IN THE CASE OF
UNITED STATES, Appellee
v.
Neftali RIVERANIEVES, Staff Sergeant
U.S. Army, Appellant
No. 00-0516
Crim. App. No. 9701655
United States Court of Appeals for the Armed Forces
Argued December 6, 2000
Decided April 18, 2001
SULLIVAN, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant: Major Mary M. McCord (argued); Lieutenant Colonel David A.
Mayfield (on brief); Colonel Adele H. Odegard, Major Jonathan F. Potter,
and Major Kirsten V. C. Brunson.
For Appellee: Captain Daniel G. Brookhart (argued); Colonel David L. Hayden
and Lieutenant Colonel Edith M. Rob (on brief); Major Mary E. Braisted.
Military Judge: James J. Smith
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Riveranieves, 00-0516/AR
Judge SULLIVAN delivered the opinion of the Court.
During August and October of 1997, appellant was tried by a
special court-martial composed of officer and enlisted members at
Fort Bragg, North Carolina. Contrary to his pleas, he was found
guilty of wrongfully using cocaine between May 30 and June 30,
1997, in violation of Article 112a, Uniform Code of Military
Justice, 10 USC § 912a. He was sentenced to a bad-conduct
discharge and reduction to the grade of private. The convening
authority approved this sentence on April 2, 1998, and the Court
of Criminal Appeals affirmed in an unpublished opinion on May 18,
1999.
On September 5, 2000, this Court granted review on the
following issue:
WHETHER THE MILITARY JUDGE’S ERRORS IN
FAILING TO GIVE A CURATIVE INSTRUCTION
FOLLOWING TRIAL COUNSEL’S MISSTATEMENT OF
THE EVIDENCE AND COMPOUNDING THE ERROR
PREJUDICED APPELLANT’S RIGHT TO A FAIR
TRIAL.
We hold that trial counsel’s erroneous argument on the evidence
presented in this case and the military judge’s affirmation of
that argument materially prejudiced appellant’s substantial
rights. Article 59(a), UCMJ, 10 USC § 859(a).
Appellant was charged with wrongfully using cocaine “at or
near Fort Bragg, North Carolina, between on or about 30 May 1997,
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and on or about 30 June 1997.” The prosecution presented its
standard urinalysis case based on a positive urinalysis report,
expert testimony explaining it, and chain-of-custody evidence.
See United States v. Murphy, 23 MJ 310 (CMA 1987). The defense’s
theory was that appellant’s urine sample was tampered with or
adulterated after it was seized from him.
As part of its case in chief, the prosecution called Major
Brian J. Lukey, U.S. Army, a board-certified toxicologist and
officer-in-charge of Tripler Forensic Toxicology Drug Testing
Laboratory in Hawaii. He testified on direct examination as
follows:
Q. Could you explain for the panel
members how the use of cocaine is detected
in the human body?
A. Yes. When cocaine enters the body,
whether you inhale it, smoke it, you can
snort it, intravenously administer it or
even ingest it, it will enter into the
blood system. The blood will move it
through the body to the brain, where it
exerts its pharmacological effect, the
high; but also, the body recognizes any
substance, like cocaine, as a foreign
substance and it tries to get rid of it.
One of the ways it gets rid of it is it
tries to make it more water-soluble, so it
would attach a chemical moiety to it or
break it into components that we call
“metabolites.” And, it’s the metabolites
that go into the urine and eliminate it
from the body. And one particular
metabolite - it’s called “Benzoylecgonine”
or “BZE” - is the one that we particularly
look at for cocaine abuse.
Q. Now, in your experience, can the
metabolite referred to as BZE be produced
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in any other - from any other substance,
but cocaine?
A. No.
Q. Can the human body naturally make and
produce BZE?
A. It cannot.
Q. If the human body consumes cocaine,
can that body then produce the metabolite
BZE?
A. Yes.
Q. So is it true that a human body which
produces urine that contains the
metabolite BZE has consumed or ingested
somehow cocaine?
A. Yes.
Q. What types of tests are done on urine
to detect the metabolite BZE?
A. We actually do two different tests at
our laboratory. We do a first test. It’s
called a “Screening Test,” which is
immunological based. It’s called “Kinetic
Interaction of Microparticles in
Solution.” . . .
(Emphasis added.) He further stated:
Q. You mentioned a fingerprint. Is that
a fingerprint for the metabolite BZE?
A. That’s correct.
Q. Is there any way for the machine to
mistake the BZE fingerprint with any other
metabolite fingerprint?
A. No.
Q. So if your machine registers a
fingerprint for BZE, then there was BZE in
the specimen?
A. That’s correct.
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United States v. Riveranieves, 00-0516/AR
Q. Can you state for the panel what the
cutoff level is, established by DoD, for
the GC/MS test?
A. Yes, it’s 100 nanograms per
milliliter.
(Emphasis added.)
On cross-examination, Major Lukey answered additional
questions from defense counsel as follows:
Q. Okay, sir. And, a question about the
BZE produced by cocaine - and I believe
there was a prior witness who briefly
discussed this. You said that the body
processes that out. It comes out through
the urine. It’s detected there.
A. Correct.
Q. If - if there were cocaine, basically,
dumped into urine and shipped to your lab,
what happens there?
A. It all depends upon the Ph of the
urine itself. The more basic the urine,
the cocaine can actually go and form BZE
itself. So, you actually find BZE and,
actually, in this case, the urine was
fairly basic. It was - actually, I think
we - I don’t have my chain - I had it on
the other chain of custody form - but, I
think it was 7 something, which, if
cocaine was added to that urine, it could
form BZE.
Q. Okay. So, that is possible, unlike
with say marijuana, whereas you can’t - it
couldn’t be dropped into a urine specimen
and then it would just - it wouldn’t come
up with anything?
A. That’s correct.
(Emphasis added.)
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United States v. Riveranieves, 00-0516/AR
Trial counsel, in his rebuttal argument on findings, stated:
Mr. President, members of the panel, the
defense was right about one thing, testing
procedures don’t prove the accused’s
guilt. It was the accused’s use of
cocaine that proves him guilty. It’s the
evidence that proves him guilty. It’s the
fact that he provided a urine sample. The
urine sample was tested. The testing was
positive. That proves him guilty. . . .
* * *
He had the control where he was in his own
room, where he could control everything
without anyone coming in and he had the
latrine, a mere 10 to 15 feet away. The
bottom line is the sample taken from the
accused was properly taken. It was his
urine. It showed BZE. BZE only appears
when you’ve been using cocaine. These
simple facts --
ADC: Your Honor, that’s not a fact.
MJ: That was the testimony of the expert.
Please be seated.
(The assistant defense counsel did as
directed.)
(Emphasis added.)
___ ___ ___
RCM 919, Manual for Courts-Martial, United States (1995 ed.),
stated:
Rule 919. Argument by counsel on findings
(a) In general. After the closing of
evidence, trial counsel shall be permitted
to open the argument. The defense counsel
shall be permitted to reply. Trial
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United States v. Riveranieves, 00-0516/AR
counsel shall then be permitted to reply
in rebuttal.
(b) Contents. Arguments may properly
include reasonable comment on the evidence
in the case, including inferences to be
drawn therefrom, in support of a party’s
theory of the case.
(Emphasis added). The Court of Criminal Appeals held that trial
counsel’s argument that the evidence presented in this case
showed “BZE only appears when you’ve been using cocaine” was a
misstatement. Unpub. op. at 2. We agree with the lower
appellate court’s conclusion.
RCM 919(c) further provides:
(c) Waiver of objection to improper
argument. Failure to object to improper
argument before the military judge begins
to instruct the members on findings shall
constitute waiver of the objection.
Discussion
If an objection that an argument is
improper is sustained, the military judge
should immediately instruct the members
that the argument was improper and that
they must disregard it. In extraordinary
cases improper argument may require a
mistrial. See RCM 915. The military
judge should be alert to improper argument
and take appropriate action when
necessary.
Here, the defense immediately objected to the prosecutor’s
misstatement of the evidence in his closing argument. Instead of
sustaining that objection and instructing the members to
disregard the prosecutor’s misstatement, the military judge
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United States v. Riveranieves, 00-0516/AR
agreed with trial counsel’s reading of the record and
communicated this belief to the members.
The remaining question before us is whether appellant was
prejudiced by trial counsel’s erroneous argument and the military
judge’s compounding of that error. In United States v. Iglesias,
915 F.2d 1524, 1529 (11th Cir. 1990), the Eleventh Circuit held
that an erroneous-misstatement-of-evidence argument by trial
counsel may be cured by an immediate instruction from the trial
judge that the jury members, not counsel, must decide what
evidence was admitted in a case. However, in United States v.
Achtenberg, 459 F.2d 91, 98 (8th Cir.), cert. denied, 409 U.S.
932 (1972), the Eighth Circuit, in different circumstances, found
prejudice despite a curative instruction that the members of the
jury “alone” were “judges of what the evidence” was. The
particular circumstances of each case are controlling.
In appellant’s case, there was no immediate curative
instruction given by the trial judge as to the prosecutor’s
erroneous argument, (R. 220) nor a timely one specifically
repudiating his asserted view of the evidence in this case. (R.
226). Moreover, this was a urinalysis case and the misstatement
pertained to a critical issue and its resolution based on
scientific principles. Cf. United States v. Mack, 33 MJ 251 (CMA
1991) (urinalysis conviction set aside because of inconsistent
scientific proof); United States v. Murphy, supra at 312
(urinalysis conviction set aside for inadequate scientific
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United States v. Riveranieves, 00-0516/AR
proof). Finally, the judge’s comments effectively blunted
appellant’s previously noted defense that his urine sample had
been purposefully tampered with after he submitted it to military
authorities. See United States v. Lewis, 51 MJ 376 (1999). We
find material prejudice in these circumstances. Article 59(a).
The decision of the United States Army Court of Criminal
Appeals is reversed and the findings of guilty and the sentence
are set aside. The record of trial is returned to the Judge
Advocate General of the Army. A rehearing may be ordered.
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