United States v. Layne

29 M.J. 48, 1989 CMA LEXIS 3498, 1989 WL 103760
CourtUnited States Court of Military Appeals
DecidedSeptember 26, 1989
DocketNo. 61,001; NMCM 86 4805
StatusPublished
Cited by7 cases

This text of 29 M.J. 48 (United States v. Layne) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Layne, 29 M.J. 48, 1989 CMA LEXIS 3498, 1989 WL 103760 (cma 1989).

Opinion

Opinion of the Court

COX, Judge:

On August 18, 1986, appellant was tried by special court-martial without members. Contrary to his pleas, he was found guilty of violating Articles 81, 92, 107, 112a, and 134, Uniform Code of Military Justice, 10 USC §§ 881, 892, 907, 912a, and 934, respectively, by conspiring to evade and compromise a random urinalysis test; disobeying a lawful order to submit a specimen of [49]*49his urine; making a false official statement by providing a false urine specimen; wrongfully using marijuana; and evading and compromising lawful urinalysis testing. He was sentenced to receive a bad-conduct discharge, confinement for 3 months, forfeiture of $200.00 pay per month for 5 months, and reduction in grade to E-l. The convening authority approved the sentence as adjudged.

The Court of Military Review concluded that the record of trial was insufficient to prove that appellant was guilty of failing to provide a urine specimen as ordered. Accordingly, the findings of guilty to that offense and the related crimes (false statement and compromising a urinalysis) were set aside. Upon reassessment of the sentence, the court approved a bad-conduct discharge, confinement for 2 months, forfeiture of $200.00 per month for 3 months, and reduction to pay grade E-3.

We granted appellant’s petition for review 1 to determine whether the evidence of marijuana use adduced from analysis of his urine was admissible and to examine the sufficiency of the evidence to support his conviction for conspiracy.2

This case emanated from an order issued by the Commanding Officer (Major Richards), United States Marine Corps Recruiting Station, East Lansing, Michigan, on April 29, 1986, which prescribed sweep-urinalysis testing “in conjunction with” an “all hands meeting.” Major Richards subsequently learned that the results of the tests might have been compromised by the efforts of appellant, Sergeant George, and Corporal Conklin. He first became aware of this possibility on May 2,1986, when the Executive Officer, Captain Rowe, advised him of information received via the chain-of-command from Corporal Rau.3 Rau had observed appellant and Sergeant George “smoking marijuana” about 2 weeks before. By pretending to be concerned about the results of his own urinalysis, he had elicited information that led him to believe appellant and Conklin had some method for controlling the apparent results of sweep-urinalysis testing.

Understandably concerned about this accusation, Major Richards informed his commanding officer. He also decided to interview Corporal Rau on the following Monday. During this interview, Rau informed Major Richards that he had concluded from his conversations with Corporal Conklin that Conklin and Sergeant George had removed their own urine samples and appellant’s from the safe where they were stored and substituted other urine before the samples were mailed away for testing. Among other things, Rau told Major Richards that urine samples from civilians had been substituted for that of the conspirators and that he (Rau) had been informed that they (Conklin and George) “hoped ... [he] was smart enough not to say anything [50]*50about this.” 4 Major Richards was familiar with Rau, and because of that personal knowledge, as well as reports from other Marines in the recruiting station, he believed Rau to be credible.

Based on the information Rau provided, Major Richards decided to order another urinalysis of all Marines in the Recruiting Station headquarters element. Every person, including Major Richards himself, submitted to this second urinalysis, and it was monitored by Captain Rowe. The samples were provided under the direct supervision of Master Sergeant Kelly, who took each one individually to Captain Rowe. Rowe marked the bottles containing the samples of appellant, Conklin, and George with blue circles.5 After the urine specimens were tested by a certified drug-testing laboratory, appellant’s was found to contain metabolites of THC, the psychoactive ingredient of marijuana.

We hold that the results of this second urinalysis were admissible as the fruit of a search based on probable cause. Major Richards had every reason to believe Corporal Rau’s report. He knew Rau personally from both direct contact with him and his reputation within the Recruiting Station, and he believed Rau to be truthful. There is no evidence that Rau had any animosity toward appellant; indeed, they had been friends at one time. In such circumstances, a commander may give great weight to information supplied by an accountable “citizen informant.” United States v. Wood, 25 MJ 46, 48 (CMA 1987); see also United States v. Land, 10 MJ 103 (CMA 1980).6 Thus, we conclude that Major Richards had probable cause to believe that the urinalysis had been compromised by appellant and others, and he properly ordered a search to determine the reason for the compromise.7

Appellant also contends that there is insufficient evidence to sustain his conviction for conspiring with Sergeant George and Corporal Conklin to compromise the April 29 urinalysis. However, under a grant of immunity, Conklin testified that he approached Sergeant George and voiced his concerns about the urinalysis due to his use of diet pills, which might be revealed in the examination of his urine.8 George suggested that he should discuss his problem with appellant. Conklin did consult with appellant and repeated his fears about the upcoming inspection. In Conklin’s own words, he told appellant he “was paranoid” about being detected as a substance abuser, which might result in the termination of his career. Appellant told Conklin he would “think about” it. Conklin then left appellant’s office intending to return. Later in the day, Conklin was again in appellant’s office. After some other conversation, appellant told him to be at Sergeant George’s house after work.

Conklin lived in an apartment near Sergeant George’s house. After the duty day, he visited the latter. Appellant also came to the apartment. Following some general conversation, Conklin asked appellant what [51]*51they were “going to do about this.” Appellant then produced two bottles of urine.

Conklin was the observer for the urinalysis conducted on April 29. As such he had access to the bottles containing the collected urine and knew which bottle number had been assigned to each Marine in the Recruiting Station. He was also the Marine who mailed the filled bottles to the laboratory for analysis. When he mailed the urine, he renumbered an empty bottle with the figure assigned to him for this inspection and refilled it with the urine provided by appellant. Sergeant George brought a second bottle containing urine to Conklin at that time, and Conklin switched it with the one used during the sweep.

Sergeant George testified that he remembered very little about the conversations between him, Conklin, and appellant. However, he did remember that both Conklin and appellant were at his home on the evening before the April 29 urinalysis. Conklin brought two urinalysis bottles with him, and appellant brought some urine. This urine was to be substituted for urine specimens that would be collected during the urinalysis. That switch was in fact made the following day.

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Cite This Page — Counsel Stack

Bluebook (online)
29 M.J. 48, 1989 CMA LEXIS 3498, 1989 WL 103760, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-layne-cma-1989.