Petition for Writ of Certiorari — Schelkle v. United States

| Supreme Court, U.S.

FILED

No, 9% 96 4 DEC 101997

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

MAJOR KURT G. SCHELKLE, PETITIONER

v.

UNITED STATES DF AMERICA, RESPONDENT

On Petition For a Writ of Certiorari to the United States

Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

Kevin P. Koehler

Major, United States Air Force

Appellate Defense Counsel

Counsel of Record

Douglas H. Kohrt

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel for the Petitioner

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

(202) 767-1562

December 1997

G1 PP:

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QUESTION PRESENTED

Whether petitioner was denied his Sixth Amendment

right to present witnesses in his own defense when the

military judge erred, to the prejudice of petitioner, by

excluding evidence from defense witness statements that they

had never seen or known petitioner to have used drugs.

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TABLE OF CONTENTS

THE PETITIONER WAS DENIED HIS SIXTH

AMENDMENT RIGHT TO _ PRESENT

WITNESSES IN HIS OWN DEFENSE WHEN

THE MILITARY JUDGE ERRED, TO THE

PREJUDICE OF APPELLANT, BY EXCLUDING

EVIDENCE FROM DEFENSE WITNESS

STATEMENTS THAT THEY HAD NEVER SEEN

OR KNOWN APPELLANT TO HAVE USED

DRUGS.

ERIS TLE ER te 8 CS Ce Re I 20

APPENDIX A

(Opinion of the United States Court of Appeals

Meee I oe oo vk sce wan cas la

APPENDIX B

(Opinion of the United States Air Force

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TABLE OF AUTHORITIES

Page

Supreme Court Cases:

Chambers v. Mississippi, 410 U.S. 303

COT SS hae ex uke bee ka ha eo Re ee 11,14

Military Cases:

United States v. Clemons, 16 M.J. 44

FOE hs kv Cae ee Oe ee 1]

United States v. Elliot, 23 M.J. 1 (C.M.A. 1986) ..11, 12

United States v. Giles, 13 M.J. 669

MSS A BO ie ele st bas SE Rok weeds 13

United States v. Hooks, 24 M.J. 713

CS TE Seo Cares obec Tats ib oa Bs 12

United States v. Robertsen, 39 M.J. 211

i ee ei Pie es ais EG 16

United States v. Vandeliner, 20 M.J. 41

(CI BEE go's gh wets Ws Wd w ooo oe ee 11

United States v. Weeks, 20 M.J. 22

ee RUPE 5 ig oa Oe Os ee 16

Federal Statutes:

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

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

Pvticee 30m, FP reac ee oo ak hk bbc Cee Hea |

Constitutional Provisions:

U.S. Gonstitatinn Asemament VE lik i ok ie ek viene l

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The petitioner, Major Kurt G. Schelkle 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 September 12, 1997.

OPINIONS BELOW

The order and judgment of the United States Court of

Appeals for the Armed Forces, reported at 47 M.J. 110

(1997), is located at Appendix A. The unpublished opinion of

the United States Air Force Court of Criminal Appeals, is

located at Appendix B.

JURISDICTION

The judgment of the United States Court of Appeals for

the Armed Forces was entered on September 12, 1997. The

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

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

1996).

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment to the Constitution of the United

States provides in relevant part:

“In all criminal prosecutions, the accused shall enjoy the

right to...have compulsory process for obtaining witnesses in

his favor...”

STATEMENT OF THE CASE

On November10, 1993, contrary to his pleas, petitioner

was convicted of wrongfully using marijuana on one

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

Military Justice, 10 USC § 912a. The adjudged and approved

sentence was a dismissal.

On September 26, 1995, the Air Force Court of Criminal

Appeals affirmed the findings and sentence. (Appendix B).

On February 9, 1996, the Court of Appeals for the Armed

Forces granted review on the following issue of law:

WHETHER THE MILITARY JUDGE ERRED, TO

THE PREJUDICE OF APPELLANT, BY

EXCLUDING EVIDENCE FROM DEFENSE

WITNESS STATEMENTS IN WHICH EACH

SAID THAT THEY HAD NEVER SEEN OR

KNOWN OF THE APPELLANT TO HAVE USED

DRUGS.

On September 12, 1997, the Court of Appeals for the

Armed Forces issued its decision, affirming the decision of the

United States Air Force Court of Criminal Appeals, holding

that the military judge did not err in excluding evidence from

defense witness statements in which each said that they had

never seen or known of the appellant to have used drugs.

STATEMENT OF THE CASE

Pursuant to a random urinalysis inspection, the appellant

was ordered to provide a urine sample on 28 April 1993,

which he did. (R. 115). On 26 May 1993, his sample was

reported by the Brooks Air Force Base laboratory as positive

for the marijuana metabolite THC, at a level of 43 ng/ml.

(Pros. Ex. 7). This reading was 28 ng/ml above the

Department of Defense (DOD) cut-off level of 15 ng/ml.

Subsequently, charges were preferred against appellant on 19

July 1993 for wrongful use of marijuana between the dates of

28 March 1993 and 28 April 1993. (R. 9). Appellant pled not

guilty at his court-martial, which began on 8 November 1993.

At the time of appellant’s court-martial, appellant had

served honorably in the Air Force for over 13 years. Needless

to say, the trial was hotly contested.

Prior to questioning of the court-members, the

prosecution and defense offered their respective exhibits into

evidence. In addition to appellant’s Officer Performance

Reports and certificates, defense counsel offered Defense

Exhibits R-W for appellant’s case-in-chief. The exhibits were

statements from fellow Air Force members and co-workers.

The affidavits generally talked about appellant’s good work

ethic, his “good military character,” and his character for

truthfulness. (Def. Exs. R-W). Defense Exhibit R, a statement

from Jack Killian, appellant’s current father-in-law, stated that

he had known appellant for 9 years. He also said “In all my

experiences with Kurt Schelkle, I’ve never known him to use

or be in any way involved with marijuana or illegal drugs.”

(R. 270). Defense Exhibit S, a statement from a civilian co-

worker, Bernard Ditano, stated that he had known appellant

for 9 years, since 1984, He also said “I have never known

Major Schelkle to use illegal drugs, in fact, I haven’t even

known him to excessively use alcohol.” (R. 271). Defense

Exhibit T was a statement from a retired Colonel, Mr Pentle.

He had known appellant for 9 years, since 1984. In his

statement, he stated “I have never observed or known

anything that would have led me to believe that Major

Schelkle was using or involved in any way with any illegal

substance.” (R. 271). Defense Exhibit U was a statement

from a former Major, Mr Berthelotte. He had known

appellant since the late 1970s, a period of approximately 15

years. He stated “Over the years, I have never known Kurt to

use marijuana or any other illegal substance.” (R. 271).

Defense Exhibit V was a statement from another civilian co-

worker, Mr Metzger. He stated “In all my contact with Major

Schelkle, I have never known him to use or be involved in

any illegal drugs.” (R. 271). Finally, Defense Exhibit W was

a statement from Lt Colonel Buchanan. He had known

appellant since 1988. He stated “ I have never known Major

Schelkle to use or be involved in illegal drugs.” (R. 271).

Trial counsel had no objection to the format the evidence

was coming in (affidavits) or “to affidavits to military

character under the rules of evidence.” (R. 42). He also

agreed that “Good character generally is a defense to drug

use.” (R. 43). However, he objected that portions of the

witness’ statements, as described above, discussed “a specific

assertion about a specific act. And it is not a piece of conduct

which by itself suggests good character. And I think that that

assertion falls afoul of the rules enumerated in MRE 405

which indicate the methods by which character may be

proven.” *(R. 43). The military judge then asked trial counsel

about M.R.E. 405(b), which allows specific instances of

conduct “where character or traits of character of a person is

an essential element of an offense, you’re alleging that he

wrongfully used marijuana. ... People are saying that on all

other occasions when they observed him, they have not

observed (marijuana). “Trial counsel responded that those

were not specific instances of conduct relevant to the charged

time period. (R. 44). The military judge then asked about

law abidingness, stating that “law abidingness is a

characteristic. ...” Trial counsel then withdrew his objection

and the military judge admitted Defense Exhibits R-W as

written. (R. 45).

During his opening statement, trial counsel told the

members that they were going to hear from Special Agent Bill

Kelley, who had interviewed the appellant about his positive

urinalysis. (R. 99). Trial counsel told the members that there

was no confession, however, he asked the members to “listen

very carefully to the discussion between SA Bill Kelley and

this accused on the Ist of June 1993.” (R. 99).

During the defense counsel’s opening statement, defense

counsel put all parties and the court-members on notice that

appellant was going to testify in his own defense:

Major Schelkle wants a fair trial; he’s going to take

the stand. And he’s going to testify. Major Schelkle

is going to talk to you about decisions affecting his

cooperation, particularly the pregnancy of his wife.

He’s going to say he didn’t tell his wife about this

until about a week ago and why. But he is going to

talk about cooperating with OSI and the grueling

efforts that he went through to try and figure out

how this could have happened. Could it have been

something I ate? Did I go to parties? He’s going to

show you what’s been admitted into evidence as

Defense Exhibits P and Q, receipts. He checked his

Visa accounts. Where did I go between 28 March—

28 April 1993? You'll see that Major Kurt G.

Schelkle, an officer with outstanding character for

military service as based on his performance reports

and other exhibits that will be before you, could not

come up with any source of ingestion himself. He

couldn’t figure out had he eaten something and felt

funny.

(R. 101).

The prosecution began its case by calling MSgt Colvin,

who testified as to the method that servicemembers at

Hanscom AFB were randomly selected for a urinalysis. (R.

103-109). Captain Zlotnicki then testified as to how appellant

had been notified and the date that appellant provided his

urinalysis sample. (R. 114-117). On cross-examination,

defense counsel asked her about appellant’s demeanor on the

date he was ordered to provide a urine sample. (R. 120). She

testified that appellant appeared normal. (R. 120). On re-

direct, trial counsel attacked her opinion, having her concur

that she was “no expert” in being able to determine whether

Or not a person was under the influence of drugs. (R. 123).

MSgt Skaggs then testified. He was the person who had

actually observed appellant urinating into the bottle. (R. 133).

The 28th of April 1993 was the first time MSgt Skaggs had

ever been an observer. (R. 128). He testified that when

appellant arrived to provide his sample, he joked about having

to “study for this.” (R. 134). MSgt Skaggs did not recall

anything out of the ordinary occurring when appellant

urinated into the bottle and, on cross-examination, gave his

opinion that appellant did not appear to be under the influence

of any drugs. (R. 142). Trial counsel had objected to this

“opinion” testimony but was overruled by the military judge.

On re-direct examination, trial counsel vigorously questioned

the opinion of MSgt Skaggs. (R. 144-145). The prosecution

then called SSgt Hivner and TSgt Ruiz to discuss how

appellant’s urine sample was packed and shipped to the

Brooks Air Force Laboratory. (R. 149-163). Dr Papa, a

forensic chemist, was then called as an expert witness for the

prosecution to discuss the testing procedures. (R. 175).

Dr Papa testified about the various effects of marijuana

on a user. (R. 181). Trial counsel asked him whether it was

possible for a frequent user to have stopped using marijuana

on 28 March 1993 and test positive one month later, on 28

April 1993. Dr Papa said it was possible. (R. 181, 182). Dr

Papa also stated that a person could use marijuana for years

without his or her co-workers knowing. (R. 182). Dr Papa

testified that a positive reading of 43 ng/ml could be

consistent wiih an unknowing ingestion , i.e. the person had

not felt the effects of the marijuana he or she unknowingly

took. (R. 222). However, in his opinion, a person could feel

the effects of marijuana but still not have knowingly ingested

it. (R. 229). He also stated that a positive result could occur

from eating, as opposed to smoking, marijuana, although in

his opinion this was not very likely. (R. 221, 237). However,

ingesting the marijuana (in food) would normally delay

absorption of the marijuana. (R. 243).

Trial counsel also asked Dr Papa a hypothetical question:

“Assuming for hypothetical purposes, that the accused used

marijuana on a regular basis and stopped on the 29th of

March 1993. Could the result in this test be consistent with

such behavior?” (R. 218). Dr Papa said it was possible. (R.

218). Trial counsel also asked him if appellant’s test result

was consistent with the appellant using marijuana between the

28th of March and the 28th of April. (R. 218). Dr Papa said

it could be consistent with such use. (R. 218). Finally, trial

counsel also asked numerous questions about the “frequent”

marijuana user and the one time or casual user. (R. 180-182).

As promised by trial counsel, after Dr Papa, Special Agent

(SA) Kelley was called as a witness. After appellant’s urine

sample had been reported positive, appellant was questioned

by SA Kelley. (R. 254). SA Kelley first testified about his

review of appellant’s medical and leave records. Appellant’s

medical records did not indicate that appellant had been

approved to use marijuana for medicinal purposes. (R. 251).

His leave records showed he had taken leave on the 15th

(Thursday), 19th (Monday) and 26th (Monday) of April 1993.

(R. 254, 255).

Appellant was read his rights and agreed to talk to SA

Kelley. (R. 256). He was cooperative. (R. 261). Appellant

told him he had the “wrong guy.” (R. 257). He also said he

was against drugs and could not explain how his test had

come back positive. (R. 257). SA Kelley then asked

appellant about his social habits and whether he went to

parties and restaurants. (R. 257). Appellant said he had been

with his wife the whole time. Appellant also said he did not

recall any problems when he provided his urine sample.

(R. 258). Appellant did want to know why the results took so

long to come back. Appellant also told SA Kelley that he

normally took three day weekends in order to spend time with

his family. (R. 259). At the end of the interview he asked that

his wife not be called and also asked for the phone number of

the Base Chaplain. (R. 261). SA Kelley did not tell

appellant’s wife. (R. 265). He also decided not to search his

home, however, appellant had consented to a search of his

home. (R. 265, 286). Finally, a check of appellant’s military

records and civilian police records turned up no derogatory

information about appellant. (R. 267). During closing

argument, trial counsel spoke about the interview appellant

had with SA Kelley. (R. 403). He told the court-members

how SA Kelley had done a “thorough and even handed

investigation.” (R. 403). He told the court-members that

appellant had never been outraged and have never become

angry during the investigation. Further, appellant had asked

for the phone number of the chaplain. (R. 404). He even told

them to ask themselves why appellant had decided to talk to

the OSI. (R. 412). It is clear trial counsel used the testimony

of SA Kelley to preemptively attack the credibility of

appellant before appellant testified.

On cross-examination, SA Kelley stated that OSI had

identified no witnesses who had observed appellant using

marijuana between 28 March 1993 and 28 April 1993. No

witness had observed appellant acting like he was under the

influence of drugs. (R. 264). After the testimony of SA

Kelley, the prosecution rested. (R. 270). The military judge

again took up the issue of Defense Exhibits R through W

because the trial counsel had changed his mind that morning

and now objected to the admissibility of portions of the

statements (as previously noted). (R. 272).

REASON FOR GRANTING THE WRIT

THE PETITIONER WAS DENIED HIS SIXTH

AMENDMENT RIGHT TO _- PRESENT

WITNESSES IN HIS OWN DEFENSE WHEN

THE MILITARY JUDGE ERRED, TO THE

PREJUDICE OF APPELLANT, BY EXCLUDING

EVIDENCE FROM DEFENSE WITNESS

STATEMENTS THAT THEY HAD NEVER SEEN

OR KNOWN APPELLANT TO HAVE USED

DRUGS.

The standard of review regarding a military judge’s

admitting or excluding evidence is one of an abuse of

discretion. However, conclusions of law are reviewed under a

de novo standard of review. In this case, appellant contends

that the military judge’s ruling on the law regarding the

excluded defense statements was incorrect.

Upon re-objection by the trial counsel after the military

judge had admitted Defense Exhibits R-W, the military judge

asked trial counsel the basis of his objection. Trial counsel

stated the following:

While good military character and the character for

law abidingness have certainly been established by

case laws (sic) to be relevant in a case such as this,

the military rules of evidence that have developed

over a long period of time have acknowledged the

fact that there is a certain method to presenting such

evidence. And the method is to lay a foundation for

an opinion or reputation and then state it in general

terms.

(R. 272).

After a few words with the military judge, trial counsel

continued:

And the basis for my objection is MRE 405—I

believe it is b—which prohibits specific instances of

conduct to be presented actively to show a character

trait. And the only exception it allows is for a case

like larceny where honesty is naturally a character

trait. And it’s an active element of a charged crime

10

or there is an affirmative defense, such as

entrapment, where the character of a particular

individual is an active element of (sic) affirmative

defense. And there is no affirmative defense in this

case to which lack of drug use or particular times

and occasion of specific instance is an element.

(R. 272). Trial counsel was confused, but he convinced the

military judge. The military judge stated he was concerned

that the providence of the jury not be invaded (as to the

ultimate issue). (R. 272). The military judge opined that in

an assault case evidence that other witnesses had never seen

the accused assault anyone would not be relevant. He also

opined that in a drunk driving case, witnesses would not be

able to testify that they had never seen the accused drink and

drive before or “seen him drunk drive before.” (R. 273).

To these concerns, defense counsel responded that a

Navy case, Bells, clearly held that character evidence was

admissible in drug cases. The judge agreed. (R. 273). She

then went on to state:

Character evidence is allowed and 405b specifically

in plain language is that in cases where character or

a trait of a character is an essential element and

here’s where I have a burden here to show that it is

an essential element. You can make proof through

specific instances of the person’s conduct. Now, so

what part of the character is an essential element?

Well, his character as a good soldier, which we’ve

shown, where good soldiers don’t use drugs. So,

this is consistent with that good soldier defense

which is allowed by case law. Secondly, it’s

consistent with the defense which we’ ve asserted of

unknowing ingestion and the element of the offense

of knowledge. So, relating 404a and 405b the

defense believes that it is permissible.

Ne ee

1]

(R. 273). The defense counsel ‘agreed that the references to

alcohol use should be redacted, since it was not relevant to

marijuana use. (R. 273). The military judge then stated that

although the defense witnesses could “go into things such as

an individual being law abiding,” he did not believe that the

fact that “someone has never seen him use drugs or over-

indulged in alcohol is admissible and I’m ordering the defense

to retract those lines. . .” (R. 274).

The military judge abused his discretion because

evidence of an appellant’s law-abidingness in not using drugs,

or having a reputation for not using drugs, or having never

been seen using drugs during his life, in a urinalysis drug

case, is admissible into evidence under the rules of evidence

and the Sixth Amendment to the Constitution. The trial

counsel was correct when he stated that case law clearly

allows character evidence to be admissible in drug cases.

(R. 273). “Few rights are more fundamental than that of an

accused to present witnesses in his own defense.” Chambers

v. Mississippi, 410 U.S. 303 (1973). Accordingly, rules of

evidence, such as hearsay rules, “may not be applied

mechanistically to defeat the ends of justice.” Id.

Certainly, a military member who does not use drugs is

showing “good military character.” See United States. v.

Vandelinder, 20 M.J. 41 (C.M.A. 1985) (good military

character pertinent to drug charges); A character trait for

purposes of M.R.E. 404 is not limited to a moral disposition

such as honesty, peacefulness, or truthfulness. To the

contrary, Dean Wigmore defines a character trait more

expansively-as a moral or psychical disposition. See United

States v. Elliot, 23 M.J. 1 (C.M.A. 1986). Thus, “lawfulness”

has been determined by this Honorable Court to be a character

trait within the meaning of M.R.E. 404(a)(1). Jd, citing,

United States v. Clemons, 16 M.J. 44 (C.M.A. 1983). The

more difficult question is whether a character trait in question

12

is “pertinent.” See United States v. Hooks, 24 M.J. 713

(A.C.M.R. 1987) (“it is the substance of the alleged

misconduct which is pivotal to a determination whether such

evidence is “ ‘pertinent.’ ”). “Evidence is called “pertinent “

when it is directed to the issue or matters in dispute, and

legitimately tends to prove the allegations of the party

offering it.” Elliot, supra, at 5. One of the pertinent character

traits of appellant was law-abidingness, as recognized by all

the parties in appellant’s case. The “law-abidingness” was

that appellant had never broken the law against using drugs.

Thus, under the M.R.E. 405(b), the defense could offer

specific instances of his conduct which showed he never used

drugs, as long as those specific instances of conduct related to

his lawfulness in not using drugs.' So, for example, he could

offer evidence from college friends that he had once been

offered marijuana but refused. Such specific instances of

conduct had become more relevant in appellant’s case after

trial counsel had elicited evidence from Dr Papa that a chronic

drug user could have stopped using drugs on 28 March 1993

and nevertheless tested positive on the 28th of April. By his

questioning of Dr Papa, trial counsel implied that even if no

one had seen appellant use drugs between the charged time

frame he could have still tested positive if he were a frequent

drug user. The defense statements were highly relevant to

rebut trial counsel’s implication that appellant could be a

frequent drug user.

The pertinent statements in the defense exhibits did not

refer to specific acts of conduct, assuming specific acts of

conduct would not have been admissible in this case. The

defense statements generally said that “I have never known

Major Schelkle to ever use drugs” or “I have never seen

‘Appellant would agree that a specific instance of law-abidingness

conduct, such as “appellant does not drive fast,” would be irrelevant in a

drug case.

13

Major Schelkle ever use drugs.” These statements were

simply a form of reputation evidence allowable under M.R.E.

405(a), as referenced by defense counsel. On cross-

examination, the trial counsel could have asked the witnesses

about specific instances of appellant using drugs (if there had

been any, which there were not). M.R.E. 405(a). The military

judge was also incorrect about his concern that the defense

Statements discussed the ultimate issue in the case. None of

the statements told the court-members that the witness

believed appellant did not use drugs between 28 March and

28 April, or that appellant was telling the truth when he

testified that he did not use drugs. The concern of the military

judge was unwarranted. The military judge was also incorrect

opining that in an assault case it would be irrelevant for a

witness to testify that he or she had never seen the accused

assault anyone. Such evidence of “peacefulness” would

clearly be admissible and would be a pertinent character trait.

Stating that one had never seen the accused assault anyone or

ever become angry is a form of peacefulness testimony. See

United States v. Giles, 13 M.J. 669 (A.F.C.M.R. 1982). What

the rules may not allow in such a case is for a witness to then

be allowed to go into specific instances where the accused did

not “pick a fight.”* Similarly, the military judge was mistaken

with his “drunk driving” example. It would certainly be

relevant that the accused had a reputation for not “drinking or

driving” or had never been seen to drink and then drive, or

_was known to never drink at all! The rules of evidence should

not be designed to prevent an accused from presenting such

exculpatory evidence, especially in a jurisdiction where,

unique to any jurisdiction, a servicemember is tried and his

Although appellant would not necessarily agree. In Giles, the court had

simply said the military judge had not abused his discretion in not

allowing the defense to go into specific instances of the accused’s

peacefulness.

14

freedom taken away based on what a machine measures.

Chambers, supra.

The redacted defense statements became more relevant

as the trial progressed. As noted, defense counsel in her

opening statement put the judge on notice that appellant was

going to testify in his own behalf. After the prosecution

rested, the defense called as its first witness SA Glick. She

testified that appellant was shocked when he was called in to

be interviewed by OSI. (R. 284). She stated appellant had

said “I don’t mess around with drugs. I can’t believe this, this

is a nightmare.” (R. 285). He voluntarily consented to a

search of his vehicle and his home. (R. 285, 286). In her

opinion, his car did not smell as if marijuana had been

smoked in it. (R. 286). Major Schelkle then testified. He

provided the court-members with his normal daily routine.

(R. 295-298). He denied using marijuana during March of

1993 and testified that he had never used marijuana. (R. 299).

However, he could not explain how his sample tested positive.

(R. 300).

On cross-examination, trial counsel thoroughly attacked

appellant’s credibility. (R. 308-313, 314, 315). Trial counsel

also questioned appellant about whether or not he had ever

smelled marijuana when he attended concerts in high school.

(R. 316). During a 39a session called in the middle of his

cross-examination, trial counsel noted that appellant’s good

military character was “a central theme of the defense.” (R.

321). He wished to cross-exam the appellant about the fact

that he received six “Fs” at the State University of New York

in 1975 while he was taking a course to advance his military

training. (R. 321). The military judge excluded the evidence

under M.R.E. 403. Trial counsel then further cross-examined

the appellant about the time he actually reported for the

urinalysis, implying he had waited as long as he could to be

tested. (R. 327, 328). Trial counsel also asked appellant

sini

15

about $170.00 worth of toys he had purchased for his children

in the days after he provided his urinalysis. The judge told

him to “move along.” (R. 331).

After appellant, Mr Bell was called as a defense witness.

He was a co-worker of appellant and testified that he had not

observed appellant using drugs between 28 March 1993 and

28 April 1993. He also had not noticed appellant acting

strangely during that time frame. (R. 344). Mr Paul Ferrone,

a neighbor of appellant, also testified that he had not seen

appellant use marijuana between 28 March and 28 April.

(R. 349). Mrs Schelkle testified for her husband and

discussed what she and her husband had done between the

charged time frame. (R. 355-360). She also testified that she

had not seen her husband use any drugs during the charged

time frame. (R. 360). Frances Hunt-Burrus was next to

testify and also stated that she had not seen appellant use any

illegal drugs during the charged time frame. (R. 374). She

also provided her opinion that appellant had a character for

truthfulness. (R. 375). On cross-examination, she discussed

appellant’s “typical day.” (R. 376). Finally, Lt Colonel

Balcom testified on appellant’s behalf. He stated that

appellant’s duty performance was “fantastic” during the time

appellant had worked for him (June 1992 to March 1995).

(R. 380). He stated that appellant was “shocked” when he

was told the results of his urinalysis and that he ( Lt Col

Balcom) had never seen appellant use drugs or act unusual

during the charged time frame. (R. 381, 382).

Through the cross-examination of appellant and his wife,

trial counsel had directly placed appellant’s honesty in issue,

including appellant’s testimony that he had never used illegal

drugs. Trial counsel also noted during a 39a session after the

defense rested that appellant’s credibility had been attacked

on cross-examination and it was then that the defense exhibits

had been admitted. (R. 395). However, appellant’s credibility

16

was attacked prior to the appellant testifying, when trial

counsel had called SA Kelley to testify about the statements

appellant had made to him. Trial counsel used those

statements against appellant during his cross-examination of

appellant and during his closing argument. Defense counsel

had also put the military judge on notice, during her opening

statement, that appellant would be testifying. Thus, under the

facts of this case, the statements redacted by the military

judge were admissible at the time appellant offered them into

evidence and certainly should have been admissible after the

defense rested its case. United States v. Robertson, 39 M.J.

211 (C.M.A. 1994).

Prejudice

The error by the military judge prejudiced appellant. In

United States v. Weeks, 20 M.J. 22 (C.M.A. 1985), the then

named, Court of Military Appeals adopted a four part test to

determine prejudice: (1) Is the government’s case against the

accused strong and conclusive? (2) Is the defense’s theory of

the case feeble or implausible? (3) What is the materiality of

the proffered testimony? Is the question whether or not the

accused was the type of person who would engage in the

alleged criminal conduct fairly raised by the Government’s

theory or by the defense? and, (4) What is the quality of the

proffered defense evidence and is there any substitute for it in

the record of trial? Weeks, at 25.

At appellant’s court-martial, the government’s case

rested solely on a positive urinalysis result. It was not a

strong urinalysis case. Scientific tests are administered by

people, and people make mistakes. In Major Schelkle’s case,

mistakes were made and procedures not followed. At the

Brooks laboratory, urine samples tested in the same “batch” as

appellant’s were tested incorrectly. A blind positive was

incorrectly determined to be negative. (R. 204). Since

EEE

17

appellant’s urine sample tested positive each time, it was

assumed his sample was accurately tested. But, make a

mistake once with one urine sample, why not three or four

times with another? Trial defense counsel extensively

questioned the government’s expert about the testing of tube

#11. This tube was in the same batch of tested samples as

appellant’s*. The government expert testified that the “counts”

ofa particular urine sample, tested on two different tests,

should not have deviated more than 10%. (R. 231). The

“counts” taken of tube #11 on two different tests had over a

50% deviation. (R. 232). The expert witness attempted to

explain that the impermissible discrepancy could have been

caused by “pipetting.” (R. 234). However, he agreed that it

was possible the sample tested in tube #11 on 11 May 1994

did not come from the same urine specimen tested in tube #11

on the 14th of May (although it was supposed to be the same

urine specimen). (R. 235). If so, a major error was

committed. Chain of custody of this sample may have been

compromised. In fact, discounting the almost “holier than

thou” testimony of the expert witness as to the Brooks

Laboratory’s chain of custody procedures, this possibility was

just as likely as any other. (R. 235).

Other discrepancies occurred in the batch of urine

samples tested with appellant’s sample. Tube #3 was the

blind quality control sample that incorrectly tested negative in

the initial test, but positive on the retest. (Pros. Ex. 7, pages

7K, 7H). Tube #5 was tested as negative in the initial

immunoassay test (Pros. Ex. 7, pages 7F, 7H), negative in the

retest (Pros. Ex. 7, pages 71, 7K), but positive on the GS/MS

confirmation test (Pros. Ex. 7, page 7L). Tube #5 was not a

blind quality control sample. Tube #9, social security number

486—54—0020, was tested in an initial immunoassay test and a

3Appellant’s sample was in tube #2. (R. 232)

18

retest. (Pros. Ex. 7, pages 7F, 7H). However, for the third

and final test, the GS/MS confirmation test, tube #9 had

inexplicably disappeared. (Pros. Ex. 7, page 7L). Tube #9

was not a quality control sample. Tube #9 had tested negative

in the first two tests, and presumably there was no need to test

it in the final, confirmation test. Sounds good, but tube #5

also tested negative the first two times, but was tested a third '

time. Either the testing procedure for tube #5 or the testing

procedure for tube #9 was not followed. Finally, Tube #10,

not a blind quality control sample, tested negative in the

initial immunoassay test (Pros. Ex. 7, pages 71, 7K), but

positive in the retest (Pros. Ex. 7, pages 7F, 7H). All of these

discrepancies show that the Government’s case was not

overwhelming.

Appellant’s excellent military character and other

evidence admitted at his court-martial shows how tenuous

was the Government’s case. Appellant had served 14 years in

the military. No derogatory evidence was introduced by the

government. Three of appellant’s co-workers testified about

his work ethic and character. (R. 342-388). Mrs Schelkle

and the three other witnesses testified that they did not see

appellant use marijuana during the charged time period. None

of them noticed anything unusual about appellant.

(R. 342-388). Six other witness statements were admitted in

the form of affidavits, all commending appellant’s officership |

and work ethic. (Def. Exs. R-W).

Appellant was visibly shocked to find out his urine :

sample had tested positive. (R. 284). He fully cooperated

with the AFOSI agents. (R. 248-269). He even volunteered

to the agents that they could search his house. (R. 285). A

search of appellant’s vehicle revealed no illegal contraband or

marijuana odor. (R. 286). In fact, the AFOSI found no

witnesses to appellant’s alleged drug use, or any other

investigative leads. (R. 269). The Hanscom laboratory

19

personnel noticed nothing unusual about appellant’s demeanor

when he reported to provide his urine sample (R. 144). His

commander noticed nothing unusual about his demeanor

when appellant was told to report to the clinic for a random

urinalysis. (R. 121). During the charged time period,

appellant had not taken excessive leave or gone TDY. (R.

263, 264). During his career, appellant had submitted dozens

of previous random urine samples, all of which were negative.

(R. 302).

All told, the appellant’s character, his demeanor during

sentencing, and the testing errors committed at the laboratory,

amounted to a less than overwhelming case for the

Government. Appellant’s theory was that either a mistake had

been made in the testing procedures, or he innocently ingested

marijuana. (R. 307, 405, 406). The government’s case was

not strong and, given the numerous mistakes that were made

at the laboratory, appellant’s theory of the case was not feeble

or implausible. The first and second parts of the test were

met. The third part of the test was also met. Appellant was

adamant that he did not use marijuana. (R. 299) His

performance reports were admitted into evidence. (Def. Ex.

QO). His wife and co-workers testified as to his character and

work ethic. (R. 342-387). An AFOSI agent testified that, in

her opinion, Major Schelkle was shocked when he was called

in for questioning. (R. 284). The character of appellant had a

large bearing in this case. In fact, other than appellant’s

denial, his upstanding character was his defense.

Finally, the quality of the proffered testimony was high.

The defense witnesses who would have provided their

knowledge of appellant’s lawfulness were all co-workers (or

had been) of appellant. One was an active duty Lt Colonel.

Another, a retired Major. A third, a senior civilian employee.

All had known appellant for years, one for his entire career in

the Air Force. (Def. Exs. R-W). Because of the military

20

judge’s ruling, Mrs Schelkle and the three defense witnesses

‘nat testified during findings were forced to give only their

knowledge as to whether they had ever seen appellant use

drugs during the charged time period*. (R. 344, 347, 381).

There was no substitute in the record of trial for the

information redacted from the six statements.

Despite the evidence of a positive urinalysis test, the

court-members deliberated for nearly four hours. Denial of

appellant’s right to place into evidence the powerful first hand

opinions and knowledge of these witnesses, spanning 15

years, was prejudicial.

Conclusion

Trial counsel in the case sub judice agreed that character

evidence was admissible in drug cases. He had, through Dr

Papa, planted in the minds of the court-members that

appellant could test positive for marijuana on 28 April 1993

even if he did not use drugs for 30 days prior to that date. He

implied that appellant was a frequent drug user. In this

context, evidence that witnesses had never known appellant,

in 15 years, to use drugs and had never seen appellant use

drugs, was pertinent and admissible.

The statements by the defense witnesses were not

specific acts of conduct on the part of appellant. The

witnesses did not talk about a specific event or date.

However, even if they are determined to be specific acts of

4In clemency matters, trial defense counsel was of the opinion that the

testimony allowed at trial was similar to the redacted parts of the

affidavits. They were not. As noted, the redacted statements discussed the

witnesses knowledge that they had never known appellant to have used

drugs. The affidavits spanned a period of up to 14 years, appellant’s entire

career. The witnesses at trial only discussed their knowledge of not having

seen appellant use marijuana during the charged time period.

21

conduct, then such testimony was admissible under M.R.E.

405(b) and 404(a)(1)(Evidence of a pertinent trait of the

character of the accused offered by an accused) That

pertinent character trait was that Major Schelkle was against

drugs and was a law-abiding citizen in that he did not use

drugs. Such evidence must be admissible, under the Sixth

Amendment, in a case where a defendant can be convicted

based on how a machine tests his urine, and nothing else.

Respectfully submitted,

KEVIN P. KOEHLER,

Major, United States Air Force

Appellate Defense Counsel

Counsel of Record

DOUGLAS H. KOHRT,

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel for the Petitioner

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

: (202) 767-1562

December 1997

la

APPENDIX A

UNITED STATES, Appellee,

¥..

Kurt G. SCHELKLE, Major U.S. Air Force, Appellant

No. 96-0220

Crim.App. No. 31105

U.S. Court of Appeals for the Armed Forces

Argued Nov. 5, 1996

Decided Sept. 12, 1997

Accused was convicted by general court-martial, Terry J.

Woodhouse, J., of single specification of wrongfully using

marijuana. The United States Air Force Court of Criminal

Appeals affirmed. Review was granted. The United States

Court of Appeals for the Armed Forces, Cox, C.J., held that

evidence that witnesses had never seen or known accused to

use drugs was not admissible as evidence of character trait

that was essential element of defense.

Affirmed.

Sullivan J., filed opinion concurring in result.

Effron, J., filed opinion concurring in result.

1. Military Justice O— 1420

Court of Appeals for the Armed Forces reviews military

judge’s ruling admitting or excluding evidence for abuse of

discretion.

2a

2. Military Justice O=- 1027

Evidence that witnesses had never seen or known

accused to use drugs was not admissible as evidence of

character trait that was essential element of defense to

wrongfully using marijuana. Military Rules of Evid., Rule

405(b).

3. Military Justice O-- 1027, 1120

Mere asserting of nonobservation of criminal conduct

does not equate to reputation or opinion evidence. Military

Rules of Evid., Rules 404, 405.

For Appellant: Captain Michael L. McIntyre (argued);

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

and Lieutenant Colonel Kim L. Sheffield.

For Appellee: Captain Deborah M. Carr (argued);

Colonel Jeffery T. Infelise, Lieutenant Colonel Michael J.

Breslin, and Major John H. Kongable (on brief); Colonel

Theodore J. Fink.

Opinion of the Court

COX, Chief Judge:

A general court-martial comprised of members convicted

appellant, contrary to his pleas, of a single specification of

wrongfully using marijuana, in violation of Article 112a,

Uniform Code of Military Justice, 10 USC § 912a. Sitting at

Hanscom Air Force Base, Massachusetts, the court-martial

sentenced appellant to dismissal from the service. The

convening authority approved the sentence, and the Court of

Criminal Appeals affirmed in an unpublished opinion.

3a

The issue in this case is whether the military judge erred

in redacting certain passages from a group of letters

introduced on the merits by the defense to support appellant’s

character.' The redacted passages are these:

Defense Exhibit (D.E.) R: In all my experiences

with Kurt Schelkle, I’ve never known him to use or

be in any way involved with marijuana or illegal

drugs.

D.E. S: I have never known Major Schelkle to use

illegal drugs; in fact, I haven’t even known him to

excessively use alcohol.

D.E. T: I have never observed or known any-thing

that would have led me to believe that Major

Schelkle was using or involved with any illegal

substances.

D.E. U: Over the years I have never known Kurt to

use marijuana or any other illegal substance. On the

social occasions that we’ve been together, he has

never over-indulged in alcohol. He would usually

have only two or three beers over the course of the

evening. He has been very moderate in the use of

alcohol.

D.E. V: In all my contact with Major Schelkle, I

have never known him to use or be involved in any

illegal drugs. Whenever I’ve been in Kurt’s

company, I have never known him to even misuse

alcohol.

'We granted this issue for review:

WHETHER THE MILITARY JUDGE ERRED, TO THE

PREJUDICE OF APPELLANT, BY EXCLUDING

EVIDENCE FROM DEFENSE WITNESS STATEMENTS IN

WHICH EACH SAID THEY HAD NEVER SEEN OR

KNOWN APPELLANT TO HAVE USED DRUGS.

4a

D.E. W: I have never known Major Schelkle to use

or be involved in illegal drugs.

Defense counsel agreed that the references to alcohol were

irrelevant to this proceeding.

Although appellant was convicted largely on the basis of

a random urinalysis, a major trial dynamic—injected

preemptively into the proceedings by the defense—centered

around evidence of appellant’s consciousness of guilt, in

particular his failure, for some 5 months, to mention the

accusation against him to his wife. See 1 C. Mueller & L.

Kirkpatrick, Federal Evidence § 85 at 420 (2d ed. 1994); 1A

Wigmore, Evidence § 173 at 1840 (Tillers rev. 1983). She

ultimately learned of the charges from someone else,

incidentally, on the eve of trial. Appellant’s explanation for

his secrecy apparently provided the court members a

significant opportunity to evaluate his credibility.

The defense also called four character witnesses on the

merits. Two of them were coworkers of appellant who were

with him daily. Both praised appellant’s character and work,

and neither had observed him using drugs during the relevant

period or sensed anything unusual about him. The third

witness, a former supervisor of appellant, described his duty

performance as “fantastic” and stated that he never saw

appellant use drugs or behave unusually. The remaining

character witness was appellant’s neighbor. He socialized

extensively with appellant, saw him “almost every day,”

believed him to be truthful, and never saw him use marijuana

or act unusually during the relevant time period.

In lieu of seeking production of still more character

witnesses on the merits, the defense proffered the six letters

previously mentioned, which attested to appellant’s good

military character. Trial counsel did not object to receipt of

the letters in general or to character evidence per se, but he

Sa

did object to the specific passages set out above.* Counsel

argued that these were not assertions of opinion or reputation

of character, as permitted by Mil.R.Evid. 404(a)(1) and

405(a), Manual for Courts-Martial, United States (1994 ed.),

but of specific instances of conduct (or nonconduct), as

precluded by Mil.R.Evid. 405(a).

Defense counsel never contended that these assertions

constituted opinion or reputation evidence so as to be

admissible under Mil.R.Evid. 405(a). Instead, he argued that

the challenged passages were admissible under Mil.R.Evid.

405(b), as evidence of a character trait that is an essential

element of a defense, to wit: “good military character.” Thus,

he argued that “specific instances of the person’s conduct”

were indeed admissible.

The military judge, however, “d[id] not read 405(b) the

Same way that the defense d[id] in this regard.” Neither do

we.

The pertinent language from the Military Rules of

Evidence is as follows:

Rule 404. Character evidence not admissible to

prove conduct; exceptions; other crimes

(a) Character evidence generally. Evidence of a

person’s character or a trait of a person’s character

*This matter should have been resolved under RCM 811, Manual for

Courts-Martial, United States (1995 ed.), regarding stipulations of

expected testimony, rather than as an evidentiary matter. All six statements

were inadmissible hearsay absent government agreement. Mil.R.Evid.

801, Manual, supra.

The military judge further analogized the situation to a drunk-driving

case. The fact that a witness had not seen an accused drive drunk in the

past did not seem, to the judge, to go to the accused’s character. Thus,

although the judge redacted the assertions that appellant had not been

observed using drugs, he received the balance of those parts of the state-

ments that went to character.

6a

is not admissible for the purpose of proving that the

person acted in conformity therewith on a particular

occasion, except:

(1) Character of the accused. Evidence of a

pertinent trait of the character of the accused

offered by an accused, or by the prosecution to

rebut the same.

* * * * * *

(b) Other crimes, wrongs, or acts. Evidence of other

crimes, wrongs or acts is not admissible to prove the

character of a person in order to show that the

person acted in conformity therewith. It may,

however, be admissible for other purposes, such as

proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or

accident.

Rule 405. Methods of proving character

(a) Reputation or opinion. In all cases in which

evidence of character or a trait of character of a

person is admissible, proof may be made by

testimony as to reputation or by testimony in the

form of an opinion. On cross-examination, inquiry

is allowable into relevant specific instances of

conduct.

(b) Specific instances of conduct. In cases in

which character or a trait of character of a

person in an essential element of an offense or

defense, proof may also be made of specific

instances of the person’s conduct.

(Emphasis added.)

[1,2] Our standard of review of a military judge’s ruling

admitting or excluding evidence is abuse of discretion. United

PR RT a NEE REM CCT me oemoE

Ta

States v. Sullivan, 42 MJ 360, 363 (1995). Plainly, the military

judge did not abuse that discretion here, as appellant’s

contention that his character was an “essential element” of a

defense is erroneous. Good military character, law-

abidingness, and the like can be “defenses” in the sense that

they may tend to negate an element of an offense, such as

mens rea. They may also tend to cast doubt on the identity

element of an offense, i.e., that it was the accused who

committed the offense. Such evidence is not, however, the

sort having elements themselves, such as an “affirmative

defense.” See United States v. Berri, 33 MJ 337, 343 (CMA

1991). Thus, the failure to observe criminal activity, or the

observation of general good conduct, is not probative of an

essential element of a[ ] . . . defense.” Mil.R.Evid. 405(b). See

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

of Evidence Manual 497 (3d ed. 1991), wherein it is

suggested that

Character might be an element of a defense if

entrapment is claimed and the government wants to

prove predisposition. Specific acts might be used in

this context.

[3] The operation of Mil.R.Evid. 404 and 405, as

pertains to this case, is quite plain. As all parties to the trial

agreed, evidence of a pertinent trait of appellant’s character

offered by the defense, including good military character and

law-abidingness, is admissible. Mil.R.Evid. 404(a)(1).

However, the form that evidence could take was limited to

reputation and opinion testimony, and the military judge fully

permitted all reputation and opinion evidence here.

Mil.R.Evid. 405(a). As the defense has implicitly conceded

throughout, a mere assertion of nonobservation of criminal

conduct does not equate to reputation or opinion evidence.

See United States v. Scarpa, 897 F.2d 63, 70 (2d Cir. 1990);

Fed.R.Evid. 405, 28 USC, Notes of Advisory Committee on

8a

Proposed Rules; 1 S. Saltzburg, M. Martin, D. Capra,

Federal Rules of Evidence Manual 446-66 (6th ed. 1994);

see also Michelson vy. United States, 335 U.S. 469, 69 S.Ct.

213, 93 L.Ed. 168 (1948); United States v. Midkiff, 15 MJ

1043, 1051 (NMCMR 1983); United States vy. Giles, 13 MJ

669, 671 (AFCMR 1982).

In the instant case, moreover, the military judge

expressly ruled that the live witnesses could be asked about

appellant’s conduct during the charged period, and the

witnesses so testified. Furthermore, it can be fairly assumed

that the senior panel of military officers would have well

realized that none of the many servicemembers who came

forward to present evidence on behalf of appellant, either in

the form of live testimony or written letter, would have held a

high opinion of appellant’s character or performance if they

had ever observed him using drugs or acting suspiciously in

that regard. Thus, in reality, the type of information appellant

sought to place before the members was abundantly evident.

Additionally, no evidence was presented, express or

implied, regarding any other instances of criminal activity or

misconduct by appellant, either within or without the charged

period.’ Lastly, the excluded evidence was cumulative and at

best marginally relevant. See United States v. Hill, 40 F.3d

4Appellant now complains that the prosecution, through its drug expert,

implied that appellant may have used drugs prior to the charged period,

and thus the defense should have been allowed to present the evidence of

nonobservation of prior drug use. Those portions of the drug expert’s testi-

mony in question, however, were part of a series of questions about the

general characteristics of marijuana usage vis-a-vis the persistence of the

tetrahydrocannabinol metabolite in urine. For example, the expert was

asked:

Assuming for hypothetical purposes that the accused used

marijuana on a regular basis and stopped on the 29th of March

1993. Could the result in this test be consistent with such

behavior?

|

9a

164 (7th Cir. 1994) (defendant’s failure to steal three “test

letters” was “only tangentially relevant” to whether she

intended to embezzle check 5 months earlier),

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

Judges CRAWFORD and GIERKE concur.

SULLIVAN, Judge (concurring in the result):

I disagree with the majority’s statement that “[t]he

operation of Mil.R.Evid. 404 and 405, [infra] as pertains to

this case, is quite plain.” 47 MJ at 112. On the contrary, the

operation of these rules in general and in this case in

particular is anything but plain.* See Government of the

Virgin Islands v. Grant, 775 F.2d 508, 511-12 (3d Cir. 1985).

Moreover, the prosecution did not object to the excluded

evidence on hearsay grounds and, therefore, the majority

cannot now support its opinion on that basis. I would affirm

appellant’s conviction, but not for the reasons posited by the

majority.

A critical factor in the majority’s analysis is that “the

defense has implicitly conceded throughout [that] a mere

assertion of nonobservation of criminal conduct does not

equate to reputation or opinion evidence.” 47 MJ at 112. I

note, however, that appellant defense counsel has not

conceded this issue at all. He states:

The expert agreed that it was possible. The defense did not

object <o this testimony, and, in the context in which it was

given, it cannot possibly be construed as evidence or innuendo

that the expert was of the opinion or had a basis for believing

that appellant previously used drugs.

*Apparently this issue was not plain to the military judge who initially

admitted these statements and then excluded them at a later date. He then

allowed defense-character witnesses who actually testified to give similar

testimony on non-use by appellant during the charged period.

10a

The statements by the defense witnesses were not

specific acts of conduct on the part of appellant. The

witnesses did not talk about a specific event or date.

However, if they are determined by this Honorable

Court to be specific acts of conduct, then such

testimony was admissible under M.R.E. 405(b) and

404(a)(1)....

Final Brief at 21.

Moreover, I read the excluded evidence more broadly

than the majority does. The particular statements excised by

the military judge are noted in the majority opinion. 47 MJ at

110, 111. A fair reading of them suggests that these witnesses

were substantially giving their opinion that appellant did not

use drugs. See United States v. Breeding, 44 MJ 345, 350

(1996) (“Reputation is what the witnesses have heard about

appellant . . . whereas opinion evidence relates to their own

personal observations and experiences with appellant... .”) In

addition, such testimony can be reasonably considered akin to

reputation evidence. See Wright and Graham, 22 Federal

Practice and Procedure § 5266 at 598; contra Virgin Islands

v. Grant, supra. Even if these statements by the defense

witnesses are literally construed, evidence of specific non-acts

is not plainly barred by Mil.R.Evid. 405(b), Manual for

Courts-Martial, United States, 1984 (specific instances of the

person’s conduct). See Virgin Islands v. Grant, supra at 512.

In any event, evidence of “specific instances of conduct”

is admissible where “character or a trait of character. . . isan

essential element of an offense or defense.” Mil.R.Evid.

405(b) (emphasis added). Here, appellant was found guilty of

a single specification of wrongfully and knowingly using

marijuana under Article 112a, Uniform Code of Military

Justice, 10 USC § 912a, on the basis of positive urinalysis

evidence. See generally United States v. Harper, 22 MJ 157

(CMA 1986). In my view, the uniqueness of this type of

lla

prosecution entitled appellant to present evidence that those

familiar with him have not observed him using drugs, and

such evidence should be considered essential in these

urinalysis cases. Cf. United States v. Keiser, 57 F.3d 847, 857

(9th Cir. 1995); United States v. Swanson, 9 F.3d 1354, 1359

(8th Cir. 1993) (strictly construing Fed.R.Evid. 405(b) to

require more than relevance to defense). After all, we have

held that evidence of a servicemember’s religious opposition

to drugs is admissible at a court-martial to create a reasonable

doubt about drug use. See United States v. Brown, 41 MJ |

(CMA 1994).

I disagree with the majority that the form of excluded

evidence precluded the defense from presenting it to the

members. See also United States v. Rankins, 34 MJ 326, 336

(CMA 1992) (Sullivan, C.J., dissenting) (“defense . . . was not

a strong one, but it was her only one”). Nevertheless, in view

of the testimony from the actual witnesses who were

permitted to testify at trial concerning non-use, I am

convinced this error by the military judge was harmless

beyond a reasonable doubt. Chapman y. California, 386 U.S.

18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Accordingly, I join

my fellow judges in affirming appellant’s conviction.

EFFRON, Judge (concurring in the result):

Appellant was convicted of wrongful use of marijuana

“between on or about 28 March 1993 and on or about 28 April

1993,” in violation of Article 112a, Uniform Code of Military

Justice, 10 USC § 912a. To obtain a conviction for drug use,

the Government was required to prove that appellant had

“[k]nowledge of the presence of” marijuana. See also para.

37¢(10), Part IV, Manual for Courts-Martial, United States

(1995 ed.) (effective January 21, 1994),

The Government had no direct evidence that appellant

knew he had consumed marijuana. No witness had ever seen

him use, possess, or exhibit the effects of marijuana before,

12a

during, or after the charged period of use. The Government's

only significant evidence was a positive urinalysis result.

Under applicable law, the Government relied on a permissive

inference that “[k]nowledge of the presence of the controlled

substance may be inferred from the presence of the controlled

substance in the accused’s body. . . .” /d.

Appellant sought to rebut the inference of knowing use

by introducing statements of others that they had not seen him

use marijuana. The military judge permitted witnesses to

testify as to non-use during the charged period. He refused to

permit appellant to introduce evidence of non-use contained

in written statements covering a longer period of time,

however, even though defense counsel specifically contended

that, among other grounds for admissibility, such evidence

was “consistent with the defense which we’ve asserted of

unknowing [ingestion] and the element of the offense of

knowledge.”

The military judge relied on Mil.R.Evid. 405(b), Manual,

supra, for the proposition that the evidence offered by

appellant constituted evidence of his good military character

and law-abiding behavior, which can be proved only through

opinion and reputation testimony and not through specific

instances of conduct. As illustrated in the material quoted by

Judge Sullivan from Government of the Virgin Islands v.

Grant, 775 F.2d 508, 511-12 (3rd Cir. 1985), there is

considerable debate concerning whether testimony as to the

absence of specific instances of conduct constitutes opinion

testimony or whether it constitutes multiple instances of good

conduct.

In a urinalysis case, where the only evidence of use is a

laboratory report, it is difficult to discern the difference

between opinion testimony that an individual is drug-free and

testimony that the witness has never observed the individual

use drugs. I would not foreclose the contention, if clearly

13a

litigated, that the best means of communicating an opinion

that a person is drug-free is through testimony that the witness

has never observed the individual use drugs.

In addition, I also would not foreclose the contention that

evidence of non-use, even if treated as multiple incidents of

conduct, is admissible under Mil.R.Evid. 404(b) in a

urinalysis case to rebut the inference that mere presence of a

metabolite in the urine proves knowing use. Mil.R.Ed. 404(b)

permits introduction of evidence of “other . . . acts,” not as

evidence of character but as “proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of

mistake or accident. . . .” (Emphasis added.) Extrinsic

evidence of conduct frequently is admitted to prove a person’s

state of mind. E.g., United States v. Dorsey, 38 MJ 244

(CMA 1993) (evidence of uncharged misconduct admissible

to prove intent). In a urinalysis case, where the Government

cannot prove use on any particular date and has no direct

evidence of knowing use, an accused may have a strong

argument that evidence of non-use is admissible as extrinsic

evidence on the issue of knowledge.

I agree with the majority, however, that in the case before

us, any error is harmless in view of the considerable live

testimony that was admitted by the military judge as direct

evidence of non-use. ,

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APPENDIX B

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

UNITED STATES

Vv

Major KURT G. SCHELKLE, 054—50—3041

United States Air Force

ACM 31105

26 September 1995

Sentence adjudged 10 November 1993 by GCM convened at

Hanscom Air Force Base, Massachusetts, Military Judge:

Terry J. Woodhouse.

Approved sentence: Dismissal.

Appellate Counsel for Appellant: Colonel Jay L. Cohen,

Captain Joel R. Reifman, and Captain Michael L. McIntyre.

Appellate Counsel for the United States: Colonel Jeffery T.

Infelise, Colonel Thomas E. Schlegel, Lieutenant Colonel

Joseph J. Urban, and Major John H. Kongable.

Before

HEIMBURG, GAMBOA, and SENANDER

Appellate Military Judges

1Sa

OPINION OF THE COURT

SENANDER, Judge:

In a general court-martial, tried before members, the

appellant was convicted, contrary to his pleas, of wrongful

use of marijuana. Article 112a, UCMJ, 10 U.S.C. § 912a. His

approved sentence is a dismissal. The appellant assigned two

errors. We find neither persuasive, and affirm.

The appellant provided a urine sample, pursuant to a

random urine test, on 28 April 1993. On 1 June 1993, he was

notified by the Air Force Office of Special Investigations

(AFOSI) that his sample had tested positive. Dr. Vincent M.

Papa, an expert in forensic toxicology, testified concerning

the testing procedures used on the appellant’s urine sample at

the Armstrong Laboratory Drug Testing Division, Brooks Air

Force Base, Texas. He explained that testing of appellant's

sample revealed the presence of marijuana metabolite at a

level of 43.74 ng/ml, which was above the Department of

Defense standard of 15 ng/ml for reporting positive results.

During his testimony, Dr. Papa admitted that other samples in

the same batch as appellant’s revealed discrepancies in

results between tests. As a result of the discrepancies,

appellant’s sample, as well as the other samples in the same

batch, were tested a fourth time. Dr. Papa testified there were

no discrepancies in appellant’s urine sample results, and that

discrepancies in other samples were caught by the laboratory.

In his first assignment of error, the appellant asserts the

military judge erred by excluding portions of six character

statements. Each statement was admitted to show the

appellants reputation for good military character and

truthfulness. One sentence in each statement that stated the

individual had never known the appellant to use or be

involved in any illegal drugs was deleted by the military judge

upon objection by trial counsel. The military judge properly

excluded those portions of the statements that were neither

l6a

reputation or opinion evidence. Mil.R.Evid. 405, MCM, Part

III (1984). The standard by which we review a military

judge’s decision concerning the admissibility of evidence is

an abuse of discretion standard. United States v. Spata, 34

M.J. 247 (C.M.A. 1992). We conclude the military judge had

a valid basis for partially excluding the statements of the six

witnesses and that he did not abuse his discretion.

The appellant next asserts the evidence was factually

insufficient to support his conviction. It is the responsibility of

this Court to review a case for both factual and legal

sufficiency. Article 66(c), UCMJ, 10 U.S.C. § 866(c), United

States v. Turner, 25 M.J. 324 (C.M.A. 1987).

At trial the appellant did not challenge the collection

process, but did point out that other samples tested in the

same batch resulted in discrepancies. There was testimony

from Dr. Papa that the discrepancies were not related to the

appellant’s sample. The appellant testified that he did not

know how the marijuana metabolite could have been in his

urine sample. He appeared shocked when confronted with the

positive test results. He cooperated with AFOSI and agreed to

a search of his vehicle and home. He did ask that his wife not

be told about the test results since she was pregnant. The

AFOSI searched his vehicle and found nothing and did not

search the house in deference to his pregnant wife. In fact, the

appellant did not tell his wife about the positive urinalysis;

she found out a week before trial when a potential witness

called to discuss the matter. The appellant’s wife delivered

their baby six weeks prior to trial. During appellant’s

testimony he was able to recall in detail the process of

collecting urine samples, but on cross examination claimed he

could not remember any events from the time he was notified

until after he provided a urine sample over two hours later. He

did admit he drank water and coffee during the time between

notification and providing the urine sample.

174,

The prosecution provided no evidence, other than the

positive urinalysis, to prove the appellant’s knowing use, but

the members could conclude from that evidence that there

was knowing use of marijuana. There is 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. United States v. Pabon, 42 M.J.

404 (1995); United States v. Ford, 23 M.J. 331, 336 (C.M.A.

1987); United States v. Harper, 22 M.J. 157 (C.M.A. 1986).

There was sufficient evidence for the court members to

conclude beyond a reasonable doubt that the appellant

knowingly used marijuana. We are also convinced by the

evidence that the appellant is guilty beyond a reasonable

doubt of knowingly using marijuana. We conclude that the

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

sentence is not inappropriate, and no error prejudicial to the

substantial rights of the appellant was committed.

Accordingly, the findings of guilty and the sentence are

correct in law and fact and are

AFFIRMED.

Senior Judge HEIMBURG and Judge GAMBOA concur.

OFFICIAL

ALVIN J. STRIBLING

Technical Sergeant, USAF

Chief Court Administrator