Petition for Writ of Certiorari — Curtis v. United States

a Supreme Court, U.S.

i |) FILED

961601 APR 91997

OREMCE OF THE CLERK

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

TECHNICAL SERGEANT DAVID R. CURTIS,

PETITIONER

V.

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

W. Craig Mullen

Captain, United States Air Force

Appellate Defense Division

Counsel of Record and for the Petitioner

Air Force Legal Services Agency

Appellate Defense Division

172 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

202-767-1562

April 1997

QUESTION PRESENTED

Whether the United States Court of Appeals for the

Armed Forces erred when it found that questions, testimony

and argument concerning Lasix, a nonprescription diuretic,

was relevant to the offense for which petitioner was being

tried.

Pattern RI EP

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TABLE OF CONTENTS

Page

5 ai Ss a bo ae aed ne koe A |

Se Pood ee AN cue 55 otek bok R YS

PRUE GPE” BORE PAE Sb eee h eee ceed e eyes |

REASON FOR GRANTING THE WRIT ............. 7

THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES ERRED WHEN IT

FOUND THAT QUESTIONS, TESTIMONY, AND

ARGUMENT CONCERNING LASIX, A

NONPRESCRIPTION DIURETIC, WERE

RELEVANT TO THE OFFENSE FOR WHICH

PETITIONER WAS BEING TRIED.

ean ChE sR eek aR NW eevee nye 10

APPENDIX A (Opinion of the United States

Court of Appeals for the Armed Forces)............... la

APPENDIX B (Opinion of the United States

Air Force Court of Criminal Appeals) ................ 8a

iv

TABLE OF AUTHORITIES

Page

Supreme Court Cases:

Bourjaily v. United States, 483 U.S. 171,

IG? &. Ct. Zi 7D, FF Ae LAS GIFS) oe he cs ns 6

Military Cases:

United States v. Bins, 43 M.J. 79 (1995) .......... 5

United States v. Curtis, ACM S28841

(A.F. Ct. Crim. App. 29 August 1995) ........... boot

United States v. Elmore, 33 M.J. 387

We OS | > | Preise genar Gug ong tere erp pees ee mney 4

United States v. Gray, 40 M.J. 77

eae aS Fe ak OES ER ee ee ae IS eR eee 5

United States v. Orsburn, 31 M.J. 182

es CR aks Cote eS eee eee eee 5

United States v. Perry, 37 M.J. 363

ee OE. ea Se Ae A Ao a 9,10

United States v. Quigley, 40 M.J. 64

ahs Ra ack C1 eee ek oh er eee Kee 6

United States v. Rust, 41 M.J. 472 (1995) ......... 8

United States v. Scheffer, 41 M.J. 683

(A.F. Ct. Crim. App. 1995), rev. on other grounds

RADA BORIS) 8K oS oR KETO RAK 5

United States v. Shover, 42 M.J. 753 ]

LAD. 2 CHU FE, Sas cick ekoanvewes 5

United States v. Sullivan, 42 M.J. 360 (1995) ...... 6

United States v. Thomas, 40 M.J. 252

Rees SOE wi ooo a CE beh ea 4

United States v. Walker, 42 M.J. 67 (1995) ........ 4

Federal Statutes:

28 U.S.C.A. § 1259(3) (West Supp. 1996) ........ |

10 U.S.C.A. § 867(a) (West Supp. 1996) ......... I

Manual for Courts-Martial, United States, 1995:

PRIETO GA 85 ok aR REA CES AOE Oe eTa 4,

Pao GE ie eke ss eae eres 4,

EE Ae WS as ck ace ncR eee eeekeeess 4,5,8,9

Other Authorities:

S. Saltzburg, L. Schinasi, & D. Schlueter, Military

Rules of Evidence Manual 422 (3rd ed. 1991) ..... 5

RR a nn ia RTI

The petitioner, Technical Sergeant David R. Curtis,

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 22 January 1997,

OPINIONS BELOW

The order and judgment of the United States Court of

Appeals for the Armed Forces is not yet reported in an

advance sheet or the Military Justice Reporter. The decision,

No. 96-0104,—-M.J.— (22 January 1997), is located at

Appendix A. The opinion of the United States Air Force Court

of Criminal Appeals, ACM S28841 (A.F. Ct. Crim. App.

1995, 29 August 1995), is located at Appendix B.

JURISDICTION

The judgment of the United States Court of Appeals for

the Armed Forces was entered on 22 January 1997. The

jurisdiction of this Court is invoked under 28 U.S.C.A. § 1259

(3) (West Supp. 1996) and 10 U.S.C.A. § 867(a) (West Supp.

1996).

STATEMENT OF THE CASE

At the petitioner’s special court-martial on the charges of

wrongful use and wrongful possession of marijuana in

violation of Article 112a, Uniform Code of Military Justice,

the military judge permitted court members to ask questions,

witnesses to testify, and counsel to argue, concerning Lasix, a

nonprescription diuretic. Defense Counsel objected claiming

that the solicited evidence was not relevant to the offenses for

which petitioner was being tried.

NM

Petitioner was convicted and was sentenced to a bad conduct

discharge, confinement for six months!, and a reduction to

Senior Airman (E-4).

On appeal to the Air Force Court of Criminal Appeals,

the Air Force Court held that, once the report which contained

the word “Lasix” was properly admitted into evidence,

questions regarding Lasix were relevant. On appeal to the

United States Court of Appeals for the Armed Forces, that

Court agreed that evidence relating to Lasix was relevant.

REASON FOR GRANTING THE WRIT

THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES ERRED WHEN

IT FOUND THAT QUESTIONS, TESTIMONY,

AND ARGUMENT CONCERNING LASIX, A

NONPRESCRIPTION DIURETIC, WERE

RELEVANT TO THE OFFENSE FOR WHICH

PETITIONER WAS BEING TRIED.

The Air Force Office of Special Investigations (OSI)

began an investigation of the petitioner based on allegations

made against him by his sons, Daniel Curtis and Matt Curtis.

(R. 96-97). On 2 February 1993, the petitioner’s house was

searched by the OSI and civilian police officers pursuant to a

civilian search warrant. (R. 98). The search revealed

marijuana seeds and stems, a paper clip with marijuana resin

on it, and a straw with marijuana resin on it. (R. 111-114,

Pros. Ex. 1).

During the search, the petitioner was held at the Security

Police office. Following the search, the petitioner was taken to

the OSI office where he volunteered to take a urinalysis test.

'This was the maximum amount of confinement that could be imposed by

a Special Court-Martial.

En

His sample tested positive for THC, a metabolite of

marijuana. (R. 245-246). The DOD cutoff level for THC is 15

ng/ml, the petitioner’s sample tested at 22 ng/ml. (Pros. Ex.

12, p. 1).

The petitioner’s wife, Robin Curtis, testified that she was

a manic depressive who had smoked marijuana for several

years. She testified that the marijuana found in the house was

hers and that the petitioner was unaware of it or of her use of

marijuana. (R. 304-305).

The petitioner testified that he had not knowingly used

marijuana during the period alleged. He was unaware of how

the marijuana got into his body and could only speculate that

he had ingested it by eating chocolate chip cookies made from

marijuana, given to him by his son with whom he did not have

a good relationship. (R. 246-249).

During the search of the petitioner’s home, the OSI also

discovered a substance called “Lasix.” Lasix is a non-

prescription diuretic used to increase urination. Since THC

(the marijuana metabolite) is excreted through urine, there is a

belief by some that use of Lasix may help the body void the

traces of marijuana. United States v. Curtis, ACM $28841, (29

August 1995, slip op. at 5)(Appendix B). There is no evidence

in the record to show that petitioner holds this “belief.” No

charges were brought against the petitioner related to the

Lasix’. The word “Lasix” appeared under the column

“Additional Drug Tests” on the Urinalysis Custody and Report

Record. (Pros. Ex. 12, p. 2). The government expert witness

testified on direct examination that “Lasix” is a trade name for

furosemide, a diuretic, and that Brooks Lab does not have the

capability to test for it. (R. 179).

, ° ° a ©

“Lasix itself is not a controlled substance.

SMSgt Landis, one of the court members (military juror),

asked the expert witness additional questions concerning the

Lasix (App. Ex. VII, R. 223-224). The defense objected to the

questions on grounds of relevance. The military judge allowed

the questions. In response to the first question, the witness

testified:

My understanding of the sample or the

circumstance was that there was suspicion that the

individual was taking Lasix to dilute the urine

sample; and, therefore, they requested that the

sample be tested for the presence of Lasix.

(R. 223).

During trial, the military judge allowed questions,

testimony and argument concerning a Lasix. Trial counsel

elicited testimony from the government’s expert witness and

the accused, the members asked questions, and the trial

counsel argued in findings concerning Lasix. The military

judge abused her discretion in determining that the evidence

concerning Lasix was relevant and also abused her discretion

in performing a Mil.R.Evid. 403° balancing test in

determining that the probative value of this irrelevant

evidence outweighed its prejudicial impact.

Military Rule of Evidence 401 provides that evidence is

relevant if it has “any tendency to make the existence of any

fact that is of consequence to the determination of the action

more probable or less probable than it would be without the

evidence.” United States v. Walker, 42 U.S. 67 (1995); United

States v. Thomas, 40 M.J. 252 (C.M.A. 1994). Military Rule

of Evidence 402 provides that “[a]ll relevant evidence is

admissible,” with certain exceptions. United States v. Elmore,

33 M.J. 387 (C.M.A. 1991).

— ame tr page

_ aon

Mil.R.Evid 403 is id~stical to its Federal Counterpart. Fed.R. Evid. 403.

a ilmananamsiiicieiacmiiiiia inhaled

The Military Rules of Evidence have combined the

common law concepts of relevance and materiality into one

rule of relevancy. See S. Saltzburg, L. Schinasi, & D.

Schlueter, Military Rules of Evidence Manual 422 (3d ed.

1991). In analyzing relevance, this Honorable Court must

confront two questions: (1) Does the evidence have any

tendency to make the existence of any fact more or less

probable?; and (2) Is that fact of consequence to a

determination of petitioner’s guilt? United States v. Scheffer,

41 M.J. 683 (A.F. Ct. Crim. App. 1995) rev. on other grounds,

44 M.J. 442 (1996).

In determining whether a particular item of evidence is

“relevant”, a court must examine whether the proffered

evidence has any tendency to make a matter in issue—

whether the petitioner may have unknowingly ingested the

marijuana—more or less likely? The proponent of the

evidence had the burden of (1) describing the evidence, (2)

explaining its nexus to the consequential issue at bar, and (3)

indicating how the offered evidence would establish the fact

in question. United States v. Shover, 42 M.J. 753 (A.F. Ct.

Crim. App. 1995), see also Saltzburg, supra.

Even if relevant, evidence is to be excluded if its

probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues,

or misleading the members, or by considerations of

undue delay, waste of time, or needless presentation

of cumulative evidence.

Mil.R.Evid. 403

A military judge’s decision to admit or exclude evidence

is reviewed under the abuse-of-discretion standard. United

States v. Bins, 43 M.J. 79 (1995); United States v. Gray, 40

M.J. 77 (C.M.A. 1994), Untied States v. Orsburn, 31 M.J. 182

(C.M.A. 1990). If the decision to admit or exclude evidence

requires fact-finding, the findings are reviewed under a clearly

erroneous standard. United States v. Quigley, 40 M.J. 64

(C.M.A. 1994) (“findings of fact will be set aside only if

clearly erroneous,” citing, Bourjaily v. United States, 483 U.S. |

171, 107 S. Ct. 2775, 97 L.Ed.2d 144 (1987)). A military

judge abuses his discretion if the findings of fact are clearly

erroneous or if the decision is influenced by an incorrect view

of the law. United States v. Sullivan, 42 M.J. 360 (1995).

At trial, while the government expert witness, Major

Robert Schwarzhoff, was testifying concerning the urinalysis

examination and the results, trial counsel elicited information

concerning a substance called “Lasix.” Major Schwarzhoff

testified that Lasix is a trade name for a drug called

furosemide, a diuretic, used for certain patients to increase

fluid output. (R. 179). Later, over defense counsel’s objection,

the military judge permitted a court-member to ask questions

concerning Lasix. Major Schwarzhoff then testified

concerning the reason that testing for Lasix was requested:

My understanding of the sample or the

circumstances was that there was suspicion that the

individual was taking Lasix to dilute the urine

sample; and, therefore, they requested that the

sample be tested for the presence of Lasix

(R. 223). No testing for Lasix was ever conducted.

In addition, trial counsel was permitted, over a timely

defense objection, to cross examine the petitioner concerning

Lasix. During the Article 39(a) session the trial defense

counsel made his objection clear and the following transpired:

DC: Your Honor, my objection is that—Lasix—

there’s been some talk—and certainly |

objected to it before, but I don’t think this is

relevant as to his charge, and there’s really

been no evidence showing that he knew

ee ee

MJ:

p.m.

MJ:

TC:

MJ:

TC:

MJ:

Fo,

MJ:

DC:

MJ:

anything about it or that he used it or anything

like that, and this is just—if it’s anything, it’s

uncharged misconduct—if it’s misconduct at

all.

Captain Greenfield?

Well, Your Honor, it may well be uncharged

misconduct, but I think it’s extremely probative

on a couple of issues.

What would be the uncharged misconduct? It’s

a diuretic according to the expert.

I don’t know for sure, Your Honor, but I believe

it may be a prescription medication, and I—

What are you getting at with this area?

—well, Your Honor, it is a diuretic; and when

the accused spoke to the OSI, he indicated

some knowledge about having the substance

and its properties and certainly there was

testimony from the expert witness that one of

the factors that can affect testability of the

concentration of the metabolite in the system as

well as even the detection depends upon how

often an individual goes to the bathroom. Now,

certainly it’s relevant if he has at his disposal

something that can dilute the concentration of

the urinalysis sample. Captain David—

Do | understand that he made a statement to the

OSI in which he discussed it?

—yes, ma’am.

Captain David, it seems to me it’s relevant.

Okay, Your Honor.

If there is some kind of concern about

uncharged misconduct, depending on how the

8

evidence comes out, I can certainly instruct on

it; but I think this is a valid area of inquiry, and

performing the balancing test under Rule 403,

I’m going to allow this area of inquiry.

(R. 252-253). There was no testimony about the effect of

Lasix on a urine sample. In addition, there was no statement

to the OSI offered in evidence. This testimony was not

relevant because it did not prove or disprove a fact in

consequence, that is, whether the petitioner had unknowingly

ingested the marijuana. The prosecution, as the proponent of

this evidence, had the burden of describing the evidence,

explaining its nexus to the consequential issue at bar, and

indicating how the offered evidence would establish the fact

in question. Although the trial counsel did identify the

evidence (Lasix), he did not show the nexus between the

Lasix and the petitioner’s alleged drug use. The military judge

erred by finding that the evidence was relevant. The military

judge performed her M.R.E. 403 balancing test based on the

unsubstantiated proffer of trial counsel and not on evidence

properly before the court. While a military judge has a great

deal of discretion in performing a M.R.E. 403 balancing test,

United States v. Rust, 41 M.J. 472 (1995), the military judge

abused her discretion.

The actual substance, Lasix, was not in evidence. There

was no testimony concerning the seizure of the Lasix. In

addition there is nothing more than innuendo and speculation

showing that the petitioner even knew about the alleged

effects of Lasix. Contrary to the Air Force Court of Criminal

Appeals’ opinion, there was no evidence that there was “a

belief among drug users that Lasix is helpful in ridding one’s

system of evidence of drug use.” The military judge seemed to

rely on the fact that the petitioner had made a statement to the

OSI in performing her M.R.E. 403 balancing test.* There was

no such statement to OSI in evidence.

In United States v. Perry, 37 M.J. 363 (C.M.A. 1993), the

accused was charged with unlawful use of cocaine. In Perry,

the trial counsel elicited testimony that the accused had

worked as an OSI informant and that, when he lived in the

dormitory, he had heard rumors about people using drugs. He

then gave the OSI the names of those people and “checked

them out” for the OSI. In Perry, the defense argued that the

prosecution was using this evidence to show “guilt by

association.” This Honorable Court ruled this evidence

irrelevant because the “Petitioner’s knowledge of the identity

of possible drug users neither proves nor disproves that,

during the time period alleged, he knowingly used cocaine.”

Likewise, in the case sub judice, the presence of Lasix in the

petitioner’s house neither proves nor disproves that, during the

time period charged, he knowingly used marijuana.

This testimony was totally irrelevant to the facts at issue

and was highly prejudicial to the petitioner. The petitioner had

no advance notice of the search of this home. During the

search, he was held at the security police building. As soon as

the OSI returned from the search to question the petitioner, he

immediately volunteered to take a urinalysis test. He had

absolutely no opportunity to use Lasix to try to affect his

urinalysis test. (R. 245-246).

The petitioner was clearly prejudiced by this testimony.

This testimony allowed the trial counsel to inject innuendo

and speculation into the trial without the burden of having to

produce admissible evidence.

However, the prejudice did not stop there. In closing

argument, trial counsel played up the petitioner’s possession

*The military judge did not make any findings of fact so this Court is left

with little assistance in evaluating her application of the M.R.E. 403

balancing test.

10

of Lasix, adding that “he knew what that was used for.” (R. 337,

350). In fact the petitioner testified that he used Lasix because

he was on the overweight program and the Lasix allowed him

to take off water weight. (R. 255). The petitioner never testified

that he even knew that Lasix was believed to beat a urinalysis

test. This was pure innuendo injected by the trial counsel based

on irrelevant testimony. See e.g. Perry, supra.

An accused should not be convicted based on innuendo,

especially when the innuendo is completely unsupported by

any evidence, either in or outside the record.

Conclusion

For the foregoing reasons, this Honorable Court should

reverse the decisions of the Air Force Court of Criminal

Appeals and the Court of Appeals for the Armed Forces and

set aside the findings and sentence. Petitioner respectfully

submits that the Court of Appeals for the Armed Forces and

the Air Force Court of Criminal Appeals erred in deciding that

evidence relating to Lasix was relevant and petitioner was

harmed by this error.

WHEREFORE, petitioner requests that this writ be

granted.

Respectfully submitted,

W. CRAIG MULLEN

Captain, United States Air Force

Appellate Defense Division

Counsel of Record

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 208

Bolling AFB, DC 20332-8000

(202) 767-1562

April 1997

la

APPENDIX A

UNITED STATES, Appellee

V.

David R. CURTIS Technical Sergeant

U.S. Air Force, Appellant

No. 96-0104

ACM 828841

United States Court of Appeals for the Armed Forces

Argued October 3, 1996

Decided January 22, 1997

Counsel

For Appellant: Captain W. Craig Mullen (argued); Colonel

Jay L. Cohen (on brief); Colonel David W. Madsen and Major

Ormond R. Fodrea.

For Appellee: Major Allen G. Erickson (argued); Colonel

Jeffery T. Infelise, Lieutenant Colonel Thomas E. Schlegel and

Captain Timothy G. Buxton (on brief); Colonel Theodore J.

Fink and Lieutenant Colonel Michael J. Breslin.

Military Judge: Martha H. Bower.

Opinion of the Court

COX, Chief Judge:

The issue in this drug prosecution case is whether

evidence regarding appellant’s possession and use of Lasix, a

nonprescription diuretic, was admissible, and if so, whether

2a

trial counsel’s argument thereon was permissible.! A special

court-martial composed of officer and enlisted members

sitting at Davis-Monthan Air Force Base, Arizona, convicted

appellant, contrary to his pleas, of possessing and using

marijuana, in violation of Article 112a, Uniform Code of

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

appellant to a bad-conduct discharge, confinement for 6

months, and reduction to E~4. The convening authority

approved the adjudged sentence, and the Court of Criminal

Appeals affirmed the findings and sentence in an unpublished

opinion.

Appellant was an “aircraft technician/crew chief,” who

worked on “F—106s, T—33s, and B—57s.” At the time of his

court-martial, he had approximately 19 years and 11 months

of creditable service.

The circumstances leading up to the court-martial

originated in the civilian community when one of appellant’s

estranged sons reported to Tucson police officials that

appellant was using drugs. Several days later, another of

appellant’s estranged sons requested and received police

assistance while he removed certain personal items from

appellant’s home. At the home, the responding officer spoke

to appellant and detected an odor of marijuana emanating

from appellant’s mouth.

A search of appellant’s home a few days later produced

nominal quantities of marijuana plant parts, as well as various

containers and paraphernalia containing or coated with

'The granted issue asks:

WHETHER THE MILITARY JUDGE ERRED

TO THE SUBSTANTIAL PREJUDICE OF

THE APPELLANT BY ALLOWING QUESTIONS,

TESTIMONY, AND ARGUMENT CONCERNING LASIX.

3a

marijuana residue. All contraband items were seized from the

master bedroom and an adjacent closet. Analysis of a urine

specimen submitted voluntarily by appellant the day of the

search resulted in a “positive” finding of marijuana

metabolite.

During the Government’s case-in-chief, a forensic

toxicologist testified that “Lasix is a trade name for a drug

called furosemide, I believe. It’s a diuretic. It’s used for

certain patients to increase fluid output.” This testimony was

adduced without defense objection during the witness’s

general explanation of the laboratory testing of appellant’s

urine specimen. Trial counsel had asked the toxicologist to

explain the “Lasix” entry contained on one of the laboratory

forms. The witness explained that this reflected a request by

“the local submitting unit” to test appellant’s urine for Lasix.

The witness also testified that, as far as he knew, Lasix testing

was not performed on appellant’s urine and that his

laboratory, in any event, was not equipped to conduct such a

test.

During examination of the same witness by the court, a

member submitted a written question again asking, inter alia,

why Lasix testing was not performed. The military judge

paraphrased the question in the following manner without

defense objection:

MJ: 1 understand that there’s an objection? to the

second question; however, it was covered

briefly during, I believe, direct examination. I

am going to ask it.

The military judge’s mention of this objection is the only reference to it

in the record, as far as we can determine. Nonetheless, appellate defense

counsel assert that the basis for the objection was relevance. We agree that

relevance, hearsay, or perhaps lack of personal knowledge are plausible

bases for the objection under the circumstances.

4a

Q. Doctor, . . . with reference to Column E, why is

the annotation “Lasix” in there, if you know?

A. My understanding of the sample or the

circumstances was that there was suspicion

that the individual was taking Lasix to dilute

the urine sample; and, therefore, they

requested that the sample be tested for the

presence of Lasix.

(Emphasis added.) The toxicologist went on to explain again

that relatively few laboratories were set up to test for Lasix

and that his laboratory was not one of them.

During cross-examination on the merits—and over

defense objection as to relevance—appellant was asked about

the “substance in [his] house that was seized by the OSI

called Lasix. . . .” Appellant confirmed that such a substance

was seized from his house and that he had obtained it “from

an acquaintance.” Appellant testified that he had used the

substance “about a year and a half ago” to help him in a

weight-loss program. According to appellant, the

acquaintance represented that Lasix “takes water off. !f you

take it the day before you go weigh in, you'll weigh

considerably less.” Appellant acknowledged that “it did make

[him] go to the bathroom more.”

On closing argument, trial counsel adverted briefly to the

toxicologist’s description of Lasix, to appellant’s possession

of it, and to appellant’s understanding of its properties. In

addition, counsel patently implied that Lasix was something

appellant used to mask his marijuana usage.

At the outset, we agree that the investigators’ intentions

with respect to Lasix testing were irrelevant and that, in any

event, the toxicologist was not the proper person to declare

that intent. Nevertheless, it was not the investigators’ intent

that caused appellant problems. To the contrary, it was

Nn

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evidence that appellant knowingly possessed and used Lasix,

coupled with trial counsel’s closing argument, that worked to

appellant’s detriment. Thus, if this evidence and argument

were properly received, appellant could not have been

prejudiced by evidence of the investigators’ obvious intent.

Thus, the question is, in a prosecution for drug

possession and use, is it relevant that the accused also

possessed a substance which might reduce the possibility of

his testing positive on a urinalysis? The military judge and the

Court of Criminal Appeals answered this question in the

affirmative, and so do we.

As a general proposition, all evidence is relevant as long

as it has “any tendency to make the existence of any fact that

is of consequence to the determination of the action more

probable or less probable tha[n] it would be without the

evidence.” Mil.R.Evid. 401, Manual for Courts—Martial,

United States, 1995 ed.

Furthermore, “[a]ll relevant evidence is admissible,

except as otherwise provided. .. .” Mil.R.Evid. 402. One such

exception is Mil.R.Evid. 403, which excludes evidence,

although relevant, “if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of

the issues... ., ” etcetera.

We review a military judge’s ruling admitting or

excluding evidence for abuse of discretion, United States v.

Sullivan, 42 MJ 360, 363 (1995). We find none here.

A number of inferences might be drawn from the finding

of Lasix in appellant’s home. One of them, obviously is that

appellant used it, as he testified, for weight reduction. Indeed,

the findings of guilty do not, in and of themselves, establish

that the members rejected this assertion.

Another possible inference is that the Lasix belonged to

a different member of the household and had no nexus to

6a

appellant. Appellant’s own testimony, however, seems to have

eliminated this inference.

Another inference quite clearly available, however, is the

one argued by the prosecution—that the Lasix was used by

appellant to minimize his chances of getting caught in a

random urinalysis. In this respect, the Lasix constitutes

indirect evidence of the charged offenses by showing an effort

to avoid detection. Moreover, it shows consciousness of guilt,

rebutting a claim of innocent ingestion.”

Under the circumstances of the instant case, we are

satisfied that the military judge adequately balanced the

pertinent relevance factors, and that the probative value of

appellant’s possession and use of Lasix was not outweighed

by any unfair prejudice or confusion that may have been

caused by admission of this evidence. Thus, we are also

satisfied that trial counsel’s comment thereon in closing

argument was permissible.

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

Judges CRAWFORD, GIERKE, and EFFRON concur.

Sullivan, Judge (concurring):

The substance “Lasix” was found inside appellant’s

home by police executing a valid search warrant. See United

States v. Procopio, 88 F.3rd 21, 29-30 (ist Cir. 1996) (guns

found at accused’s apartment admitted to show association in

criminal venture). The military judge considered the probative

value of this evidence and the potential for undue prejudice.

‘The theory of the defense was that one of appellant’s estranged son’s

must have placed marijuana in cookies he baked for appellant. Regarding

the contraband found in appellant’s bedroom and closet, it was the defense

position that it belonged to appellant’s wife who, without appellant’s

knowledge, smoked marijuana regularly.

See Mil.R.Evid. 403, Manual for Courts—Martial, United

States, 1984. I see no legal error. See United States v. Golb. 69

F.3rd 1417, 1428 (9th Cir. 1995) (traces of cocaine on money

involved in criminal scheme).

Sa

APPENDIX B

UNITED STATES AIR FORCE COURT OF

CRIMINAL APPEALS

UNITED STATES

v.

Technical Sergeant DAVID R. CURTIS,

FR217-60—9058

United Staies Air Force

ACM 828841

29 August 1995

Sentence adjudged 30 April 1993 by SPCM

convened at Davis-Monthan Air Force Base,

Arizona. Military Judge: Martha H. Bower.

Approved sentence: Bad-conduct discharge,

confinement for 6 months, and reduction to E-4.

Appellate Counsel for Appellant: Colonel Jay L.

Cohen, Lieutenant Colonel Frank J. Spinner,

Captain Eric N. Eklund, and Captain Robert K.

Coit.

Appellate Counsel for the United States: Colonel

Jeffery T. Infelise, Colonel Thomas E. Schlegel,

Major John H. Kongable, and Captain Timothy G.

Buxton.

Before

DIXON, SCHREIER, and STARR

Appellate Military Judges

a en

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OPINION OF THE COURT

SCHREIER, Judge:

Contrary to his pleas, members convicted appellaat of

using and possessing marijuana and sentenced him to a bad-

conduct discharge, confinement for 6 months, and reduction

to E-4. Article 112a, UCMJ, 10 U.S.C. 912a (1984). The

convening authority approved the adjudged sentence.

Appellant asserts eight assignments of error involving the

failure to grant a challenge for cause, admissibility of

evidence, instructional errors, new matters in the post-trial

addendum, and sentence appropriateness. Finding no

prejudicial error, we affirm.

While his appeal was pending, appellant petitioned this

court for a new trial based on newly discovered evidence

which supports his claim of innocent ingestion. We deny the

petition for a new trial.

FACTS

The Air Force Office ef Special Investigations (AFOSI)

initiated an investigation into appellant’s suspected drug abuse

following contact with appellant’s twenty-year-old son,

Daniel Curtis. A search of appellant’s house found marijuana

stems and seeds in a coffee can in the rear of the closet, an

ashtray containing both cigarette ashes and marijuana roaches

in the nightstand drawer, and marijuana residue on both a

Straw and paper clip. All items were found in the master

bedroom. Appellant consented to a urinalysis which turned

Out positive for marijuana.

At trial, appellant introduced good character evidence

and denied knowing possession or use of marijuana.

Appellant’s wife admitted that the stems, seeds, and roaches

belonged to her. She said she used marijuana to control her

manic-depressive disorder, but stated she never used it in front

of appellant. Appellant denied knowing his wife used

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marijuana. Appellant testified that about one month before the

urinalysis his son, Daniel, gave him homemade cookies for

his personal consumption. Appellant stated that the cookies

were kept in his bedroom and he ate them over the course of

the month, finishing them off several days before the

urinalysis. These cookies were the only thing he ate during

the four days before the urinalysis that he did not make or

purchase at a store. After the urinalysis was reported as

positive, he said the only thing that he could think of to

account for it was the cookies.

NEW TRIAL PETITION

Article 73, UCMJ, 10 U.S.C. § 873, provides that an

accused may petition for a new trial on the grounds of newly

discovered evidence or fraud on the court. Newly discovered

evidence is evidence that was discovered after trial, could not

have been discovered before trial in the exercise of due

diligence, and this newly discovered evidence, if considered

by the court-martial, would probably produce a substantially

more favorable result for the accused. R.C.M. 1210(f)(2). The

petitioner bears the burden of showing that a new trial would

probably produce a substantially more favorable result. United

States v. Parker, 36 M.J. 269 (C.M.A. 1993).

Appellant submits six documents in support of his new

trial petition. Only the notarized statement from Ms Tanya

Davis, his son’s girlfriend, is newly discovered evidence. It

describes a conversation, which took place after appellant’s

court-martial, wherein Daniel allegedly admitted setting “his

dad up with things he made.” It is very similar to other

hearsay statements excluded at trial. However, this newly

discovered evidence does not independently support a new

trial unless its consideration by the court-martial would

produce a substantially more favorable result. R.C.M.

1210(f)(2).

td aloe dey

lla

Before we can evaluate the impact of this evidence, we

must determine if her statement is admissible at a new trial.

See United States v. Johnson, 28 C.M.R. 662, 685 (N.B.R.

1959) ( inadmissible polygraph could not support a new trial).

It would be incongruous to grant a new trial if defense counsel

could not then introduce the “newly discovered evidence.”

How can there be a substantially more favorable result if the

evidence does not go to the factfinder?

Appellant has provided no hearsay exception justifying

admission of this statement. Rather, he argues that this

evidence is admissible under fundamental due process

principles which give an accused the right to present

exculpatory evidence. See Chambers v. Mississippi, 410 U.S.

284, 298 (1973) (due process violation when appeliant was

not permitted to impeach his own witness who had previously

repudiated his confession to the murder); United States v.

Johnson, 3 M.J. 143, 147 (C.M.A. 1977) (exclusion of third

party’s confession after that person took their Fifth

Amendment rights was error). However, even exculpatory

evidence must exhibit certain circumstances guaranteeing

trustworthiness. Chambers v. Mississippi, 410 U.S. at 300:

United States v. Burks, 36 M.J. 447, 451 (C.M.A.) cert.

denied, 114 S. Ct. 187 (1993).

We find insufficient guarantees of trustworthiness in the

affidavit of Ms. Tanya Davis. First, by her own affidavit,

Daniel is a “phycopathic lier [sic].” Second, trial defense

counsel’s affidavit states that Daniel told him that he did not

put marijuana in any food and did not use marijuana. Third,

Ms. Davis supposedly heard this statement in August 1993,

but it appears she did nothing to release an “innocent man” for

some time. Fourth, there is no indication of the circumstances

Surrounding Daniel’s alleged statement that would help

support its trustworthiness. It is unknown whether he was

trying to impress the girlfriend, under the influence, or

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plotting further revenge. Fifth, Ms. Davis’ affidavit was not

made under oath. Sixth, there is minimal corroboration for the

statement. The statement lacks specific details which could be

verified through scientific testing as to how the marijuana was

placed in the cookies. The facts that father and son did not get

along and that Daniel gave his father cookies at Christmas are

not sufficient to corroborate the statement. Likewise, other

hearsay statements, offered but not admitted at trial, do not

provide sufficient guarantees of trustworthiness. Additionally,

unlike Chambers where the declarant had made multiple

confessions, Daniel has only indicated to a girlfriend that he

“set his dad up.” Seventh, there is no indication that Daniel is

unavailable to currently address this issue, but we know he

was available and not called as a witness at the original trial.

As in the hearsay exceptions for a statement against interest,

or the residual hearsay rule, we believe the availability of the

declarant is a factor to be considered in evaluating the

trustworthiness of a statement. Mil.R.Evid. 804(b)(3) and

(b)(5); see United States v. Wind, 28 M.J. 381, 385 (C.M.A.

1989).

Appellant has failed to meet his burden of proving that

newly discovered evidence would be admissible at trial where

it might have an impact on the result. The petition for a new

trial is denied.

CHALLENGE FOR CAUSE

Throughout this trial the court members, especially

SMSgt Landis, asked numerous questions. Following the

accused’s testimony, the questioning by court members

continued. The military judge reemphasized the role of the

members and reminded them they must remain impartial

when questioning witnesses. SMSgt Landis then proposed

several additional questions. The military judge refused to ask

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the questions stating that they went more to sentencing

matters.

Trial defense counsel subsequently challenged SMSgt

Landis for cause claiming he had already made up his mind

concerning guilt and the tone of his questions went towards

determining an appropriate sentence. During individual voir

dire by the military judge, SMSgt Landis denied having made

up his mind. Trial defense counsel asked no questions and the

military judge denied the challenge. Appellant now alleges the

military judge abused her discretion.

A military judge’s denial of a challenge for cause will be

overturned only if there was a clear abuse of discretion.

United States v. Hamilton, 41 M.J. 22 (C.M.A. 1994), cert.

denied, 115 S. Ct. 738, 130 L.Ed.2d 640 (1995). Challenges

for cause should be liberally granted. See United States v.

White, 36 M.J. 284, 287 (C.M.A. 1993). The appellant bore

the burden of establishing the basis for his challenge for

cause. United States v. Blocker, 32 M.J. 281, 287 (C.M.A.

1991). A court member must be mentally free to render

impartial findings and sentence based on the law and the

evidence. United States v. Reynolds, 23 M.J. 292, 294

(C.M.A. 1987). The question of bias is one of evaluating

credibility and demeanor and the military judge’s

determination is entitled to great deference on appeal. White,

36 M.J. at 287; Reynolds, 23 M.J. at 294.

The initial questions by SMSgt Landis concerning

appellant’s consumption of the cookies and his not feeling

well during the month of January were factually based and

reflected a reasonable concern of the court member. While the

subsequent questions, if asked, are more argumentative in

nature, we do not find that they clearly reflect a bias or

prejudgment. In any event, the proposed questions could

probably be reworded to remove the argumentative tone. The

fact that the military judge has refused to ask certain questions

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does not independently establish the basis for a challenge for

cause. Court members are not attorneys and may not

appreciate the nuances of artfully questioning a witness while

resolving a conflict.

SMSgt Landis assured the military judge that he had not

made up his mind and was able to listen to the evidence

presented. The military judge observed his response to

questions as well as his prior demeanor in court. She had

previously expressed her concerns over the nature of his

questions when she refused to ask them. Yet, after the voir

dire she determined he could impartially sit. We find that the

military judge did not abuse her discretion in denying the

challenge for cause.

LASIX EVIDENCE

The agents conducting the search of appellant’s house

found Lasix, a nonprescriptive diuretic, and requested that

appellant’s urine sample be tested for Lasix. However, the

Brooks lab does not perform that type of testing. Additionally,

Lasix was mentioned in appellant’s cross-examination and

during trial counsel’s closing argument. Trial defense counsel

did not object to the mention of Lasix in the litigation

package, or in the testimony of the expert witness. However,

counsel did object to the cross-examination of appellant. The

military judge allowed the cross-examination of appellant

after she determined that appellant talked with the AFOSI

concerning his use of Lasix to control his weight. Appellant

now alleges the military judge erred.

Lasix is a nonprescription diuretic which causes

increased urination. Since THC (the marijuana metabolite) is

excreted through urine, there is a belief by some that use of

Lasix may help the body void the traces of marijuana use.

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The military judge’s decision to admit evidence will not

be overturned unless there is a clear abuse of discretion.

United States v. Orsburn, 31 M.J. 182 (C.M.A.) cert. denied,

498 U.S. 1120 (1990). Relevant evidence is evidence that

makes the existence of any fact of consequence to the action

more or less probable. Mil.R.Evid. 401. Relevant evidence is

admissible unless its probative value is substantially

outweighed by the danger of unfair prejudice. Mil.R.Evid.

403.

Once the laboratory report mentioning Lasix was

admitted, the subsequent questioning of the expert was

relevant. Likewise, the cross-examination of appellant was not

a wild goose chase but was based on substantive evidence of

appellant’s possession of the diuretic and questioned his

knowledge of its effect. Trial counsel’s passing reference to

Lasix was fair comment on the evidence. We find that the

military judge did not abuse her discretion in allowing the

testimony or argument.

HEARSAY EVIDENCE CONCERNING INNOCENT

INGESTION DEFENSE

Appellant sought to introduce the testimony of his step-

daughter and her friend who overheard his son, Daniel,

talking about putting marijuana in a cake and some brownies.

Trial counsel objected to this testimony as hearsay. Trial

defense counsel indicated that they may have to cail the son as

a witness and later indicated that Daniel was on standby. The

military judge ruled the testimony was inadmissible hearsay.

Daniel was not called as a witness.

Appellant now argues that exclusion of this evidence

violated his fundamental due process right to present a

defense. See Chambers v. Missssippi, 410 U.S. at 302; United

States v. Johnson, 3 M.J. at 148. This due process argument

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was previously addressed in our discussion of the new trial

petition. Once again, we find that there was no mechanical

application of the hearsay rules to prevent appellant

presenting a defense. We do not accept trial defense counsel’s

argument that the proffered testimony is not hearsay because

it is not being offered to prove Daniel doctored brownies or a

cake. The testimony, as to what the witnesses overheard, was

classic hearsay and did not fit under any of the hearsay

exemptions. Although appellate defense counsel refers to

R.C.M. 803(3) in its brief, that exception requires that the

declarant b unavailable and trial defense counsel

acknowledged that Daniel was available to testify and was

currently on standby. There was no error in the exclusion of

evidence.

APPELLANT'S PRIOR USE OF MARIJUANA

The appellant testified that he did not knowingly use

marijuana. His only possible explanation for the positive

urinalysis was that the cookies made by his son contained

marijuana. He further stated that he had not experienced any

effects from eating the cookies. Over objection, the military

judge permitted trial counsel to question appellant about his

prior use Of marijuana outside the time frame of this charged

use. However, the military judge strictly limited the contents

of this questioning to the effects of marijuana in his system

and its use during a two year break in service.

The Court of Appeals for the Armed Forces (formerly the

Court of Military Appeals) established a two part test for

evaluating evidence of prior use of marijuana in a drug case.

First, is the evidence admissible and second, what is the

prejudicial effect of the evidence compared to its probative

value? United States v. Holmes, 39 M.J. 176, 180 (C.M.A.

1994). The Court determined that evidence of a prior use in

the distant past was not per se inadmissible. Holmes 39 M.J.

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at 180. Here, the evidence was admitted for the limited

purpose of establishing that appellant’s prior use made him

aware of the effects of marijuana on nim. This evidence was

relevant when appellant denied experiencing any effects and

the expert indicated that consumption of a recreational dose of

marijuana would most likely produce some effects. Likewise,

the military judge carefully considered the prejudicial impact

of this testimony and appropriately limited the testimony.

Unlike Holmes, there was no evidence of lying to the Air

Force to conceal his prior use or intertwining of the false

Statements and the prior drug use in closing argument. That is

not the situation here. The evidence, as admitted, was not

unfairly prejudicial. There was no error.

DELIBERATE AVOIDANCE INSTRUCTION

Deliberate avoidance of a fact can create the same

criminal liability as actual knowledge. United States v.

Newman, 14 M.J. 474, 478 (C.M.A. 1983). Appellant argues

that the evidence was insufficient to raise the issue of

deliberate avoidance. We disagree.

Appellant’s wife admitted she used marijuana

approximately 300 times in the two years prior to the trial.

When asked if appellant knew of her use, she stated “He never

seen me, but I think he might have suspected, but | never

allowed him to see it.” (emphasis added). She admitted to

using marijuana in her bedroom where the seeds, stems, and

ashtray containing roaches were found. Appellant’s step-

daughter also indicated that she had seen her mother smoke

marijuana at a prior assignment. The testimony indicates that

there was only one nightstand in the room and that both

appellant and his wife smoked cigarettes. We find there was

minimally sufficient evidence to suggest that the appellant

deliberately avoided any knowledge that his wife used

lSa

marijuana in the house and kept marijuana in his house. There

was no error in the instruction.

NEW MATTERS IN THE ADDENDUM

If the addendum to the Staff Judge Advocate’s (SJA)

review contains new matter, it must be served on counsel for

the accused. R.C.M. 1106(f)(7). New matter includes

information from outside the record of trial but does not

ordinarily include any discussion of the correctness of the

defense comments on the SJA recommendation. R.C.M.

1106(1)(7), Discussion; United States v. Komorous, 33 M.J.

907, 910 (A.F.C.M.R. 1991).

The issue of the interaction between appellant’s

expiration of enlistment, his continued entitlement to pay, and

an appropriate sentence was initially raised during trial. Trial

defense counsel requested a specific instruction in this area

and .he members asked several questions. In each case, the

military judge refused to provide information on a collateral

matter. Appellant’s clemency submissions included letters

from several court members indicating confusion about the

relationship between appellant’s expiration of enlistment and

his entitlement to pay while in confinement. In response, the

17 August 1993 addendum stated:

Although TSgt Curtis had an approved date of

separation (7 June 1993) and his pay should have

been stopped at that time, he has actually still been

receiving pay as a TSgt. We have advised the

finance office of their mistake and TSgt Curtis’ pay

has in fact been stopped. Although we have inquired

whether there are any ways to restore his pay status,

we have been advised that there are none.

Appellant argues that this statement is new matter and

should have been served on counsel. We disagree. This

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Statement is more than an opinion on the merits of appellant’s

requests, as it clearly provides the convening authority with

limited factual information from inside and outside the record

of trial. However, we do not view this as new information in

the traditional sense. This information was not incorrect,

inadequate or misleading nor highly prejudicial to the

accused. United States v. Narine, 14 M.J. 55, 57 (C.M.A.

1982). Nor does it contain new appellate decisions. United

States v. Komorous, 33 M.J. 907, 910 (A.F.C.M.R. 1991). This

information was known to appellant. In fact, the trial defense

counsel initially raised the issue at trial. Additionally,

appellant should have been well aware of the fact that he was

receiving pay after his enlistment expired and when his pay

stopped. Finally, the clemency submissions persuasively

argued that the members may have sentenced appellant

differently had they known the additional facts. We find that

the questioned statement was not new matters, but was factual

comment of information developed in the record of trial and

known to appellant.

However, even if we were to determine this statement to

be new matter, based on the facts previously stated we find

this error resulted in no prejudice to appellant and will not

return the record for a new action. Congress indicated its

intent that the military appellate courts have the ability to

correct errors themselves stating “it is the Committee’s intent

that appropriate corrective action be taken by the appellate

authorities without returning the case for further action by a

convening authority.” S. Rep. No. 53, 98th Cong., Ist Sess. 21

(1983). See United States v. Crawford, 34 M.J. 758

(A.F.C.M.R. 1992); Komorous, 33 M.J. at 911.

REMAINING ASSIGNMENTS OF ERROR

We have considered appellant’s remaining assignments

of error and resolve them against appellant. The military

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judge did not err in refusing to instruct on the impact of

appellant’s expiration of his enlistment on pay and forfeitures.

United States v. Quesinberry, 12 U.S.C.M.A. 609, 612, 31

C.M.R. 195, 198 (1962). The sentence of a bad-conduct

discharge for a member with over 19 years on active duty who

possessed and used marijuana is not inappropriately severe.

United States v. Healy, 26 M.J. 394, 395-96 (C.M.A. 1988).

The petition for a new trial is denied. We further

conclude the findings and sentence are correct in law and fact,

the sentence is appropriate, and no error prejudicial to

appelfant’s substantial rights occurred. Accordingly, the

findings and sentence are

AFFIRMED.

Chief Judge DIXON and Judge STARR concur.

OFFICIAL

LAURA L. GREEN

Clerk of Court

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