Petition for Writ of Certiorari — Williams v. United States

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IN THE

Suurenw Court of the United States

OCTOBER TERM, 1989

MICHAEL E. WILLIAMS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

RICHARD F. O’HAIR

Colonel, Office of The Judge

Advocate General

Counsel of Record

DARLA G. ORNDORFF

- Captain, Office of The Judge

Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB DC 20332-6128

(202) 767-1562

NOVEMBER 1989 Attorneys for Petitioner

QUESTION PRESENTED

Whether the petitioner was denied due process of law

when the military judge failed to provide the petitioner

with an urinalysis expert consultant, at government ex-

pense, to assist the petitioner in the preparation and

presentation of his defense.

(i)

TABLE OF CONTENTS

Page

SESE a eT 1

EE sipiaiiaiateticieasaiads 1

STATEMENT OF THE CASE ....................................... 3

REASONS FOR GRANTING THE WRIT .................... 6

i cneieaneinils 9

FI TT a ee CON nena RE IN la

ih ESE RS ae ee a a OT Ta

TABLE OF AUTHORITIES

Cases:

Ake v. Oklahoma, 470 U.S. 68 (1985) -.................. 6, 7, 8,9

United States v. Mance, 26 M.J. 244 (C.M.A.

aaa ania hadi bicn ena nenacetiiinaiidtahatecuiasinnenees 7

United States v. Murphy, 23 M.J. 310 (C.M.A

SE ee Oe 7

United States v. Williams, 28 M.J. 484 (C.M.A

Aelia ata teestnetinatireniemnans 1,6

United States v. Williams, ACM 26705 (A.F.C.

TE ES ee eR 1,5

Constitutional, Statutory and Regulatory Authorities:

United States Constitution, Amendment V ............ 2

ES TAS I a 2

10 U.S.C. § 867(h) (Supp. ITI 1985) 2... 1

_ ET 1

Article 112a, U.C.M.J., paragraph 27 (M.C.M.

EN 3

Rs PU SEs CRUD dccccinccccncccencncnnetsenasesane 2,3,6

(iii)

IN THE

Supreme Court of the United States

OcToBER TERM, 1989

No.

MICHAEL E. WILLIAMS,

Petitioner,

Vv.

~

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

The petitioner, Michael E. Williams, respectfully prays

that a writ of certiorari issue to review the judgment of

the United States Court of Military Appeals entered in

his case on September 8, 1989.

OPINIONS BELOW

The opinion of the United States Air Force Court of

Military Review, ACM 26705, was issued on October 19,

1988 and was not published (Appendix A). The opinion

of the United States Court of Military Appeals is re-

ported at 28 M.J. 484 (C.M.A. 1989) (Appendix B).

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. §1259(3) and 10 U.S.C. § 867(h) (Supp. III

1985). The judgment of the United States Court of Mili-

tary Appeals was entered on September 8, 1989.

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment of the United States Constitu-

tion provides:

No person shall be . . . deprived of life, liberty, or

property without due process of law. . .

STATUTORY PROVISIONS INVOLVED

10 U.S.C. § 846, Article 46 Uniform Code of Military

Justice:

Opportunity to obtain witnesses and other evi-

dence. The trial counsel, the defense counsel, and the

court-martial shall have equal opportunity to obtain

witnesses and other evidence in accordance with such

regulations as the President may prescribe. Process

issued in court-martial cases to compel witnesses to

appear and testify and to compel the production of

other evidence shall be similar to that which courts

of the United States having criminal jurisdiction

may lawfully issue and shall run to any part of the

United States, or the Territories, Commonwealths,

and possessions.

Rule for Courts-Martial 703(d) :

Employment of expert witnesses. When the em-

ployment at Government expense of an expert is con-

sidered necessary by a party, the party shall, in ad-

vance of employment of the expert, and with notice

to the opposing party, submit a request to the conven-

ing authority to authorize the employment and to fix

the compensation for the expert. The request shall in-

clude a complete statement of reasons why employ-

ment of the expert is necessary and the estimated cost

of employment. A request denied by the convening

authority may be renewed before the military judge

who shall determine whether the testimony of the

expert is relevant and necessary, and, if so, whether

the Government has provided or will provide an ade-

quate substitute. If the miliary judge grants a motion

for employment of an expert or finds that the Govern-

ment is required to provide a substitute, the pro-

ceedings shall be abated if the Government fails to

comply with the ruling. In the absence of advance

authorization, an expert witness may not be paid fees

other than those to which entitled under subsection

(e) (2) (D) of this rule.

STATEMENT OF THE CASE

The petitioner was tried by general court-martial in

October 1987, at McGuire AFB, New Jersey. Contrary

to his plea, he was convicted of one specification of wrong-

fully using cocaine, in violation of Article 112a, Uniform

Code of Military Justice, 10 U.S.C. § 912a. The petitioner

was sentenced to confinement for nine months, forfeiture of

$150.00 pay per month for nine months, reduction to the

grade of airman basic and to be discharged from the Air

Force with a bad conduct discharge. The convening au-

thority reduced the amount of forfeitures to $150.00 pay

per month for one month and approved the rest of the

sentence on February 19, 1988.

The government’s entire case rested upon the results of

an urinalysis test and the testimony of the government’s

expert witness, Dr. Naresh C. Jain,’ to interpret the test

results. The petitioner donated his sample pursuant to a

random inspection on January 9, 1987.

Prior to trial, on August 26, 1987, the petitioner re

quested, from the convening authority, the employment of

Dr. John D. Whiting as an expert consultant for the de-

fense, at government expense. See, R.C.M. 703(d). On

September 9, 1987, the convening authority denied this

request.

The petitioner renewed his request at trial to employ

Dr. Whiting as an expert consultant. The military judge

called Dr. Jain, the government selected and employed

1 Dr. Jain is a civilian toxicologist, often hired by the government

to testify at courts-martial as to the validity of the urinalysis test-

ing procedures.

4

expert, to testify on the motion. On direct-examination

Dr. Jain testified he was an expert in forensic toxicology

hired by the government to interpret the test results of

the urinalysis test performed in this case. He further

testified he was availabie to consult with the defense and

would tel] the defense if he discovered any errors in the

test.

On cross-examination, Dr. Jain stated he intended to

testify the results in this case were forensically valid.

He agreed other experts might disagree as to the validity

of the testing method, but stated his testimony was “not

impeachable.”

After Dr. Jain testified, the military judge asked the

trial defense counsel to explore the possibility the defense

request could be met with government resources. The

next morning the military judge denied the defense re-

quest for Dr. Whiting. The defense then moved for a

military expert consultant.

Government trial counsel proffered Lieutenant Colonel

Ottinger, from the Brooks Laboratory,’ was available as

a defense consultant. However, he was determined to be

unacceptable because of his connection with the prepara-

tion of the urinalysis test results in this case.

Government trial counsel then suggested some other

possibilities of persons who could act as consultants. It

then became a logistics problem, as to how soon the con-

sultant could arrive and help trial defense counsel pre-

pare for trial, in light of the fact the military judge had

traveled to the situs of the trial and wanted to complete

the trial at that time. After about a twenty minute re-

cess, the court reconvened. The military judge did a 180

degree turn and precluded any further search for a mili-

2 The Brooks Laboratory at Brooks AFB, San Antonio, Texas, is

where the Air Force sends the majority of its urine specimens

collected in the continental United States for urinalysis testing.

vary expert consultant. He ruled Dr. Jain was available,

through government resources, to consult with the defense.

Additionally, the military judge concluded Dr. Jain was

not biased or favored for either side and was an “ade-

quate substitute” for the defense requested consultant.

The military judge’s opinion that Dr. Jain was not a

biased witness was conveyed to the court members when

during voir dire by the trial defense counsel, the military

judge sua sponte instructed the court members that al-

though Dr. Jain was called as a witness by the govern-

ment he did not in “any way” represent the government.

At the Air Force Court of Military Review, the first

level of appellate review, that Court astutely noted what

the petitioner was requesting was an expert “consultant”

and not a “witness.” Even though the Court recognized

“a military accused is entitled to have an equal oppor-

tunity with the Government to obtain witnesses in his

defense,” and this access includes investigative or other

expert assistance, the Court held the military judge did

not err by only providing the defense with access to Dr.

Jain as a sufficient means to permit the defense to pre-

pare for trial. United States v. Williams, ACM 26705

(A.F.C.M.R. 1988) (Appendix A). The Air Force Court

of Military Review affirmed the findings of guilty and the

sentence on October 19, 1988.

The same issue was raised to the United States Court

of Military Appeals. They took a more narrow approach

to the case and specified the following issue:

WHETHER THE MILITARY JUDGE’S _IN-

STRUCTION THAT DR. JAIN WAS NOT A GOV-

ERNMENT WITNESS PREJUDICED APPEL-

LANT.

The United States Court of Military Appeals held the

military judge’s characterization of Dr. Jain was erro-

neous. However, they felt the instruction did not have a

le

prejudicial effect on the members’ deliberations and af-

firmed petitioner’s conviction. United States v. Williams,

28 M.J. 486 (C.M.A. 1989) (Appendix B).

REASONS FOR GRANTING THE WRIT

This Court “recognized long ago that mere access to

the courthouse doors does not by itself assure a proper

functioning of the adversarial process, and that a criminal

trial is fundamentally unfair if the State proceeds against

an indigent defendant without making certain that he

has access to raw materials integral to the building of an

effective defense.” Ake v. Oklahoma, 470 U.S. 68, 77

(1985). This is especially true in the military. In order

for a courts-martial to be fair, an accused must be given

the same access to government resources as the prose-

cutor. The petitioner’s Fifth Amendment right to Due

Process was violated by the military judge denying the

petitioner’s request for a toxicologist as a defense con-

sultant, at government expense.

According to military rules, as opposed to most state

statutes, proof of indigency is not required before re-

questing the government pay for an expert. R.C.M.

703(d). In the case sub judice, the convening authority

approved the prosecutor hiring a civilian expert to testify

for the government regarding the validity of the results

of a urinalysis test. However, the convening authority

denied the defense’s request for an expert that questions

the validity of the results in a urinalysis test. The mili-

tary judge then supported that denial.

The petitioner was charged with one specification of

wrongfully using cocaine. The only evidence the govern-

ment had against the petitioner was the results of the

urinalysis. There was no testimony anyone saw the peti-

tioner use cocaine. The United States Court of Military

Appeals (C.M.A.) has said “[wle are not persuaded that

the scientific principles of urinalysis are matters of ‘com-

7

mon sense’ or of ‘knowledge of human nature.’” United

States v. Murphy, 23 M.J. 310, 311 (C.M.A. 1987) ; see

also, Ake v. Oklahoma, supra, at 80-81. Before the re-

sults of an urinalysis can be introduced to the trier of

fact they require an expert witness must testify to in-

terpret the test results for the fact finder. Jd. at 312.

Once the government establishes the chain of custody

and has their expert testify on the urinalysis results, they

can rest. They do not need to present any evidence of

wrongfulness or disclose under what situation the drug

was ingested. That element is provided by the military

judge in his instructions. The instruction provides that

from a positive urinalysis the members can infer use, and

from use they can infer the accused knew of the presence

of the substance in his system and the contraband nature

of the substance. United States v. Mance, 26 M.J. 244

(C.M.A. 1988), cert. denied, US. , 109 S. Ct.

367, 102 L.Ed.2d 356 (1988).

Therefore, it is crucial the petitioner be provided some

tools with which to prove his innocence. The petitioner

took the stand and denied ever using cocaine. But, with-

out an expert with which to attack the urinalysis results,

there is no evidence he can present which will clear him

of the charge.

Only a toxicologist can attack the validity of an uri-

nalysis. The military judge said the defense could use

Dr. Jain, the government expert, to question the test.

However, Dr. Jain testified his testimony was “not im-

peachable.” Additionally, Dr. Jain conceded he would be

of little help to the defense in drafting questions for

cross-examination.

Common knowledge among military judge advocates is

there are several qualified experts that question the valid-

ity of the Department of Defense (DOD) urinalysis pro-

gram, especially when testing for cocaine. One of these

experts is Dr. Whiting. Dr. Whiting is employed by Toxi-

8

chem Laboratories, Inc., in Gaithersburg, Maryland. He

was formerly employed by the Armed Forces Institute of

Pathology with responsibility for the Air Force drug

testing program.

The defense, in its “preliminary showing,” requested

Dr. Whiting as an expert who could help the defense at-

tack the results of the petitioner’s urinalysis test as well

as the whole DOD urinalysis program. Some of the

things they sought to contest were the actual testing pro-

cedures used, quality control standards, which cocaine

metabolite was being tested for, how the DOD cutoff for

positive urinalysis is established and what the margin

of error is. The defense was putting the military judge

on notice the validity of the urinalysis test was going to

be a significant issue at trial and a competent toxicologist

was necessary to examine and evaluate the test results

and assist in the preparation and presentation of the

defense. See Ake v. Oklahoma, supra, at 74 and 83.

In Ake v. Oklahoma, supra, the trial court refused to

provide the defense with a psychiatrist to evaluate the

defendant’s mental state at the time of the offense. This

Court held, “. . . when a defendant has made a prelim-

inary showing that his sanity at the time of the offense

is likely to be a significant factor at trial, the Constitu-

tion requires that a State provide access to a psychia-

trist’s assistance on this issue if the defendant cannot

otherwise afford one.” Jd. at 74. “[T]he testimony of

psychiatrists can be crucial and ‘a virtual necessity if

an insanity plea is to have any chance of success.’ (cite

omitted).” Jd. at 81. “[A] defense may be devastated

by the absence of a psychiatric examination and testi-

mony; with such assistance, the defendant might have a

reasonable chance of success.” Id. at 83.

Petitioner testified he had never used cocaine. He has

no idea how the cocaine was introduced into his system.

The defense theory of the case was unknowing ingestion.

9

The only viable defense available to him was to attack

the validity of the urinalysis test. It is impossible to

mount a successful, or even credible, attack using the gov-

ernment’s expert. The testimony of a defense toxicologist

is a virtual necessity if the defense of unknowing inges-

tion is to have any chance of success. With the testimony

of a defense toxicologist the petitioner then has a reason-

able chance of success.

If this Court does not hear petitioner’s case, hundreds

of military accuseds will be tried by courts-martial with-

out the ability to mount a meaningful defense once a

positive urinalysis has been reported against them. The

law as it stands today is fundamentally unfair because

it denies accuseds “. . . access to the raw materials in-

tegral to the building of an effective defense.” Jd. at 77.

CONCLUSION

The petitioner submits he has suffered a denial of Due

Process. Therefore, this petition for a writ of certiorari

should be granted.

Respectfully submitted,

RICHARD F. O’HAIR

Colonel, Office of The Judge

Advocate General

Counsel of Record

DARLA G. ORNDORFF

Captain, Office of The Judge

Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

(202) 767-1562

Bolling AFB DC 20332-6128

NOVEMBER 1989 Attorneys for Petitioner

APPENDICES

ns ee ee er i a ie ails

la

APPENDIX A

UNITED STATES AIR FORCE

COURT OF MILITARY REVIEW

UNITED STATES

v.

Technical Sergeant MICHAEL E. WILLIAMS,

FR 429-04-4477

UNITED STATES AIR FORCE

ACM 26705

[19 Oct. 1988]

Sentence adjudged 22 October 1987 by GCM

convened at McGuire Air Force Base, New Jer-

sey. Military Judge: William T. Snyder.

Approved Sentence: Bad conduct discharge, con-

finement for nine (9) months, forfeiture of one

hundred fifty dollars ($150.00) per month for

(1) month and reduction to airman first class.

Appellate Counsel for the Appellant: Colonel Leo L.

Sergi and Lieutenant Colonel Patrick C. Sweeney.

Appellate Counsel for the United States: Colonel Joe

R. Lamport, Lieutenant Colonel Robert E. Giovagnoni

and Lieutenant Colonel Barret E. Kean, USAFR.

Before

HODGSON, FORAY and HOLTE

Appellate Military Judges

2a

DECISION

PER CURIAM:

The appellant was convicted, contrary to his plea, by a

general court-martial with members, of one charge of co-

caine use in violation of Article 112a, UCMJ.

Prior to trial, on 26 August 1987, the defense made a

written request to the convening authority for funding to

employ Doctor John D. Whiting as an expert technical

consultant. This request was predicated on the fact that

the government case was based entirely on a_ positive

urinalysis for cocaine metabolites, and the reliability of

the testing procedures, as well as the accuracy of the

results thereof, were material issues in the case. The de-

fense asserted that for these reasons Doctor Whiting’s

expertise was necessary for both the preparation and

presentation of the defense case. On 9 September 1987

this request was denied without explanation.

At the first session of trial the request was renewed.

The military judge called Doctor Naresh C. Jain, the

government expert witness to the stand to be heard on the

motion. He testified that he was an expert in forensic

toxicology hired by the government to interpret the test

results of the urinalysis tests performed in this case. He

stated that he was available to consult with the defense

counsel and would tell them of anything he found wrong

in the tests. He stated that he intended to testify that

the results of the tests in this case were forensically

valid. He agreed that other experts might disagree on

different test methods, but stated his testimony was not

impeachable. Doctor Jain restated his willingness to dis-

cuss the case with the defense and his lack of any particu-

lar interest in the outcome of the case.

After Doctor Jain’s testimony the military judge in-

quired of defense counsel if he was requesting a consult-

ant or a witness. His reply was that he was requesting

a consultant, however, if Doctor Jain testified to some-

3a

thing on direct examination which the defense had not

heard they would then have a rebuttal witness to the

government’s case in chief. After denying the motion for

the production of Doctor Whiting as an expert consultant

at government expense, the military judge directed the

trial counsel to explore possibilities whether the defense

needs could be met through government sources. Two

available witnesses were located at the Brooks Air Force

Base Laboratory. However, it was concluded that there

would be a conflict of interest in using either as they

were involved in the testing of the urine specimen which

was the subject of the charges against the accused. There

was a brief discussion as to the availability of other

witnesses within government resources, however, it was

not pursued nor was a final determination made. Doctor

Jain was then made available to the defense. At the con-

clusion of Doctor Jain’s testimony for the prosecution the

defense conducted an extensive cross examination. At the

conclusion of the government’s case the defense did not

renew its motion for the production of Doctor Whiting,

nor did they do so at the compietion of their cross exami-

nation of Doctor Jain.

The appellant now argues that the military judge erred

when he required him to accept the government expert

witness as his own expert consultant.

It is clear from both the original request and the re-

quest at trial that what was being requested was an ex-

pert consulant, not an expert witness. When specifically

asked by the military judge the defense stated he was

requesting a consultant not a witness, further stating

that “if he heard something on direct testimony that he

had not heard before he would have a rebuttal witness.”

The defense admitted that they had had adequate access

to Doctor Jain to fully review the litigation package with

him and to get his professional assessment. However,

they maintained that Doctor Jain was unable to provide

4a

the assistance desired by the defense without specifically

stating the desired assistance.

It has long been the law that a military accused is en-

titled to have equal opportunity with the Govefhment to

obtain witnesses to assist in his defense. Art. 46, UCMJ.

As a matter of military due process, servicemembers are

entitled to investigative or other expert assistance when

necessary for an adequate defense. Cf. United States v.

Mustafa, 22 M.J. 165 (C.M.A, 1986); United States v.

Garries, 22 M.J. 288 (C.M.A. 1986). However, these

rights and entitlements are not unlimited or without re

striction. The law does not automatically give an ac-

cused the right to the expert witness of his choice. Ake

v Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 1097, 84 L.Ed.2d

53 (1985). Here, the appellant requested a specific ex-

pert by name. There was no explanation as to why he

felt that only this particular expert was capable of serv-

ing as his expert consultant, nor did he detail what the

requested expert consultant would testify to or how he

would assist in the preparation of the defense.

When an accused applies for the employment of an

expert, he must demonstrate the necessity for such serv-

ices, which is more than just a mere possibility of assist-

ance from such expert, before one can be appointed for

him at government expense. Absent a showing of neces-

sity, there is no requirement for the government to pro-

vide the expert. United States v. Kinsler, 24 M.J. 855

(A.C.M.R. 1987). The accused must show that there

exists a reasonable probability both that the expert would

be of assistance to the defense and that denial of expert

assistance would result in a fundamentally unfair trial.

See Moore v. Kemp, 809 F.2d 702 (11th Cir.), cert. de-

nied, —— U.S. ——, 107 S.Ct. 2192, 95 L.Ed.2d 847

(1987). In the case before us the requests for an expert

consultant did not state specifically, or even generally, in

just what capacity such expert would be utilized. We

conclude that such request was predicated on the fact that

5a

such expert would be nice to have in the event that some-

thing developed either prior to trial or during the trial.

In the military an accused has the resources of the

government at his disposal. In the usual case the investi-

gative, medical, and other expert services available within

the military are sufficient to permit the defense to ade-

quately prepare for trial. Garries, supra. We conclude

that the military judge did not err in denying the de

fense motion to have the government fund their specifi-

cally requested expert consultant and the government

provided an adequate substitute within the meaning of

R.C.M. 703(d) by making Doctor Jain available to the

defense. The defense cross-examination of Doctor Jain

evidenced that counsel had much more than a rudimen-

tary understanding to the processes used in urinalysis

testing and in interpreting the technical test results.

During cross examination Doctor Jain conceded the test

results in certain areas were favorable to the accused.

From our reading of the record there is no showing that

denial of the requested expert consultant resulted in an

unfair trial or that the appellant was in any way preju-

diced by such denial. For the reasons stated herein we

decide this issue against the appellant.

In arriving at our decision on this issue we are not

unmindful of the recent case of United States v. Horn,

(sic) 26 M.J. 434 (C.M.A. 1988). In our opinion the two

cases are distinguishable in that in Horn (sic) the re-

quest for the expert witness stated exactly what the wit-

ness would testify to in the defense challenging that the

government had not followed proper testing procedures in

analyzing the accused’s urine for cocaine metabolites.

We originally returned this case to appellate counsel

for resolution of a specified issue as to whether the court

had been properly instructed on their findings as to the

knowledge requirement in cases involving use of cocaine

as announced in United States v. Brown, 26 M.J. 266

6a

(C.M.A. 1988). We conclude that the court was properly

instructed. United States v. Mance, 26 M.J. 244 (C.M.A.

1988). Having so held we further determine the military

judge did not error in refusing to give the defense re-

quested instruction on ignorance or mistake of fact and

find the assigned error to be without merit. The invited

issue is decided against the appellant.

The findings of guilty and the sentence are

AFFIRMED.

[SEAL]

OFFICIAL:

/s/ Mary V. Fillman

MARY V. FILLMAN

Captain, USAF

Chief Commissioner

7a

APPENDIX B

UNITED STATES COURT OF MILITARY APPEALS

No. 61,288

ACM 26705

UNITED STATES, ~—

Appellee,

v.

MICHAEL E. WILLIAMS, Technical Sergeant

U.S. Air Force,

Appellant.

Sept. 8, 1989

Accused, technical sergeant, United States Air Force,

was convicted by general court martial, William T. Sny-

der, J., of one specification of wrongful use of cocaine,

and he appealed. The United States Air Force Court of

Military Review affirmed, and accused petitioned for re-

view. The United States Court of Military Appeals,

Everett, C.J., held that comments of military judge dur-

ing voir dire, which erroneously implied that government

expert was at trial to present information binding on both

parties and was not amenable to attack by accused, was

not plain error.

Affirmed.

Cox, J., filed concurring opinion.

For Appellant: Colonel Richard F. O’Hair, Major

Mark R. Bell, Captain Darla G. Orndorff (on brief).

For Appellee: Colonel Joe R. Lamport, Lieutenant

Colonel Robert E. Giovagnoni, Major Carole W. Hanson

(on brief).

8a

Opinion of the Court

EVERETT, Chief Judge:

Contrary to his pleas, Williams was convicted by gen-

eral court-martial of one specification of wrongful use

of cocaine, a violation of Article 112a, Uniform Code of

Military Justice, 10 USC § 912a. The members sentenced

appellant to a bad-conduct discharge, confinement for 9

months, “to forfeit $150.00 of your pay for nine months,”

and reduction to pay grade E-8. On the recommendation

of his staff judge advocate, the convening authority ap-

proved the sentence, specifically approving “forfeiture

of $150.00 per month for one month.” The Court of Mili-

tary Review affirmed the findings and sentence in an un-

published opinion.

We granted appellant’s petition for review, specifying

the following issue:

WHETHER THE MILITARY JUDGE’S IN-

STRUCTION THAT DR. JAIN WAS NOT A GOV-

ERNMENT WITNESS PREJUDICED APPEL-

LANT.

This prosecution was predicated on the results of the

analysis of appellant’s urine which disclosed the presence

of metabolites of cocaine. To prove its case, the Govern-

ment intended to call Dr. Naresh C. Jain, a forensic toxi-

cologist. While not directly employed by the United

States, Dr. Jain testifies frequently in courts-martial

concerning the interpretation of scientific data derived

from urinalysis.’

Appellant initially sought to have the Government pro-

vide him with an expert technical consultant to assist in

his defense. Having lost that motion, defense counsel ap-

parently believed that he needed to defuse the impact of

1In fact Dr. Jain was the expert witness in this Court’s seminal

case on the subject of proof of drug use through urinalysis, United

States v. Harper, 22 MJ 157, 160 (CMA 1986).

9a

Dr. Jain’s testimony, particularly since he would not be

offering an expert witness on behalf of appellant. During

voir dire he undertook to “sell” the members on the prop-

osition that appellant did not need to present such testi-

mony:

Now, finally, the Government has hired an expert

in this case by the name of Dr. Jain. Has anyone

seen Dr. Jain testify before?

That’s a negative response. And—but Sergeant Wil-

liams won’t have an expert in his case. Is there any-

one who feels that—who would hold that against

Sergeant Williams?

That’s a negative response.

MJ: In that regard, I will instruct the court mem-

bers that though Doctor Jain is being called by the

Government for certain purposes, that is not to im-

ply that Doctor Jain in any way represents the Gov-

ernment. Doctor Jain will be a witness called to

present information. ...

(Emphasis added).

In the strictest sense, the comments of the military

judge were correct. An expert witness called by the

United States is not, as such, a government representa-

tive. Cf. Mil.R.Evid. 615, Manual for Courts-Martial,

United States, 1984 (permitting trial counsel to “desig-

nate[]” a “representative of the United States” to sit

with and assist the prosecution team in the courtroom).

However, the military judge’s comment also implies that

Dr. Jain was at the trial to present information binding

on both parties and that he was not amenable to attack

by appellant. This is, of course, not true since an expert

may be impeached or contradicted in the same manner

as any witness, his credentials may be attacked, and his

testimony need not be given any more weight than that

of any other witness.

= 10a

However, we need not reverse appellant’s conviction

because of this erroneous characterization of Dr. Jain.

Counsel did not object to the interjection by the military

judge; therefore, the error must be measured by the

standard of plain error. United States v. Fisher, 21 MJ

327, 8328 (CMA 1986), citing United States v. Young,

470 U.S. 1, 17 n. 14, 105 S.Ct. 1038, 1047 n. 14, 84

L.Ed.2d 1, 13 n. 14 (1985). See RCM 920(f), Manual,

supra. It must be evaluated against the entire record and

in the context of the particular case. See United States

v. Fisher, supra.

Here, counsel vigorously attacked Dr. Jain in his cross-

examination, attempting to show that he was a “hired

gun” for the Government who had earned over $100,000

in 5 years testifying as an expert witness for the United

States. He also established through Dr. Jain that there

was a substance other than raw cocaine which could pro-

duce benzoylecgonine? in a person’s urine and demon-

strated that Dr. Jain did not personally conduct the anal-

ysis in appellant’s case but, rather, was merely interpret-

ing the results.

Finally, the military judge correctly charged the mem-

bers on the nature of expert testimony and the weight

to be given to such testimony in his final instructions.

Both this Court and the Supreme Court have held that

the jury will be presumed to have followed the instruc-

tions in the absence of evidence to the contrary. Lakeside

v. Oregon, 485 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319

(1978) ; United States v. Ricketts, 1 MJ 78, 82 (CMA

1975) ; see also United States v. Morris, 13 MJ 297, 302

(CMA 1982) (Cook, J., concuring in the result).

2 This is the cocaine metabolite for which urine is tested. It is

also found in Health Inca tea. See United States v. Ray, 26 MJ 468,

469 (CMA 1988), cert. denied, U.S. , 109 S.Ct. 797, 102

L.Ed.2d 788 (1989); United States v. Carter, 26 MJ 1002, 1003

(AFCMR), pet. denied, 27 MJ 469 (1988).

lla

Accordingly, we are satisfied that the military judge’s

erroneous characterization of the status of Dr. Jain dur-

ing voir dire did not have “an unfair prejudicial impact

on the jury’s deliberations.” United States v. Fisher,

supra at 328, quoting United States v. Young, supra 470

U.S. at 17 n.14, 105 S.Ct. at 1047 n.14.

The decision of the United States Air Force Court of

Military Review is affirmed.

Judge SULLIVAN concurs.

COX, Judge (concurring) :

Assuming that the military judge’s comment concern-

ing Dr. Jain, which occurred during voir dire of the court

members, could be construed as error, I concur. However,

neither appeilant’s trial nor appellate defense attorneys

translated the comment into the descriptive language at-

tached to it by the majority opinion. I would have pre-

ferred to dismiss this petition on the grounds that it was

improvidently granted.

WX ov. 8. GOVERNMENT PRINTING OFFICE; 19869 251594 62082