United States v. Ayala , 69 M.J. 63 ( 2010 )


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  •                         UNITED STATES, Appellee
    v.
    Benjamin AYALA, Airman First Class
    U.S. Air Force, Appellant
    No. 10-0013
    Crim. App. No. S31550
    United States Court of Appeals for the Armed Forces
    Argued April 6, 2010
    Decided June 9, 2010
    STUCKY, J., delivered the opinion of the Court, in which BAKER
    and RYAN, JJ., joined. EFFRON, C.J., filed a separate
    dissenting opinion, in which ERDMANN, J., joined.
    Counsel
    For Appellant: Captain Marla J. Gillman (argued); Major Shannon
    A. Bennett (on brief).
    For Appellee: Captain G. Matt Osborn (argued); Colonel Douglas
    P. Cordova, Lieutenant Colonel Jeremy S. Weber, and Gerald R.
    Bruce, Esq. (on brief).
    Military Judge:    Gregory O. Friedland
    THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
    United States v. Ayala, No. 10-0013/AF
    Judge STUCKY delivered the opinion of the Court.
    At trial, the military judge convicted Appellant of using
    illegal drugs, based on the results of two command-directed
    urinalyses conducted as follow-ups to a previous positive random
    drug test.   The military judge concluded that the follow-up
    urinalyses were lawful inspections, not inadmissible searches.
    Whether a follow-up urinalysis constitutes an inspection turns
    on the purpose of that examination.      We granted review of the
    following issue:
    WHETHER THE MILITARY JUDGE ERRED IN FINDING
    APPELLANT’S ADDITIONAL URINALYSES CONDUCTED PURSUANT
    TO UNITED STATES V. BICKEL, 
    30 M.J. 277
     (C.M.A. 1990),
    WERE FOR A PERMISSIBLE PURPOSE.
    We hold that the military judge did not err in finding that the
    follow-up urinalyses were conducted for permissible purposes,
    and affirm the judgment of the United States Air Force Court of
    Criminal Appeals (CCA).
    I.
    A special court-martial consisting of a military judge
    sitting alone convicted Appellant, consistent with his plea, of
    one specification of using marijuana.     Article 112a, Uniform
    Code of Military Justice (UCMJ), 10 U.S.C. § 912a (2006).
    Contrary to his pleas, the military judge convicted Appellant of
    two specifications of using marijuana at other times, and one
    specification of using cocaine.    Id.    The convening authority
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    United States v. Ayala, No. 10-0013/AF
    approved the adjudged sentence:    a bad-conduct discharge,
    confinement for five months, forfeiture of $800.00 per month for
    five months, and reduction to the lowest enlisted grade.      The
    CCA affirmed.   United States v. Ayala, No. ACM S31550, 
    2009 CCA LEXIS 266
    , at *9, 
    2009 WL 2211462
    , at *3 (A.F. Ct. Crim. App.
    July 15, 2009) (unpublished).
    II.
    On January 30, 2007, the staff judge advocate (SJA)
    proposed a new drug policy to the wing commander.   “This policy
    would require all members whose urine tests positive for illegal
    drugs to provide another sample for testing by the end of the
    first duty day following receipt of a positive test result.”
    The SJA provided several reasons for his recommendation,
    including:
    •   “If the only evidence available at trial of illegal drug
    use is the positive urinalysis test, court members are
    frequently hesitant to convict the member for illegal drug
    use.”
    •   “Because of the increased opportunity for acquittal in
    illegal drug use prosecutions based solely on a positive
    urinalysis test, more often than not, the accused elects to
    litigate his case at trial. The costs associated with such
    litigation [are expensive].”
    •   “The proposed Urinalysis Re-Inspection provides an
    opportunity to secure a second positive test result against
    the member. . . . [which] would be available at
    trial. . . . [and] substantially increases the likelihood
    of conviction [or guilty plea] . . . .”
    •   Noting United States v. Bickel, 
    30 M.J. 277
     (C.M.A. 1990),
    the SJA recommended the re-inspection “to further aid in
    3
    United States v. Ayala, No. 10-0013/AF
    detecting drug abusers within our active duty population,
    potentially decrease litigation risks and costs, and
    potentially aid in swifter judicial action.”
    Emphases added.
    Two days later, on February 1, 2007, the wing commander
    announced the new policy and stated his purpose for adopting it:
    The purpose of urinalysis inspection is to ensure the
    security, military fitness, and good order and
    discipline. To fulfill that purpose, follow-up
    urinalysis inspection will be utilized as a
    continuation of the original random inspection. The
    unlawful use of controlled substances by a member of
    this installation has the potential to seriously
    undermine our missions, endanger the lives of other
    members, and negatively impact the nation’s security.
    Follow-up urinalysis inspections are part and parcel
    to the random urinalysis inspection program at [Davis-
    Monthan Air Force Base], and not a criminal
    investigative tool, regardless of the admissibility of
    such test results as evidence in [UCMJ] actions.
    Emphases added.
    In June 2008, Appellant was randomly selected to provide a
    urine sample.   In early July, when Appellant’s sample was
    reported as being positive for marijuana, he was directed to
    provide another urine sample for testing, pursuant to the policy
    established by the wing commander on February 1, 2007.    A few
    weeks later, when the second sample tested positive for
    marijuana, Appellant was again directed to provide another urine
    sample for testing.   This test yielded a positive result for
    both marijuana and cocaine.
    4
    United States v. Ayala, No. 10-0013/AF
    At trial, Appellant moved to suppress the follow-up
    examinations as subterfuge searches.   As evidence on the motion,
    the Government submitted, without defense objection, an
    affidavit from the then-retired wing commander, which stated:
    The purpose of the policy was to ensure security,
    military fitness, and good order and discipline. As I
    stated in the 1 Feb [20]07 memorandum, the unlawful
    use of controlled substances by a member assigned to
    the installation has the potential to seriously
    undermine the mission, endanger the lives of other
    members, and negatively impact national security.
    Follow-up urinalysis inspections are part of the
    random urinalysis inspection program . . . and not a
    criminal investigation tool.
    Applying the clear and convincing evidence standard, the
    military judge found that Appellant’s urine samples were
    collected “pursuant to a valid inspection” in accordance with
    Military Rule of Evidence (M.R.E.) 313, and denied the motion.
    III.
    Evidence obtained from inspections conducted in accordance
    with M.R.E. 313 “is admissible at trial when relevant and not
    otherwise inadmissible” under the Military Rules of Evidence.
    M.R.E. 313(a).
    An “inspection” is an examination of the whole or part
    of a unit, organization, [or] installation, . . .
    conducted as an incident of command the primary
    purpose of which is to determine and to ensure the
    security, military fitness, or good order and
    discipline of the unit, organization, [or]
    installation . . . . An examination made for the
    primary purpose of obtaining evidence for use in a
    trial by court-martial or in other disciplinary
    5
    United States v. Ayala, No. 10-0013/AF
    proceedings is not an inspection within the meaning of
    this rule.
    M.R.E. 313(b) (emphasis added).
    A.
    At trial, the Government conceded that it had to establish
    by clear and convincing evidence that the examinations were not
    made for the primary purpose of obtaining evidence for trial.1
    The military judge found that the Government had established by
    clear and convincing evidence that the primary purpose of the
    second and third urinalyses was not to obtain evidence for
    courts-martial, given the wing commander’s sworn statements.
    The military judge further reasoned that an otherwise valid
    inspection does not become an illegal search simply because a
    commander consults with a legal officer or uncovers
    incriminating evidence.
    B.
    We have in the past held that “the military judge’s finding
    regarding the ‘primary purpose’ is a matter of fact, the issue
    of whether the examination is an inspection is a matter of law
    that this Court will review de novo.”    United States v. Gardner,
    
    41 M.J. 189
    , 191 (C.M.A. 1994); accord United States v. Shover,
    1
    As the Government agreed at trial that it had to prove by clear
    and convincing evidence that the examination was an inspection,
    we need not determine whether that is the appropriate standard
    in this case.
    6
    United States v. Ayala, No. 10-0013/AF
    
    45 M.J. 119
    , 122 (C.A.A.F. 1996).2     “Purpose and intent . . . are
    themselves classic questions of fact.”     United States v.
    McCarthy, 
    47 M.J. 162
    , 165 (C.A.A.F. 1997).     Although the
    commander’s stated purpose of conducting an examination is not
    dispositive of the issue, the “primary purpose” of an
    examination is solely dependent upon the intent of the person
    who ordered the examination.   This is a question of historical
    fact for the military judge to determine and which we review for
    clear error.   Shover, 45 M.J. at 122; cf. McCarthy, 47 M.J. at
    165 (reviewing for clear error whether brig officials had an
    intent to punish); United States v. Curtis, 
    33 M.J. 101
    , 105
    (C.M.A. 1991) (reviewing for clear error the military judge’s
    ruling as to discriminatory intent of trial counsel in
    exercising a peremptory challenge).3
    2
    More recently, we suggested that the “primary purpose” of an
    examination might be a mixed question of fact and law. United
    States v. Jackson, 
    48 M.J. 292
    , 295 (C.A.A.F. 1998) (citation
    and quotation marks omitted).
    3
    The Supreme Court has held that questions of intent or purpose
    are still questions of fact reviewable for clear error, even if
    the result in a case turns on the factual finding. See Pullman-
    Standard v. Swint, 
    456 U.S. 273
    , 286 & n.16, 287-88 (1982)
    (civil context; Fed. R. Civ. P. 52(a)); Maine v. Taylor, 
    477 U.S. 131
    , 145 (1986) (criminal context) (“[T]he considerations
    underlying Rule 52(a) -- the demands of judicial efficiency, the
    expertise developed by trial judges, and the importance of
    firsthand observation -- all apply with full force in the
    criminal context . . . . Accordingly, the ‘clearly erroneous’
    standard of review long has been applied to nonguilt findings of
    fact by district courts in criminal cases.”) (citation omitted);
    see also Lynch v. City of New York, 
    589 F.3d 94
    , 105 (2d Cir.
    2009) (primary purpose of breathalyzer policy); United States v.
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    United States v. Ayala, No. 10-0013/AF
    IV.
    In this case, the military judge had three pieces of
    evidence before him relating to the purpose of the re-
    examinations:   (1) the SJA’s legal memorandum to the wing
    commander focusing on the benefits of additional urinalyses in
    obtaining convictions; (2) the wing commander’s subsequent
    policy memorandum to his commanders and first sergeants stating
    military purposes; and (3) the wing commander’s affidavit
    reiterating those military purposes.
    While the SJA’s memorandum is strong evidence of his intent
    in recommending the retesting policy be implemented, our focus
    is on the commander’s purpose in ordering the examination, and
    we do not attribute to the commander “every instance of advice
    or expression of opinion by an SJA.”   United States v. Hamilton,
    
    41 M.J. 32
    , 37 (C.M.A. 1994).
    The wing commander initially stated that his purpose in
    ordering the re-examinations was to ensure “security, military
    fitness, and good order and discipline,” and he subsequently
    reaffirmed that purpose in his affidavit.   That comports with
    M.R.E. 313(b)’s definition of an inspection:   “an
    examination . . . conducted as an incident of command the
    primary purpose of which is to determine and to ensure the
    Green, 
    293 F.3d 855
    , 859 (5th Cir. 2002) (primary purpose of
    checkpoint); United States v. Davis, 
    270 F.3d 977
    , 980 (D.C.
    8
    United States v. Ayala, No. 10-0013/AF
    security, military fitness, or good order and discipline of the
    unit.”   Appellant offered no objection to the admission of the
    wing commander’s affidavit.   If Appellant had desired to further
    test the purpose of the policy, he could have sought to depose
    the wing commander or demand his presence at trial so he would
    be subject to cross-examination.       Appellant did not do so, and
    did not present any other evidence showing that the
    examination’s purpose was other than the one announced by the
    wing commander.
    As such, the military judge’s finding that the Government
    had proved by “clear and convincing” evidence that the
    examination was conducted “to ensure the security, military
    fitness and good order and discipline of the 355th Wing” was not
    clearly erroneous.   That being the case, the military judge did
    not err in finding that Appellant’s additional urinalyses were
    conducted for a permissible purpose.
    V.
    The judgment of the United States Air Force Court of
    Criminal Appeals is affirmed.
    Cir. 2001) (same).
    9
    United States v. Ayala, No. 10-0013/AF
    EFFRON, Chief Judge, with whom ERDMANN, Judge, joins
    (dissenting):
    A drug testing program based upon misapplication of the law
    governing inspections produced the evidence used to convict
    Appellant of the charges at issue.    The prosecution at trial
    failed to meet its burden of demonstrating by clear and
    convincing evidence that the evidence was obtained from a lawful
    inspection.    For the reasons set forth below, I would set aside
    the findings at issue and remand the case for further
    proceedings.
    I.   SEARCHES AND INSPECTIONS
    Military law provides a critical distinction between
    searches and inspections.    Under the Military Rules of Evidence
    (M.R.E.), a search of a person or area for specified property or
    evidence may be authorized by competent military or civilian
    authority based upon probable cause.    M.R.E. 315.    In the
    absence of probable cause, evidence obtained from a reasonable
    search is admissible under the limited circumstances specified
    in M.R.E. 314.
    M.R.E. 313, which governs military inspections, contains
    substantive and procedural provisions that reinforce the
    distinction between inspections and searches.       In pertinent
    part, the rule defines an inspection as “an examination . . .
    United States v. Ayala, No. 10-0013/AF
    conducted . . . as an incident of command the primary purpose of
    which is to determine and to ensure the security, military
    fitness, or good order and discipline, of the unit . . . .”
    M.R.E. 313(b).    An inspection may include an examination to
    ensure that “personnel are present, fit, and ready for duty.”
    
    Id.
         An inspection may include “an examination to locate and
    confiscate unlawful weapons and other contraband,” and may
    include an order “to produce body fluids, such as urine . . . .”
    
    Id.
         However, an “examination made for the primary purpose of
    obtaining evidence for use in a trial by court-martial or in
    other disciplinary proceedings is not an inspection” under the
    rule.    
    Id.
       In short, the determination of whether an
    examination constitutes an inspection or a search depends on its
    primary purpose.
    When “a purpose of an examination is to locate weapons or
    contraband,” the rule sets forth a specific procedure for
    determining whether the examination is a search or an
    inspection.    
    Id.
       In pertinent part, the rule provides that when
    “specific individuals are selected for examination . . . the
    prosecution must prove by clear and convincing evidence that the
    examination was an inspection within the meaning of this rule.”
    
    Id.
    Depending on the circumstances, a drug test designed to
    locate illegal substances may constitute an inspection or a
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    United States v. Ayala, No. 10-0013/AF
    search.   As with any other examination for contraband, the
    determination of whether a drug test is an inspection or a
    search depends on whether the prosecution can meet the burden of
    establishing by clear and convincing evidence that the
    circumstances constituted an inspection under the rule.    The
    distinction is crucial.    If the examination is a search, the
    evidence is inadmissible unless the prosecution can establish
    that the search was an authorized probable cause search under
    M.R.E. 315, or that the search fits within an exception under
    M.R.E. 314.     If, however, the prosecution establishes by clear
    and convincing evidence that the examination constituted an
    inspection, then the evidence is admissible without regard to
    the requirements of M.R.E. 314 or 315.    See M.R.E. 313(a).
    II.   THE DRUG TESTING PROGRAM DESIGNED BY THE SJA
    In the present case, the SJA recommended that the unit
    commander approve and implement the SJA’s proposal for a
    “Urinalysis Re-Inspection Policy.”     Under the SJA’s proposed
    policy, servicemembers whose urine tested positive for illegal
    drugs would be required to provide another sample for testing.
    The SJA included with his policy proposal an “attached
    memorandum” for the commander to sign to implement the program.
    The SJA’s recommendation memorandum describes, defends, and
    recommends a program of drug testing that focuses expressly and
    3
    United States v. Ayala, No. 10-0013/AF
    directly on the prosecution of drug cases.    The SJA informed the
    commander that:    “If the only evidence available at trial of
    illegal drug use is the positive urinalysis test, court members
    are frequently hesitant to convict the member for illegal drug
    use.”    The SJA expressed concern that “the increased opportunity
    for acquittal in illegal drug use prosecutions based solely on a
    positive urinalysis test,” meant that “more often than not, the
    accused elects to litigate his case at trial,” leading to “costs
    associated with such litigation . . . .”
    The SJA further stated that the proposed policy would
    remedy this problem by creating the potential for the court-
    martial to consider two positive test results.    In his opinion,
    that would “increase[] the likelihood of conviction if the trial
    is litigated”; establish “a significant[] likelihood that the
    member would plead guilty”; and incentivize members to “request
    early and rapid disposition of charges associated with the
    initial positive test before the results of the second test are
    known.”    The SJA recommended that the commander establish the
    retesting program “to further aid in detecting drug abusers
    within our active duty population, potentially decrease
    litigation risks and costs, and potentially aid in swifter
    judicial action.”
    The SJA’s recommendation memorandum, infused with concern
    about the litigation of drug cases, constituted a proposal to
    4
    United States v. Ayala, No. 10-0013/AF
    use drug testing “for the primary purpose of obtaining evidence
    for use in a trial by court-martial or other disciplinary
    proceedings.”    M.R.E. 313(b).   As such, the proposal amounted to
    a proposal to conduct searches, not inspections.    See 
    id.
    III.    THE COMMANDER’S IMPLEMENTING MEMORANDUM
    Two days after receiving the SJA’s proposal, the commander
    signed an implementing memorandum entitled “Urinalysis Re-
    Inspection.”    The implementing memorandum set forth the
    program’s requirements and included the following:
    The purpose of urinalysis inspection is to ensure the
    [sic] security, military fitness, and good order and
    discipline. To fulfill that purpose, follow-up
    urinalysis will be utilized as a continuation of the
    original random inspection. The unlawful use of
    controlled substances by a member of this installation
    has the potential to seriously undermine our missions,
    endanger the lives of other members, and negatively
    impact the nation’s security. Follow-up urinalysis
    inspections are part and parcel to the random
    urinalysis inspection program [at the base], and not a
    criminal investigative tool, regardless of the
    admissibility of such test results as evidence in
    Uniform Code of Military Justice actions. Follow-up
    urinalysis inspections should not interfere with or
    impede any potential criminal investigation.
    Subsequently, at trial, the Government introduced into
    evidence a two-paragraph affidavit from the commander taken
    approximately twenty months after implementation of the policy.
    In the affidavit, which echoed the implementing memorandum, the
    commander stated:
    5
    United States v. Ayala, No. 10-0013/AF
    The purpose of the policy was to ensure security,
    military fitness, and good order and discipline. As I
    stated in the 1 Feb 07 memorandum, the unlawful use of
    controlled substances by a member assigned to the
    installation has the potential to seriously undermine
    the mission, endanger the lives of other members, and
    negatively impact national security. Follow-up
    urinalysis inspections are part of the random
    urinalysis inspection program at Davis-Monthan AFB,
    and not a criminal investigation tool.
    In the present appeal, the findings at issue were based on
    evidence obtained under the retesting program.   The military
    judge denied a defense motion to suppress the evidence, ruling
    that the retesting program constituted a valid inspection.
    IV.   DISCUSSION
    The SJA provided the commander with a detailed
    recommendation for a program that would serve the purpose of
    enhancing the prosecution’s litigation posture in drug testing
    cases.   Under M.R.E. 313(b), an “examination made for the
    primary purpose of obtaining evidence for use in a trial by
    court-martial or in other disciplinary proceedings is not an
    inspection within the meaning of this rule.”   Do the brief
    statements in the implementing memorandum, echoed in the
    commander’s affidavit, meet the Government’s burden to establish
    by “clear and convincing evidence that the examination was an
    inspection” under M.R.E. 313(b)?
    6
    United States v. Ayala, No. 10-0013/AF
    The SJA’s policy proposal to the commander came in the form
    of a recommendation.   As such, the commander was free to reject
    the SJA’s views.   In the two-day period between receipt of the
    SJA’s recommendation and issuance of the commander’s
    implementing memorandum, it is possible that the commander
    engaged in or otherwise obtained independent legal research,
    identified the deficiencies in the SJA’s proposal, rejected the
    SJA’s approach, and drafted his own implementing memorandum.
    Did the prosecution prove, by clear and convincing evidence,
    that the commander did so?
    The Government had the opportunity at trial to demonstrate
    that the implementing memorandum signed by the commander
    differed from the draft attached to the SJA’s recommendation
    memorandum, but the Government did not place the draft into
    evidence or otherwise offer evidence on that matter.      The
    Government had the further opportunity to offer testimony by the
    commander, the SJA, or other officials to demonstrate that the
    commander had rejected the policy’s purpose expressed in the
    SJA’s recommendation memorandum.       The Government did not do so.
    The prosecution offered no evidence on those points, and the
    military judge entered no findings of fact as to whether the
    commander had rejected or adopted the views of his SJA.
    The record in this case reflects two competing narratives.
    In one, the SJA drafted a policy for an improper purpose,
    7
    United States v. Ayala, No. 10-0013/AF
    provided the commander with an implementing memorandum that
    masked that purpose behind the facade of an inspection policy,
    and the commander adopted the policy in that context.    In the
    second, the SJA drafted a policy for an improper purpose, the
    commander rejected that purpose, and the commander drafted a new
    implementing policy with a proper purpose.   In the face of the
    SJA’s detailed and unambiguous recommendation that the commander
    adopt a program to produce evidence for use in courts-martial,
    the prosecution was obligated to fill in the details -- to
    demonstrate by clear and convincing evidence that the commander
    rejected the SJA’s improper purpose for the program and that he
    authorized an inspection program for a proper purpose.   The
    prosecution did not do so.   Because the prosecution failed to
    meet its burden, I respectfully disagree with the majority’s
    decision to affirm.
    8
    

Document Info

Docket Number: 10-0013-AF

Citation Numbers: 69 M.J. 63

Judges: Baker, Effron, Ryan, Stucky

Filed Date: 6/9/2010

Precedential Status: Precedential

Modified Date: 8/5/2023