JIMMY E. FROST, JR., PETITIONER V. UNITED STATES OF AMERICA

   No. 86-300

   In the Supreme Court of the United States

   October Term, 1986

   On Petition for a Writ of Certiorari to the United States Court of
Military Appeals

   Brief for the United States in Opposition

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Question Presented
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The order of the Court of Military Appeals (Pet. App. 1a) is
reported at 22 M.J. 386.  The opinion of the Air Force Court of
Military Review (Pet. App. 2a-6a) is reported at 19 M.J. 509.

                             JURISDICTION

   The judgment of the Court of Military Appeals (Pet. App. 1a) was
entered on July 17, 1986.  The petition for a writ of certiorari was
filed on August 26, 1986.  The jurisdiction of this Court is invoked
under 28 U.S.C. (Supp. II) 1259(3).

                          QUESTION PRESENTED

   Whether petitioner was denied a fair trial on the ground that a
portion of his urine specimen, which was subjected to a standard
laboratory urinalysis prior to trial, was inadvertently destroyed.

                               STATEMENT

   Following a special court-martial, petitioner was convicted of the
wrongful use of marijuana, in violation of Article 134 of the Uniform
Code of Military Justice (UCMJ), 10 U.S.C. 934 (R. 151).  He was
sentenced to one month's confinement, forfeiture of $200, a reduction
in rank to the lowest enlisted grade, and a bad conduct discharge (R.
162).  The convening authority approved the findings and sentence.
The Air Force Court of Military Review affirmed the findings and
sentence (Pet. App. 2a).  On discretionary review, the Court of
Military Appeals summarily affirmed (Pet. App. 1a).

   1. On August 11, 1983, petitioner and the other members of his
military unit provided urine samples at Holloman Air Force Base in New
Mexico as part of a drug testing program (R. 85;  GX 1).  /1/ Portions
of petitioner's sample were later tested by four different methods;
each test was positive for marijuana (R. 55-59).  /2/

   Under the standard urinalysis testing procedure, which was followed
in this case, the servicemember who is tested provides a sample of
urine at his duty station, and a bottle containing that sample is
forwarded to the Brooks Air Force Base Drug Abuse Detection Laboratory
for testing (R. 85-87, 96-99).  At the laboratory, portions of the
original sample are poured for testing (R. 39-42, 102).  If the
initial screening and confirmation tests are positive for narcotics,
the original sample is retained (see R. 50-51, 105;  AX 20).

   In this case, the analysis of petitioner's urine sample on August
19, 1983, revealed the presence of marijuana (R. 50-51).  Officials at
Holloman Air Force Base directed the Brooks laboratory in September
1983 to retain petitioner's urine sample pending court-martial
proceedings (AX 20).  On September 27, 1983, a portion was poured from
the source sample and taken to the Brooks Toxicology Division for
further testing (R. 49-50, 110-111).  That test was also positive for
marijuana (R. 50-51;  GX 4).  The remainder of that portion of the
sample was kept in the Brooks Toxicology Division safe (R. 111-112).

   In late September 1983, petitioner sought access to his urine
sample so that an independent test could be performed at the
government's expense (AX 18, 19).  On November 8, 1983, the government
asked petitioner's counsel to provide the information necessary for
the sample to be sent under a chain of custody to a civilian
laboratory for testing (AX 21).  The defense, however, did not provide
the government with the sought-after information until early 1984 (R.
69-70;  AX 31).

   In November 1983, the government determined that petitioner's
source urine sample had been inadvertently destroyed at some time
after September 27, 1983 (AX 23;  R. 42, 51-52).  /3/ Only the portion
of the sample that had been analyzed at the Brooks Toxicology Division
was still in existence (R. 42, 51).  The government notified
petitioner's counsel that the remainder of that portion would be sent
to an independent civilian laboratory at the University of Utah for
further testing, and that the sample would be consumed by the test (AX
23).  Petitioner's counsel did not object to the procedure (ibid.).
The remainder of the sample was sent to the University of Utah on
November 28, and it tested positive for marijuana on December 5 (GX 5,
6, 12;  R. 57, 127, 132-133).  The following day, petitioner's counsel
informed the government that he "never formally objected (to)" and
"never formally approved" the government's proposal to send the
remaining portion of petitioner's urine sample to the University of
Utah for retesting (AX 22).

   During December 1983, the government learned that approximately one
milliliter of petitioner's urine sample remained in existence at the
Brooks laboratory (AX 23).  The defense asked that the remaining
portion of the sample be sent to the Schoenfeld Clinic Laboratory for
analysis (AX 31).  The sample was provided to the Schoenfeld
laboratory (AX 12, at 5).  Although it was possible to test the sample
to determine if marijuana was present, no test was performed (ibid.).
/4/

   2. During a pretrial hearing, petitioner moved to dismiss the
charges and to suppress the test results on the ground that the
government's failure to preserve his urine sample for an independent
analysis violated his right to due process.  Petitioner argued that
the destruction of his urine sample violated his due process rights,
but he did not explain why another analysis would produce exculpatory
evidence (R. 68-69;  AX 12, at 1).

   The trial judge denied the motion and made the following findings
of fact (R. 72-73):  (1) the defense made a timely request for an
independent analysis of petitioner's urine sample;  (2) the government
asked the Brooks laboratory to preserve the urine sample, the
laboratory knew of the request, and it had a duty to preserve the
sample;  (3) a portion of the sample was delivered to the Brooks
Toxicology Division on September 27, 1983;  (4) the parent urine
sample was inadvertently destroyed sometime between September 27 and
November 28, 1983, by an unknown person;  (5) the remaining portion
was sent to the University of Utah Center for Human Toxicology on
November 28, 1983, after the defense had been notified on November 22,
1983;  (6) the government made a good faith effort to have the sample
independently retested;  (7) the University of Utah Center for Human
Toxicology was an independent laboratory;  and (8) there was no
reasonable basis for believing that another retest would produce any
evidence favorable to the defense.

   3. Relying on California v. Trombetta, 467 U.S. 479 (1984), the Air
Force Court of Military Review rejected petitioner's claim that the
urinalysis test results should have been suppressed (Pet. App. 3a-4a).
 Also relying on Trombetta, the Court of Military Appeals summarily
affirmed (Pet. App. 1a).

                               ARGUMENT

   Petitioner contends that he was denied a fair trial because the
government inadvertently destroyed the bulk of his urine sample.  That
fact-bound claim was correctly rejected by the courts below, and it
does not warrant further review.

   1. The destruction of most of petitioner's urine sample did not
prevent that sample from being independently analyzed.  The remaining
portion was independently analyzed at government expense, as
petitioner had originally requested.  When petitioner failed to submit
the information necessary for an independent analysis at a laboratory
of his choice, the government notified him that the sample would be
sent to the University of Utah laboratory, where it would be analyzed
and consumed.  Petitioner had an opportunity to object to that
procedure, but he failed to do so.  Accordingly, as the trial judge
found, petitioner received exactly what he asked for:  an independent
analysis of his urine sample.  In addition, following the University
of Utah test, a small amount of the urine sample was discovered, and
it was sent to the civilian laboratory of petitioner's choice.  That
laboratory had a sufficient quantity of petitioner's sample to test it
for marijuana, but no test was performed.  In these circumstances,
petitioner cannot reasonably complain that he has been deprived of
access to or an independent analysis of his urine sample.

   2. There is also no reason to believe that petitioner's urine
sample was exculpatory.  As the Court explained in California v.
Trombetta, 467 U.S. 479, 488-489 (1984) (footnote omitted),
"(w)hatever duty the Constitution imposes on the (government) to
preserve evidence, that duty must be limited to evidence that might be
expected to play a significant role in the suspect's defense.  To meet
this standard of constitutional materiality, * * * evidence must both
possess an exculpatory value that was apparent before the evidence was
destroyed, and be of such a nature that the defendant would be unable
to obtain comparable evidence by other reasonably available means."
The facts of this case clearly show that the destroyed urine sample
was not material under Trombetta.

   First, four different types of laboratory tests uniformly detected
the presence of marijuana in petitioner's urine sample.  Petitioner's
urine sample therefore did not possess an apparent exculpatory value
before it was inadvertently destroyed.  The trial judge found that
there was no reason to believe that an additional test of petitioner's
urine sample by the Schoenfeld Laboratory would have resulted in any
evidence favorable to the defense (R. 73).  Neither military court of
appeals disturbed that finding, and it does not warrant review by this
Court.

   Second, the evidence at trial established that the type of analysis
used at the University of Utah laboratory, as well as one used at the
Brooks laboratory, was of undisputed validity in the scientific
community (R. 59, 125).  /5/ Thus, as in Trombetta, the test result
was wholly reliable.

   Finally, the government introduced evidence regarding the
calibration standards for the urinalysis equipment and the laboratory
testing procedures, and a forensic toxicologist from the Center for
Human Toxicology interpreted the standards, procedures, and data
relevant to the analysis of petitioner's sample (R. 128-134).  As in
Trombetta, petitioner therefore had a reasonable opportunity to
impeach the validity of the test results through cross-examination of
the witness.  Rather than attempt to do so, however, petitioner sought
to show that he was not impaired at the time the urine sample was
taken (R. 135), that the chain of custody from the Brooks laboratory
to the Center for Human Toxicology was faulty (R. 138), and that the
test results did not show that he was a "heavy user" of marijuana (R.
140-141).  The inadvertent destruction of the bulk of petitioner's
urine sample did not prevent him from presenting any of those
defenses.

   3. Petitioner contends (Pet. 5-6) that Trombetta is inapplicable
and that a special rule regarding the destruction of evidence is
necessary in the case of urine samples, because a negative
urinanalysis test result has a powerful exculpatory effect.  Even
accepting the premise of petitioner's argument, his conclusion does
not follow.  A negative intoxilyzer test result would surely provide
equally powerful exculpatory evidence, but Trombetta did not establish
a special rule for the type of test at issue in that case.  Beyond
that, petitioner's argument would require the courts to adopt
different materiality standards for each type of evidence that the
defense could hope to adduce at trial, and each standard would need to
be calibrated to the potential exculpatory effect different items of
evidence would have.  Neither Trombetta nor any other decision of this
Court suggests that due process requires that type of fine tuning.

   Petitioner also argues (Pet. 6-7) that urinalysis tests are less
reliable than the intoxilyzer test involved in Trombetta, because
there is a greater possibility of undetected human error with
urinalysis tests.  Evidence regarding the test procedures, standards,
and data relevant to petitioner's sample were adduced at trial,
however, and petitioner had the opportunity, through
cross-examination, to expose any flaws in the manner by which those
tests were performed.  What is more, petitioner has failed to explain
how the retention of his urine sample would have shed light on any
error in the test performed in this case or in the chain of custody of
that sample.

   Finally, petitioner suggests (Pet. 7-8) that this case is
distinguishable from Trombetta, because a court-martial may infer that
a defendant has wrongfully used marijuana based solely on a positive
urinalysis test result.  /6/ Petitioner therefore argues that there is
a greater need to preserve urine samples than breath samples, because
of the greater inculpatory effect of a positive urinalysis test
result.  Trombetta cannot be distinguished on that basis, however.
Under the state law at issue in Trombetta, a blood-alcohol
concentration greater than 0.10% gave rise to a presumption of
intoxication.  467 U.S. at 482.  Petitioner's position was therefore
no worse than Trombetta's, since petitioner could attempt to rebut the
inference of wrongful use of marijuana by showing, for example, that
he had unwittingly used the drug.  Petitioner has not explained how
retention of the bulk of his urine sample or any additional testing
would have helped him demonstrate that he had innocently consumed
marijuana.  Accordingly, the courts below correctly held that this
case is controlled by Trombetta.  /7/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   ANDREW J. ADAMS, JR.

      Col., OTJAG, USAF

   JOSEPH S. KISTLER

      Maj., OTJAG, USAF Appellate Government Counsel Government Trial
      and Appellate Counsel Division

   SEPTEMBER 1986

   /1/ Petitioner was in the same unit as the petitioner in Krueger v.
United States, petition for cert. pending, No. 85-2096;  petitioner
and Krueger provided urine samples at the same time;  they were
represented by the same defense counsel;  and their courts-martial
took place on successive days.

   /2/ Petitioner's sample was initially tested by radioimmunoassay
analysis, and the positive test result was then confirmed by gas
liquid chromatography/flame ionization detection and gas
chromatography/mass spectrometry analyses at Brooks Air Force Base,
Texas (R. 55-58).  Those three positive test results were later
confirmed by a different gas chromatography/mass spectrometry
technique at the University of Utah Center for Human Toxicology (R.
55, 57, 59).

   /3/ The person responsible for retaining urine samples at the
Brooks laboratory testified that seven or eight samples had been
inadvertently destroyed between April 1983 and March 1984;  the
laboratory analyzed approximately 22,000 urine samples per month
during that period (R. 43).

   /4/ Unlike in Krueger v. United States, supra, there was a
sufficient amount of petitioner's urine sample remaining to perform a
urinalysis test.

   /5/ That procedure (gas chromatography/mass spectometry) is used by
the National Institute on Drug Abuse as a reference procedure (R.
125).

   /6/ See United States v. Harper, 22 M.J. 157, 162 (1986).

   /7/ Petitioner also argues (Pet. 8) that his urinalysis test
results were inadmissible under Article 46, UCMJ, 10 U.S.C. 846.
However, the Court of Military Appeals held in United States v. Kern,
22 M.J. 49 (1986), that the Trombetta standard satisfies any special
military due process requirements.  Any alleged conflict between the
Court of Military Appeals' decision here and in Kern is for that court
to resolve.