Petition for Writ of Certiorari — Bush v. United States

Supreme Court brief1998

Ask Donna

What actually matters in this document.

Text

‘ Court, U.S.

{ \\ FILED

4, 9% 1026 DEC 19 1997

OFFIGE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

STAFF SERGEANT MICHAEL W. BUSH,

PETITIONER

UNITED STATES OF AMERICA, RESPONDENT

On Petition For a Writ of Certiorari to the United States

Court of Appeals for the Armed Force.

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 for Petitioner

Douglas H. Kohrt

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

202-767-1562

December 1997 )

QUESTIONS PRESENTED

Whether the petitioner was denied his Fourth

Amendment right to be secure in his person, against

unreasonable searches and seizures when the search

authorization (warrant) for his hair did not satisfy the

probable-cause and specificity requirements of the Fourth

Amendment.

Whether the petitioner was denied his Fifth Amendment

right to due process when the military judge erred to the

substantial prejudice of the appellant by denying the defense

motion to disallow the introduction of testimony concerning

the results of the hair analysis test conducted on the

petitioner’s hair, since the test was not a reliable procedure as

implemented.

iil

TABLE OF CONTENTS

QUESTIONS PRESENTED..........--- sees eee eeeee i

TABLE OF AUTHORITIES ..........-.- esse eeees V-Vili

bic) 6 oN. 5 6) | nnn ine ee l

DEM IIE oa oo vide b dpeiccessceucesccccacconses l

CONSTITUTIONAL PROVISIONS INVOLVED ........ l

STATEMENT OF THE CASE.........---- esse erences 2

REASON FOR GRANTING THE WRIT ..........-- 7, 14

THE PETITIONER WAS DENIED HIS FOURTH

AMENDMENT RIGHT TO BE SECURE IN HIS

PERSON, AGAINST UNREASONAPLE

SEARCHES AND SEIZURES WHEN ‘HE

SEARCH AUTHORIZATION ( WARRANT) FOR

HIS HAIR DID NOT SATISFY THE PROBABLE-

CAUSE AND SPECIFICITY REQUIREMENTS

OF THE FOURTH AMENDMENT.

THE PETITIONER WAS DENIED HIS FIFTH

AMENDMENT RIGHT TO DUE PROCESS

WHEN THE MILITARY JUDGE ERRED TO THE

SUBSTANTIAL PREJUDICE OF THE

APPELLANT BY DENYING THE DEFENSE

MOTION TO DISALLOW THE INTRODUCTION

OF TESTIMONY CONCERNING THE RESULTS

OF THE HAIR ANALYSIS TEST CONDUCTED

ON THE PETITIONER’S HAIR, SINCE THE

TEST WAS NOT A RELIABLE PROCEDURE AS

IMPLEMENTED.

ee | PERE EREPEEET TTC T. COT EE LTTE ET 35

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) ................ 23a

TABLE OF AUTHORITIES

Page

Supreme Court Cases:

Daubert v. Merrell Dow Pharmaceuticals,

113 S.Ct. 2786 (1993) ....17, 19, 20, 25, 26, 28, 33-35

Franks v. Delaware, 438 U.S. 154 (1978) ........ 9,10

Illinois v. Gates, 462 U.S. 213 (1983) .............. 8

Ornelas v. United States, — U.S. —,

Cee Oe OD ven coe vena biboc vccswcnle se

United States v. Leon, 468 U.S. 897 (1984) ....... 8,13

Federal Circuit Cases:

Cella v. United States, 998 F.2d. 418

CU I Gea Ce Sd ee Oe ce 17, 18

United States v. Foote, 898 F.2d. 659

GE Re So et aa ote iT 25

Military Cases:

United States v. Bush,—M.J.—

(Dkt. 96-1239/AF, September 30, 1997) ............ 3

United States v. Bush, 44 M.J. 646

eB i. 2 nn 2

United States v. Figueroa, 35 M.J. 54

Cs MU is b wwe reece chide Od boa aos 10

United States v. Gipson, 24 M.J. 246

is BUTE So eee aa eG ak oho bees 17, 25

United States v. Hill, 41 M.J. 596 (Army Ct. Crim.

ED bosch 6 coud ces bedebeetes cneves-s 26, 34

United States v. Houser, 36 M.J. 392

i acs Ue are ey as be oe 68 & 17,19

United States v. Johnston, 41 M.J. 13

PUNE Ke cc crores eteseeaseneeeveesce 30-33

United States v. Lopez, 35 M.J. 35

es SE Pek eS i cecediaer nesses keeres 9,10

United States v. Mukes, 18 M.J. 358

oe FO errrrrr rr rr rere Ti. rere 19

United States v. Nimmer, 39 M.J. 924

(N.M.C.M.R. 1994), remanded 43

"2 >” 70) ) nner a 3, 17, 25

United States v. Poole, 30 M.J. 271

a Fe er re 12,13

United States v. Rodriguez, 37 M.J. 448

BOD oop cocccene sed peneged seeebaeyee 19

United States v. Washington, 39 M.J. 1014 (A.C.MLR.

SEN cctceecacerivaceveseesss eo seeeganee 14

Federal Statutes:

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

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

ee. Be a bs ko ov eee ce eeatx<' 2

pr. Bath Me Lem 5 ere eee) Ar eer 2

Vil

Constitutional Provisions:

U.S. Constitution Amendment IV ............. Li le Oo

U.S. Constitution Amendment V ............ 1,14, 35

Military Rules of Evidence:

A OY. ois cance cccecnccccccesecdsy’ g

MLR.E. 311(b)(3) ... cc cece e ccc eceeececueuees 8,9

MLR.E. 311(b)(3)(C) oc. ccc cece cc eucucucueeueues 8

M.R.E. 311(g)(2) 0... cece cece ceeeeeeeueueuees 11

M.R.E. 315(d)(1) oo. ccc cece cece ce cucucucucueues 7

M.R.E. 315(f)(1) ccc ccc cece cca eeeeeeeeeeeees 7

M.R.E. 315(f)(2) 00. c cece cece ceceeeeeeeuenens 7

M.R.E. 702 oo... cece cece cece eecueeeeeeeees 14, 19

Published Articles, Opinions:

Developing Hair Testing by Hair Analysis,

National institute of Justice Research in Brief,

EC ee ro re ©

Revised Consensus Opinion on Applicability for Drugs

of Abuse, Society of Forensic Toxicologists (SOFT)

Advisory Committee, 15 October 1992 ............23

vill

The Use of Hair Analysis to Document a Cocaine

Overdose Following a Sustained Survival Period

Before Death, Journal of Analytical Toxicology,

Martz, Donnelly, Fetterolf, Lasswell, Hime, and

Hearn, Vol. 15, September/October 1991 ..... 15, 27, 29

Additional References:

WEBSTER’ S THIRD NEW INTERNATIONAL

CTE BE COPE s 6's k oe re aNeie ec hibiens 15

The petitioner, Staff Sergeant Michael W. Bush

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 30, 1997.

OPINIONS BELOW

The order and judgment of the United States Court of

Appeals for the Armed Forces,__M.J.__(Dkt. No. 96-

1239/AF, September 30,1997), is located at Appendix A. The

opinion of the United States Air Force Court of Criminal

Appeals, published at 44 M.J. 646 (A.F.Ct.Crim.App. 1997) is

located at Appendix B.

JURISDICTION

The judgment of the United States Court of Appeals for

the Armed Forces was entered on September 30, 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)(3) (West

Supp. 1996).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment to the Constitution of the United

States provides in relevant part:

“ The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated; and no Warrants shall issue,

but upon probable cause, supported by Oath or affirmation,

and particularly describing the place to be searched and the

persons or things to be seized.”

The Fifth Amendment to the Constitution of the United

States provides in relevant part:

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

property, without due process of law. . .”

STATEMENT OF THE CASE

Procedural History:

On July 25, 1994, contrary to his pleas, petitioner was

convicted of dereliction of duty and wrongfully using cocaine

on “at least one occasion”, in violation of Articles 92 and

112a, Uniform Code of Military Justice, 10 USC § 892 and

912a, respectively. He was sentenced to a bad-conduct

discharge, 45 days confinement, and reduction in rank to E-1.

On January 13, 1995, the convening authority approved the

sentence.

On June 13, 1996, the Air Force Court of Criminal

Appeals affirmed the findings and sentence. 44 M.J. 646.

(Appendix B).

On January 9, 1997, the Court of Appeals for the Armed

Forces granted review on the following issues of law:

WHETHER THE MILITARY JUDGE ERRED TO

THE SUBSTANTIAL PREJUDICE OF

APPELLANT BY DENYING THE DEFENSE

MOTION TO SUPPRESS EVIDENCE

OBTAINED AS A RESULT OF AN IMPROPER

SEIZURE OF APPELLANT’S HAIR, SINCE THE

OMISSION OF INFORMATION FROM THE

AFFIDAVIT TO THE MAGISTRATE

UNDERMINED THE MAGISTRATE’S FINDING

OF PROBABLE CAUSE TO SEIZE THE HAIR.

WHETHER THE MILITARY JUDGE ERRED TO

THE SUBSTANTIAL PREJUDICE OF

APPELLANT BY DENYING THE DEFENSE

MOTION TO DISALLOW THE INTRODUCTION

OF TESTIMONY CONCERNING THE RESULTS

OF THE HAIR ANALYSIS TEST CONDUCTED

ON APPELLANT’S HAIR, SINCE THE TEST

WAS NOT A RELIABLE PROCEDURE AS

IMPLEMENTED.

On September 30, 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 legally err by admitting

hair-analysis evidence in this case. Citing generally, Ornelas

v. United States,_U.S.—, 116 S.Ct. 1657 (1996); and United

States v. Nimmer, 43 M.J. 252 (1995). There was a strong

dissent by Judge Crawford concerning Issue I, which

petitione. would ask this Honorable Court to carefully

consider. United States v. Bush __M.J. (DKt 96—-1239/AF

September 30, 1997) Appendix A.

Statement of Facts:

On 15 November 1993 at 0748, Staff Sergeant Michael

W. Bush, NCOIC of the Emergency Depariment, 89th

Medical Group, Andrews AFB, MD, was contacted by Senior

Airman Imelda Ellis and was informed that he was to report

to the base theater between 0800 and 1100 for a random

urinalysis. R. 296. SSgt Bush duly reported to the theater at

between 0900 and 0930 and went to the restroom with the

observer, Technical Sergeant Richard Robichaud, to give his

sample. R. 338; R. 342; App. Ex. XVIII. TSgt Robichaud did

not notice the appellant act in an unusual manner while he

observed him urinate in the container. R. 353-54. TSgt

Robichaud and SSgt Bush then brought the sample to the

urinalysis entry table where TSgt Robichaud mentioned that

the sample seemed clear in color. R. 349. The program

manager, Master Sergeant Robert Burgess, asked TSgt

Robichaud whether he had observed SSgt Bush provide the

sample, and TSgt Robichaud responded that he had.! R. 349.

‘After being investigated and interviewed by the Air Force of Special

Investigations, TSgt Robichaud changed his account of the events at trial,

MSgt Burgess felt the sample, and it did not feel cool. R.

316. MSgt Burgess asked SSgt Bush whether he had drank a

lot of liquids, and SSgt Bush responded that he had. R. 316.

MSgt Burgess, satisfied that there were no problems with the

collection, had the sample sealed and mailed it, along with the

other samples from the day, to Brooks AFB, TX for testing.

R. 316.

On | December 1993, Catherine H. Ketchum, the

Laboratory Certifying Official at Armstrong Laboratory,

Brooks AFB sent a letter to Major Athena Jones, Deputy Staff

Judge Advocate, Andrews AFB which stated that SSgt Bush’s

urine specimen was not urine, but more likely diluted saline.

App. Ex. XVIII. Major Jones then gave the letter to Special

Agent (SA) David Toni of the Air Force Office of Special

Investigations (AFOSI) who began an investigation of SSgt

Bush and TSgt Robichaud. R. 13.

SA Toni interviewed SSgt Bush, and he denied

submitting a false urine sample. App. Ex. XVIII. He also

interviewed SSgt Bush’s associates as well as his first

sergeant, and found no evidence that SSgt Bush had ever

taken illegal drugs. R. 14. He conducted a month-long

investigation of SSgt Bush, but the only evidence SA Toni had

of possible drug use on the part of SSgt Bush was the

allegedly tampered urine specimen from 15 November 1993.

R. 29.

Wanting to test SSgt Bush for the presence of drugs, SA

Toni sought advice from the Federal Bureau of Investigation

(FBI) on hair analysis and how to seize an individual’s hair

for testing purposes. R. 16. Accordingly, he called the

Chemistry/Toxicology Unit of the FBI and spoke with Doctor

stating that he could not see the flow of urine from SSgt Bush from the

point of origin, but only could see “liquid collecting on the bottom of the

cup.” R.345

Roger Martz, the Unit Chief. R. 16; R. 39-40. Dr. Martz told

SA Toni that the length of time a drug will remain in a

person's hair is dependent on the length of the hair sample

that is seized. R. 16. He also told SA Toni that if it is decided

that SSgt Bush’s hair is to be seized, it should be taken from

the crown of the head. R. 16. In addition, he told SA Toni

that head hair grows approximately a half an inch per month.

R. 39. This conversation took place before SA Toni prepared

an affidavit to support his request for the search and seizure of

SSgt Bush’s hair, but he did not tell anyone what he had

learned regarding the rate of growth of hair and the

correlation between this and the amount of time a drug will

remain in an individual’s hair. R. 40; App. Ex. XVII.

SA Toni proceeded to seek advice from the Andrews

AFB Staff Judge Advocate’s (SJA) office on whether to seek

the authority to search and seize SSgt Bush’s urine and hair

for drug testing purposes. R. 18. The base legal office told

SA Toni that there was no probable cause to seize SSgt Bush’s

urine because of the length of time that had passed since SS gt

Bush’s November urinalysis.” R. 27. SA Toni agreed that

there was no scientific way that any cocaine that might have

been present in the 15 November 1993 urinalysis could also

be present in SSgt Bush’s urine in January 1994. R. 27. With

the limited information it had about hair analysis, the legal

office did not dissuade SA Toni from seeking the seizure of

SSgt Bush’s hair. R. 26—27.

On 12 January 1994, SA Toni submitted an affidavit in

support of the seizure of SSgt Bush’s hair to Colonel Michael

F. Moore, Commander, 89th Support Group. App. Ex. XVIII.

After reading the affidavit and discussing the situation with

*Specifically, Major Jones recommended against seizing SSgt Bush’s urine

“because there wasn’t a reasonable expectation drugs would be found in

urine given the amount of time that had passed” R. 19.

SA Toni, Col Moore authorized the search and seizure of

approximately 100 hairs from SSgt Bush. R. 18; App. Ex.

XIX. The affidavit, with regard to the amount of time a drug

will remain present in an individual’s hair, states only that

“hair analysis can detect the use of drugs for months,

depending on the length of hair.” App. Ex. XVIII. The

wording of the affidavit, as well as that of the search and

seizure authorization request, was almost a verbatim copy of

another affidavit and search and seizure request used to seize

hair from an individual at Langley AFB in May 1992. App.

Ex. XVIII; XIX; XX. The affidavit makes no mention of the

length of SSgt Bush’s hair, nor the fact that human hair grows

approximately one half inch a month.

On 12 January 1994, SSgt Bush’s supervisor, MSgt

Carpenter, under the direction of SA Toni, cut approximately

one hundred hairs from “as close to the base of the scalp” as

possible of SSgt Bush’s “quite short” hair. R. 442-443. SA

Toni then prepared a forensic laboratory examination request

which stipulated that the FBI Laboratory test “approximately

100 hairs, measuring approximately one half (1/2) inch in

length” for the presence of illegal drugs. App. Ex. XXI.

The hair sample was sent to the Chemistry/Toxicology

Unit of the FBI in Washington DC which received it on 24

January 1994. R. 494. The laboratory tests hair specimens

only for cocaine and its metabolite, benzoylecgonine. R. 484.

The sample was analyzed by Dr. Brian Donnelly, a special

agent examiner for the unit. R. 96. The hair was determined

by Dr. Donnelly to be a half-inch in length. R. 501. Dr.

Donnelly concluded, using a tandem stage mass spectrometer

analysis (MS/MS), that SSgt Bush had consumed cocaine

based solely on the fact that the hair contained 17 nanograms

per milligram of cocaine and 2.7 nanograms per milligram of

benzoylecgonine. R. 552; App. Ex. XXIII. Dr. Donnelly

testified that the consensus opinion is that hair analysis is to

be used to corroborate other evidence and is not to be used as

the sole test to determine whether one uses cocaine.?> R.

146-47. Additional facts necessary to the disposition of the

case can be found in the argument below.

REASONS FOR GRANTING THE WRIT

THE PETITIONER WAS DENIED HIS FOURTH

AMENDMENT RIGHT TO BE SECURE IN HIS

PERSON, AGAINST UNREASONABLE

SEARCHES AND SEIZURES WHEN THE

SEARCH AUTHORIZATION ( WARRANT) FOR

HIS HAIR DID NOT SATISFY THE PROBABLE-

CAUSE AND SPECIFICITY REQUIREMENTS

OF THE FOURTH AMENDMENT.

Appellant respectfully refers this Honorable Court to the

trial defense counsel’s motion (App. Ex. VI), the

government’s response (App. Ex. VII), the evidence on the

motion (R. 11-54), and the judge’s ruling and findings (R. 85;

App. Ex. L).

An impartial commander may authorize the search of a

person who is under his control and who is subject to military

law. Mil. R. Evid. 315(d)(1). Such a search authorization

must be based upon probable cause. Mil. R. Evid. 315(f)(1).

“Probable cause to search exists when there is a reasonable

belief that the . . . evidence . . . sought is located in the place

or on the person to be searched.” Mil. R. Evid. 315(f)(2). In

determining whether probable cause exists, the magistrate

3In fact, the consensus opinion, as voiced by the Society of Forensic

Toxicologists (SOFT) in their Consensus Opinion on Applicability of Hair

Analysis for Drugs of Abuse, is tht “hair analysis alone do[es] not consti-

tute sufficient evidence of drug use for application in the workplace.” App.

Ex. XXV.

should apply the totality-of-the-circumstances test of //linois

v. Gates, 462 U.S. 213, 233 (1983). If probable cause does

not exist for a search, evidence obtained from such a search is

inadmissible against the accused so long as the accused

objects and has an adequate interest. Mil. R. Evid. 311(a).

An exception to the rule requiring probable cause is

when the search and seizure resulted from a proper

authorization to do so, and if (1) “[t]he individual issuing the

authorization had a substantial basis for determining the

existence of probable cause” and (2) “[t]he officials seeking

and executing the authorization or warrant reasonably and

with good faith relied on the issuance of the authorization or

warrant.” Mil. R. Evid. 311(b)(3). The good faith of the

officials “shall be determined on an objective standard.” Mil.

R. Evid. 311(b)(3)(C). In United States v. Leon, this

Honorable Court stated that the determination of good faith

reliance demands a standard of objective reasonableness

which requires the officers to have a reasonable knowledge of

what the law permits. 468 U.S. 897, 919-20 (1984).

In the present case, there clearly was not probable cause to

believe that any illegal drugs would be found in the hair of SSgt

Bush. The evidence is clear and undisputed that scalp hair

grows one-half inch per month and that SSgt Bush’s head hair

was approximately one-half inch long.* Therefore, since the

alleged event that solely gave rise to the seizure of the

appellant’s hair, the urinalysis, happened on 15 November

1993, while the actual seizing of the hair took place on 12

January 1994, nearly two months later, there was not probable

cause to believe that illegal drugs would be found in the hair

specimen.

As discussed supra, lack of probable cause will result in

4The prosecution’s expert, Dr. Donnelly, testified to both of these facts. R.

115; R. 136.

seized evidence being deemed inadmissible unless the

requirements of Mil. R. Evid. 311(b)(3), the good faith

exception, are met. This would permit the admission of the

test results of the appellant’s hair only if the magistrate, Col

Moore, had a substantial basis for finding probable cause and

if SA Toni reasonably and with good faith relied on the

warrant that Col Moore issued.

A magistrate, before authorizing a search, should

consider the relationship existing among the crime, objects

and place. United States v. Lopez, 35 M.J. 35, 39 (C.M.A.

1992). Given the evidence which was presented to him, Col

Moore appeared to act in such a manner. The commander

was told by SA Toni that he had just been at the legal office

and that the Chief of Military Justice, Major Jones, had

reviewed the facts and found there to be sufficient information

for a search warrant to be issued. R. 18. In addition, Col

Moore read the affidavit and discussed the situation with SA

Toni. R. 18. However, at no time was he told that head hair

grows at a rate of one-half inch per month, nor was he told the

appellant’s hair length. In fact, all that he was told regarding

how long drugs can remain present in hair is that they can be

detected possibly three months after they are taken. R. 18.

Thus, these facts give rise to an inquiry as to whether SA

Toni reasonably and with good faith relied on the warrant that

was issued. “It is clear, first, that the deference accorded to a

magistrate’s finding of probable cause does not preclude

inquiry into the knowing or reckless falsity of the affidavit on

which that determination was based.” Leon, 468 U.S. at 914.

Indeed, “it would be an unthinkable imposition upon authority

if a warrant affidavit, revealed after the fact to contain a

deliberately or recklessly false statement, were to stand

beyond impeachment.” Franks v. Delaware, 438 U.S. 154,

165 (1978).

Before seizing one’s hair, a trained investigator acting

reasonably would inquire into the length of time that illegal

drugs remain present in a hair sample. SA Toni did this prior to

his preparation of the affidavit for the search and seizure

warrant through his conversation with Dr. Martz of the FBI.

Likewise, a reasonable official would relay such information to

the magistrate when notifying him of the pertinent information

giving rise to a search and seizure request. In this regard, SA

Toni carelessly gave an incomplete and recklessly false

statement when he only stipulated in his affidavit that “hair

analysis can detect the use of drugs for months, depending on

the length of the hair sample.” App. Ex. XVIII.

The, then named, Court of Military Appeals in United

States v. Figueroa stated, “Although Franks v. De aware . . .

and Mil.R.Evid. 311(g)(2) deal with misrepresentations and

do not specifically address omissions, we believe that

omissions of information should be analyzed in the same

manner as misrepresentations.°” 35 M.J. 54, 56 (C.M.A.

1992) (citation omitted). The Court went on to state that

omissions made with reckless disregard for the accuracy of

the information given to the magistrate undermine the

probable cause determination. /d. at 56—57.

SA Toni acted with reckless disregard for the truth® when

he failed to tell Col Moore that SSgt Bush’s hair was quite

short and that head hair grows a half an inch per month. If

SMil. R. Evid. 311(g)(2) states: “If the defense makes a substantial

preliminary showing that a government agent included a false statement

knowingly and intentionally or with reckless disregard for the truth in the

information presented to the authorizing officer, and if the allegedly false

statement is necessary to the finding of probable cause, the defense, upon

request, shall be entitled to a hearing.” Mil. R. Evid. 311(g)(2).

See United States v. Lopez where the Court established the rule that “the

good-faith exception will not apply when part of the information given to

the authorizing official is intentionally false or given with reckless

disregard for the truth.” 35 M.J. 35, 41 (C.M.A. 1992) (emphasis added).

reported, these facts would have called into question whether

the appellant’s hair was of a sufficient length to track any

substances consumed on or before 15 November 1993, and it

would then have been determined that the hair was of an

inadequate length.

The government contends that the search warrant does

not specify where the hair is to be taken, but it is clear from

the record that SA Toni, at the time of his meeting with Col

Moore, intended to seize hair from SSgt Bush’s head. Dr.

Martz, in the conversation that took place before the

preparation of the affidavit, told SA Toni where to seize

alternative hair only “if there wasn’t head hair available.” R.

16. SA Toni had been investigating SSgt Bush for over a

month at the time of the seizure of the hair, and he knew that

SSgt Bush had head hair available. In fact, SA Toni’s

testimony that Dr. Martz only discussed the growth rate of

head hair demonstrates that the conversation with the FBI

focused solely on the seizure of head hair.’ R. 39. Finally,

the most convincing evidence of what SA Toni planned to do

with the search and seizure request is manifested in his

actions themselves—he made no attempt to find out anything

about the length, or even existence, of any “sir other than

head hair, and he made no attempt to seize an _—_air other than

those from SSgt Bush’s head.

It was with this same reckless disregard for the truth that

SA Toni copied an affidavit and search and seizure request

that was done for a case at Langley AFB, VA and submitted

them to the magistrate in this case. The facts and

circumstances of every case are different, including those of

7In addition, this intention is evidenced by the fact that Dr. Martz told SA

Toni to cut head hair from the “crown of the head.” R. 16. In fact, Dr.

Martz gave SA Toni “[p]rocedures for actually seizing the hair” including

“where, exactly [SA Toni] was supposed to take it from, what part of the

head ....” R. 16 (emphasis added).

the case at Lanssley AFB and those present in SSgt Bush’s

situation. Any trained investigator is aware of this. For

example, in the Langley AFB case, the individual tested

positive for cocaine in a urinalysis conducted before his hair

was seized. App. Ex. XX. This gave officials at Langley

AFB corroborating evidence not present in the current case.

In addition, the length of the individual’s hair at Langley AFB

may have been unquestionably long enough to determine

whether drugs were present in his hair the date of his

urinalysis. This was not the case with SSgt Bush’s hair. SA

Toni should have reported the facts as he knew them - that

SSgt Bush had short hair and that head hair grows one-half

inch a month. The mere fact that he chose to rely on other

AFOSI agents’ unrelated work does not relieve him of the fact

that he acted with reckless disregard for the truth.

“Probable cause for a search and seizure can exist at one

time but because of ‘staleness’—the passage of time—can

evaporate.” United States v. Poole, 30 M.J. 271, 274 (C.M.A.

1990). In the case before us, if there were ever probable

cause to seize SSgt Bush’s hair, it evaporated well before 12

January 1994. This fact should have become unavoidably

clear to SA Toni after Major Jones of the Andrews AFB SJA’s

office told SA Toni not to seize SSgt Bush’s urine on 12

January 1994 because “there wasn’t the reasonable

expectation that drugs would be found in urine given the

amount of time that had passed.” R. 19. Likewise, SA Toni

should have been aware of the fact that there was not a

“reasonable expectation” that illegal drugs would be found in

a hair sample of SSgt Bush’s because he was aware of the

fact, based on information he alone had received on hair

analysis, that SSgt Bush’s hair was of an insufficient length to

trace back to 15 November 1993.

The conclusion by Judge Colwell that the invalid

urinalysis of 15 November 1993 allowed a finding of probable

cause gives rise to an inquiry of when that probable cause

would have expired. According to Judge Colwell, it did not

expire when one would assume it should have - within a

month of the urinalysis. Instead, Judge Colwell ruled simply

that a false specimen was a sufficient event for probable cause

to arise. Does this mean that six months after an irregular

urinalysis an individual’s one-half inch hair can be seized?

Would this period of probable cause extend for 12 months?

Would it extend forever? Obviously not. Given the

knowledge that SA Toni possessed but did not divulge, the

natural point at which probable cause to seize hair expired in

this case was at the point when the hair was no longer able to

trace back to the date 15 November 1993.

As the, then named, Court of Military Appeals in Poole

stated, “[s]ubsequently received information which

negates . . . the information initially relied on in finding

probable cause also can destroy the basis for finding probable

cause.” Jd. at 275. When Dr. Martz told SA Toni that hair

analysis can track drug use for up to a month of time for every

half-inch of hair, this information negated the possibility of

probavle cause being present.

As this Honorable Court stated in United States v. Leon,

an officer would not be manifesting “objective good faith in

relying on a warrant based on an affidavit ‘so lacking in

indicia of probable cause as to render official belief in its

existence entirely unreasonable.’” 468 U.S. at 923 (citation

omitted). Since the alleged event that solely gave rise to the

seizure of the appellant’s hair, the urinalysis, happened on 15

November 1993, while the actual seizing of the hair took

place on 12 January 1994, nearly two months later, an

investigator acting in good faith would know that there was

not probable reason to believe that illegal drugs would be

found in the hair.

SA Toni was far short of being complete and candid in

the information he gave Col Moore.® He, in fact, was grossly

negligent for not reporting the facts as he knew them, and he

clearly did not manifest objective good faith in his report to

Col Moore. The lack of both probable cause and objective

good faith in this case negates the admissibility of the analysis

of SSgt Bush’s hair sample.

THE PETITIONER WAS DENIED HIS FIFTH

AMENDMENT RIGHT TO DUE PROCESS

WHEN THE MILITARY JUDGE ERRED TO THE

SUBSTANTIAL PREJUDICE OF THE

APPELLANT BY DENYING THE DEFENSE

MOTION TO DISALLOW THE INTRODUCTION

OF TESTIMONY CONCERNING THE RESULTS

OF THE HAIR ANALYSIS TEST CONDUCTED

ON THE APPELLANT’S HAIR, SINCE THE

TEST WAS NOT A RELIABLE PROCEDURE AS

IMPLEMENTED.

“If scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education, may

testify thereto in the form of an opinion or otherwise.” Mil. R.

Evid. 702. The Analysis of the Military Rules of Evidence in

explaining Mil. R. Evid. 702 states, “The Rule’s sole explicit

test is whether the evidence in question ‘will assist the trier of

8See U.S. v Washington where the Army Court of Military Review found

that investigators did not rely in good faith on a search authorization

which they obtained by being less than candid with the commander. 39

M.J. 1014, 1019 (A.C.M.R. 1994). As a result, the court ruled the seized

items were inadmissible. /d. at 1016.

fact to understand the evidence or to determine a fact in

issue.’” Mil. R. Evid., App. 22-45.

As discussed supra, SSgt Bush’s hair specimen was

subjected to analysis by the FBI which analyzed it for cocaine

and its metabolite, benzoylecgonine. R. 497. Dr. Donnelly of

the Chemistry/Toxicology Unit of the FBI tested the sample

using a tandem stage spectrometer machine, an accepted

instrument in the scientific community.? He used a

methodology that is contained in a three page article in the

u f ical Toxicol entitled The Use of Hair

Analysis to Document a Cocaine Overdose Following a

Sustained Survival Period Before Death and concluded that

“[t]hat [SSgt Bush] consumed cocaine.” R. 138; 552; App.

Ex. XXIV. He came to this conclusion despite the fact,

admitted even by him, that the test is not to be used as the sole

test to determine drug use, but, instead, is to be used “[tlo

corroborate other evidence.” R. 146—47, Moreover, by

drawing a conclusion on SSgt Bush’s behavior, he undermines

his stated goal of hair analysis testing—“to determine

scientifically that something exists.” R. 540,

In addition to his testimony at trial, Dr. Donnelly’s belief

that hair analysis should be used to corroborate other evidence

is enunciated in Appellate Exhibit XXIV, an article in the

Journal of lytical Toxicol authored by Dr. Donnelly

and Dr. Martz as well as two other scientists from the

Chemistry/Toxicology Unit, which states in its abstract: “The

use of hair analysis as an adjunct'® to traditional analytical

techniques may help document drug use history!! . . ..” App.

°Dr. Goldberger, the appellant’s expert witness, recognized Dr. Donnelly’s

MS/MS equipment as a hair analysis instrument that is accepted in the

scientific community. R. 572.

‘The dictionary defines the word “adjunct” as “an accompaniment or

auxiliary to another thing.” Webster’s Third New International Dictionary

27 (1966).

Ex. XXIV (emphasis added). This three page magazine

article, which includes the above compendium, served as the

testing procedure which Dr. Donnelly used to come to the

conclusion that the results were “most consistent with

someone using [cocaine] on a fairly regular basis.” R. 138;

Szi.

The first issue thus becomes whether there was other

evidence of drug use on SSgt Bush’s part which Dr. Donnelly

could have used to corroborate his hair analysis results. There

is nothing contained in the record of trial to give any

indication that there was.'* Given this, Dr. Donnelly clearly

drew a conclusion using a methodology and technique that

has never been used before in a criminal court of law—the

use of hair analysis as the singular piece of information upon

which to conclude that an individual has used an illegal

drug.!3

The admissibility of a scientific methodology is

'\Despite the overwhelming evidence that hair analysis should only be

used to corroborate other evidence of drug use, Judge William Colwell, in

his ruling on the motion in limine regarding the admission of the hair

analysis, stated, “The Court finds no requirement that the MS/MS test may

only be admitted if supported by other evidence that corroborates the test -

such as a positive urinalysis test.” App. Ex. LI.

'2Dr. Donnelly must have been cognizant of the fact that SSgt Bush’s hair

sample could not possibly track any consumption of illegal drugs that took

place on or before 15 November 1993, because he measured SSgt Bush’s

hair sample and he was aware of the growth rate of head hair.

'3Hair analysis has been proffered as evidence of drug use in settings other

than criminal prosecutions. United States v. Medina 749 F. Supp. 59

(E.D.N.Y 1990) (parole revocation hearing); Nevada Employment See

Dept. v. Holmes, 112 Nev. 275, 914 P2d 611 (Nev. 1996) (disqualification

for unemployment benefits); Matter of Adoption of Baby Boy L., 157 Misc.

2d 353, 596 N.Y.S. 2d 997 (N.Y. Fam.Ct. 1997) (adoption hearing); and

Hicks v. City of New York, 172 Misc. 2d 994, 660 N.Y.S. 2d 953 (N.Y. Sup.

1997) discharge from employment as New York City police officer.

primarily a question of law. Daubert v. Merrell Dow

Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993); United States

v. Gipson, 24 M.J. 246 (C.M.A. 1987). Although the

admission or exclusion of expert testimony usually is left to

the discretion of the trial judge unless Clearly erroneous,

United States v. Houser, 36 M.J. 392, 397-98 (C.M.A. 1993),

the decision of a trial judge to admit expert testimony based

on new scientific theories should be reviewed de novo.

At least two Circuit Courts of Appeal have ruled that in

those cases where the expert opinion is derived from a

particular scientific technique, de novo review is appropriate.

See Cella v. United States, 998 F.2d 418, 424 (7th Cir. 1993);

Daubert v. Merrell Dow Pharmaceuticals, Inc., 951 F.2d

1128, 1130 (9th Cir. 1991), remanded on other grounds, 113

S. Ct. 2786 (1993). The Cella court agreed with the reasoning

of the Ninth Circuit in Daubert, and other courts, cogently

stating that “because the reliability of the scientific technique

or process does not vary according to the circumstances of

each case, it is inappropriate to view this question of

reliability as a matter solely within the discretion of the trial

judge.” Cella, 988 F.2d at 423.

The Cella court’s reasoning makes good sense. Were it

not the case, different trial judges could make opposite rulings

on the admissibility of a particular scientific technique and

their decisions would only be reviewable under the Clearly

erroneous standard. The possibility of inconsistent rulings by

trial courts becomes particularly evident in the area of hair

analysis. For example, in United States v. Nimmer, the trial

court ruled that exculpatory defense expert testimony

regarding the results of tests of the defendant’s hair samples

for one-time cocaine use could not be presented to the

members. 39 M.J. 924, 926 (N.M.C.MLR. 1994). The Navy

and Marine Court of Military Review adopted the military

judge’s findings, including the following:

[T]he court’s concern [is] that, while the procedures

employed, that is, RIA [radioimmunoassay] and

GCMS [gas chromatography/mass spectrometry],

may be beyond reproach, the underlying theory and

knowledge deficit in this area remain... .

Consequently, the court is convinced that the results

of analyzing hair for drugs is inadmissible because

it lacks the necessary scientific underpinning to

reliably be able to detect a one-time use of cocaine.

In short it lacks the objective, demonstrative

certainty associated with science.

Id. at 927-28 (emphasis included in original). These

findings on the use of hair analysis are in direct conflict with

the trial judge’s findings in the present case!*.

Conflicting holdings on the admissibility of scientific

evidence, such as those demonstrated above, lead to a lack of

certainty and predictability about scientific evidence in courts.

The Cella court understood the soundness of having uniform

precedent within the federal system regarding the reliability of

particular scientific techniques while “recognizing the trial

judge’s particular opportunity to evaluate the expert’s

testimony.” 988 F.2d at 423.

The Court of Appeals for the Armed Forces has defined

“abuse of discretion” regarding expert testimony as follows:

In reviewing each of these factors, the standard on

appeal is whether the military judge has abused his

or her discretion. To establish this, appellant must

come “forward with conclusive argument” that

there was an abuse of discretion. See United States

'4See note 12 supra for the portion of Judge Colwell’s ruling which

conflicts with Nimmer. i

v. Mukes, 18 MJ 358, 359 (C.M.A. 1984) As Judge

Magruder once observed:

Abuse of discretion is a phrase which sounds

worse than it really is. All it need mean is that,

when judicial action is taken in a discretionary

matter, such action cannot be set aside by a

reviewing court unless it has a definite and firm

conviction that the court below committed a

clear error of judgment in the conclusion it

reached upon a weighing of the relevant

factors.

Houser, 36 at 397-98 (citation omitted). The “relevant

factors” to be weighed in this case are those set forth by this

Honorable Court in Daubert v. Merrell Dow Pharmaceuticals,

113 S.Ct. 2786 (1993).

Daubert established the standard to be employed to

determine whether an expert’s testimony is admissible. In

United States v. Rodriguez, the Court of Military Appeals

cited Daubert as the analysis to be used to determine whether

the reliability requirement of Mil. R. Evid. 702 has been met.

37 M.J. 448 (C.M.A. 1993). In Daubert, this Honorable

Court construed Rule 702 as requiring a twofold inquiry to

determine whether an expert’s testimony is admissible: (1)

whether the scientist’s testimony will assist the trier of fact,

and (2) whether it amounts to “scientific knowledge.” 113 S.

Ct. at 2796. In addition, the Court identified factors to be

considered in determining whether expert evidence is

admissible. These five factors are: (1) whether the technique

has been tested, (2) whether the technique has been subjected

to peer review and publication, (3) whether the technique has

a known error rate, (4) whether there are standards for using

the methodology, and (5) whether the methodology is

generally accepted. Jd. at 2796-97. The expert testimony in

the present case fails to meet the criteria of even one of these

factors. Overall, Daubert mandates “the trial judge must

ensure that any and all scientific testimony or evidence

admitted is not only relevant, but reliable.” Id. at 2795

(emphasis added).

Implementing Daubert, the first aspect of Dr. Donnelly’s

methodology to be reviewed is the testability of the technique.

Id. at 2796. The evidence that was presented at trial is

overwhelming in its showing that Dr. Donnelly’s procedure is

untested and unreliable. For example, when asked about the

testability of Dr. Donnelly’s methodology, Dr. Goldberger

called Dr. Donnelly’s methodology “not conventional.” He

elaborated on this assessment by stating:

Nowadays we have better procedures.

Unfortunately, I can’t tell you if [Dr. Donnelly’s

results are] an accurate measurement. The reason

why is there is no data here for external control, a

common sample that they could buy from NIST or

some other commercial vendor, or that they can

prepare in-house and then develop data on it. And

then show to me that the control behaved properly.

R. 170.

Dr. Donnelly himself acknowledged that there were

concerns regarding the newness of hair analysis, as well as the

fact that certain areas have not been tested fully enough to

ensure that the test is accurate. He stated:

Some of the concerns have been external

contamination, the fact that they believe that one

could possibly get cocaine on the outside of the hair

accidentally in some way, shape, or form. The

incorporation of the drug into the hair is not fully

understood. It’s still being looked into.

R. 109.

Regarding the unreliable nature of the test, Dr.

Goldberger testified that a study conducted by Fred Smith of

the University of Birmingham showed that many children

exposed to cocaine externally through their mothers’ crack

cocaine vapor actually had more cocaine in their hair than

their drug abusing mothers had in their hair samples. R.

172-73. Dr. Goldberger also described another study which

was conducted to test the trustworthiness of the MS/MS

procedure to differentiate between external and internal

contamination:

The Navy Research laboratory, they do have a

triple quad mass spectrometer similar to Doctor

Donnelly’s. And they’ve been studying extensively

the contamination issue. I believe Doctor Kidwell’s

position on this continues to be the same, that we

can’t differentiate external contamination from

internal incorporation.

R. 173.

Further, Dr. Goldberger testified that the effect that race

has on the analysis also has not been fully tested, but that “it

seems that hair of black individuals concentrate more drug

and also more readily, and it’s based upon the melanin, or the

compound in the hair that provides color.”

R. 576.

The lack of an ability to test the results of Dr. Donnelly’s

procedure is best illustrated by the lack of reliability of the

quantification method. Dr. Goldberger testified to this during

cross examination:

Q. If the test revealed an nanogram level of

17, 17 nanograms of cocaine in the hair, then you

are pretty comfortable that there in fact probably

was 17 nanograms of cocaine in the hair?

A. No. I have no comfort level in the 17

nanogram reading for various reasons. One of them

is the quantitation method utilized. Secondly, the

lack of controls —

Q. But you just said that you are comfortable

with the testing technique.

A. I’m comfortable with MS/MS. I’m not

comfortable with the quantitation technique and the

lack of controls. Controls being external

quantitative controls to check accuracy of the test

procedure. That could be 17 or 1.7 or 170, I

couldn’t tell you, or it could be off by any other

factor, too.

R. 178-79.

The appellate exhibits also demonstrate the fact that there

are many questions yet to be answered regarding hair analysis.

For example, Appellate Exhibit XX VII, an October 1993 article

in the National Institute of Justice Research in Brief entitled

Developing Hair Testing by Hair Analysis, stated:

Hair analysis has a number of unknowns, some of which

involve establishing its utility and determining how it will be

applied to obtain information about drug use. Among

questions to be explored are:

— Is environmental contamination of hair (the entry

of drugs through smoke, for example) significant,

and can current testing procedures distinguish

between exposure and use?

— Can detection of drugs be evaded through hair

treatments (for example, shampoos and

conditioners)?

— Do some hair types retain drugs more than

others? (Does thicker hair, for example, retain more

than thinner hair?)

— To what extent can drugs enter hair through sweat

or other nonblood routes: how does this affect the

distribution of the drug along the length of the hair

shaft and associated time profiles?

— How long does it take for a drug to appear in the

hair? Do the absorption rates of various drugs

differ?

— To what extent is the concentration in the hair

related to the amount of drug taken? How does the

concentration vary for different drugs?

App. Ex. XXVII.

The same article describes hair analysis testing that is

being conducted at research facilities. Once again the results

demonstrate that hair analysis has not been fully tested and

that continuing study is needed:

The scientific bases of hair testing are being explored in

a project under way at the University of California at Davis.

This study, which focuses on cocaine, is addressing questions

about the mechanisms by which drugs are absorbed into hair

and other issues related to the value of hair test results as

evidence. Among the research questions are:

— Is the amount of the drug (or its metabolites)

found in hair related to the amount ingested?

— What is the time lag between drugs ingestion and

its appearance in hair?

— Is it possible to distinguish between drugs

ingested and drugs that show up in the hair through

external exposure? (For instance, if a drug user puts

a sweaty hand on a nondrug user’s hair, the nondrug

user’s hair may test positive.)

: — Can externally applied drugs be removed from

the hair by washing or other means?

App. Ex. XXVII.

The Revised Consensus Opinion on Applicability of Hair

Analysis for Drugs of Abuse which was prepared by the

Society of Forensic Toxicologists (SOFT) Advisory

Committee on 15 October 1992!5 found that “[c]ritical

questions remain to be answered before the results of hair

drug tests for workplace applications can be accurately

interpreted.” App. Ex. XXV. It should be emphasized that

this opinion found the test unreliable for workplace

applications, and did not even address the much more serious

issue of its use to solely convict one of criminal conduct.

This consensus opinion listed problem areas for the

procedure, and stated that certain areas required more study.

Among these are:

a. Is incorporation, retention, and analytical

detection of drugs in hair biased by race, age, sex,

or other individual differences?

b. To what extent is an externally applied drug from

environmental exposure retained in hair, and what

effect(s) do hygienic washing practices and cosmetic

treatments have on externally applied drugs?

c. Is retention and detection of drugs in hair affected

by cosmetic treatments or by intentional efforts to

avoid detection?

d. Do various laboratory hair pretreatment

procedures effectively remove externally applied

drug or internally incorporated/bound drug? Are

washing procedures effective in distinguishing

between environmental contamination and internal

incorporation of drugs?

'5Both Dr. Goldberger and Dr. Donnelly participated in this committee and

both contributed to the drafting of the consensus opinion. R. 145-46.

e. What acceptance criteria should be utilized to

establish a positive hair drug testing result?

App. Ex. XXV. As Dr. Donnelly testified, these concerns of

the international scientific community remained unchanged as

of June 1994 when toxicologists met in Italy to discuss the

issue. R. 100. The problems with hair analysis described

above were effectively disregarded by Dr. Donnelly when he

came to the conclusion that SSgt Bush had used drugs.

There is overwhelming evidence that the reliability of the

hair analysis test has not been sufficiently tested. This is an

understandable fact given the difficulty in finding candidates

to participate honestly in a study regarding the consumption

of illegal drugs. Nonetheless, Daubert is clear in mandating

that a procedure “can be and has been tested.” 113 S. Ct. at

2796. “The criterion of the scientific status of a theory is its

falsifiability, or refutability, or testability.” Jd. at 2797

(citation omitted). Uncorroborated hair analysis does not

meet this criterion.!®

The second prong of the Daubert test is whether the

technique has been subjected to peer review and publication.

Id. As the appellate exhibits illustrate, hair analysis has been

subjected to peer review; however, as is demonstrated supra,

the opinion expressed by Dr. Donnelly’s peers is that hair

analysis has not been refined to the point where it can be used

to convict an individual without some other corroborating

evidence. In the landmark case of United States v. Gipson

which overruled the Frye'’ standard for expert testimony,

'°See United States v. Nimmer, 39 M.J. 924 (N.M.C.M.LR. 1994); United

States v. Foote, 898 F.2d 659 (8th Cir. 1990) (the court did not find that the

trial court abused its discretion by disallowing testing hair for drugs partly

because of the unreliable nature of the test).

'1In Gipson, the court expressly rejected the Frye standard in favor of a

more liberal interpretation of Mil. R. Evid. 702. 24 M.J. 246, 251 (C.M.A.

1987). Under Gipson, the analysis of whether expert evidence is

admissible should focus on the reliability of the evidence. /d.

Judge Everett stated in his concurrence, “In determining

admissibility [of expert] evidence the judge should heed

carefully the principal opinion’s observation that ‘one of the

most useful tools is’ the ‘degree of acceptance in the scientific

community.’” 24 M.J. 246, 255 (C.M.A. 1987) (citation

omitted). He continued, “At the very least, the expert witness

should be able to relate his theories to scientific principles

having a substantial body of adherents.” Id. (emphasis added).

Therefore, while Dr. Donnelly’s hair analysis technique

has been subjected to peer scrutiny, that review has

overwhelmingly found that hair analysis is not yet a reliable

technique for use even in workplace situations. The only peer

publication the appellee submitted which was favorable to Dr.

Donnelly’s technique is one written by members of the FBI

laboratory which conducted the hair analysis in the case

itself. App. Ex. XXIV. Even this article only concludes that

“hair analysis might be used to document exposure to drugs in

situations where traditional specimens, such as blood and

urine, have not been collected in a timely fashion.” App Ex.

XXIV (emphasis added). Thus Dr. Donnelly’s own article

does not even substantiate his finding that SSgt Bush

consumed cocaine.

Daubert emphasizes that peer review does not

necessarily correlate with reliability. 113 S. Ct. at 2797.

When the government can only support the scientific

methodology of its expert through an article written by that

expert and his laboratory, the trial judge failed “to ensure that

any and all scientific testimony is not only relevant, but

reliable.” United States v. Hill, 41 M.J. 596, 599 (Army Ct.

Crim. App. 1994) (quoting Daubert, 113 S. Ct. at 2795). An

article reviewing one’s own technique hardly passes for peer

review and publication which ensures reliability.

The third prong of the Daubert test is whether the

technique has a known error rate. 113 S. Ct. at 2797. This

aspect of Daubert is particularly telling in the present case as

the error rate of Dr. Donnelly’s technique was never stated at

the trial, nor is it present in any of the appellate exhibits. As

the discussion above indicates, all the literature and testimony

presented at trial points toward the fact that the error rates for

hair analysis simply are not known yet. In fact, the National

Institute of Justice conveyed in its 1993 article that hair

analysis needed five more years of study before it could be

validated as a reliable test. App. Ex. XVII.

The closest thing one can find to a known error rate is the

article in the Journal of Analytical Toxicology, Appellate

Exhibit XXIV, which the Chemistry/Toxicology Unit wrote

and which Dr. Donnelly refers to at one point as his standard

operating procedure (SOP). R. 138. The article states in its

results and discussion:

The findings of cocaine in Segments 4 and 5

are somewhat baffling, because, according to the

work of Cone et. al., these segments should have

been negative given the short half-life of cocaine

and the absence of cocaine from the body fluids of

the subject at the time of the autopsy.

App. Ex. XXIV. While this is not an error rate, it is an

admission by the FBI that results from hair analysis are not

always as they should be. The test results in the example

study in the article did not come out as the FBI expected -

they got positive results for the presence of cocaine when they

expected negative ones.

All the questions which surround hair analysis have not

yet been answered, thus the scientific world has not yet been

able to calculate an error rate for hair analysis as it does in

urinalysis testing. When Dr. Goldberger was asked to testify

to the current state of hair analysis, he responded:

[t]here are many other concerns that have been

drafted by SOFT, drafted by NIST and others. In

my opinion, I don’t believe that we have sufficient

data on these items to gain the confidence in the hair

test.

R. 172.

“{S]omewhat baffling results” in a standard operating

procedure used by the government’s expert, no error rate

presented in any evidence by the government, and insufficient

data for proper verification of a test surely does not meet the

standard this Honorable Court envisioned when it stated in

Daubert, “the court ordinarily should consider the known or

potential rate of error.” 113 S. Ct. at 2797.

The fourth test that Daubert discusses is whether there

are standards for using the methodology. /d. Perhaps the

most important standards which must be followed in an

analysis case are those which outline the procedures to be

used in implementing the chain of custody. Detailed

documentation and precise following of agreed upon

procedures ensure that an individual’s sample will not be

tampered with. Thus, the appellant views with great concern

Dr. Donnelly’s assertion that the chain of custody procedures

of the FBI have not been updated since the laboratory was

founded fifty years ago. R. 491.

There are numerous problems with the chain of custody

procedures that the FBI employs at its Chemistry/Toxicology

Unit. For example, NIDA, a national laboratory certifying

organization, mandates internal chain of custody procedures,

but Dr. Donnelly’s laboratory has none. R. 571. Lack of an

internal chain of custody results in uncertainty in who handles

samples, whether the samples are handled properly and in a

timely fashion, and whether samples are secured before being

left overnight in a laboratory. R. 571-72. Additionally,

despite the fact that at least three people had access to the

specimen, there is no record of who examined SSgt Bush’s

hair and when that examination took place. R. 130. In fact,

Dr. Donnelly’s assistant, who had equal access to the hair

sample, never even signed any chain of custody

documentation to record this fact. R. 168.

Another procedural concern is the fact that Dr. Donnelly

does not calibrate his instrument before every use to ensure

reliability. R. 132. Instead, he relies on a negative control

consisting of a previously untested hair sample of his or his

partner’s head. R. 132. Thus as a negative control, Dr.

Donnelly uses untested samples of individuals who work

around cocaine. Also, at different times there has been large

quantities of cocaine stored in the FBI laboratory, but no

measurements have ever been taken to ensure that none of this

cocaine contaminates hair samples. R. 128-29. All of this

undercuts the reliability of the laboratory since the last time

the laboratory was subjected to a blind control test using a

hair sample provided by an outside commercial source was

two years before the trial. R. 133.

There are two sets of procedures which document the

standards that Dr. Donnelly apparently used to conduct SSgt

Bush’s hair analysis: (1) a three page magazine article that he

and his colleagues wrote entitled The Use of Hair Analysis to

Document a Cocaine Overdose Following a Sustained

Survival Period Before Death, and (2) a one page analysis of

SSgt Bush’s hair sample which can be found on the third page

of Appellate Exhibit XXIII.'!8 The article, as the title

Suggests, describes how to test to see if a particular type of

deceased, one who had a sustained survival period before

death, died of a cocaine overdose. Thus, what apparently is

claimed to be a SOP by Dr. Donnelly is actually a description

'8What exactly serves as his SOP cannot be determined with certainty

from Dr. Donnelly’s testimony as he refers to both documents as his SOP.

R. 138; R. 189.

of a procedure used to determine if a deceased consumed

cocaine, an inquiry obviously which was not before the trial

court. If, on the other hand, the government considers the

analysis page from Appellate Exhibit XXIII the SOP, then Dr.

Donnelly’s SOP falls woefully short of a lengthy and detailed

document that describes the procedure employed and the rules

and descriptions of how to interpret the data as a SOP should.

R. 169. This page is simply an analysis of what was found in

SSgt Bush’s hair sample and not a manual which one could

follow to understand the standardized procedure that Dr.

Donnelly uses on every hair sample he tests.

In either case, Dr. Goldberger flatly rejects the idea that

any documentation Dr. Donnelly presented the appellant

could adequately serve as a SOP. R. 169. He testified that the

average length of a SOP is between fifteen and twenty pages

and contains a great deal more specifics then the documents

which Dr. Donnelly presented at trial. R. 169. In fact, Dr.

Goldberger testified that a major problem with the

documentation that Dr. Donnelly presented at trial is that it

does not even discuss benzoylecgonine which the laboratory

tested for in SSgt Bush’s case and which Dr. Donnelly used to

come to his conclusion that SSgt Bush consumed cocaine. R.

169-70.

Another serious problem with Dr. Donnelly’s analysis is

that it sets no minimum cut-off level. R. 141. A cut-off level

is necessary because of the possibility of incidental external

contamination of the hair sample. This is particularly true in

this case because the amount of cocaine in the hair sample

could be 17, 1.7 or .17 nanograms of cocaine. R. 573. Judge

Wiss in his dissent in United States v. Johnston elucidates the

importance of having a minimum established cut-off point for

urinalysis:

The oft-encountered DoD regulations establish the

Drug Abuse Testing Program, as well as counterpart

eile

31 -

regulations in the Department of Transportation that |

apply to the Coast Guard, in a variety of ways to a

restrict the Government's use of urinalysis results.

Maybe out of concern for individual service-persons

and to assure that none is put through the wringer of

a court-martial without virtually sure-fire scientific

evidence of knowing use—or maybe in an effort to

maintain prosecutorial and support resources by

avoiding collateral litigation in drug prosecutions

over less sure-fire scientific evidence - the

government has established certain cut-off points,

above which is ‘positive’. . .. Typically, below such

points is a ‘negative,’ and prosecutions based on

such evidence are barred. Reportedly, the cut-off

points are set high enough that, in the usual case

and with all other variables constant, scientists

would agree that the test reflects recent knowing

use.

41 M.J. 13, 20 (C.M.A. 1994) (emphasis in original).

Then Judge Cox in his concurring opinion in Johnston :

also recognized the fact that there should be established a

“positive” level where one could be sure that an illegal

substance found in a specimen is at a high enough level for

“an expert to opine that an accused knowingly ingested the |

illegal substance.” /d. at 17. This standard obviously would

have to be set by experts in the relevant field who are able to

make a clinical estimation of what level could serve as a

“positive” level. Yet Dr. Donnelly testified to the following

during cross-examination: :

Q. I’m going to get into what your cut off level is

and what you’ve assigned it, but is there any—there

is no set cut off level, is there?

mma i i

A. Aut off level has to do with a number that

someone arbitrarily picks. /t has nothing to do with

science.

Q. Oh, so, like with the Brooks lab where we have

cut off levels for urine, you’re saying that’s just

arbitrary? =

A. Yeah. You change them periodically depending

upon a meeting of individuals.

R. 539-40 (emphasis added). Such a cavalier attitude toward

cut-off levels is shocking coming from someone professing to

be an expert and should concern this Honorable Court. The

foregoing testimony that cut off levels are arbitrary and have

nothing to do with science and that the urinalysis laboratory at

Brooks AFB sets its minimum levels arbitrarily directly calls

into question whether Dr. Donnelly places any standards at all

on his testing procedures and whether he understands the

importance of such procedures. A cut-off level is established

sO an expert can be scientifically certain that an individual

consumed an illegal substance. Johnston, 41 M.J. at 17.

They are not numbers which laymen pull out of a hat as Dr.

Donnelly implies.

The Department of Defense has not yet established

minimum cut-off points for hair analysis as it has for

urinalysis, and, as the above testimony indicates, the

procedure employed in the present case has no minimum cut-

off points established by the test administrator either. R. 141.

Theoretically, per Dr. Donnelley’s testing procedure, any

amount of a drug, no matter how slight, would be viewed as a

positive test for cocaine. Then it would be left to the trier of

fact to determine whether .1 or 1 or 2 or 17 nanograms of

cocaine in a hair sample is sufficient to constitute a positive

test. This goes beyond the holding of the majority in

Licceenemeneesiieiietsemnasiintanimaiensinaiiataeaiaaiitinasiaiidiiieal

Johnston’? because the government is not offering into

evidence a level that falls below the regulation minimun,, it is

offering into evidence an amount with no standard, by either

the DoD or the testing agency, and is using this evidence

without any corroboration. The test is useless without

guidelines and those guidelines, at a minimum, must be

introduced into evidence to assist the trier of fact.

Incomplete and insufficient documentation of procedures

undermines the reliability of Dr. Donnelly’s testing. In the

present case, appellant was not presented with any written

SOP which could have been used to examine the test as it was

actually conducted. This violates both the letter and the spirit

of Daubert, because appellant was not able to ensure that Dr.

Donnelly’s procedure was reliable nor verify that Dr.

Donnelly employed his procedure accurately. Clearly Dr.

Donnelly used insufficient standards when employing his

methodology.

The final prong of Daubert is whether the methodology

is generally accepted. 113 S. Ct. at 2797. The evidence in

this case quite clearly shows that Dr. Donnelly’s hair analysis

methodology is not accepted in the forensic toxicology

community. This fact is evident in Dr. Goldberger’s

testimony, the SOFT advisory committee opinion, and the

article in the National Institute of Justice. App Ex. XXV; App

Ex. XXVII. The consensus of the most recent meeting of the

international forensic toxicological scientific community,

prior to trial, in June 1994 was that hair analysis should not be

used as the sole test to determine if one has used drugs. R.

577. Dr. Goldberger summarized the findings of that

'9In Johnston, the Court of Military Appeals let stand the trial judge’s

determination that urinalysis test results which showed the presence of

marijuana below the minimum cut-off levels was inadmissible based on

Mil. R. Evid. 403. 41 M_J. at 16.

committee in the following manner: “[BJasically the opinion

was that a hair test should not be used as a sole test and

should only be used to corroborate other medical evidence.”

R. 577. Dr. Goldberger then testified that “a hair sample of a

half an inch collected from the defendant in January would

not corroborate” a “positive urine sample from November.”

R. 578 (emphasis added). In the case before this Court, the

corroboration presented by the government was a two-month

old non-urine urinalysis sample.

In applying Daubert to this case, it is helpful to look at

its application in the military justice system in similar

situations. In United States v. Hill, the Court applied Daubert

and concluded that the government in that case failed to

establish the reliability of luminol testing:

We find that luminol is a technique that can

detect hidden blood and that this technique “can be

and has been’ tested. However, such testing has

revealed that luminol is limited to disclosing only a

presumptive positive presence for blood, not a

confirmatory presence for blood.

41 M.J. 596, 601 (Army Ct. Crim. App. 1994). Likewise, it

was established in the present case that hair analysis can

detect the presence of drugs in a hair sample. However, it

was also established that to have conclusive evidence that an

individual consumed those drugs, corroborating evidence

must be present. No corroborating evidence was presented by

the government at trial.

The Court in Hill, while rejecting the admissibility of the

luminol expert’s evidence, did recognize that the expert

calculated an estimated error rate, a reliability factor from

Daubert which was not even done in the present case. /d. at

602. Moreover, the Hill Court looked at whether luminol

testing was accepted in the justice community as a

confirmative test of the presence of blood, and found that it

was not. /d. at 601-02. In the case sub judice, the Court of

Appeals for the Armed Forces by affirming the Air Force

Court of Criminal Appeals’ decision below and the trial

court’s finding of admissibility of Dr. Donnelly’s hair

analysis, appears to have become the only court in the nation

to allow a defendant to be convicted of a crime based solely

on an uncorroborated hair analysis test.

In the case sub judice, the trial judge admitted evidence

that is totally unsupported by the scientific community - an

expert’s conclusion that a defendant used cocaine based solely

on a problem-plagued hair analysis. Dr. Donnelly’s testimony

at trial was based on an unreliable procedure, and it was

plainly error for the judge to have admitted it.

Appellant respectfully refers this Honorable Court to the

trial defense counsel’s motion (App. Ex. VIII), the

government’s response (App. Ex. IX), the evidence on the

motion (R. 90-193), and the judge’s ruling and findings (R.

213-14; App. Ex. LI).

CONCLUSION

The petitioner has been denied his Fourth and Fifth

Amendment rights and protections. His hair was seized using

an invalid search authorization and the hair analysis evidence

used to prosecute, convict, and deny him his freedom was

unreliable under this Court’s standards discussed in Daubert

and should have been inadmissible. The decision of the

United States Court of Appeals for the Armed Forces should

be reversed.

The petition for a writ of certiorari should be granted in

this important case.

KEVIN P. KOEHLER

Major United States Air Force

Appellate Defense Counsel

Counsel for Petitioner

DOUGLAS H. KOHRT

Colonel, United States Air Force

Appellate Defense Counsel

Counsel of Record

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

202-767-1562

December 1997

APPENDIX A

UNITED STATES, Appellee,

Michael W. BUSH, Staff Sergeant

U.S. Air Force, Appellant

No. 96-1239

Crim. App. No. 31462

UNITED STATES COURT OF

APPEALS FOR THE ARMED FORCES

Argued: May 14, 1997

Decided: September 30, 1997

Attorneys

For Appellant: Major Kevin P. Koehler (argued) and

Lieutenant Colonel Kim L. Sheffield (on brief); Colonel David

W. Madsen.

For Appellee: Lieutenant Colonel Michael J. Breslin (argued);

Colonel Theodore J. Fink (on brief)

Military Judge: William S. Colwell

Opinion of the Court

SULLIVAN, Judge:

During July of 1994, appellant was tried by a general

court-martial composed of officer members at Andrews Air

Force Base, Maryland. Contrary to his pleas, he was found

guilty of dereliction of duty by failure to provide a urine

sample; and wrongfully using cocaine, in violation of Articles

92 and 112a, Uniform Code of Military Justice, 10 U.S.C. 892

and 912a, respectively. He was sentenced to a bad-conduct

discharge 45 days’ confinement and reduction in rank to E-1.

On January 13, 1995, the convening authority approved the

sentence. On June 13, 1996, the Court of Criminal Appeals

affirmed. 44 M.J. 646.

On January 9, 1997, this Court granted review on the

following questions of law:

WHETHER THE MILITARY JUDGE ERRED TO

THE SUBSTANTIAL PREJUDICE OF

APPELLANT BY DENYING THE DEFENSE

MOTION TO SUPPRESS EVIDENCE

OBTAINED AS A RESULT OF AN IMPROPER

SEIZURE OF APPELLANT’S HAIR, SINCE

OMISSION OF INFORMATION FROM THE

AFFIDAVIT TO THE MAGISTRATE

UNDERMINED THE MAGISTRATE’S FINDING

OF PROBABLE CAUSE TO SEIZE HAIR.

WHETHER THE MILITARY JUDGE ERRED TO

THE SUBSTANTIAL PREJUDICE OF

APPELLANT BY DENYING THE DEFENSE

MOTION TO DISALLOW INTRODUCTION OF

TESTIMONY CONCERNING THE RESULTS OF

THE HAIR ANALYSIS TEST CONDUCTED ON

APPELLANT’S HAIR, SINCE THE TEST WAS

NOT RELIABLE PROCEDURE - AS

IMPLEMENTED.

We hold that the military judge did not legally err by

admitting hair-analysis evidence in this case. See generally

Ornelas v. United States,_U.S.—, 116 S. Ct. 1657 (1996);

and United States v. Nimmer.

43 M.J. 252 (1995).

The Court of Criminal Appeals found the following facts

pertinent to this appeal:

On November 15, 1993, appellant was selected to

provide a sample for a random drug urinalysis. He showed up

at the base theater, as he was directed to do. Thereafter,

accompanied by Technical Sergeant (TSgt) Robichaud, the

observer, appellant took the sample bottle to the men’s room

to provide a specimen. A number of irregularities, the

significance of which was not then appreciated, ensured.

Appellant elected to use a stall, rather than a urinal,

complicating Robichaud’s observation. He continued to wear

his field jacket, and had to be directed by Robichaud to turn

slightly so that Robichaud could see him urinate. Even then,

as Robichaud later admitted, appellant was positioned in such

a way that he did not actually see if appellant urinated, but

only that liquid appeared to be filling the bottle. Robichaud,

and subsequently the urinalysis monitor, remarked on the

clarity of the specimen. However, when asked, appellant

explained that he had been drinking a great deal of fluid, and

the matter passed. The specimen bottle, which had not left

appellant’s possession from the time he was given it until he

gave it back to the urinalysis monitor, was duly logged,

initialed, signed, taped, secured, and mailed to the Armstrong

Laboratory at Brooks Air Force Base (AFB) for testing. Once

there, one of the laboratory technicians observed that the

specimen was colorless, odorless, and did not foam when

shaken.

She suspected that a false or adulterated sample had been

provided. When a field test indicated that the specimen was

not urine, she sent it to Wilford Hall Medical Center, which

confirmed that the specimen was not urine, but some sort of

saline solution.

Over defense objection, the government introduced

evidence that appellant, a medical technician assigned to the

Malcolm Grow Medical Center on Andrews Air Force Base

(AFB), had access to intravenous bags containing saline

solution, along with surgical tubing and a thumbscrew to

control flow from the bags. As well, testimony indicated that

appellant was capable of reverse self-catheterizing, replacing

the urine in his bladder with a saline solution. Regardless of

the specific mechanism employed, it is clear that appellant did

not provide a genuine urine specimen as he was required to do.

On learning of the discrepancy in early December, the

base looked into the possibility of testing appellant’s hair for

the presence of drugs. Special Agent (SA) Toni, of the Air

Force Office of Special Investigations (AFOSI), contacted the

FBI’s forensics laboratory, and was advised that the technology

existed to test hair based upon the same biomedical and

scientific principles as urinalysis. The advantage, he learned,

was that hair potentially would continue to show the presence

of cocaine for a period of months after ingestion. The FBI

agreed to perform the tests. Using an example borrowed for the

AFOSI at Langley AFB, Virginia, SA Toni then prepared an

affidavit, stating in pertinent part as follows;

4... .As a result of your affiant’s training and information

gathered from the Federal Bureau of Investigation (FBI)

forensics laboratory, and the Brooks AFB forensics laboratory,

your affiant believes trace amounts of drugs may be trapped

in the cortex of BUSH’s hail [sic] follicles and in his urine.

This is based on the following:

a. As blood circulates through the body, it nourishes the

hair follicle. If there are drugs in the blood, trace amounts of the

drug become entrapped in the core of the hair in amounts

roughly proportional to those ingested. These cannot be washed

or flushed out, and do not diminish with time. Urine tests can

only determine if drugs have been used within the few days

prior to providing a sample, however, hair analysis can detect

the use of drugs for months, depending on the length of the hair

sample.

b. Hair analysis is not subject to false negatives due to

temporary abstention or excessive fluid intake. Hair records

drug use in a chronological manner and in proportion to the

amount consumed. The FBI laboratory can distinguish

between heavy, medium, and light drug users.

5. If drug metabolites are present in BUSH’s hairs, at a level

in excess of 3 ng/mg of hair, it would indicate repeated use of

drugs.

6. Based on all the information provided above, your affiant

requests authorization to seize approximately 100 hairs and a

urine sample from the body of SSgt MICHAEL W. BUSH.

The search authority, Colonel Moore, swore SA Toni to

the affidavit and granted authority to seize “approximately,

100 hairs,” but did not authorize seizure of appellant’s urine.

Pursuant to that authority, approximately 100 hairs were cut

from the crown of appellant’s head. Although never precisely

measured, there was a general consensus that appellant’s hair

was “quite short,” and that the hairs measured approximately

1/2 inch in length. Observing the same_chain of custody

procedures employed in urinalysis drug testing, the hairs were

placed into a bottle, sealed, and sent to the FBI laboratory. By

letter of February 28, 1994, the FBI reported that the

specimens contained “cocaine and its metabolite,

benzoylecgonine at concentrations of 17 and 2.7 nanograms

per milligram of hair, respectively.”

2Unlike urinalysis, where principally metabolized cocaine (benzoylecgo-

nine) is excreted in urine, unmetabolized cocaine is typically found in hair

in five-times the amount of its metabolite. According to the testimony of

Dr. Donnelly, the government’s expert, the 5-1 ratio is typical of actual

ingestion, and indeed, “almost precludes any possibility of external conta-

mination.” External contamination would yield a much higher ratio. This

datum proved significant in the trial itself, as appellant repeatedly sug-

gested that the hair sample might have become contaminated through

some kind of passive exposure.

—

Based upon this evidence, a general court-martial consisting

of members convicted appellant, contrary to his please, of

dereliction of duty for failure to provide a urine specimen on

November 15, 1993, and use of cocaine between on or about

Nobember 15, 1993, and January 12, 1994....

* * *

44 MJ at 647-48 (footnote omitted).

The first question in this case is whether the military

judge erroneously denied the defense motion to suppress the

Government’s evidence of hair analysis because the tested

hair was unlawfully seized from appellant. See generally

Mil.R.Evid. 311 (a), Manual for Courts-Martial, United

States, 1984, Appellant initially asserts that his hair at the time

of its seizure was too short to show drug use at the time he

was suspected of using it. Accordingly, he argues that neither

the investigating AFOSI agent nor the commander ordering

the seizure of his hair could possibly have probable cause to

believe evidence of that drug use would still be in his hair.

See generally United States v. Poole, 30 M.J. 271, 275 (CMA

1990) (probable cause may evaporate with the passage of

time). He also asserts that the commander who ordered his

hair seized on January 12, 1994, was deliberately or

recklessly denied material information that would have

dissuaded him from ordering that probable-cause seizure. See

generally Franks v. Delaware, 438 U.S. 154 (1978). He

contends that the investigating officer should have

particularly informed the commander that his hair’s length as

of January 12th, the date of the expected seizure, was

_ scientifically insufficient to determine cocaine use on or about

November 15, 1993.

Initially, we note that the record does not support

appellant’s assertion that probable cause had evaporated

because his hair was only 1/2-inch long on January 12, 1994.

In fact, the agent testified that he did not know “exactly how

long” appellant’s head hair or pubic hair was on January 12,

1994. He estimated that “[i]t would have been at least a half

inch. It was probably a half inch to an inch” at the time it was

seized. The fact that the hair sample seized was 1/2-inch long

does not undermine the investigator’s and the commander’s

practical judgment that a relevant hair sample ceuld still be

seized from appellant. See generally Ornelas, — U.S. at —,

116 S.Ct. at 1661 (probable cause is not a legally technical

determination but a practicable one).

The initial premise of appellant’s second argument is that

the investigating police officer was fully aware of the

scientific principles upon which hair analysis was based but

“deliberately or recklessly” failed to explain those principles

to the commander. In addition, he notes that the police

investigator did not tell the commander that hair grows 1/2

inch per month and at least 1-inch hair would be required on

January 12, 1994, to determine whether appellant used drugs

on or about November 15, 1993. He notes further that the

police investigator failed to inform the commander that

appellant’s hair on January 12, 1994, was only 1/2-inch long

and would only show drug use on or after December 12,

1993. He contends deliberate deception or reckless disregard

for the truth existed in this case, not mere negligence. See

Franks, supra at 170.

We note that the investigating officer in his supporting

affidavit did provide a basic explanation of the scientific

principles of hair analysis to the commander. Moreover, he

specifically advised the commander:

Urine tests can only determine if drugs have been used

within the few days prior to providing a sample, however, hair —

analysis can detect the use of drugs for months, depending on

the length of the hair sample.

Finally, although he admitted that he was aware of the

1/2-inch rule at the time of applying for the search

authorization, he asserted that he understood that the hair

sample could be taken from the head, public area, or other

part of the body. In this context, appellant’s deliberate-or-

reckless-omission argument is not well taken. See generally

United States v. Figueroa, 35 M.J. 54, 57 (CMA 1992);

United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990).

This is not a case in which the probable-cause

determination required precise mathematical measurements

implementing a specific scientific formula. As noted in the

findings of fact by the military judge, Agent Toni’s guidance

from the FBI was rather general in nature:

The FBI instructed Agent Toni to obtain the

longest hair possible, to cut the hair at the base of

the scalp. Agent Toni was not told to obtain a

certain or minimum length of hair. The FBI told

Agent Toni that hair grows approximately one half

inch per month and that drugs could possibly

remain in the hair for a period as long as three

months, depending on the length of hair sample

seized and the growth rate.

Moreover, according to the findings of fact by the

military judge, after Agent Toni obtained the search warrant—

Agent Toni subsequently seized about 100 hair

samples from the scalp of the accused. The hair was

difficult to measure and a measure was not taken

after it was cut, because the hair was matted and

curly. To the best estimate of Agent Toni, the hair

was at least one half inch long to about an inch.

Under these circumstances and in light of the

circumstances surrounding the urinalysis which gave rise to

the request for a search authorization, it was reasonable for

Agent Toni to proceed under the search authorization without

applying a precise mathematical limitation to the length of the

hair obtained from appellant.

Appellant’s basic argument on the second granted issue

is that evidence of mass-spectrometry hair analysis was

unlawfully admitted at his court-martial to establish his guilt

of using cocaine. Citing the decision of the Navy-Marine

Corps Court of Military Review* in United States v. Nimmer,

39 M.J. 924 (1994), he argues in his 1997 Final Brief to this

Court at 17-18, 24, that such evidence is per se inadmissible

under Mil.R.Evid. 702. Citing the decision of the Army Court

of Criminal Appeals in United States v. Hill, 41 M.J. 596

(1994), he contends such evidence is not admissible as the

sole proof of drug use at a court-martial. Finally, citing the

landmark decision of the Supreme Court in Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), he avers

that the military judge abused his discretion in admitting this

evidence for the first time in any court in our country.

Appellant first asserts that this Court should decide the

question of admissibility of hair-analysis evidence “de novo”

and ensure “uniform precedent within the federal system

regarding the reliability of particular scientific techniques . . .”

Final Brief at 18. He also cites the Nimmer decision of the

Navy-Marine Corps Court of Military Review and implies

that we should follow that court’s rejection of hair-analysis

evidence (“it lacks the necessary scientific underpinning to

reliably be able to detect a one-time use of cocaine. . . .” 39

MJ at 928). Final Brief at 17-18. We reject appellant’s

invitation to establish a per se rule precluding admission of

evidence of hair analysis at courts-martial.

iat Peg! st

10a

The obvious answer to appellant’s argument in his 1997

brief is the decision of this Court in United States v. Nimmer,

43 M.J. 252 (1995). There, this Court set aside the decision of

the service appellate court in Nimmer and remanded that case

for a hearing on admissibility of hair-analysis testimony in

light of Daubert v. Merrell Dow Pharmaceuticals, Inc., supra.

The Nimmer decision relied on by appellant, therefore, has no

precedential value, so there is no reason to follow it in this

case, especially where a proper Daubert-type hearing has

been held. In addition, we note that Congress has not provided

that this Court make “de novo” admissibility determinations

on different types of scientific evidence without regard for

evidence of record and a military judge’s ruling under Mil. R.

Evid. 702. See United States v. Beasley, 102 F.3d 1440, 1445

(8th Cir. 1996) (Absent judicial notice of reliability of

scientific knowledge, Daubert hearing will be held).

We next turn to appellant’s argument that hair-analysis

evidence is inadmissible if it is used as the sole test to

determine cocaine use. Appellant notes evidence in the record

that the scientific community only considers hair analysis

reliable to corroborate or confirm other evidence of cocaine

use. He then cites the Army Court of Criminal Appeals

decision in United States v. Hill, supra, as generally holding

that confirmatory testing evidence is inadmissible at courts-

martial if no other evidence shows drug use. Finally, he avers

that no other evidence of drug use was admitted in his case

and, therefore, the military judge legally erred in admitting

the hair-analysis evidence of the Government.

We reject this legal argument for several reasons. First,

the Army Court of Criminal Appeals in United States v. Hill,

supra, addressed the particular question of admissibility of

luminol testing to detect human blood, not hair analysis to

detect cocaine or its metabolites. The evidence supporting

admission of hair-analysis evidence presented in this case was

lla

not before that court, so its decision cannot be considered

dispositive of this different question of law. Second, appellant

has cited no statute, evidentiary rule, or case law which

requires a court to defer to the scientific community’s labeling

of a test as “confirmatory.” We agree with the military judge

that Mil. R. Evid. 702 and Daubert v. Merrell Dow

Pharmaceuticals, Inc., supra, give a military judge broad

discretion to regulate admission of scientific evidence at

courts-martial with due regard for the advisory opinions of the

scientific community. See United States v. Gipson, 24, M.J.

246, 252 (CMA 1987). Finally, we agree with the Court of

Criminal Appeals in this case that other evidence of drug use

was admitted which the hair-analysis evidence corroborated.

In particular, the appellate court below noted that evidence

was admitted that appellant surreptitiously substituted a saline

solution for a urine sample on November 15, 1993. See

generally 2 Wigmore, Evidence Sec. 276 (Chadbourn rev.

1979).

Appellant finally attacks the decision of the military

‘udge admitting the hair-analysis evidence as an abuse of his

discretion provided in Mil. R. Evid. 702. See generally United

States v. Houser, 36 M.J. 392, 397 (CMA 1993) (to establish

abuse of discretion, “appellant must come ‘forward with

conclusive argument’ “). He contends that proper application

of the Daubert factors to the evidence in his case would lead

to the conclusion that hair-analysis evidence is unreliable and

inadmissible. These arguments are essentially the same

arguments presented to the military judge at trial to prevent

admission of the challenged evidence.

The Eighth Circuit in Beasley, 102 F.3d at 1447, recently

commented on this type of appellate argument:

In this appeal, Oliver Beasley reasserts his

claim that PCR testing does not meet the Daubert

standard of reliability. He fails, however, to support

12a

this claim with any fact-based arguments designed

to convince us that any of the District Court’s

findings concerning the reliability of PCR testing

are clearly erroneous. Moreover, he does not

contend (nor could he plausibly do so) that the

District Court failed to follow the method that

Daubert prescribes for the judicial assessment of

the admissibility of scientific evidence. Instead, in

his brief he merely incorporates by reference the

arguments found in his trial counsel’s memorandum

in support of the motion to exclude the

government’s DNA evidence. We reject these

arguments. First, they are not properly before us; a

litigant cannot make arguments . . . on appeal by

incorporating by reference into his appellate brief

arguments made in written submissions to the trial

court. See 8th Cir. R. 28A(j); Sidebottom v. Delo, 46

F.3d 744, 750 n.3 (8th Cir.), cert. denied,_U.S._,

116 S.Ct. 144, 133 L.Ed.2d 90 (1995). Second, even

if these arguments were properly before us, they are

not geared to the standard of review, the clear-error

standard, that governs our consideration of alleged

errors in the trial court’s fact-finding.

See Fed.R.Civ.P. 52(a); Anderson v. City of

Bessemer City, 470 U.S. 564, 573-75, 105 S.Ct.

1504, 1511-12, 84 L.Ed.2d 518 (1985). These |

arguments thus would be of no assistance to

Beasley in persuading us that the District Court’s

reliability finding regarding the science of PCR

testing is clearly erroneous. . ..

We generally agree with the Eighth Circuit that an

appellate court of law is not an appropriate place to relitigate

a motion to admit expert testimony under Mil. R. Evid. 702.

Therefore, we again reject appellant’s invitation to determine

13a

de novo the reliability of the hair analysis admitted by the

judge in this case. See United States v. St. Jean, 45 M.J. 435,

444 (1996) (recognizing abuse-of-discretion standard). As

noted by the First Circuit in United States v. Gonzalez-

Maldonado, 115 F.3d 9, 15 (1997), a judge’s decision on

admissibility “is entitled to great deference” and an appellate

court “will reverse . . .[his] decision on this question only if

(1) the . . .[trial judge] based the decision on an incorrect legal

standard, or (2) we have a definite and firm conviction that the

. . .[judge] made a clear error of judgment in the conclusion

. . .[he] reached based on a weighing of the relevant factors.”

(Internal quotation marks omitted.) See generally United

States v. Houser, supra (conclusive argument of error).

Turning to appellant’s brief, we note that he does not

aver that the military judge relied on an incorrect principle of

law in deciding to admit the challenged hair-analysis

evidence. See generally United States v. Rouse, 100 F.3d 560,

568 (8th Cir. 1996). In United States v Nimmer, 43 M.J. 252,

we remanded the case for a hearing because the military judge

did not have the benefit of the Daubert decision in

determining that hair analysis was inadmissible. Here,

individual defense counsel herself called the military judge’s

attention to the Daubert decision, and the military judge

expressly referred to it in his written decision. Accordingly,

our sole concern in this case is whether appellant has made a

conclusive argument that the military judge made a clear error

in this case. We are not so persuaded.

Appellant argues that the military judge made a clear

error in judgment in determining from the evidence presented

in this case that Daubert factors show reliable scientific

knowledge was established in this case. He notes the Daubert

factors and states: “[T]he expert testimony in the present case

fails to meet the criteria of even one of these factors.” Final

Brief at 19. He then cites evidence of record supporting his

“2: amin — panne =

l4a

arguments on the individual factors and concludes that a

finding of reliability was not justified in this case.

In particular, appellant first contends that there was

overwhelming evidence presented in this case that mass-

spectrometry hair analysis was an untested procedure in

detecting drug use. He also contends that there was

insufficient evidence of peer review and publication because

the only article reviewing the technique was written by the

FBI laboratory who performed the test. He also avers that

there was no evidence admitted showing an error rate for the

hair-analysis procedure performed in this case. Finally, he

asserts that there was “insufficient and incomplete

documentation of the procedures” (Final Brief at 31) of hair

analysis used in this case.

The Government delineates in particular detail in its

Answer to Final Brief the substantial evidence presented by

the prosecution on each of the above Daubert factors. We

agree with its reading of the record. Admittedly, there was

disagreement between the experts presented by the parties

with respect to some of the Daubert considerations.

Nevertheless, we concur with the intermediate appellate

court’s conclusion that these disputes do not dictate that the

evidence of hair analysis be excluded. It said:

That experts might dispute some particularities

of the testing protocol or suggest ways that it could

have been improved, or that different controls might

be used, or that SOFT [Society of Forensic

Toxicologists] might harbor policy concerns about

the feasibility of hair analysis for workplace testing,

or deem it prudent to have independent

corroboration of hair analysis, [sic] even considered

in the aggregate, are insufficient bases upon which

to exclude the results. A vigorous forensic dialogue

between both experts was aptly engaged before the

15a

triers of fact, who ultimately decided that Dr.

Goldberger’s reservations about and disagreements

with Dr. Donnelly’s conclusions were insufficient to

raise a reasonable doubt that appellant had used

cocaine. Thomas, 43 MJ [626,] at 633 [A.F. Ct.

Crim. App. 1995)]. Thus, we hold the military judge

did not abuse his discretion in denying appellant’s

motion in limine and permitting qualitative and

quantitative analysis of appellant’s hair to go before

the court members.

44 MJ at 652 (footnote omitted). In these circumstances,

we have no firm and definite conviction that the military judge

erred in determining that the proffered hair-analysis evidence

was reliable and relevant in appellant’s case. (The detailed

ruling of the military judge on admissibility is attached as an

appendix.)

CONCLUSION

In summary, we conclude that the evidence of mass-

Spectrometry hair analysis proffered in this case was

admissible because the hairs analyzed were lawfully seized

from appellant with probable cause. See Orelas v. United

States, supra (probable cause should be practically, not

technically applied). In addition, we conclude that the military

judge did not abuse the discretion provided to him under Mil.

R. Evid. 702, when based on the record before him he

admitted evidence of hair analysis in this case. See generally

United States v. Nimmer, 43 M.J. 252 (CMA 1995). Such a

decision is not unprecedented in Federal law. See United

States v. Medina, 749 F.Supp. 59 (E.D. NY 1990).

As a postscript, there is some irony to be noted in this

case. For years, the military has used urinalysis to prove drug

use. See generally United States v. Ford, 23 M.J. 331 (CMA

16a

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

United States v. Harper, 22 M.J. 157 (CMA 1986). In this

case, Staff Sergeant Bush thwarted a urinalysis by

surreptitiously substituting a saline solution for a urine

sample. The Government has not seized his hair and, by due

process proved drug use. This maybe the first drug-use

conviction by hair analysis, and it is ironic that Sergeant Bush

had a hand in making the Government break new ground in

drug detection to catch him.

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

Chief Judge COX and Judges GIERKE and EFFRON

concur.

Minority opinion

CRAWFORD, Judge (dissenting):

FACTS

On November 15, 1993, appellant was selected to

provide a urine specimen for a random drug-urinalysis test.

After appellant provided the sample, the observer, Technical

Sergeant Robichaud, noticed that the liquid was relatively

clear. Nonetheless, the bottle was sent to the laboratory. On

December 1, 1993, test results suggested that the sample was

probably a saline solution. Because of the lapse of time,

Office of Special Investigations (OSI) agents thought

probable cause was lacking to request another urine sample.

Special Agent (SA) David Toni interviewed appellant, who

denied submitting a false urine sample. An interview with co-

workers produced no evidence that appellant had taken illegal

drugs.

As an alternative, SA Toni considered testing appellant’s

17a

hair samples for drug residue, which could indicate appellant

used drugs around November 15, 1993. When SA Toni talked

to personnel at the FBI laboratory about hair samples, he was

informed that hair grows approximately half an inch per

month.

SA Toni then sought a search warrant from the base

commander, Colonel Moore. On January 12, 1994, SA Toni

submitted an affidavit to Col. Moore in order to obtain the

hair sample. The affidavit stated that appellant worked in

emergency medical services and had access to saline solution

and a dispensing apparatus. Based on this information plus the

information concerning the prior urinalysis test, the

commander granted SA Toni permission to seize 100 hair

samples from appellant’s scalp. However, the affidavit made

no mention of the amount hair grows per month.

At trial, Dr. Donnelly of the FBI Laboratory, who

performed the hair analysis, testified that appellant’s hair

samples were approximately half an inch in length! and

established that appellant had “consumed cocaine” because

the hair contained 17 nanograms of cocaine per milligram of

hair, and 2.7 nanograms of benzoylecgonine per milligram of

hair. Appellant sought unsuccessfully to suppress the evidence

concerning testing of the hair.

The defense argues that there could not be probable

cause to search appellant’s hair in January if hair grows half

an inch per month. Thus, probable cause to make the seizure

would only have existed between November 15 and

December 15.

The Government argues that if the agent was incorrect in

not informing the magistrate as to the rate of hair growth, the

good-faith exception should be applied. The Government

notes that the agents did not consider the hair-growth rate

when they obtained the warrant.

18a

DISCUSSION

As with many constitutional issues, there is a

fundamental structure to doctrinal analysis when examining

Fourth Amendment issues. That analysis examines Fourth

Amendment coverage? and protection.* Coverage exists when

there is a right to privacy against government agents* using

any of their senses or mechanical equipment to “observe”?

areas that are normally considered “private” or interfere with

the freedom of movement of a person.’ Taking blood from an

individual® or obtaining fingernail scrapings? constitutes a

Fourth Amendment search. Once it is determined that

coverage exists, the next issue is whether there was a

violation of Fourth AMendment protections under the warrant

requirement or under one of the specifically limited

exceptions to the warrant requirement. !°

The equivalent of a warrant in the military is an

authorization by a commander.!! Such authorization must

satisfy the probable-cause!? and specificity!> requirements of

the Fourth Amendment. The military, unlike some states, does

not have a statute addressing how to obtain and identify

physical characteristics of a suspect.'* Thus, this Court must

resort to general Fourth Amendment principles. To obtain hair

samples from an individual requires reasonable grounds to

believe that the hair would assist in a criminal prosecution.!°

The officer’s actions may fill in any insufficiency in the

authorization.!® In this instance the search authorization did

not designate whether the hair sample should be head hair,

body hair, or genital hair. The officer’s action will fill in the

lack of specificity.!’ After the warrant was obtained, SA Toni

focused on head hair. He asked Sergeant Carpenter to obtain

approximately 100 hair samples from the crown of appellant’s

head.

In his affidavit, SA Toni did not tell Col. Moore that

appellant’s hair was short and that hair grew 1/2 inch per

Il ce ernieernaiatastiaittaeatatieeaniiiniiiii

19a

month. Hypothetically, let us consider that SA Toni was told

by an informant that on November 15 Morgan had drugs in

his house. In December, the same informant tells SA Toni that

the drugs have been removed and sold. However, in January

when SA Toni seeks the search authorization from the

commander, he does not tell the commander that the drugs

were removed in December. It is not necessary for appellant

to establish “by direct evidence that the affiant makes an

omission recklessly. Rather, it is possible that when the facts

omitted from the affidavit are clearly critical to a finding of

probable cause, recklessness may be inferred from proof of

the omission itself.”!® When there is a reckless omission by a

law enforcement officer, the underlying information will be

reevaluated as if the correct information had been given.!9

Had that been done in this case, there would be no probable

cause to seize hair from appellant’s head on January 12, 1994.

Under the circumstances of this case, there were no

grounds to believe that the 100 hair samples obtained from

appellant’s head would have any evidence that related to

submission of a fraudulent urine sample on November 15,

1993.

The Government argues that SA Toni was a new agent

and was on probationary status and had no training in

obtaining hair analysis. The lack of training is not an excuse

for failing to know what probable cause would mean in terms

of obtaining hair samples.”° For the good-faith exception to

apply, “[a]t the very least, the officer must be familiar with

well-established principles” of probable cause.?! If one were

to excuse SA Toni because of lack of training, such excuses

would create incentive not to train officers and would

undercut the right of privacy of all servicemembers.

For the reasons stated above, I dissent. I would reverse

the decision of the Court of Criminal Appeals.

20a

Footnotes

* See 41 M.J. 213, 229 n. * (1994).

1. “Although never precisely measured, there was a

general consensus that appellant’s hair was ‘quite short,’ and

that the hairs measured approximately 1/2 inch in length.” 44

M.J. 646, 648 (1996).

2. United States v. Taylor, 41 M.J. 168, 170 (CMA 1994)

(Mil. R. Evid. 311 through 317, like the decisions of the

Supreme Court, divide Fourth Amendment issues between

coverage (that is, when the Fourth Amendment is applicable)

and protections.”’).

In United States v. Muniz, 23 M.J. 201, 206-07 (CMA

1987), then-Judge Cox wrote the following:

The Fourth Amendment consists of two main

components. The first part refers to the right of the people to

be free of unreasonable searches. The second part discusses

the circumstances under which warrants may issue. The

interrelationship between the two parts has historically been

expressed in terms such that searches without a valid warrant

are unreasonable, unless they fall within one of the recognized

exceptions to the warrant requirement; and the burden is on

the Government to show that the search fits within an

exception.

3. In United States v. Rivera, 10 M.J. 55, 57-58 (CMA

1980), the Court reiterated:

“[Slearches conducted outside the judicial process,

without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment-subject only to a

few specifically established and well-delineated exceptions.”

Katz v. United States, 389 US 247, 357 [88S.Ct. 507, 19

L.Ed.2d 576)] (1967) (footnotes omitted). One well-

recognized exception to the requirement that a magistrate or

judicial officer must authorize certain searches is found in the

2la

military practice permitting commanding officers or their

delegates to authorize searches upon probable cause.

4. See Mil. R. Evid. 311 (c), Manual for Courts-Martial,

United States (1995 ed.).

5. This term encompasses all five senses.

6. There is a right to privacy when there is both a

subjectively and an objectively reasonable expectation of

privacy. Katz v. United States, 389 U.S. 347, 361

(1967)(Harlan, J. (concurring)).

7. United States v. Mendenhall, 446 U.S. 544 (1980).

“[A] person has been ‘seized’ within the meaning of the

Fourth Amendment only if, in view of all of the circumstances

surrounding the incident, a reasonable person would have

believed that he was not free to leave.” Jd. at 554.

8. Schmerber v. California, 384 U.S. 757 (1966).

9. Cupp v. Murphy, 412 U.S. 291 (1973).

10. United States v. Morris, 28 M.J. 8, 15 (CMA 1989);

United States v. Rivera, 10 M.J. 55, 57 (CMA 1980); see also

Mil. R. Evid. 315 (g).

11. Mil. R. Evid. 315 (d).

12. Mil. R. Evid. 315 (f).

13. Mil. R. Evid. 315 (b)(1).

14. See e.g., Sec. 13-3905, Ariz. Rev. Stat.; Vt.R.Crim.P.

41-1.

15. Mil R. Evid. 315 (f).

16. United States v. Cunningham, 113 F.3d 289 (1st Cir.

1997)(holding officer’s knowledge satisfied specificity

requirement); see United States v. Brown, 49 F.3d 1162, 1169

(6th Cir. 1995)(holding that executing officer’s knowledge

“may cure” insufficiencies in warrant).

17. See n 15, supra.

| mmm

22a

18. Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th Cir.

1997), quoting United States v. Martin, 615 F.2d 318, 329 (Sth

Cir. 1980)(holding that “[a] party need not show by direct

evidence that the affiant makes an omission recklessly”);

United States v. McNeese, 901 F.2d 585, 593, 594 (7th Cir.

1990)(citations omitted) (holding that one, by a

preponderance of the evidence, “must offer direct evidence of

the affiant’s state of mind or inferential evidence that the

affiant had obvious reasons for omitting facts in order to

prove deliberate falsehood or reckless disregard”); see also

United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990).

Cf. United States v. Figueroa, 35 M.J. 54, 57 (CMA 1992)

(“Even if the omission had been intentional or reckless, its

inclusion would not have extinguished probable cause.”); but

see United States v. Mankani, 738 F.2d 538, 546 (2d Cir.

1984) (holding search warrant valid because there was “no

direct evidence that omissions, if any, were intentionally or

recklessly made”).

19. See United States v. LaMorie, 100 F.3d 547, 555 (8th

Cir. 1996); United States v. Kyllo, 37 F.3d 526 (9th Cir. 1994);

see also Madiwale v. Savaiko, 117 F.3d 1321 (11th Cir. 1997);

Martinez v. City of Schenectady, 115 F.3d 111, 115 (2nd Cir.

1997); Sherwood v. Mulvihill, 113 F.3d 396, 400 (3d Cir.

1997).

20. United States v. Lopez, 35 M.J. 35, 42 (CMA 1992).

21 See n. 20 supra.

23a

APPENDIX B

44 M.J. 646

UNITED STATES

Staff Sergeant Michael W. BUSH, FR247-23-7903.

United States Air Force.

ACM31462

U.S. Air Force Court of Criminal Appeals.

Sentence Adjudged 25 July 1994.

Decided 13 June 1996.

Accused was convicted by a general court-martial,

William S. Colwell, J., of unlawful use of cocaine. The United

States Air Force Court of Criminal Appeals, Morgan, J., held

that: (1) as a matter of first impression, chemical hair analysis

was admissible to prove accused’s unlawful use of cocaine,

and (2) evidence was legally and factually sufficient to

support conviction.

Affirmed.

258A —

258AV Evidence and Witnesses

258Ak1049 — Bodily Views and Intrusions

258Ak1052 _— Seizure of bodily fluids.

A. F.Ct.Crim.App. 1996.

Refusal to submit a urine specimen, or submission of a

substituted specimen, justified subsequent order to submit a

24a

valid specimen, and subsequent order stood on same legal

footing as original; government was not required to produce

probable cause for any subsequent search or seizure after

accused, by his own misconduct, frustrated inspection for

drug use. Military Rules of Evid., Rules 313(b), 315, 316.

258A —

258AV Evidence and Witnesses

258Ak1072 Probable Cause Determination

258Ak1072.1 In general.

A. F. Ct. Crim. App . 1996.

Omission of growth rate of hair from special agent’s

affidavit regarding whether trace amounts of drugs could be

trapped in accused’s hair follicles was merely negligent and

did not serve to undermine probable cause for seizure of

accused’s hair after his own misconduct frustrated urinalysis

inspection.

258A —

258AX Review of Courts-Martial

258AX(B) Further Review

258AX(B)1 In General

258Ak1420 _ Discretion of military judge.

A. F.Ct.Crim.App. 1996.

Air Force Court of Criminal Appeals reviews military

judge’s decision to admit or not admit expert testimony on an

abuse of discretion standard.

258A —_

258AV Evidence and Witnesses

258Aki120 Opinions and expert testimony.

25a

A. F.Ct. Crim. App . 1996.

Chemical hair analysis was admissible in general court-

martial to prove accused’s unlawful use of cocaine; mass

spectrometer analysis of hair samples was accepted as

scientifically reliable in relevant community of forensic

chemistry, had been subjected to peer review, was subject of

growing body of professional publications, studies, and

monographs, and could be both probative and helpful to trier

of fact. Military Rules of Evid., Rule 702.

258A —

258AX Review of Courts-Martial

258AX(B) Further Review

258AX(B)1 In General 258Ak1419 Scope of review in

general.

A. F.Ct. Crim.A~p . 1996.

“Legal sufficiency of evidence” to support conviction is

measured by whether, considering evidence in a manner most

favorable to prosecution, a reasonable fact finder could have

found all essential elements of offenses beyond a reasonable

doubt.

See publication Words and Phrases for other judicial

constructions and definitions.

258A —

258AX Review of Courts-Martial

258AX(B) Further Review

258AX(B)1 In General

258Ak1 422 Questions of fact.

A. F.Ct.Crim.App. 1996.

26a

“Factual sufficiency of evidence” to support conviction

requires that Air Force Court of Criminal Appeals be

personally satisfied of accused’s guilt beyond a reasonable

doubt, allowing for fact that Court is handicapped by sterility

of written record.

See publication Words and Phrases for other judicial

constructions and definitions.

258A —

258All Punishable Offenses and Defenses to Charges

258Ak783 Alcohol or Drug Offenses 258Ak787

Evidence.

A. F. Ct. Crim.App. 1996.

Evidence was legally and factually sufficient to sustain

conviction for unlawful use of cocaine; hair analysis revealed

presence of cocaine in hair shafts, there was expert testimony

that presence of cocaine in hair shafts was metabolically

explained by ingestion, and that it did not occur as a natural

phenomenon, accused’s own witness conceded that there was

cocaine in the hair sample tested, and chain of custody

established that sample to be accused’s.

Appellate Counsel for Appellant: Colonel Jay L. Cohen,

Lieutenant Colonel Joseph L. Heimann, Major Del Grissom,

and Captain Sean A. Sabin.

Appellate Counsel for the United States: Colonel Jeffery

T. Infelise and Lieutenant Colonel Michael J. Breslin.

Before PEARSON, SCHREIER, and MORGAN,

Appellate Military Judges.

—

OPINION OF THE COURT

MORGAN, Judge:

Hh sneneeentimeienieihieniaeastatasiiaeeaanenimesseasiiiiiidiiiaiaiiaiiiid

27a

This appears to be a case of first impression for federal

criminal jurisprudence, where we are asked to decide whether

the trial judge erred in admitting chemical hair analysis to

support appellant’s conviction for the unlawful use of cocaine.

We hold that he did not.

On November 15, 1993, appellant was selected to

provide a sample for a random drug urinalysis. He showed up

at the base theater, as he was directed to do. Thereafter,

accompanied by Technical Sergeant (TSgt) Robichaud, the

observer, appellant took the sample bottle to the men’s room

to provide a specimen. A number of irregularities, the

significance of which was not then appreciated, ensued.

Appellant elected to use a stall, rather than a urinal,

complicating Robichaud’s observation. He continued to wear

his field jacket, and had to be directed by Robichaud to turn

slightly so that Robichaud could see him urinate. Even then,

as Robichaud later admitted, appellant was positioned in such

a way that he did not actually see if appellant urinated, but

only that liquid appeared to be filling the bottle. (FN1)

Robichaud, and subsequently the urinalysis monitor,

remarked on the clarity of the specimen. However, when

asked, appellant explained that he had been drinking a great

deal of fluid, and the matter passed. The specimen bottle,

which had not left appellant’s possession from the time he

was given it until he gave it back to the urinalysis monitor,

was duly logged, initialed, signed, taped, secured, and mailed

to the Armstrong Laboratory at Brooks Air Force Base (AFB)

for testing. Once there, one of the laboratory technicians

observed that the specimen was colorless, odorless, and did

not foam when shaken. She suspected that a false or

adulterated sample had been provided. When a field test

indicated that the specimen was not urine, she sent it to

Wilford Hall Medical Center, which confirmed that the

specimen was not urine, but some sort of saline solution.

28a

Over defense objection, the government introduced

evidence that appellant, a medical technician assigned to the

Malcolm Grow Medical Center on Andrews Air Force Base

(AFB), had access to intravenous bags containing saline

solution, along with surgical tubing and a thumbscrew to

control flow from the bags. As well, testimony indicated that

appellant was capable of reverse selfcatheterizing, replacing

the urine in his bladder with a saline solution. Regardless of

the specific mechanism employed, it is clear that appellant did

not provide a genuine urine specimen as he was required to

do.

On learning of the discrepancy in early December, the

base looked into the possibility of testing appellant’s hair for

the presence of drugs. Special Agent (SA) Toni, of the Air

Force Office of Special Investigations (AFOSI), contacted the

FBI’s forensics laboratory, and was advised that the

technology existed to test hair based upon the same bio-

medical and scientific principles as urinalysis. The advantage,

he learned, was that hair potentially would continue to show

the presence of cocaine for a period of months after ingestion.

The FBI agreed to perform the tests. Using an example

borrowed from the AFOSI at Langley AFB, Virginia, SA Toni

then prepared an affidavit, stating in pertinent part as follows:

4....As a result of your affiant’s training and

information gathered from the Federal Bureau of

Investigation (FBI) forensics laboratory, and the Brooks AFB

forensics laboratory, your affiant believes trace amounts of

drugs may be trapped in the cortex of BUSH’s hail (sic)

follicles and in his urine. This is based on the following:

a. As blood circulates through the body, it nourishes the

hair follicle, If there are drugs in the blood, trace amounts of

the drug become entrapped in the core of the hair in amounts

roughly proportional to those ingested. These cannot be

washed or flushed out, and do not diminish with time. Urine

29a

tests can only determine if drugs have been used within the

few days prior to providing a sample, however, hair analysis

can detect the use of drugs for months, depending on the

length of the hair sample.

b. Hair analysis is not subject to false negatives due to

temporary abstention or excessive fluid intake. Hair records

drug use in a chronological manner and in proportion to the

amount consumed. The FBI laboratory can distinguish

between heavy, medium, and light drug users.

5. If drug metabolites are present in BUSH’s hairs, at a

level in excess of 3 ng/mg of hair, it would indicate repeated

use of drugs.

6. Based on all the information provided above, your

affiant requests authorization to seize approximately 100 hairs

and a urine sample from the body of SSgt MICHAEL W.

BUSH.

The search authority, Colonel Moore, swore SA Toni to

the affidavit and granted authority to seize “approximately,

100 hairs,” but did not authorize seizure of appellant’s urine.

Pursuant to that authority, approximately 100 hairs were cut

from the crown of appellant’s head. Although never precisely

measured, there was a general consensus that appellant’s hair

was “quite short,” and that the hairs measured approximately

1/2 inch in length. Observing the same chain of custody

procedures employed in urinalysis drug testing, the hairs were

placed into a bottle, sealed, and sent to the FBI laboratory. By

letter of February 28, 1994, the FBI reported that the

specimens contained “cocaine and its metabolite,

benzoylecgonine at concentrations of 17 and 2.7 nanograms

per milligram of hair, respectively.” (FN2)

Based upon this evidence, a general court-martial

consisting of members convicted appellant, contrary to his

pleas, of dereliction of duty for failure to provide a urine

30a

specimen on November 15, 1993, and use of cocaine between

on or about November 15, 1993, and January 12, 1994.

Appellant now contends that the military judge erred in

admitting the hair analysis for two reasons. First, he argues

that the seizure of the hairs itself was unlawful because the

probable cause (appellant’s November 15 substituted urine

specimen) preceded by nearly two months the taking of the

hair, and second, he argues that hair analysis testing does not

pass muster under MIL. R. Evip. 702. Finally, he argues that

the evidence was legally and factually insufficient to support

his conviction for both charges. We are een by

appellant’s arguments, and affirm.

Seizure of Appellant's Hair

The first prong of appellant’s attack on the hair analysis

stems from the seizure of the hair itself. It was conceded by

both sides at trial that hair grows at approximately the rate of

1/2 inch per month. Hence, appellant continues, hair which

was only 1/2 inch long when it was seized nearly two months

after the probable cause triggering incident, could not

possibly reveal whether he had drugs in his system on

November 15, 1993. Where the information which informs a

search authorization is stale, appellant concludes, the search

authorization is fatally infirm. See, e.g., United States v.

Poole, 30 M.J. 271, 274 (C.M.A.1990).

[1] Appellant’s analysis erroneously presumes that an

individual facing a valid, random urine inspection, governed

by Mit. R. Evip. 313(b), may by his own misconduct frustrate

that inspection and require the government to produce

probable cause for any subsequent search or seizure, governed

by MIL. R. Evip. 315 and 316. Baldly put, appellant argues

that he should profit by the delayed discovery of his

subterfuge. That defies common sense, and it is not the law. It

is well-settled that the refusal to submit a urine specimen, or

a aii ii iii i kena

3la

submission of a substituted specimen, justifies a subsequent

order to submit a valid specimen, and that the subsequent

order stands on the same legal footing as the original. United

States v. Streetman, 43 M.J. 752 (A.F.Ct.Crim.App. 1995)

(initial refusal to provide random urinalysis specimen,

followed by direct order to do so, did not change requirement

into an inadmissible, “command directed” urinalysis); United

States v. Nand, 17 M.J. 936 (A.F.C.M.R.1984) (submission of

tap water for medically required urinalysis, followed by order

to provide another specimen; second specimen still qualified

as intrusion for valid medical purpose notwithstanding it was

also used to screen for drugs); cf., United States v. Moeller, 30

M.J. 676 (A.F.C.MLR.), pet. denied, 32 M.J. 14 (C.M.A.1990)

(entire random urinalysis collection lost in mail, subsequent

order to reconduct test not “command directed”).

[2] Even if we take the analytical path appellant prefers,

his argument fails. Appellant does not deny that his

substitution of saline solution for urine provided a reasonable

basis from which a search authority could conclude that he

might be using drugs, nor does he argue that Colonel Moore’s

search authorization was itself defective. Instead, he takes aim

at the affidavit informing that authorization, contending that

the failure of SA Toni to advise the search authority that

appellant’s hair might not be long enough to provide

assurance that drugs taken on or before November 15 would

still be found in it was tantamount to a “false statement

knowingly or intentionally made or with reckless disregard

for the truth” thereby vitiating the good-faith exception of

MIL. R. Evip. 311(b)(3). See also United States v. Figueroa,

35 M.J. 54, 56 (C.M.A.1992) (omissions of information

Should be analyzed in the same manner as

misrepresentations), cert. denied, 507 U.S. 910, 113 S.Ct.

1257, 122 L.Ed.2d 655 (1993).

32a

At worst, the omission of the growth rate of hair in SA

Toni’s affidavit was merely negligent. (FN3) SA Toni was a

new AFOSI agent, still undergoing his first year of

probationary training. Not unreasonably, he elected to use a

“proven” form of-affidavit from another AFOSI office.

Further, Colonel Moore authorized him to seize any hair; he

was not limited to that on appellant’s skull. That he elected

the least intrusive sample, ignoring the possibility of longer

pubic or body hairs, if anything, redounded to appellant’s

benefit. In any event, a mere negligent omission will not serve

to undermine probable cause. Figueroa, 35 M.J. at 56-7. See

also United States v. Lopez, 35 M.J. 35 (C.M.A.1992) (failure

to mention fact that information provided to search authority

was five weeks old not bad faith).

Admissibility of Hair Analysis

[3] [4] We review a military judge’s decision to admit or

not admit expert testimony on an abuse of discretion standard.

United States v. Nimmer, 43 M.J. 252 (1995); United States v.

Houser, 36 M.J. 392 (C.M.A.), cert. denied, 510 U.S. 864,

114 S.Ct. 182, 126 L.Ed.2d 141 (1993); United States v.

Thomas, 43 M.J. 626, 632 (A.F.Ct.Crim.App.1995). On that

basis, we hold that the military judge, who made extensive

findings of fact and conclusions of law, did not abuse his

discretion in admitting the results of appellant’s hair analysis.

The admissibility of scientific evidence has, since the

watershed case of Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993),

provided fecund soil for a proliferation of law review articles,

evidentiary analyses, and scholarly comment. We need not

add substantially to it here. Daubert did no more than apply

Federal Rule of Evidence 702, which is identical in all

material respects to MIL. R. Evip. 702. With United States v.

Gipson, 24 M.J. 246 (C.M.A.1987), the Court of Military

33a

Appeals, now the Court of Appeals for the Armed Forces,

anticipated the Daubert holding by six years, and established

the legal syllogism by which we approach the question of the

admissibility of scientific evidence.

Both Daubert and Gipson sensibly began their analysis

by looking to the philosophic undergirding of the appropriate

rules of evidence. Rule 402, like its federal counterpart,

announces with disarming simplicity that all relevant

evidence is admissible except as otherwise declared. This

presumption of admissibility reflects the broader policy

choice by the drafters that relevant evidence ought to be

provided to the trier of fact unless there is good reason not to.

This theme carries over to MIL. R. Evip. 702 which, read

along with Mit. R. Evip. 401-403, describes a

“comprehensive scheme for processing expert testimony.”

Nimmer, 43 M.J. at 255. Rule 702 requires only that

“scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to

determine a fact in issue . . ..” This relatively liberal rule of

admissibility supplants, if it does not eliminate altogether, the

“general acceptability” litmus of Frye v. United States, 293 F.

1013 (D.C.Cir. 1923).

Our most recent guidance from the Court of Appeals for

the Armed Forces on scientific or expert testimony,

coincidentally, concerns hair analysis. In Nimmer II the Court

reversed the Navy-Marine Corps Court of Criminal Appeals’

published affirmance (United States v. Nimmer, 39 M.J. 924

(N.M.C.M.R.1994)) (FN4) of a trial judge’s decision to

exclude exculpatory hair analysis evidence. The Nimmer II

majority reasoned that Daubert, which had not been decided

at the time of Nimmer’s trial in 1992, sufficiently enlarged

upon the rationale in Gipson as to justify remand of the case

for further consideration. Tempting as it is, we cannot on that

basis conclude (although we may suspect) that the Court of

34a

Appeals for the Armed Forces is persuaded of the legal

vitality of hair analysis. Substantive differences between the

factual, legal, and even scientific contexts in Nimmer and the

case sub judice necessitate further technical and logical

discourse.

Nimmer, who pursuant to urinalysis “barely” tested

positive for the metabolite of cocaine, benzoylecgonine,

(FNS) sought to introduce evidence of a gas

chromatography/mass spectrometry (GC/MS) analysis of a 1

1/2 inch length of his hair which failed to produce any

evidence of benzoylecgonine. Technical differences aside, we

face an issue which is the logical obverse of that in Nimmer.

That is, the question of whether the absence of benzo-

ylecgonine in a GC/MS analysis of hair reliably tends to

prove that the subject didn’t use cocaine, is a logically and

scientifically discrete question from whether the presence of

benzoylecgonine or cocaine itself in a tandem stage

quadrapole mass spectrometer (MS/MS) analysis of hair

reliably tends to prove that the subject did use cocaine. Put

another way, it is necessary to separately evaluate the

reliability and the validity of hair analysis with reference to

the dangers of false positives and false negatives. We are

concerned with the former; the Nimmer court is concerned

with the latter.

There was no dispute between the parties on the major

premise of scientific hair analysis, viz., that mass spectrometry

analysis of hair could detect the presence of cocaine. Nimmer

11, 43 M.J. at 257. At trial, the government produced Dr. Brian

Donnelly, whom the defense conceded to be an expert in the

field of forensic toxicology and hair analysis, and who

personally performed the analysis using a state of the art,

relatively rare, tandem stage quadrapole mass spectrometry

machine. (FN6) The defense produced Dr. Bruce Goldberger,

a similarly distinguished forensic toxicologist. Both had

35a

published papers in the professional literature, and both were

recognized as among the leading exponents of hair analysis in

the Society of Forensic Toxicologists (SOFT). In this sense, it

is instructive to note that both agreed on the scientific validity

and the reliability of the MS/MS analysis. Nor was there any

disagreement about the foundational principle of hair analysis

itself. Hair has been analyzed for 50 or 60 years to determine

if somebody has been poisoned with, for example, a heavy

metal or arsenic. The experts also agreed that cocaine, once

ingested, appears in the hair, although uncertainty persists as

to how it gets there. The reason that analysis for cocaine in

human hair is relatively new is that improved analytical

technology, epitomized by the MS/MS, enabled detection, and

even quantification, of substances in extraordinarily minute

quantities. Appellant’s expert did not take issue with the

validity of the test. Dr. Donnelly testified that in periodic

round robin proficiency tests, the FBI laboratory had done

extremely well. As applied to appellant’s case, both experts

agreed that there was, in fact, cocaine in appellant’s hair. Both

sides also agreed that a one-time use of cocaine in moderate

quantity might not show up, even on a machine as

sophisticated, and sensitive, as a tandem quadrapole mass

spectrometer.

In fact, although Dr. Goldberger differed at the margins

with Dr. Donnelly respecting the internal chain of custody and

procedural nuances, and was “uncomfortable” with the

application of hair analysis in a criminal context, there was

general harmony between the fwo on the relevant science and

the methodology employed in appellant’s case. Such

disagreement as arose turned chiefly on subtle issues of

policy, not science. Nothing in the literature submitted by

both parties, or in the testimony of the experts, contradicted

that, with proper controls, chain of custody, scientific

methodology, and instruments of sufficient sensitivity,

36a

cocaine found in hair is strongly indicative that cocaine was at

some point ingested by the subject, and may properly be

considered evidence of wrongful use of that drug. United

States v. Thompson, 34 M.J. 287 (C.M.A.1992). Thus, for all

intents and purposes appellant conceded the two principal

threshold scientific hypotheses: (a) that cocaine appears in the

hair of users; and (b) that scientific analysis using MS/MS (or

even GC/MS) instruments can reliably and validly detect that

cocaine.

Perhaps the most important source of disagreement

between the two lay in the question of passive exposure to the

drug, that cocaine found in hair might be explained by other

than knowing ingestion. Thus, where the two sides part

company is over the final conclusion the government wished

the court to draw from Dr. Donnelly’s testimony—that

appellant wrongfully used cocaine.

To eliminate the passive exposure/contamination

hypothesis, Dr. Donnelly first washed the hair samples in a

methanol solution, then analyzed the wash for the - resence of

cocaine. It proved negative. This was a significant datum to

both experts, who agreed that if appellant had merely been

exposed to cocaine, but had not ingested it, or if his hair

sample had been adulterated, that it should have been revealed

in the wash. But Dr. Donnelly went farther. According to him,

cocaine manifests itself differently in hair than in urine.

Because the metabolite benzoylecgonine is a result of the

body’s hydrolysis of cocaine, one looks primarily for it, as

opposed to cocaine itself, in urine. By contrast, unmetabolized

cocaine is the dominant substance found in hair analysis. In

fact, Dr. Donnelly testified that a ratio of approximately 5—1

of cocaine to benzoylecgonine was strongly indicative of

actual ingestion of the drug. (FN7)

In short, the system worked as it was intended. If we

may put Daubert, Gipson, and MIL. R. Evip. 702 in the

37a

vernacular, the judge’s first responsibility is to filter from the

triers of fact “junk science.” Mass spectrometer analysis of

hair samples is accepted as scientifically reliable in the

relevant community of forensic chemistry, has been subjected

to peer review, is the subject of a growing body of

professional publications, studies, and monographs, and, most

important, can be both probative and helpful to the trier of

fact. In short, MS/MS hair analysis is a far cry from palmistry,

phrenology or chicken guts, and clears the pseudo-science

hurdle easily.

There was more than ample evidence to conclude that

the particular tests performed on appellant’s sample were

scientifically reliable and valid, certainly enough for the

military judge to permit testimony to that effect to be given to

the triers of fact. According to Dr. Donnelly, the FBI

laboratory had never reported a false positive. Having thus

passed the threshold of admissibility, the expert testimony

was tested, as it should be, in the crucible of trial advocacy,

through the presentation of contrary evidence, energetic cross-

examination, and careful instruction on the burden of proof.

Daubert, 509 U.S. at 596, 113 S.Ct. at 2798. Appellant’s

expert witness conceded, ultimately, that the tests were valid

in this case, or at least that there was cocaine in appellant’s

hair. He also agreed with Dr. Donnelly that, if cocaine were

present as the result of either passive exposure or adulteration

of the hair sample, he would have expected it to have shown

up in the methanol wash. The chain of custody of the hair

samples was sound, leaving little or no doubt that the hair

samples tested were appellant's.

That experts might dispute some particularities of the

testing protocol or suggest ways that it could have been

improved, or that different controls might be used, or that

SOFT might harbor policy concerns about the feasibility of

hair analysis for workplace testing, or deem it prudent to have

ee eee mm

38a

independent corroboration of hair analysis, (FN8) even

considered in the aggregate, are insufficient bases upon which

to exclude the results. A vigorous forensic dialogue between

both experts was aptly engaged before the triers of fact, who

ultimately decided that Dr. Goldberger’s reservations about

and disagreements with Dr. Donnelly’s conclusions were

insufficient to raise a reasonable doubt that appellant had used

cocaine. Thomas, 43 M.J. at 633. Thus, we hold the military

judge did not abuse his discretion in denying appellant’s

motion in limine and permitting qualitative and quantitative

analysis of appellant’s hair to go before the court members.

Legal, Factual Sufficiency of the Evidence

[5] [6] [7] Last, appellant challenges the legal and factual

sufficiency of the evidence supporting his conviction of both

charges. Legal sufficiency is measured by whether,

considering the evidence in a manner most favorable to the

prosecution, a reasonable fact finder could have found all the

essential elements of the offenses beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 2784,

61 L.Ed.2d 560 (1979). Factual sufficiency requires that we

be personally satisfied of the appellant’s guilt beyond a

reasonable doubt, allowing for the fact that we are

handicapped by the sterility of a written record. United States

v. Turner, 25 M.J. 324 (C.M.A.1987). Even using the least

generous view of the government’s evidence, we are

persuaded of appellant’s guilt beyond a reasonable doubt.

After exhaustive effort, appellant’s trial defense counsel

was unable to shake the chain of custody for the false urine

sample. And we need not speculate long as to the possible

motivation for appellant to submit a false sample. The

government was not obliged to prove how appellant did it, nor

did it have to physically observe the manner of its doifig.

Somebody switched the urine samples, and the chain of

—————————eeee

39a

custody leads inescapably to the one person who had the

motive to do so—appellant.

Turning to the question of cocaine use, the issue of

quantification also deserves comment. At trial, appellant’s

defense counsel challenged the absence of “cut-offs” in Dr.

Donnelty’s protocol. We must understand Department of

Defense “cut-offs” for what they are—scientifically derived,

policy-driven figures aimed at minimizing the danger of

conviction based upon passive inhalation or some otherwise

innocent exposure to a given substance. (FN9) They are not

aimed, nor should they be employed, to frustrate the

truthfinding process of trial, nor do they substitute for a

reasoned application of the Military Rules of Evidence. See

United States v. Johnston, 41 M.J. 13, 16 (C.M.A.1994)

(overruling United States v. Arguello, 29 M.J. 198

(C.M.A.1989)). The court in this case benefitted from the

learned testimony of experts on both sides of the question.

Significantly, despite Dr. Goldberger’s criticism of Dr.

Donnelly’s quantification protocol, he agreed that it was not

so defective as to impeach the ultimate conclusion that

cocaine appeared in appellant’s hair in such fashion and

quantity as to impart great confidence that it originated with

ingestion. (FN10) Article 112a of the UCMJ does not

distinguish between frequent use, nor even one-time use of

cocaine. The use of cocaine is prohibited, period.

Like the court members, we are impressed with the rigor,

precision, and science of the tandem stage quadrapole mass

spectrometry analysis of appellant’s hair. There was expert

testimony that the presence of cocaine in the hair shafts was

metabolically explained by ingestion, and that it did not occur

as a natural phenomenon. Appellant's own witness conceded

that there was cocaine in the hair sample tested, and Dr.

Donnelly testified, in response to a question from the court-

members, that he was unequ'vocally certain that the hair he

40a

tested was the sample given him by the AFOSI. In turn, the

chain of custody established that sample to be appellant ‘s.

Nor, as appellant seems to suggest, should we ignore the

transparent purpose behind appellant’s substitution of his

urine specimen on November 15, 1993. Accordingly, the

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

sentence is appropriate, and the same are hereby

AFFIRMED.

Senior Judges PEARSON and SCHREIER concur.

FN1. Robichaud’s decorousness and misplaced trust in

appellant earned him a letter of reprimand. Commendably, he

was honest about his failure throughout the investigation and

the trial. It is heartening, therefore, that he recovered and was

subsequently promoted to master sergeant.

FN2. Unlike urinalysis, where principally metabolized

cocaine (benzoylecgonine) is excreted in urine,

unmetabolized cocaine is typically found in hair in five times

the amount of its metabolite. According to the testimony of

Dr. Donnelly, the government’s expert, the 5—1 ratio is typical

of actual ingestion, and indeed, “almost precludes any

possibility of external contamination.” External contamination

would yield a much higher ratio. This datum proved

significant in the trial itself, as appellant repeatedly suggested

that the hair sample might have become contaminated through

some kind of passive exposure.

FN3. We note, in this respect, that at the time SA Toni

was completing the affidavit, he did not know how long

appellant’s hair was. Indeed, he was unsure as to its length

even after it was cut. A precise measurement is simply not in

the record. Appellant is an African-American, and everyone

who handled the hair had some difficulty getting an accurate

measurement of its length because of its tendency to curl

4la

tightly back on itself. We accept therefore, the estimate of Dr.

Donnelly that the hair was 1/2 inch long.

FN4. For ease in reference, we will refer to the Court of

Appeals for the Armed Forces’ opinion as Nimmer II.

FNS. 151 nanograms per milliliter (ng/m ), only 1 ng/ml

above the Department of Defense cut-off level for reported

positive using the radioimmunoassay (screening) test (RIA)

and 51 ng/ml above the cut-off for the gas

chromatography/mass spectrometry (GC MS). Nimmer II/, 43

M.J. at 253.

FN6. MS/MS represents a quantum advance over

GC/MS, the system used in most urinalysis cases, and is quite

expensive, costing nearly $500,000 each, in comparison to

$50,000 to $75,000 for a GC/MS. Very few laboratories in the

world have such a machine. The defense expert acknowledged

that “MS/MS is a very acceptable tool and it’s a fascinating

tool for drug testing;” that the FBI was “lucky” to have such a

machine.

*653-FN7. The ratio for appellant was approximately 6

to 1, a figure Dr. Donnelly concluded was consistent with

actual ingestion and not passive exposure. The comparatively

minute concentration of benzoylecgonine (2.7 ng/ mg),

detected only by the most-sophisticated machine available to

science, may explain the experts’ reluctance to assert that hair

analysis, particularly where only the metabolite is screened, is

sufficiently sensitive to rule out a one-time use. Dr.

Goldberger was less confident in the actual quantification of

Dr. Donnelly’s results and did not go along with Dr.

Donnelly’s conclusion that cocaine in the amounts found in

appellant’s hair was more consistent with regular abuse as

opposed to a single instance.

FN8. According to Dr. Goldberger, the consensus of

SOFT was that hair analysis drug testing was most

42a

prudentially used as corroborative of some other evidence of

illicit drug use. Without accepting that policy admonition for

anything more than what it is, we observe that appellant

provided ample corroboration in his submission of the phony

urinalysis specimen.

FN9. A good analogy would be the legislative

decision of various states as to what constitutes legal

intoxication. That an individual might have .09% blood

alcohol content, and thereby escape a DUI conviction in a

state which establishes that .10% blood alcohol content is

presumptive for legal intoxication, does not mean that he

or she is not “drunk,” much less does it mean that he or

she did not have anything to drink. Rather, the figure

represents a policy judgment, accommodating the variant

ability of humans to tolerate alcohol, that .10% represents

too much alcohol to drive. The armed forces’ zero-

tolerance of use of controlled substances means that

evidence of knowing ingestion of any amount of such a

substance has evidentiary value. As Chief Judge Cox put

it, “It is a recognized scientific principle that a sample is

positive if it contains any trace of the tested substance,

whether that be one kilogram (1000 grams), one nanogram

(one billionth of a gram), or a picogram (one trillionth of a

gram). It is negative if it contains zero or no trace

whatsoever of the tested substance.” (Johnston, 41 M.J. at

17 (Cox, J. concurring).

FN10. It should be recalled that the quantification of

cocaine in hair analysis uses a relationship established by a

ratio of mass of cocaine (nanograms) to mass of hair

(milligrams). Urinalysis results are expressed by a ratio of

mass of cocaine metabolite (nanograms) to volume

(milliliters) of urine. It would be unreasonable to expect that

these figures would have much relationship to each other. It

is also important to note that use of ratios, in conjunction

43a

with the use of deuterated isotopes of cocaine used in Dr.

Donnelly’s protocol as a positive control, gives a reasonable

mathematical assurance of quantitative accuracy.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.