IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

Transcription

1 21 March 2011 IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES UNITED STATES, ) Appellee, ) FINAL BRIEF ON BEHALF OF ) THE UNITED STATES v. ) ) USCA Dkt. No /AF Staff Sergeant (E-5) ) HARLEY T. LUSK, ) Crim. App. Dkt. No. S31624 USAF, ) Appellant. ) FINAL BRIEF ON BEHALF OF THE UNITED STATES JAMIE L. MENDELSON, Major, USAFR Appellate Government Counsel Air Force Legal Operations Agency United States Air Force Court Bar No GERALD R. BRUCE Senior Appellate Government Counsel Air Force Legal Operations Agency United States Air Force Court Bar No DON M. CHRISTENSEN, Colonel, USAF Chief, Government Trial and Appellate Counsel Division Air Force Legal Operations Agency United States Air Force 112 Luke Avenue, Bldg 5683, Rm 206 Bolling AFB DC (202) Court Bar No

2 INDEX TABLE OF AUTHORITIES... iv ISSUES PRESENTED... 1 ADDITIONAL SPECIFIED ISSUE... 1 STATEMENT OF STATUTORY JURISDICTION... 2 STATEMENT OF THE CASE... 2 STATEMENT OF FACTS... 2 SPECIFIED ISSUE SPECIFIED ISSUE TRIAL DEFENSE COUNSEL S FAILURE TO OBJECT TO THE AFDTL DRUG TESTING REPORT WAIVED THE CONFRONTATION CLAUSE ISSUE WITH RESPECT TO THAT REPORT; EVEN IF THE ISSUE WAS NOT WAIVED, ADMISSION OF THE REPORT WAS NOT PLAIN ERROR; AND, EVEN IF THE ADMISSION OF THE COVER PAGE WAS PLAIN ERROR, IT WAS HARMLESS I THE AFIP TEST RESULT WAS NOT OFFERRED FOR THE TRUTH OF THE MATTER ASSERTED AND WAS PROPERLY ADMITTED UNDER MIL. R. EVID. 703 TO EXPLAIN THE BASIS OF THE EXPERT OPINION; EVEN IF THE AFIP TEST RESULT WAS HEARSAY, APPELLANT S ATTACK ON THE RELIABILITY OF AFDTL OPENED THE DOOR TO THE REBUTTAL TESTIMONY II THE MILITARY JUDGE S FAILURE TO PROVIDE A LIMITING INSTRUCTION REGARDING THE ADMISSION OF THE AFIP TEST RESULT WAS HARMLESS BEYOND A REASONABLE DOUBT ii

3 III THE AFCCA CORRECTLY FOUND THAT THE ADMISSION OF THE COVER PAGE OF THE AFDTL DRUG TEST REPORT WAS HARMLESS BEYOND A REASONABLE DOUBT CONCLUSION CERTIFICATE OF FILING CERTIFICATE OF COMPLIANCE iii

4 TABLE OF AUTHORITIES SUPREME COURT CASES Chapman v. California, 386 U.S. 18, 23 (1967)...15, 38, 41 Crawford v. Washington, 541 U.S. 36 (2004)...9, 10, 16, 19, 21, 27, 28, 29 Harris v. New York, 401 U.S. 222 (1971)...33 Melendez-Diaz, 129 S. Ct , 18, 19, 21, 22, 23, 26, 28 Oregon v. Hass, 420 U.S. 714 (1975)...33 United States v. Mezzanatto, 513 U.S. 196 (1995)...15, 16 United States v. Robinson, 485 U.S. 25 (1988)...33 COURT OF APPEALS FOR THE ARMED FORCES United States v. Anderson, 51 M.J. 145 (C.A.A.F. 1999)...35 United States v. Blazier, 68 M.J. 439 (C.A.A.F. 2010)...19, 20, 21, 24, 27 United States v. Blazier, 69 M.J. 218 (C.A.A.F. 2010)...15, 19, 31, 38, 40, 41 United States v. Campos, 67 M.J. 330 (C.A.A.F. 2009)...2, 14, 16, 18 United States v. Cannon, 33 M.J. 376 (C.M.A. 1991)...33 United States v. Clayton, 67 M.J. 283 (C.A.A.F. 2009)...27 United States v. Dinges, 55 M.J. 308 (C.A.A.F. 2001)...35

5 United States v. Eggen, 51 M.J. 159 (C.A.A.F. 1999)...35 United States v. Foerster, 65 M.J. 120 (C.A.A.F. 2007)...25 United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008)...2, 9, 15, 19, 20 United States v. Holmes, 620 F.3d 836 (8th Cir. 2010)...17 United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006)...20, 21, 22 United States v. Maynard, 66 M.J. 242 (C.A.A.F. 2008)...15 United States v. Rankin, 64 M.J. 348 (C.A.A.F. 2007)...25 United States v. Raya, 45 M.J. 251 (C.A.A.F. 1996)...35 United States v. Wolford, 62 M.J. 418 (C.A.A.F. 2006)...38 FEDERAL CASES United States v. Acosta, 475 F.3d 677 (5th Cir. 2007)...32 United States v. Cook, 406 F.3d 485 (7th Cir. 2005)...14 Untied States v. Jewell, 614 F.3d 911 (8th Cir. 2010)...35 United States v. Lopez-Medina, 596 F.3d 716 (10th Cir. 2010)...32 United States v. Mitchell, 85 F.3d 800 (1st Cir. 1996)...17 United States v. Norwood, 603 F.3d 1063 (9th Cir. 2010)...26

6 United States v. Pappas, 409 F.3d 828 (7th Cir. 2005)...15 United States v. Pittman, 319 F.3d 1010 (7th Cir. 2003)...17 United States v. Plitman, 194 F.3d 59 (2d Cir. 1999)...17 STATES CASES Harris v. McKune, No , 2010 U.S. Dist. LEXIS 84175, *53 (D. Kan. Aug. 17, 2010)...32 People v. Ko, 15 A.D.3d 173 (N.Y. App. Div. 2005)...32 People v. Lovejoy, 919 N.E. 2d 843 (Ill. 2009)...28, 29 State v. Birth, 37 Kan. App. 2d 753 (Kan. Ct. App. 2007)...32 State v. Delaney, 171 N.C. App. 141 (N.C. Ct. App. 2005)...29 State v. Robinson, 146 S.W.3d 469 (Tenn. 2004)...32 Tinker v. State, 932 So.2d 168 (Ala. Crim. App. 2005)...32 Washington v. Lui, 153 Wn. App. 304 (Wash. Ct. App. 2009)...29 MISCELLANEOUS Federal Rules of Evidence Manual [4] (9th ed. 2006)...36 Military Rule of Evidence 304(b)(1)...33 Military Rule of Evidence 311(b)(1)...33 Military Rule of Evidence , 10, 34, 35 Military Rule of Evidence 404(a)...33

7 Military Rule of Evidence 405(a)...33 Military Rule of Evidence 405(c)...33 Military Rule of Evidence Military Rule of Evidence Military Rule of Evidence 609(a)...33 Military Rule of Evidence Military Rule of Evidence Military Rule of Evidence , 7, 8, 11, 34 Military Rule of Evidence 801(c)...27 Military Rule of Evidence 801(d)...33 Uniform Code of Military Justice, Article 66(b)...2 Uniform Code of Military Justice, Article 67(a)(3)...2 Uniform Code of Military Justice, Article 112a...2

8 21 March 2011 IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES UNITED STATES, ) Appellee, ) FINAL BRIEF ON BEHALF OF ) THE UNITED STATES v. ) ) USCA Dkt. No /AF Staff Sergeant (E-5) ) HARLEY T. LUSK, ) Crim. App. Dkt. No. S31624 USAF, ) Appellant. ) TO THE HONORABLE, THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES: ISSUES PRESENTED I. WHETHER THE MILITARY JUDGE ERRED IN ADMITTING DR. SMITH S TESTIMONY OF THE AFIP DRUG TEST RESULT 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. ADDITIONAL SPECIFIED ISSUE WHETHER THE TRIAL DEFENSE COUNSEL S FAILURE TO OBJECT TO THE AFDTL DRUG TESTING REPORT WAIVED OR FORFEITED THE CONFRONTATION CLAUSE

9 ISSUE WITH RESPECT TO 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 UNTED STATE v. CAMPOS, 67 M.J. 330 (C.A.A.F. 2009); UNTIED 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(b), Uniform Code of Military Justice (UCMJ). This Court has jurisdiction to review this case pursuant to Article 67(a)(3), UCMJ. STATEMENT OF THE CASE Appellant s Statement of the Case is accepted. STATEMENT OF FACTS Appellant was convicted of wrongful use of cocaine in violation of Article 112a, UCMJ. (Jt. App. at 9, 394.) The basis of the charge is a positive urinalysis test. (Jt. App. at 132, ) Appellant provided a urine sample for drug testing pursuant to a unit inspection on 17 March (Jt. App. at 396.) His sample was then transmitted to the Air Force Drug Testing Laboratory (AFDTL) at Brooks City Base, Texas where it underwent drug screening. (Jt. App. at ) Once at AFDTL, Appellant s sample underwent testing in accordance with AFDTL protocols, including initial immunoassay testing, followed by an 2

10 immunoassay re-screen, and finally concluding with a gas chromatograph mass spectrometry (GC/MS) confirmatory test. (Jt. App. at 135, ) The sample tested positive for the cocaine metabolite benzoylecgonine (BZE) at a level of 201 nanograms per milliliter (ng/ml), well over the Department of Defense cutoff level of 100 ng/ml. (Jt. App. at 143.) AFDTL documented the test results in a 33-page drug testing report (DTR), of which 32 pages are machine-generated printouts of raw data test results and chain of custody forms that were produced contemporaneously with the testing of Appellant s sample. (Jt. App. at ) The 32 pages of machinegenerated data and chain of custody forms were prepared prior to the date Appellant s command was notified that his drug test yielded a positive result for cocaine. (Id.) Only the cover page of the DTR was prepared on 22 April 2008, after Appellant s command was notified of the positive test result. (Jt. App. at 432.) The cover page merely recites and summarizes the machinegenerated test results. (Id.) Several months later, at the request of the government, AFDTL shipped an aliquot of Appellant s urine sample to the Air Force Institute of Pathology (AFIP) for a confirmation test. (Jt. App. at 554.) AFIP is a Department of Defense drug testing laboratory that has supervisory responsibility over AFDTL. (Jt. 3

11 App. at 102.) The AFIP test confirmed that Appellant s specimen was positive for BZE. (Jt. App. at ; ) At trial, the government introduced the AFDTL DTR into evidence. (Jt. App. at 38.) The military judge asked defense counsel if there was [a]ny objection?, to which the defense counsel responded, No. (Jt. App. at 38.) Defense counsel did move to exclude the AFIP confirmation test results and to exclude any testimony from Dr. Smith, the prosecution s expert witness, concerning the retest. (Jt. App. at 18, ) During the initial discussion on the defense motion, the military judge noted the possibility that the AFIP retest could later become admissible as rebuttal evidence for the prosecution. (Jt. App. at ) The military judge specifically asked defense counsel whether it was possible that the defense could open the door to the AFIP test and whether the defense intended on attacking the results themselves of the AFDTL test. (Jt. App. at 26.) Defense counsel recognized there are ways for me to open the door by asking the wrong question and confirmed that he intended on attacking the results of the AFDTL. (Id.) Trial counsel noted that if the defense were to attack the AFDTL test results, the AFIP retest would not be offered for the truth of the matter asserted but 4

12 would be offered to rebut the attack upon the reliability of the original AFDTL DTR and the lab. (Jt. App. at 28.) Following this discussion, the military judge granted the defense motion to exclude the AFIP retest and expert testimony about the retest. (Jt. App. at ) But, the judge explicitly left open the possibility, and put defense counsel on notice, that the evidence could become admissible as rebuttal evidence depending upon the circumstances of the trial. (Id.) During its case in chief, the government presented testimony from the Drug Demand Reduction Manager, who was responsible for the local chain of custody and collection process for Appellant s urine specimen. (Jt. App. at ) Next, the government called the medical review officer, Capt Gibson, who reviewed Appellant s records and determined there was no medical or dental justification in the records for Appellant s positive drug test result. (Jt. App. at ) Trial counsel also called the observer who helped collect Appellant s urine specimen. (Jt. App. at ) Trial counsel then called Dr. Smith, a well-qualified expert in forensic toxicology. (Jt. App. at 96, 106.) Dr. Smith served at AFIP for 10 years while on active duty and has held the position of certifying scientist at AFIP since (Jt. App. at ) He has certified and reviewed DTRs and 5

13 served as an expert witness for over three decades. (Jt. App. at 98.) Dr. Smith is exceptionally familiar with drug testing and quality assurance procedures at AFDTL because his duties require him to conduct inspections of AFDTL, send out proficiency samples, provide training, and make recommendations on lab certification. (Jt. App. at ) Defense counsel did not conduct any voir dire of Dr. Smith and did not object to the government s offer of Dr. Smith as an expert in the field of forensic toxicology. (Jt. App. at 106.) Dr. Smith testified about the AFDTL drug testing process in great detail. (Jt. App. at ) He provided his expert opinion that all three components of Appellant s drug test (the initial immunoassay, the second immunoassay, and the GC/MS test) resulted in positive indications of the presence of the cocaine metabolite BZE. (Jt. App. at 132.) Dr. Smith provided a pageby-page description of Appellant s DTR. (Jt. App. at ) He described in particular the raw data generated by the testing machines (Jt. App. at 135), and provided his expert opinion that the drug test results were forensically reliable evidence of the presence of the cocaine metabolite BZE in Appellant s specimen. (Jt. App. at 151.) Defense counsel conducted a lengthy and detailed cross examination of Dr. Smith, attacking AFDTL procedures and 6

14 personnel. (Jt. App. at ) Defense counsel cross examined Dr. Smith on 37 different reports documenting various discrepancies in lab procedure. (Jt. App. at , ) Some of the discrepancy reports described errors committed by the same lab technicians involved in the testing of Appellant s specimen. (Jt. App. at ) The cross examination was a vigorous attack on the reliability of the AFDTL test. Trial counsel then argued that defense counsel opened the door to rebuttal evidence in the form of the AFIP retest by so vigorously challenging the reliability of the AFDTL test and lab. (Jt. App. at 204.) Trial counsel noted that under Mil. R. Evid. 703, if of a type reasonably relied upon by experts in the particular field and in the form of an opinion or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. (Jt. App. at 214.) Trial counsel requested to recall Dr. Smith to testify that he considered the AFIP retest in forming the basis of his opinion, and trial counsel expressly asked the military judge to consider Mil. R. Evid. 703 for purposes of Dr. Smith s proposed rebuttal testimony, pointing out the distinct balancing test under the rule. (Jt. App. at ) The military judge replied that he certainly will consider the balancing test under Mil. R. Evid (Jt. App. at 215.) The 7

15 military judge stated that he would consider, [o]ne, if the door has been opened and two, whether this would be proper testimony under Military Rules of Evidence 703 for the expert witness. (Jt. App. at 218.) Upon further discussion in an Article 39(a) session, Dr. Smith was recalled to the stand and testified that, in forming his opinion regarding the reliability of the AFDTL test, he relied upon the fact that a later AFIP test confirmed the presence of BZE in Appellant s specimen. (Jt. App. at 317.) He also testified that the AFIP drug test report was the type of report that experts in his field commonly rely upon when forming expert opinions. (Jt. App. at 323.) In further argument on the issue, defense counsel urged the military judge to use a [Mil. R. Evid.] 403 balancing test. (Jt. App. at 330 (emphasis added).) The military judge noted that he was considering the Moon case, discussed below, and Mil. R. Evid (Jt. App. at 327, 329.) The military judge then reconsidered and reversed his prior ruling on the defense motion concerning the AFIP test: MJ: Okay. I have considered the arguments from counsel for both sides. I have considered the cases submitted by counsel. I find number one that the AFIP test is a confirmatory test. I find that it distinguishes this case from any of the cases cited by both counsel for that was the only test, this is not the only test [sic] 8

16 is merely a confirmatory test, not the sole evidence against the accused. Number two, I will get to the 403 balancing in a moment but that does weigh on my mind when it comes to the 403 analysis. Number two, considering the Moon case I believe I made it very clear that the printout, what the machine spits out by itself does not fall under Crawford, it exempts it from Crawford [sic] it makes it not testimonial hearsay. Number three, Military Rule of Evidence [sic] does allow an expert witness as part of their basis for their opinion to consider the information. The expert testified earlier today about what he considered and part of that was the AFIP report. Number four, I am cognizant of some of the concerns that defense counsel raised about counsel trying to smuggle things via expert testimony. I have considered that in this case. I have also considered the fact that as a tactical measure the defense chose to attack the laboratory in this case. I am not here to judge whether that is right or wrong, that is merely something that was employed in this case as part of a strategic manner so, I do not believe that it is attempting to smuggle in information through the use of expert testimony. The AFIP report was provided to the defense counsel in advance and they knew of its existence and chose to proceed down a certain path. Number five, considering Crawford, Harcrow, and the remaining cases I do not believe those cases ever intended to exclude proper, carefully tailored rebuttal and what I am getting at, clearly the laboratory at Brooks was attacked, the basis for the expert s opinion was attacked. I am very concerned that it would be a misrepresentation of the evidence to the members in this case to exclude confirmatory results or at least 9

17 part of that to the members. And again, some of the opinions use the term, fraud upon the court and the other terms that I saw was a mischaracterization of the evidence a misrepresentation of the evidence. Again, in terms of a balancing test that weighs heavily on this court s mind. I certainly want to protect the rights of the accused but at the same time I initially granted the motion in limine to exclude the AFIP report, which is point number six I believe? I am still not going to allow the AFIP report because I still think there are problems with respect to Crawford that does as I believe [sic] and that I indicated early in the proceeding contain certain testimonial hearsay so, the report will not come in. I don t see any way around it. I saw no exceptions out there for that at this point in time. It is my understanding that there may be a case that the Supreme Court at this point in time but I am not aware of the finding of that court. In terms of a balancing test under -- and by the way I also consider the AFIP reports as pointed out by the expert on page 10 and then page 21 of 22 of the AFIP report and some of the latter clearly is a printout from a machine so, I consider that to be non-testimonial hearsay in accordance with the case provided by the government. And when I refer to cases provided by the government I am also referring to all those cases cited within that opinion may of which provide some guidance on the issue. Again, with respect to this evidence as I reviewed Military Rules for Evidence 403, I believe the evidence is relevant. I initially excluded the evidence in this case based on the Crawford grounds. I do not believe that the probative value is 10

18 substantially outweighed by the danger of unfair prejudice in this case or confusion of the issues. The members have clearly shown that they are savvy in this case and they are asking several questions of the witnesses. I do not believe it is an undue delay of time, waste of time or needless presentation since there is no evidence on this issue at this point in time. In terms of the unfair prejudice again, I listened to the testimony of Dr. Smith, including the cross-examination where he acknowledged that the level is consistent with both with [sic] the government is trying to show as well as presumably what the defense is trying to show so, I don t believe that that is a significant factor in this case as well. In fairness to the government I believe that the door has been opened, wide-open therefore I am going to allow, again I will not allow the AFIP report; I will allow Dr. Smith to testify in a limited fashion that is part of his reaching his conclusions about the reliability of the lab and the report that he did consider a confirmatory test that was conducted by AFIP and that was part of the basis for his opinion. Again, that falls within 703, that is something that he clearly considered and that is what he testified to and that is what I am going to allow. Questions counsel? (Jt. App. at ) (Emphasis added.) Later, the military judge also noted that the AFIP confirmatory test that he permitted Dr. Smith to testify about was not offered for the truth of the matter asserted but rather for the manner in which the expert witness went about reaching his conclusion which he is allowed to do under Mil. R. Evid (Jt. App. at 336.) 11

19 Dr. Smith was recalled by trial counsel and he testified in rebuttal that he concluded the AFDTL test was a reliable result based upon the AFDTL test and based upon the AFIP retest that confirmed the presence of the cocaine metabolite BZE in Appellant s urine specimen. (Jt. App. at ) Defense counsel then continued to aggressively cross examine Dr. Smith and attack the AFDTL DTR and AFIP test. (Jt. App. at ) Throughout the trial, the defense presented the theory of unknowing ingestion. At the beginning of the trial, during opening statements, the defense counsel told the court members that the government s expert will testify that the urinalysis results are just as consistent with known use as they are with an unknown use. (Jt. App. at 39.) Throughout the cross examination of Dr. Smith, the defense counsel elicited testimony to support the unknowing ingestion defense. Specifically, the defense elicited testimony about the Coca-Cola test, in which a subject did not taste or smell anything unusual after 25 mg of cocaine was added to his soft drink (Jt. App. at ); a study that found 98.2% of dollar bills circulating in the United States are contaminated with some amount of cocaine (Jt. App. at ); a study that found a person s urine can test positive for BZE after handling currency (Jt. App. at ); a study that found Inca tea contains an average of 4.8 milligrams of 12

20 cocaine in one tea bag (Jt. App. at 197); and a study that found cocaine can be transferred by handshakes (Jt. App. at 198). Defense counsel further elicited testimony from Dr. Smith that individuals in food preparation services have the highest rates of illegal drug use (Jt. App. at 199), that [t]here are many different ways that cocaine could be unknowingly ingested (Jt. App. at 200), and that 201 nanograms per milliliter is consistent with either unknown ingestion or external contamination of [Appellant s] urine sample during the collection process (Jt. App. at 202). During its case in chief, the defense put on additional evidence to support an unknowing ingestion defense. Two of Appellant s friends who probably spent the weekend before the urinalysis test with Appellant, testified that they ate and drank together at several restaurants and bars. (Jt. App. at 261, ) Appellant himself testified about the weekend prior to the urinalysis and the numerous bars and restaurants he ate and drank at. (Jt. App. at ) Appellant s bank statement showing the numerous purchases at bar and restaurant establishments was also admitted into evidence. (Jt. App. at 544.) Finally, during closing arguments, defense counsel devoted most of his argument to attacking the element of knowing use, arguing that the government did not present any 13

21 evidence of knowing and conscious use (R. at 539), that Dr. Smith told you over and over again that the positive result of 201 nanograms doesn t tell you anything about knowing use (R. at 551), that Dr. Smith testified that the nanogram level was as consistent with knowing use as unknowing use (id.), and detailing various ways a person can unknowingly come into contact with and unknowingly ingest cocaine. (R. at ) Additional facts necessary to the disposition of this case are asserted in the Argument section below. ARGUMENT SPECIFIED ISSUE TRIAL DEFENSE COUNSEL S FAILURE TO OBJECT TO THE AFDTL DRUG TESTING REPORT WAIVED THE CONFRONTATION CLAUSE ISSUE WITH RESPECT TO THAT REPORT; EVEN IF THE ISSUE WAS NOT WAIVED, ADMISSION OF THE REPORT WAS NOT PLAIN ERROR; AND, EVEN IF THE ADMISSION OF THE COVER PAGE WAS PLAIN ERROR, IT WAS HARMLESS. Standard of Review A forfeiture is basically an oversight; a waiver is a deliberate decision not to present a ground for relief that might be available in law. United States v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009)(quoting United States v. Cook, 406 F.3d 485, 487 (7th Cir. 2005)). In determining whether a particular circumstance constitutes waiver or forfeiture, this Court 14

22 considers whether the failure to object constituted an intentional relinquishment of a known right. Id. (citing United States v. Harcrow, 66 M.J. 154, 156 (C.A.A.F. 2008)). While forfeited issues are reviewed for plain error, this Court cannot review waived issues at all because a valid waiver leaves no error to correct on appeal. Id. (quoting United States v. Pappas, 409 F.3d 828, 830 (7th Cir. 2005)). Under a plain error standard, this Court reviews whether (1) an error was committed; (2) the error was plain, or clear, or obvious; and (3) the error resulted in material prejudice to substantial rights. Id. at 332 n.2 (quoting United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008)). For constitutional errors, this Court assesses harmlessness by considering whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction based on a review of the entire record. United States v. Blazier, 69 M.J. 218, (C.A.A.F. 2010) (quoting Chapman v. California, 386 U.S. 18, 23 (1967)). Law and Analysis A. Trial defense counsel waived this issue by failing to object to the admission of the AFDTL Drug Testing Report. A criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution. United States v. Mezzanatto, 513 U.S. 196,

23 (1995). The Supreme Court in Mezzanatto clarified that [r]ather than deeming waiver presumptively unavailable absent some express enabling clause, we instead have adhered to the opposite presumption. Id. Specifically in the context of the Confrontation Clause, the Supreme Court has recognized that [t]he right to confrontation may of course be waived, including by failure to object to the offending evidence. Melendez-Diaz, 129 S. Ct. at 2534, n.3 (emphasis added). Here, trial defense counsel s statement that he had no objection to the admission of the AFDTL DTR constituted a waiver of the Confrontation Clause issue with respect to that report. See id. at 2541 ( The defendant always has the burden of raising his Confrontation Clause objection. ) (emphasis in original). The affirmative statement by trial defense counsel that he had no objection amounts to more than a mere oversight. See Campos, 67 M.J. at 332 ( A forfeiture is basically an oversight. ) This is particularly true in light of the fact that defense counsel filed a motion in limine to exclude the AFIP report. The motion in limine demonstrates that the trial defense counsel was familiar with the applicability of Crawford to testimonial statements, as he effectively prevented the government from introducing the AFIP report and from eliciting 16

24 testimony of Dr. Smith regarding the retest in the government s case in chief. Trial defense counsel s affirmative statement declining to object, when specifically alerted by the military judge of the opportunity to object, is a clear instance of an intentional relinquishment of a known right. A finding of waiver is consistent with federal circuit courts of appeal that have generally found that a direct inquiry from a judge concerning the evidence in question, followed by an unequivocal assent by the defense counsel to the evidence s admission, constitutes waiver. See United States v. Pittman, 319 F.3d 1010, 1012 (7th Cir. 2003) (finding waiver on the grounds that counsel affirmatively represented that he had no objection to the admission of the evidence); United States v. Mitchell, 85 F.3d 800, (1st Cir. 1996) (finding waiver where there was a direct inquiry form the judge on the precise issue and an unequivocal assent from defense counsel). Moreover, courts have recognized that defense counsel may have a tactical purpose in waiving confrontation rights. See United States v. Holmes, 620 F.3d 836, 843 (8th Cir. 2010) ( [c]ounsel s decision to waive a defendant s confrontation rights must be done intentionally and for valid, tactical purposes ); United States v. Plitman, 194 F.3d 59, 64 (2d Cir. 17

25 1999) ( defense counsel may waive a defendant s Sixth Amendment right to confrontation where the decision is one of trial tactics or strategy that might be considered sound ). Here, the record indicates that defense counsel s decision not to challenge admission of the AFDTL DTR represented a sound tactical decision to minimize the number of live witnesses against Appellant and attack the reliability of the AFDTL with numerous discrepancy reports while the government did not have the lab technicians available as witnesses to explain or defend their actions. As recognized by the Supreme Court in Melendez- Diaz, It is unlikely that defense counsel will insist on live testimony whose effect will be merely to highlight rather than cast doubt upon the forensic analysis. 129 S. Ct. at Just as the Supreme Court predicted would be the norm, the defense counsel in this case engaged in tactical avoidance. Notably, Appellant has not alleged ineffective assistance of counsel. Thus, as in Campos, Appellant has not alleged ineffective assistance of counsel in this regard and the record does not support a conclusion that defense counsel s clear no objection response amounted to anything less than a waiver in the circumstances of this case. 67 M.J. at 333. Nonetheless, now on appeal, Appellant attempts to circumvent the clear waiver by arguing that, at the time of his 18

26 court-martial, he could not have grasped the full extent of his Sixth Amendment right to confront the analysts. (App. Br. at ) Appellant argues that [w]ith Melendez-Diaz and this Court s two subsequent Blazier decisions the legal landscape regarding a military accused s right to confront laboratory employees has significantly changed since [his] defense counsel declined to object to admission of the laboratory report. (App. Br. at ) However, Appellant s argument fails to appreciate that Crawford v. Washington, 541 U.S. 36 (2004) supplies the basis of his Confrontation Clause issue, an opinion that was in effect at the time of his trial. See United States v. Harcrow, 66 M.J. 154, (C.A.A.F. 2008) ( Crawford opened the door for a colorable assertion of the right to confrontation where it was not previously available ). As the Supreme Court noted in Melendez-Diaz, their decision involved little more than the application of [their] holding in Crawford v. Washington. 129 S. Ct. at Because Crawford put Appellant on notice of any colorable basis to object to the admission of the DTR, Appellant has no basis to circumvent his explicit waiver. Likewise, this Court s holding in United States v. Blazier, 68 M.J. 439 (C.A.A.F. 2010), did not change the legal landscape concerning whether or not a trial defense counsel should object 19

27 to the admissibility of a DTR. Blazier did not overrule any existing precedent and left United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006) and United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008), two decisions existing at the time of Appellant s trial, fully intact. Id. at 442 n.6. In Magyari, this Court explicitly rejected the government s argument that laboratory reports will always be nontestimonial. Harcrow at 66 M.J. 159 (citing Magyari, 63 M.J. at 127). In Harcrow, this Court emphasized that lab results or other types of routine records may become testimonial, and in fact found the records to be testimonial in the particular circumstances of that case (lab reports generated from evidence seized during arrest). 66 M.J. at 159. Accordingly, both Magyari and Harcrow, this Court s precedent existing at the time of Appellant s trial, put Appellant on notice of a colorable basis to object to the admission of the AFDTL DTR. Trial defense counsel s explicit declination to object to the DTR constituted waiver. B. Admission of the 32 pages of machine-generated data and chain of custody forms was not error. Even if Appellant had not waived his objection to the admission of the AFDTL DTR, he cannot establish plain error with respect to the machine-generated data and chain of custody documents. 20

28 In Magyari, this Court found that data entries in [an appellant s] urinalysis lab report, resulting from a noninvestigative urinalysis screening, were not testimonial. 63 M.J. at This Court reasoned that [b]ecause the lab technicians were merely cataloguing the results of routine tests, the technicians could not reasonably expect their data entries would bear testimony against [the appellant] at his court-martial. Id. at 127 (citation omitted). Magyari remains controlling precedent and supports admission of the 32 pages of machine-generated data and chain of custody forms. Neither the Supreme Court s decision in Melendez-Diaz nor this Court s decision in Blazier disturbs the holding in Magyari. In Melendez-Diaz, the Supreme Court considered whether any statement was made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use later at trial. Id. at 2532 (quoting Crawford, 541 U.S. at 52). Magyari applies the same consideration. 63 M.J. at 127 (considering whether the lab technicians could reasonably expect their data entries would bear testimony against [the appellant] at his court-martial ). Moreover, this Court in Blazier recognized that it is wellsettled that under both the Confrontation Clause and the rules of evidence, machine-generated data and printouts are not 21

29 statements and thus not hearsay -- machines are not declarants and such data is therefore not testimonial. 69 M.J. at 224 (citations omitted). Accordingly, the holding in Magyari with respect to routine data entries and machine-generated data falls squarely in line with these more recent decisions. In this case, Appellant argues that the various analysts certifications, stamps, and signatures contained in the report constitute testimonial hearsay and violated [his] right to Confrontation. (App. Br. At 37.) While Appellant does not specify what he is referring to as the certifications, stamps, and signatures, he is apparently referencing the chain of custody forms in the DTR. But Appellant s argument fails for two reasons. First, similar to the factual situation in Magyari, there is no indication that any one of the numerous lab technicians that handled Appellant s sample would have reason to believe they were engaged in a law enforcement function or a search for evidence in anticipation of prosecution. Furthermore, as in Magyari, Appellant s sample was not identified in any manner that would indicate he was under investigation or suspected of wrongdoing. Therefore, applying Magyari and Melendez-Diaz, the routine chain of custody entries made by the lab technicians contemporaneously with the testing were not testimonial. 22

30 Second, Appellant s argument fails to appreciate the Supreme Court s comments in Melendez-Diaz regarding chain of custody evidence. The Supreme Court clarified: [W]e do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case. While [i]t is the obligation of the prosecution to establish the chain of custody, this does not mean that everyone who laid hands on the evidence must be called. 129 S. Ct. at 2532 n.1 (emphasis added). Moreover, Appellant s reliance on Melendez-Diaz is misplaced. Melendez-Diaz is a narrow holding involving a bare bones affidavit reporting the results of forensic testing conducted at the request of law enforcement. 129 S. Ct. at Noting that under Massachusetts law the sole purpose of the affidavits was to provide prima face evidence of the composition, quality and net weight of the analyzed substance, the Supreme Court reasoned [w]e can safely assume that the analysts were aware of the affidavits evidentiary purpose, since that purpose - as stated in the relevant state-law provision -- was reprinted on the affidavits themselves. Id. at 2532 (emphasis in original). Here, unlike the affidavits at issue in Melendez-Diaz, there is no basis to assume that the 23

31 AFDTL technicians would foresee that their routine data entries would bear testimony against Appellant. Accordingly, Appellant has failed to establish that admission of the 32 pages of machine-generated data and chain of custody forms constituted error, much less plain error. C. Appellant has not established that admission of the cover page of the DTR was plain error. In Blazier, this Court considered whether the cover page of a DTR, prepared not only after the results reporting assistance knew that the specimen[] had tested positive for illegal substances, but also in response to the prior day s request by [the] command for such report[] for court-martial use, was testimonial. 68 M.J. at 442. Because the cover page clearly set forth the accusation that certain substances were confirmed present in [the] urine at concentrations above the DOD cutoff level and because the evidentiary purpose of [the cover page] was apparent, as [it was] generated in direct response to a request from command indicating [it] was needed for use at court-martial, this Court found it to be testimonial. Id. at 443. Here, however, there is no evidence in the record that the cover page of Appellant s DTR was generated in direct response to a request from command indicating [it] was needed for use at court-martial. Thus, unlike the circumstances of Blazier, 24

32 there is no indication that the evidentiary purpose of the cover page was apparent to the lab technician who prepared it. See United States v. Foerster, 65 M.J. 120, 124 (C.A.A.F. 2007)( This Court has recognized that the absence of evidence a document was generated for the purpose of producing evidence at trial is important in determining whether it is nontestimonial. ) (quotations and citation omitted). Accordingly, Appellant has not met his plain error burden to establish that the admission of the cover page was plain or obvious error. D. Even if admission of the cover page of the DTR was plain error, such error was harmless. Because the cover page was merely cumulative of the remaining 32 pages of the non-testimonial DTR and Dr. Smith s testimony, admission of the cover page, if plain error, was harmless beyond a reasonable doubt. In United States v. Rankin, 64 M.J. 348, (C.A.A.F. 2007), this Court held that admission of testimonial hearsay was harmless beyond a reasonable doubt where the evidence was cumulative with the same type of information contained in other exhibits that were not testimonial evidence. Id. at 353. Similar to Rankin, the cover page of Appellant s DTR merely summarizes and repeats the same information contained in the remaining 32 pages of the non-testimonial DTR. Moreover, Dr. 25

33 Smith testified about his expert opinion that the drug test revealed the presence of the cocaine metabolite BZE in Appellant s urine. As a result, admission of the cover page, to which Appellant did not object, is harmless error. The same harmless error result was recently obtained in United States v. Norwood, 603 F.3d 1063 (9th Cir. 2010), a case remanded by the Supreme Court after Melendez-Diaz. In Norwood, the government conceded that an affidavit admitted at trial unaccompanied by any testimony was testimonial and subject to the Confrontation Clause. However, the Ninth Circuit found admission of the affidavit was harmless beyond a reasonable doubt because it was cumulative to other evidence sufficient to convict the defendant. Likewise, in light of the cumulative nature of the cover page, admission of the remaining 32 pages of the non-testimonial DTR, and Dr. Smith s expert testimony, this Court can be firmly convinced that admission of the cover page was harmless beyond a reasonable doubt. I. THE AFIP TEST RESULT WAS NOT OFFERRED FOR THE TRUTH OF THE MATTER ASSERTED AND WAS PROPERLY ADMITTED UNDER MIL. R. EVID. 703 TO EXPLAIN THE BASIS OF THE EXPERT OPINION; EVEN IF THE AFIP TEST RESULT WAS HEARSAY, APPELLANT S ATTACK ON THE RELIABILITY OF AFDTL OPENED THE DOOR TO THE REBUTTAL TESTIMONY. Standard of Review 26

34 This Honorable Court must review a military judge s decision to admit or exclude evidence for an abuse of discretion. United states v. Blazier, 68 M.J. 439, (C.A.A.F. 2010) (citing United States v. Clayton, 67 M.J. 283, 286 (C.A.A.F. 2009)). However, the antecedent question of whether the evidence that was admitted constitutes testimonial hearsay is a question of law reviewed de novo. Id. Law and Analysis A. Dr. Smith s testimony concerning the AFIP confirmation result was not offered for the truth of the matter asserted, but rather for the basis of his expert opinion under Mil. R. Evid The Supreme Court in Crawford held that the Confrontation Clause bars the admission of testimonial hearsay of a witness who did not appear at trial, unless the witness was unavailable to testify and the defendant had a prior opportunity for crossexamination. Crawford v. Washington, 541 U.S. 36, (2004). But, the Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. Id. at 59 n.9. Here, because Dr. Smith s testimony concerning the AFIP confirmation test was not offered in evidence to prove the truth of the matter asserted, Mil. R. Evid. 801(c), but rather for the purpose of explaining the basis for his expert opinion, the testimony is 27

35 not hearsay and thus does not implicate the Confrontation Clause. In People v. Lovejoy, 919 N.E. 2d 843 (Ill. 2009), a post Melendez-Diaz case, the Illinois Supreme Court held that forensic analysts, as expert witnesses, can repeat testimonial statements of non-testifying analysts on the theory that such statements, even when the sole basis for the experts opinions, are not offered for the truth of the matter asserted. In Lovejoy, a medical examiner testified that another toxicologist detected six different types of drugs in the victim s body after conducting blood tests, indicating that poisoning caused the victim s death. Relying on footnote nine of Crawford, which reaffirmed that the Confrontation Clause is not implicated when out-of-court statements are introduced for reasons other than establishing the truth of the matter asserted, the Illinois Supreme Court held that the medical examiner s testimony repeating the non-testifying analyst s conclusions was not admitted for its truth but was introduced to show the jury the steps the expert took prior to rendering an opinion. The court explained: We conclude that Dr. Harkey s testimony regarding the toxicology testing was elicited to show the jury the steps Dr. Harkey took prior to rendering an expert opinion in this case, and was not admitted 28

36 Id. at 869. to prove the truth of the underlying assertion we find that Crawford is not implicated in this situation because the toxicology evidence was admitted for reasons other than to prove the truth of the matter asserted. Other jurisdictions have followed a similar analysis to that set forth in Lovejoy. In Washington v. Lui, 153 Wn. App. 304, 325 (Wash. Ct. App. 2009), the court found that the prosecution s expert witnesses properly testified about their opinions, even though their opinions were based, at least in part, on forensic work performed by others. The court went on to hold that to the extent they disclosed information provided by others to the jury, that information was offered to explain the basis for their opinions and thus did not implicate the Confrontation Clause. Id. Similarly, in State v. Delaney, 171 N.C. App. 141, 143 (N.C. Ct. App. 2005), the court held that testimony as to information relied upon by an expert when offered to show the basis of the expert s opinion is not hearsay and hence did not violate the defendant s right to confrontation. Likewise, in the case at bar, Dr. Smith s testimony concerning the AFIP confirmation test was admitted for reasons 29

37 other than to prove the truth of the matter asserted -- the testimony was elicited to explain the basis of Dr. Smith s opinion concerning the reliability of the AFDTL test. Appellant made a tactical choice to attack the reliability of the AFDTL test result in an effort to undermine the expert testimony of Dr. Smith, as it was his right to do. When he chose his strategy to attack the reliability of the lab, Appellant was fully aware that the prosecution possessed evidence of a retest of his urine specimen conducted at another Department of Defense lab, AFIP. Appellant was on notice by early comments from the military judge and the trial counsel that while the AFIP retest results were not initially construed by the military judge to be admissible, they certainly could become admissible depending on whether Appellant opened the door to them during trial by attacking the reliability of the lab. The record makes clear that Dr. Smith testified about the AFIP confirmation test only to explain the basis of his opinion that the AFDTL result was reliable. This testimony became relevant after the basis for his opinion had been so vigorously attacked. In fact, on appeal, Appellant concedes that the AFIP result was probative of Dr. Smith s opinion regarding the AFDTL result following the exposure of numerous problems at the 30

38 laboratory. (App. Br. at 20.) The military judge explicitly stated that the AFIP confirmatory test was not admitted on rebuttal for the truth of the matter asserted but rather for the manner in which the expert witness went about reaching his conclusion which he is allowed to do under Mil. R. Evid (Jt. App. at 336.) Thus, the AFIP result was not offered as independent proof that Appellant s urine specimen contained BZE, but rather as basis evidence to explain Dr. Smith s opinion that the AFDTL result itself was reliable. Importantly, Dr. Smith was not acting as a mere conduit for repeating testimonial hearsay. Blazier, 69 M.J. at 225. First, as explained above, the AFIP test result was not offered for the truth of the matter asserted, and thus was not hearsay. Second, the record shows that Dr. Smith was not merely recounting the forensic work of others. Rather, Dr. Smith testified about his opinions and conclusions that were independently derived from his expertise and his review of the machine-generated data. Accordingly, because the AFIP confirmation test was offered to explain the basis of Dr. Smith s own opinion, and not as independent proof, the testimony at issue was not hearsay and did not implicate the Confrontation Clause. B. Even if the AFIP test result was hearsay, Appellant opened the door during the cross examination of Dr. Smith. 31

39 As noted, Appellant vigorously attacked the AFDTL personnel and lab practices during a very thorough cross examination of the prosecution expert, Dr. Smith. The military judge, rightfully concerned about a potential misrepresentation or fraud upon the court, correctly concluded that Appellant s vigorous attack opened the door to the AFIP retest. At trial and still on appeal, Appellant attempts to use the Confrontation Clause as a sword to enable him to attack the AFDTL, his drug test result, and Dr. Smith while at the same time excluding the AFIP retest of the very same urine specimen. But Appellant fails to appreciate that [t]he Confrontation Clause is a shield, not a sword. United States v. Lopez-Medina, 596 F.3d 716, 732 (10th Cir. 2010). Numerous jurisdictions have held that a defendant can open the door to the admission of evidence otherwise barred by the Confrontation Clause. See, e.g., Lopez-Medina, 596 F.3d at 733; Harris v. McKune, No , 2010 U.S. Dist. LEXIS 84175, *53 (D. Kan. Aug. 17, 2010); United States v. Acosta, 475 F.3d 677, (5th Cir. 2007); Tinker v. State, 932 So.2d 168, (Ala. Crim. App. 2005); State v. Birth, 37 Kan. App. 2d 753 (Kan. Ct. App. 2007); People v. Ko, 15 A.D.3d 173 (N.Y. App. Div. 2005); State v. Robinson, 146 S.W.3d 469, (Tenn. 2004). When the defendant opens the door to the admission of 32

40 hearsay statements, there is no Confrontation Clause violation. Id. A finding that Appellant opened the door to otherwise inadmissible evidence would be consistent with this Court s precedent. In United States v. Cannon, 33 M.J. 376, 382 (C.M.A. 1991), this Court noted: there is no requirement that an accused and his or her counsel be free of a "chilling effect" created by legitimate impeachment or rebuttal evidence. The rules of evidence contain various recognized avenues or "doors" through which evidence otherwise inadmissible in a case-inchief may legitimately be brought before the court in rebuttal. See, e.g., Mil. R. Evid. 304(b)(1), 311(b)(1), 404(a), 404(b), 405(a), 405(c), 607, 608, 609(a), 612, 613, and 801(d). Tactical decisions by defense counsel, designed to keep such "doors" closed, are a legal fact of life and often call for foregoing the presentation of evidence or witnesses (including the accused) favorable to the defense. Moreover, the Supreme Court has recognized that evidence which may be otherwise inadmissible often becomes admissible in order to prevent or cure deception or distortion. See, e.g., United States v. Robinson, 485 U.S. 25 (1988) (defense opened the door to prosecutor commenting on defendant s failure to testify); Harris v. New York, 401 U.S. 222 (1971) (statement inadmissible against a defendant in the prosecution's case in chief because of lack of the procedural safeguards required by Miranda may be used for impeachment purposes to attack the credibility of defendant's trial testimony); Oregon v. Hass, 420 U.S. 714 (1975) (statement obtained in violation of the 33