IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

Transcription

1 IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES UNITED STATES, Appellee, v. Staff Sergeant (E-5) HARLEY LUSK, USAF, Appellant. BRIEF OF AMICUS CURIAE GREG YOUNG IN SUPPORT OF APPELLANT USCA Dkt. No /AF Crim. App. S31624 GREG YOUNG Supervised Law Student Stanford Law School GEORGE FISHER Amicus Counsel of Record Judge John Crown Professor of Law Stanford Law School Crown Quadrangle Stanford, CA (650)

2 Index of Brief Table of Authorities... iv Specified Issue... 1 Statement of Statutory Jurisdiction... 1 Statement of the Case... 1 Statement of the Facts... 2 Summary of Argument... 2 Argument... 4 Standard of Review... 4 A. Dr. Smith s Testimony Regarding the AFIP Drug Test Result Is Not Somehow Exempt from the Confrontation Clause s Prohibition against Testimonial Hearsay MRE 703 Does Not Provide an Exception to the Confrontation Clause Issues of Authentication Are Not Exempt from the Confrontation Clause Dr. Smith s Testimony Is Not Exempt from the Confrontation Clause Simply Because the Underlying Report Was Not Admitted in This Case B. Dr. Smith s Testimony Regarding the AFIP Drug Test Result Violated the Confrontation Clause by Introducing Testimonial Hearsay against Appellant The Legal Standard For Testimonial Hearsay Dr. Smith s Statements Regarding the AFIP Drug Test Result Were Hearsay a. Dr. Smith s Statements Regarding the AFIP Drug Test Result Were Not Based on His Own Direct Personal Knowledge of the Test b. Dr. Smith s Statements Regarding the AFIP Drug Test Result Did Not Consist Solely of His Own Conclusions ii

3 c. The Prosecution Offered Dr. Smith s Statements for Their Truth The Statements Dr. Smith Repeated Regarding the AFIP Drug Test Result Were Testimonial C. The Military Judge s Error in Admitting Dr. Smith s Testimony Regarding the AFIP Drug Test Result Was Not Harmless Beyond a Reasonable Doubt The Legal Standard for Harmless Error Dr. Smith s Testimony Regarding the AFIP Drug Test Result Contributed to Appellant s Conviction Beyond a Reasonable Doubt Conclusion iii

4 Table of Authorities Constitutional Provisions Sixth Amendment to the United States Constitution... passim Federal Statutes 10 U.S.C. 866, Article 66, UCMJ U.S.C. 867, Article 67, UCMJ... 1 U.S. Supreme Court Bruton v. United States, 391 U.S. 123 (1968)... 5 Chapman v. California, 386 U.S. 18 (1967)... 22, 23, 29 Crawford v. Washington, 541 U.S. 36 (2004)... passim Davis v. Alaska, 415 U.S. 308 (1974)... 5 Davis v. Washington, 547 U.S. 813 (2006)... 10, 11 Delaware v. Van Arsdall, 475 U.S. 673 (1986)... 5 Holmes v. South Carolina, 547 U.S. 319 (2006)... 5 Melendez-Diaz v. Massachusetts, 129 S. Ct (2009)... passim U.S. Court of Appeals for the Armed Forces United States v. Blazier (Blazier I), 68 M.J. 439 (C.A.A.F. 2010)... 4, 13 United States v. Blazier (Blazier II), 69 M.J. 218 (C.A.A.F. 2010)... passim United States v. Clayton, 67 M.J. 283 (C.A.A.F. 2009)... 4 United States v. Crudup, 67 M.J. 92 (C.A.A.F. 2008)... 4 United States v. Diaz, 59 M.J. 79 (C.A.A.F. 2003) United States v. Gardinier, 67 M.J. 304 (C.A.A.F. 2009) Other Courts People v. Holowko, 486 N.E.2d 877 (Ill. 1985) United States v. Darden, 656 F. Supp. 2d 560 (D. Md. 2009)... 7, 8, 9 United States v. Hamilton, 413 F.3d 1138 (10th Cir. 2005) United States v. Lamons, 532 F.3d 1251 (11th Cir. 2008) United States v. Mejia, 545 F.3d 179 (2d Cir. 2008)... 9 United States v. Moon, 512 F.3d 359 (7th Cir. 2008)... 7 United States v. Washington, 498 F.3d 225 (4th Cir. 2007) 7, 8, 9 Rules of Evidence Del. R. Evid Fed. R. Evid Mil. R. Evid Mil. R. Evid , 4, 5, 6 Wash. R. Evid. 804(b)(3)... 5 Court Rules U.S. Court of Appeals for the Armed Forces Rule iv

5 SPECIFIED ISSUE I. WHETHER THE MILITARY JUDGE ERRED IN ADMITTING DR. SMITH S TESTIMONY OF THE AFIP DRUG TEST RESULT UNDER MRE 703 IN VIOLATION OF THE CONFRONTATION CLAUSE. STATEMENT OF STATUTORY JURISDICTION The Air Force Court of Criminal Appeals reviewed this case pursuant to Article 66(c), UCMJ. This Court has jurisdiction to review this case pursuant to Article 67, UCMJ. STATEMENT OF THE CASE 1 On 8-10 December 2008, SSgt Lusk was tried by a special court-martial composed of officer members at Holloman Air Force Base, New Mexico (NM). He was charged with one specification of wrongfully using cocaine in violation of Article 112a, and, contrary to his plea, was found guilty of the charge. SSgt Lusk was sentenced to a reduction to the grade of E-1 and to be discharged with a bad conduct discharge. Joint Appendix (hereinafter JA) at 395. On 17 March 2009, the convening authority approved the sentence as adjudged and, 1 This statement of the case is taken from Appellant s Brief in Support of Granted Issue, pages

6 except for the bad-conduct discharge, ordered execution of the sentence. On 14 October 2010, the AFCCA issued its opinion affirming the findings and the sentence. JA 1. The Appellate Records Branch notified the Appellate Defense Division that a copy of the court s decision was deposited in the United States mail by first-class certified mail to the last address provided by SSgt Lusk on 14 October This Honorable Court granted review on 26 January 2011, and specified an additional issue on 28 January STATEMENT OF THE FACTS In accordance with U.S.C.A.A.F. Rule 24, amicus curiae Greg Young adopts Appellant s statement of the facts as set forth in Appellant s Brief in Support of Granted Issue. Additional facts will be added where appropriate. SUMMARY OF ARGUMENT I. The military judge erred in admitting Dr. Smith s rebuttal testimony regarding the AFIP drug test result under MRE 703 in violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution. First, Dr. Smith s rebuttal testimony regarding the AFIP drug test result is not exempted from the application of the Confrontation Clause either (1) 2

7 because it was ruled admissible under MRE 703, or (2) because it relates to authentication of the drug testing report, or (3) because the underlying report was not admitted in this case. Dr. Smith s statements could not have been made from direct personal knowledge of the test, nor could he have been stating only his own conclusions based on machine-generated data. Dr. Smith simply repeated out-of-court statements of declarants who did not appear for confrontation at trial and whose unavailability and prior cross-examination were not shown. These out-of-court statements were offered in evidence to prove what they asserted and were therefore hearsay. They were also testimonial in that they were made with the knowledge that they would be used by the government for prosecution purposes at trial. The military judge erred in permitting Dr. Smith to repeat testimonial hearsay against Appellant in violation of the Confrontation Clause. Furthermore, this error was not harmless. The erroneously admitted testimony, the members questions regarding that testimony, the military judge s instructions, and trial counsel s closing argument effectively foreclosed one of only two possible theories of innocence. Under the circumstances of this case, it cannot be believed beyond a reasonable doubt that the military judge s error did not contribute to Appellant s conviction. 3

8 ARGUMENT I. THE MILITARY JUDGE ERRED IN ADMITTING DR. SMITH S TESTIMONY ON THE AFIP DRUG TEST RESULT UNDER MRE 703 IN VIOLATION OF THE CONFRONTATION CLAUSE Standard of Review A trial judge s findings of fact are reviewed under the clearly erroneous standard, and conclusions of law are reviewed de novo. United States v. Clayton, 67 M.J. 283, 286 (C.A.A.F. 2009). Whether particular evidence constitutes testimonial hearsay is a question of law that is reviewed de novo. United States v. Blazier (Blazier I), 68 M.J. 439, (C.A.A.F. 2010). And [w]hether a constitutional error in admitting evidence is harmless beyond a reasonable doubt is a question of law that [is] review[ed] de novo. United States v. Crudup, 67 M.J. 92, 94 (C.A.A.F. 2008). A. Dr. Smith s Testimony Regarding the AFIP Drug Test Result Is Not Somehow Exempt from the Confrontation Clause s Prohibition against Testimonial Hearsay 1. MRE 703 Does Not Provide an Exception to the Confrontation Clause At trial, the military judge admitted Dr. Smith s testimony regarding the AFIP test result as rebuttal evidence under MRE JA Admissibility under the Confrontation Clause, 2 The military judge apparently applied the balancing test of MRE 403, rather than MRE 703, to determine the ultimate 4

9 however, is a completely separate question from admissibility under MRE 703. Rules of evidence cannot nullify the constitutional protection afforded by the Confrontation Clause. See, e.g., Holmes v. South Carolina, 547 U.S. 319, (2006) (citing numerous examples); Crawford v. Washington, 541 U.S. 36, 40, (2004) (admission under Wash. R. Evid. 804(b)(3) of tape-recorded interrogation of defendant s non-testifying wife violated the Confrontation Clause); Delaware v. Van Arsdall, 475 U.S. 673, (1986) (trial judge s exclusion of evidence under Del. R. Evid. 403 (nearly identical to Fed. R. Evid. 403) violated the Confrontation Clause); Davis v. Alaska, 415 U.S. 308 (1974) (Alaska rule prohibiting introduction of juvenile s history of delinquency or probation status impermissibly limited defendants right to confront witness); Bruton v. United States, 391 U.S. 123 (1968) (admission of codefendant s confession implicating the defendant violated admissibility of testimony by Dr. Smith regarding the AFIP test result. See JA 334. In ruling it admissible, however, he stated, I will allow Dr. Smith to testify in a limited fashion that is part of his reaching his conclusions about the reliability of the lab and the report that he did consider a confirmatory test that was conducted by AFIP and that was part of the basis for his opinion. Again, that falls within JA

10 defendant s rights under the Confrontation Clause, even with limiting instruction). In Crawford, the Supreme Court stated: [W]e once again reject the view that the Confrontation Clause applies of its own force only to in-court testimony, and that its application to out-of-court statements introduced at trial depends upon the law of Evidence for the time being. Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices. 541 U.S. at [internal quotation marks and citations omitted]. In an ironic aside that applies equally to this case, the Court continued, Raleigh was, after all, perfectly free to confront those who read Cobham's confession in court. Id. at 51. Rules of evidence may govern non-testimonial hearsay, but [w]here testimonial evidence is at issue... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. Id. at 68. Therefore, Dr. Smith s repetition of testimonial hearsay violated the Confrontation Clause, regardless of whether that testimony would have been admissible as rebuttal evidence under MRE Issues of Authentication Are Not Exempt from the Confrontation Clause The government may contend that there was no Confrontation Clause violation in this case because questions regarding the 6

11 reliability of machine-generated information go to authentication of the test result and thus are not governed by the Confrontation Clause. This argument finds support in United States v. Washington, 498 F.3d 225 (4th Cir. 2007), a pre- Melendez-Diaz case. In Washington, on facts very similar to those in this case, the court held that the Confrontation Clause was not violated when an expert witness, who had no personal knowledge of the tests, interpreted raw data from testing machines and testified that the defendant/appellant s blood contained PCP and alcohol. 498 F.3d at , 232; accord United States v. Moon, 512 F.3d 359 (7th Cir. 2008); United States v. Darden, 656 F. Supp. 2d 560 (D. Md. 2009). The Washington court explained, Any concerns about the reliability of such machine-generated information is [sic] addressed through the process of authentication not by hearsay or Confrontation Clause analysis. 498 F.3d at 231; see also Darden, 656 F. Supp. 2d at 564. The court specifically noted that such authentication might include that the machine and its functions are reliable, that it was correctly adjusted or calibrated, and... that the blood put into the machine was the defendant s. Washington, 498 F.3d at 231 [internal parentheses omitted]. Darden dealt with a factual situation very similar to that in Washington and distinguished Melendez-Diaz, 129 S. Ct (2009), on the grounds that Melendez-Diaz dealt with 7

12 written statements admitted without the testimony of anyone at all. 656 F. Supp. 2d at 563. The court then relied on Washington and a footnote in Melendez-Diaz to find that whether the lab analysts actions could have affected the reliability of the machine-generated test results was a question of authentication. 3 Id. at 564. The Washington-based argument above avoids confusing machine-generated data with human-generated, machine-transmitted statements as discussed infra Part I.B.2.b. Yet it commits the error of presuming that issues of authentication are somehow completely distinct from issues of confrontation. What this distinction could mean in practice is unclear. How could the prosecution authenticate a drug test without producing a witness with personal knowledge of it for confrontation? In any case, Washington and Darden are inconsistent with the reasoning and the holding of Melendez-Diaz. There, the Supreme Court explained that confrontation will enable the defendant to test 3 The Darden court seems to have taken the cited footnote (Melendez-Diaz, 129 S. Ct. at 2532 n.1) out of context. The Supreme Court had just explicitly held that the lab technicians were subject to confrontation. Melendez-Diaz, 129 S. Ct. at The footnote clarified that this holding did not require the prosecution to call every person in the chain of custody. Id. at 2532 n.1. Even so, [i]t is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live. Id. [emphasis in original]. 8

13 the analyst s honesty, proficiency, and methodology. 129 S. Ct. at The Court noted that analysts sometimes reported results of tests that were not performed. Id. at Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Id. at The role that the Supreme Court envisions for confrontation in Melendez-Diaz seems indistinguishable from the role of authentication in Washington. Furthermore, it is difficult to understand how confrontation of an expert with no personal knowledge of the tests that occurred could reliably detect fraud or incompetence in the analysts. The authentication-confrontation distinction in Washington and Darden is also at odds with this Court s position in United States v. Blazier (Blazier II), 69 M.J. 218 (C.A.A.F. 2010). 4 The Court noted that neither the rules of evidence nor the 4 Blazier II does state that portions of the drug testing report at issue there were machine-generated and that the expert could draw his conclusions from those without implicating the Confrontation Clause. 69 M.J. at It is not clear from the opinion if the machine-generated documents or Dr. Papa s testimony interpreting them involved the sort of hidden testimonial hearsay discussed supra Part I.B.2.b. assertions (in the form of sample identification information) that the specimen tested was in fact the one at issue. This Court s reliance on United States v. Mejia, 545 F.3d 179, (2d Cir. 2008), however, suggests that the Court was sensitive to the possibility that the expert would go beyond his role as an expert witness (interpreting the machine-generated data for the jury) by simply repeating testimonial statements of the analysts (such as the assertion that the machine-generated results pertained to Blazier s specimen). 9

14 Confrontation Clause permit an expert witness to act as a conduit for repeating testimonial hearsay. Id. at 225 [emphasis in original]. This Court held there that an expert witness s statements regarding what tests were conducted, what substances were detected, and the nanogram levels of each substance detected constituted testimonial hearsay. Id. at 226. The Court emphasized that the Confrontation Clause is satisfied only if the specific declarant who made the testimonial statement either appears at trial and is subject to cross-examination or is unavailable and the defendant had a previous opportunity for cross-examination regarding the statement. Id. at Dr. Smith s Testimony Is Not Exempt from the Confrontation Clause Simply Because the Underlying Report Was Not Admitted in This Case The government may argue that Dr. Smith s testimony did not violate the Confrontation Clause because, unlike Blazier II and Melendez-Diaz, the underlying report was never admitted. This argument fails because the Confrontation Clause does not distinguish between oral and written hearsay testimony. As the Supreme Court pointed out in Davis v. Washington, we do not think it conceivable that the protections of the Confrontation Clause can readily be evaded by having a note-taking policeman recite the unsworn hearsay testimony of the declarant, instead of having the declarant sign a deposition. Davis v. 10

15 Washington, 547 U.S. 813, 826 (2006) [emphasis in original]. The note-taking policeman might well have some personal knowledge of facts contained in the declarant s statement. He would, at the very least, have personal knowledge of the circumstances in which the out-of-court statement was made and would therefore be in a position to help the court evaluate the declarant s truthfulness and reliability. The note-taking policeman thus represents the best available substitute for the declarant. If he may not recite hearsay testimony against the defendant, neither may an expert who has no personal knowledge of the underlying facts or the circumstances in which the declarant s statement was made. This Court made that principle clear in Blazier II when it held that both the underlying drug testing report and the expert witness s testimony regarding that report separately violated the Confrontation Clause. 69 M.J. at 226. B. Dr. Smith s Testimony Regarding the AFIP Drug Test Result Violated the Confrontation Clause by Introducing Testimonial Hearsay against Appellant In this case, Dr. Smith s testimony repeated testimonial out-of-court statements, which were offered by the prosecution to prove what they asserted. The declarants of those statements did not appear at the trial, nor were they shown to have been unavailable and subject to prior cross-examination regarding 11

16 their statements. Therefore, his testimony violated the Confrontation Clause. 1. The Legal Standard For Testimonial Hearsay The Sixth Amendment to the U.S. Constitution provides that no testimonial hearsay may be admitted against a criminal defendant unless (1) the witness is unavailable, and (2) the witness was subject to prior cross-examination. Blazier II, 69 M.J. at 222, citing Crawford, 541 U.S. at Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Melendez-Diaz v. Massachusetts, 129 S. Ct. at 2531, quoting Crawford, 541 U.S. at But [t]he Clause... does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. Crawford, 541 U.S. at 59 n.9. In Melendez-Diaz, the Supreme Court considered whether certificates stating that a seized substance had been tested and found to contain cocaine, introduced against the petitioner at 12

17 trial, were testimonial statements. 129 S. Ct. at Reasoning that the certificates were functionally equivalent to affidavits and were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial, the Court concluded that such certificates fell within the core class of testimonial statements defined above. Id. at In Blazier I, this Court held that cover memoranda which summarize and clearly set forth the accusation that certain substances were confirmed present in Appellant's urine at concentrations above the DOD cutoff level are clearly testimonial. 68 M.J. at 443. [T]he evidentiary purpose of those memoranda was apparent, as they not only summarize and digest voluminous data but were generated in direct response to a request from the command indicating they were needed for use at court-martial. Id. In Blazier II, this Court held that an expert witness who was not personally involved in the testing repeated testimonial hearsay when he convey[ed] the statements contained in those cover memoranda including those concerning what tests were conducted, what substances were detected, and the nanogram levels of each substance detected M.J. at 226. The introduction of this testimonial hearsay through the expert witness violated the Confrontation Clause. Id. 13

18 2. Dr. Smith s Statements Regarding the AFIP Drug Test Result Were Hearsay Dr. Smith s statements on rebuttal regarding the AFIP drug test result were hearsay for the following reasons: (1) He could not have made them based on direct personal knowledge of the test. (2) He also could not have been giving solely his own conclusions based on non-hearsay machine-generated data. (3) Therefore, Dr. Smith was repeating out-of-court statements made by others. (4) The prosecution offered these statements for their truth. At Appellant s trial, the military judge, over defense counsel s objection, permitted Dr. Smith to testify on direct examination as follows: A. The Armed Forces Institute of Pathology where I work also tested a portion of that [Appellant s] specimen. Q. And do you recall what was the nature [of] that test? A. It was a confirmation test, it was a GCMS test. Q. And you recall what the result was? A. Yes, it showed the presence of benzoylecgonine [hereinafter BZE]. JA a. Dr. Smith s Statements Regarding the AFIP Drug Test Result Were Not Based on His Own Direct Personal Knowledge of the Test. Dr. Smith, like the expert in Blazier II, was not personally involved in the testing of Appellant s specimen by 14

19 AFIP. See JA , 553, 556. Dr. Smith thus made at least four explicit statements which could not have been based on direct personal knowledge: (1) that AFIP had conducted a test, (2) that the test had been conducted on the urine specimen at issue in the case Appellant s, (3) that the nature of the test was a confirmatory GCMS test, and (4) that the test confirmed the presence of BZE in Appellant s urine. b. Dr. Smith s Statements Regarding the AFIP Drug Test Result Did Not Consist Solely of His Own Conclusions. The government may argue that Dr. Smith was not repeating others out-of-court statements regarding the AFIP test result because his testimony consisted solely of his own conclusions. This argument might proceed in this way: (1) There were portions of the report that were purely machine-generated data and therefore not testimonial or hearsay. (2) Because these portions of the report were not testimonial hearsay, they could have been admitted in evidence without violating the Confrontation Clause. (3) The information contained in these portions of the report would have been sufficient to allow Dr. Smith to draw the conclusion that AFIP had performed a test of Appellant s urine by GCMS and detected BZE. (4) Therefore, Dr. Smith s testimony about the AFIP test was not hearsay, but his own conclusion. (5) Because Dr. Smith testified only as to his 15

20 own conclusion, his testimony could not have violated the Confrontation Clause. This argument fails because it uses an inaccurate definition of machine-generated data. As this Court noted in Blazier II, it is well-settled that under both the Confrontation Clause and the rules of evidence, machinegenerated data and printouts are not statements and thus not hearsay machines are not declarants and such data is therefore not testimonial. 69 M.J. at 224. However, information does not automatically qualify as non-hearsay machine-generated data simply because it is printed by a machine, because a machine may serve as a repository or conduit for a human s statements. See People v. Holowko, 486 N.E.2d 877, (Ill. 1985) (distinguishing between computer-generated and computer-stored data). To qualify as non-hearsay machine-generated data, the underlying information reported by the print-out must be generated automatically by the machine s internal processes without human intervention. See United States v. Lamons, 532 F.3d 1251, , 1264 n.23 (11th Cir. 2008); accord United States v. Hamilton, 413 F.3d 1138, 1142 (10th Cir. 2005). In this case, the documents contained both machinegenerated data and human-generated statements. On direct examination, Dr. Smith testified that Appellant s urine specimen was identified in the AFDTL report with Appellant s Social 16

21 Security number and a laboratory accession number (LAN) of B JA 132. In a memorandum dated 3 November 2008, included in the AFIP report, trial counsel requested that the AFDTL send an aliquot of the specimen identified by LAN B to AFIP for retesting. JA 554. In a memorandum dated 1 December 2008, also included in the AFIP report, trial counsel requested that AFIP test and prepare a drug testing report on the specimen identified by LAN B JA 551. The form labeled AFIP/DIVISION OF FORENSIC TOXICOLOGY TOXICOLOGICAL REQUEST FORM identifies the specimen, under the Name of Patient Field in part as B JA 553. The CHAIN OF CUSTODY (CC) section of this form indicates that an aliquot of specimen B was shipped to AFIP on 13 November 2008 and received by AFIP on 17 November JA 553. In the top right corner, the form is stamped DFT# JA 553. The AFIP memorandum reporting the results of the retest, under Patient Identification, identifies the specimen tested as Toxicology Accession # JA 552. DFT# is also stamped on the Toxicology Accessioning Worksheet, which indicates that urine had leaked during shipping. JA 555. On the next page, labeled QUANTITATION CHAIN OF CUSTODY, under Patient Sample Information, the sample tested is identified in the TOXNO column as IN. JA 556. At the bottom of that same page there is another section labeled CONTROL(S) AND 17

22 STANDARD(S) WITH TOXNO: JA 556. Twelve pages of apparently machine-generated print-outs follow. JA The first is titled 5973N Autotune and appears to record various settings on the machine. JA 557. Each of the other eleven pages has a field at the top called either Sample Information: or Sample Name: and a field that says Operator: dickson. JA For the first eight of these eleven pages, this field contains the following: LOW CONTROL, CALIBRATOR, Calibrator, HIGH CONTROL, NEGATIVE CONTROL, C4 URINE CONTROL, C4 urine Control, and ETAC. JA For the last three of the eleven pages, this field contains the following entries, respectively: IN URINE 0.30 ML 1:10 DIL; IN URINE 1.5 ML 1:2 DIL; and IN URINE 1.5 ml 1:2 dil. JA Dr. Smith s testimony made it clear that GCMS machine cannot, without human input, determine whose sample it is testing. Correctly matching results with specimens instead depends upon the operator. JA And the GCMS machine presumably cannot automatically detect who operates it. Dr. Smith identified the last page of the AFIP report (JA 568) as showing the results of the test of Appellant s specimen. JA According to his own testimony, he could not have 5 The following exchange took place on rebuttal crossexamination of Dr. Smith: 18

23 determined whose specimen was tested by looking at the machinegenerated graphs those could only told him what was in the specimen tested. See JA 377. To determine that those results Q. [By defense counsel]... Could you put your thumb on Page 11 and also look at page 19? A. I only have 18 pages. Q. Well, maybe it is page 18, excuse me. DC: May I approach the witness, Your Honor to make sure that he has all the pages? MJ: You may. WIT: It does say 18 of 18. DC: May I retrieve what you have there, sir? [The defense counsel compared both copies.] [brackets in original] JA 350. (The AFIP testing report as reproduced in the Joint Appendix contains only eighteen pages, but they are numbered 002 through 019 in the bottom center of each page. JA ) After this exchange, defense counsel proceeded with his cross examination without further discussion of the correct page number, indicating that he was satisfied that page 18 was the correct page. See JA He repeatedly asked Dr. Smith to compare page 10 (JA 560), previously identified by Dr. Smith as a graph that shows the expected profile if BZE is present, with the member s sample. JA Defense counsel referred to three different peaks, labeled 57, 224, and 105, that appeared on the bottom graphs on both page 10 and the member s sample. JA Graphs showing such peaks appear only on pages 10, 14, and 18 of the AFIP report. JA 560, 564, 568. Defense counsel explicitly referred to the values of each of these three peaks for the member s sample as over 120,000, just over 30,000, and over 40,000 respectively. JA These values correspond only to the graph shown on page 18. See JA 568. It is therefore clear that Dr. Smith identified page 18 of the report (JA 568) as the page showing the results of the test of Appellant s urine. 19

24 corresponded to Appellant s urine specimen, Dr. Smith must have relied upon the information in the Sample Name field, where Appellant s Toxicology Accession Number appeared. That information was not machine-generated; rather, the GCMS machine served as a conduit to transfer that information from the operator to the report. The characters Sample Name: IN Urine 1.5mL 1:2 dil which appeared at the top of page 18 of the AFIP report (JA 568) were the functional equivalent of an affidavit by the analyst asserting (1) that a test had been conducted on Appellant s urine specimen and (2) that the machine-generated graphs on that page resulted from that test. Without that information, Dr. Smith could not have concluded that AFIP had conducted a test of Appellant s urine specimen. Without that information, in turn, he could not have drawn any conclusion regarding what type of test had been conducted or what the results had been. It follows that Dr. Smith must have repeated the out-of-court statements of the lab analysts. c. The Prosecution Offered Dr. Smith s Statements for Their Truth. The statements that Dr. Smith repeated regarding the AFIP drug test result were offered for their truth. It makes no sense to say that the prosecution offered them, not for their truth, but to show the basis for Dr. Smith s opinion. If the statements were not true if AFIP had not in fact conducted a 20

25 test of Appellant s urine that showed the presence of BZE then Dr. Smith had nothing on which to base his opinion. Dr. Smith made this clear when he testified that, in forming his opinion that the AFDTL drug testing report was reliable, he relied on the accuracy of the AFIP drug test report: No, I don t [have concerns about the reliability of the AFIP confirmatory test result] because when the analyst signs on the document they are essentially making a statement that they followed the operating procedure.... I am relying upon both that and the fact that our analysts, you know, have in the past followed the operating procedure. JA The Statements Dr. Smith Repeated Regarding the AFIP Drug Test Result Were Testimonial. Both Blazier II and Melendez-Diaz make it clear that the statements regarding the AFIP drug testing report were testimonial and violated the Confrontation Clause. See 69 M.J. at 226; 129 S. Ct. at Two of the statements the nature of the test and the substance detected exactly parallel those by the expert witness held to be testimonial in Blazier II. 69 M.J. at 226. All four statements (1) that a test had been conducted, (2) that the specimen tested was the one at issue, (3) that the test took a certain form, and (4) that a substance was detected were declarations or affirmations made for the purpose of establishing or proving some fact. See Crawford, 541 U.S. at 51. These statements went directly to proving that 21

26 Appellant s urine contained BZE, which went directly to his guilt or innocence. These statements were made formally, by and to government officers, for use in prosecution. See Crawford, 541 U.S. at 51; Melendez-Diaz, 129 S. Ct. at While more cleverly camouflaged among the accompanying machine-generated data, these statements were practically identical to those held to be testimonial in Melendez-Diaz. 129 S. Ct. at These statements were also formalized in extrajudicial pre-trial materials similar to the affidavits at issue there. See id. C. The Military Judge s Error in Admitting Dr. Smith s Testimony Regarding the AFIP Drug Test Result Was Not Harmless Beyond a Reasonable Doubt. 1. The Legal Standard for Harmless Error. Evidence admitted in violation of the Confrontation Clause is reviewed under the harmless error test of Chapman v. California, 386 U.S. 18 (1967). United States v. Gardinier, 67 M.J. 304, 306 (C.A.A.F. 2009). In assessing harmlessness in the constitutional context, the question is not whether the evidence is legally sufficient to uphold [Appellant s] conviction without the erroneously admitted evidence. Id. Rather, the question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. Id., quoting Chapman, 386 U.S. at 23 [internal quotation marks omitted]. The burden is on the beneficiary of a constitutional error to prove beyond a 22

27 reasonable doubt that the error complained of did not contribute to the verdict obtained. Chapman, 386 U.S. at 24. This determination is made on the basis of the entire record, and its resolution will vary depending on the facts and particulars of the individual case. Blazier II, 69 M.J. at Dr. Smith s Testimony Regarding the AFIP Drug Test Result Contributed to Appellant s Conviction Beyond a Reasonable Doubt. In this case, the military judge s error in admitting testimonial hearsay by Dr. Smith regarding the AFIP test violated the Confrontation Clause. This error cannot be deemed harmless. At trial, the defense raised two theories: (1) that no ingestion had occurred, hence the drug test was mistaken (see, e.g., JA , ) and, in the alternative, (2) that any ingestion was innocent (see, e.g., JA 156, , , ). In support of the no-ingestion theory, trial defense counsel extensively attacked the reliability of AFDTL, questioning [Dr. Smith] on multiple discrepancies documented by AFDTL as well as inspections conducted by AFIP. JA 3; see also JA The AFCCA below reasoned that, because trial defense counsel could argue to the jury that a contamination error at AFDTL also would have infected the test results at AFIP, admission of the AFIP result did not prejudice the defense s theory of no ingestion. JA 6. This conclusion is mistaken. 23

28 While contamination of the entire urine specimen would have this result, contamination in pouring an individual sample for testing would not necessarily affect future samples. Thus, a confirmatory test by AFIP would significantly decrease the probability that the positive result from the AFDTL was the result of sample contamination. Furthermore, sample contamination is not the only possible way in which the AFDTL could have returned a false positive for Appellant. On crossexamination, Dr. Smith admitted that sampling tubes were sometimes mislabeled or accidentally switched during testing, potentially leading to a misidentification of the service member whose urine had tested positive. JA Misidentification of the original urine sample at collection was unlikely, given the number of people involved and the fact that Appellant himself was asked to verify that the label on his bottle was correct. See JA 46-55, The probability of a mistake would have been much higher when a single lab technician was pouring, labeling, and handling multiple samples. Admission of the AFIP confirmatory test therefore undermined the possibility that Appellant s positive test result from AFDTL resulted from a switched or mislabeled test sample. Admission of the AFIP result also undermined the possibility that Appellant s positive test result from AFDTL stemmed from some other type of mishandling, improper testing procedures, or machine 24

29 malfunctions at AFDTL. Given the extensive evidence regarding the integrity of the urine collection process (see JA 46-61, 88-94), the defense theory of no ingestion rested almost entirely on the possibility of mishandling within the AFDTL. Admission of the AFIP test practically foreclosed this theory to the defense. Nor is this a case in which there is substantial other evidence regarding Appellant s guilt or innocence. Until the erroneous admission of the AFIP test, the government s case rested entirely on the AFDTL report. There was no other evidence that Appellant had used cocaine, knowingly or otherwise. Admission of the AFIP test strongly bolstered the government s case. The members questions of Dr. Smith regarding his testimony about the AFIP test demonstrate its impact on the jury. See JA , They asked Dr. Smith how many tests both labs conducted on Appellant s urine, whether the results of those tests had been consistent, what measures the labs took to avoid contamination, whether leakage of the aliquot shipped to AFIP could have altered the test outcome, and how likely it was that the tests yielded a false positive. JA , These questions pertained primarily to the possibility of a mistaken test result, not to innocent ingestion. The answers Dr. Smith gave undermined the 25

30 theory of no ingestion, compounding the initial error of admission. See JA , The jury instructions further compounded the error. The military judge, over defense objection, refused to give a limiting instruction regarding the AFIP test result. JA Instead, the military judge instructed the jury as follows: In making your decision in this case you must be satisfied beyond a reasonable doubt that the sample tested was the accused s and that it was not tampered with or contaminated in any significant respect before [sic] was tested and analyzed in a laboratory. You are also advised that the government is not required to maintain or show a perfect chain of custody. Minor administrative discrepancies do not necessarily destroy the chain of custody. You must be satisfied that the laboratory properly analyzed the sample and produced an accurate result. You are entitled to infer that procedures in the laboratory for handling and testing a sample are regular and proper unless you have evidence to the contrary however, you are not required to draw this inference. JA 385; see also JA 386. Had the lab analyst been called to testify regarding the AFIP drug test, this instruction would have been proper. In this case, however, it had the effect of 6 It is unlikely that even a properly crafted limiting instruction would have cured the violation of the Confrontation Clause here. Without the instruction, the jury was effectively told, There are, not one, but two tests here that say Appellant ingested cocaine. With the instruction, they would have effectively been told, There is one test that tells you that Appellant ingested cocaine, and another test that tells you that you can believe the first test. It is unlikely that any reasonable juror could distinguish between these two statements in any way that would prevent improper use of the erroneously admitted testimony. Cf. United States v. Diaz, 59 M.J. 79, 93, (C.A.A.F. 2003). 26

31 telling the jury members that they could do precisely what Melendez-Diaz forbids: rely on testimonial hearsay to assume that the analyst had done her job correctly. See Melendez-Diaz, 129 S. Ct. at ; see also id. at 2532 n.1 ( It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live. ). The instruction also ironically admonished the jury to take into account evidence to the contrary. JA 385. Yet, the erroneous admission of the AFIP test result via Dr. Smith allowed the prosecution to get away without calling the analyst, precluding the jury from hearing from the only person who could have given them such evidence. The government s closing argument delivered the final prejudicial stroke. In the absence of a limiting instruction, trial counsel referred to the AFIP test result no fewer than four times. JA Specifically attacking the defense theory that lab mishandling could have resulted in a false positive, trial counsel reminded the jury of the confirmatory AFIP test. JA 390. Trial counsel then argued that, for the jury to have a reasonable doubt that Appellant s urine had contained BZE, you would have to essentially expect that lightning struck twice for Sergeant Lusk. That when the test, his urine sample went to Brooks somebody there screwed 27

32 something up even though Dr. Smith told you that when he reviewed the drug testing report there were no issues with the report. That there were no indications that that drug test was not good but that happened there and then when it was retested, darn it, it happened again for Sergeant Lusk. JA [emphasis added]. This argument not only made impermissible use of the AFIP test result, but also explicitly invited the jury to rely on Dr. Smith s repetition of testimonial hearsay indicating that the AFDTL had conducted its test properly. In this case, the prosecution s case at first rested entirely upon the AFDTL report, which was heavily undermined. The prosecution then sought to bolster the AFDTL report in its rebuttal case by asking Dr. Smith about the AFIP test result. The members asked significant and probing questions after admission of the AFIP test result questions that indicated they were still harboring doubt regarding the AFDTL test s validity. The trial judge not only failed to give a limiting instruction regarding use of the AFIP test result; he gave instructions that encouraged the jury to rely upon Dr. Smith s testimonial hearsay. Finally, trial counsel repeatedly referred to the AFIP test result, underscoring for the jury the near-impossibility that two labs would have gotten the test wrong. Under these circumstances, where the error effectively foreclosed one of only two possible theories of innocence, the government cannot 28

33 meet its burden to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Chapman, 386 U.S. at 24. CONCLUSION Wherefore, amicus curiae Greg Young requests this Honorable Court to set aside the finding of Guilty and the sentence imposed with respect to Appellant SSgt Lusk. Respectfully submitted, /s/ Greg Young Supervised Law Student Stanford Law School /s/ George Fisher Amicus Counsel of Record Judge John Crown Professor of Law Stanford Law School Crown Quadrangle Stanford, CA (650) fisherg@stanford.edu 29

34 CERTIFICATE OF FILING AND SERVICE I certify that, in accordance with Order of the Court of July 22, 2010, the foregoing Brief was electronically filed with the Court on March 24, 2011, and that copy of the foregoing Brief was electronically sent to the following persons on March 24, 2011: Phillip T. Korman, Capt, USAF Appellate Defense Counsel Phillip.Korman@pentagon.af.mil (202) Jamie Mendelson, Maj, USAFR Lead Appellate Government Counsel Jamie.Mendelson@usdoj.gov /s/ George Fisher Amicus Counsel of Record Judge John Crown Professor of Law Stanford Law School Crown Quadrangle Stanford, CA (650) fisherg@stanford.edu

35 CERTIFICATE OF COMPLIANCE WITH RULE 24(d) 1. This brief complies with the type-volume limitation of Rule 24(d) because: [X] This brief contains 6,424 words. 2. This brief complies with the typeface and type style requirements of Rule 37 because: [X] This brief has been prepared in a monospaced typeface using Microsoft Word 2011 with 10 characters per inch and Courier New type style. /s/ Greg Young Supervised Law Student Stanford Law School /s/ George Fisher Amicus Counsel of Record Judge John Crown Professor of Law Stanford Law School Crown Quadrangle Stanford, CA (650) fisherg@stanford.edu