CORRECTED COPY 

UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

LIND, KRAUSS, and BORGERDING 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist COREY J. BENNETT 

United States Army, Appellant 

ARMY 20111107 

Headquarters, III Corps and Fort Hood 

Gregory A. Gross, Military Judge 

Colonel Stuart W. Risch Staff Judge Advocate 

For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M. 

Jamison, JA; Major Jacob D. Bashore, JA (on brief). 

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA; 

Major Robert A. Rodrigues, JA; Captain Benjamin W. Hogan, JA (on brief). 

28 April 2014 

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MEMORANDUM OPINION 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

KRAUSS, Judge (Part I, Absence Without Leave): 

An officer panel sitting as a special court-martial convicted appellant, 

contrary to his pleas, of two specifications of absence without leave (AWOL) and 

one specification of wrongful use of marijuana in violation of Articles 86 and 112a, 

Uniform Code of Military Justice, 10 U.S.C. §§ 886, 912a (2006) [hereinafter 

UCMJ]. The convening authority approved the adjudged sentence of a bad-conduct 

discharge, confinement for three months, forfeiture of $978.00 pay per month for 

three months, and reduction to the grade of E-1. 

This case is before the court for review under Article 66, UCMJ. Appellant 

assigns two errors and raises matter pursuant to United States v. Grostefon, 12 M.J. 

431 (C.M.A. 1982). Appellant’s first assignment of error relative to his AWOL 

convictions and his Grostefon submission relative to his wrongful use of marijuana 

warrant brief discussion. 
BENNETT — ARMY 20111107 

2

Absence Without Leave

Appellant asserts that the evidence is legally and factually insufficient to 

support his convictions for AWOL because the government failed to prove that he 

was absent from the unit alleged. We agree in part with appellant and will provide 

relief in the decretal paragraph. 

Background 

Both specifications under Article 86, UCMJ (Specifications 1 and 2 of 

Charge I) alleged that appellant was absent from “Rear Detachment, 2-7 Cavalry, 

4th Brigade Combat Team (Rear) (Provisional), 1st Cavalry Division (Rear) 

(Provisional), located at Fort Hood, Texas” during two different periods of time. 

The panel found appellant guilty of Specification 1 of Charge I by exceptions and 

substitutions, excepting the words and figures “Rear Detachment, 2-7” and 

substituting the figures “2-7,” leaving the specification otherwise untouched. The 

panel found appellant guilty of specification 2 of Charge I as charged. 

The evidence at trial established that appellant was assigned to 2-7 Cavalry, 

4th Brigade Combat Team (BCT), 1st Cavalry Division (CD) in Iraq, and that on or 

about 27 January 2011, upon completion of his authorized Rest and Relaxation leave 

in the United States, he went AWOL rather than return to Iraq. The evidence further 

established that on or about 21 March 2011, appellant returned to duty at the Rear 

Detachment, 2-7 Cavalry on Fort Hood, Texas, but then went AWOL again a few 

hours later. 

The documents admitted relevant to appellant’s status during the two periods 

alleged in Specifications 1 and 2 of Charge I reflect his absences, first, from 

“D Company, 2-7 Cavalry, 4th BCT, 1st CD, Fort Hood, Texas” from 28 January 

2011 until return to “Rear Detachment, 2-7 Cavalry, 4th BCT, 1st CD, Fort Hood, 

Texas” on 21 March 2011; and second, from “Rear Detachment, 2-7 Cavalry, 

4th BCT, 1st CD, Fort Hood, Texas” on 22 March 2011 and remaining so absent 

until 26 July 2011. 

Law and Analysis 

The government concedes its failure to prove appellant’s absence from the 

charged unit in Specification 1 of Charge I, acceding to the contention that 2-7 

Cavalry is a completely different unit than 2-7 Cavalry Rear Detachment and 

therefore concluding a fatal variance exists requiring disapproval of that finding of 

guilt. 

“Under military law, the Government must establish not only that an accused 

has been absent without leave but also the organization from which he was absent.” 
BENNETT — ARMY 20111107 

3

United States v. Bowman, 21 U.S.C.M.A. 48, 50, 44 C.M.R. 102, 104 (1971). It is 

not asking too much to expect the government to plead and prove the unit from 

which an accused is absent without authority. United States v. Baumgardner, 

42 C.M.R. 829, 832-33 (A.C.M.R. 1970) (Nemrow, J., dissenting). When the 

evidence establishes a sufficient relationship between the unit alleged and the unit 

from which appellant was absent, the government generally prevails. See United 

States v. Barnes, 22 C.M.R. 439, 442 (A.B.R. 1956); see also United States v. Jack, 

7 U.S.C.M.A. 235, 22 C.M.R. 25 (1956). In other words, appellant will prevail 

when the evidence shows that the unit alleged is completely different than the unit 

proved. 

Appellant’s case is a close one in that documentary evidence and testimony 

established a close and organic relationship between “Rear Detachment, 2-7 

Cavalry,” located at Fort Hood, and “2-7 Cavalry,” then located in Iraq, while also 

establishing that the rear detachment was administered in large part under another 

hierarchy of units apparently established for that purpose at Fort Hood. See 

Bowman, 21 U.S.C.M.A. 48, 44 C.M.R. 102; Barnes, 22 C.M.R. 439. Because much 

of the evidence necessary to establish the relationship between the units in question 

was taken separately by the judge in an Article 39a, UCMJ, session, and never 

presented to the panel,1

 under the circumstances of this case, we accept the 

government’s concession to set aside the finding of guilty of Specification 1 of 

Charge I. 

 The evidence as to Specification 2 of Charge I is sufficient to affirm that 

finding of guilty. Testimony from the rear detachment commander and acting first 

sergeant, as well as the documentary evidence, sufficiently establish that appellant 

was absent from the unit alleged on the dates alleged. Appellant returned to the 2-7 

Cavalry Rear Detachment at Fort Hood from his first period of AWOL, was taken 

under control by responsible members of that unit, and was understood to be a 

member of and absent from that unit during the relevant period of time. See United 

States v. Vidal, 45 C.M.R. 540, 542-43 (A.C.M.R. 1972); Bowman, 21 U.S.C.M.A. at 

50, 44 C.M.R. at 104; Jack, 7 U.S.C.M.A. 235, 22 C.M.R. 25. 

Senior Judge LIND and Judge BORGERDING concur in Part I. 

 

1

 Recognizing that while the issue of whether a variance is material and fatal is a 

question of law, what unit the accused is absent from is a question of fact. See 

United States v. Teffeau, 58 M.J. 62, 66-67 (C.A.A.F. 2003); Bowman, 

21 U.S.C.M.A. at 50, 44 C.M.R. at 104; United States v. Murrell, 50 C.M.R. 793, 

795 (A.C.M.R. 1975). 
BENNETT — ARMY 20111107 

4

BORGERDING, Judge (Part II, Wrongful Use of Marijuana and Sentence): 

Sixth Amendment Right to Confrontation

Appellant also alleges in his Grostefon matters, inter alia, that his Sixth 

Amendment right to confrontation was violated when the military judge: (1) allowed 

the testimony of a government expert who did not personally perform any of the 

tests on appellant’s urine; and (2) admitted Prosecution Exhibit (Pros. Ex.) 7, the 

drug testing laboratory report, which contained testimonial hearsay. We find that 

the expert’s testimony did not violate appellant’s right to confrontation because she 

properly relied on machine-generated data when giving her independent expert 

opinion. We also find that while the military judge erred by failing to redact 

portions of Pros. Ex. 6 and 7 that contained testimonial hearsay, such errors were 

harmless beyond a reasonable doubt. 

Background 

The government’s case with regard to appellant’s wrongful use of marijuana 

consisted of the following evidence. First, in a pretrial statement made to his 

company commander, appellant admitted he had used marijuana approximately one 

to two weeks prior to 26 July 2011, the date he returned from AWOL status.2

 

Second, the government called Dr. CO, the Chief of Certification and Litigation at 

the Tripler Army Medical Center Forensic Toxicology Drug Testing Laboratory 

[hereinafter Tripler], who testified that, in her expert opinion, a laboratory document 

packet, which contained primarily machine-generated data, indicated that a urine 

sample with the laboratory accession number (LAN) T11H0085019 tested above the 

DOD cutoff level, and therefore “positive” for tetrahydracannabinol (THC), an 

active ingredient of marijuana or the cannabis family. Third, Pros. Ex. 6, a 

“Specimen Custody Document” contained on Department of Defense Form (DD 

Form) 2624, indicated that this LAN number was matched with appellant’s social 

security number. Finally, the government offered the laboratory document packet 

itself, absent the cover certification page, as Pros. Ex. 7. The military judge 

admitted both Pros. Ex. 6 and 7. 

Law and Analysis 

The Sixth Amendment provides: “In all criminal prosecutions, the accused 

shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. 

Const. amend. VI. “Accordingly, no testimonial hearsay may be admitted against a 

 

2

 At trial, appellant objected to the admission of this statement based on a lack of 

corroboration. Military Rule of Evidence [hereinafter Mil. R. Evid.] 304(g). 
BENNETT — ARMY 20111107 

5

criminal defendant unless: (1) the witness is unavailable, and (2) the witness was 

subject to prior cross-examination.” United States v. Blazier [hereinafter Blazier II], 

69 M.J. 218, 222 (C.A.A.F. 2010) (citing Crawford v. Washington, 541 U.S. 36, 53-

54 (2004)). A statement is testimonial if “made under circumstances which would 

lead an objective witness reasonably to believe that the statement would be available 

for use at a later trial.” United States v. Tearman, 72 M.J. 54, 58 (C.A.A.F. 2013), 

cert. denied, 134 S.Ct. 268 (2013) (quoting United States v. Sweeney, 70 M.J. 296, 

301 (C.A.A.F. 2011)).3 Under both the Confrontation Clause and the rules of 

evidence, “machine-generated data and printouts are not statements and thus not 

hearsay—machines are not declarants—and such data is therefore not ‘testimonial.’” 

Blazier II, 69 M.J. at 224. “[A]n expert may, consistent with the Confrontation 

Clause and the rules of evidence, (1) rely on, repeat, or interpret admissible and 

nonhearsay machine-generated printouts of machine-generated data, and/or (2) rely 

on, but not repeat, testimonial hearsay that is otherwise an appropriate basis for an 

expert opinion, so long as the expert opinion arrived at is the expert’s own.” Id. at 

222 (citations omitted). 

Waiver 

As an initial matter, we note there were three separate occasions when defense 

counsel conceded to the military judge that Dr. CO could testify as to her opinion of 

whether or not the sample with LAN T11H0085019 tested positive for THC.4

 

Defense counsel’s only objections with regard to Dr. CO’s testimony were based on 

“foundation” and the fact that “it would be a violation of [the] confrontation 

[clause]” for Dr. CO to testify that LAN T11H0085019 matched appellant’s social 

security number. Defense counsel argued Dr. CO could not rely on the data in Pros. 

Ex. 7 to give her “expert opinion” that the LAN was connected to appellant’s social 

security number. The military judge agreed with defense counsel and did not allow 

 

3

 We recognize that “[t]he language used by the Supreme Court to describe whether 

and why a statement is testimonial is “far from fixed.” See generally Tearman, 

72 M.J. at 58-59 (comparing several definitions of “testimonial” used by the 

Supreme Court). 

4

 The dissent avers that defense counsel “acquiesced only to what would amount to 

proper opinion testimony sufficient to preserve the matter for appeal.” United States 

v. Bennett, ARMY 20111107, slip op. at 13 (Army Ct. Crim. App. 28* Apr. 2014) 

(mem. op.) (Krauss, J., dissenting). However, even after hearing Dr. CO’s 

testimony, defense counsel still did not object, which further supports the conclusion 

that the defense did not find her testimony as to the positive test result 

objectionable. 

* Corrected 
BENNETT — ARMY 20111107 

6

Dr. CO to testify that LAN T11H0085019 corresponded with appellant’s social 

security number. 

Defense counsel objected to Pros. Ex. 7 (the laboratory document packet) on 

two separate occasions, but he never specifically objected to the admission of Batesstamped page 018. Rather, defense counsel first objected to the inclusion of the 

cover memorandum in Pros. Ex. 7, which the military judge properly excluded as 

testimonial hearsay. Second, when Pros. Ex. 7 was offered absent the cover 

memorandum, defense counsel’s only objection was based on relevance, whereupon 

he argued there was no longer any connection between appellant and the data 

contained in Pros. Ex. 7. However, defense counsel conceded that if trial counsel 

was able to establish the connection at a later time, he would withdraw the 

objection. The military judge allowed Pros. Ex. 7 to be admitted into evidence 

absent the cover memorandum. 

 

Defense counsel also objected to Pros. Ex. 6 (the “Specimen Custody 

Document,” DD Form 2426) “pursuant to Sweeny [sic]” and the “best evidence rule.” 

Specifically, defense counsel argued that the act of assigning the LAN to appellant’s 

social security number was a testimonial statement, requiring the person who 

assigned the LAN to be produced at trial.5

 The military judge admitted Pros. Ex. 6 

into evidence over defense objection only after properly redacting the “THC” result 

written in Block G of the form. Pros. Ex. 6 showed the connection between the LAN 

and appellant’s social security number (and thus the connection between Pros. Ex. 7 

and appellant). Defense counsel never objected to the certification statement in 

Block H of Pros. Ex. 6. 

Despite the lack of specific objections at trial, we decline to apply waiver 

under the facts of this case. “[T]here is a presumption against the waiver of 

constitutional rights, and for a waiver to be effective it must be clearly established 

that there was an intentional relinquishment or abandonment of a known right or 

privilege.” Sweeney, 70 M.J. at 303-04 (quoting United States v. Harcrow, 66 M.J. 

154, 157 (C.A.A.F. 2008)). The record in this case does not support such a finding 

of intentional relinquishment of a known right because trial defense counsel did 

make objections to Dr. CO’s testimony and Pros. Ex. 6 and 7 based on the 

Confrontation Clause, albeit not the specific objections of which appellant now 

complains. Moreover, the entire defense strategy with respect to the Article 112(a), 

 

5

 Appellant raises this same argument on appeal in his Grostefon matters. We find 

the military judge properly overruled the defense’s objection. The LAN number was 

assigned prior to any testing. Thus, it was done “under circumstances, which, taken 

as a whole establish that [it was] made for an administrative rather than an 

evidentiary purpose.” Tearman, 72 M.J. at 60 (citing Sweeney, 70 M.J. at 302). 
BENNETT — ARMY 20111107 

7

UCMJ, charge was to object to any evidence that corroborated appellant’s 

confession, and thus we cannot find that defense counsel’s failure to object to Dr. 

CO’s opinion, to the certification in Block H of Pros. Ex. 6, or to Bates-stamped 

page 018 in Pros. Ex. 7 was a “strategic trial decision.” Id. at 304. See generally 

Harcrow, 66 M.J. at 157-58. Therefore, we will conduct further analysis under the 

plain error standard of review. See Sweeney, 70 M.J. at 304; Harcrow, 66 M.J. at 

158. 

Plain error occurs when: (1) there was error, (2) the error was plain and 

obvious, and (3) the error materially prejudiced a substantial right of appellant. 

Sweeney, 70 M.J. at 304 (citing Harcrow, 66 M.J. at 158). “Where, as here, the 

alleged error is constitutional, the prejudice prong is fulfilled where the Government 

cannot show that the error was harmless beyond a reasonable doubt. Id. (citing 

Harcrow, 66 M.J. at 160). 

Dr. CO’s Testimony

 Under the principles articulated by our superior court in Blazier II, we find 

Dr. CO’s testimony established that her independent expert opinion was based on a 

review of and reliance upon the non-testimonial, machine-generated data contained 

in the laboratory document packet. Accordingly, we find no error as to the 

admission of her testimony. 

The military judge recognized Dr. CO as an expert in both pharmacology and 

forensic toxicology as it pertains to drug testing in the Department of Defense 

system. Trial defense counsel offered no objection to this recognition. As the Chief 

of Certification, Dr. CO was in charge of the individuals who reviewed the data 

coming out of the Tripler laboratory, and as the Chief of Litigation, she was the 

chief expert witness for the laboratory as well as the official records custodian. Dr. 

CO testified that she was familiar with the procedures for receipt and processing of 

samples at Tripler and she was able to explain to the panel the laboratory procedure 

for intake and processing of these samples. 

Dr. CO later testified that Pros. Ex. 7 (the laboratory document packet) “is 

produced by our laboratory” and “has a hard copy or [sic] the computer generated 

and any documents that pertain to the testing of a specific specimen.” She then 

explained how most forensic drug laboratories (including Tripler) test for the 

presence of THC in urine samples. Specifically, she told the panel that the first test 

conducted on a sample is a screening analysis used to “get rid of all of the 

negatives,” followed by a “confirmation” done by gas chromatography mass 

spectrometry (GCMS). 

Dr. CO then relied upon the non-testimonial, machine-generated data in Pros. 

Ex. 7 to explain to the panel the specific tests done on the sample with LAN 
BENNETT — ARMY 20111107 

8

T11H0085019. Although trial counsel’s question prompting this explanation was 

inartful—“And based upon the screening and the gas chromatography and mass 

spectrometry, GCMS results, do you recall what those results for Prosecution exhibit 

7?”—we find that Dr. CO’s answer was her independent expert opinion of the test 

results based on the non-testimonial, machine-generated data contained in Pros. Ex. 

7. Instead of simply repeating that the GCMS test showed a positive result for THC, 

she carefully explained that the sample with LAN T11H0085019 underwent three 

separate tests, as well as the differences between these tests. The first test was a 

screening, which “came up presumptively positive.” She testified that because of 

the presumptive positive, a second screening test was done which also came out 

presumptively positive. She then explained that a third test was done, the GCMS or 

confirmation test, which showed a positive result. Finally, Dr. CO testified after 

reviewing the laboratory document packet, that LAN T11H0085019 had 

76 nanograms per milliliter, which was above the DoD cutoff for THC. We find that 

all of the information Dr. CO needed to come to these conclusions is found in the 

non-testimonial, machine-generated data contained in Pros. Ex. 7 and that she 

properly relied on this data to give her independent expert opinion. See Mil. R. 

Evid. 702-703; Blazier II, 69 M.J. at 224-26. While not a model of perfection, Dr. 

CO’s testimony meets the requirements of Blazier II. See generally Tearman, 

72 M.J. 54.

Prosecution Exhibits 6 and 7

Although we find no error in Dr. CO’s testimony, we do find that the military 

judge committed plain error in not redacting the certification portion of Pros. Ex. 6 

(Block H of the “Specimen Custody Document,” DD Form 2624) for similar reasons 

to those articulated in Sweeney and Tearman. Sweeney, 70 M.J. at 304-05; Tearman, 

72 M.J. at 61. While the military judge correctly redacted the “THC” result notation 

in Block G, the signed certification in Block H of Pros. Ex. 6 still contained 

inadmissible testimonial hearsay because it indicated “the laboratory results . . . 

were correctly determined by proper laboratory procedures, and they are correctly 

annotated.” The individual who signed the certification did not testify at trial 

despite providing a “formal, affidavit-like statement of evidence.” See Sweeney, 

70 M.J. at 304. We also agree with appellant that the unredacted Bates-stamped 

page 018 in Pros. Ex. 7 contains inadmissible testimonial hearsay because it plainly 

states appellant’s LAN tested “positive” for THC and this information was certified 

by two individuals, who also did not testify at trial. See Sweeney, 70 M.J. at 304-05; 

Tearman, 72 M.J. at 61. 

However, we find these two erroneous admissions to be harmless beyond a 

reasonable doubt. “In the context of the erroneous admission of testimonial hearsay, 

our harmless beyond a reasonable doubt inquiry focuses on whether ‘there is a 

reasonable possibility that the evidence complained of might have contributed to the 

conviction.’” Id. (citing Blazier II, 69 M.J. at 226-27 (quoting Chapman v. 
BENNETT — ARMY 20111107 

9

California, 386 U.S 18, 23 (1967)). To make this determination, we apply the 

balancing test found in Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). See

Tearman, 72 M.J. at 62; Sweeney, 70 M.J. at 306. 

The first Van Arsdall factor includes a consideration of “the importance of the 

unconfronted testimony in the prosecution’s case.” Sweeney, 70 M.J. at 306 (citing 

Van Arsdall, 475 U.S. at 684); Tearman, 72 M.J. at 62. We are confident that these 

erroneously admitted portions of Pros. Ex. 6 and 7 were unimportant in relation to 

the rest of the evidence considered by the panel. In her testimony, Dr. CO made 

absolutely no reference to either the certification in Pros. Ex. 6 or to Bates-stamped 

page 018 of Pros. Ex. 7 in her testimony, as opposed to the expert in Tearman, who 

made a “passing reference” to the “THC” notation in Block G of DD Form 2624. 

See Tearman, 72 M.J. at 62. We find that, similar to the expert testimony in 

Tearman, “the overwhelming majority of [Dr. CO’s] testimony was squarely within 

the parameters” articulated in Blazier I and Blazier II in that she relied only on the 

non-testimonial portions of Pros. Ex. 7 and her own knowledge and experience as a 

basis for her opinion. Id. 

The second Van Arsdall factor requires consideration of whether the 

erroneously admitted testimony was cumulative with other evidence presented. 

Sweeney, 70 M.J. at 306 (citing Van Arsdall, 475 U.S. at 684); Tearman, 72 M.J. at 

62-63. We find the information in both the certification in Block H of Pros. Ex. 6 

and Bates-stamped page 018 in Pros. Ex. 7 is merely cumulative with Dr. CO’s 

testimony. Dr. CO’s independent expert opinion was that the specimen with LAN 

T11H0085019 was positive for THC. In coming to this conclusion, as we found 

above, Dr. CO, like the expert in Tearman, relied on the nontestimonial, machinegenerated data contained in the rest of Pros. Ex. 7. See Tearman, 72 M.J. at 62-63. 

Similarly, Dr. CO testified based on her personal knowledge of the Tripler 

laboratory procedures about “quality assurance,” which she stated were “steps taken 

by our laboratory to make sure that the wrong results are not reported out.” She 

described in detail the “internal and external quality assurances,” which included: 

“both blind and open quality controls” to ensure “the instrumentation is working 

properly as well as our personnel are not switching specimens on us;” the fact that 

multiple tests are conducted on the same sample to ensure accurate results; and 

inspections of the laboratory conducted three times a year by civilian and military 

board-certified inspectors and toxicologists. 

The third Van Arsdall factor explores the existence of corroborating evidence. 

Sweeney, 70 M.J. at 306 (citing Van Arsdall, 475 U.S. at 684); Tearman, 72 M.J. at 

62-63. We find the testimonial portions of Pros. Ex. 6 and 7 were also 

independently corroborated by Dr. CO’s testimony. With respect to Pros. Ex. 6, 

Dr. CO testified that she was the Chief of Certification and Litigation at Tripler; that 

she was “in charge of a group of individuals who review the data coming out of the 

laboratory for technical, scientific, and forensic acceptability;” and that she was also 
BENNETT — ARMY 20111107 

10

“the official records custodian of the laboratory.” Thus, her testimony corroborated 

the certification in Block H of Pros. Ex. 6 with “her own imprimatur of authenticity 

and reliability.” Tearman, 72 M.J. at 63 (citation omitted). Indeed, she testified 

there was nothing “amiss” with Pros. Ex. 6, save for the fact that “Ms. [CL] forgot 

to put the purpose [for her placement of the specimen in the freezer] which is to 

place it back into storage.” Dr. CO also independently corroborated the positive 

THC notation in Bates-stamped page 018 of Pros. Ex. 7 when she testified the 

specimen with LAN T11H0085019 tested positive for THC at “76 nanograms per 

milliliter,” which was above the DOD cutoff for THC at “50 nanograms per liter.” 

The fourth Van Arsdall factor requires us to analyze the extent of 

confrontation permitted. Sweeney, 70 M.J. at 306 (citing Van Arsdall, 475 U.S. at 

684); Tearman, 72 M.J. at 63. Since the declarants of the testimonial portions of 

Pros. Ex. 6 and 7 did not testify at trial, appellant did not have the opportunity to 

cross-examine them. As in Tearman, “[w]hile this factor would weigh against a 

finding that the admission of the testimonial statements was harmless beyond a 

reasonable doubt, it is far outweighed by the other four Van Arsdall factors.” 

72 M.J. at 63 n.15. Thus, we find this factor alone does not lead to the conclusion 

that the testimonial evidence “might have contributed to the conviction.” Id. at 63 

(quoting Chapman, 386 U.S. at 23). 

Finally, the fifth factor requires us to consider the strength of the 

government’s case. Sweeney, 70 M.J. at 306 (citing Van Arsdall, 475 U.S. at 684); 

Tearman, 72 M.J. at 63. We find the fifth Van Arsdall factor weighs against 

appellant because the government’s case for this specification was strong. Apart 

from Confrontation Clause objections, the defense identified no weaknesses in either 

the testing itself or in Dr. CO’s testimony. As in Tearman, “although [Dr. CO] 

could not cure the Confrontation Clause error by serving as a ‘surrogate witness,’” 

appellant did have the opportunity to cross-examine her. 72 M.J. at 63 (citing 

Blazier II, 69 M.J. at 222, 224). Appellant declined to do so in this case. In fact, as 

noted above, defense counsel admitted that Dr. CO could testify as to the positive 

THC result for LAN T11H0085019 and he did not object to her qualifications as an 

expert witness. Moreover, appellant confessed to his use of marijuana in a sworn 

statement given to his company commander. This confession was corroborated by 

Dr. CO’s independently admissible expert testimony. 

Overall, an expert witness relied on machine-generated data, as well as her 

personal knowledge of the drug testing procedures at Tripler, to give her 

independent opinion that LAN T11H0085019 tested above the DoD cutoff level for 

THC; the expert did not repeat or highlight any of the wrongfully admitted 

testimonial statements in Pros. Ex. 6 and 7; and the expert’s testimony and 

appellant’s confession rendered the impact of these inadmissible portions of Pros. 

Ex. 6 and 7 “cumulative and de minimis.” Id. at 63. We therefore find there is “no 
BENNETT — ARMY 20111107 

11

reasonable possibility” that this evidence “might have contributed to [appellant’s] 

conviction.” Id. (quoting Chapman, 386 U.S. at 23). 

CONCLUSION 

The finding of guilty of Specification 1 of Charge I is set aside and dismissed. 

The remaining findings of guilty are AFFIRMED. 

Reassessing the sentence on the basis of the error noted, the entire record, and 

applying the principles of United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986) 

and the factors set forth in United States v. Winckelmann, 73 M.J. 11, 15-16 

(C.A.A.F. 2013), we are confident the panel would have adjudged the same sentence 

absent the finding of guilty of Specification 1 of Charge I. 

In evaluating the Winckelmann factors, there is no dramatic change in the 

penalty landscape because appellant’s maximum punishment was capped at the 

jurisdictional limit of a special court-martial: a bad-conduct discharge, confinement 

for one year, forfeiture of two-thirds pay per month for twelve months, and 

reduction to the grade of E-1. 73 M.J. at 15-16; UCMJ art. 19; R.C.M. 201(f)(2)(B); 

R.C.M. 1003(b)(4). Furthermore, appellant remains convicted of another AWOL and 

wrongful use of marijuana. The gravamen of the offenses has not changed, and 

under the facts of this case, the evidence supporting the dismissed AWOL 

specification remains admissible as aggravation directly related to the remaining 

AWOL. Winckelmann, 73 M.J. at 16. Finally, this court reviews the records of a 

substantial number of courts-martial involving AWOL and drug offenses and we 

have extensive experience with the level of sentences imposed for such offenses 

under various circumstances. Id.

The sentence is AFFIRMED. All rights, privileges, and property, of which 

appellant has been deprived by virtue of that portion of the findings set aside by this 

decision, are ordered restored. 

Senior Judge LIND concurs. 

KRAUSS, Judge, dissenting from Part II: 

I agree with appellant’s assertion that the government failed to adequately 

corroborate his admission of marijuana use and therefore respectfully dissent from 

the majority’s decision in that respect. Evidence corroborating an admission must 

be independently admissible. See United States v. Faciane, 40 M.J. 399, 403-04 

(C.M.A. 1994); see also United States v. Duvall, 47 M.J. 189, 190-91 (C.A.A.F. 

1997) (accepting the propriety of establishing independent grounds for the admission 

of corroborating evidence despite the lower court’s conclusion otherwise). Here, the 

only thing the government accomplished, as far as proof beyond appellant’s 
BENNETT — ARMY 20111107 

12

admission, was admission of inadmissible testimonial hearsay in the form of a 

laboratory report result reflecting appellant’s positive urinalysis for the presence of 

THC. 

The expert called to testify was never asked and never testified to the 

independent opinion necessary to serve as a basis upon which to corroborate the 

appellant’s admission or otherwise convict the appellant. Instead, the government 

merely secured the expert’s impermissible, or at least inadequate, repetition of 

otherwise inadmissible testimonial hearsay. See United States v. Blazier [hereinafter 

Blazier II], 69 M.J. 218, 225 (C.A.A.F. 2010). 

Much like the case in United States v. Porter, the expert here never 

“specifically interpret[ed] or rel[ied] on the machine-generated portions of the 

[laboratory report] to independently conclude that [appellant’s] sample had tested 

positive for . . . THC.” 72 M.J. 335, 338 (C.A.A.F. 2013). Rather, here the 

government asked the witness whether “based upon the screening and the gas 

chromatography and mass spectrometry, GCMS results, [she] recall[ed] what those 

results for Prosecution Exhibit 7 for identification [were] [sic].” (emphasis added). 

The expert then merely reported the results described by the laboratory packet. The 

government then ultimately asked: “So your expert opinion is that lab packet 

showed a positive result?” To which the expert witness answered: “Yes. It tested 

positive three times as mandated by the DoD and we were – we verified that the 

chain of custody was intact and we called it positive for THC.” (emphasis added).6

It is apparent from the expert’s testimony as a whole that she made reference 

to the royal “we” as she was not present at any of the testing and was never asked 

nor ever offered her own independent opinion of what the machine-generated data 

revealed. The description she provided of her duties is telling: “As a Chief of 

Certification, I am in charge of a group of individuals who review the data coming 

out of the laboratory for technical, scientific, and forensic acceptability. They are 

the people who actual [sic] call the urinalysis negative or positive. As chief of 

litigation, I am the chief expert witness for the laboratory as well as the official 

records custodian of the laboratory.” (emphasis added). And, as the majority notes, 

she was recognized “as an expert in both pharmacology and forensic toxicology as it 

pertains to drug testing in the DoD system.” (emphasis added). In other words, this 

expert’s qualification on the record set up her testimony that she reviewed the lab’s 

 

6

 The government later asked whether “based on the results – the test results within 

that laboratory packet then, can you say with certainty that the person provided that 

sample and just used marijuana within the previous 30 days?” To which the expert 

ultimately stated: “Yes,” and proceeded to repeat the nanogram level reported in the 

packet and what that means. 
BENNETT — ARMY 20111107 

13

work and vouches that it was in accordance with required procedures. This method 

of proof is insufficient. Blazier II, 69 M.J. at 225.7

 The defense lodged sufficient 

objection to admission of the report, and acquiesced only to what would amount to 

proper opinion testimony sufficient to preserve the matter for appeal, and therefore, 

I find the evidence insufficient to affirm Charge II and its specification. See Porter, 

72 M.J. 335; United States v. Tearman, 72 M.J. 54 (C.A.A.F. 2013); Blazier II, 

69 M.J. 218; United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008).8 

FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

 

7

 It may be that this witness could have been qualified to render the required 

independent opinion. But she was never asked whether her training, expertise and 

education equip her to tell us what the machine-generated scientific information, 

represented essentially by the graphs and numbers in Prosecution Exhibit 7 on pp. 

6-8, 13-15, and 20-37, mean. She also was not asked whether she reviewed that 

information and had her own opinion about what that information tells us. In this 

respect, the judge did not adequately fulfill his role as “gatekeeper.” See Blazier II, 

69 M.J. at 225 (citations omitted) (“[L]ack of knowledge or unwarranted reliance on 

the work of others may make an expert opinion inadmissible: the military judge, in 

his capacity as ‘gatekeeper,’ must determine whether the opinion is ‘based upon 

sufficient facts or data’ and is the product of ‘reliable principles and methods’ 

reliably applied to the case.”). 

8

 Even if defense counsel’s objections were deemed insufficiently clear, the 

admission of the laboratory packet and expert testimony for the purpose of 

corroboration and conviction constitutes plain error in light of United States v. 

Sweeney, 70 M.J. 296 (C.A.A.F. 2011), decided four months prior to appellant’s 

court-martial, and Blazier II, 69 M.J. 218. See also Porter, 72 M.J. 335; Tearman,

72 M.J. 54; Harcrow, 66 M.J. 154. 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: