United States v. Jackson , 59 M.J. 330 ( 2004 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Mark S. JACKSON, Staff Sergeant
U.S. Air Force, Appellant
No. 03-0336
Crim. App. No. 34419
United States Court of Appeals for the Armed Forces
Argued November 19, 2003
Decided March 23, 2004
EFFRON, J., delivered the opinion of the Court, in which
GIERKE, BAKER, and ERDMANN, JJ., joined. CRAWFORD, C.J., filed
an opinion concurring in the result.
Counsel
For Appellant: Captain Andrea M. Gormel (argued); Colonel
Beverly B. Knott, Major Andrew S. Williams and Captain James
M. Winner (on brief); Major Jefferson B. Brown and Major
Terry L. McElyea.
For Appellee: Major John C. Johnson (argued); Colonel LeEllen
Coacher, Lieutenant Colonel Robert V. Combs, and Major James
K. Floyd (on brief); Major Linette I. Romer.
Military Judge: M. R. Ruppert
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Jackson, No. 03-0336/AF
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of officer and enlisted
members, Appellant was convicted, contrary to his pleas, of one
specification of wrongful use of methamphetamine, in violation
of Article 112a, Uniform Code of Military Justice [hereinafter
UCMJ], 10 U.S.C. § 912a (2000). He was sentenced to a bad-
conduct discharge, confinement for 30 days, and reduction to the
lowest enlisted grade. The convening authority approved these
results, and the Court of Criminal Appeals affirmed in an
unpublished opinion.
On Appellant’s petition, we granted review of the following
modified issue:
WHETHER BRADY v. MARYLAND AND R.C.M. 701
REQUIRED THE GOVERNMENT TO DISCLOSE EVIDENCE
REGARDING AN AUGUST 2000 BROOKS LAB
DISCREPANCY REPORT TO DEFENSE COUNSEL PRIOR
TO TRIAL.
For the reasons set forth below, we hold that the
Government erred in failing to disclose this evidence and that
the error was prejudicial.
I. BACKGROUND
A. PRETRIAL DISCOVERY: INFORMATION
PERTAINING TO QUALITY CONTROL
In March 2000, Appellant provided a urine specimen during
an unannounced inspection of his unit, which was stationed at
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Nellis Air Force Base, Nevada. The unit forwarded the specimen
to the Air Force Drug Testing Laboratory at Brooks Air Force
Base (Brooks Laboratory), Texas. The Brooks Laboratory
performed a urinalysis test on the specimen, which yielded a
positive test for the presence of methamphetamine. A further
test achieved the same result. After the results were certified
by the Brooks Laboratory and transmitted to Appellant’s unit,
Appellant was charged with one specification of wrongful use of
methamphetamine.
On May 26, 2000, defense counsel submitted a detailed
pretrial discovery request to the Government. A substantial
portion of the request sought information concerning testing
procedures at the Brooks Laboratory, identifying a variety of
specific forms of information regarding personnel and procedures
involved in the testing process. One of the specific requests
asked for “any reports, memos for record or other documentation
relating to Quality Control and/or inspections pertaining to
quality control at the Brooks Lab for the three quarters prior
to [Appellant]’s sample being tested, and the available quarters
since [Appellant]’s sample was tested.” The defense submission
also stated that the discovery request was a “continuing
request” that “includes any information which you may later
discover before, during or after trial of this case, or which is
not requested in a specific manner.”
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The prosecution sent a memorandum to Brooks Laboratory on
June 6, 2000, regarding discovery, which required it to provide
only those items expressly identified in the memorandum as
matters “deemed relevant to litigation.” Instead of using the
term “quarters” when referring to the time frame, the
prosecution’s memorandum to the Brooks Laboratory referred to
“months,” and did not include the continuing nature of the
defense request. According to the memorandum, the Brooks
Laboratory was required to provide only the following
information:
[C]opies of the Quality Assurance (QA)
monthly reports and QA monthly inspections
for the three months prior to testing
[Appellant]’s specimen, the month of
testing, and the month after testing.
Please also provide the AFIP monthly
proficiency reports for the three months
prior to testing [Appellant]’s sample, the
month of testing, and the month after
testing.
On June 12, 2000, the prosecution sent a memorandum to the
defense providing a variety of responses to the various defense
requests. Some of the responses contained substantive
information; some reported on the status of the request; others
asserted that the requested information was not relevant and
would not be provided; and still others asked the defense to
narrow the request.
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With respect to quality control, the prosecution’s
memorandum stated:
The Quality Control quarterly inspections
were discontinued after January 1999 when it
became a Quality Assurance (QA) function.
The QA monthly reports and QA monthly
inspections for the three months prior to
the member’s specimen, the month of testing,
and the month after testing have been
requested from Brooks AFB Drug Testing
Division.
In contrast to the prosecution’s responses on other subjects,
the memorandum did not ask the defense to narrow the scope of
the request pertaining to quality control, nor did it assert
that the Government was unwilling to provide documents within
the request.
B. THE REPORT OF AN ERRONEOUS TEST RESULT AT THE BROOKS
LABORATORY
Two and a half months later, on August 2, the Brooks
Laboratory mistakenly identified a specimen as positive despite
the fact that the specimen was negative. This error was
discovered as part of its quality control process, which
involved the routine insertion of “Blind Quality Control”
specimens in each batch of urine specimens provided by service
members. The Blind Quality Control specimens were either
“positive” -- containing a reportable presence of an illegal
substance, or “negative” -- not containing a reportable presence
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of an illegal substance. Although the operators of the testing
system knew that Blind Quality Control specimens were included
in each testing batch, they did not know which specimens within
a batch were the real specimens provided by service members and
which were the Blind Quality Control specimens.
The error on August 2 occurred when Brooks Laboratory
testing operators reported that a particular specimen produced a
positive result for the presence of a metabolite of cocaine,
even though the sample was a negative Blind Quality Control
specimen. As a result of this error, it generated a Discrepancy
Report, which identified each individual who handled the
negative Blind Quality Control specimen. The Discrepancy Report
stated that it was “inconclusive as to how the negative [Blind
Quality Control specimen] came to have a positive result” and
recommended “that each technician and observer pay closer
attention” to their duties.
Three of the laboratory personnel who were identified as
participating in the preparation and testing of the erroneously
identified Blind Quality Control specimen in August also were
involved in testing Appellant’s several months earlier.
Although the laboratory’s report of the erroneous testing of a
quality control specimen in August was generated a month before
Appellant’s trial while discovery was still ongoing, the report
was not provided to the parties prior to trial.
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C. TRIAL PROCEEDINGS
Defense counsel submitted additional discovery requests on
September 14 and September 17, prior to the scheduled beginning
of trial on the merits on September 25. Several days before
trial, trial counsel and defense counsel had a discussion about
discovery. Defense counsel asked the trial counsel to contact
the Brooks Laboratory and obtain all reports completed between
its June 6 response and the date of their discussion, as well as
any other recently identified items that would be responsive to
the initial discovery request. Throughout the trial, the
defense received additional items from the Brooks Laboratory in
response to the discovery request.
The defense, however, did not receive
the report of the erroneous test that had taken place in August.
At trial, the prosecution’s case relied primarily on a
litigation package prepared by the Brooks Laboratory detailing
Appellant’s positive urinalysis, along with expert extrapolation
testimony by Dr. Vincent Papa, a forensic toxicologist and
certifying official at the laboratory. Dr. Papa explained the
contents of the litigation package and concluded that Appellant
ingested methamphetamine. The prosecution also introduced
evidence that: (1) Appellant “rolled his eyes,” shook his head
“in a no fashion,” and “seemed a little upset” when his
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United States v. Jackson, No. 03-0336/AF
superiors announced the unit sweep; (2) in the context of a
discussion about evicting his girlfriend from his apartment,
Appellant expressed “concerns that there may [have been] drugs
in [his] residence”; and (3) that on two prior occasions,
Appellant discussed teas or other substances that one could
consume to produce a negative result in a urinalysis test.
The defense focused its trial strategy on attacking the
reliability of the Brooks Laboratory positive urinalysis report.
During cross-examination of Dr. Papa, defense counsel raised
questions concerning the possibility that Appellant’s positive
urinalysis was the result of contamination in the testing
process. Defense counsel highlighted fifteen prior incidents
that the laboratory discovered four months prior to testing of
Appellant’s urine specimen in which the Chief of the
Confirmation Section at Brooks Laboratory had altered data
regarding the testing process. Defense counsel also noted that
the Brooks Laboratory did not have a Quality Assurance Officer
at the time Appellant’s urine specimen was tested, and that that
the Brooks Laboratory had received an inspection report critical
of the quality of its testing procedures in place through April
of that year. Defense counsel further noted that one urine
specimen that was correctly identified as negative had been
reported as positive as a result of an incorrect notation on the
report. Defense counsel further pointed out that one individual
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who handled Appellant’s urine specimen subsequently had been
decertified because many of his April 2000 testing runs failed.
In addition, defense counsel explored the possibility that
methamphetamine could have been ingested innocently by
Appellant.
In his closing argument on findings, trial counsel relied
primarily on the positive urinalysis and Dr. Papa’s testimony to
support the contention that Appellant knowingly and wrongfully
used methamphetamine. To buttress the credibility of the
testing procedures at the Brooks Laboratory, trial counsel
asserted that --
the military judge has told you [that] you
are entitled to infer that the procedures in
the lab for handling and testing the samples
were regular and proper, unless you have
evidence to the contrary. This is a
certified forensic laboratory. Dr. Papa
told you what it takes to have that happen
and how easily . . . being two standard
deviations off, could cause decertification
as a forensic lab. They call in these
civilian places and pay them lots of money
to do these studies . . . to pick them apart
. . . . All of that has to be thrust out
into the public domain. Everybody is going
to know, because they are a forensic lab,
and that is why, ladies and gentlemen, you
could trust that they followed the rule.
And if you haven’t seen any evidence to the
contrary in this case, you may assume that
there were no problems.
Defense counsel’s argument on findings attacked the
credibility of the positive urinalysis result and the litigation
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package prepared by the Brooks Laboratory. Following
instructions and deliberation the members announced a finding of
guilty to the charge and specification.
D. POST-TRIAL DEVELOPMENTS
Eleven months after trial, appellate defense counsel first
learned of the August 2 error at the Brooks Laboratory. On
appeal, Appellant contends the Government erred by failing to
disclose the report on the erroneous testing of the Blind
Quality Control specimen, violating his right to discovery under
the Rules for Courts-Martial, the UCMJ, and the Constitution.
See R.C.M. 701 (discovery); Article 46, UCMJ, 10 U.S.C. § 846(2000)(opportunity to obtain witnesses and other evidence);
Brady v. Maryland, 373 U.S. 83 (1963)(discovery obligations as a
matter of due process; U.S. Const. Art. V and amend. XIV).
II. DISCOVERY - TRIAL AND APPELLATE STANDARDS
Discovery in the military justice system, which is broader
than in federal civilian criminal proceedings, is designed to
eliminate pretrial “gamesmanship,” reduce the amount of pretrial
motions practice, and reduce the potential for “surprise and
delay at trial.” Manual for Courts-Martial, United States (2002
ed.), Analysis of the Military Rules of Evidence A21-32.
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Under R.C.M. 701(a)(2)(B), the Government must allow the
defense, upon request, to inspect “[a]ny results or reports. . .
of scientific tests or experiments, or copies thereof, which are
within the possession, custody, or control of military
authorities, the existence of which is known or by the exercise
of due diligence may become known to the trial counsel, and
which are material to the preparation of the defense.” In the
absence of a defense request, R.C.M. 701(a)(6) requires the
Government to disclose known evidence that “reasonably tends to”
negate or reduce the accused’s degree of guilt or reduce the
punishment that the accused may receive if found guilty. See
United States v. Williams, 50 M.J. 436, 440 (C.A.A.F. 1999)
(citing Brady). These rules encompass “[e]vidence that could be
used at trial to impeach” witnesses or other evidence presented
by the Government. Id.; see United States v. Watson, 31 M.J.
49, 54-55 (C.M.A. 1990)).
Discovery is not limited to matters within the scope of
trial counsel’s personal knowledge. “[T]he individual
prosecutor has a duty to learn of any favorable evidence known
to others acting on the [G]overnment’s behalf.” United States
v. Mahoney, 58 M.J. 346, 348 (C.A.A.F. 2003)(quoting Strickler
v. Greene, 527 U.S. 263, 281 (1999)). “Trial counsel must
exercise due diligence in discovering [favorable evidence] not
only in his possession but also in the possession . . . of other
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‘military authorities’ and make them available for inspection.”
United States v. Simmons, 38 M.J. 376, 381 (C.M.A. 1993).
“[T]he parameters of the review that must be undertaken outside
the prosecutor’s own files will depend in any particular case on
the relationship of the other governmental entity to the
prosecution and the nature of the defense discovery request.”
Williams, 50 M.J. at 441. The parties bear a “[c]ontinuing duty
to disclose” responsive evidence or material. R.C.M. 701(d).
If the Government fails to disclose discoverable evidence,
the error is tested on appeal for prejudice, which is assessed
“in light of the evidence in the entire record.” United States
v. Stone, 40 M.J. 420, 423 (C.M.A. 1994)(quoting United States v
Agurs, 427 U.S. 97 (1976)). As a general matter, when an
appellant has demonstrated error with respect to nondisclosure,
the appellant will be entitled to relief only if there is a
reasonable probability that there would have been a different
result at trial if the evidence had been disclosed. When an
appellant has demonstrated that the Government failed to
disclose discoverable evidence with respect to a specific
request or as a result of prosecutorial misconduct, the
appellant will be entitled to relief unless the Government can
show that nondisclosure was harmless beyond a reasonable doubt.
See United States v. Roberts, ___ M.J. ___ (C.A.A.F. 2004).
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III. DISCUSSION
The August 2, 2000, report at issue in this case concerned
the failure of the Brooks Laboratory to properly identify a
“Blind Quality Control” specimen by reporting a “negative”
specimen as “positive” for the presence of an illegal substance.
This document is within the defense May 26, 2000 discovery
request for reports or inspections “pertaining to quality
control.” The report was generated on August 2, 2000, less than
four months after Appellant’s specimen was tested, and less than
three months after the defense discovery request. The defense
asked for reports during “the three quarters prior to
[Appellant]’s sample being tested, and the available quarters
since,” and further stated that this was a “continuing request”
that included “any information which you may later discover
before, during or after trial.” The report, which was generated
a month before Appellant’s trial, falls well within the temporal
span of the defense discovery request.
The prosecution’s June 12, 2000, response to the overall
defense discovery request appropriately identified those items
that the Government declined to provide. The prosecution’s
response also asked the defense to narrow its request with
respect to a number of other specific items. In responding to
the defense request for matters “pertaining to quality control,”
however, the prosecution did not assert that the Government
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would decline to provide the requested information, nor did it
ask the defense to narrow the scope of that request. The
Government’s response identified changes in the quality
assurance program at the Brooks Laboratory, and described the
reports that had been requested from it, covering the three
months before Appellant’s specimen was tested, the month of the
testing, and the month after his specimen was tested. On
appeal, the Government asserts that the defense waived the
continuing nature of the discovery request by not objecting to
the Government’s response. We decline to infer waiver in this
case. The defense made a specific request. The Government
expressly identified those items where it rejected or sought to
narrow the defense request, and did not identify matters
“pertaining to quality control” as one of those items. The
defense in this case could reasonably view the Government’s
response as informational in nature and was under no obligation
to infer that the Government was rejecting the continuing nature
of the defense request.
The failure to provide the requested information violated
Appellant’s right to discovery under R.C.M. 701(a)(2)(B). With
respect to prejudice, we note that the prosecution’s case rested
primarily on the urinalysis, including the litigation package
and Dr. Papa’s testimony in support and in explanation of that
package. Although the additional circumstantial evidence
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introduced by the prosecution regarding Appellant’s attitude on
various occasions might have had some marginal value in
rebutting defense suggestions of innocent ingestion, it did not
constitute independent evidence of illegal drug use.
The defense focused its case primarily on the reliability
of the laboratory process. What the defense did not have was a
report, generated by the Government between the time of
Appellant’s urinalysis and the trial, demonstrating that the
laboratory processes had misidentified a negative Blind Quality
Control specimen as positive for the presence of drugs. The
defense could have used the report to demonstrate the existence
of quality control problems, and there is a reasonable
probability that such evidence could have influenced the
members’ judgment about the reliability of the testing process.
A number of factors underscore the prejudicial impact of
the failure to provide the August 2 report. First, the report
provided evidence of potential errors in the testing process
that was more compelling than the other information used by
defense counsel in cross-examination of Dr. Papa. At trial, the
prosecution argued that the deficiencies pointed out by defense
were the result of identifiable problems that could not have
occurred in Appellant’s case. By contrast, the undisclosed
August 2 report stated that “it is inconclusive as to how the
negative [Blind Quality Control] came to have a positive
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result,” and then recognized the possibility of human error by
recommending “that each technician and observer pay closer
attention” to their tasks. This is particularly significant in
light of the fact that three persons involved in the Blind
Quality Control specimen performed the same tasks in preparation
of Appellant’s specimen.
Second, trial counsel emphasized that the defense had
failed to demonstrate specific errors in the testing process,
and contended that the weakness in the defense case served to
validate the accuracy of Appellant’s positive urinalysis result.
Trial counsel stated during closing argument that, “the military
judge has told you [that] you are entitled to infer that the
procedures in the lab for handling and testing the samples were
regular and proper, unless you have evidence to the contrary . .
. [a]nd if you haven’t seen any evidence to the contrary in this
case, you may assume that there were no problems.” Had the
defense possessed the August 2 report at trial, the defense
could have argued that the members had been presented with
evidence of a specific problem in the testing procedures.
We conclude that the error deprived the defense of
information that could have been considered by the members as
critical on a pivotal issue in the case -- the reliability of
the laboratory’s report that Appellant’s specimen produced a
positive result. Given the significance of this information in
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the context of Appellant’s trial the error was prejudicial under
the “harmless beyond a reasonable doubt” standard, see Roberts,
___ M.J. at ___ (standard of review applicable to specifically
requested information), as well as under the standard advocated
in the separate opinion in Roberts, ___ M.J. at ___ (Crawford,
C.J., concurring in the result)(applying the standard of “a
reasonable probability of a different result” in all cases,
regardless of the specificity of the request or prosecutorial
misconduct).
DECISION
The decision of the United States Air Force Court of
Criminal Appeals is reversed. The findings and sentence are set
aside. A rehearing may be ordered.
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CRAWFORD, Chief Judge (concurring in the result):
See my separate opinion in United States v. Roberts,
___ M.J. ___ (C.A.A.F. 2004)(concurring in the result).