United States v. Lusk , 70 M.J. 278 ( 2011 )

UNITED STATES, Appellee
v.
Harley T. LUSK, Staff Sergeant
U.S. Air Force, Appellant
No. 11-0166
Crim. App. No. S31624
United States Court of Appeals for the Armed Forces
Argued April 7, 2011
Decided August 24, 2011
PER CURIAM
Counsel
For Appellant: Captain Phillip T. Korman (argued); Colonel Eric
N. Eklund and Lieutenant Colonel Gail E. Crawford (on brief);
Dwight Sullivan, Esq.
For Appellee: Major Jamie L. Mendelson (argued); Colonel Don M.
Christensen and Gerald R. Bruce, Esq. (on brief).
Amicus Curiae for Appellant: Greg Young (law student) (argued);
George Fisher (supervising attorney) (on brief) -- Stanford
University School of Law.
Military Judge: David S. Castro
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Lusk, No. 11-0166/AF
PER CURIAM:
Contrary to his pleas, a special court-martial composed of
officer members convicted Appellant of one specification of
wrongful use of cocaine in violation of Article 112a, Uniform
Code of Military Justice, 10 U.S.C. § 912a (2006). The sentence
adjudged by the court-martial and approved by the convening
authority included a bad-conduct discharge and reduction to the
lowest enlisted grade. The United States Air Force Court of
Criminal Appeals affirmed. United States v. Lusk, No. ACM
S31624, 2010 CCA LEXIS 367, 2010 WL 4068922 (A.F. Ct. Crim. App.
Oct. 14, 2010) We granted review to consider issues relating to
the admissibility of information from a drug testing laboratory
and related testimony of an expert witness. United States v.
Lusk, 69 M.J. 481-82 (C.A.A.F. 2011) (order); id. at 483 (order
granting additional specified issue).1
I
Appellant, upon request, provided a urine sample during a
unit inspection. The Government subjected the sample to two
different tests. The first test, conducted by the Air Force
Drug Testing Laboratory (AFDTL), yielded a positive result, as
1
We heard oral argument in this case at the Stanford University
School of Law, Stanford, California, as part of the Court’s
“Project Outreach.” This practice was developed as a public
awareness program to demonstrate the operation of a federal
court of appeals and the military justice system.
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documented in a report issued by the laboratory. The second
test, conducted by the Armed Force Institute of Pathology (AFIP)
in response to a request by trial counsel for a retest by a
different laboratory, also yielded a positive result. The
report issued by the institute included variety of items,
including a cover memorandum summarizing the positive test
results. The cover memorandum bore the names of Barry Levine,
the Director of the Forensic Toxicology Laboratory, and John F.
Jemionek, Certifying Scientist. Neither Levine nor Jemionek
testified at Appellant’s trial.
The prosecution introduced into evidence the AFDTL report
of the first test without objection by the defense. The defense
moved to exclude the AFIP report of the second test prior to
entering Appellant’s plea.
The military judge granted the defense motion to exclude
the AFIP report of the second test on the grounds that the
second report contained testimonial hearsay. As such, the
military judge concluded that introduction of the AFIP report of
the second test, without testimony by the individual who
prepared the report, would deny the defense the right of
confrontation guaranteed by the Sixth Amendment, citing United
States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008) (applying
Crawford v. Washington, 541 U.S. 36 (2004), to the military
justice system). The military judge reserved the question of
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whether the prosecution could introduce the AFIP report of the
second test into evidence later in the proceedings in the event
that the defense opened the door to rebuttal.
In addition to the AFDTL report of the first test, the
prosecution relied on the testimony of an expert in forensic
toxicology, Dr. Smith, who testified as to the reliability of
the AFDTL results. Citing the AFDTL report of the first test,
Dr. Smith testified that the results of the first test showed
that Appellant’s urine specimen tested positive for the
metabolite of cocaine.
The defense undertook an extensive cross-examination of Dr.
Smith, challenging the validity of the first test by raising
numerous questions about the reliability of testing by the
AFDTL. At the prosecution’s request, the military judge then
considered whether the prosecution could rebut the defense
attack on the reliability of the laboratory by asking Dr. Smith
about the details the AFIP report of the second test as a basis
for his expert testimony about the reliability of the first
test. The defense objected on the grounds that to allow
testimony based on the second test would allow the prosecution
to rely improperly on inadmissible hearsay.
The military judge ruled that the prosecution could ask the
expert witness about the basis of his expert testimony under
M.R.E. 703 in light of the questions raised by the defense about
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the reliability of the laboratory. The military judge then
emphasized the limited scope of his ruling, noting that “I am
still not going to allow the AFIP report [into evidence].” In
that regard, he cited concerns about “testimonial hearsay” and
reiterated that AFIP report of the second test “will not come
in.” He further noted that the expert’s testimony about
specific testing levels in the second test conducted by AFIP
would not be more prejudicial than probative under M.R.E. 403
because such testimony would be consistent with the position of
both parties. He reiterated that he would not allow the AFIP
report of the second test into evidence, but would allow the
expert “to testify in a limited fashion that [the AFIP report of
the second test] is part of his reaching his conclusions about
the reliability of the lab and the report that he did consider
[included] a confirmatory test that was conducted by AFIP and
that was part of the basis for his opinion.” He added that
testimony about the report of the second test conducted by AFIP
“falls within [M.R.E.] 703, that is something that he clearly
considered and that is what he testified to and that is what I’m
going to allow.”
At that point, the trial counsel asked the military judge
whether the prosecution would be allowed to ask the expert
witness on redirect examination about the specific numerical
results in the AFIP report of the second test. The military
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judge responded that he would allow the expert to testify that
“he considered a second test, which was a confirmatory test
conducted by AFIP.” He added that he would then “need to craft
an instruction that they [the panel members] are not to consider
that for the truth of the matter asserted but rather for the
manner in which the expert witness went about reaching his
conclusion which he is allowed to do under [the] Military Rules
[of] Evidence.”
Trial counsel inquired into the consequences of questions
about the numerical results, asking whether questions by the
prosecution about the numerical results would open an
opportunity for the defense to ask on cross-examination about
the entire AFIP report of the second test. The military judge
responded that if “the defense chooses to cross-examine in a
limited fashion then that is what you are stuck with.” He added
that if “the defense chooses to conduct an extensive cross-
examination then clearly that would open up more issues for you
on redirect.”
Defense counsel sought to clarify the relationship between
the scope of cross-examination as to the basis for an expert’s
opinion and the scope of cross-examination that might result in
introduction of substantive evidence on the merits. Defense
counsel contended that the AFIP report on the second test
contained testimonial hearsay, and that the breadth of his
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cross-examination as to the AFIP report of the second test, in
terms of the basis for the expert testimony, would waive “the
requirement from the court that the government lay the proper
foundation of Crawford to get the [report] submitted.”
Trial counsel then agreed with the general principle that
information relied upon by an expert as the basis for his
opinion under M.R.E. 703 could include evidence that is
otherwise inadmissible, adding that “the government would have
no objection to [the defense] cross examining on the report
without admitting it.” The military judge added: “I do not
think that that is going to trigger the admission of that
document, [and] I will tell you that I am just inclined to
continue to keep their report out.” Trial counsel responded:
“The government agrees, your Honor.”
When the proceedings before the members resumed, the
prosecution asked Dr. Smith for his opinion as to the
reliability of the first test conducted by AFDTL. Dr. Smith
responded: “Yes, that was a reliable result.” The prosecution
followed up by asking whether the first test conducted at the
AFDTL provided “the only basis for your opinion that the drug
test was reliable and that drug testing report?” Dr. Smith
responded that he “had other information,” noting that the
“Armed Forces Institute of Pathology where I work also tested a
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portion of that specimen.” He added that “[i]t was a
confirmation test, it was a GCMS test.”
After establishing that the expert had relied on the second
test, which had been conducted by AFIP, the prosecution asked
the expert if he recalled the result of the second test. Dr.
Smith responded: “Yes, it showed the presence of
benzoylecgonine” -- the major metabolite of cocaine.
Defense counsel then conducted a detailed cross-examination
of Dr. Smith, including examination into Dr. Smith’s reliance on
the AFIP report on the second test regarding the presence of
benzoylecgonine. Without introducing the AFIP report into
evidence, defense counsel cross-examined the expert about the
basis for his reliance on the second test in view of the numerical
results. In particular, defense counsel brought out that
although the second test showed the presence of benzoylecgonine,
the numerical value was below the cut-off level established by
the Department of Defense to show the presence of cocaine. Dr.
Smith responded: “Yes, but for a retest we don’t have to be
over the cut off. We just have to be able to detect and
identify the compound.” On redirect, the trial counsel asked
the expert to explain the discrepancy between the numerical
results of the first and second tests, and the expert noted both
the possibility of deterioration over time and the fact that the
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Department of Defense did not require a retest to meet the cut-
off levels of an initial test.
After the parties concluded the presentation of evidence on
the merits, the military judge discussed instructions with
counsel. Although not requested to do so by either party, the
military judge decided to not give a limiting instruction
regarding the manner in which the members could consider the
second test performed by AFIP. The military judge recalled that
he had earlier said that he “was going to instruct them [the
members] that they are basically [to] just consider that for the
purposes of how he came to this conclusion and [the] basis for
his opinion.” He then said:
After the extensive direct examination,
cross examination and extensive questioning
by the members I am inclined not to give
that instruction because it is out there on
the table for them now so, does that make
sense?
We have gone so far down the path . . . . At
this point, we had relatively extensive
direct examination and cross examination. I
think the results from AFIP and their
processes are pretty much before the court.
I can’t put the genie back in the bottle in
light of counsel.
The trial counsel responded: “It’s hard to put the toothpaste
back in the tube . . . . The government has no issue with that.”
Defense counsel responded by objecting that “it is still
hearsay that you relied upon, it is testimonial hearsay and the
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evidence was not introduced before the members.” The military
judge responded that “the evidence is in front of the members
through his additional testimony so, I will review it and I will
consider it but I am likely just going to delete that from the
instructions.” As a result, the military judge declined to give
a limiting instruction regarding the AFIP report on the second
test -- the report that had been relied upon the expert but
which had not been introduced into evidence.
The prosecution’s closing argument discussed the testimony
of the expert witness, the details of the two test results, and
the reliability of the test results. The prosecution treated
the reports of both tests as if the report of the second test
had been introduced into evidence, arguing that “for you to
believe that this test is not reliable and that it does not meet
the beyond a reasonable doubt standard you would have to
essentially expect that lightning struck twice for [Appellant].”
The prosecution further stated that “you can rely on the result
for several reasons: . . . number two, [the expert witness] also
testified that he didn’t just rely on the first drug test
report; there was another test out there that confirmed it.”
II
In United States v. Neeley, 25 M.J. 105, 107 (C.M.A. 1987),
we observed that “the military judge should give a limiting
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instruction concerning the appropriate use of [inadmissible
evidence relied upon for the basis of the expert opinion].” See
M.R.E. 105 (“When evidence which . . . is . . . not admissible .
. . for another purpose is admitted, the military judge . . .
shall restrict the evidence to its proper scope and instruct the
members accordingly.”); United States v. Affleck, 776 F.2d 1451(10th Cir. 1985); United States v. Sims, 514 F.2d 147, 149–50
(9th Cir.), cert. denied, 423 U.S. 845 (1975) (when “such
evidence” is admitted, it “becomes necessary for the court to”
give a limiting instruction to the jury). Importantly, such
instructions can ensure that the testimony is not transformed
from evidence introduced for the limited purpose of showing what
the expert witness relied upon into substantive evidence
introduced for the purpose of establishing a truth of the
matter, particularly in view of the potential that the latter
case could raise constitutional issues under the Confrontation
Clause of the Sixth Amendment. See United States v. Blazier, 69
M.J. 218, 224 (C.A.A.F. 2010). Limiting instructions are
particularly important when evidence that is inadmissible, or
admissible for only a limited purpose, involves a discrete fact
or set of facts. See Adamson v. Cathel, 633 F.3d 248, 256 (3d
Cir. 2011). Here, although the military judge initially
recognized his obligation to provide such instructions, he
ultimately declined to do so. His failure to do so was
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compounded by trial counsel’s reliance on testimony regarding
the AFIP retest as substantive evidence during his closing
arguments.
In Neeley, we held that the failure to give such an
instruction sua sponte did not constitute plain error. In the
present case defense counsel objected, and specifically noted
that the report of the second test had not been introduced into
evidence. The military judge declined to give the instruction,
apparently because he believed that the instruction would have
no impact on the members. We see no reason, however, to believe
that members would be any less willing to consider an
instruction on the limited nature of the testimony in this case
than in any other case involving limited permissible use. See
Richardson v. Marsh, 481 U.S. 200, 211 (1987) (“The rule that
juries are presumed to follow their instructions is a pragmatic
one, rooted less in absolute certitude that the presumption is
true than in the belief that it represents a reasonable
practical accommodation of the interests of the state and the
defendant in the criminal justice process.”). Moreover, had the
military judge made it clear that he would give the instruction,
he would have provided a clear signal to the prosecution that it
could not make affirmative use of information not introduced
into evidence.
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III
The Court of Criminal Appeals concluded that the military
judge erred in failing to give the instruction, but concluded
that the error was harmless. The court, however, did not
consider whether the failure to limit the use of the information
from the AFIP report’s cover memorandum, and reliance upon that
evidence by the prosecution, resulted in a conviction based upon
inadmissible testimonial hearsay in violation of the
Confrontation Clause. Given the fact-intensive nature of the
interrelationship among the instructional matters, the
Confrontation Clause aspects of the second test, and
considerations of prejudice, this case warrants a new review by
the Court of Criminal Appeals. See Blazier, 69 M.J. at 227
(remanding in view of testimony by an expert witness who
repeated the contents of an inadmissible cover memorandum).
The decision of the United States Air Force Court of
Criminal Appeals is set aside. The record of trial is returned
to the Judge Advocate General of the Air Force for remand to
that court for review consistent with this opinion.
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