United States v. Boulden

26 M.J. 783, 1988 WL 72252
CourtU S Air Force Court of Military Review
DecidedJune 10, 1988
DocketACM 26638
StatusPublished
Cited by1 cases

This text of 26 M.J. 783 (United States v. Boulden) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Boulden, 26 M.J. 783, 1988 WL 72252 (usafctmilrev 1988).

Opinion

DECISION

LEWIS, Senior Judge:

This is a urinalysis case. Despite his plea of not guilty the appellant was found guilty by members of the wrongful use of cocaine. His sentence as adjudged and subsequently approved consists of a bad conduct discharge, confinement for one year, forfeiture of all pay and allowances and reduction to airman basic.

The essential facts are summarized herein. The appellant was required to provide a sample of urine pursuant to a unit inspection. Mil.R.Evid. 313(b). The inspection was conducted shortly after his return to duty following a weekend of recreation with two fellow members in Amsterdam. The urine, after being screened and determined to be presumptive positive for the cocaine metabolite, was subjected to the gas chromatography/mass spectrometry (GC/MS) test at the Army's central drug laboratory in Europe. Through this testing the cocaine metabolite, benzoylecgonine, was detected at a level of between 230 and 270 nanograms per milliliter (ng/ml) of urine. This was in excess of the minimum level for a positive test result, 150 ng/ml. The parties stipulated to the facts reflecting an adequate chain of custody of the appellant’s urine sample from the point of collection through the laboratory screening and testing processes. Thus, the aforementioned test data, supplemented by the testimony of an expert witness, constituted the prosecution evidence.

The appellant testified on the merits and denied having knowingly used cocaine. His two companions in Amsterdam also provided testimony in which they accounted for most of the appellant’s activities during their stay there except for one evening when the appellant was in the company of a newly found female acquaintance for several hours. While the witnesses acknowledged that they had engaged in a good deal of party activity involving consumption of alcohol, they denied having noted any drug activity or other suspicious acts resembling drug ingestion by the appellant.

Appellate defense counsel in their assignment of errors contend that the evidence is not sufficient to support the finding of guilty. Among the reasons assigned in support of this conclusion is that the government urinalysis expert’s testimony failed to demonstrate cocaine ingestion in that he did not testify that benzoylecgonine is not naturally produced by the body or by any other substance except cocaine, citing United States v. Murphy, 23 M.J. 310 (C.M.A.1987); United States v. Harper, 22 M.J. 157 (C.M.A.1986). We specified for further discussion the issue of whether, in view of the aforementioned omission, the prosecution evidence was sufficient to es[785]*785tablish the first element of the offense, that the appellant used cocaine. M.C.M., Part IV, paragraph 37b(2)(a) (1984). We are persuaded by the analysis of this issue by appellate government counsel that the evidence is sufficient to establish the appellant’s use of cocaine in the circumstances of this case.

In this case, unlike most urinalysis cases we have reviewed, the written data concerning the test results were not proffered nor admitted into evidence. That, in and of itself, causes us no concern. It is not the written urinalysis data product which is of paramount value to factfinders. Often such data product is quite voluminous, very technical, and more than a little bit confusing to one not familiar with laboratory testing methodology. Such a body of data, standing by itself, is of little value to the lay person. As the Court of Military Appeals has noted, a urinalysis data product “needs in-court expert testimony to assist the trier of fact in interpreting it if it is to rationally prove that an accused used marijuana” or other controlled substances. United States v. Murphy, supra, 23 M.J., at 312.

At trial the government expert, Major Michael L. Smith, Commander, Army Drug Testing Laboratory, Wiesbaden, Germany, testified concerning the urinalysis results. He explained that the screening and GC/MS confirmation test procedures detect the presence of benzoylecgonine, which he described as “a metabolite of cocaine.” Subsequently, he provided a slightly more detailed explanation, as follows:

Specifically in the case of cocaine, if a person insufflates it, takes is through their nose or ingests it in some manner, the body rapidly absorbs that. It starts circulating through the system. The liver and various other enzymes in the body convert the cocaine into a bunch of different metabolites, the principle [sic] one being benzoylecgonine in this case, which comes out in the urine. We then measure that to infer that the person has ingested cocaine, that result.

Major Smith, possibly through oversight by the trial counsel, was not specifically queried at any point in his testimony whether the metabolite, benzoylecgonine, is unique to cocaine or whether it might be naturally produced by the body or by some other substance ingested into the body. However, he expressed his certainty that the GC/MS result reflected that the appellant’s urine was “positive for cocaine.” He opined that the 230-270 ng/ml of benzoylecgonine detected in the appellant’s urine sample was consistent with a use of cocaine during the two to three day period before the urine was collected.

At first glance the absence of an opinion by the expert as to a unique relationship between the suspected drug and the detected metabolite might appear fatal to the prosecution case. In United States v. Harper, supra, 22 M.J., at 161, Judge Cox noted:

The mere presence of the drug or its constituent elements in the body has not been expressly held by this Court to be a fact sufficient to show use of that drug. Instead, we have additionally relied on expert testimony that the chemical traces of the drug are not naturally produced by the body or any other substance except the drug in question. United States v. Wynn, [11 U.S.C.M.A. 195, 29 C.M.R. 11 (1960) ], and United States v. Ford, [4 U.S.C.M.A. 611, 16 C.M.R. 185 (1954)].

This principle was re-enunciated by Judge Sullivan, writing for the Court in United States v. Murphy, supra. Murphy was a marijuana urinalysis case in which the prosecution had relied upon laboratory results alone to establish use of the substance. In analyzing the deficiencies of such evidence, Judge Sullivan noted that

... there was no basis in the record of trial for the judge to rationally conclude that [the metabolite of marijuana] was not naturally produced by the accused’s body or as a result of some other substance consumed by him. [Citation omitted.] Accordingly, the record of trial does not support appellant’s conviction for the wrongful use of marijuana.

23 M.J., at 311-312.

Thus, the Court of Military Appeals has established guidance on the nature of ex[786]*786pert testimony to be elicited if a legally sustainable urinalysis is to be achieved. See Mil.R.Evid. 703 and 705 for the general treatment of evidence of the underlying bases for expert opinions. Having reviewed a number of contested urinalysis cases, we have observed that the previously cited Harper/Murphy guidance is being followed with precision by Air Force trial counsel. This case appears to represent the rare exception. Is the guidance so ironclad that a deviation mandates reversal? In this case, we believe not.

Before we state those factors we rely upon in affirming the finding of guilty in this case, perhaps it is equally important to note that upon which we do not rely.

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Related

United States v. Boulden
29 M.J. 44 (United States Court of Military Appeals, 1989)

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Bluebook (online)
26 M.J. 783, 1988 WL 72252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-boulden-usafctmilrev-1988.