United States v. Manuel , 43 M.J. 282 ( 1995 )

Opinion of the Court

WISS, Judge:

1. In a contested trial in April 1992, a general court-martial composed of officer members at Sheppard Air Force Base, Texas, found the accused guilty of separate specifications of wrongful use of cocaine and wrongful use of marijuana, in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. Then, the members sentenced him to a dishonorable discharge, confinement and forfeiture of $390.00 pay per month for 2 years, and reduction to the lowest enlisted grade. The convening authority approved the sentence except for a discharge in excess of a bad-conduct discharge, but he suspended execution of confinement and forfeitures in excess of 15 months.

2. The Court of Military Review¹ set aside ² the conviction for cocaine use but affirmed the conviction for marijuana use. “[Ujnable to determine ... the impact” of this decision upon the sentence, that court also set aside the sentence and authorized a rehearing. 39 MJ 1107, 1110 (1994). The Judge Advocate General of the Air Force then certified the following questions for our review:

I

WHETHER THE AIR FORCE COURT OF MILITARY REVIEW ERRED WHEN IT FOUND THAT THE REGULATIONS PERTAINING TO RETAINING AND PRESERVING POSITIVE URINE SAMPLES WERE INTENDED TO CONFER A SUBSTANTIAL RIGHT ON THE INDIVIDUAL TESTED.

II

WHETHER THE AIR FORCE COURT OF MILITARY REVIEW ERRED WHEN IT HELD THAT THE INADVERTENT DESTRUCTION OF A POSITIVE URINE SAMPLE DENIED APPELLANT EQUAL ACCESS TO ALL EVIDENCE AS PRESCRIBED BY ARTICLE 46, UCMJ, AND REQUIRED EXCLUSION OF THE POSITIVE LABORATORY TEST ON THE SAMPLE.

3. We answer both certified questions in the negative. Regarding Issue I, we hold that the court below was correct in holding that regulations confer a substantial right on the accused to have the Government retain and preserve his allegedly positive urine sample and to have the Government test his urine sample reliably and with due diligence. Regarding Issue II, we hold that the court below did not abuse its discretion in excluding the urinalysis results as a remedy under the circumstances of this case for the Government’s gross negligence in destroying the accused’s urine sample.³

I

4. The accused randomly was selected to provide a urine specimen for drug testing on October 4,1991. The sample was sent to the Air Force Drug Testing Laboratory (AFDTL) at Brooks AFB, Texas. It “tested positive for the cocaine metabolite benzoylecgonine three times — twice using the radio-immunoassay [ (RIA) ] screening procedure and then once using the gas chromatography/mass spectrometry [ (GC/MS) ] confirmation procedure.” The sample presented a relatively low level of metabolite, 242 ng/ml, but above the Department of Defense cutoff level of 150 ng/ml. The accused was notified of the test results during November 1991.

5. Defense counsel asked for a government retest of the urine sample in early March 1992. He did so for three purposes: to evaluate once again for the cocaine metabolite benzoylecgonine; for the first time to test for ecgoninemethylester in order to determine if there had been adulteration of the sample with raw cocaine; and finally to conduct a blood secretor test to determine if the sample matched the accused’s blood type. A secretor test can detect a mismatch in a secretor status or blood type in urine and might establish that the urine sample that had been tested did not come from the accused. On March 12, 1992, however, the convening authority denied the request for retesting.

6. On March 31, 1992, defense counsel again attempted to obtain a retest of the urine sample. This time, the defense asked the Government to send the urine sample to a private laboratory for analysis by an expert at the accused’s own expense. On April 1, 1992, the Government responded that they could not comply with this request because his sample had been destroyed.

7. At trial, the defense moved to suppress the results of the urinalyses of the discarded sample on the basis that he had been denied his right under Article 46, UCMJ, 10 USC § 846, to an “equal opportunity to obtain ... evidence.” Although the written motion to suppress did not urge the legal theory presented in Certified Issue I, civilian defense counsel in argument at trial did assert that the Government had “disregarded their own rules which was that they keep it [the accused’s urine sample] for one year, one year, unless there is an extension requested and there has to be written approval to destroy it. So they have violated their own procedures in doing this.”

8. The prosecution presented detailed evidence in an attempt to explain the destruction of the urine sample. An official report of investigation into this matter concluded that it was impossible to reconstruct with certainty the circumstances surrounding the disappearance of the accused’s sample. A probable explanation was that it had been “used in a ‘special study to evaluate an alternative drug screening method,” 39 MJ at 1108, and that, thereafter, a laboratory employee inadvertently had destroyed it in December 1991 as part of a group of negative samples that were approved for destruction. Dr. Arvind Modak, Chief of Professional Services and Deputy Chief of Forensic Sciences at AFDTL, testified that the destruction of the sample could be termed “grossly negligent.”

9. The military judge made detailed findings of fact surrounding the destruction of the accused’s sample, as follows:

Sometime around 18 December 1991, about one month after the accused’s sample had tested positive, these seven specimens [the accused’s and six other positive specimens] were used in a series of “special studies” to evaluate screening methods that might serve as an alternative to the RIA method.

Following these special studies, the seven specimens were inadvertently placed in a tray with negative samples that had been cleared for destruction. These specimens, including the accused’s sample, were destroyed.

There was in existence at the time of these events an AF Drug Testing Laboratory Operating Instruction, which requires, among other things, that all confirmed positive samples will be frozen and maintained for at least one year. Because of error by laboratory personnel, this portion of the operating instruction was not complied with in this case.

The error by lab personnel in destroying the accused’s sample occurred in December 1991, and was not discovered until March 1992 when lab personnel began searching for the sample as part of litigation preparation.

No one deliberately destroyed the accused’s sample in order to hamper the defense requests for retesting. It had already been destroyed, although that fact was unknown, over two months prior to the first request for retest.

No government representative or laboratory employee acted in bad faith with regard to the accused’s urine sample.

The court concludes that the defense has not established any exculpatory value in the materials that were inadvertently destroyed. There was no bad faith by the Government. The accused’s rights may be adequately protected when there is a chance to attack the reliability of the testing procedures and an opportunity to examine testing personnel. The defense may present the matters raised in this motion to the fact finder as circumstantial evidence going to the reliability of the testing procedures.

The motion is denied.

(Citations omitted.)

10. Notwithstanding the accused’s argument about a violation of regulations, the military judge did not address whether urine-collection regulations conferred a right on him. He was convicted based solely on evidence of urinalysis results. On appeal, he renewed his argument that the Government had not followed its own regulations and asserted that he was denied rights under Department of Defense (DoD) Directive 1010.1 (December 28,1984); Air Force Regulation (AFR) 160-23 (July 31, 1986); and an AFDTL operating instruction that requires retention of a positive urine specimen for a specified number of days (between 60 days and one year).

11. The Court of Military Review, addressing the accused’s argument for the first time, held that the government directive and regulatory standard for retaining and preserving positive urine samples “was intended to confer a substantial right for the individual tested” (39 MJ at 1110) and to assure reliability in the urine testing procedures. Finding that the premature destruction of the accused’s urine sample arose from a lack of due diligence, the court below concluded that the appropriate remedy, under all the circumstances of this case, was exclusion of the positive urinalysis results.

12. Before this Court, the Government presents the following arguments regarding the two certified issues. As to Issue I, the Government asserts in the alternative: First, “there is no legal authority or factual basis for” the Court of Military Review’s holding that the applicable directive and regulatory standard for retaining and preserving positive urine samples “was intended to confer a substantial right on the” servicemember. Government’s Final Brief at 8. Second, even where the regulation violated by the Government is meant at least in part to benefit an accused, absent a showing of prejudice, the violation will not serve as a bar to prosecution. Final Brief at 9-11. Regarding Issue II, as there was neither bad faith by the Government nor proof that the discarded evidence was exculpatory, there was no violation of due process, so suppression of the test results was an inappropriate remedy in this case. Final Brief at 12-15. We address each of the certified issues and these arguments seriatim.

II

13. The administration of military justice is rooted in inherent fair play and justice that prevail under the Anglo-American system of law. “[I]n defining the rights of military personnel, Congress was not limited to the minimum requirements established by the Constitution, and in many instances, it has provided safeguards unparalleled in the civilian sector.” United States v. McGraner, 13 MJ 408, 414 (CMA 1982). See, e.g., Gilligan, The Bill of Rights and Service Members, The Army Lawyer 3 (Dec. 1987) (servicemembers’ rights broader than constitutionally required). The broad constitutional rights that servicemembers enjoy spring from the fundamental principle that they do not lay aside the citizen when they assume the soldier.

[Mjembers of the military are not shorn of their constitutional rights while they remain in the military service. Blackstone said: ‘... he puts not off the citizen when he enters the camp; but it is because he is a citizen, and would wish to continue so, that he makes himself for a while a soldier.’ [1 Blackstone, Commentaries (Wendell ed), page 408.]

United States v. Culp, 14 USCMA 199, 206, 33 CMR 411, 418 (1963).

14. Another golden thread in the military justice tapestry is that “either the President in promulgating the Manual for Courts-Martial or the Armed Services by adopting regulations can go even further than the Constitution and the Uniform Code in providing safeguards for military personnel.” United States v. McGraner, supra at 414-15. Regarding these regulations, we have held that a service must abide by them where the underlying purpose of the regulation is the protection of personal liberties or interests. See United States v. Dunks, 1 MJ 254 (CMA 1976). More recently the Supreme Court and this Court have recognized that the Government is bound by its own regulations, especially when the regulations confer a right or benefit on an individual. See United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979); United States v. McGraner, supra

A

15. The focus of Certified Issue I is whether service directives confer a right on a servicemember to have the Government retain and preserve an allegedly positive urine sample and to have the Government test the urine sample reliably and with due diligence. This is a matter of law considered de novo. See id. We are not asked here to decide if these regulations confer an absolute right on servicemembers to have urine samples retested. Cf. United States v. Burnette, 29 MJ 473, 475 (CMA), cert, denied, 498 U.S. 821, 111 S.Ct. 70, 112 L.Ed.2d 43 (1990); see also United States v. Mosley, 42 MJ 300 (1995); United States v. Robinson, 39 MJ 88 (CMA 1994).

16. In the present case, multiple directives are implicated that establish practices to insure the proper safeguarding and testing of urinalysis samples. ¶ 1.2, DoD Directive 1010.1 (December 28, 1984), requires retention of positive samples for 60 days, and ¶ 1.3 extends this to 120 days when a court-martial is involved. ¶ 8d(4)(a), AFR 160-23, Drug Abuse Testing Program (31 July 1986), requires retention of a positive urine specimen for 180 days. ¶ 4b(2). AFDTL Operating Instruction 160-202, effective at the time that the accused’s sample was tested, required retention of all reported positive samples for one year.

17. In United States v. McGraner, 13 MJ at 417-18, this Court stated several factors to consider in determining whether a directive confers a right on servicemembers. We apply that analysis here to determine if service-members have a right that a positive urine specimen will be retained properly and handled with due care.

18. First, we observe that the regulations detail proper procedures for collecting, transmitting, testing, and handling to insure reliable evaluation of urine samples. See United States v. Pollard, 27 MJ 376 (CMA 1989). Meticulous attention to the details of urinalysis processing is necessary to insure a reliable test result, as the court-martial and appellate courts must closely scrutinize the urinalysis evidence, particularly where the Government proceeds on a charge alleging drug usage based solely upon evidence obtained by non-consensual methods. See id.; United States v. Hillman, 18 MJ 638 (NMCMR 1984). While these regulations were prescribed to help manage the handling of the specimen, they are not for the exclusive benefit of the Government. Rather, the regulations relating to retention of the urine sample guarantee an accused’s Article 46 right of the opportunity to discover evidence.

19. Thus, these regulations reflect the attempt to operate the urinalysis program in a manner consistent with protections with which Congress has clothed servicemembers. See United States v. Ruiz, 23 USCMA 181, 48 CMR 797 (1974). They increase confidence of servicemembers in a fair testing process, which is a cornerstone of legitimacy for the urinalysis program. Cf. United States v. McGraner, 13 MJ at 417. We consider that the retention requirement is not merely for management purposes but is also to protect the statutory right of each servicemember’s access to evidence.

20. Second, although the regulations do not grant to the servicemember any specific remedy because of the Government’s failure to meet a standard, deviations from them are significant and will be considered in determining if the urinalysis evidence lacks sufficient reliability to be considered. See United States v. Pollard, supra ¶ 18. While we are mindful that exclusion of the evidence is a drastic remedy, we also recognize that it is possible to maintain morale only where a urinalysis program is free of gross negligence in the handling of specimens. Every servicemember must have confidence in the urinalysis program, and this confidence is based in part on the knowledge that each urine specimen is properly handled and reliably tested.

21. Accordingly, there is considerable discretion for courts to fashion a remedy to address any deviation from regulatory testing procedures. See id.; ROM 907, Manual for Courts-Martial, United States, 1984. Where a lower court finds gross negligence in the handling of a urine sample and a significant violation of regulations intended to insure reliability of testing procedures, we will not require an accused to make a further demonstration of specific prejudice before we sustain the remedial relief fashioned by a lower court in the exercise of its discretion.

22. Finally, we consider that an important and distinguishing feature of this case is that the Court of Military Review has construed its service regulation to provide this protection to the accused. This is another situation where the views of the service courts deserve some deference. See United States v. Moultak, 24 MJ 316 (CMA 1987); United States v. Johanns, 20 MJ 155 (CMA), cert, denied, 474 U.S. 850, 106 S.Ct. 147, 88 L.Ed.2d 122 (1985). The Court of Military Review considered that the regulatory standard was intended to confer a substantial right for the servicemember. Such an interpretation is persuasive, and we do not perceive anything requiring a different conclusion.

B

23. Having recognized the accused’s right, we must now address the consequence and remedy for the Government’s disregarding that right. The Government is correct that the two-part test announced in California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984), states both the constitutional and the military standards of due process relating to preserving evidence that is not “apparently” exculpatory. United States v. Kern, 22 MJ 49 (CMA 1986). In that context, it is the accused’s burden “to show that the evidence possessed an exculpatory value that was or should have been apparent to the Government before it was lost or destroyed and that he is unable to obtain comparable evidence by other reasonably available means.” Id. at 51-52.

24. The constitutional due process protection and the Article 46 right to discovery, however, are not the only rights implicated here. The result of the Government’s disregard of accused’s right to proper handling of his urine sample is that he is denied access to lost evidence.

25. The President in the Manual for Courts-Martial specifically has addressed an accused’s right to access unavailable evidence. ROM 703 states:

(f) Right to evidence.

(2) Unavailable evidence. Notwithstanding subsection (f)(1) of this rule, a party is not entitled to the production of evidence which is destroyed, lost, or otherwise not subject to compulsory process. However, if such evidence is of such central importance to an issue that it is essential to a fair trial, and if there is no adequate substitute for such evidence, the military judge shall grant a continuance or other relief in order to attempt to produce the evidence or shall abate the proceedings, unless the unavailability of the evidence is the fault of or could have been prevented by the requesting party.

26. This provision is illustrative of the President’s going even further than the Constitution and the Uniform Code in providing a safeguard for military personnel. This rule gives the court discretion to fashion an appropriate remedy if lost “evidence is of such central importance to an issue that it is essential to a fair trial.”

27. In the present case, as the military judge failed to address the issue of whether the regulatory standard was intended to confer a substantial right on the servicemember, the judge naturally did not address a remedy for the disregard of this right. Instead, it was the Court of Military Review that initially addressed both of these issues and concluded that suppression of the urinalysis results was the appopriate remedy. We review the decision of that court for an abuse of discretion. See United States v. Kern, supra ¶ 23.

28. As the urinalysis result was the only evidence of the accused’s wrongful use of cocaine, the urine sample was of central importance to the defense. We consider it most significant that in this case there was a complete lack of accountability for the urine sample. The Government at best could present only a probable explanation that the sample was used in a special study to evaluate an alternative drug-screening method and that a laboratory employee discarded it. There was no evidence presented to document this' disposition. The expert from the laboratory characterized the loss of the accused’s sample as “gross negligence.” We accept his evaluation of this situation and believe that, whatever the mishandling of the urine sample, this gross negligence undermined the reliability of the urinalysis results.

29. Loss of this evidence was particularly significant here, as there was a genuine controversy as to nanogram level in the specimen. The initial reading was close to the 150 ng/ml cutoff. The accused testified on the merits, and he denied using cocaine and stated that he did not have any explanation for his positive urine samples. He established a sincere desire for an independent-expert test, and his attempt to obtain a retest was not perfunctory. Indeed, he offered to pay for the tests at his own expense.

30. In contrast with United States v. Robinson, 39 MJ at 89, where Robinson stipulated that “there were no apparent” irregularities “in the collection, handling, or testing” of his sample, this accused challenged all the procedures involved. This case is similar to the situation in United States v. Harper, 22 MJ 157 (CMA 1986), where there were questions raised about the “security and integrity of samples tested,” and the military judge accordingly continued the case to permit a retest by the defense expert and a “secreter test.” 22 MJ at 160 and n. 3. Here, but for the destruction of the urine sample, the military judge could have afforded the right to an independent test to the accused. Cf. United States v. Mosley, 42 MJ 300 (1995). In the narrow facts of this case, we find that the accused raised a viable issue as to the accuracy of the urinalysis results. To require more would place an insurmountable burden on an accused.

31. The linchpin of analysis regarding Issue II, therefore, is the standard of review, as the determination of an appropriate remedy for loss or destruction of evidence is left to the lower court’s discretion. See United States v. Kern, supra We need not decide whether the Court of Military Review was required as a matter of law to suppress the evidence; nor do we hold that suppression is the appropriate legal remedy in all instances of lost or destroyed evidence. Rather, we hold only that the Court of Military Review did not abuse its discretion by following that course of remedial action here.⁴ See United States v. Mosley, supra; cf. United States v. Pollard, supra (¶ 18). As evidence of the urinalysis was excluded, there was no other evidence to prove the cocaine-use offense. Accordingly, the Court of Military Review properly set aside the finding of that specification and ordered a sentence rehearing.

III

The certified questions are answered in the negative.

The decision of the United States Air Force Court of Military Review setting aside the conviction for cocaine use and the sentence is affirmed. Specification 1 of the Charge is dismissed.

Chief Judge SULLIVAN and Judges COX and GIERKE concur.

1 . See 41 MJ 213, 229 n. * (1994).

2 . Because this action results from insufficient evidence, ¶31, the specification should have been dismissed.

3 . Although the second certified issue might be read to suggest that the decision below requires suppression of the urinalysis evidence as a remedy, we do not read the decision to say that and, so, construe the certified issue to ask whether the court below erred by concluding in its discretion that suppression was an appropriate remedy under the circumstances of this case.

4 . The record is unclear as to whether the Government knew that the test sample was missing when it denied the accused’s initial request for a retest. The record does capture the curious situation of the accused’s persistence in requesting a retest resulting in the ultimate disclosure that the sample had been lost prematurely. We have evaluated this issue, however, assuming that there was no attempt by the Government to mislead the defense.