CORRECTED COPY



## UNITED STATES ARMY COUR T 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 Co rps and Fort Hood Gregory A. Gross, Military Judge
Colonel Stuart W. Risch Staff Judge Advocate

For Appellant: Colonel Patr icia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. Ba shore, JA (on brief).

For Appellee: Colonel John P. Carrell, JA ; Lieutenant Colonel James L. Varley, JA; Major Robert A. Rodrigues, JA; Captai n Benjamin W. Hogan, JA (on brief).

28 April 2014

---------------------------------- MEMORANDUM OPINION

----------------------------------

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

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

An officer panel sitting as a special cour t-martial convic ted appellant, contrary to his plea s, of two specifications of ab sence without leave (AWOL) and one specification of wrongful use of marijuana in violatio n of Articles 86 and 112a,
Uniform Code of M ilitary Justice, 10 U.S.C. §§ 886, 912a (2006) [hereinafter UCMJ]. The convening author ity 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, UC MJ. Appellant assigns two errors and raises matte r pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982). Appellan t’s first assignment of er ror relative to his AWOL
convictions and his Grostefon submission relative to hi s wrongful use of marijuana
warrant brief disc ussion.BENNETT — ARMY 20111107

2 Absence Without Leave

Appellant asserts that the evidence is legally and factually insufficient to support his convictions for AW OL because the government failed to prove that he
was absent from the unit alle ged. We agree in part wi th appellant an d will provide
relief in the decret al paragraph.

Background

Both specifications under Article 8 6, UCMJ (Specifica tions 1 and 2 of Charge I) alleged that appellant was abse nt from “Rear Detachment, 2-7 Cavalry, 4th Brigade Combat Team (Rear) (Pro visional), 1st Cavalr y Division (Rear) (Provisional), located at Fo rt Hood, Texas” during two different period s of time. The panel found appellan t guilty of Specification 1 of Charge I by ex ceptions and substitutions, excepting the words and figures “Rear Deta chment, 2-7” and substituting the figures “2-7 ,” leaving the speci fication otherwise untouched. The panel found appellant guil ty of specification 2 of Charge I as charged.

The evidence at trial established that ap pellant was assigned to 2-7 Cavalry, 4th Brigade Combat Team (BCT), 1st Cavalr y Division (CD) in Ir aq, 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 201 1, appellant returned to duty at the Rear Detachment, 2-7 Cavalry on Fo rt Hood, Texas, but then went AWOL again a few
hours later.

The documents admitted rele vant to appellant’s stat us 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 Cava lry, 4th BCT, 1st CD, Fort Hood, Texas” on 21 March 2011; an d second, from “Rear Detachment, 2-7 Cavalry, 4th BCT, 1st CD, Fort Hood, Texas” on 22 March 2011 and re maining 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 Re ar Detachment and
therefore concludi ng a fatal variance exis ts requiring disapprova l of that finding of guilt.

“Under military law, the Government must establish not only that an accused
has been absent without leav e but also the organization fro m 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 (19 71). It is not asking too much to expect the govern ment to plead and pr ove the unit from
which an accused is abse nt 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 suffici ent relationship between the unit alleged and the unit from which appellant wa s absent, the government generally prevails. See United States v. Barnes, 22 C.M.R. 439, 4 42 (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 alle ged is completely different than the unit proved.

Appellant’s case is a cl ose one in that document ary evidence and testimony established a close and organic relationship between “Rear Detachment, 2-7 Cavalry,” located at Fort Hood, and “2-7 Cavalry,” then locate d in Iraq, while also establishing that the rear detachment was administered in larg e part under another hierarchy of units apparently establis hed for that purpos e 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 be tween 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 circumst ances of this case, we accept the government’s concession to set aside the finding of guilt y of Specification 1 of Charge I.

The evidence as to Specif ication 2 of Charge I is sufficient to affirm that finding of guilty. Testim ony from the rear detachment commander and acting first sergeant, as well as the documentary evidence, suffici ently establish that appellant
was absent from the unit al leged on the dates alleged. Ap pellant returned to the 2-7 Cavalry Rear Detachment at Fort Hood from his first period of AWOL, was taken under control by resp onsible members of that unit, and was unders tood 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 wh ile the issue of whether a varian ce is material and fatal is a question of law, what unit th e 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 confrontat ion was violated when the mi litary judge: (1) allowed the testimony of a go vernment expert who did not pe rsonally perform any of the tests on appellant’s urine; an d (2) admitted Prosecution Exhibit (Pros. Ex.) 7, the drug testing laboratory report, which contai ned testimonial hearsa y. We find that the expert’s testimony did not violate appe llant’s right to confrontati on because she properly relied on machine-generated data when giving her independent expert opinion. We also find that while the military judge e rred by failing to redact portions of Pros. Ex. 6 and 7 that contained testimonial hearsay, such errors were harmless beyond a re asonable doubt.

Background

The government’s case with regard to ap pellant’s wrongful use of marijuana consisted of the following evidence. Firs t, in a pretrial statement made to his company commander, appellant admitted he had used marijuana approximately one to two weeks prior to 26 Ju ly 2011, the date he retu rned from AWOL status. 2
Second, the government called Dr. CO, the Chief of Certification an d Litigation at the Tripler Army Medical Center Forens ic Toxicology Drug Testing Laboratory [hereinafter Tripler], who testified that, in her expert opinion, a laboratory document packet, which contained primarily machine- generated data, indi cated that a urine sample with the laboratory accession number (LAN) T 11H0085019 tested above the DOD cutoff level, and ther efore “positive” for tetrah ydracannabinol (THC), an active ingredient of marijuana or the ca nnabis family. Thir d, Pros. Ex. 6, a “Specimen Custody Document” contained on Department of Defense Form (DD Form) 2624, indicated that this LAN numbe r was matched with appellant’s social security number. Finally, the government offered the laborato ry document packet itself, absent the cover certification pa ge, as Pros. Ex. 7. The milita ry judge
admitted both Pros. Ex. 6 and 7.

Law and Analysis

The Sixth Amendment provides: “In al l criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S.
Const. amend. VI. “Accordin gly, no testimonial hearsa y may be admitted against a

2 At trial, appellant objected to the admi ssion of this statemen t based on a lack of corroboration. Military Rule of Evidence [her einafter 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 unde r circumstances which would lead an objective witness reasonably to be lieve that the statemen t 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 Confrontatio n Clause and the rules of evidence, “machine-generated data and prin touts are not statem ents and thus not hearsay—machines are not decl arants—and such data is th erefore not ‘testimonial.’” Blazier II , 69 M.J. at 224. “[A]n expert may, consistent with the Co nfrontation Clause and the rules of evidence, (1) rely on, repeat, or inte rpret admissible and nonhearsay machine-gene rated printouts of machine-generated da ta, and/or (2) rely on, but not repeat, test imonial hearsay that is otherwise an appr opriate basis for an expert opinion, so lo ng as the expert opini on arrived at is th e expert’s own.” Id. at 222 (citations omitted).

Waiver

As an initial ma tter, we note there were three separate occasion s when defense counsel conceded to the military judge that Dr. CO could testify as to her opinion of whether or not the samp le with LAN T11H0085019 tested positive for THC. 4
Defense counsel’s only object ions with regard to Dr. CO’s testimony were based on
“foundation” and the fact th at “it would be a violation of [the] confrontation [clause]” for Dr. CO to te stify that LAN T11H0085019 ma tched appellant’s social security number. Defense couns el argued Dr. CO could not rely on the data in Pros. Ex. 7 to give her “expert op inion” that the LAN was conn ected to appella nt’s social security number. Th e military judge agreed with de fense counsel a nd did not allow

3 We recognize that “[t]he language used by the Supreme Court to describe whether and why a statement is testimoni al is “far from fixed.” S ee generally Tearman

, 72 M.J. at 58-59 (comparing several defini tions of “testimonial” used by the Supreme Court).

4 The dissent avers that de fense counsel “acquie sced only to what would amount to proper opinion testimony su fficient to preserve th e matter for appeal.” United States

v. Bennett , ARMY 20111107, slip op . at 13 (Army Ct. Crim . App. 28* Apr. 2014) (mem. op.) (Krauss, J., diss enting). However, even after hearing Dr. CO’s testimony, defense counsel still did not ob ject, which further sup ports the conclusion
that the defense did not find her testim ony as to the positive test result objectionable.

* CorrectedBENNETT — 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, de fense counsel first objected to the inclusion of the cover memorandum in Pros. Ex. 7, which th e military judge properly excluded as testimonial hearsay. Sec ond, when Pros. E x. 7 was offered absent the cover memorandum, defense counsel’ s only objection was base d on relevance, whereupon he argued there was no l onger any connection between appellant an d the data contained in Pros. Ex. 7. However, defens e counsel conceded th at if trial counsel
was able to establish the connection at a later time, he would withdraw the objection. The military judg e allowed Pros. Ex. 7 to be admitted into evidence
absent the cover memorandum.

Defense counsel also obj ected to Pros. Ex. 6 (t he “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 L AN to appellant’s social security number was a testimoni al statement, requi ring 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 redact ing the “THC” result
written in Block G of the fo rm. Pros. Ex. 6 showed th e connection between the LAN and appellant’s social security number (a nd 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 presumpt ion against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established
that there was an intentio nal relinquishment or aban donment 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 th is case does not su pport such a finding of intentional relinquishme nt 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 en tire defense strategy with re spect to the Article 112(a),

5 Appellant raises this same argument on appeal in his Grostefon matters. We find the military judge pr operly overruled the defense’s objection. The LAN number was assigned prior to any testi ng. Thus, it was done “under ci rcumstances, which, taken as a whole establish that [i t was] made for an admini strative 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 objec t to any evidence that corroborated appellant’s confession, and th us we cannot find that defense counsel’s failure to object to Dr. CO’s opinion, to the certifi cation in Block H of Pros. Ex. 6, or to Bates-stamped page 018 in Pros. Ex. 7 was a “strategic tria l decision.” Id. at 304. See generally

Harcrow

, 66 M.J. at 157-58. Therefore, we will conduct further an alysis 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 wa s error, (2) the error was plain and obvious, and (3) the error materially prejud iced a substantial ri ght of appellant. Sweeney , 70 M.J. at 304 (citing Harcrow , 66 M.J. at 158). “Where, as here, the alleged error is constitution al, the prejudice pr ong is fulfilled wh ere the Government
cannot show that the error was harm less beyond a reasonable doubt. Id. (citing

Harcrow , 66 M.J. at 160).

Dr. CO’s Testimony

Under the principles articula ted by our superior court in Blazier II, we find Dr. CO’s testimony establishe d that her independent expe rt opinion was based on a review of and reliance upon the non-testimonial, machin e-generated data contained in the laboratory document packet. Accordingl y, we find no error as to the admission of her testimony.

The military judge recogniz ed Dr. CO as an expert in both pharmacology and forensic toxicology as it pertains to drug testing in the De partment 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 la boratory, and as the Chief of Litig ation, she was the chief expert witness for the la boratory as well as the offi cial records custodian. Dr.
CO testified that she was fa miliar with the procedures fo r receipt and processing of samples at Tripler and she was able to expl ain to the panel the laboratory procedure for intake and processing of these samples.

Dr. CO later testified that Pros. Ex. 7 (the labora tory document packet) “is produced by our labo ratory” and “has a hard copy or [sic] the computer generated and any documents that pertai n to the testing of a speci fic specimen.” She then explained how most forensic drug laboratories (including Tripler) test for the presence of THC in urine samples. Specific ally, she told the panel that the first test conducted on a sample is a screening anal ysis used to “get rid of all of the negatives,” followed by a “confirmation” done by gas chro matography mass spectrometry (GCMS).

Dr. CO then relied upon th e non-testimonial, machine- generated data in Pros. Ex. 7 to explain to the panel the specific tests do ne on the sample with LANBENNETT — ARMY 20111107

8 T11H0085019. Although tria l counsel’s question promp ting this explanation was inartful—“And based upon the screening and the gas chromatography and mass spectrometry, GCMS results, do you recall what th ose results for Prosecution exhibit
7?”—we find that Dr. CO’s an swer was her independent expert opinion of the test
results based on the n on-testimonial, machine-generated data contained in Pros. Ex. 7. Instead of simply repeating that the GCMS test sh owed a positive result for THC, she carefully explained th at 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 pres umptively positive.” She te stified that because of the presumptive positive, a second screening te st was done which also came out presumptively positive. She then explained that a thir d test was done, the GCMS or confirmation test, which showed a positive result. Finall y, Dr. CO testified after reviewing the laboratory document packet, th at 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 co me to these conclusi ons is found in the non-testimonial, mach ine-generated data contained in Pros. Ex. 7 and that she properly relied on this data to give her inde pendent 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 redacti ng the certification po rtion 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 sign ed certification in Block H of Pros. Ex. 6 still contained inadmissible testimonial hearsay because it indicated “the laboratory results . . . were correctly determined by proper labo ratory procedures, and they are correctly annotated.” The individual who signed th e certification did not testify at trial despite providing a “forma l, affidavit-like statement of evidence.” See Sweeney

, 70 M.J. at 304. We also ag ree with appellant that th e unredacted Bates-stamped page 018 in Pros. Ex. 7 contains inadmissi ble testimonial hearsay because it plainly states appellant’s LA N 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 tw o erroneous admissions to be harmless beyond a
reasonable doubt . “In the context of the erroneou s admission of tes timonial hearsay, our harmless beyond a reasonable doub t inquiry focuses on whether ‘there is a reasonable possibility that the evidence comp lained 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 th is determinatio n, 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 th e 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 confid ent that these erroneously admitted portions of Pros. Ex. 6 and 7 were unimportant in relation to
the rest of the evidence cons idered 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 fi nd 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 knowle dge and experience as a
basis for her opinion. Id

.

The second Van Arsdall factor requires consid eration of whether the erroneously admitted testim ony was cumulative with ot her 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 Bloc k 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 indepe ndent 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 nonte stimonial, machinegenerated data contained in the rest of Pros. Ex. 7. See Tearman

, 72 M.J. at 62-63. Similarly, Dr. CO testifie d based on her personal k nowledge of the Tripler laboratory procedures about “quality assura nce,” which she stated were “steps taken by our laboratory to make sure that the wrong results are not reporte d 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 pers onnel are not switch ing specimens on us ;” the fact that multiple tests are conducted on the same sa mple to ensure accurate results; and inspections of the laboratory conducted thre e times a year by civilian and military board-certified inspector s 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 co rroborated by Dr. CO’s testimony. With respect to Pros. Ex. 6,
Dr. CO testified that she was the Chief of Ce rtification and Litigati on at Tripler; that she was “in charge of a gro up of individuals who review the data coming out of the laboratory for technical, scientific, and fore nsic acceptability;” and that she was alsoBENNETT — ARMY 20111107

10 “the official records custod ian of the laborato ry.” Thus, her te stimony 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 omitt ed). Indeed, she testified there was nothing “amiss” with Pros. Ex. 6, save for the fa ct that “Ms. [CL] forgot to put the purpose [fo r 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-stampe d page 018 of Pros. Ex. 7 when she testified the specimen with LAN T11H0085019 tested pos itive 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 te stimonial 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 statemen ts 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 alon e 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 fo r this specification was strong. Apart from Confrontation Clause obj ections, 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 er ror by serving as a ‘s urrogate witness,’” appellant did have th e opportunity to cross-examin e her. 72 M.J. at 63 (citing Blazier II , 69 M.J. at 222, 224). Appellant declined to do so in this ca se. 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 wa s corrobor ated by Dr. CO’s independently admiss ible expert testimony.

Overall, an expert witnes s relied on machine-generate d data, as well as her personal knowledge of the drug testing procedures at Tripler, to give her independent opinion that LAN T11H0085019 tested abov e the DoD cutoff level for THC; the expert did not repeat or high light any of the wr ongfully admitted
testimonial statemen ts in Pros. Ex. 6 and 7; an d 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 “noBENNETT — ARMY 20111107

11 reasonable possibility” that this evidence “might have contribu ted 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 ar e confident the panel would have adjudged the same sentence absent the finding of guilty of Specificat ion 1 of Charge I.

In evaluating the Winckelmann factors, there is no dr amatic change in the penalty landscape because appellant’s maximum punishme nt was capped at the jurisdictional limit of a special court-mart ial: 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 ar t. 19; R.C.M. 201(f)(2)(B); R.C.M. 1003(b)(4). Furtherm ore, appellant remains conv icted of anot her AWOL and wrongful use of marijuana. The gravamen of the offenses ha s not changed, and
under the facts of this case, the evidence support ing the dismissed AWOL specification remains admissibl e 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 invol ving AWOL and drug offenses and we have extensive experience with the level of sentences imposed for such offenses
under various ci rcumstances. Id.

The sentence is AFFIRMED. All rights, privileges, and property, of which appellant has been deprived by virtue of th at 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 appella nt’s assertion that the gover nment failed to adequately
corroborate his admission of marijuana use and therefor e respectfully dissent from the majority’s decision in that respect. Evidence corr oborating an admission must be independentl y admissible. See United Stat es 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 th e admission of corroborating evid ence despite the lower court’s co nclusion otherwise). Here, the only thing the govern ment accomplished, as far as proof be yond appellant’sBENNETT — ARMY 20111107

12 admission, was admission of inadmissible testimonial hearsay in th e form of a laboratory report result reflecting appellant’s positive urinalysis for the presence of
THC.

The expert called to test ify was never asked and never testified to the independent opinion necessary to serve as a basis upon which to co rroborate the appellant’s admission or otherwise convict the appellant. Inst ead, the government merely secured the expert’s impermissible, or at least inadequa te, 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 conclu de that [appellant’s ] sample had tested positive for . . . THC.” 72 M.J. 335, 338 (C.A.A.F. 2013). Rath er, here the government asked the witness whether “b ased upon the screening and the gas chromatography and mass spectr ometry, GCMS results, [she] recall[ed] what those results for Prosec ution Exhibit 7 for identification [were] [sic].” (e mphasis added). The expert then merely repo rted the results de scribed by the labora tory packet. The government then ultimately asked: “So yo ur expert opinion is that lab packet showed a positive result?” To which the ex pert 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 ex pert’s testimony as a whole that she made reference to the royal “we” as she wa s not present at any of the testing and was never asked
nor ever offered her own in dependent opinion of what the machine-generated data
revealed. The descri ption she provided of her duties is telling: “As a Chief of Certification, I am in charge of a group of individuals who re view 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 ch ief expert witness for the labora tory as well as the official
records custodian of the laboratory .” (emphasis added). And, as the majority notes, she was recognized “as an expert in bo th pharmacology and forensic toxicology as it pertains to drug testi ng in the DoD system. ” (emphasis added). In other words, this expert’s qualification on the re cord set up her testimony th at she reviewed the lab’s

6 The government later asked whether “based on the result s – the test results within that laboratory packet then, can you say with certainty that the pe rson 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 vouche s that it was in accord ance with required proc edures. This method of proof is insufficient. Blazier II , 69 M.J. at 225. 7 The defense lo dged sufficient objection to admission of th e report, and acquiesced onl y to what would amount to proper opinion testimony suffici ent to preserve the matter for appeal, and therefore,
I find the evidence insufficient to affi rm 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 witn ess could have been qualifie d to render the required independent opinion. But she was never asked whether her trai ning, expertise and education equip her to tell us what the machine-generated scientific information, represented essentially by th e graphs and numbers in Pr osecution Exhi bit 7 on pp. 6-8, 13-15, and 20-37, mean. She also was not asked whether she reviewed that
information and ha d 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 omitte d) (“[L]ack of knowledge or unwarranted reliance on
the work of others ma y make an expert op inion inadmissible: the military judge, in his capacity as ‘gatekeeper,’ must determine whether th e opinion is ‘based upon sufficient facts or data’ and is the produc t of ‘reliable princi ples and methods’ reliably applied to the case.”).

8 Even if defense counsel’s objections were deemed insufficiently clear, the
admission of the laborato ry packet and expert te stimony for the purpose of
corroboration and conviction constit utes plain error in light of United States v. Sweeney , 70 M.J. 296 (C.A.A.F. 2011), decide d four months prio r 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: