United States v. Strangstalien

7 M.J. 225, 1979 CMA LEXIS 9727

Opinions

Opinion of the Court

FLETCHER, Chief Judge:

On four occasions, both on a military base and off, the appellant sold substances alleged to be marijuana or lysergic acid diethylamide (LSD) to an undercover agent of the Air Force Office of Special Investigations (OSI). The substances thus obtained were secured by an evidence custodian at Fort Meade, Maryland, and subsequently mailed to the laboratory at Fort Gordon, Georgia. Exhibits consisting of these substances and the laboratory analysis were admitted into evidence at trial.

Appellant’s general court-martial before a military judge sitting alone resulted in a bad-conduct discharge, total forfeitures, reduction to the lowest enlisted grade, and confinement at hard labor for 14 months. This sentence was approved by the convening authority and affirmed by the United States Air Force Court of Military Review.

I

We first consider the military judge’s denial of a motion to dismiss specifications 1 and 4 for lack of jurisdiction in that there was no showing of service connection. The initial sale of an hallucinogen,¹ as revealed by direct examination of the undercover agent, resulted in transfer of the drug and payment of the purchase price at an off-base residence. The undercover purchaser had begun his infiltration by spreading the word that he had an interest in purchasing drugs. This led to his acquaintance with the accused and a purchase agreement of a specific amount and price. The agreement, viewed as a contract to sell, was formulated on the base in a barracks building.

Turning, as is proper, to the Relford2 analysis, we perceive that the sale was the result of a contract created on a military installation. While the execution of the terms of sale occurred off-base, the contractual agreement was made in barracks under military control. The commission of the crime, viewed contractually, therefore, did not occur solely at the locus of transfer of the substance, which factor under the second or third Relford criterion might deprive the military courts of jurisdiction. In United States v. McCarthy, 2 M.J. 26 (C.M.A.1976), we spoke of the formation of the criminal intent for the offense on post as weighing heavily in favor of military jurisdiction in a marihuana transfer offense. In the case of a drug sale such as the one before us in specification 1 of the Charge, this McCarthy factor is equivalent to the formation of a contractual agreement on base, even with terms yet to be completed off base. See United States v. Hedlund, 2 M.J. 11 (C.M.A.1976). Thus, it was not error to deny the defense motion to dismiss the first specification. However, regarding the fourth specification of the charge, which also is jurisdictionally challenged in this appeal, we find no evidence in the record elucidating the locale of the negotiations leading to the sale of marihuana, and moreover, under Relford, find no analytical criteria resolving subject matter jurisdiction in favor of military courts.

Once again, we are compelled to reject the government’s argument that by charging the sales as a violation of a regulation, the proper focus of jurisdictional inquiry is not application of the Relford criteria but, rather, an examination of the legality of the order. United States v. Alef, 3 M.J. 414-17 (C.M.A.1977); United States v. Williams, 2 M.J. 81 (C.M.A.1976). Nor do we sustain the lower court in their analysis that these four transactions, occurring on divers days, find themselves properly in the military courts because of some tenuous relation as links of a “chain of illicit drug events”.³

II

After hearing oral argument, we ordered briefs on an additional question:

WHETHER, CONSISTENT WITH THE SIXTH AMENDMENT, THE GOVERNMENT CAN MEET ITS BURDEN OF PROOF IN A NARCOTIC CASE ABSENT TESTIMONY OF A CHEMIST OR OTHER QUALIFIED WITNESS CONCERNING THE IDENTITY OF THE PROFFERED EVIDENCE, THAT IT IS A PROHIBITED SUBSTANCE UNDER THE STATUTE, OR HAVE OBTAINED A STIPULATION TO THAT EFFECT.

The second issue originally granted in this case was framed as follows:

WHETHER IT WAS ERROR TO ADMIT INTO EVIDENCE FOUR ITEMS OF REAL EVIDENCE WHERE THE CONNECTION BETWEEN THE ITEMS AND THE APPELLANT AND THE CRIME WAS NOT SHOWN, AND FURTHER, THAT A LABORATORY REPORT ADMITTED INTO EVIDENCE HAD NO PROBATIVE FORCE.

A

It is axiomatic that under the United States Constitution the Government carries the burden of proof of each element of a criminal offense and absent its presentation of sufficient evidence, no burden ever shifts to the accused. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). An essential element of the regulation violation offense of which our appellant was charged consisted of competent evidence identifying the substances sold as specifically prohibited. Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892; A.F.R. 30-2, § 4-2. Evidence thus presented against the service member must satisfy the protections guaranteed him by virtue of the Sixth Amendment.⁴

We are called upon to examine the question of the admissibility of the report of a government laboratory chemical examiner, establishing the chemical profile of the substances in this case, which was excepted from the rule of incompetent hearsay, and received in evidence as a business entry exception. In this area we do not write on a clean slate. United States v. Evans, 21 U.S.C.M.A. 579, 45 C.M.R. 353 (1972), established that a report detailing the result of chemical analysis prepared by a state government agency qualifies for the business record exception and may, as such, be admitted into evidence. Tangential analysis was given in that opinion to the issue specified from the bench in the instant case: the relationship between the protections of the Sixth Amendment and the burden of establishing the identity of a prohibited substance. Later, in United States v. Miller, 23 U.S.C.M.A. 247, 49 C.M.R. 380 (1974), this Court examined the right of confrontation and cross-examination in light of guaranteeing a fair trial as the ultimate constitutional goal.⁵ That case acknowledged and discussed the long-recognized exception to the rule against hearsay, the business record entry which possesses the “hallmarks of authenticity” because made in the regular course of business. McDaniel v. United States, 343 F.2d 785 (5th Cir. 1965), cert. denied, 382 U.S. 826, 86 S.Ct. 59, 15 L.Ed.2d 71 (1965); Otney v. United States, 340 F.2d 696 (10th Cir. 1965); United States v. Leathers, 135 F.2d 507, 511 (2d Cir. 1943). Miller characterized the preparation of the chemist’s report in an Army crime laboratory as the establishment of a neutral fact; thus, the report of the identity of the subject matter was correctly admitted into evidence. Both Evans and Miller guaranteed the appellant’s right to challenge the report’s maker regarding his competency and the regularity in employment of procedure and subject him to cross-examination on his statement of analysis.

In a seminal federal case on chemical reports as business records, United States v. Ware, 247 F.2d 698 (7th Cir. 1957), the notation made in the regular course of business of a government chemist written on the envelopes containing the specimens was allowed into evidence under the so-called Shopkeeper’s Rule, 28 U.S.C. § 1732. “These exhibits . . . satisfy the underlying reason for this exception to the hearsay rule and the admission of this class of statements under section 1732 — the probability of their trustworthiness.” Id. at 700. The regular course of both civilian and military government chemical laboratories is to systematically analyze, then record and report, that analysis. In this setting, the likelihood of reliability and trustworthiness has frequently been deemed probable. United States v. Miller, supra; United States v. Evans, supra; United States v. Parker, 491 F.2d 517 (8th Cir. 1973), cert. denied, 416 U.S. 989, 94 S.Ct. 2396, 40 L.Ed.2d 767 (1974). See also United States v. Frattini, 501 F.2d 1234 (2d Cir. 1974); cf. Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1942).

As was made clear in both Miller and Evans, the Manual for Courts-Martial, United States, 1969 (Revised edition), provides a business entry exception to the hearsay rule,⁶ a method for authentication of that entry,⁷ and the further provision that: “Neither the official record nor the business entry exception to the hearsay rule renders admissible in evidence writings or records made principally with a view to prosecution, or other disciplinary or legal action, as a record of, or during the course of an investigation into, alleged unlawful or improper conduct.”⁸ This Court has earlier expressed the view that a chemist — even one in a governmental laboratory — does not perform his duties principally with a view to prosecution, discipline, or other legal action, as expressed in paragraph 144d, Manual, supra. “He does no more than seek to establish an intrinsically neutral fact, the identity of the substance itself.” United States v. Evans, supra at 582, 45 C.M.R. at 356. We continue to hold that view.

A writing is authenticated under the Manual⁹ “by proof that it came through a reliable source from a business whose regular course it was to make a memorandum or record of the act, transaction occurrence, or event, for it may be inferred from this proof that the writing was in fact made as a memorandum or record in the regular course of that business.” Moreover, it is not essential that such “entry be authenticated by the person who made it or that [the particular] authenticating witness have personal knowledge that the particular entry [is] correct”;¹⁰ rather, it merely must have been made in the regular course of business.

Furthermore, authentication of a writing may be waived by lack of objection to the document. Paragraph 143b, Manual, supra; United States v. Evans, supra; United States v. Castillo, 1 U.S.C.M.A. 352, 3 C.M.R. 86 (1952).

The facts of this case demonstrate that Exhibit 5 — the report of chemical analysis — was properly authenticated under the Manual provision.¹¹ Accompanying the report was a certification from a custodian of records of the investigative laboratory certifying that the report was prepared in the regular course of business of the laboratory and stated the results of analyses performed on the listed items. No objection to the authentication appears in the record. The report, as admitted, then, constituted a proper business entry in terms of paragraph 144c of the Manual and Fed.R.Evid. 803(6).

Though there was here a lack of objection to Exhibit 5, we reiterate an ancillary issue addressed in Miller. Even under the analysis propounded in the foregoing paragraph, there is no bar to a defense challenge of the accuracy of the chemical examination. Although we allow the entry into evidence as a properly authenticated business entry, this does not stop the introduction of evidence regarding inaccuracy of procedures or incompetency of the examiner. Upon affirmative request, the analyst may be summoned for cross-examination on his statement.¹² There was no affirmative request in this case; lack of objection to introduction of Exhibit 5 waived the contest.

B

The appellant further contends that there is a failure on the part of the Government to make a prima facie showing that Exhibits 1 — 4 represent the same items sold to the undercover agent by the appellant on the four occasions in question. He concedes that Agents Rogan, Waland and Jackson, in testifying on the methods employed in care and transfer of the substances, adequately established a chain of custody up to the point of mailing to the chemical laboratory at Fort Gordon, Georgia; but he argues that the absence of eye-witness knowledge reflected in testimony regarding the handling and custody of the items at the analysis center breaks the chain of custody.

Counsel for the appellant correctly argue that for the results of a chemical analysis to be admissible, they must meet the general requirements applied to evidence: competency, materiality, and privilege. Inasmuch as we have signaled our satisfaction that a properly authenticated laboratory report is of adequate trustworthiness due to regular scientific methods and procedures to warrant its admission into evidence as a business entry, so also we presume the regularity of procedure in the handling and storage of the specimens to insure absolute identity between the items received, then analyzed, and this subsequent representation in the written report. This is, furthermore, in accord with the well-established rule of law that without a contrary showing, the presumption of regularity supports the official acts of public officials.¹³ As we presume regularity in the chemical laboratory business handling of the specimen absent contrary showing, so the lack of a break in the chain of custody leads us to reject the defense assertion that the laboratory report represented in Exhibit 5 had no probative force.

The decision of the United States Air Force Court of Military Review is reversed as to specification 4 of the Charge. The finding of guilty of that specification is set aside and the specification is dismissed. The sentence is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for submission to the Court of Military Review for reassessment of the sentence based on the remaining findings of guilty.

Footnotes

1

. Negotiations, for mescaline demonstrated in the record were couched in such a way as to embrace the substance (LSD) sold.

2

. Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971).

3

. With due respect to the lower court, we find that the accused’s statement that if the agent declined his offer, he could sell the marihuana himself on the installation is cited with irrelevant application. Proper analytical application of Relford criterion 10 (the absence of any threat to a military post) is to jurisdiction of the subject matter charged: violation of a regulation by selling marihuana off-base.

4

. United States v. Williams, 16 U.S.C.M.A. 210, 36 C.M.R. 366 (1966); United States v. Jacoby, 11 U.S.C.M.A. 428, 29 C.M.R. 244 (1960).

5

. Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). See Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968).

6

. Paragraph 144c, Manual for Courts-Martial, United States, 1969 (Revised edition).

7

. Id.

8

. Paragraph 144d, Manual, supra.

9

. Paragraph 144c, Manual, supra.

10

. Id.

11

. Id.

12

. See Flores v. State, 491 S.W.2d 144 (Tex.Cr.App.1973), where the director of a crime laboratory which had performed an examination refused to testify for the defense unless retained as an expert. Citing the Sixth Amendment right to compulsory process of witnesses, the Texas Court of Criminal Appeals held the trial judge erred in failing to instruct the witness to testify about the previously conducted examination. Cf. Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv.L.Rev. 567, 619 n.143 (1978).

13

. United States v. Brown, 482 F.2d 1226, 1228 (8th Cir. 1973); Brewer v. United States, 353 F.2d 260, 263 (8th Cir. 1965); Gallego v. United States, 276 F.2d 914 (9th Cir. 1960).

54

. See text at n. 13, supra.