifically noted

that the report of the second test had not been introduced into

evidence. The military judge declined to give the instruction,

apparently because he believed that the instruction would have

no impact on the members. We see no reason, however, to believe

that members would be any less willing to consider an

instruction on the limited nature of the testimony in this case

than in any other case involving limited permissible use. See

Richardson v. Marsh, 481 U.S. 200, 211 (1987) (“The rule that

juries are presumed to follow their instructions is a pragmatic

one, rooted less in absolute certitude that the presumption is

true than in the belief that it represents a reasonable

practical accommodation of the interests of the state and the

defendant in the criminal justice process.”). Moreover, had the

military judge made it clear that he would give the instruction,

he would have provided a clear signal to the prosecution that it

could not make affirmative use of information not introduced

into evidence.

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III

The Court of Criminal Appeals concluded that the military

judge erred in failing to give the instruction, but concluded

that the error was harmless. The court, however, did not

consider whether the failure to limit the use of the information

from the AFIP report’s cover memorandum, and reliance upon that

evidence by the prosecution, resulted in a conviction based upon

inadmissible testimonial hearsay in violation of the

Confrontation Clause. Given the fact-intensive nature of the

interrelationship among the instructional matters, the

Confrontation Clause aspects of the second test, and

considerations of prejudice, this case warrants a new review by

the Court of Criminal Appeals. See Blazier, 69 M.J. at 227

(remanding in view of testimony by an expert witness who

repeated the contents of an inadmissible cover memorandum).

The decision of the United States Air Force Court of

Criminal Appeals is set aside. The record of trial is returned

to the Judge Advocate General of the Air Force for remand to

that court for review consistent with this opinion.

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