Petition for Writ of Certiorari — Pabon v. United States

°) 95-904

No.

December 1995 (202) 767-1562

In THE

Supreme Court of the United States

OCTOBER TERM, 1995

AIRMAN BASIC DAVID PABON,

" Petitioner

UNITED STATES OF AMERICA,

Respondent

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

TopI S. CARNES

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Room 343

Bolling AFB, DC 20332-8000

QUESTION PRESENTED

WHETHER, AS A MATTER OF DUE PROCESS, THE

GOVERNMENT MAY PREMISE A CONVICTION

FOR DRUG USE UPON A PERMISSIVE INFER-

ENCE THAT IT IS “MORE LIKELY THAN NOT”

THAT A GIVEN NANOGRAM LEVEL OF BENZOY-

LECGONINE PROVING “USE” ALSO INDICATES

“KNOWING” USE WHERE “ME GOVERNMENT'S

EXPERT WITNESS ACKNOWLEDGES THAT THIS

SAME NANOGRAM LEVEL IS EQUALLY CONSIST-

ENT WITH UNKNOWING INGESTION AND GOV-

ERNMENTAL ATTEMPTS TO RULE OUT UN-

KNOWING INGESTION ARE BASED NOT UPON

ESTABLISHED FACTS BUT USON SPECULATION

AND HYPOTHETICAL POSSIBILITIES

(i)

TABLE OF CONTENTS

EE ET PERE PEEE REED sscencecesecessnecesseevasontersesevinncntes Vv

GP RURIEUEE BERIT Y cecccvccesecneresysensesoenes plcaieas bier diiredeannesAtonns 1

Nee ae denen aenenesnerenieamtonede 1

CONSTITUTIONAL PROVISION INVOLVED ........... 2

STATUTORY (UNIFORM CODE OF MILITARY

JUSTICE) PROVISIONS INVOLVED ........... 2

MANUAL FOR COURTS-MARTIAL PROVISIONS

SE a siauhiotis 2

REASON FOR GRANTING THE WRIT .

AS A MATTER OF DUE PROCESS, THE GOV-

ERNMENT MAY NOT PREMISE A CONVIC-

TION FOR DRUG USE UPON A PERMISSIVE

INFERENCE THAT IT IS “MORE LIKELY

THAN NOT” THAT A GIVEN NANOGRAM

LEVEL OF BENZOYLECGONINE PROVING

“USE” INDICATES “KNOWING” USE WHERE

THE GOVERNMENT’S EXPERT WITNESS

ACKNOWLEDGES THAT THIS SAME NANO-

GRAM LEVEL IS EQUALLY CONSISTENT

WITH UNKNOWING INGESTION AND GOV-

ERNMENTAL ATTEMPTS TO RULE OUT UN-

KNOWING INGESTION ARE BASED NOT

UPON ESTABLISHED FACTS BUT UPON

SPECULATION AND HYPOTHETICAL POSSI-

SELES eee 10

CONCLUSION

iv

TABLE OF CONTENTS—Continued

APPENDIX A Page

Opinion of the United States Court of Appeals for

the Armed Forces Sioen att la

APPENDIX B

Opinion of the United States Air Force Court of ;

Military Review i : 8a |

¥y

TABLE OF AUTHORITIES

Supreme Court Cases:

County Court of Ulster Cty v. Allen, 442 U.S. 140

(1979) ....... Scale SEINE: Puatndlinee AL 8 Sen ae Sates

Court of Appeals for the Armed Forces Cases:

United States v. Harper, 22 M.J. 157 (C.M.A.

ERIN EAR SRIEE S SE PRal D o ise OA

United States v. Hunt, 33 M.J. 345 (C.M.A.

SSeS ae aera ER RSE SAB

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

RN CS ee a Let

Constitutional Provisions:

U.S. Const. amend. V (Due Process Clause)

Statutory Provisions:

Article 112(a), Uniform Code of Military Justice..

28 U.S.C.A. 1259(c) .

Manual for Courts-Martial Provisions:

Part IV, Para. 37 (b)

Part IV, Para. 37 (c) (5)

Page

11

9

9

bo bo

IN THE

Supreme Cort of the United States

OCTOBER TERM, 1995

No.

AIRMAN Basic DAvID PABON,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

The petitioner, Airman Basic David Pabon, respectfully

prays that a writ of certiorari issue to review the order

and judgment of the United States Court of Appeals for

the Armed Forces entered in his case on 14 September

1995.

OPINIONS BELOW

The order and judgment of the United States Court of

Appeals for the Armed Forces, reported at 42 M.J. 404

(1995), is located at Appendix A. The unpublished

opinion of the United States Air Force Court of Military

Review, issued on 25 March 1994, is located at Appendix

B.

JURISDICTION

The final order of the United States Court of Appeals

for the Armed Forces was entered on 14 September 1995.

The jurisdiction of this Court is invoked under 28

U.S.C.A. § 1259(3).

2

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment of the Constitution states:

“No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases aris-

ing in the land or naval forces, or in the Militia,

when in actual service in time of War or public

danger; nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life, lib-

erty, or property, without due process of law; nor

shall private property be taken for public use, with-

out just compensation.”

STATUTORY (UNIFORM CODE OF

MILITARY JUSTICE) PROVISIONS INVOLVED

Article 112a(a) of the Uniform Code of Military Justice

states in pertinent part:

“Any person subject to this chapter who wrongtully

uses . . . a substance described in subsection (b)

[cocaine] shall be punished as a court-martial may

direct.”

MANUAL FOR COURTS-MARTIAL

PROVISIONS INVOLVED

Part IV, para 37b(1)(a) and (b) states as follows:

b. Elements.

(1) Wrongful use of controlled substance.

(a) That the accused used a controlled sub-

stance; and

(b) That the use by the accused was

wrongful

Part IV, para 37c(5) states in relevant part:

“.. . [U]se . . . of a controlled substance may be

inferred to be wrongful in the absence of evidence to

the contrary. The burden of going forward with evi-

3

dence with respect to any such exception in any

court-martial or other proceeding under the code

shall be upon the person claiming its benefit. If such

an issue is raised by the evidence presented, then the

burden of proof is upon the United States to estab-

lish that the use . . . was wrongful.”

STATEMENT OF THE CASE

On 29 January and 26 February 1992, Petitioner was

tried by general court-martial at Eaker Air Force Base,

Arkansas. The charge and specification on which he was

arraigned, his pleas, and the findings of the court-martial

are as follows:

Art

Chg UCMJ Summary of Offense Plea Finding

112A NG G

Wrongful use of cocaine btwn NG G

29 July 1991 and 5 August 1991.

Petitioner was sentenced, by a military judge sitting

alone, to be discharged with a dishonorable discharge, to

be confined for ten months, and to forfeit $350 pay per

month for ten months. R. 381. On 20 April 1992, the

Convening Authority approved the findings and sentence

as adjudged. In an unpublished opinion (at Appendix

B), the Air Force Court of Military Review affirmed the

approved findings and sentence on 25 March 1994. The

U.S. Court of Appeals for the Armed Forces subsequently

granted review of Petitioner’s case to determine whether

the evidence of record, as relayed forthwith, was legally

sufficient to support Petitioner’s conviction.

Mr Bill Tucker, an admitted drug abuser and OSI

(Office of Special Investigations) informant, R. 187, testi-

fied that on 3 August 1992 at approximately 1800 hours,

he observed Petitioner purchase a twenty-dollar ($20.00)

“rock” of crack cocaine from an individual known as

Mr Weaver. R. 200, 301. At the time of his observation,

Mr Tucker was some five to ten feet away from the

4

transacting parties. R. 300. He never actually saw the

“rock” purportedly purchased by Petitioner. See R. 302.

Neither did he see how much Petitioner allegedly paid for

it; he saw one bill, of unknown denomination, pass from

Petitioner to Mr Weaver. R. 302. He seems to base most

of his knowledge about the occurrence on what Mr

Weaver is alleged to have subsequently told him: “Chico

[Petitioner] just bought a rock for 20 dollars.” R. 302.

(Mr Weaver did not testify at Petitioner’s trial.)

Mr Tucker further testified (on direct examination)

that $20 worth of crack cocaine usually amounted to

“‘*bout a quarter gram.” R. 299. He also affirmed the

following statement/query of trial counsel:

“And when you purchase crack cocaine or when you

just purchase regular cocaine in the powder form, is

it always a hundred percent pure? Is there as [sic]

possibility that that coke may only, say, be fiftv per-

cent pure, with fifty percent of it being cut and isn’t

really cocaine?”

On re-direct, when asked how many “hits” an individual

would get from pipe-smoking a quarter-gram rock of crack

cocaine, Mr Tucker testified, “approximately four.” R.

303.

On cross-examination, Mr. Tucker stated that he’d

never seen Petitioner use cocaine. R. 303. He also testi-

fied that at the time he observed Petitioner’s purported

purchase of crack cocaine, he did not see the Petitioner

with a pipe or other means of smoking cocaine. R. 303.

Mr. Tucker agreed with defense counsel’s summary of his

testimony thusly, “. . . [A]s far as you know, Airman

Pabon didn’t use the cocaine. You just saw him purchase

it.” R. 303.

The Government sought to prove Petitioner’s alleged

use of cocaine by means of test results indicating the

presence of a cocaine metabolite, benzoylecgonine [here-

inafter “BE”], in Petitioner’s urine. The test results re-

5

lated to a sample of Petitioner’s urine which had been

collected on the evening of 4 Aug 91. R. 80, 100; App.

EX. VII. Prosecution Ex. 1. To explain these test results,

the Government called to the stand Dr. William D. Sweet,

an employee of the Drug Testing Division of Armstrong

Laboratory at Brooks Air Force Base. R. 323. Dr Sweet

was Offered to and accepted by the trial court as an expert

in the field of forensic toxicology. R. 323-24.

Through Dr Sweet’s testimony, the Governmer.. estab-

lished that BE cannot be produced by the human body

without an individual having previously ingested cocaine,

R. 325; that assuming an intact chain of custody on a

urine specimen containing BE, one can say with scientific

certainty that the specimen’s provider had to have previ-

ously used cocaine, R. 326; that the sample submitted by

Petitioner tested positive for BE at 1793 nanograms per

milliliter of urine, R. 327; that the legal “cut-off” for a

positive result was 150 nanograms per milliliter, R. 327;

that the procedures used to test Petitioner’s urine sample

are reliable and scientifically acceptable, see generally R.

327-330; and that the 1793 nanograms of BE was con-

sistent with an individual who had “snorted” cocaine two

or three days before. R. 331.

At this point in the direct examination, trial counsel

presented Dr Sweet with a hypothetical. R. 332. The

hypothetical revolved around one “hit” from a quarter-

gram of fifty percent pure crack cocaine. In presenting

this hypothetical to the witness, trial counsel tried to

present it in terms of quantity of pure cocaine consumed.

He rationalized that one-quarter (1%) gram of 50%

purity—one-eighth gram pure cocaine; that one of four hits

(i.e. one-fourth) from this one-eighth gram—one-twenty-

fourth gram of pure cocaine.’ Dr Sweet testified that the

one-twenty-fourth gram of pure cocaine would be about

1 Obviously, trial counsel erred in his arithmetic. One-fourth

of one-eighth is one-thirty-second (1/32).

6

30-35 miiligrams of cocaine; that consumption of this

amount twelve to twenty-four hours prior to collection of a

urine sample would yield results consistent with 1793

ng/ml of BE in the urine.

On cross-examination, defense counsel resurrected trial

counsel’s hypothetical, this time asking what Dr Sweet

would expect the BE level to be if one had smoked a

quarter-gram of 50% pure crack cocaine twenty four

hours prior to giving a urine sample. To this Dr Sweet

replied:

“If it were within 24 hours, at about 24 hours, it

would be, for 125 milligrams of real cocaine, it

would be considerably higher. I cannot quite regen-

erate the curves. It is difficult for humans to think

in terms of exponentials or logarithms, but it would

be considerably higher than 1700 nanograms. But

there again, as you mentioned, the concentration

depends on a number of things, largely the fluid in-

take of the individual, how fast urine is being pro-

duced or, in other words, how diluted or concentrated

the urine is.” R. 333.

Dr Sweet stated on cross-examination that 1793 nano-

grams of cocaine was consistent with unknowing ingestion.

R. 333-34.

The military judge then question Dr Sweet, asking what

he meant by 1793 nanograms being “consistent with” un-

knowing ingestion. Dr. Sweet answered thusly,

“It means that it is possible for an individual to be

given a small-enough dose without their knowledge

and with no sufficient physiological or psychological

symptoms to be aware that there was some sort of

pharmacologically-active drug that had been admin-

istered to them and still come up with this value.”

R. 334.

On re-direct, Dr Sweet affirmed that it was fair to say

that “any time an individual tests positive for BE at 1700

nanograms per milliliter, that every time there’s a possi-

bility it is unknowing ingestion.” R. 336.

Te ee Te

7

Subsequent to this, trial counsel, R. 336-37, the mili-

tary judge, R. 337-38, and defense counsel, R. 338, once

again all raised the previously presented hypotheticals:

TC: “Now I want to give you a hypothetical one

more time just to make sure we're all straight. Cap-

tain Russell touched on it also. We have a quarter-

gram of rock that is fifty percent pure, so an eighth

of a gram of cocaine, and that gives four hits. You

said if—to Captain Russell, if he smokes all of that

rock, smokes all eight of that gram, 125 milligrams,

that 24 hours later you would expect it to be consid-

erably higher than 1793, that’s what you said de-

pending upon...

DrS: “Given the urine flow rate, yes. . .

TC: “Okay.

DrS: “but that is correct.

TC: “But again, if that individual took one hit off

that crack pipe, 30 milligrams, would the 1793 be a

possibility, be in the ballpark?

DrS: “Yes.

TC: “All right, and again, this 1,793 nanograms

per milliliter, another just as likely possibility that

could be the result of heavier use, two, three days

beforehand. Is that...

Dr S: “That’s correct.

ok tk kK a

MJ: “You've said from four hits you would expect

more, from this hypothetical rock. . .

Des: “Yes.

MJ: “... that we’re dealing with. Four hits, you

would expect more than 1793, one hit is within the

ballpark. Where does two hits fall?

Dr S: “A little higher. What we’re talking about

in smoking crack, it depends pretty heavily on tech-

8

nique because the heat needed to volatilize the crack

cocaine can also destroy it, and so we wander into

worrying about those kinds of things, as well. You

started out with 125 or 250 milligrams of real co-

caine. It depends on how much gets in the lungs,

depends on how much is deposited in the pipe, how

much is destroyed by the heat, a whole large number

of other factors. So it’s a little—it’s hard to give

good, clear scenarios.

MJ: “I think you may have answered my question

right there.

DrS: “Okay.

MJ: “But please continue.

Dr S: “At—assuming delivery is essentially a hun-

dred percent efficient, about the best that I can sug-

gest without going and actually looking at the graph,

which would be rather helpful, we’d be talking about

something, I think, in the vicinity of 5,000 nano-

grams.

MJ: “For two hits?

DrS: “Yeah.

MJ: “Okay.

DrS: “But I’m quite uncertain about that.”

* * * *

DC: “Let me ask you this then. Would it be a

fair statement, though, that if someone smoked, and

there are various techniques, but if someone smoked

a quarter-gram of raw cocaine, that they would still

probably, regardless of the technique used, show

more than the 1793 nanograms if they smoked the

whole thing?

Dr S: “Not necessarily. Again, it would be so

technique-dependent that it would be very difficult to

say that that would be a fair statement in all situa-

tions.”

9

Article 112a of the Uniform Code of Military Justice

provides that the offense of illegal drug use consists of

two elements: (1) That the accused used a controlled

substance, and (2) that the use by the accused was

wrongful. See Part IV, para 37b, Manual for Courts-

Martial, United States (1995 ed.). According to the

Explanation section accompanying Article 112a, id. at

para 37c(5)—

“. . . [UJse .. . of a controlled substance may be

inferred to be wrongful in the absence of evidence

to the contrary. The burden of going forward with

evidence with respect to any such exception in any

court-martial or other proceeding under the code

shall be upon the person claiming its benefit. If such

an issue is raised by the evidence presented, then the

burden of proof is upon the United States to estab-

lish that the use . . . was wrongful.”

In accordance with military case law, it is well estab-

lished that without the testimony of an expert witness or

some other similar explanatory medium, a urinalysis “liti-

gation package” or laboratory result is not, in and of

itself, a sufficient basis upon which to premise a finding

that one has wrongfully used a contraband substance.

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

United States v. Harper, 22 M.J. 157 (C.M.A. 1986).

As the U.S. Court of Appeals for the Armed Forces has

specifically elaborated in United States v. Hunt, 33 M.J.

345, 347 (C.M.A. 1991) (citations omitted):

“If scientific-test evidence is used by the prosecution

to meet this burden, it must provide a rational basis

for understanding this evidence. If the prosecution

fails to offer sufficient expert evidence from which

the members may rationally find wrongful use, its

case is defective, and a conviction thereon may not

stand. The defense’s right to attack the prosecution’s

case on these matters does not relieve the prosecution

of its burden to produce understandable and suffi-

cient evidence in the first instance.”

10

In reviewing Petitioner’s case on the element of “wrong-

fulness”, the U.S. Court of Appeals for the Armed Forces

stated that while the prosecution was required to show

that Petitioner had knowingly used cocaine,

the prosecution was not required to use scientific

evidence to show that appellant’s ingestion of co-

caine was knowing, and it did not attempt to do so

in the present case. Instead, it relied on a permissive

inference of wrongfulness, including knowledge,

which can be drawn from proof of presence of the

drug’s constituent elements in a person’s urine.

42 M.J. at 406 (emphasis in original). Upholding the

legal sufficiency of the Government’s case, the Court

held that Dr Sweet’s testimony unambiguously linking

1793 ng/ml of cocaine with the possibility of unknowing

ingestion did not preclude drawing the inference of

knowledge. 42 M.J. at 407.

REASON FOR GRANTING THE WRIT

AS A MATTER OF DUE PROCESS, THE GOVERN-

MENT MAY NOT PREMISE A CONVICTION FOR

DRUG USE UPON A PERMISSIVE INFERENCE

THAT IT IS “MORE LIKELY THAN NOT” THAT A

GIVEN NANOGRAM LEVEL OF BENZOYLECGO-

NINE PROVING “USE” INDICATES “KNOWING”

USE WHERE THE GOVERNMENT’S EXPERT WIT-

NESS ACKNOWLEDGES THAT THIS SAME NANO-

GRAM LEVEL IS EQUALLY CONSISTENT WITH

UNKNOWING INGESTION AND GOVERNMENTAL

ATTEMPTS TO RULE OUT UNKNOWING INGES-

TION ARE BASED NOT UPON ESTABLISHED

FACTS BUT UPON SPECULATION AND HYPO-

THETICAL POSSIBILITIES

As this Honorable Court has stated, the value of a per-

missive inference and its validity under the Due Process

Clause varies from case to case depending on the strength

of the connection between the inference and the underly-

ing facts from which it is drawn. County Court of Ulster

11

Cty v. Allen, 442 U.S. 140, 156 (1979). The test is

whether there is a “rational connection” between the basic

facts that the prosecution has proved and the ultimate

fact presumed such that the latter is “more likely than

not to flow from” the former. /d. at 165.

In the instant case, in accordance with military prece-

dent (Murphy, 23 M.J. 310, and Harper, 22 M.J. 157),

the Government offered the testimony of an expert wit-

ness, Dr. William D. Sweet, to explain its urinalysis “liti-

gation package” thereby directly proving the element of

“use” and by inference therefrom the element of “wrong-

fulness” (i.e. knowing use). The evidence offered by Dr

Sweet was, however, confiicting. On the one hand, he

stated that 1,793 ng/ml of BE was consistent with some-

one having “snorted” cocaine several days prior to the

urinalysis or someone having smoked one “hit” of crack

cocaine within 24 hours of the urinalysis. On the other

hand, he affirmed that “any time an individual tests posi-

tive for BE at 1700 nanograms per milliliter, that every

time there’s a possibility it is unknowing ingestion.”

In an effort to explain this substantial and absolutely

critical discrepancy, the Government resorted to offering

general possibilities and hypothetical situations to explain

how knowing ingestion might account for the level of BE

in Petitioner’s urine. The Government was forced to use

possibilities and hypotheticals because they had abso-

lutely no knowledge as to how cocaine came to be in

Petitioner’s system. The most they had was testimony

from Mr. Tucker indicating his belief that Petitioner had

been in possession of “rock” cocaine. Notably, Mr

Tucker had not actually seen the alleged “rock,” and he

had never seen Petitioner use cocaine.

While his testimony, if believed, may tend to prove

Petitioner’s possession of cocaine, it certainly does not

prove knowing ingestion—if anything, Mr Tucker’s testi-

mony merely indicates Petitioner to be one who places

himself in an environment, i.e. in the clear presence of

12

known drug users and dealers, where unknowing inges-

tion presents itself as a real possibility.

The Government’s complete lack of knowledge as to

how the BE came to be in Petitioner’s urine is illustrated

by the time period of the charged offense and the differ-

ing hypotheticals which they offered to Dr Sweet. While

Mr Tucker made his supposed observation of Petitioner

purchasing “rock” cocaine on 3 August 91, the charge

at issue relates to use between 29 July and 5 August 91.

If the Government believed the source of Petitioner’s

positive urinalysis to have been the rock which Mr

Tucker allegedly saw him purchase, the charge would

only have been for use between 3 and 5 August. Addi-

tionally, if the Government had believed Petitioner’s posi-

tive urinalysis to have resulted from his possession of the

“rock” Mr Tucker testified about, they would not have

presented Dr Sweet with hypotheticals about “snorting”

cocaine two or three days prior to the 4 August urinaly-

sis. Hence the charged time period and the “snorting”

hypothetical show Governmental recognition of their lack

of any knowledge as to how the BE came to be in Peti-

tioner’s urine.

Given Dr Sweet’s unrefuted testimony that the 1793

ng ml of BE in Petitioner’s urine was consistent with

unknowing ingestion, the Government’s lack of knowl-

edge as to how the BE came to be in Petitioner’s urine

was fatal. It rendered the Government unable to pro-

vide the factfinder with a rational means of deciding

whether to choose the inference consistent with unknow-

ing ingestion or the inference consistent with knowing

ingestion. It destroyed any “rational connection” be-

tween the Government’s predicate fact of 1793 ng/ml of

BE in Petitioner’s urine sample and the ultimate fact

element (wrongful’/knowing use) sought to be proved;

because an inference of unknowing ingestion was equally

as likely as knowing ingestion, a conclusion of wrongful

use was not “more likely than not” to flow from the

ee ee eT aT ae

13

Government's predicate fact of 1793 ng/ml BE in Peti-

tioner’s urine sample. To arrive at a possible inference

consistent with knowing ingestion would have required

facts which the Government was either unwilling or un-

able to prove: how diluted or concentrated was the

urine; how was the cocaine assimilated into the body; if

smoked, what was the technique used; what, really, was

the quantity assimilated and when; and what, really, was

its level of purity?

While the Government did make some effort to “prove”

the quantity and quality of the cocaine, their efforts

hardly resulted in a basis sufficient to support an infer-

ence that was “more likely than not.” For purity levels,

the Government relied upon the affirmation of Mr Tucker

that when one purchases cocaine, it is not always pure;

that there is a “possibility that that coke may only, say,

be fifty percent pure, with fifty percent of it being cut

and isn’t really cocaine.” How is this generalized state-

ment relevant to the cocaine allegedly ingested by Peti-

tioner in the instant case? Mr Tucker offered no testi-

mony as to the purity level of cocaine being sold by Mr

Weaver on 3 August 91 (or at any other time). Maybe

Mr Weaver’s cocaine is 100 % pure: maybe it’s 80 %

pure; maybe it’s 65 % pure. The possibility that any

non-specifically identified cocaine may possibly be only

50% pure is not a sufficient basis for a rational fact-

finder to conclude that the cocaine somehow ingested by

Petitioner was ingested knowingly rather than unknow-

ingly.

With regard to quantities, the Government again relied

upon the testimony of Mr Tucker to establish that $20.00

usually bought “ bout a quarter-gram” of cocaine. Speak-

ing in the precise, scientific language employed by Dr

Sweet in arriving at his conclusions, what exactly is

“"bout” a quarter-gram of cocaine? The Government

further relied on trial counsel's erroneous calculation of

one “hit” being equal to 1/24th of a gram rather than

14

1/32 of a gram of cocaine. To the extent that Dr Sweet’s

responses were based upon this error, his replies indicat-

ing that a BE level of 1793 ng/ml was consistent with

knowing ingestion were also in error and incapable of

being relied upon by a rational factfinder.

Trial court’s error in calculation would seem, in its

own way, to bear out Dr Sweet’s disclaimer, that “It is |

difficult for humans to think in terms of exponentials or

logarithms.” As this statement indicates, not only were

there a lot of unknown variables involved in the facts

of ingestion but there was also a variable of unreliability

with regard to Dr Sweet’s testimony. More than once,

he gave indications of being at a loss without access to

written references. At one point, after responding to a

question by the military judge, he simply stated, “But

I’m quite uncertain about that.” In another instance he

openly acknowledged, that absent more specific facts,

“it’s hard to give good clear scenarios.” Overall, Dr

Sweet’s responses indicated an inability on his part to

accurately respond to the hypotheticals: he did not have

access to sufficient facts and references to appropriately

respond—consequently, he appears to have guessed a lot.

‘Understandably, all parties were confused by the situa- )

tion, as indicated by their repeated inquiries, especially the |

incessant reference to the same hypotheticals over and over

again, “just to make sure we're all straight.” R. 336.

Ultimately, the expert himself showed confusion. At least

three times, Dr Sweet testified that if Petitioner had

smoked the entire quarter gram (four “hits”) of raw

(50% pure) cocaine, he (Dr Sweet) would expect to see

a higher level of BE twenty-four hours later than 1793

ng/ml. R. 333, 336, 337. When presented with this

hypothetical one last time, Dr Sweet inconsistently replied

that one would not necessarily expect to see a higher

nanogram level due to the variety of techniques available

for smoking crack cocaine; that to say otherwise would

not be a fair statement in all situations. R. 338.

8 ee

15

The only clear point in Dr Sweet’s testimony was that a

urinalysis result of 1793 ng/ml of BE was consistent with

innocent ingestion. Obviously, this testimony was in con-

flict with other averments that this level of BE was also

consistent with knowing ingestion. Rather than resolving

this absolutely critical discrepancy in terms of specific case

facts, the Government relied upon general possibilities

(purity level of cocaine may possibly be 50% ), hypothe-

ticals (snorting cocaine 2-3 days ago; smoking cocaine

24 hours ago), and uncertain “expert” guesstimates (de-

pending upon technique of assimilation; urine dilution;

references not before the expert). These general possibili-

ties, hypotheticals, and guesstimates were confusing; ulti-

matly they failed to offer any basis upon which a rational

factfinder could decide which of the two competing infer-

ences to draw from the positive BE level.

By virtue of its own expert, the Government introduced

evidence negating any inference of wrongfulness. In so

doing, it negated its ability to rely upon such an infer-

ence and brought upon itself the burden of having to

prove the element of wrongfulness beyond a reasonable

doubt. (“If such an issue [of innocent ingestion] is raised

by the evidence presented, then the burden of proof is

upon the United States to establish that the use . . . was

wrongful.” Part IV, para 37c, Manual for Courts-Martial,

United States (1995 ed).) The Government’s desperate

resort to various hypotheticals to meet that burden, while

inviting speculation as to ways in which wrongful use

could possibly have occurred, failed to rule out the equal

possibility of innocent ingestion. The presence of BE

at 1793 ng/ml in Petitioner’s urine established only that

it was just as likely that the Petitioner’s ingestion of

cocaine was unknowing as it was knowing.

16

CONCLUSION

Petitioner is just one of many Air Force servicemembers

who have spent time in confinement and received a puni-

tive discharge based upon Prosecutorial bootstrapping of

one element onto another. In these so-called UA (urinaly-

sis) cases, the Government proves use by virtue of the

reported presence of (invisible) drug metabolites in an

accused’s urine. Lacking anything other than the urine

sample as evidence though, the Government is without

knowledge as to how the drug purportedly found its way

into the accused’s system. Unable to directly prove wrong-

ful use, it relies upon a permissive inference to fill the

void. Hence, the Government's entire case consists of

nothing more than a urine sample which a laboratory has

pronounced positive for drug metabolites.

Given that that is all it takes for a successful prosecu-

tion, it is one of every Air Force member’s worst night-

mares to have a urinalysis result come back positive. (As

part of a service-wide random urinalysis inspection pro-

gram, all Air Force members are subject to being required

to provide a urine sample.) If the sample is reported back

as positive, the Government automatically has, in essence,

a legally sufficient case to sustain a conviction. An in-

nocent accused, on the other hand, is left in the unenviable

position of having to explain, when, in fact, he has no

idea, why his sample was reported positive for drugs or

how drugs may have come to be in his system.

Ironically, the Government has basically no idea either.

While they may have evidence that drugs passed through

an individual’s body, the urine sample doesn’t tell them

how a substance was ingested, what the circumstances of

ingestion were, what the original quantity of ingestion

“was; or exactly when it was ingested. Nonetheless, they

are allowed to infer from the element of use, the element

of wrongfulness. Really, from their perspective, the offense

is a single-element offense: if they prove the element of

use, they’ve presumptively proved the element of wrong-

fulness. In courts-martial urinalysis cases, the Govern-

17

ment has been and continues to prove each and every

element beyond a reasonable doubt by simply proving one.

Petitioner submits that the one-element prosecution of his

two-element conviction was in violation of the Due Process

Clause.

WHEREFORE, Petitioner respectfully requests that this

Honorable Court grant his petition for a writ of certiorari

to the U.S. Court of Appeals for the Armed Forces.

December 1995

Respectfully submitted,

JAY LINDSBY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

Topi S. CARNES

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Room 343

Bolling AFB, DC 20332-8000

(202) 767-1562

APPENDICES

la

APPENDIX A

U.S. COURT OF APPEALS

FOR THE ARMED FORCES

No. 94-0856

CMR 29878

UNITED STATES,

¥ Appellee

DAVID PABON,

Airman Basic U.S. Air Force,

Appellant.

Argued April 3, 1995

Decided Sept. 14, 1995

OPINION OF THE COURT

SULLIVAN, Chief Judge:

1. In early 1992, appellant was tried by a general

court-martial composed of a military judge sitting alone

at Eaker Air Force Base, Arkansas. Contrary to his

pleas, he was found guilty of wrongful use of cocaine, in

violation of Article 112a, Uniform Code of Military

Justice, 10 USC § 912a. He was sentenced to a dishon-

orable discharge, as well as confinement and forfeiture of

$350 pay per month for 10 months. On April 20, 1992,

the convening authority approved this sentence. The

Court of Military Review * affirmed in an unpuolished

opinion on March 25, 1994, 1994 WL 108866.

* See 41 MJ 213, 229 (1994).

2a

2. On November 30, 1994, this Court granted review

on the following issue raised by appellate defense counsel:

WHETHER THE EVIDENCE IS LEGALLY IN-

SUFFICIENT TO SUPPORT A CONVICTION

FOR WRONGFUL USE OF COCAINE WHERE

THE EXPERT TESTIMONY RELATING TO

USE ACKNOWLEDGES THAT INNOCENT IN-

GESTION IS CONSISTENT WITH THE UNDIS-

PUTED NANOGRAM LEVEL OF BENZOY-

LECGONINE [BE] AND GOVERNMENTAL

ATTEMPTS TO REFUTE THIS ARE BASED

SOLELY UPON HYPOTHETICAL POSSIBILI-

TIES.

We hold that the evidence presented in this case was as

a whole legally sufficient to support appellant’s convic-

tion for using cocaine. See United States v. Ford, 23

MJ 331, 334-35 (CMA 1987). See generally United

States v. Brown, 776 F.2d 397, 403 (2d Cir. 1985) (In-

ferences to support conviction beyond a reasonable doubt

need not be “ineluctable.”), cert. denied, 475 U.S. 1141,

106 S.Ct. 1793, 90 L.Ed.2d 339 (1986).

3. The prosecution in this case called as a witness

Mr. Billy Tucker, who testified that he observed appellant

appearing to buy rock cocaine on August 3, 1991. He

said that he observed appellant receiving a single rock of

cocaine from another person for a single bill. He also

testified without objection that the seller of the cocaine

subsequently told him that appellant bought a rock of

cocaine for $20.00.

4. The prosecution also presented evidence that tests

performed on appellant’s urine on August 14, 1991, were

positive for cocaine. Doctor Sweet, accepted as an ex-

pert in forensic toxicology, explained the test procedures —

and results to the court. He testified that appellant’s

urine sample contained the cocaine metabolite at a level

of 1793 nanograms per milliliter. He further testified that

such a nanogram count showed cocaine use “with a very

3a

high degree of probabiltiy” and was consistent with a

single use within the last 24 hours or heavier use at an

earlier time.

5. On cross-examination, Doctor Sweet testified that

1793 nanograms of cocaine was also “consistent with un-

knowing ingestion.” The military judge further ques-

tioned him about 1793 nanograms being consistent with

unknowing ingestion. Doctor Sweet explained what he

meant by “consistent with”:

It means that it is possible for an individual to be

given a small enough dose without their knowledge

and with no sufficient physiological or psychological

symptoms to be aware that there was some sort of

pharmacologically-active drug that had been admin-

istered to them and still come up with this value.

On redirect examination, Doctor Sweet agreed “that any

time an individual tests positive for BE at 1700 nano-

grams per milliliter, that every time there’s a possibility it

is unknowing ingestion.”

6. Our standard for reviewing cases for legal suffi-

ciency is based on the Supreme Court decision in Jack-

son v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789,

61 L.Ed.2d 560 (1979). See United States v. Hart, 25

MJ 143 (CMA 1987). Our general inquiry is “whether

after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a rea-

sonable doubt.” Jackson v. Virginia, 443 U.S. at 319,

99 S.Ct. at 2789 (last emphasis added). Such a limited

inquiry reflects our intent to “give[] full play to the re-

sponsibility of the trier of fact fairly to resolve conflicts

in the testimony, to weight the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.”

25 MJ at 146, quoting Jackson v. Virginia, 443 U.S. at

319, 99 S.Ct. at 2789 (emphasis added). We have ap-

plied this standard in cases where the prosecution has

4a

employed urinalysis results and expert testimony to show

prior drug use. See United States v. Hunt, 33 MJ 345

(CMA 1991); United States v. Mack, 33 MJ 251 (CMA

1991); United States v. Ford, 23 MJ 331 (CMA 1987);

United States v. Murphy, 23 MJ 310 (CMA 1987);

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

7. Appellant asserts that the prosecution presented in-

ternally inconsistent evidence of his guilt of wrongfully

using cocaine. See United States v. Mack, supra. He

argues that Doctor Sweet’s expert testimony concerning

the high probability of cocaine use in this case conflicts

with this same doctor’s testimony that such a nanogram

count is consistent with unknowing ingestion. He further

contends that such an inconsistency in the Government’s

proof was not adequately explained by other evidence in

this case. Relying on our decision in Mack, he concludes

that the prosecution could not rely on a permissive infer-

ence of knowledge in this case, so the record was insuffi-

cient as a matter of law to support his conviction. We

disagree.

8. We initially note that the prosecution in this case

was required to show that appellant knowingly used co-

caine in order to establish a violation of Article 112a.

See United States v. Ford, supra; United States v. Harper,

22 MJ at 162; para. 37c(5), Part IV, Manual for Court-

Martial, United States, 1984. However, the prosecution

was not required to use scientific evidence to show that

appellant’s ingestion of cocaine was knowing, and it did

not attempt to do so in the present case. Instead, it relied

on a permissive inference of wrongfulness, including

knowledge, which can be drawn from proof of presence of

the drug’s constitutent elements in a person’s urine. See

United States v. Ford, 23 MJ at 336; United States v.

Harper, supra at 162-63.

9. Our decision in Mack considered the legal suffi-

ciency of scientific proof to show the predicate for the

above-noted permissive inference of knowledge, i.e., proof

Sa

of drug ingestion. See United States v. Thompson, 34

MJ 287 (CMA 1992); United States v. Boulden, 29 MJ

44 (CMA 1989). In Mack, the record showed that a

single sample of the accused’s urine tested twice by differ-

ent laboratories had inconsistent and particularly unex-

plained results. On the other hand, there was only one

laboratory analysis in this case, and the expert testimony

was unequivocal that the resulting nanogram count

showed ingestion of cocaine. Accordingly, appellant’s re-

liance on Mack in his case is neither persuasive nor par-

ticularly apt.

10. It is true, however, that Doctor Sweet on cross-

examination did admit “that 1793 nanograms is also

consistent with the possibility of unknown ingestion.”

Moreover, he explained to the judge that this value on

the test could be produced by giving “a small enough

dose without their [the user’s] knowledge and with no

sufficent physiological or psychological symptoms.”

Thus, appellant asserts that the prosecution should not be

allowed to rely on the permissive inference of knowledge

where it also introduces evidence purportedly contradic-

ting that inference.

11. We resolved a similar question years ago in

United States v. Ford, 23 MJ at 336. There, this Court

said:

This defense evidence challenges the existence of

the fact to be inferred, wrongfulness and, more par-

ticularly, knowledge. Our case law has established

that testimony by an accused that he did not know-

ingly use drugs and cannot honestly account for its

presence in his body is sufficient to raise an issue of

innocent ingestion. United States v. Grier, 6 USCMA

218, 19 CMR 344 (1955). While his additional

explanation concerning his wife could be con-

sidered speculative by the factfinder, see United

States v. Greenwood, 6 USCMA 209, 19 CMR 335

(1955), it arguably added some weight to his basic

6a

denial of knowledge. See United States v. Hughes, 5

USCMA 374, 378, 17 CMR 374, 378 (1954). In

any event, evidence which contradicts directly or

circumstantially the inference to be drawn does not

per se bar drawing the inference or require that the

prosecution introduce evidence that appellant’s wife

did not secretly plant marijuana in his food. Instead,

the prosecution had to persuade the members be-

yond a reasonable doubt on credibility and probabil-

ity grounds that this evidence should be disbelieved

and the inference should nonetheless be drawn and

given such weight to find knowledge beyond a rea-

sonable doubt. See generally 30 Am.Jur.2d, Evi-

dence §§ 1081, 1083-84 (1967). Accordingly, the

evidence is not insufficient on this basis.

( Footnote omitted. )

12. Turning to appellant’se case, we note that Doctor

Sweet’s initial testimony did not directly or indirectly con-

tradict an inference of knowing use in this case. His

testimony simply established that the laboratory tests

conducted did not show knowledge. The record states:

Q: Okay, and you can’t tell from the test

whether somebody knew they were ingesting cocaine

or whether they didn’t know.

A: That is correct. That information is not re-

corded on the molecules.

Moreover, his later testimony that the particular nano-

gram count in this case could be caused by unknowing

ingestion raised only a theoretical possibility of conflict

with the inferred fact of knowledge. See United States v.

Johnson, 42 F.3d 1312, 1319 (10th Cir. 1994) (Evi-

dence “need not negate all possibilities except guilt.”),

cert. denied, US. , 115 S.Ct. 1439, 131 L.Ed.

2d 318 (1995). Finally, Mr. Tucker’s testimony con-

cerning appellant’s apparent purchase of cocaine within

the time period of inferred use provided a substantial

7a

basis for discounting even that theoretical possibility in

appellant’s case. Accordingly, we conclude that the

showing of such a possibility of unknowing ingestion did

not preclude drawing the inference of knowledge in this

case or otherwise render this record legally insufficient to

support appellant’s conviction for drug use. See also

United States v. Jensen, 41 F.3d 946, 954 (Sth Cir.

1994), cert. denied, US. ; io mee BGs.

131 L.Ed.2d 754 (1995); United States v. D'Amato, 39

F.3d 1249, 1257 (2d Cir.1994).

The decision of the United States Air Force Court of

Military Review is affirmed.

Judges COX, CRAWFORD, GIERKE and WISS con-

cur.

8a

APPENDIX B

UNITED STATES AIR FORCE

COURT OF MILITARY REVIEW

UNITED STATES

Vv.

Airman Basic DAVID PABOoN, FR 116-56-7005

United States Air Force

ACM 29878

25 March 1994

Sentence adjudged 26 February 1992 by GCM

convened at Eaker Air Force Base, Arkansas.

Military Judge: Peter R. Held (sitting alone).

Approved sentence: Dishonorable discharge,

confinement for 10 months, and forfeiture of

$350 pay per month for 10 months.

Before

SNYDER, RAICHLE, and YOUNG

Appellate Military Judges

OPINION OF THE COURT

YOUNG, Judge: |

A military judge convicted appellant of wrongful use

of cocaine and sentenced him to a dishonorable discharge,

confinement for 10 months, and forfeiture of $350 pay

9a

per month for 10 months. Appellant assigns three errors:

(1) the military judge erred by failing to suppress appel-

ant’s urinalysis results; (2) the military judge erred by

refusing to order the government to provide additional

tests of appellant’s urine sample; and (3) appellant was

selectively prosecuted. We disagree and affirm.

I. Facts

Appellant was scheduled to be tried by court-martial

for larceny and drug related charges in August 1991.

Two days before trial, Special Agent Kreiger, Air Force

Office of Special Investigations (AFOSI), met with Mr.

Tucker, an informant, to try to convince him to testify

against appellant. Mr. Tucker had provided the incrimi-

nating information against appellant which led to the

charges in that trial. During the meeting, Mr. Tucker

told SA Krieger that he had seen appellant purchase co-

caine the previous evening. Special Agent Krieger ob-

tained a search and seizure authorization for appellant’s

urine, and appellant provided a specimen. The specimen

tested positive for the presence of benzoylecgonine, a

metabolite of cocaine.

II. Motion to Suppress the Urinalysis Results

Prior to entering his plea, appellant moved to sup-

press the results of the urinalysis, claiming the search au-

thorization was granted despite a lack of probable cause,

and then later, that the information upon which the

search authorization was granted was gathered by Special

Agent Krieger with reckless disregard for the truth. The

military judge denied both motions. Before this Court,

appellant assigns only the latter as error, but in his brief,

he also alleges that the search authority lacked probable

cause. We will deal with these issues separately.

10a

A. Government Agent’s Reckless Disregard for the

Truth

At trial, the defense alleged that the government in-

formant, Mr. Tucker, was unreliable and that Special

Agent Krieger recklessly disregarded the truth of Tucker’s

unreliability in briefing the search authority. Appellant

asserts Tucker was unreliable because he continued to use

cocaine while working for AFOSI, he stole money from

his job on base in order to buy illegal drugs, and he stole

from his mother’s business causing it to go bankrupt. Ap-

pellant believes Special Agent Krieger had a duty to dis-

cover this information and brief it to the search authority.

The military judge found that Special Agent Krieger (1)

was unaware of this information, (2) did not act in reck-

less disregard of the truth, and (3) even if he did act in

reckless disregard of the truth, the other evidence pro-

vided to the search authority was sufficient to establish

probable cause.

If the defense establishes by a preponderance of the

evidence that a government agent made a false statement

knowingly and intentionally, or in reckless disregard of

the truth, to the search authority, and the false statement

was necessary to the finding of probable cause, the prose-

cution must show by a preponderance of the evidence that

the evidence remaining after the false information is set

aside is sufficient to establish probable cause: If the pros-

ecution fails to meet this burden, the evidence must be

suppressed unless the search is otherwise lawful under

the Military Rules of Evidence. Mil. R. Evid. 311(g)

(2); Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674,

57 L. Ed. 2d 667 (1978).

We analyze a government agent’s omission of informa-

tion in the same manner as misrepresentations. “Omis-

sions do not ‘undermine probable cause’ unless they are

intentional or made ‘with reckless disregard for the’ ac-

curacy of the information. Merely ‘negligent omissions’

do not ‘undermine’ probable cause.” United States v.

lla

Figueroa, 35 M.J. 54, 56 (C.M.A. 1992), cert. denied,

US. » 113 &. Ce. 1287, 122 L. Ed. 2d 655

(1993) (quoting United States v. Martin, 615 F.2d 318,

329 (5th Cir. 1980)); see United States v. Miller, 753

F.2d 1475 (9th Cir. 1985) (officers tried to check in-

formant’s background, but failed to learn of prior perjury

conviction or bizarre behavior upon his arrest by another

agency; this amounted to only negligence).

The military judge’s finding that Special Agent Krieger’s

statement to the search authority was neither reckless nor

dishonest is a factual determination which we will review

under the clearly erroneous standard. United States v.

Taxacher, 902 F.2d 867, §&71 (11th Cir. 1990) citing

United States v. Cancela, 812 F.2d 1340, 1343 (11th

Cir. 1987), cert. denied, —— US. SS Gy Ce

1307, L. Ed. 2d (1991). We conclude that

the military judge’s findings are based on the evidence

of record and are not erroneous. Special Agent Kreiger

made the normal inquiries to determine if Mr. Tucker had

a criminal record; he did not. Special Agent Kreiger

was also aware of the high regard other law enforcement

agencies had for Mr. Tucker’s veracity concerning drug

operations, and had himself been able to verify some of

the information Mr. Tucker provided.

Assuming arguendo that Mr. Tucker had continued to

use cocaine and had stolen money from his employer, we

doubt that would substantially alter the search authority’s

evaluation of his credibility with respect to appellant’s use

of cocaine. See United States v. Bagley, 473 U.S. 667,

682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985).

B. Piobable Cause for the Search and Seizure

Despite our plenary powers under Article 66, UCMJ,

normally, our duty to review search authorizations will be

limited to ensuring “that the commander ‘had a substan-

tial basis for . . . conclud{ing] that probable cause ex-

isted.”” Figueroa, 35 M.J. at 56 (quoting [Illinois v.

Gates, 462 U.S. 213, 238, 103 S. Ct. 2332, 76 L. Ed.

"za

2d 527 (1983)). Although we have de novo fact-finding

power, usually, we will accept the military judge’s find-

ings of fact, as to what matters were presented to the

search authority, unless they are unsupported by the evi-

dence of record or clearly erroneous. See United States

v. Burris, 21 M.J. 140, 144 (C.M.A. 1985).

“Probable cause to search exists when there is a rea-

sonable belief that the person, property or evidence sought

is located in the place or on the person to be searched.”

Mil. R. Evid. 315(f)(2). Probable cause to seize prop-

erty or evidence exists when there is a reasonable belief

that the property or evidence is evidence of a crime. Mil.

R. Evid. 316(b). In this case, the search authority had

to decide whether, given all the circumstances provided

to him, a fair probability existed that appellant’s urine

contained evidence of illegal drug use. Figueroa, 35

M.J. at 56 citing Gates, 462 U.S. at 238-39, 103 S. Ct.

at 2332.

The defense alleges the search authority, Colonel Lentz,

did not have sufficient information about the informant’s

reliability upon which to find probable cause. On this

motion at trial, the military judge heard the testimony of

Special Agent Krieger and was provided the stipulated

testimony of Colonel Lentz. The military judge found that

Special Agent Krieger told Colonel Lentz “the informant

had worked for the [AFOSI] in the past, had proven

reliable in the past, and was the same informant who had

previously provided information on the accused in the

past.” We agree with, and adopt as our own, the military

judge’s findings of fact. We hold that Colonel Lentz was

briefed on the informant’s reliability and had a substan-

tial basis for concluding that probable cause existed.

III. Motion to Compel Additional Government

Testing of Evidence

At trial, the military judge denied appellant’s motion to

compel the government to test appellant’s urine for

ecgoninemethylester (EME) and raw cocaine, and to

Nabe tt me

'434

retest for benzoylecgonine (BE). Before this Court, ap-

pellant claims the military judge’s ruling was prejudicial

error.

When necessary for an adequate defense, Air Force

members are entitled to expert assistance from the investi-

gative stage through the appellate process. United States

v. Robinson, M.J. —— (C.M.A. 4 March 1994);

Article 46, UCMJ, 10 U.S.C. § 846 (1988); R.C.M. 703

(d). The burden is on the defense to demonstrate the

necessity for the services. United States v. Garries, 22

M.J. 228, 291 (C.M.A. 1986), cert. denied, 479 US.

985 (1986). We will test the military judge’s ruling for

an abuse of discretion. Robinson, M.J. at »

In support of the motion, the defense presented a

transcript of the testimony of a forensic toxicologist from

another court-martial. The toxicologist testified that, de-

pending upon the length of time between the ingestion of

cocaine and the giving of the specimen, an analysis of

the urine would reveal the presence of BE, raw cocaine,

and EME. Raw cocaine would be found up to 10 hours

after use, EME up to 48 hours, and BE, at the Department

of Defense cutoff level, for up to 72 hours. Therefore, one

would not expect an unadulterated sample to contain both

raw cocaine and BE, but no EME. A government toxi-

cologist testified for the prosecution that placing raw co-

caine in a urine sample would produce BE by hydrolysis

only if the acidity (pH) and temperature of the urine

were within a specific range. He asserted that 2 percent of

the population lack the enzyme necessary to produce the

EME metabolite and that because of poor isolation tech-

niques in manufacturing, BE and EME are often present

in raw cocaine purchased on the street. Appellant stipu-

lated to the chain of custody of the specimen once it left

the possession of the lab technician who observed appel-

lant urinate. Appellant testified to the circumstances sur-

rounding his providing the specimen, apparently in an

effort to show that someone could have tampered with it;

"faa

however, his testimony only established the chain of

custody of the specimen from the time the urine left his

body until the bottle was sealed with tamper-resistant tape.

The military judge concluded that the defense had pro-

vided no credible evidence to show tampering with appel-

lant’s specimen or a deficiency in the chain of custody.

Therefore, he denied the motion because the defense had

failed to show the additional testing would be relevant

and necessary. We concur in the military judge’s findings

and therefore conclude that he did not abuse his discretion

in denying the motion.

IV. Selective Prosecution

At trial and on appeal, appellant asserts that he was dis-

criminatorily selected for prosecution because of his race.

He testified that military members belonging to racial mi-

norities were tried by courts-martial and punished under

Article 15, UCMJ, in numbers out of proportion to their

numbers on the base.

Public officials have broad discretion in making deci-

sions to prosecute. “There is a strong presumption that

the convening authority performs his duties as a public

official without bias. United States v. Hagen, 25 M.J. 78,

84 (C.M.A. 1987), cert. denied, 484 U.S. 1060, 108 S.

Ct. 1015, 98 L. Ed. 981 (1988). The test for selective

prosecution is well established.

To support a defense of selective or discriminatory

prosecution, a defendant bears the heavy burden of

establishing, at least prima facie, (1) that, while

others similarly situated have not generally been

proceeded against because of conduct of the type

forming the basis of the charge against him, he has

been singled out for prosecution, and (2) that the

prosecution has been invidious or in bad faith, i.e.,

based upon such impermissible considerations as race,

religion, or the desire to prevent his exercise of con-

stitutional rights.

13a

United States v. Garwood, 20 M.J. 148, 154 (CM.A.

1985), cert. denied, 474 U.S. 1005, 106 S. Ct. 524, 88

L. Ed. 456 (1985), quoting United States v. Berrios, 501

F.2d 1207, 1211 (2d Cir. 1974).

Appellant failed to establish either prong of th: test.

He did not show that others similarly situated have not

been prosecuted for using cocaine. Furthermore, he failed

to show that the government singled him out for prosecu-

tion because of his race. His use of statistics is net per-

suasive. See McClesky v. Kemp, 481 U.S. 282, 1075S. Ct.

1756, 95 L. Ed. 2d 262 (1987).

V. Conclusion

The findings and sentence are correct in law and fact,

and no error prejudicial to the substantial rights of appel-

lant was committed. Articles 59(a), 66(c), UCMJ. Ac-

cordingly, the findings and approved sentence are

AFFIRMED.

Senior Judges SNYDER and RAICHLE concur.

[SEAL]

OFFICIAL

s Alvin J. Stribling

ALVIN J. STRIBLING

Technical Sergeant, USAF

Chief Court Administrator,

AFCMR

WT U. S. GOVERNMENT PRINTING OFrice; 1995 402094 142003