## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before SCHENCK, ZOLPER, and WALBURN Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant JOHN R. WILLIAMSON, JR. United States Army, Appellant

ARMY 20030855

U.S. Army Air Defense Artille ry Center and Fort Bliss Mark P. Sposat o, Military Judge Lieutenant Colonel Tracy A. Barnes, Staff Judge Advocate

For Appellant: Major Charles L. Pritchard, Jr., JA (ar gued); Colonel Mark Cremin, JA; Lieutenant Colonel Mark Tellitocci, JA; Major Allyson G. Lambert, JA (on brief); Lieutenant Colonel Kirsten V.C. Brunson, JA (on supp lemental and reply briefs).

For Appellee: Captain Ryan R. McKinstry, JA (argued); Lieutenant Colonel Mary M. Foreman, JA; Lieutena nt Colonel Natalie A. Kolb, JA (on brief).

25 July 2007

------------------------------------- OPINION OF THE COURT

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

SCHENCK, Senior Judge:

A general court-martial composed of officer and enlisted members convicted appellant, contrary to his pleas, of wr ongfully possessing 3. 79 pounds of marijuana with intent to distribute, in violation of Ar ticle 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a [hereinafter UCMJ]. Th e convening auth ority approved the adjudged sentence to a bad-conduct discharge, confinement for two years, and forfeiture of all pay and al lowances. This case is before the court for review pursuant to Arti cle 66, UCMJ.

Appellant asserts several assignments of error. Two, alleging Sixth Amendment violations, requ ire discussion, but merit no relief. Specifically, appellant contends he was denied his Sixth Amendm ent right to effective assistance
of counsel because his defe nse team, consisting of de tailed military counsel and civilian defense counsel, failed to move to su ppress the marijuana as the “fruit of an unlawful search.” We disagree and hold th at appellant has not shown such a motionWILLIAMSON – ARMY 20030855

2 would have been meritorious and, therefore, has not met hi s burden of demonstrating a deficiency with resulting prejudice. Appellant also contends the military judge erred by admitting a laboratory report (identifying the substance appellant possessed as marijuana) as a business re cord pursuant to Military Ru le of Evidence [hereinafter Mil. R. Evid.] 803(6) . He argues the mi litary judge’s ruling contradicts the Sixth
Amendment Confrontation Clause requirements set forth in Crawford v. Washington

, 541 U.S. 36 (2004), 1 because the laboratory report is testimonial in na ture. We agree and hold that, under the circumstances of this case, the laboratory report is
testimonial under Crawford and, therefore, was improperly admitted under Mil. R. Evid. 803(6). We further fi nd, however, the military judg e’s error in admitting the laboratory report was harmless beyond a reasonable doubt.

FACTS

In August 2003, appellan t was convicted of wron gfully poss essing 3.79 pounds of marijuana with inte nt to distribute, on or about 27 Nove mber 2002, for possessing a box containing th ree bundles of mari juana, which he received through Federal Express while he was on leave in New Orleans, Louisian a. At trial, the government called Detective (Det.) Joel Pena from the El Pa so, Texas, Police Department during its case-in-chief. Without defens e objection, the military judge recognized Det. Pena “as an expert in the field of narcotics interd iction . . . to
include distribution a nd transportation.” Detective Pena, then assigned to a Drug Enforcement Administration (DEA) Task Force, testified regarding the seizure and controlled delivery of the marijuana that ultimately led to appellant’s arrest. Detective Pena’s testimony wa s consistent with and supplemented by his affidavit supporting the request for a search warrant (admitted into evid ence as Prosecution Exhibit (P.E.) 3 without defense objecti on), and by the DEA Task Force police report (admitted into evid ence as Defense Exhibit (D .E.) R without government objection).

1 Appellant’s court-martial was completed in August 2003, and Crawford was decided on 8 March 2004. Si nce military appellate case s are considered pending on direct review, the “new rule of criminal pr ocedure” announced in Crawford applies retroactively to appellant’s case. See Whorton v. Bockting , __ U.S. __, __, 127 S. Ct. 1173, 1181– 84 (2007); Griffith v. Kentucky , 479 U.S. 314, 328 (1987) (“We . . .
hold that a new rule for th e conduct of criminal pros ecutions is to be applied retroactively to all cases, stat e or federal, pending on dir ect review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.”); United States v. Cabrera-Frattini , 65 M.J. 241, 245 (C.A .A.F. 2007) (stating same); United States v. Foerster , 65 M.J. 120, 122 n.3 (C.A.A.F. 2007) (stating same).WILLIAMSON – ARMY 20030855

3 On 25 November 2002, Det. Pena was part of a thre e-officer DEA Task Force working at the El Paso Intern ational Airport. El Paso Police Department Officers Sal Vargas and Do uglas Fairbanks 2 completed the team. Du ring the day, the officers conducted a drug interdiction operation in the Federal Expres s outbound freight terminal. They chose outbou nd freight because law enforcement agencies generally consider El Paso a narcotics source city due to its location near the Mexican border. Oftentimes, freight leaving El Paso contains narcotics for distribution in other cities.

While at the Federal Express terminal, Officer Fairbanks was using his drug detection dog, “JB,” to sni ff outbound packages for narcot ics. The DEA Task Force team became suspicious of a particular outbound package beca use JB alerted on a box, which was on the ground with several other packages . Affixed to the box was a
“FedEx USA Airbill ® ” 3 that, in Det. Pena’s opinion, contained obviously incomplete information; sender and recipient telephon e numbers were miss ing, and the sender identified the recipient only as “Will” without including a last name. Detective Pena commented that “most pe ople . . . sendin g . . . an article to so meone else . . . will [include] a full na me” on the Airbill. ®

Once the DEA Task Force team “deter mined the box was suspect,” the team moved the box from the Federal Express termin al to the DEA Task Force office near the airport. At the office, Det. Pena personally prepared an affidavit and a warrant application to obtain a warrant to search the box and seize it s suspected illegal contents, i.e., narcotics.

In his affidavit supporti ng the request for the s earch warrant, Det. Pena asserted the following facts under oath:

There is in El Paso County , . . . inside the El Paso DEA Task Force Office[,] . . . one (1) ca rdboard box, wrapped in brown paper, sealed with clear tape.

. . . .

2 Officer Vargas testified on ly during the Article 32, UC MJ, investigatio n. Officer
Fairbanks did not test ify before any procee ding in this case.

3 A FedEx USA Airbill ® is a shipping label used on packages shipped within the United States. FedEx, at https://www.fedex.com/us/serv ices/documents/airbill.html (last visited 23 July 2007).WILLIAMSON – ARMY 20030855

4 It is the belief of [the] affiant . . . that [the box contains] . . . marijuana, cocaine, heroin and methamphetamine.

Affiant has probab le cause for the said belief by
reason of the followi ng facts, to wit: . . . Officer Douglas Fairbanks is employed as a po lice officer by th e City of El
Paso and has been so employed for th e past 15 years. Off[icer] Fairbanks’s K-9 partner, “JB,” is a six (6) year
old male chocolate Labrador Retriever. K-9 “JB” was
tested under standards set forth by the North American Police Work Dog Association (NAPWDA), and the
National Narcotic Detector Dog A ssociation (NNDDA) and was certified by bot h associations to de tect the odor of marijuana, cocaine, heroin and methamphetamine. Canine “JB” has been working in th e El Paso area along with Officer Fairbanks for the past six months a nd since that
time has alerted successful ly on over 40 oc casions where narcotics or narcotic related currency has been seized.

Officer Fairbanks was utilizi ng his narcotics detector canine “JB” to sniff through th e freight for the presence of narcotics. At approximat ely 1440 [hours], Officer
Fairbanks advised the affiant that canine “JB” alerted on
the above described box for the scent of narcotics. The box was on the ground with seve ral other boxes at the time
of the alert.

Detective Pena testified that, in his opinion, he th ought the drug dog, JB, was certified, and made th at assertion in his affidavit. On cross-examination, however,
he stated he learned after the Article 32 investigation that JB was not certified.
When civilian defense counsel asked De t. Pena about this “misinformation,” Det. Pena said he gave th e judge who issued the warrant the information “in good faith [and i]t’s not like I kn ew beforehand and I [was] tr ying to mislead the judge.” 4
On redirect, Det. Pena stated : “JB [has] been around for a while. . . . [O]ur dogs are

4 Civilian defense counsel al so cross-examined Det. Pena regarding other aspects of the search warrant. Trial counsel objecte d to the line of questioning, and the military judge stated on the record: “There is no motion on th e warrant, so I will give you latitude, but do we need to have an Article 39(a) session?” Civilian
defense counsel re sponded: “I don’t think we need to have one.”WILLIAMSON – ARMY 20030855

5 certified on a yearly basis an d it’s a team effort. It’s th e canine and the officer that go through va rious tests . . . .”

Once Det. Pena obtained th e search warrant at the cour thouse, he told Officers Vargas and Fairbanks they co uld open the box. When Det. Pena re turned to the DEA Task Force office, he saw that the box cont ained “rolls of toilet paper” and “bundles of marijuana wrapped in blac k tape.” The bundl es of marijuana we re “secured onto the toilet paper [rolls] with the duct tape.” Consiste nt with his te stimony on the merits, in both the inventory section of the search warrant and in his police report, Det. Pena described the prop erty seized as “three (3) bundles of marijuana with the gross approximate weight of 4.95 pounds.” 5 In accordance with “police department policy,” no DEA Task Force team member tested the marijuana at the office, but they “knew it was marijuana . . . based on [their] knowledge a nd experience with marijuana,” the “way it was packaged[,] a nd how it was wrapped.” Detective Pena and Officers Vargas and Fairbanks kept th e marijuana in their continuous custody— approximately five hours—unti l they transferred it for th e controlled delivery in
New Orleans.

After repackaging the mariju ana and rewrapping the box 6 —to preserve its original condition for the controlled de livery—Det. Pena gave the box to Sheila Ryan, a U.S. Postal Inspector. Ms. Ryan immediately sh ipped the box to Det. Jacque using U.S. Postal Service Express Mail ® next-day delivery. Detective Jacque was also assigned to a DEA Task Force in his juri sdiction. Det ective Jacque picked up the box from the po st office, locked it in th e police station vault, and
obtained a search warran t for the address written on the FedEx USA Airbill. ® Ten to
fifteen minutes after the controlled deli very was made, Det. Jacque and other
officers executed the search warrant.

During the delivery, Det. Donald Nides of the Ne w Orleans DEA Task Force posed as a Federal Express de liveryman. Upon arrival at the residence, Det. Nides spoke with Ms. Quillen, ap pellant’s sixty-two-year-o ld grandmother. After announcing he had a package for “Mr. Wi ll,” Ms. Quillen re sponded, “Yeah. John

5 Consistent with Det. Pena’s testimony, Det. Wayne Jacque of the New Orleans Police Department (narcotics section) tes tified he also weighed the three marijuana
bundles and found they weighed “more th an [three] pounds.”

6 On redirect examination, Det. Pena said he had been involved in “hundreds” of investigations like the one in this case , which included “ope ning” packages he suspected contained narcotics, “repackage [ing]” them, and “ship[ ping them] out” for
controlled deliveries.WILLIAMSON – ARMY 20030855

6 Williamson,” and called appellant and to ld him “he had a package.” “It’s your package, John,” she said. Detective Nides said he needed a si gnature and Ms. Quillen responded, “He can sign it. John? Come sign this, baby. ” Detective Nides apologized for the late delivery and told appellant, “Just sign your name right there. We will definitely send his mone y back to him, beca use it’s our fault.” Responding to Det. Nides’ co mment about late de livery, appellant sa id, “Thank you. . . . Oh, yeah, becaus e I called to get a--[.]” Appe llant accepted the package and signed a document acknowle dging its receipt. Detectiv e Nides departed the area. 7

Ten to fifteen minutes la ter, Det. Jacque and ot her officers executed the
search warrant. Detectiv e Jacque knocked on the door, and when Ms. Quillen answered, he advised her he had a search warrant and entered the hou se. Shortly thereafter, Det. Jacque found appellant in an upstairs bedroom. As the detectives entered the bedroom, De t. Jacque said he saw appella nt “raising himself from the bed . . . and[,] also on th e bed and in the immediate ar ea where [appellant] was[,]
was the control delive red package. . . . [Appellant] a ppeared shocked and nervous.” After appellant was de tained on the first-floor in th e living room, Det. Jacque
retrieved the box with its contents from the upstairs bedroom and confronted appellant with the seized contraband.

When confronted in his grandmother’s presence, appellant maintained his
“shocked and nervous” demeanor. He also remained quiet and sa id nothing. When Ms. Quillen left the living room, appellant gave se veral explanations why someone
would send a box of marijuana to his house . According to Det. Jacque, appellant stated “he was expecting some CDs in the mail.” Then appellant said “he had a friend in El Paso, Texas[,] that told him that he was go ing to mail him a package to his house,” but ap pellant never asked the friend wh at he was sending, and did not
reveal the friend’s name to Det. Jacque. Detectiv e Demond Lockha rt, another
member of the New Orleans DEA Task Forc e, heard appellant say “he had a friend that was into marijuana an d that could have been a friend that mailed him that package,” but he did not reveal that friend’ s name either, and th at “he didn’t know anything about anything,” intimating he co uld have been set up. When Ms. Quillen reentered the living room , appellant’s demeanor changed; he became “more
embarrassed and ashamed in front of his grandmother.”

7 These conversations with Det. Nides were monitored and recorded for officer safety reasons. With out defense objection, assistan t trial counsel played for the panel during trial the recorded conversations that occurred during delivery of the package. The military judg e admitted the reco rding into eviden ce as P.E. 28, and the panel had it during its deliberations on the merits.WILLIAMSON – ARMY 20030855

7 When he testified during the defense case on the merits, appellant denied arranging with anyone to ship marijuana to him. When he received the box, appellant was “excited.” Afte r appellant signed for the b ox, he said he took the box upstairs, put it on the bed, and started to open it. Before he could get the box open, however, appellant said the po lice were already in the house and detained him. It was only after being detained that Det. Ja cque showed appellant the contents of the
box and laid the contraband on the living room coffee ta ble. Appellant told the
officers he did not know who sent the bo x, where it came fr om, could not have possibly known the cont ents, and sugg ested someone had set him up.

Detectives Jacque and Pena testified that when a person possesses between
three and four pounds of marijuana, he possesses wi th intent to distribute it; that large an amount is no t for personal use. After appellant’s arre st, the Ne w Orleans Police Department retained the marijuana in its custody. Throu gh two stipulations of expected testimon y—agreed to personally by appell ant and entered into evidence without defense objec tion as P.E. 11 and P.E. 12—and testimony from two U.S. Army Criminal Investigat ion Command (CID) specia l agents, the government
demonstrated a chain of custody accounting for the mari juana from the time it left the New Orleans Police Department, passed through the Fort Po lk and Fort Bliss CID offices, and ultimately arrived at the U.S. Army Criminal Investigation Laboratory (USACIL) 8 in Forest Park, Georgia, fo r forensic chemical analysis testing. Without defense objection, the military judge entered into evidence as P.E. 8 a chain of custody do cument listing specific date s and all law enforcement personnel who handled the marijuana. Sp ecial Agent (SA) H ector Hernandez from the Fort Bliss CID office testified regarding the accuracy of the information
contained in this do cument. Special Agent Hernandez also told the panel he had been a CID special agent for five years; prior to becoming a sp ecial agent, he had been a military po lice investigator for four years.

After a senior forensic chemist at th e USACIL tested th e marijuana, he generated a report co nfirming the substance submitte d for testing wa s, in fact, marijuana and weighed 1,375.69 grams (or 3.03 pounds). At tria l, the government
moved to admit the laborator y report over defense object ion. Specifically, trial defense counsel argu ed: (1) the labora tory report was not properly self-

8 Although the USACIL is a division of the CID (the Army’s law enforcement branch), the USACIL does not function as a pros ecution support t ool; rather, by its own mission statement, US ACIL exists to render neutral support to the CID by “examin[ing] crime-related evidence to assist investigators in solving crime .” U.S. Army Criminal Investigation Command, at http://www.cid.army.mil/mission2.htm (last visited 23 July 2007) (emphasis added).WILLIAMSON – ARMY 20030855

8 authenticating un der Mil. R. Evid. 902(4a) (self-aut henticating documen ts or records of the United States accompan ied by an attesting certific ate); (2) testimony from an expert witness involved in the testing process was necessar y to lay a proper foundation for the laboratory report; (3) a chain of custody for the marijuana and the laboratory report wa s not properly established; an d (4) the laboratory report
constituted inadmissible he arsay, contrary to Mil. R. Evid. 803(6) (hearsay exception for records of a regu larly conducted activity, i.e., “business records”). In ruling on the defens e objections, the military judge made the following findings: (1) the laboratory report was properly se lf-authenticating un der Mil. R. Evid. 902(4a); (2) expert-witness testimony was not required to lay a foundation for the laboratory report; (3) a ch ain of custody was properly established; and (4) the laboratory report was a properly-authe nticated business reco rd, and, as such, was
admissible under Mil. R. Evid. 803(6).

INEFFECTIVE ASSISTANCE OF COUNSEL

Law

Right to Effective As sistance of Counsel

The United States Constitution’s Sixth Amendment guarantees an accused the right to “effective assistance of counsel.” United States v. Cronic , 466 U.S. 648, 654 (1984); United States v. Cain , 59 M.J. 285, 294 (C.A.A.F. 2004); United States
v. Russell , 48 M.J. 139, 140 (C.A.A.F. 1998); United States v. Dobrava , 64 M.J. 503, 505 (Army Ct. Crim. App. 2006); see also UCMJ art. 27 (“[D]efense counsel
shall be detailed fo r each general and special cour t-martial [and] . . . must be certified as competent to perfor m [defense] duti es . . . .”).

We review an appellant’s ineffective a ssistance of counsel claims de novo. United States v. Key , 57 M.J. 246, 249 (C.A.A.F. 2002); United States v. Wean

, 45 M.J. 461, 463 (C.A.A .F. 1997). To establish such a claim, “appellant must show not only the deficiency in counsel’s performance, but how that deficiency prejudiced
his defense.” Dobrava , 64 M.J. at 505 (citing Strickland v. Washington

, 466 U.S. 668, 687 (1984), and United States v. Edmond , 63 M.J. 343, 345, 350–51 (C.A.A.F. 2006)). Specifical ly, “to prevail, the [a ccused] must show both that counsel’s representation fell below an obje ctive standard of reasonable ness, . . . and that there exists a reasonable probab ility that, but for counsel’s unprofessional errors, the result of the proceeding woul d have been different.” Kimmelman v. Morrison

, 477 U.S. 365, 375 (1 986) (internal c itation omitted); Edmond , 63 M.J. at 351 (stating same).WILLIAMSON – ARMY 20030855

9 Furthermore, our retrospective review of counsel’s re presentation is “‘highly deferential,’” and reinforced by “‘a strong presumption [9] that counsel provided adequate profession al service.’” United States v. Paxton , 64 M.J. 484, 488 (C.A.A.F. 2007) (quoting Edmond , 63 M.J. at 351); United States v. Shaw , 64 M.J. 460, 463 (C.A.A.F. 2007 ) (recognizing the “l ong-standing principl e that counsel is presumed to be competent”); United States v. Garcia , 59 M.J. 447, 450 (C.A.A.F. 2004); United States v. Grigoruk , 56 M.J. 304, 306–07 (C.A.A.F. 2002); United

States v. Scott , 24 M.J. 186, 188 (C.M.A. 1987). Our superior co urt set forth the following three-question test to determin e whether the presumpt ion of competence
has been overcome:

(1) Are the allegations made by appellant true; and, if they are, is there a reas onable explanation fo r counsel’s actions
in the defense of the case? (2) If they are true, did the
level of advoc acy “fall[] measurably below the performance . . . [ordinarily expected ] of fallible lawyers”? (3) If
ineffective assistance of counsel is found to ex ist, “is . . . there . . . a reasonable probab ility that, absent the errors,
the factfinder would have had a reasonable doubt respecting guilt?”

United States v. Christian , 63 M.J. 205, 210 (C.A .A.F. 2006) (quoting United States
v. Polk , 32 M.J. 150, 153 (C.M .A. 1991)) (alterati ons in original); United States v. Haney , 64 M.J. 101, 106 (C.A.A.F . 2006) (stating same). Moreover, wh ere two or more defense counsel have represented an appellant, “we evaluate the performance of the defense team as a unit,” United States v. McConnell , 55 M.J. 479, 481 (C.A.A.F. 2001), ra ther than focus on indi vidual counsel’s effort s or shortcomings. Nevertheless, “[c]ounse l cannot be ‘ineffective’ unless his mistakes have harmed the defense (or, at least, unless it is reasonably likely that they have ). Thus, a violation
of the Sixth Ame ndment right to effective representation is not ‘complete’ until the defendant is pr ejudiced.” United States v. Gonzalez-Lopez , __ U.S. __, __, 126 S. Ct. 2557, 2563 (2006) (citing Strickland , 466 U.S. at 685).

9 “Presumptions are pragmatic creations, ‘r ooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical
accommodation of the interests of the state and the defendant in the criminal justice process.’” United States v. Moffeit , 63 M.J. 40, 42 (C.A.A .F 2006) (Baker, J., concurring in the result) (quoting Richardson v. Marsh , 481 U.S. 200, 211 (1987)).WILLIAMSON – ARMY 20030855

10 Ineffective Assistance of Counsel and Fourth Amendment Litigation

Appellants asserting ineffective as sistance claims involving Fourth Amendment motions carry the specific burden of showing that c ounsel’s deficiency in performance regarding the motion, or failure to make the motion, prej udiced their case. As our superior co urt has reinforced , “[w]here a claim of ineffective
assistance of coun sel is based on ‘d efense counsel’s failure to litigate a Fourth Amendment’ objection to evidence, [to demonstrate actual prejudice] appellant ‘must . . . prove that his Fo urth Amendment claim is meri torious and that there is a reasonable pr obability that the verd ict would have been different absent the
excludable evidence.’” United States v. Loving , 41 M.J. 213, 24 4 (C.A.A.F. 1994) (quoting Kimmelman , 477 U.S. at 375) (emphasis added) (third alteration in original); see McConnell , 55 M.J. at 482 (sta ting same regarding counsel’s failure to
move to suppress accu sed’s statement). “Thus, while [appellant’s] defaulted Fourth
Amendment claim is one elem ent of proof of his Sixth Amendment claim, the two claims have separate iden tities and reflect di fferent [C]onstitu tional values.”
Kimmelman , 477 U.S. at 375.

Search Warrant Requirements

A valid search warr ant must be supported by “pro bable cause.” Mil R. Evid. 315(f)(2) (“Probable cause to search exists when there is a reasonable belief that the
person, property, or evidence sought is lo cated in the place or on the person to be searched[,] . . . [and] may be based upon hearsay ev idence in whole or in part[,] . . . [w]ritten . . . [or o]ral.”); United States v. Leedy , 65 M.J. 208, 212–14 (C.A.A.F. 2007) (discussing same); United States v. Long , 64 M.J. 57, 61 (C.A.A.F. 2006) (“Official intrusions . . . in the military require sear ch authorization supported by probable caus e . . . .”); United States v. Berry , 90 F.3d 148, 153 (6 th Cir. 1996) (“A valid search warrant may be issued only upon a finding of probable cause . . . .”);

see Mil. R. Evid. 316(b) (“Prob able cause to seize property or evidence exists when
there is a reasonable belief th at the property or evidence is . . . contraband . . . .”). The Supreme Court defines probable cause as “a fair probability that contraband or
evidence of a crime will be fo und in a particular place.” Illinois v. Gates , 462 U.S. 213, 238 (1983). In determining whet her probable cause exists, the issuing magistrate must make a “common-sens e decision whether, given all the
circumstances set forth in the affidavit be fore him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay in formation, there is a fair probability that co ntraband or evidence of a crime will be fo und in a particular place.” Id

.

A dog sniff can be determin ative of probable cause. “‘A positive indication by a properly-trained dog is sufficient to establish probable cause for the presence of
a controlled substance.’” United States v. Robinson , 390 F.3d 853, 874 (6th Cir.WILLIAMSON – ARMY 20030855

11 2004) (quoting United States v. Diaz , 25 F.3d 392, 39 3–94 (6th Cir. 1994)). The search warrant will be facially sufficient and establish the dog’ s reliability “if the affidavit states that the dog is trained and certified to detect narcotics.” United States v. Kennedy , 131 F.3d 1371, 1376 –77 (10th Cir. 1997); Berry , 90 F.3d at 153 (finding reference in affida vit that dog was “trained na rcotics dog” was “sufficient to establish the training and reliability”). The affidavit does not have to state with any degree of particularity the “dog’s track record or education.” United States v. Sundby , 186 F.3d 873, 876 (8th Cir. 1999).

Appellate Review of Search Warrants

If the defense challenges a search warrant, “the duty of a review ing court is simply to ensure that the magistrate had a ‘substantial basis for . . . [concluding]’ that probable cause existed.” Gates , 462 U.S. at 238–39 (quoting Jones v. United

States , 362 U.S. 257, 271 (1960)) (a lterations in original); Leedy , 65 M.J. at 213. We review the military judge’s factually-de rived “substantial ba sis” using a clearlyerroneous standard , and whether the “substantial basis” legally supports a probable
cause determinat ion de novo. Leedy , 65 M.J. at 212–13; United States v. Bethea

, 61 M.J. 184, 187 (C.A.A .F. 2005) (stating same). Pr obable cause determinations are entitled to “great deferenc e by reviewi ng courts.” Gates , 462 U.S. at 236.

Challenging the Affidavit Suppo rting a Warrant—Franks Hearing

A meritorious motion to s uppress evidence—invalidati ng a search and seizure warrant because a government agent withheld or misrepresented material facts in the information provided to the authorizing of ficial—requires the de fense to overcome
several hurdles. See Franks v. Delaware , 438 U.S. 154, 155–56 (1978) (“We hold that, where the defe ndant makes a substantial prel iminary showing that a false statement knowing[ly] and intentionally, or with reckless disreg ard for the truth, was included by the affiant in th e warrant affidavit, and if th e alleged false statement is necessary to the finding of probable cause, th e Fourth Amendment requires that a hearing be held at the defendant’s request.”); see United States v. Wallace , 14 M.J. 1019, 1023–24 (A.C.M.R. 1982), pet. denied , 16 M.J. 135 (C.M.A. 1983); United
States v. Lovell , 8 M.J. 613, 616–17 (A .F.C.M.R. 1979) (“[T]h e Supreme Court . . . permits an accused a hearin g to go below the surface of a facially-sufficient affidavit . . . .”), pet. denied , 9 M.J. 17 (C.M.A. 1980).

Military Rule of Eviden ce 311(g)(2) codifies the Supreme Court’s Franks decision by clarifying that when “the defense makes a subs tantial preliminaryWILLIAMSON – ARMY 20030855

12 showing that a government agent included a false statement [10] knowingly and intentionally or with reckless disregard fo r the truth in the info rmation presented to [the magistrate issuin g the warrant], and if the allege dly false statement is necessary to the finding of probable cause, the defense, upon request, shal l be entitled to a [ Franks ] hearing.” See also United States v. Cravens , 56 M.J. 370, 375 (C.A.A.F. 2002) (recognizing same). At the hearing, the defense must establish, by a preponderance of the evidence , “the allegation of knowing and intentional falsity or reckless disregard for the truth.” Mil. R. Ev id. 311(g)(2). Once that burden is met, the prosecution must prove, by a prepondera nce of the evidence, that without the false information, the “remaining informatio n” provided to obtain the warrant from the magistrate sufficiently es tablishes probable cause. Id

.

Discussion

Appellant contends his tr ial defense team was ine ffective because “they knew
that Det. Pena had misled the magistrate when obtaini ng the warrant” regarding the drug-detector dog’s certification, but “fail[ed] to attempt to suppress the marijuana” as evidence. Essentially, ap pellant asserts the first warrant obtained by Det. Pena to search the contents of the box for mariju ana, and the second, anticipatory warrant obtained by Det. Jacque to search appellant’s home fo r marijuana—in conjunction with the controlled delivery—were “invalid ” because they were based on Det. Pena’s
“fraudulent affidavit.”

We find no evidence of record to support the required “ substantial preliminary showing” that Det. Pena “knowingly and intentionally” misled the magistrate in obtaining th e first search warrant, Franks , 438 U.S. at 155 (emphasis added), or that his misstatements regard ing the drug-detector dog’s certification
amounted to a “reckless di sregard for the truth.” Id . Although Det. Pena admitted he thought JB was cer tified—and did not discover an ything to the contrary until after the Article 32 investigation—he stated the information he gave the magistrate “was in good faith [and i]t’s not like I knew beforehand and I [was] trying to mislead the judge.” He o ffered no information clarifying why he misstated JB’s certification, or how he late r found out he had be en incorrect. Tria l defense counsel did not pursue the ma tter any further on the merits other than through his limited

10 Our superior court has app lied this standard—used for misrepresentations —to
omissions as well. United States v. Figueroa , 35 M.J. 54, 5 6–57 (C.M.A. 1992) (holding that “[o]missions do not ‘undermine probable cause’ unless they are
intentional or made ‘with re ckless disregard for the’ accu racy of the information. Merely ‘negligent omi ssions’ do not ‘undermine’ prob able cause. United States v.

Martin , 615 F.2d [318, 329 (5th Cir. 1980)].”).WILLIAMSON – ARMY 20030855

13 cross-examination. We find that including the missta tement in the affidavit constitutes, at best, an innocent mistake, or, at worst, simple negligence.

Detective Pena furt her explained at trial that “JB [had ] been around for a while. . . . [O]ur dogs are ce rtified on a yearly basis and it’ s a team effort. It’s the canine and the officer that go through various tests . . . .” Moreover, Det. Pena’s affidavit did not rely solely on JB’s certification, but additionally informed the judge that Officer Fairbanks had been an El Paso police officer fo r fifteen years, had
worked with JB for six months , and over this period, JB had successfully alerted to
narcotics or narcotic-related currency over forty times.

The defense has offered no ev idence tending to contra dict Det. Pena’s “good
faith” assertions or the facts stated in th e affidavit regarding JB ’s reliability, i.e., that JB had over forty succe ssful alerts during the past six months. Based on the
information contained in the affidavit and e licited from Det. Pena at trial, we find appellant has failed to persuasively marshal those facts and make the substantial threshold showing requ ired to obtain a Franks hearing pursuant to Mil. R. Evid. 311(g)(2). 11 As the Supreme Court clarified in Franks :

There must be allegations of deliberate fals ehood or of reckless disregard for the trut h, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and th ey should be accompanied by a
statement of su pporting reasons. Affi davits or sworn or
otherwise reliable statements of witnesses should be furnished, or their absence satisfacto rily explained. Allegations of negligence or innocent mistake are
insufficient.

438 U.S. at 171.

Moreover, we find the second part of the Franks analysis—whether, after the false information is set aside, the remain ing material in the affidavit adequately establishes probable cause—cuts against appellant. The additional information provided in the affidavit adequately esta blishes probable cause. Regardless of whether JB was actually certified, the experien ce of JB’s handler, coupled with JB’s

11 Appellant has the burden of proof on this point , and we will no t speculate about the many possible explanations why JB wa s not certified. Neve rtheless, appellant has not developed this information.WILLIAMSON – ARMY 20030855

14 forty-plus successful alerts, provided th e probable cause necessary to issue the
search warrant.

We also find the second, anticipatory warr ant to search appellant’s New Orleans home depended upon the validity of the first (El Paso) warrant because the second warrant was based upo n the assertion that the El Paso DEA Task Force, utilizing a drug-det ection dog, “interce pted a package cont aining 41⁄2 pounds of marijuana through Federal Express Parcel Service.” Satisfied that De t. Pena’s El
Paso search warrant wa s valid, this court is also satisfied the second, anticipatory warrant to search appellant’s home was also valid.

Based on our findings, a ppellant has failed to “‘prove that his Fourth
Amendment claim is meritoriou s and that there is a reason able probability that the
verdict would have been different ab sent the excludable evidence.’” Loving , 41 M.J. at 244 (quoting Kimmelman , 477 U.S. at 375). Appellant has, therefore, also failed to “show not only the defi ciency in counsel’s perfor mance [by not moving to suppress the marijuana], but how that deficiency prejudice d his defense.” Dobrava

, 64 M.J. at 505. Hence, we find appellant received effe ctive assistance of counsel
from his trial defense team.

LABORATORY REPORT

Law

Standard of Review

This court ordinarily reviews a military judge’s ruling regarding admissibility
of evidence for abuse of discretion. United States v. Datz , 61 M.J. 37, 42 (C.A.A.F. 2005); United States v. Gilbride , 56 M.J. 428, 430 (C.A.A.F. 2002) (citing United States v. Ayala , 43 M.J. 296, 298 (C.A.A.F. 1995)); see , e.g. , United States v.
Johnston , 41 M.J. 13, 16 (C.M.A. 1994) (admissibility of scientific evidence); see generally S. Childress & M. Davi s, 2 Federal Standards of Review § 11.02 (2d ed. 1992) (evidentiary ruling s reviewed for abuse of discretion). An abuse of discretion review entails examining a military judg e’s findings of fa ct using a clearlyerroneous standard and conclusions of law de novo. United States v. Rodriguez

, 60 M.J. 239, 246 (C.A.A.F. 2004).WILLIAMSON – ARMY 20030855

15 When a military judge er roneously admits hearsay 12 evidence and violates an accused’s Sixth Amendment righ t to confrontation—due to a deprivation of the right to cross-examination—the resulting error is an error of Constit utional dimension.
See United States v. Hall , 58 M.J. 90, 94 (C.A.A.F. 2 003) (finding Constitutional error where appellant was “d enied her [C]onsti tutional right of confrontation through cross-examination” of hearsay declarant). Moreover, to affirm the trial court’s decision despite th e erroneous admission, we mu st find such Constitutional
error “harmless beyond a reasonab le doubt.” Chapman v. California , 386 U.S. 18, 24 (1967). “We review ‘de novo’ whether the ‘[C]onstitutional error was harmless beyond a reason able doubt.’” United States v. Gardinier , 63 M.J. 531, 538 (Army Ct. Crim. App. 2006) (quoting United States v. Kreutzer , 61 M.J. 293, 299 (C.A.A.F. 2005)), set aside and remanded , 65 M.J. 60 (C.A.A.F. 2007); see Arizona v.
Fulminante , 499 U.S. 279 , 295 (1991); United States v. Hall , 56 M.J. 432, 436 (C.A.A.F. 2002); United States v. Grijalva , 55 M.J. 223, 228 (C.A.A.F. 2001); United States v. George , 52 M.J. 259, 261– 62 (C.A.A.F. 2000). “The inquiry for determining whether [C]onstitutional error is harmless beyond a re asonable doubt is ‘whether, beyond a re asonable doubt, the error did no t contribute to the defendant’s
conviction or sentence.’” Kreutzer , 61 M.J. at 298 (quoting United States v. Kaiser

, 58 M.J. 146, 149 (C.A .A.F. 2003), quoting United States v. Davis , 26 M.J. 445, 449 n.4 (C.M.A. 1988)). Specificall y, “‘[o]ur focus is not on whether the members were right in their findin gs but, rather, on whether the er ror had or reasonably may have had an effect upon the members’ findings.’” Hall , 58 M.J. at 94 (quoting United

States v. Bins , 43 M.J. 79, 86 (C.A.A.F. 1995)).

12 Hearsay is an out-of -court statement being offered into evidence to prove the truth
of the matter asserted in the st atement. Mil. R. Evid. 801(c); see Mil. R. Evid. 802– 805 (enumerating exceptions to the general prohibition ag ainst admitti ng hearsay as evidence); Mil. R. Ev id. 807 (residual hear say exception). “Alt hough the right of
confrontation and the hearsa y rule stem from the same roots, they are not coextensive, and evidence admissible under a hearsa y exception may still be
inadmissible under the Co nfrontation Clause.” United States v. Palacios , 32 M.J. 1047, 1051 n.5 (A .C.M.R. 1991), rev’d , 37 M.J. 366, 367–68 (C.M.A. 1993) (upholding lower court’s finding that ad mission of child-victim’s videotaped statement was erroneous, bu t finding admission not harm less beyond a reasonable doubt); see California v. Green , 399 U.S. 149, 155–56 (1 970) (recognizing the overlap between hearsay rules and Confrontation Clause is not complete, and stating
“we have more than once found a violation of c onfrontation values even though the
statements in issue were admitted under an arguably recognized hearsay exception”).WILLIAMSON – ARMY 20030855

16 Sixth Amendment Righ t to Confrontation

The Sixth Amendment to th e U.S. Constitution stat es: “In al l criminal prosecutions, the accused sh all enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. The “Confrontation Clause” requires “the declarant to be physically present in the courtroom; physical presence
allows the accused to confront the declar ant in person, and cross-examine him in
front of the trie r of fact.” Gardinier , 63 M.J. at 539 (citing Ohio v. Roberts

, 448 U.S. 56, 65 (1980)); Palacios , 32 M.J. at 1049–50. Nevertheless, the Roberts Court held: “[H]earsay is admissible when the witness is unavailable and the hearsay either ‘falls within a fi rmly rooted hearsay exception,’ see , e.g. , White v.
Illinois , [502 U.S. 346, 355 (19 92)], or has ‘particula rized guarantees of trustworthiness,’ see , e.g. , Idaho v. Wright , [497 U.S. 805, 820 (1990)].” United States v. Bridges , 55 M.J. 60, 62–63 (C .A.A.F. 2001) (citing Roberts , 448 U.S. at 66). 13

In 2004, the Supreme Court issued its la ndmark decision in Crawford

, 541 U.S. at 36, extending an accused’s right to confront his accusers, by requiring trial judges to determine whether an unavai lable declarant’s out- of-court statements
are “testimonial” or “nonte stimonial” in nature. Id . at 67–68. The Court held that
the Sixth Amendment’s Confrontation Cl ause bars “admissi on of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross examination.” Id . at 53–54.

The U.S. Court of Appeals for the Arme d Forces has furthe r clarified that applying the Crawford analysis “depends on the meanin g of ‘testimonial,’ [as well as] on the circumstances and context in which ou t-of-court statemen ts are generated,
and whether the out-of-court statements we re made under circum stances that would lead an objective witness reasonably to be lieve the statement w ould be available for use at a later trial by the government.” United States v. Magyari , 63 M.J. 123, 126 (C.A.A.F. 2006) (citing Crawford , 541 U.S. at 52). 14 Moreover, in deciding whether

13 In appellant’s case, the mi litary judge admitted the la boratory report over defense objection, finding the self-authenticating document fell within the business records exception to the general rule barring admission of hearsay evidence. See Mil. R. Evid. 803(6) (“ Records of regularl y conducted activity ”).

14 In Crawford , the Supreme Court identified three types of “testimonial” statements:

(continued . . .)WILLIAMSON – ARMY 20030855

17 a statement “made under ci rcumstances which would lead an ob jective witness reasonably to believe that the statement wo uld be available for use at a later trial,” Crawford , 541 U.S. at 52, is test imonial or nontestimonial, we must consider the following factors:

First, was the statement at is sue elicited by or made in response to law enforcement or prosecutorial inquiry? Second, did the “statement” in volve more than a routine and objective cataloging of unambiguous factual matters? Finally, was the primary purp ose for making, or eliciting, the statement[] the production of evidence with an eye
toward trial?

United States v. Rankin , 64 M.J. 348, 352 (C .A.A.F. 2007). The Rankin Court based its factors on the analytical framework developed in Davis v. Washington

, __ U.S. __, 126 S. Ct. 2266 (20 07). Writing fo r the Court in Davis , Justice Scalia explained what might be ca lled a “primary purpose” test for distinguishing between
testimonial and nontes timonial statements:

Statements are nontestimonial when made in the course of police interrogati on under circumstan ces objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when th e circumstances objectively
indicate that there is no such ongoing emergency, and that

(. . . continued) [1] ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testim ony that the defendant was unable to cross-examine, or simi lar pretrial statements that declarants would reasonably ex pect to be used prosecutorially; [2] extrajudicial st atements . . . contained in
formalized testimonial materi als, such as affidavits, depositions, prior testim ony, or confessions; [and 3] statements that were ma de under circum stances which would lead an objec tive witness reasonably to believe that
the statement would be availabl e for use at a later trial.

541 U.S. at 51–52 (third al teration in original) (inter nal citations and quotation marks omitted); Magyari , 63 M.J. at 126.WILLIAMSON – ARMY 20030855

18 the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Id . at 2273–74 (em phasis added).

The last of the Rankin Court’s factors requires military courts to conduct a “contextual analysis” to determine “wheth er the primary purpos e of the document [or statement] was prosecutorial in nature.” Foerster , 65 M.J. at 124. “[O]ur goal is an objective look at the to tality of the circum stances surrounding the statement to
determine if the statement was made or elicit ed to preserve past facts for a criminal
trial.” Gardinier , 65 M.J. 60, 65 (C.A.A.F. 2007).

Discussion

Analysis of Crawford Principles

Appellant contends the mil itary judge erred by admi tting the laboratory report (identifying the subs tance in the package appellant possessed as marijuana) as a
business record in accordance with Mil. R. Evid. 803(6). Th is ruling, appellant argues, contradicts the Crawford Confrontation Clause re quirements because the report is testimonial in nature. The questi on we must decide is whether the forensic laboratory report produced by the USAC IL constitutes test imonial hearsay, or whether, in the altern ative, the report repr esents nontestimonial hearsay subject to a reliability an alysis under Roberts , 448 U.S. at 66. See Magyari , 63 M.J. at 126.
Based on the Crawford landscape set forth by the U.S. Court of Appeals for the Armed Forces, 15 we must agree with appellant. Nevertheless , because “the Crawford

15 See Magyari , 63 M.J. at 123; Rankin , 64 M.J. at 348; Gardinier , 65 M.J. at 60;

Foerster , 65 M.J. at 120; see also United States v. Harcrow , __ M.J. __, 2007 CAAF LEXIS 767 (C.A.A.F. 2007) (g ranting review on the issue “whether the lower court erred by finding that two Virg inia state forensic labo ratory reports were not testimonial h earsay under Crawford ”). We also note th at while our decision comports with the views of some state courts, s ee , e.g. , State v. Moss , 2007 Ariz. App. LEXIS 86, *19 (A riz. Ct. App. May 29, 2007) (c oncluding expert witness testimony, based on laboratory report produced for the “primary re ason” of using the results “prosecutorially ,” was testimonial); Johnson v. State , 929 So.2d 4, 7 (Fla. Dist. Ct. App. 2005) (holding laboratory report establis hing contraband nature of substance was testimonial); Las Vegas v. Walsh , 124 P.3d 203, 207–08 (Nev. 2005) (holding affidavit regarding bl ood draw for chemical anal ysis in impaired driving case was testimonial); People v. Rogers , 8 A.D.3d 888, 891 (N .Y. App. Div. 2004)

(continued . . .)WILLIAMSON – ARMY 20030855

19 analysis is contextual, rather than subject to mathematical application of bright line thresholds[,]” Rankin , 64 M.J. at 352, our c onclusion is limited to the facts of this
case. Civilian law enforcement officers ar rested appellant and seized the marijuana on 27 November 2002. The government prefe rred the charge and its specification on 4 April 2003, and the USACIL issued its laborator y report on 9 April 2003.

(. . . continued) (holding blood test repor t was testimonial); State v. Crager , 844 N.E.2d 390, 394– 400 (Ohio Ct. App. 2 005) (holding DNA analysis report was testimonial because it was prepared “in anticip ation of litigation”), rev. granted , 846 N.E.2d 532 (Ohio 2006), other state courts a nd our sister service cour t have divergent views, see , e.g. , Bohsancurt v. Eisenberg , 129 P.3d 471, 47 8–80 (Ariz. Ct. Ap p. 2006) (holding calibration records for breathalyzer machine were nontestimonial business records);
Commonwealth v. Verde , 827 N.E.2d 701, 705–06 (Mass. 2005) (holding laboratory report (“certificate of chemic al analysis”) of cocaine anal ysis fell with in business records exception to the Confrontation Clau se because it is “neither discretionary nor based on opinion[,] . . . st ate[s] the results of a well- recognized scientific test[,] . . . [and] admissible only as prima facie evidence of the composition, quality, and weight of the substance, . . . which a defendant may rebut”) (internal citations omitted); Crager , 844 N.E.2d at 397–98 (stating laboratory re ports “prepared and kept in the course of a regularly conduct ed business” ar e nontestimonial where they are not “wholly” and “solel y” prepared for “litigati on” or “prosecution”); State v.
Dedman , 102 P.3d 628, 636 (N.M. 2004) (holding bl ood-alcohol report was nontestimonial, despite being prepared for trial, because “the process is routine, non-adversarial, and made to ensure an accurate measurement”); United States v.

Harris , 65 M.J. 594, 2007 CCA LEXIS 12, *15–*18 (N.M. Ct . Crim. App.) (finding laboratory urinalysis report nontestimonial, even though single sample submitted “under a probable cause premises,” becaus e “lab personnel . . . would have no way of knowing either the testing premise or the identity of the indi vidual[,] . . . whether prosecution was antici pated[,] or whether the sample was part of a normal random urinalysis sc reening”), pet. filed , 65 M.J. 13 (C.A.A.F. 2007); United States v.

Harcrow , 2006 CCA LEXIS 285, *15–*18 (N.M. Ct. Crim . App. 30 Oct. 2006) (unpub.) (finding forensic laboratory chemic al analysis reports, positively indicating presence of “heroin and cocaine,” were “non-testimoni al and were admissible under the business records hearsay exception”). Additionally, in describing the historical development of Sixth Amendment Confrontatio n Clause case law, Justice Scalia also noted: “Several [hearsay exceptions] had become well established by 1791[, but m]ost of the hearsay exceptions covered statements that by their nature were not testimonial —for example, business records or statements in furtherance of a conspiracy.” Crawford , 541 U.S. at 56 (i nternal citations om itted) (emphasis added).WILLIAMSON – ARMY 20030855

20 Therefore, we base our conclusion primar ily on the fact that the “statement” is a

post -apprehension 16 laboratory report, requested after local police arre sted appellant.

The military judge found th e laboratory report was a properly-aut henticated business record, and, as such, was admissibl e under Mil. R. Evid. 803(6). Pursuant to trial counsel’s request, and aided by Fort Bliss CID special ag ents, the laboratory
conducted a forensic examinat ion of the marijuan a to generate evidence for use at appellant’s court-martial, i.e., “with an eye toward trial.” Rankin , 64 M.J. at 352;

see Foerster , 65 M.J. at 123–25 (f inding victim’s forger y affidavit was nontestimonial because it was made to ensure bank would not be defrauded and victim would
receive reimbursement for stolen funds, not with view towards a criminal trial). The laboratory performed the examination “wit h the forensic needs of law enforcement and prosecution in mind.” Gardinier , 65 M.J. at 66. The la boratory technician in appellant’s case was “engaged in a law en forcement function, a search for evidence in anticipation of prosecution or trial[,]” and the report was “pre pared at the behest of law enforcement” while appellant was “a lready under investigat ion, and where the testing [was] initiated by the prosecution to discover in criminating ev idence.” Magyari , 63 M.J. at 126–27 (int ernal citation omitted).

Moreover, although we find ge nerating the USACIL forens ic report akin to an “objective cataloging of un ambiguous factual matters[,]” Rankin , 64 M.J. at 352, i.e., the identity and amount of a controlled substance, 17 we also find the laboratory
technician’s “statements” re sponded to a law enforcement inquiry, and the “primary purpose for making, or eliciting, the [repo rt]” was to produce evidence “with an eye toward trial,” i.e., the repo rt was produced months after appellant’s arrest, and after the government preferred the charge allegi ng narcotics possession with intent to
distribute. Id . Accordingly, we hol d the laboratory report wa s testimonial and its
admission into evidence at the court-martial erroneous. This does not, however, end our inquiry. We must now determine whether the military judge’s erroneous
admission of the laborato ry report was harmless beyo nd a reasonab le doubt.

16 “Apprehension is th e taking of a person into custody.” R.C.M. 302(a)(1). “Apprehension is the equiva lent of ‘arrest’ in civilian terminology.” R.C.M. 302(a)(1) discussion. Apprehension is also considered a type of “pretrial restraint.” R.C.M. 304(a)(3).

17 See Verde , 827 N.E.2d at 705 (find ing chemical analysis certificate “admissible only as prima facie eviden ce of the composition, qua lity, and weight of the substance”).WILLIAMSON – ARMY 20030855

21 Harmless Beyond a Reasonable Doubt

In reviewing de novo the military j udge’s decision to ad mit the laboratory report, we must determine “‘ whether the error ha d[,] or reasonably may have had[,] an effect upon the me mbers’ findings.’” Hall , 58 M.J. at 94 (quoting Bins , 43 M.J. at 86). We must find th is Constitutional error was “harmless beyond a reasonable doubt” to affirm appe llant’s conviction. Chapman , 386 U.S. at 2 4. After setting aside the laboratory report, which identi fied the marijuana and its weight, and considering the remaining evidence properly admitted at trial, we are convinced beyond a reasonable doubt that the military judge’s error in adm itting the la boratory report was harmless, i.e., it did not reasonably have an effect upon the members’ findings.

At trial, the government presented substantial reliable evidence other than the laboratory report pe rtaining to each element of th e offense of po ssession of a
controlled substance with intent to distribute. See UCMJ art. 112a. The military judge recognized Det. Pena, a DEA Task Forc e member, “as an expe rt in the field of narcotics interdiction[,] . . . includ[ing] distribu tion and transporta tion.” Detective Pena had been working for the El Paso Po lice Department for f ourteen and a half years, including six years “s pecifically [with] drugs [and] narcotics.” He also received extensive training from the DEA, the Texas Narcotics Officers Association, and the El Paso Police Department in “narcotics, undercover [operations, drug] interdiction, and various [other] topics.” Detective Pena “[ c]onducted several undercover buys[,] . . . bought, sold, and pu rchased different ty pes of narcotics,” conducted “hundreds” of interviews, made “hundreds” of arrests, participated in “hundreds” of investigati ons, and secure d “hundreds” of search warrants. As a narcotics detective, Det. Pena “taught or trained . . . new offi cers that would come
into the . . . narcotics interdic tion . . . unit.” He testifie d “[q]uite a few [times] . . . in civilian court . . . as an expert [quali fied] . . . in narcotic s[-]related fields.”

Based on his training and experience, Det. Pena testified that “transporting marijuana through Fe d Ex” is a common me thod of shipping “l arge quantities of marijuana” because “of the low risk to th e sender.” The sender can present a “prepackaged . . . box[ for shipping,] . . . pay [his] money, and [h e is] out of there.” He also said: “[I]f [the pa ckage] gets through the line, . . . [and ] gets delivered[,]
it’s a done deal. A very low risk of getting caugh t . . . . If that package is intercepted, . . . you ha ve a bogus address on it, . . . [and] no leads.”

Officer Fairbanks—another DEA Task Fo rce member, fifteen-year veteran of the El Paso Police Departme nt, and dog handler—along with the third member of the team, Officer Vargas, discovered the susp iciously-addressed box at the Federal Express terminal with the ai d of his “K-9 partner,” drug-detector dog JB (arguably
the fourth member of the Task Force team ). JB had been wo rking with OfficerWILLIAMSON – ARMY 20030855

22 Fairbanks for six months an d, during that time, “alerte d successfully on over 40
occasions where narcotics or narcotic[-]related currency ha[d] been seized.” Detective Pena told the panel: “JB [h as] been around for a while . . . [and is] certified on a yearly basis[;] . . . it’s a team effort.” “[T]he canine and the officer,” he stated, “go thr ough various tests” set forth by two diffe rent certification associations, NAPWDA and NNDDA, to ensu re the dog can “d etect the odor of marijuana, cocaine, heroin and methamphetamine.”

After JB alerted on the susp icious box, Officers Fa irbanks and Va rgas took the box into police custody, and the DEA Task Fo rce team obtained a search warrant. They then opened the box and examined its cont ents. Detective Pena and
trial counsel discussed the box’s contents in the following colloquy:

Q. What did you find inside when you opened the box?

A. There was a roll of toilet paper. There was two--there was bundles of marijuana wrapped in black tape.

Q. I’m showing you what has also been marked [P.E.] 14 for identification, the toilet paper wrapper with all the rolls of toilet paper a nd the duct tape . . . .

A. And then it was secured on to the toilet paper with the duct tape.

Q. What was secured on to the toilet paper?

A. The marijuana.

Q. How much marijuana?

A. 4.95 pounds.

. . . .

Q. I’m showing you what’s previously been marked [P.E.] 17 for identifi cation. What is it?

A. [Examining [P.E.] 17 fo r ID.] It’s marijuana.

Q. How do yo u recognize it?WILLIAMSON – ARMY 20030855

23 A. Well, I recogni ze the black tape that it was wrapped
in.

. . . .

Q. Is this the marijuana that you previously handled when you opened this box?

A. Yes, ma’am.

Q. And when and where did you receive this [marijuana]?

A. On the 25th of November [2002].

Q. And where were you?

A. El Paso, Texas, at the Fed Ex location.

Q. And how did you safe guard this [marijuana]?

A. It was in the custody of ou r officers at the Task Force.

Q. Which Officers?

A. Fairbanks and Vargas.

. . . .

Q. These are the people you transferred the marijuana to?

A. Yes, ma’am.

Q. As best you can tell, is this the marijuana that you took out of this box [holdi ng up [P.E.] 14 for ID]?

A. Yes, ma’am.

Q. As best you can tell, is this the marijuana that you took out of this box [holding up [P.E.] 14 for ID] that was attached to these rolls of toilet paper which were in this package?

A. Yes, ma’am.WILLIAMSON – ARMY 20030855

24 The military judge admitted P. E. 14 (a photo of the box) an d P.E. 17 (a clear, plastic bag containing the seized marijuana) into evidence over defense objection. The panel received these exhibits for examinat ion during its delibe rations on findings.

The panel also recei ved the DEA Task Force police report (D.E. R), prepared by Officer Fairbanks on 25 November 2002 (before the 9 April 2003 laboratory report was prepared ), which states, in pertinent part:

[Officer Fairbanks], a certifie d narcotics canine handler, was utilizing his canine “JB” to sniff through outbound freight [at the Federa l Express terminal]. “JB” had alerted positive on [a box] for the scent of narcotics. . . . After obtaining a search warrant, . . . [the] Officers opened the box[] and located thre e (3) bundles of marijuana with the gross approximate weight of 4.95 pounds. Th e bundles of marijuana were wrap ped in black tape. The bundles were attached with duct tape to “S oft n Touch” toilet paper.

Detective Pena further told the panel marijuana is shipped with toilet paper
“to mask the odor” of the dr ug and “to throw o ff the dog.” Although he did not test
the substance to confirm it was marijuana, Det. Pena and the other Task Force members knew they discov ered a package containing marijuana at the Federal Express terminal. Detective Pena elabor ated upon this knowledg e for the panel in further questioning by tr ial counsel. The foll owing colloquy ensued:

Q. Backing up a little, did you test the marijuana once you opened the package?

A. No, ma’am.

Q. Why not?

A. It’s not a police departme nt policy to te st marijuana.

Q. But you knew it was marijuana?

A. Right . . . based on our knowledge and e xperience with marijuana, we based it on that.

Detective Jacque, a New Orleans narcotic s detective, also told the panel he weighed the marijuana, whic h he described as “three se parate[,] . . . hard and compressed . . . pieces of material . . . rese mble[ing] . . . brick[s] or . . . bundles.” The three bricks, he said, we ighed “more than [three] poun ds.” Furthermore, Det.WILLIAMSON – ARMY 20030855

25 Jacque and Det. Pena testified that, in their professional opinions, a person possessing three to four pou nds of marijuana intends to distribute it, not to personally use it.

After examining P.E. 17, SA Hernandez also told the pane l it contained the originally-tagged drug evid ence he forwarded to the US ACIL for testing. When asked by assistant trial counsel, “[W]hat[ ,] to your trained eye[,] does that appear to be inside that bag?” agent Hernandez an swered, “It appears to be bundles of marijuana . . . tape , plastic bags, and a tag from [the] Ne w Orleans P[olice] D[epartment].” He also said he “sent ma rijuana off to be test ed at the lab . . . [c]ountless times,” and that a “brick” of marijuana “is wh ere they take the marijuana, they compact it into brick type moldings[,] and they look like a brick. It’s all compressed.”

Appellant’s own conduct an d words further indicate criminal intent. When the police executed the search warrant at appellant’s home, appellant appeared “shocked and nervous,” and was initially qu iet. Appellant gave Det. Jacque and
Det. Lockhart severa l conflicting explanations wh y someone would send a box of marijuana to his house: he was expecting CDs in the mail; a friend was going to mail him a package (but he never asked about the contents); another friend that was “into marijuana” could have just sent the package; “he didn’t know anything about anything;” and this all could have been a set up.

Additionally, the defense theory of the case was that appellant did not knowingly possess marijuana b ecause he was not involved in sending it to his grandmother’s house, and di d not know the box contained marijuan a before he was arrested. The evidence admitted at trial, however, suggests ot herwise. Appellant considered himself a rap music artist of sorts, 18 and his defense relied upon the

18 Notably, assistant trial counsel cross-examined ap pellant regarding some of his song lyrics, which included : “Moved up from packaging boy to the transporter;” “Got big figures and big bu ndles;” “Some call me dope man and I’m a dope man;” “Don’t be surprised wh en you get six when you ask for five;” “I ’m in my house at night trying to cook it right and trying to cut it right and tryi ng to get it right;” “Don’t think you can arrest me or test me.” When aske d if he was “t alking about drug dealing,” appell ant responded, “It’s metaphors. . . . This is metaphors that
relate to music.” Assistant trial counse l also reminded appe llant that when the government moved to admit into evidence and play one of appe llant’s CDs for the panel, the military judge sustained a defense objection to the request. Assistant trial counsel then asked appellan t why the defense objected to playing these songs. Despite being tried by court-martial on a single specificati on of possession of

(continued . . .)WILLIAMSON – ARMY 20030855

26 possibility that a comp eting artist sent th e drugs to him, with out his knowledge, to set him up for a drug conviction and elimin ate him as a competing artist. The box
had a FedEx USA Airbill ® attached to it with the name “Will” and appellant’s grandmother’s address. The pa ckage also arrived at that address precisely during the short period appellant was on leave in New Orleans for the Thanksgiving holiday, 17–30 November 2002, as indi cated by appellant’s leav e form (admitted into evidence as D.E. G).

Based on the foregoing evid ence, even in the absence of the cumulative laboratory report, the panel had substantia l reliable evidence to support appellant’s
conviction. The members were free to make wi tness-credibi lity determinations, give relative weight to witness testimony and physical evidence , believe or disbelieve witness testimony, and draw re asonable inferences from the evidence presented. 19 In this light, we are confident the military judge’s error in admi tting the laboratory report did not affect the me mbers’ findings of guilty. Therefore, the error was harmless beyond a re asonable doubt.

CONCLUSION

Appellant has not shown a motion to suppress the marijuana based on
defective search warra nts would have been meritorious had his defense team made one at trial. Appellant ha s not met his burden of dem onstrating a de ficiency in counsel’s performance with resulting prejudice. Furthermore, under the
circumstances of this ca se, the laboratory report co nfirming the presence of marijuana was testimonial under the principles of Crawford and, therefore, was improperly admitted as a busi ness record under Mil. R. Evid. 803(6). The military judge’s erroneous admission of the laboratory re port, however, was harmless beyond
a reasonable doubt.

(. . . continued) marijuana with intent to distri bute, appellant said, “[I]t doesn’ t relate to this. This is not what I’m being on trial for.” Assistant trial counse l then reminded appellant: “You’re being on trial for th e distribution of narcotics . . . [a]nd your songs deal
with the distribution of narcotics . . . .”

19 See

, e.g. , United States v. Moran , 65 M.J. 178, 187 (C.A .A.F. 2007) (“[I]t is
axiomatic that credibili ty determinations ar e within the province of the members.”);
United States v. Ford , 23 M.J. 331, 335 (C.M.A. 1985 ) (drawing an inference “is a question to be decided by th e factfinder using the standa rd of reasonab le doubt”).WILLIAMSON – ARMY 20030855

27 The findings of guilty and the sentence are affirmed.

Judge ZOLPER and Judge WALBURN concur.

MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: