United States v. Mosley

42 M.J. 300, 1995 CAAF LEXIS 79, 1995 WL 506659
CourtCourt of Appeals for the Armed Forces
DecidedAugust 25, 1995
DocketNo. 94-0245; CMR No. 30042
StatusPublished
Cited by18 cases

This text of 42 M.J. 300 (United States v. Mosley) 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. Mosley, 42 M.J. 300, 1995 CAAF LEXIS 79, 1995 WL 506659 (Ark. 1995).

Opinions

Opinion of the Court

GIERKE, Judge:

1. Appellant tested positive in a random urinalysis and was charged with wrongfully using cocaine, in violation of Article 112a, [301]*301Uniform Code of Military Justice, 10 USC § 912a. On December 9, 1991, the military judge granted a defense motion to retest appellant’s urine sample for the presence of ecgoninemethylester (EME), raw cocaine, and benzoylecgonine (BE). The convening authority refused to order the retest, and the military judge abated the proceedings.

2. The Government appealed the military judge’s abatement order under Article 62, UCMJ, 10 USC § 862 (1983). On April 28, 1992, the Court of Military Review1 held that the military judge abused his discretion by ordering the retest and abating the proceedings. 34 MJ 1056, 1061. On April 29, 1992, appellant petitioned this Court to review the decision of the Court of Military Review. 36 MJ 23. On June 2, 1992, we denied appellant’s petition without prejudice to appellant’s right to raise the issue during the ordinary course of appellate review. 36 MJ 47.

3. On June 12, 1992, appellant’s general court-martial continued; and, contrary to his pleas, the military judge, sitting as a general court-martial, convicted him as charged. The approved sentence provides for a bad-conduct discharge, confinement for 30 days, forfeiture of $500.00 pay, and reduction to the lowest enlisted grade. The Court of Military Review affirmed the findings and sentence in an unpublished opinion on September 22, 1993.

4. We granted review on March 25, 1994, of the following issue:

WHETHER THE AIR FORCE COURT OF MILITARY REVIEW ERRED WHEN THEY REVERSED THE DECISION OF THE MILITARY JUDGE, WHO ORDERED A RETEST OF APPELLANT’S URINE SAMPLE FOR BENZOYLECGONINE (BE), ECGONI-NEMETHYLESTER (EME), AND RAW COCAINE.

5. We hold that the military judge did not abuse his discretion in his ruling and that the court below erred when they reversed that ruling.

Factual Background

6. Appellant asked the military judge to order a retest of his urine sample after the convening authority had denied the request. Appellate Exhibit II. The Government’s Response is App. Ex. III. Appellant asserted two bases for his request: “fairness and to avoid retrying this case at a later date.” Appellant argued that his “extremely low level (223 ng/ml)” (nanograms per milliliter) was close enough to the Department of Defense cutoff level of 150 ng/ml to warrant retesting.

7. In support of the request for retesting, defense counsel presented the testimony of Dr. John Vasiliades, former Chief of Quality Assurance at the Air Force Drug Testing Laboratory, who was accepted by both sides as an expert in forensic toxicology. Dr. Vasiliades testified that if a person ingested the normal recreational dose of cocaine, laboratory testing would reveal raw cocaine for about 10 hours, the EME metabolite for 40-48 hours, and the BE metabolite at the DoD (Dept, of Defense) cutoff level for about 72 hours. EME can only be produced by ingesting cocaine in the body; BE can be produced by placing cocaine directly into a urine sample. If a test is positive for BE but negative for EME, there are two possible explanations: (1) the person being tested “ingested cocaine” and “the EME has dissipated”; or (2) someone “put cocaine in the urine” sample “aside from ingestion.” The presence of BE and raw cocaine but no EME in the urine sample would indicate that someone “spiked” the urine sample.

8. Dr. Vasiliades testified that testing for EME and raw cocaine could be done “within one day” and “should not cost more than a couple of hundred dollars.” In documents attached to the written motion, defense counsel had represented that Northwest Toxicology Laboratory in Salt Lake City, Utah, a DoD certified laboratory, could conduct the EME testing at a cost of $150.00.

9. Finally, Dr. Vasiliades testified that, based on his previous experience at the Air Force Laboratory, appellant’s urine sample [302]*302should have been frozen and retained, and thus was available for further testing. Dr. Vasiliades was asked if the sample would be “frozen in time” and the breakdown of the sample would be “minimal.” He responded in the affirmative, but qualified his answer by-testifying that “the only way we would know that is by retest.”

10. Trial counsel presented the testimony of Dr. Donald L. Frederick, current Chief of Quality Assurance at the Air Force Drug Testing Laboratory. Dr. Frederick testified, “I don’t think it is an absolute” that the presence of raw cocaine but the absence of EME would indicate a “spiked” sample. He explained that “some people that have atypical enzymes in their body and their processing of that compound would not be the same as the majority of us,” and therefore EME “may not be present or may be present in such a low level that you wouldn’t see it----”

11. Dr. Frederick agreed with Dr. Vasiliades, however, that testing for EME would provide more information and greater certainty “about how much cocaine was ingested or what time frame the cocaine was ingested in[.]” Dr. Frederick testified that the cost for a retest for raw cocaine, BE, and EME would be “probably in the range of $250.00.”

12. The military judge granted the defense request for retesting. After trial counsel announced that the convening authority would not order the retest, the military judge abated the proceedings.

13. The military judge’s written findings of fact include the following:

(1) Appellant’s urine contained a concentration of 223 ng/ml of BE.

(2) Assuming the normal recreational dose of 100 mg of cocaine, “BE will be detectable in the urine up to approximately 72 hours, and EME will be detectable in the urine up to approximately 40^8 hours.”

(3) “BE can be produced by ingesting cocaine or by putting cocaine in urine with the right PH balance; EME can be produced only through ingestion.”

(4) “By testing for EME and cocaine in conjunction with the BE test, a qualified forensic toxicologist can, with a reasonable degree of certainty, determine whether the cocaine in the urine was ingested by the accused or was placed in the urine from an outside source, either through intentional or unintentional contamination of the sample.”

(5) Appellant has no evidence of a break in the chain of custody.

(6) Appellant has no evidence of contamination of his urine sample.

(7) “Testing for BE, EME, and cocaine is a relatively simple procedure” that “will cost the government approximately $250.00.”

14. In his conclusions of law, the military judge stated that the results of EME testing would be relevant and that such evidence is “necessary” within the meaning of RCM 703(f)(1), Manual for Courts-Martial, United States, 1984. He concluded by observing, “Indeed, this may be the only way that an accused can effectively challenge the Government’s evidence on chain of custody, since an accused is at somewhat of a disadvantage in demonstrating intentional contamination of his sample or unintentional contamination in the testing process.”

15. After the Court of Military Review reversed the order of the military judge, the prosecution presented the test results and the stipulated testimony of the persons who obtained appellant’s urine sample.

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Cite This Page — Counsel Stack

Bluebook (online)
42 M.J. 300, 1995 CAAF LEXIS 79, 1995 WL 506659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mosley-armfor-1995.