United States v. Ortiz

12 M.J. 136, 1981 CMA LEXIS 11606

• Court: United States Court of Military Appeals
• Decided: December 14, 1981
• Docket: No. 38,815; SPCM 14125
• Status: Published

Opinions

Opinion of the Court

EVERETT, Chief Judge:

On January 22, March 21, and April 2 and 16, 1979, Specialist Ortiz was tried by a military judge sitting as a special court-martial at Schweinfurt, Germany. Contrary to his pleas, he was convicted of possessing heroin, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The military judge sentenced him to a bad-conduct discharge, confinement at hard labor for 3 months, forfeiture of $250 pay per month for 6 months, and reduction to the lowest enlisted grade. The convening authority approved the sentence.

On February 12, 1980, a divided United States Army Court of Military Review set aside the findings and sentence because a chain-of-custody receipt (DA Form 4137) had been admitted to link evidence seized from Ortiz with a laboratory report. 9 M.J. 523. In so ruling, the Court of Military Review concluded that the rule announced in United States v. Porter, 7 M.J. 32 (C.M.A.1979), applied retroactively to April 3, 1978 — the date of the decision in United States v. Nault, 4 M.J. 318 (C.M.A.1978). After the court below denied a government motion for reconsideration, the Acting Judge Advocate General of the Army certified the case to this Court on the following issue (9 M.J. 15):

WHETHER UNITED STATES v. PORTER, 7 M.J. 32 (CMA 1979) AND UNITED STATES v. NEUTZE, 7 M.J. 30 (CMA 1979), SHOULD BE APPLIED RETROACTIVELY.

In United States v. Jessen, 12 M.J. 122 (C.M.A.1981), we addressed in detail this issue of retroactivity. There we concluded that footnote 7 of Nault, which stated that chain-of-custody receipts were inadmissible because prepared “principally with a view to prosecution,” para. 144d, Manual for Courts-Martial, United States, 1969 (Revised edition), applied to all cases then pending on direct review. However, we also held that only an appellant whose counsel objected to the admission of the receipt or who in some other way contested its reliability could take advantage of the Nault footnote in cases tried prior to May 7, 1979, when Porter and Neutze were decided. The case at bar was tried prior to that date, and defense counsel declined to object to the laboratory report and did not challenge its reliability in any other way. Therefore, the chain-of-custody receipt was properly admitted by the military judge.

Nonetheless, the findings of guilty cannot stand. At trial the prosecution relied on two German policemen who had seized the alleged heroin from Ortiz. Each of the policemen identified prosecution exhibit 1 — described in the record as “[o]ne (1) paper packet containing a powder like substance” — as the envelope they had taken from Ortiz. They also testified that they had turned over this envelope to “the third police precinct,” but they did not name any specific person to whom this evidence had been delivered.

Prosecution exhibit 2, the chain-of-custody receipt, identifies “Karin Frederrich” as the person from whom the evidence was received. Frederrich’s name was never mentioned by either police officer who testified as a witness. Moreover, the chain-of-custody receipt does not refer anywhere to either of the two German policemen who seized the envelope from Ortiz. The receipt’s description of articles lists “[o]ne paper packet containing a powder like substance,” but, unlike the situation in United States v. Madela, 12 M.J. 118 (C.M.A.1981), there is no reference on the receipt to any markings or writings on the packet.¹

The DA Form 4137 indicates that the evidence was obtained at 1400 hours on October 31, 1978 — three days after the alleged offense. There is no reference on the form to the third police precinct — the unit to whom the two German policemen had delivered the evidence. Under “location from where obtained,” the receipt states “[f]rom person of Ortiz,” and this is the only entry which in any way ties the evidence analyzed by the crime laboratory to the envelope seized from Ortiz.

Under these circumstances we conclude that, although the chain-of-custody receipt was admissible because of defense counsel’s failure to object, the Government failed adequately to link the envelope seized from Ortiz to the laboratory report.² See United States v. Fowler, 9 M.J. 149 (C.M.A.1980). Thus, the evidence is legally insufficient to establish a vital element of the offense. Accordingly, the charge must be dismissed. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

The decision of the United States Army Court of Military Review is reversed to the extent it permits a rehearing and the charge is dismissed.

1 . The German policemen testified through interpreters; it is unclear from their testimony whether, at the time of trial, prosecution exhibit 1 contained any identifying marks. In any event, as the exhibit is described in the record by the court reporter, there is no mention of any markings. Obviously, marks on the envelope in which the evidence was contained would have facilitated establishment of a chain of custody.

2 . Even the admissions by Ortiz to Captain Dobija (R. 58-59) are too ambiguous to support the omissions in the government’s case.