United States v. Brown

52 M.J. 565, 1999 CCA LEXIS 266, 1999 WL 982944
Procedural entryThis page is a short order in United States v. Brown. Read the opinion of the Court — 48 M.J. 578
Army Court of Criminal Appeals·Decided October 29, 1999·No. ARMY 9700954·Published

Opinion

OPINION OF THE COURT

VOWELL, Judge:

A special court-martial composed of officer and enlisted members convicted the appellant, contrary to his pleas, of wrongful use of cocaine and false swearing, in violation of Articles 112a and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 912a and 934 [hereinafter UCMJ]. The convening authority approved the adjudged sentence of a reduction to Private El and a bad-conduct discharge.

This case is before the court for automatic review pursuant to Article 66, UCMJ. The primary evidence supporting the appellant’s conviction for wrongful use of cocaine was a positive urinalysis test result. The appellant asserts that the urinalysis inspection was a pretext for an otherwise unlawful search and that pervasive deviations in the urine collection and transportation process rendered the test results unreliable. He also claims that the military judge erred in refusing to grant a post-trial challenge for cause of a court member.1 We disagree and affirm.

FACTS

The appellant was assigned to a transportation company commanded by Captain (CPT) Wendell. In late June 1996, Sergeant (SGT) Foreman (whose first name does not appear in the record of trial) approached First Sergeant (1SG) Brooks, the appellant’s first sergeant, and informed him that several members of his unit were using illegal drugs. Sergeant Foreman was assigned to another [567]*567unit, but her husband, SGT Kendrick Foreman, was a member of the appellant’s unit.2 Sergeant Kendrick Foreman, apparently at his wife’s urging, had recently referred himself for treatment for drug use.

Sergeant Foreman was reluctant to name the other unit individuals she suspected of using drugs, but after some persuasion, 1SG Brooks was able to convince her to write the names on a three-by-five card and to leave the card in his office. He retrieved the card after she departed, and took the card to CPT Wendell. Testimony at trial indicated that there were between four and six names on the card; whether the appellant’s name was listed was not clear.3 Both 1SG Brooks and CPT Wendell testified that Staff Sergeant (SSG) Norwood’s name was on the list. Staff Sergeant Norwood’s duties included running the monthly random urinalysis inspections of ten to fifteen percent of the unit.

Captain Wendell and 1SG Brooks discussed possible courses of action based on this allegation that several of the unit’s non-commissioned officers (NCOs) were using drugs. Captain Wendell also sought advice from his battalion commander, who recommended consulting the unit legal adviser.

The legal advisor opined that the card and conversation with SGT Foreman did not constitute probable cause to command-direct a urinalysis of the individuals whose names were recorded on the card, but that a 100% unit urinalysis would be an appropriate response to this report of drug use. When CPT Wendell attempted to make arrangements for a 100% urinalysis with the installation biochemical testing office, he was advised that the office could not logistically support one, but could handle specimens from 30% of the unit, or approximately sixty-five soldiers.

In view of the allegations against the unit’s alcohol and drug abuse coordinator, CPT Wendell wanted to keep the date of the 30% urinalysis secret, while conducting it as quickly as possible. First Sergeant Brooks, who usually selected the test date for the monthly urinalysis inspections, had not yet done so for July.

Names for the monthly random urinalysis tests were usually picked using a computer database containing the names of the unit’s soldiers. The program, called ARCIS (Army Company Information System), was also used to track training and military personnel records. Staff Sergeant Norwood, or his assistant, SSG Rusyn, normally generated the urinalysis computer lists. Staff Sergeant Rusyn testified that lists could be generated one of two ways: individual soldiers could be “command directed” by inputting their names directly, or a random selection could be generated by entering either the percentage or number of soldiers desired. Because some soldiers on the random list might be on leave or absent due to temporary duty or mission requirements, a figure higher than the actual number needed to meet the quota was normally selected.

Faced with the possibility that his unit’s previous negative results from urinalysis testing were the result of manipulation of the selection process or from advance warning to drug users, CPT Wendell decided to run the ARCIS program himself. On 3 July 1996, with coaching by the training NCO on the password-controlled system, CPT Wendell generated the list for the 9 July 1996 urinalysis. First Lieutenant (1LT) Koch, the unit’s executive officer, testified that he watched the process. After CPT Wendell generated the list — a process that took between two and five minutes — he locked the list in his desk drawer and did not remove it until the morning of the urinalysis. The appellant was one of the sixty-eight unit members whose names appeared on that list, as were the names of four or five of the soldiers listed by SGT Foreman on the three-by-five card.

The defense presented the testimony of an expert in statistics, Mr. Heuckeroth, in an [568]*568effort to undermine the prosecution’s theory that the list was randomly generated. While his testimony was less than clear, the gist of it was that it was highly unlikely that four or five individuals whose names appeared on the card would also appear on the 30% urinalysis list.

The import of this testimony was that someone, presumably CPT Wendell, manipulated the computer program to select specific individuals for testing, or made repeated “runs” of the program until a list containing the desired names appeared. Trial testimony refuted the first possibility, as the code “US” (for “unit sweep”) appeared on the ARCIS-generated list, which indicated a random selection process. The unrebutted testimony of CPT Wendell and 1LT Koch that there was only one run of the ARCIS program refuted the second defense argument.

Staff Sergeant Phyall, the battalion drug and alcohol abuse coordinator, conducted the urinalysis. He candidly admitted that this test was not a textbook example of regulatory compliance. For example, he failed to brief either those being tested or the observers regarding their responsibilities and duties; some participants departed the sequestered testing area for the dining hall prior to giving their samples; and the area where the specimen bottles were collected from the observers was adjacent to a high traffic area of the unit. Additionally, observers signed the ledger after returning the specimen bottles, rather than when the bottles were issued; labels were not placed on specimen bottles until they were returned filled with urine; and SSG Phyall initialed the labels before they were placed on the bottles, rather than when he accepted custody of the full specimen bottles.

The appellant was unable to produce sufficient urine for testing on his first attempt. His unlabeled specimen bottle was placed, with his military identification card, into the last open space of a specimen box, where it remained for about an hour and a half. The box, which could hold up to twelve specimen bottles, was subdivided into twelve numbered sections.

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United States v. Brown, 52 M.J. 565, 1999 CCA LEXIS 266, 1999 WL 982944 (acca 1999).

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