United States v. Campbell

50 M.J. 154, 1999 CAAF LEXIS 712, 1999 WL 228240
CourtCourt of Appeals for the Armed Forces
DecidedApril 20, 1999
Docket97-0149/AR
StatusPublished
Cited by25 cases

This text of 50 M.J. 154 (United States v. Campbell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Campbell, 50 M.J. 154, 1999 CAAF LEXIS 712, 1999 WL 228240 (Ark. 1999).

Opinions

Judge EFFRON

delivered the opinion of the Court.

A special court-martial composed of officer and enlisted members convicted appellant, contrary to his pleas, of wrongful use of lysergic acid diethylamide (LSD), in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. The members sentenced appellant to a bad-conduct discharge, confinement for 75 days, forfeiture of $549.00 pay per month for 2 months, and reduction to the lowest enlisted grade. The convening authority approved these results, and the Court of Criminal Appeals affirmed.

On appellant’s petition, we granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED IN ADMITTING THE URINALYSIS TEST RESULTS AND THE GOVERNMENT’S EXPERT OPINION TESTIMONY REGARDING THE TEST ABSENT A SHOWING THAT THE NOVEL LSD TESTING METHODOLOGY WAS SUFFICIENTLY RELIABLE.

After oral argument in December 1997, the Court specified the following related issues:

I

WHETHER THE CONSTITUTION, THE MANUAL FOR COURTS-MARTIAL, REGULATIONS, OR OTHER APPLICABLE LAW REQUIRE A PARTICULAR CUT-OFF LEVEL IN ORDER FOR THE PROSECUTION TO ESTABLISH BEYOND A REASONABLE DOUBT APPELLANT’S KNOWING USE OF LSD.
II
WHETHER THE RECORD OF TRIAL CONTAINS SUFFICIENT SCIENTIFIC EVIDENCE REGARDING THE BASIS FOR THE CUT-OFF LEVEL FOR REPORTING POSITIVE GC/ MS/MS TEST RESULTS (200 PG/ML) SUCH THAT THE MEMBERS COULD DRAW AN INFERENCE OF WRONGFULNESS OF THE USE FROM THE CONCENTRATION OF LSD REPORTED IN APPELLANT’S SAMPLE (307 PG/ML). SEE UNITED STATES V. THOMPSON, 34 MJ 287 (CMA 1992); UNITED STATES V. HARPER, 22 MJ 157 (CMA 1986).
Ill
WHETHER THE EXPERT TESTIMONY REGARDING THE RESULTS OF THE CERTIFICATION AND BLIND AND OPEN QUALITY CONTROL TESTING WAS SUFFICIENT TO DEMONSTRATE THE RELIABILITY OF THE TESTING PROCEDURE UNDER DAUBERT TO REASONABLY EXCLUDE THE POSSIBILITY OF A FALSE POSITIVE RESULT.
A. WHAT EVIDENCE, IF ANY, INTRODUCED AT TRIAL DEMONSTRATES THAT GC/MS/MS WAS SUFFICIENTLY RELIABLE WITH REGARD TO REPORTING RESULTS AS POSITIVE OR NEGATIVE AND WITH REGARD TO PRECISELY IDENTIFYING THE EXACT CONCENTRATION OF LSD IN URINE.
B. WHAT WAS THE SIGNIFICANCE, IN TERMS OF ESTABLISHING THE RELIABILITY OF GC/ MS/MS, OF EACH OF THE FOLLOWING STATEMENTS ABOUT THE TEST RESULTS:
1. THAT THE ARMY CONCLUDED THE GC/MS/MS METHODOLOGY WAS “VERY ACCURATE” (R. 151);
2. THAT NORTHWEST TOXICOLOGY LABORATORY (NTL) HAS ALWAYS BEEN “WITHIN PLUS OR MINUS 20 PERCENT OR 2 STAN[156]*156DARD DEVIATIONS OF THE MEAN” WHEN ITS RESULTS ARE COMPARED TO THE TWO NAVY LABS CONDUCTING LSD CONFIRMATION TESTING (R. 188); AND
3. THAT NTL HAS NEVER INCORRECTLY REPORTED A BLIND QUALITY CONTROL RESULT, I.E., THAT NTL HAS NEVER INCORRECTLY REPORTED A RESULT AS POSITIVE OR NEGATIVE WHEN IT TESTS FOR THE PRESENCE OF LSD (AS OPPOSED TO QUANTIFYING THE CONCENTRATION OF THE DRUG) (R. 187).

For the reasons discussed below, we reverse the decision of the Court of Criminal Appeals.

FACTS

As noted by the court below, the sole evidence pertaining to the charge of wrongful use of LSD in this case consisted of the report of results of a urinalysis test. At trial, defense counsel moved to exclude evidence of the urinalysis and the supporting expert testimony on the ground that the scientific methodology used in the confirmatory test — gas chromatography tandem mass spectrometry (GC/MS/MS) — did not meet the standards of reliability required by Mil.R.Evid. 702, Manual for Courts-Martial, United States (1995 ed.), and relevant case law. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); United States v. Nimmer, 43 MJ 252 (1995). Consideration of the motion, which was contested, involved testimony from three expert witnesses.

The military judge denied the defense motion. Subsequently, he documented his decision in an appellate exhibit headed “Court Findings of Fact, Conclusions of Law, and Ruling on the Defense Motion In Limine.”

The evidence at issue was obtained during a routine unit inspection in which members of appellant’s unit were required to produce urine samples. This was not prompted by any concern about appellant’s duty performance or behavior.

Appellant’s sample was sent to the Army’s drug testing laboratory at Fort Meade, Maryland. It was tested twice over a 4-day period using radioimmunoassay analysis (RIA) for LSD. Both tests indicated that appellant’s urine contained LSD. The RIA procedure, however, does not quantify the amount of the drug in a sample and has not been certified by the Department of Defense as reliable for prosecution under the Uniform Code of Military Justice.

After the RIA test results were obtained, the sample was sent to Northwest Toxicology Laboratory (NTL) in Salt Lake City, Utah, for additional testing. At NTL, appellant’s sample was examined through a test using GC/MS/MS methodology. That test showed a level of 307 picograms (one-trillionth of a gram) of LSD per milliliter of urine. The Department of Defense has established a cutoff level of 200 picograms.

Dr. Rodger Foltz, the Laboratory Director of NTL, testified on behalf of the prosecution. He stated that the GC/MS/MS test is “based on scientific principles ... accepted by the scientific community” and represents the “state of the art” in testing for drugs. He stated that there are “a few” other toxicology laboratories that use that same test, but he added that its use is not widespread because the testing instrument costs about $350,000. He stated that this method of testing had been “presented at conferences on at least two occasions by two fellow toxicologists,” where it was subject to peer review. Dr. Foltz also testified that he had published an article in a peer-reviewed journal, Analytical Chemistry, in 1992 on the GC/MS/MS testing employed at NTL. He testified that there were no other articles on this method, because the “normal practice” is for scientists to publish an article only when there is a problem. He pointed out that this method had been published “in the open literature,” so “any other lab with that instrumentation is certainly free to use it.” He acknowledged, though, that he was “not aware, at this time, of any other labs actually using it.”

With respect to quality control, he testified that NTL received 20 “open quality-control [157]*157samples” per month to ensure the accuracy of its testing. These samples were presented for analysis, and the laboratory did not know what drug, if any, was present or in what level of concentration. These samples had been received since January 1993, when the laboratory first entered into a contractual agreement with the Army.

Dr. Foltz testified that, prior to awarding them a contract, the Armed Forces Institute of Pathology (AFIP) had conducted an “extensive review” of the procedures used at NTL to make sure the methodology was reliable.

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Bluebook (online)
50 M.J. 154, 1999 CAAF LEXIS 712, 1999 WL 228240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-campbell-armfor-1999.