22 Feb ii

IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

UNITED STATES Appellee,

Staff Sergeant (E-5) HA/tLEY T. LUSK, USAF Appellant.

USCA Dkt. No. II-0166/AF Crim. App. Dkt. No. $31624

APPELLANT’S BRIEF IN SUPPORT OF GRANTED ISSUE

PHILLIP T. KORMAN, Captain, USAF Lead Appellate Defense Counsel USCAAF Bar No. 32978

GAIL E. CRAWFORD, Lt Col, USAF Chief Appellate Defense Counsel USCAAF Bar No. 30750

ERIC N. EKLUND, Colonel, USAF Chief Appellate Defense Division U.S.C.A.A.F. Bar No. 26473 Air Force Legal Operations Agency 112 Luke Avenue, Suite 343 Bolling AFB, DC 20032-8000 (202) 767-1562

TABLE OF CONTENTS Table of Authorities .......................................... ii Issues Presented ................................................ 1 Statement of Statutory Jurisdiction ............................. 2 Statement of Proceedings ........................................ 1 Statement of Facts .............................................. 3 Summary of the Argument ........................................ 13 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 .......................................... 16 II. THE AFCCA ERRED IN FINDING THAT THE TRIAL JUDGE’ S FAILURE TO GIVE A LIMITING INSTRUCTION REGARDING ADMISSION OF THE AFIP RETEST RESULT WAS HARMLESS BEYOND A REASONABLE DOUBT .......... 23 III. THE AFCCA ERRED, AFTER FINDING TESTIMONIAL EVIDENCE HAD BEEN IMPROPERLY ADMITTED AT TRIAL, BY CONCLUDING THAT THE TRIAL ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT ........................ 26 IV. THE TRIAL DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE AFDTL DRUG TESTING REPORT FORFEITED THE CONFRONTATION CLAUSE ISSUE WITH RESPECT TO THAT REPORT; ADMISSION OF THAT REPORT CONSTITUTED PLAIN ERROR AND WAS NOT HARMLESS ...................................................... 29

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TABLE Or AUTHORITIES United States Constitution passim U.S. Const. amend. VI ..................................... Federal Statutes i0 U.S.C. § 866, Article 66, UCMJ .............................. 2 i0 U.S.C. ~ 867, Article 67, UCMJ .............................. 2 United States Supreme Court Chapman v. California, 386 U.S. 18 (1967) ..................... 24 Crawford v. Washington, 541 U.S. 36 (2004) ................ passim Griffeth v. Kentucky, 479 U.S. 314 (1987) .................. 35,37 Johnson v. United States, 520 U.S. 461 (1997) ................. 36 Johnson v. Zerbst, 304 U.S. 458 (1938) ..................... 30-31 passim Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) .... United States v. Olano, 507 U.S. 725 (1993) ................... 31 Court of Appeals for the Armed Forces United States v. Banker, 60 M.J. 216, 223 (C.A.A.F. 2004) ..... 19 passim United States v. ., 68 M.J. 439 (C.A.A.F. 2010) ..... United States v. Blazier, 69 M.J. 218 (C.A.A.F. 2010) ..... passim passim United States v. Brewer, 61 M.J. 425 (C.A.A.F.2005) ....... United States v. Campos, 67 M.J. 330 (C.A.A.F. 2009) ...... passim United States v. Clayton, 67 M.J. 283 (C.A.A.F. 2009) ......... 16 United States v. Damatta-Olivera, 37 M.J. 474 (C.M.A. 1993)...24 United States v. Gilley, 56 M.J. 113 (C.A.A.F. 2001) .......... 26 United States v. George, 52 M.J. 259 (C.A.A.F. 2000) ....... 19-20

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27 United States v. Hall, 58 M.J. 90 (C.A.A.F. 2003) ............. passim United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008) ..... 24 United States v. Kasper, 58 M.J. 3!4 (C.A.A.F. 2003) .......... 34-35 United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006) ...... 19-20,24 United Statues v. Neeley, 25 M.J. 105 (C.M.A. i987) ...... 31 United States v. Powell, 49 M.J. 460 (C.A.A.F. 1998) .......... 16 United States v. Rankin, 64 M.J. 348 (C.A.A.F. 2007) .......... 16 United States v. Rodriguez, 60 M.J. 239 (C.A.A.E. 2004) ....... 21 United States v. Sojfer, 47 M.J. 425 (C.A.A.F. 1998) .......... United States v. Tyndale, 56 M.J. 209 (C.A.A.F. 2001)...26-27,31 20 United States v. Williams, 43 M.J. 348 (C.A.A.F. 2000) ........ Federal Courts of Appeal Turner v. Burlington Northern Santa Fe Railroad Company, 338 19 F.3d 1058 (9th Cir. 2003) ..................................... Service Courts United States v. Blazier, 68 M.J. 544 (A.F. Ct. Crim. App. 2008) ......... . .................................................... 34 United States v. Harris, 65 M.J. 594 (N.M. Ct. Crim. App. 34 2007) ......................................................... United States v. Lusk, ACM $31624 (A.F. Ct. Crim. App. 14 Oct 2010) ................................................ 14-15,25,28 State Courts 21 People v. Goldstein, 843 N.E.2d 727 (N.Y. 2005) ............... 35 Commonwealth v. Verde, 827 N.E.2d 701 (Mass. 2005) ............

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Hilitary Rules of Evidence H.R.E.

103 ....................................................

H.R.E.

105 .................................................

H.R.E.

403 ...........................................

H.R.E.

702 ....................................................

H.R.E.

703 ................................................

31 14,24 10,13,18-19 18 passim

Federal Rules of Evidence 19 F.R.E. 703 ....................................................

iv

IN THE UNITED STATES COURT OF APPEALS UNITED STATES, Appellee

FOR THE ARHED FORCES

BRIEF IN SUPPORT OF PETITION GRANTEE,

V.

USCA Dkt. No. II-0!66/AF Staff Sergeant (E-5) HARLEY LUSK, USAF,

Crim. App. No. $31624

TO THE HONORABLE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES:

Granted Issues

WHETHER SMITH’S

THE TESTIMONY

MILITARY OF

JUDGE THE

ERRED

AFIP

DRUG

IN TEST

ADMITTING RESULT

DR. UNDER

MRE 703 IN VIOLATION OF THE CONFRONTATION CLAUSE?

II. WHETHER THE AFCCA ERRED IN FINDING THAT THE TRIAL JUDGE’S FAILURE TO GIVE A LIMITING INSTRUCTION REGARDING ADMISSION OF THE AFIP RETEST RESULT WAS HARMLESS BEYOND A REASONABLE DOUBT? III. WHETHER THE AFCCA ERRED, AFTER FINDING TESTIMONIAL EVIDENCE HAD BEEN IMPROPERLY ADMITTED AT TRIAL, BY CONCLUDING THAT THE TRIAL ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT.

IV. WHETHER THE TRIAL DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE AFDTL DRUG TESTING REPORT WAIVED OR FORFEITED THE CONFRONTATION CLAUSE ISSUE WITH RESPECT TQ THAT REPORT; IF THE ISSUE WAS FORFEITED, WHETHER THE ADMISSION OF THAT REPORT CONSTITUTED PLAIN ERROR; AND IF THE ADMISSION CONSTITUTED PLAIN ERROR, WHETHER THE ADMISSION WAS HARMLESS. SEE UNITED STATES V. CAMPOS, 67 M.J. 330 (C.A.A.F. 2009); UNITED STATES V. HARCROW, 66 M.J. 154 (C.A.A.F. 2008). 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 Proceedings On 8-10 December 2008, SSgt Lusk was tried by a specialmartial 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 l!2a, and, contrary to his plea, was found guilty of the charge. SSgt Lusk was sentenced to a reduction to the grade of E-I and to be discharged with a bad conduct discharge. Jt. App. at 395. On 17 March 2009, the convening authority approved the sentence as adjudged and, 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. Id. at I. The Appellate Records Branch notified the Appellate Defense Division that a copy of 2

the Court’s decision was deposited in the United States mail by first-class certified mail to the last address provided by SSg~ Lusk on 14 October 2010. This Honorable Court granted review on 26 January 2011, and specified an additional issue on 28 January 2011. Statement of Facts On 17 March 2008, after returning to Holloman AFB, NM, from spending the weekend at his home in E1 Paso, TX, SSgt Lusk provided a urine sample pursuant to a unit sweep. Id. at 43, 45, 281, 287, 293. SSgt Lusk’s sample was tested at the Air Force Drug Testing Laboratory (AFDTL), a forensic laboratory at Brooks City Base. Id. at 405, 431. Analysts at the AFDTL performed an initial immunoassay screen, which found the sample to be presumptive positive for benzoylecgonine (BZE), the metabolite for cocaine. Id. at 441. SSgt Lusk’s sample was separated from the negative samples, underwent an immunoassay re-screen test, and again tested positive for cocaine. Id. at 441, 444. Analysts then performed Gas Chromatography/Mass Spectrometry (GC/MS) testing on the sample. Id. at 447-49. The AFDTL compiled a 32 page Drug Testing Report (DTR) dated 22 April 2008, composed of chain of custody documents signed by analysts, data recordings, computer print-outs of results, and instrument-generated chromatographs. Id. at 4323

464. A cover letter, signed by Marino Jaramiilo, the Results Reporting Assistant, Drug Testing Division, for the Air Force Medical Operations Agency, reported that SSgt Lusk’s sample tested positive for BZE at a level of 201 ng/mL where the DoD cut-off is i00 ng/mL. Id. at 432. At trial, when the trial judge asked if there was any objection to the AFDTL DTL, SSgt Lusk’s trial defense counsel responded, "No, Your Honor." Id. at 38. On 3 November 2008, Captain Erik Tjader, detailed trial counsel, requested that another DoD certified lab retest SSgt Lusk’s sample to "rebut defense allegations of lab mishandling." Id. at 554. This request bears the handwritten words "COC 201" next to the numbers used to identify SSgt Lusk’s sample. Id. In response, on 13 November 2008, Cynthia Caballero, a medical technician at Brooks City Base, forwarded a toxicological request to the Armed Forces Institute of Pathology (AFIP) for SSgt Lusk’s sample. Id. at 553. This request provides "Test for COC (COCAINE using GC/MS" as the basis for the re-test request. Id. The AFIP Toxicology Accessioning Worksheet ("Worksheet") identified SSgt Lusk’s case as "IN," for investigation.

Id. at

555. This Worksheet contains handwritten words informing that "urine leaked in transit." and stated "BE only per Joe." Id.

Amber Dickson, an AFIP analyst, performed :he AFIP re-test on SSgt Lusk’s sample, and Dr. J.F. Jemionek, the certifying forensic scientist, performed a review and signed a document entitled "Quantitation Chain of Custody." Id. at 556. Dr. Jemionek signed the AFIP Quantitation Chain of Custody form essentially stating that BZE was detected in SSgt Lusk’s sample a% a level of 0.13 mg/mL. Id. On 18 November 2008, the AFIP generated a consultation report with a cover letter memorandum asserting the following: "Positive Cocaine metabolite: Benzoylecgonine was detected in the urine by gas chromatography/mass spectrometry." Id. at 552. Dr. Barry Levine, Director of the Forensic Toxicology Laboratory, placed his signature beneath this statement. Id. At trial, SSgt Lusk’s defense counsel made a motion in limine for the court to "preclude the prosecution from eliciting testimony from Dr. Michael Smith regarding the analysis and results performed by employees" of the AFIP lab. Id. at 547. The motion identified Cynthia Caballero, Garland Haguard, Amber Dickson, Dr. J.F. Jemionek, and Dr. Barry Levine as personnel involved in the investigative testing of SSgt Lusk’s sample. Id. at 547-48. SSgt Lusk’s trial defense counsel argued that since his sample was known to have previously tested positive when it was sent to AFIP for a re-test under Harcrow, admitting the AFIP drug testing "report and the testimony thereof would elicit 5

hearsay in violation of Sergeant Lusk’s opportunity to confront those witnesses against him under the 6th Amendment." Id. at 2021,

24. During the hearing, the trial judge asked that: if he were

to grant SSgt Lusk’s motion in limine, whether "this could come in as rebuttal evidence and under what circumstances?" Id. at 25. SSgt Lusk’s trial defense counsel asserted, "our client does not waive his 6th Amendment right to confront witnesses by means of Government rebuttal." Id. at 26. The Government argued "that the accused’s 6th Amendment rights are not violated by them [accused] not having an opportunity to cross-examine because all it is, is simply rebuttal evidence." Id. at 28. The trial judge initially granted the Defense counsel’s motion in limine, concluding that since the AFIP document was prepared while SSgt Lusk was under investigation, it was testimonial in nature under Harcrow. Id. at 31-32. Subsequently, the trial judge clarified that the motion in limine was intended to keep out not only the test documents themselves, but also the AFIP "test results." Id. at 214. Dr. Michael Smith, a forensic toxicologist who serves as a reviewer of laboratory reports and as an expert witness with the AFIP, testified for the Government about the drug testing procedures at the AFDTL as an expert witness in the field of forensic toxicology. Id. at 96-97, 102, 106. The AFIP is 6

responsible for developing testing procedures, for inspecting, and for recommending certifications for all the laboratories used by the services. Id. at 102-03. Earlier in his career, Dr. Smith had inspected the AFDTL, had reviewed its inspection reports, and was familiar with its testing procedures. Id. at 101-02. Dr. Smith never personally tested SSgt Lusk’s sample, was not present at the AFDTL during the analysis of his sample, and was not employed by the AFDTL at the time of the urinalysis. Id. at 157. He discussed the immunoassay screen, re-screen, and the GC/MS tests and asserted that all three tests were positive for SSgt Lusk’s sample. Id. at 107-08, 132. Dr. Smith testified that the three sets of identification numbers associated with SSgt Lusk’s sample on the memorandum matched these numbers on the AFDTL report and matched the numbers on the bottle. Id. at 131-32, 432. With this same cover memorandumI listing three tests conducted on SSgt Lusk’s

~Page 1 of Prosecution Exhibit ii states the following: The urine specimen identified by Base Identification Number F545-033-815, SSAN..., and Laboratory Accession was tested at the Air Force Number B0803160015, Medical Operations Agency (AFMOA), Drug Testing Division (DTD). The specimen was determined to be presumptive positive by the "screen" and the "rescreen" immunoassay procedures. The specimen was then confirmed positive by Gas Chromatography/Mass Spectrometry (GC/MS) .

sample and their positive result, Dr. Smith testified that the three tests "were all positive for benzoylecgonine." Id. at 130-133; 432. He then reviewed the DTR in detail, and based on his review, asserted that all three positive tests conducted at the AFDTL fell within scientific standards and were reliable. Id. at 134-151. After the Government’s direct examination of Dr. Smith, SSgt Lusk’s trial defense counsel introduced numerous exhibits highlighting testing problems at the AFDTL, including an incident of inattention by two laboratory certifying officials who had reviewed the sample identified with SSgt Lusk. Id. at 152-53; 465-530; 545-46. The Armed Forces Institute of Pathology (AFIP) conducted a quality assurance review of the ATDTL, and had uncovered this latter incident. Id. at 545-46. Following Dr. Smith’s cross-examination by the defense counsel, the trial counsel requested that the judge allow him to ask Dr. Smith about the basis for his opinion on the reliability of the AFDTL test result with the understanding that he would testify about the confirmatory AFIP test result. Id. at 157203; 210-11. In reconsidering his ruling, the trial judge wondered "if the confrontation clause is no longer an issue on rebuttal," and "whether this would be proper testimony under Military Rules of Evidence 703 for the expert witness .... Id. at 214, 217-18.

In a hearing before the trial judge, Dr. Smith stated that he based his opinion of the reliability of the AFDTL test on "information that was in the data packet from Brooks and also the fact that the presence of benzoylecgonine had been confirmed by AFIP." Id. at 317. He stated that the AFIP report was the type of report commonly relied upon by experts in his field. Id. at 323.

Dr. Smith admitted that his opinion depended on

more than print-outs and that an error by a technician could affect the GC/MS print-out results. Id. at 319, 322. He acknowledged the report excluded information regarding preparatory steps conducted by a technician prior to a GC/MS run, including the extraction phase and temperature of the water bath. Id. at 324-25. When asked if he had "any concern that things were not done properly?", Dr. Smith replied, "No, I don’t because when the analyst signs on the document they are essentially making a statement that they followed the operating procedure." Id. at 325-26. The defense counsel then asked, "So, you are relying upon that statement from the analyst making your conclusion?" Id. Dr. Smith responded, "I am relying upon both that and the fact that our analysts, you know, have in the past followed the operating procedures." Id. at 326. On re-direct, he testified that he also relied on his expertise, knowledge of the AFIP

procedures, and print-outs from the gas chromatograph. I~. a% 327. The trial defense counsel argued that H.R.E. 4@3 should be applied to exclude evidence of %he AFIP confirmation test results. £d. at 329-30. The trial judge found that the expert testified that he considered the AFIP report in his testimony. Id. at 332. The judge believed that counsel was not attempting to smuggle in hearsay through the expert and was concerned that it would be a misrepresentation to not allow the members to consider the AFIP confirmation results. £d. The judge declined to admit the AFIP report due to Crawford concerns but did find under H.R.E. 403 that the probative value of the ANIP result was not substantially outweighed by the danger of unfair prejudice or confusion of the issues. ~d. at 334. The trial judge ruled that under H.R.E. 703 he would "allow Dr. Smith to testify in a limited fashion" that in reaching his conclusions about the reliability of the lab and the report "he did cons±der a confirmatory test that was conducted by AFIP and that was part of the basis for his opinion." ~. at 335. The trial judge stated that he would "craft an instruction that they 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 ....

" ~. at 336.

t0

The trial judge later stated that the trial counsel could have Dr. Smith testify "that it is a confirmatory test and the witness will be allowed to testify as a confirmatory positive test ....

" Id. at 341-42. The Government re-called Dr.

Smith, who testified that his opinion regarding the reliability of the AFDTL result was based in part on a confirmation GC/MS test performed by the AFIP. Id. at 344-45. When asked about the AFIP result, he stated "it showed the presence of benzoylecgonine." Id. at 344-45. SSgt Lusk’s trial defense counsel then cross-examined Dr. Smith about the AFIP test for approximately 15 pages of the record of trial. Id. at 345-359. Dr. Smith testified that while the AFDTL tested BZE levels at 201 ng/mL, the AFIP found the BZE concentration to be 130 ng/mL. Id. at 360. At the conclusion of the prosecution’s case-in-chief, the trial judge stated that "[a]fter 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 .... " Id. at 374-381. SSgt Lusk’s trial defense counsel then asserted, ~[w]e are just going to state an objection for the record that it is still hearsay that you relied upon, it is testimonial hearsay and the evidence was not introduced before the members. So, we would object to not having any instruction." Id. at 382.

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Victor Hernandez and Saul Oiivas, two of SSgt Lusk’s friends who spent time with him in E1 Paso, TX, during the relevant weekends in March 2008, asserZed that they never saw him use cocaine or act goofy. Id. at 259-263; 267--272. MSgt Sonia Purcell, who worked with SSgt Lusk the week before the unit sweep, never saw him use cocaine or act like he was high on drugs. Id. at 307, 312-13. Four military witnesses provided affidavits attesting to SSgt Lusk’s good military character, and four affidavits attest to his truthfulness. Id. at 536-43. SSgt Lusk testified to his activities the weekend before the unit sweep and denied using cocaine. Id. at 290, 293. During closing argument, the trial counsel asserted that Dr. Smith "told you that the reliability of the test wasn’t based solely on that one drug testing report." Id. at 390. Trial counsel continued, "He said there was another test out there and it was the results of that test that help them understand the reliability of the Brooks test and that was from AFIP ....

That test right there confirmed the Brooks test."

Id. Trial counsel argued that for the members to disbelieve the AFDTL result, they "would have to essentially expect that lightning struck twice for SSgt Lusk." Id. at 390-91. He continued that "when it was retested, darn it, it happened again for Sergeant Lusk." Id. at 391. Trial counsel later reminded the panel that "Dr. Smith also testified that he didn’t just 12

rely on the Brooks test; there was another test out there that confirmed it" and that "both of these tests say that there was BZE in his urine." Id. at 392-93. Additional facts will be added where appropriate. Summary of the Argument I. The military judge erred when he applied M.R.E. 4@3’s inclusive balancing test rather than M.R.E. 703’s exclusive balancing test to determine whether the AFIP result should be admitted through Dr. Smith’s testimony to rebut attacks on the credibility of the AFDTL. While the AFIP result is probative of Dr. Smith’s opinion on the reliability of the AFDTL test, its admission ran a significant risk that the members would consider the result for its truth rather than merely as the basis for Dr. Smith’s opinion. Furthermore, Dr. Smith’s initial direct testimony appeared to simply transmit the AFIP finding to the members and thereby buttress the AFDTL result with their conclusions. Relaying the AFIP result through Dr. Smith was also prejudicial to the extent this procedure precluded SSgt Lusk from confronting the AFIP testing analysts for possible deficiencies in honesty, training, and proficiency. In considering the M.R.E. 703 balancing test, the military judge should have also weighed how such prejudice would impact SSgt Lusk in light of his already compromised status due to the

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admission of the testimonial AFDTL memorandum and report. The probative value of the admitting the AFIR result to Dr. Smith’s opinion did not "substantially outweigh" the prejudice to SSgt Lusk and his right to Confrontation. The military judge’s abuse of discretion therefore violated the Confrontation Clause.

The AFCCA erred when it concluded that the military judge’s failure to provide a limiting instruction when he admitted the AFIP result was harmless error. H.R.E. 1@5 requires that a military judge instruct members to limit their consideration where evidence is admitted that is admissible for one purpose but not admissible as to another purpose. Failure to provide a limiting instruction enabled the members to consider the AFIP retest result not merely as a basis for Dr. Smith’s opinion as to the reliability of the AFDTL test, but also for the truth of the matter asserted. Indeed, in its closing argument, the Government urged the members to consider a second, independent test. Contrary to the AFCCA’s understanding, the trial judge’s error was not harmless as it tended to undermine an alternate defense theory that no use of cocaine occurred. XII. Under Blazier, the Government violated SSgt Lusk’s right to confrontation when it admitted a cover memorandum from the AFDTL announcing the forensic tests performed and 14

the results as evidence against SSgt Lusk at [rial in the absence of the attesting drug reporting assistant and without a showing of her unavailability and a prior opportunity for confrontation. The AFCCA erred when it concluded that admission of this testimonial statement was harmless because Dr. Smith testified from the entire report how it supported his independent opinion. When reviewing the testimonial cover memorandum, Dr. Smith effectively parroted the salient test results contained on the cover memorandum, multiplying the prejudicial error. Considering this error, the strength of SSgt Lusk’s good character defense, and the Government’s complete reliance on forensic evidence, the Government is unable to show that the error was harmless beyond a reasonable doubt. IV. Given the dynamic state of the law with the Supreme Court’s constitutional ruling in Melendez-Diaz, under Harcrow, SSgt Lusk forfeited, rather than waived his Sixth Amendment right to object to the testimonial hearsay contained within the laboratory report. In view of Melendez-Diaz and the Blazier cases, admission of the analysts’ testimonial signatures, certification, or stamps within the laboratory report for use in a criminal prosecution in the absence of a showing the analysts’ 15

unavailability and a prior opportunity for crossexamination, was plain error. In view of the entire record of this closely contested naked urinalysis case, including the admission of the AFIP result and evidence of SSgt Lusk’s good military character and his character for truthfulness, the misuse of the analysts’ testimonial hearsay to bolster Dr. Smith’s testimony was not harmless beyond a reasonable doubt where Dr. Smith was not an employee of the AEDTL and played no role in the testing. 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 decision to admit or exclude evidence is reviewed for an abuse of discretion. United States v. Clayton, 67 M.J. 283, 286 (C.A.A.F. 2009). An abuse of discretion review entails examining a trial judge’s findings of fact using a clearly-erroneous standard and conclusions of law de novo. United States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004). Whether individual hearsay statements violate the Confrontation Clause is reviewed de novo. United States v. Rankin, 64 M.J. 348, 351 (C.A.A.F. 2007).

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Law and Analysis In Crawford v. Washington, 541U.S. 36 (2004), the Supreme Court adopted a "testimonial" approach to the Confrontation Clause, which permitted the prosecution to use testimonial statements of witnesses who did not appear at trial only when those witnesses were unavailable to testify and the defendant had a prior opportunity for cross-examination. Id. at 53-54. In Crawford, the Supreme Court identified three broad categories of "core" testimonial evidence: ex parte in-court testimony, extrajudicial statements in formalized trial materials, and statements made under circumstances that would cause a reasonable witness to believe they could be used at trial. See Id. at 51-52. In Harcrow, this Court concluded that a factor distinguishing testimonial hearsay from non-testimonial hearsay included whether the primary purpose for making, or eliciting, the statement was the production of evidence with an eye toward trial. United States v. Harcrow, 66 M.J. 154, 158 (C.A.A.E. 2008). There this Court determined that where a laboratory analysis was conducted at the behest of a sheriff’s office after the arrest of an accused for suspected drug use, the resulting laboratory report was testimonial. Harcrow, 66 M.J. 154 (C.A.A.F. 2008).

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More recently, in Blazier II this Cour< found that admission of a testimonial cover memorandum to a laboratory report and an expert’s repeating portions of that memorandum violated the Confrontation Clause. United States v. Blazier, 69 M.J. 218 (C.A.A.F. 2010). Rule 703 of the Military Rules of Evidence provides that an expert may base an opinion on inadmissible facts or data if of a type reasonably relied upon by experts in that field in forming opinions. M.R.E.703. "Facts or data that are otherwise inadmissible shall not be disclosed to the members by the proponent of the opinion or inference unless the military judge determines that their probative value in assisting the members to evaluate the expert’s opinion substantially outweighs their prejudicial effect." Id. Experts can rely on machine-generated data and print-outs, which were not "testimonial," and on the work of others so long as they reach their own opinions in conformance with M.R.E. 702 and M.R.E. 703. Blazier, 69 M.J. at 224. Lack of knowledge or unwarranted reliance on the work of others, however, may make an expert opinion inadmissible, and such an expert may not act as a conduit for repeating testimonial hearsay. Id. at 225. a. The military judge misapplied M.R.E. 703 by applying M.R.E. 403"s inclusive standard rather than M.R.E. 703. In considering whether to admit Dr. Smith’s testimony concerning the AFIP confirmation result, the military judge

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applied M.R.E. 403’s inclusive standard rather than the more stringent M.R.E. 703 standard. Rule 403 of the Military Rules of Evidence asks whether the probative value is "substantially outweighed by the danger of unfair prejudice in this case or confusion of the issues." Id. at 334. "M.R.E. 403 is a rule of inclusion" and contains a presumption of admissibility since the burden is on the opponent to show why the evidence is inadmissible. United States v. Banker, 60 M.J. 216, 223 (C.A.A.F. 2004). In contrast, M.R.E. 703 disfavors disclosure of otherwise inadmissible evidence, as the probative value of the otherwise inadmissible facts must "substantially outweigh the prejudice" for disclosure to occur.2 Id. at 574. The military judge erred by substituting the inclusive M.R.E. 403 standard with the more exclusive M.R.E. 703 standard for permitting the members to consider otherwise inadmissible evidence. b. The military judge erred in admitting the AFIP drug test result under M.R.E. 703 in violation of the Confrontation Clause. The Court of Military Appeals identified the general problem of smuggling hearsay statements into evidence under the

2 See Turner v. Burlington Northern Santa Fe Railroad Company, 338 F.3d 1058, 1062 (9th Cir. 2003) (stating that from the legislative history, the drafters considered the 2000 amendment to Rule 703 of the Federal Rules of Evidence to create a presumption against disclosure).

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guise of an expert witness relying on hearsay to form an opinion. United States vo Neeley, 25 M.J. 105 (C.M.A. 1987); United States v. George, 52 M.J. 259 (C.A.A.F. 2000). More recently, this Court recognized that in some circumstances it was possible under M.R.E. 703 for a certain amount of hearsay evidence to be smuggled in as the basis for an expert’s opinion. United States v. Williams, 43 M.J. 348 (C.A.A.F. 1995), cert. denied, 516 U.S. 1119 (1996). Such "hearsay basis is permitted because it leads to some diagnosis or opinion other than that the hearsay itself was true."

Williams, 43 M.J. at 354 n7.

In this circumstance where the AFIP test was conducted at the request of trial counsel and the result was treated for its truth rather than as merely a basis for Dr. Smith’s opinion, in the absence of confrontation with the testing analysts, the military judge’s admission of the testimonial AFIP result was clearly erroneous. While the AFIP result was probative of Dr. Smith’s opinion regarding the AFDTL result following the exposure of numerous problems at the laboratory, for a number of reasons its probative value did not "substantially outweigh the prejudice" to SSgt Lusk as required by M.R.E. 703. The first stroke of prejudice is that in this strictly forensic science case, the mere mention of the AFIP confirmatory positive result during Dr. Smith’s initial direct testimony likely caused members to consider it for the truth of the matter 2O

asser%ed rather than only as a basis for his opinion. See People v. Goldstein, 843 N.E.2d 727, 732-33 (N.Y. 2005) ("It]he distinction between a statement offered for its truth and a statement offered to shed light on an expert’s opinion is not meaningful in this light"). This risk was realized when the Government ultimately argued in closing the AFIP result for its truth. Id. at 390, 393. In addition to this risk of the AFIP result being used for more than merely a basis for an opinion, Dr. Smith’s declarative testimony that the AFIP test "showed the presence of benzoylecgonine" conveys the impression that he is merely passing along AFIP’s testimonial conclusions. Admission of the confirmatory result through Dr. Smith also precluded SSgt Lusk from confronting the analysts who extracted, prepared, and tested his sample in anticipation of litigation. Neither the common-law rules nor the rules of evidence may trump the defendant’s Sixth Amendment right to cross-examine opposing witnesses. United States v. Sojfer, 47 M.J. 425, 428 (C.A.A.F. 1998) (citations omitted). Dr. Smith admitted to relying on the statements of the testing analyst that all the procedures were properly followed. Although SSgt Lusk could confront Dr. Smith for the basis of his opinion, which goes to its weight, he could not confront the analysts relied upon by Dr. Smith to expose

21

potential deficiencies in their training, character, or proficiency. Moreover, the prejudice from SSgt Lusk’s inability to confront the AFIR analysts cannot be divorced from his similar inability to confront the ANDTL analysts and Hs. Jaramillo. While the military judge admittedly did not have the benefit of Melendez-Diaz, Blazier, or argument by counsel,3 on appeal we are better positioned to measure the prejudice from Dr. Smith’s relaying the positive AFIP result to the members in light of the previous erroneous admission and improper testimony. Where SSgt Lusk’s confrontation rights had already been compromised, denying him the right to face the AFIP analysts while effectively admitting their retest result via Dr. Smith’s testimony for its truth magnifies the prejudice. The Government could have avoided this prejudice to SSgt Lusk by calling the analysts with personal knowledge of the actual testing rather than have Dr. Smith transmit AFIP’s result. While it could be argued based on Blazier II that Dr. Smith could rely on both machine-generated print-outs of the AFIP test and even on the analysts’ testimonial statements to independently assess the AFIP test and the reliability of the AFDTL opinion, in his pivotal initial direct examination,

3 As discussed in Issue IV, SSgt Lusk forfeited, rather than waived, his objection to the AFDTL laboratory report. 22

however, he appeared to merely pass along AFIP’s conclusions to the members. Similar to his use of the cover memorandum to bolster his conclusions about the AFDTL, Dr. Smith’s initial testimony conveyed AFIP’s findings and prestige to bolster the AFDTL’s test result in this case. Considering M.R.E. 703’s exclusionary presumption, the merely confirmatory nature of the AFIP test, the prejudice from the AFIP result being considered for its truth, Dr. Smith’s declarative testimony, and the prejudice from SSgt Lusk’s inability to confront the actual testing analysts, the military judge abused his discretion and SSgt Lusk’s Confrontation rights in admitting the AFIP result through Dr. Smith. Holding otherwise sets the precedent that a polished expert without personal knowledge of the actual testing can transmit an agency’s findings while effectively smuggling out-of-court analysts’ testimony into evidence and shield testing analysts from the demands of the Confrontation Clause. WHEREFO~t~, SSgt Lusk requests that this Honorable Court set aside the findings and sentence. II. THE AFCCA ERRED IN FINDING THAT THE TRIAL JUDGE’S FAILURE TO GIVE A LIMITING INSTRUCTION REGARDING ADMISSION OF THE AFIP RETEST RESULT WAS HARMLESS BEYOND A REASONABLE DOUBT.

23

Standard of Review Trial judges have "substantial discretionary power in deciding on the instructions to give." United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993), cert. denied, 512 U.S. 1244 (1994). The standard of review for alleged instructional error is de novo. United States v. Kasper, 58 M.J. 314, 318 (C.A.A.F. 2003). Once it is determined that a certain instruction is required but not given, the test for determining whether this constitutional error was ]]armless is whether it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman v. California, 386 U.S. 18, 24 (1967). Law and Analysis The AFCCA erred when it concluded that the military judge’s failure to give a limiting instruction was harmless beyond a reasonable doubt. Here the military judge admitted Dr. Smith’s testimony concerning the AFIP result with the understanding he would limit consideration of this evidence as merely the basis for Dr. Smith’s opinion but violated M.R.E. 1054 by declining to provide such a limiting instruction. See Neeley, 25 M.J. at 107. As a consequence, the members were free to consider Dr.

~ M.R.E. 105 provides in relevant part, "When evidence which is admissible for one purpose but not admissible for another purpose is admitted, the military judge, upon request, shall restrict the evidence to its proper scope and instruct the members accordingly." 24

Smith’s testimony of the AFIP result not only as a basis for his opinion but also for its truth as an independent test. While SSgt Lusk agrees with the AFCCA that the military judge erred by not providing an appropriate limiting instruction, such error was not harmless in this case because, as defense counsel stated, the defense’s strategies included not only a theory of unknowing ingestion but "also to attack the first element as to whether there was any use at all." Id. at 331. The military judge’s failure to instruct the military members on the limited consideration of the AFIR test result was not harmless because the error allowed the members to consider the AFIP test as an independent test and not just as a means to bolster Dr. Smith’s opinion of the reliability of the initial test. That Trial Counsel argued "lightning struck twice," seriously undermined SSgt Lusk’s efforts to attack the first element of the charge of use in the first instance and effectively left him with just the theory of innocent ingestion, essentially foreclosing an entire theory. Even with the additional information added on cross-examination and re-direct, had the members been instructed to consider the AFIP result only as a basis for Dr. Smith’s opinion for the reliability of the AFDTL test, the AFIP result would not have impacted SSgt Lusk’s theory of no drug use nearly as much as permitting considering the AFIP positive test for its truth. The Government took full

25

advantage of the military judge’s error by reminding the members of the positive AFIR result on multiple occasions during its closing argument. In this closely litigated naked urinalysis case involving comparatively low levels of BZE, considering the evidence of numerous AFDTL discrepancies, the testimony from various witnesses that SSgt Lusk was not observed using drugs or acting unusual during the charged time frame, the numerous affidavits attesting to SSgt Lusk’s truthfulness and good military character, and SSgt Lusk’s own testimony that he did not use cocaine, even with the heightened status of Dr. Smith’s opinion of the AFDTL test result, the Government is unable to show that this constitutional error was not harmless beyond a reasonable doubt. W]{EP~FO~E, SSgt Lusk requests that this Honorable Court set aside the findings and sentence. III. THE AFCCA ERRED, AFTER FINDING TESTIMONIAL EVIDENCE HAD BEEN IMPROPERLY ADMITTED AT TRIAL, BY CONCLUDING THAT THE TRIAL ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT. Standard of Review When the defense does not object to an error at trial, plain error analysis applies. See United States v. Gilley, 56 M.J.

113, 122 (C.A.A.F. 2001). To prevail under a plain error

26

analysis, an SSgt Lusk must show that: (I) "there was an error; (2) it was plain or obvious; and (3) the error materially prejudiced a substantial right." United States v. Tyndale, 56 M.J. 209, 217 (C.A.A.F. 2001). When a trial judge erroneously admits hearsay evidence and violates an accused’s Sixth Amendment right to confrontation, the resulting error is an error of Constitutional dimension. United States v. Hall, 58 M.J. 90, 94 (C.A.A.F. 2003). If SSgt Lusk meets his burden of showing plain error, the burden shifts to the Government to prove that any constitutional error was harmless beyond a reasonable doubt.

See United States v. Brewer, 61 M.J. 425, 430

(C.A.A.E. 2005). Law and Analysis Contrary to the AFCCA’s conclusion, the Government is unable to demonstrate that the testimonial hearsay contained in the cover memorandum did not harm SSgt Lusk beyond a reasonable doubt even where Dr. Smith’s testimony encompassed the entire AFDTL report and how the data supported his opinion that the specimen showed the presence of a cocaine metabolite. Admission of the testimonial cover memorandum bolstered Dr. Smith’s testimony about the reliability of the results where he was not employed by the AFDTL, nor was he involved in any of the testing. Moreover, Dr. Smith’s testimony does not cure the

27

erroneous admission of the AFDTE report, as his pivotal initial ~estimony effectively repeated inadmissible hearsay. In light of the evidence of SSgt Lusk’s good military character and character for truthfulness, evidence that he did not act strange dur±ng the charged timeframe or appear to use illegal drugs, SSgt Lusk’s testimony denying drug ~sage at trial, and numerous testing problems at the AFDTL, it is unlikely the members would convict SSgt Lusk on a comparatively low positive BZE test that was considered reliable by Dr. Smith based on a second low positive test. The testimonial memorandum, which bears the official seal of the Department of Defense, transfers a sense of integrity and credibility to Dr. Smith’s testimony. Contrary to the AFCCA’s conclusion, some of Dr. Smith’s testimony--his improperly parroting the testimonial cover memorandum’s results when the cover memorandum was before the members-magn±fied the constitutional error rather than cured it. Id. at 13@-34. His repetition of the otherwise inadmissible hearsay presumably with the members staring at the testimonial memorandum, improperly bolstered the @overnment’s case regardless of his expertise and subsequent admissible testimony. Additionally, the members were allowed to take t~e testimonial memorandum back to the jury room and reflect on this concise summary of the Government’s A~DTL evidence against SSgt Lusk. 28

Moreover, the Government’s calling the Drug Reduction Program Manager, the observer, and the medical review officer and presenting documentary evidence about the collection process would have minimal weight in light of the strong military character evidence presented by the defense. Id. at 39-81, 396406. Considering the above factors, the Government is unable to show beyond a reasonable doubt that the erroneous admission of the testimonial evidence was harmless. IV. THE TRIAL DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE AFDTL DRUG TESTING REPORT FORFEITED THE CONFRONTATION CLAUSE ISSUE WITH RESPECT TO THAT REPORT; ADMISSION OF THAT REPORT CONSTITUTED PLAIN ERROR AND WAS NOT HARMLESS.

Additional Facts At the trial, Dr. Smith performed a detailed review of the AFDTL report before the members. Id. at 130-149. Page two of the AFDTL report presents positive results with the handwritten letters "COC" on the "Specimen Custody Document-Drug Testing" on the same line as SSgt Lusk’s social security number and LAN. Id. at 433. Page two contains the date 31 March 2008 and Jai Dev’s signature below this result certifying the following: certify that I am a laboratory certification official, that the laboratory results indicated on this form were correctly

29

determined by proper laboratory procedures, and that they are correctly annotated." Id. Regarding page three, which contains a signature next to the stamp ~’Package Inspection Seal Intact," Dr. Smith testified the statement means that the recipient "looked at the external package and saw that it was actually taped and sealed the way it is supposed to be." Id. at 134. Dr. Smith reviewed the chain of custody documents containing stamps and signatures and testified that there was no issue with specimen custody. Id. He testified to pages eleven and twelve, chain of custody documents containing signatures and stamps, and claimed to see no problems with the chain of custody regarding SSgt Lusk’s sample. Id. at 139. Regarding pages 16 and 17 of the report, which contain various signatures, stamps, and handwritten comments, Dr. Smith stated that one unrelated specimen had been diluted and the bar code changed, but there were no chain of custody concerns. Id. at 143. On page 19, the intervention log, he asserted that from the handwritten comments, a specimen was removed and not tested. Id. at 145. Standard of Review "[F]orfeiture is the failure to make the timely assertion of a right," but ~’waiver is the ~intentional relinquishment or 3O

abandonment of a known right’" which extinguishes that right, precluding review on appeal. Harcrow, 66 H.J. at 156-57 (citing United States v. Olano, 507 U.S. 725, 733 (1993) (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938))). Forfeiture of an error, however, makes the appeal a matter for plain error review under MIL. R. EvID. 103(d). Harcrow, 66 H.J. at ~56. What constitutes plain error is a question of law that is reviewed de novo. United States v. Powell, 49 M.J. 460, 462 (C.A.A.F. 1998). To prevail under a plain error analysis, SSgt Lusk must show that: i) "there was an error; 2) it was plain and obvious; and 3) the error materially prejudiced a substantial right." United States v. Tyndale, 56 M.J. 209, 217 (C.A.A.F. 2001). If SSgt Lusk meets his burden of showing plain error, the burden shifts to the Government to prove that any constitutional error was harmless beyond a reasonable doubt. See v. Brewer, 61M.J. at 430. Law "In determining whether a particular circumstance constitutes a waiver or a forfeiture, we consider whether the failure to raise the objection at the trial level constituted an intentional relinquishment of a known right." United States v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009) (citations omitted). Counsel can waive a defendant’s Sixth Amendment Confrontation Clause right under Melendez-Diaz when counsel is aware of such a 31

right and intentionally abandons it. See Melendez-Diaz, 129 S. Ct. at 2534 n. 3. In Harcrow, this Court considered whether a trial defense counsel’s affirmative, non-objection to the admission of laboratory reports obtained from analysis conducted at the behest of a sheriff’s office following an arrest of the accused waived the opportunity to argue on appeal that the laboratory report was testimonial under Crawford. Harcrow, 66 M.J. 154. On appeal, Harcrow asserted that the laboratory reports were testimonial under Crawford, which the Supreme Court had issued after the court-martial and while the case was pending direct review. Id. at 156. This Court reasoned that although Harcrow’s trial defense counsel’s decision not to object may have been originally sound since admissibility of the lab reports found support in Roberts, Crawford’s ruling, ~opened the door for a colorable assertion of the right to confrontation where it was not previously available .... " Harcrow, 66 M.J. at 157-58. In light of Crawford, this Court found that Harcrow’s trial defense counsel’s strategy could not possibly be an ’~intentional relinquishment or abandonment" of this new potential claim and determined there was no waiver but a forfeiture. Id. at 158. Campos involved challenging a stipulation of expected testimony for the first time on appeal where the accused’s trial 32

defense counsel had expressly indicated he had no objection to admission of the expected testimony. Campos, 67 M.J. at 332. Unlike Harcrow, there was no significant development in the law between the time of trial and when the case appeared for review. In Campos, this Court found that the trial defense counsel’s "’no objection" statement served as an intentional relinquishment of a known right. Campos, 67 M.J. at 333. Following SSgt Lusk’s court-martial, the Supreme Court issued the constitutional ruling in Melendez-Diaz ~hat laboratory analysts’ statements constituted testimonial hearsay, requiring that the analysts be subject to the defendant’s Sixth Amendment right of confrontation. See Melendez-Diaz, 129 S. Ct. at 2540 ("[m]any states have already adopted the constitutional rule we announce today.") (emphasis added). Following MelendezDiaz, this Court determined that "at least the top portion of the drug testing report memoranda

were testimonial."

Blazier, 68 M.J. at 443. Analysis a) Under the circumstances of this case, similar to Harcrow, SSgt Lusk forfeited, rather than waived, his Confrontation right with respect to testimonial statements within the AFDTL testing report. At the time of SSgt. Lusk’s court-martial, which preceded the Supreme Court’s Melendez-Diaz ruling and its Blazier progeny, SSgt Lusk could not have grasped the full extent of his

33

Sixth Amendment right to confront the analysts as it exists on appeal to knowingly waive that right. To undersigned counsel’s knowledge, at the time of SSgt Lusk’s court-martial, no military Court of Criminal Appeals had held that statements within laboratory reports generated from a unit sweep were testimonial in nature. Magyari, with its fact-specific holding that laboratory reports generated from random urinalysis conducted by lab technicians were non-testimonial, suggested by implication that laboratory reports generated pursuant to an analogous unit sweep would, likewise, be non-testimonial. Magyari, 63 M.J. 123 (C.A.A.F. 2006). After Magyari, service courts, such as the Navy-Marine Corps Court of Criminal Appeals, reading Crawford through Magyari’s lens, determined that a laboratory report generated from a probable cause urinalysis constituted non-testimonial hearsay. United States v. Harris, 65 M.J. 594, 600 (N.M. Ct. Crim. App. 2007). Indeed, two months before SSgt Lusk’s courtmartial, the Air Force Court of Criminal Appeals, citing Magyari, concluded that laboratory reports generated from a random urinalysis test and a subsequent consent urinalysis requested by Air Force Office of Special Investigations were non-testimonial as well. United States v. Blazier, 68 M.J. 544, 545-46 (A.F. Ct. Crim. App. 2008) (reversed) .

34

In reliance on the Supreme Court’s Melendez-Diaz constitutional ruling in 2009 specifically addressing the testimonial nature of laboratory analyst’s statements,~ however, this Honorable Court has subsequently determined that at least the top portion of the drug testing memoranda for both laboratory reports were testimonial.~ United States v. Blazier, 68 M.J. 439, 443 (C.A.A.F. 2010). With Melendez-Diaz and this Court’s two subsequent Blazier decisions ultimately reversing the Air Force Court and concluding that a drug testing cover memorandum detailing results from a random urinalysis constitutes testimonial hearsay, the legal landscape regarding a military accused’s right to confront laboratory employees has significantly changed since SSgt Lusk’s trial defense counsel declined to object to

~ In Melendez-Diaz the Supreme Court determined that the analyst statements were testimonial in nature from the content, functionality, and circumstances of their creation. MelendezDiaz overturned Commonwealth v. Verde, 827 N.E.2d 701, 704 (Mass, 2005), abrogated by United States v. Melendez-Diaz, 129 S. Ct. 2527 (2009), a decision cited in United States v. Magyari, 63 M.J. 123, 127 (C.A.A.F. 2006). Melendez-Diaz and Blazier, which were issued while this case was pending direct review, apply in this instance. See Griffeth v. Kentucky, 479 U.S. 314 (1987) (holding that newly declared constitutional rules apply to criminal cases pending on direct review). 6 This Court noted that the cover memoranda at issue were prepared at least a month after the specimens had tested positive and in response to a request by appellant’s command for such reports for "court-martial use." Blazier, 68 M.J. at 442. 35

admission of the laboratory report.~ SSgt Lusk now has a clear Sixth Amendment right regarding admission of at least the cover memorandum to the laboratory report, if not to other analyst statements, that did not exist or was not reasonably apparent from the state of the law at the time of his court-martial. Given the developments in the law since SSgt Lusk’s courtmartial, Harcrow, rather than Campos, controls this case. Since SSgt Lusk did not have the benefit of this post-Me~endez-Diaz, post-Blazier view of the law at the time of his court-martial, his trial defense counsel’s failure to object to admission of the laboratory report more than two years ago cannot constitute knowing waiver of this post-Melendez-Diaz right. See Campos, 67 M.J. at 333 n. 4 (when the record does not clearly show waiver, the issue should be reviewed for plain error). Given the facts of this unit sweep case and the changing posture of the law on appeal, as the AFCCA determined, SSgt Lusk forfeited, rather than waived his right to confront the testing analysts. Id. at 45. b. Admission of the testimonial statements within the AFDTL was plain error. The Supreme Court has stated that "where the law at the time of trial was settled and clearly contrary to the law at the 7 Harcrow’s holding that laboratory reports generated from analysis conducted at the behest of law enforcement after an arrest on suspicion of drug use appears limited to the narrow facts of that case. Harcrow, 66 M.J. at 159. 36

time of appeal, it is enough that an error be ~plain’ at the time of appellate consideration." United States v. Harcrow, 66 M.J. 154, 159 (C.A.A.F. 2008), citing Johnson v. United States, 520 U.S. 461, 468 (1997). Since Melendez-Diaz, Blazier I, and Blazier If, are retroactively applicable on direct appeal through operation of Griffeth v. Kentucky, this Court’s holding that cover memoranda summarizing the inculpatory test results are testimonial is controlling. Blazier, 68 M.J. at 443. In this case, not only was the cover memorandum testimonial hearsay, but in light of the Supreme Court’s holding in Melendez-Diaz and Blazier, the various analysts’ certifications, stamps, and signatures contained in the report constitute testimonial hearsay and violated SSgt Lusk’s right to Confrontation. The sole purpose of annotating a signature or certification in the testing report is to assist the prosecution in providing evidence against an accused. Any AFDTL analyst or technician would be aware that a military member who tests positive for cocaine would and could be prosecuted. The Government used portions of the litigation report containing analyst signatures to prove that SSgt Lusk used cocaine. The Supreme Court found that admitting lab certificates for prosecutorial purposes in the absence of live testimony was impermissible. Melende~-Diaz, 129 S. Ct. at 2542. Although the Government is not required to introduce all chain of custody 37

evidence, what is offered must be introduced live. Id. at 2532 n. c) The erroneous admission of the [estimonial hearsay was not harmless beyond a reasonable doubt.8 In assessing harmlessness in a constitutional context, "’It]he question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’ " Blazier, 69 M.J. at 227 (citations omitted). Such a 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." Id. Based on the entire record in this case, admission of testimonial statements bolstered the Government’s expert’s testimony and reasonably contributed to SSgt Lusk’s conviction by presenting testimonial hearsay from every individual involved in the certification of the report. While some may allege that these certifications are harmless, they have the cumulative effect of assuring the members that lab procedures were properly followed. Numerous personnel gave such an impression by their attestations, but the defense was not able to cross-examine them. Their statements are particularly significant because Dr. Smith played no role in the testing process and was not employed at the AFDTL. With the numerous problems at the AFDTL, even 8

Since the prejudicial impact of the testimonial cover letter

has been addressed in Issue III, it will not be repeated here. 38

with the confirmation test, the members would not accord the lab personnel the trust to convict a military member with unrebutted good military character and character for truthfulness. Aside from the testimonial cover memorandum announcing the results which Dr. Smith essentially parroted as discussed in Issue III, perhaps Jai Dev’s assertion that SSgt Lusk’s positive cocaine result was "correctly determined by proper laboratory procedure" is the most damaging exampAe of testimonial hearsay. Jai Dev’s signature appears throughout the lab report, so his certification adds special weight to the Government’s case. Horeover, none of the other testing witnesses whose testimonial statements bolstered the Government’s case were confronted to expose potential deficiencies in training, proficiency, or character. Instead, the Government presented a virtually sanitized paper case with Dr. Smith telling members there were no problems basedlargely on hearsay in the report. Though he could not personally testify about the accuracy of the procedures, the members likely recalled Dr. Smith’s smooth assurances as they reviewed the report in the deliberation room. The Government’s case was completely forensic and not decisive. Aside from Dr. Smith, the other Government witnesses called to establish proper collecting and shipping process are insubstantial. It will no doubt be pointed out that the AFIP confirmation test tends to verify the AFDTL, but the 71 ng/mL 39

difference in BZE concentration raises new questions about the accuracy of the AFDTL over and above the numerous discrepancy reports. Id. at 356. SSgt Lusk’s inability to confront the testing analysts whose hearsay fills the report is that much more prejudicial. The purpose of presenting the inadmissible statements and violating SSgt Lusk’s Sixth Amendment Confrontation rights was to ensure a conviction in an otherwise difficult case. Given the evidence of SSgt Lusk’s good military character, his friends’ and colleague’s testimonies, and SSgt Lusk’s categorical denial of drug use, the Government is unable to show that its efforts to bolster evidence through the use of hearsay evidence did not result in ssgt Lusk’s conviction. WHEREFORE, SSgt Lusk requests this Honorable Court set aside the findings and sentence.

Respectfully submitted,

PHI/LIP T. KORMAN, Captain, USAF Lead Appellate Defense Counsel U.S.C.A.A.F. Bar No. 32978 Air Force Legal Operations Agency United States Air Force 112 Luke Ave, Suite 343 Boiling AFB, DC 20032-8000 (202) 767-1562

40

,~

i’,_.

(J._ :- t.-.~

Chief Appellate Defense Counsel U.S.C.A.A.F. Bar No. 30756) Air Force Legal Operations Agency United States Air Force (202) 767-1562

FOR I’~RIC N. EKLUND, Colonel, USAF Chief, Appellate Defense Division U.S.C.A.A.F. Bar No. 26473 Air Force Legal Operations Agency United States Air Force (202) 767-1562

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CERTIFICATE OF COMPLIANCE WITH RULE 24 (d) I. This brief complies with the type-volume limitation of Rule 24 (d) because:

This brief contains 8,587 words.

2. This brief complies with the typeface and type style requirements of Rule 37 because:

I X

] This brief has been prepared in a monospaced typeface using ~,~99~_9~,~!,9_e_,~_.~9__7. I0 characters per inch and Courier New type style.

Attorney for Staff Sergeant Harley Lusk Dated: 22 February 2011