UNITED STATES ARMY COURT 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 Artillery Center and Fort Bliss 

Mark P. Sposato, Military Judge 

Lieutenant Colonel Tracy A. Barnes, Staff Judge Advocate 

For Appellant: Major Charles L. Pritchard, Jr., JA (argued); Colonel Mark Cremin, 

JA; Lieutenant Colonel Mark Tellitocci, JA; Major Allyson G. Lambert, JA (on 

brief); Lieutenant Colonel Kirsten V.C. Brunson, JA (on supplemental and reply 

briefs). 

For Appellee: Captain Ryan R. McKinstry, JA (argued); Lieutenant Colonel Mary 

M. Foreman, JA; Lieutenant 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 wrongfully possessing 3.79 pounds of marijuana 

with intent to distribute, in violation of Article 112a, Uniform Code of Military 

Justice, 10 U.S.C. § 912a [hereinafter UCMJ]. The convening authority approved 

the adjudged sentence to a bad-conduct discharge, confinement for two years, and 

forfeiture of all pay and allowances. This case is before the court for review 

pursuant to Article 66, UCMJ. 

Appellant asserts several assignments of error. Two, alleging Sixth 

Amendment violations, require discussion, but merit no relief. Specifically, 

appellant contends he was denied his Sixth Amendment right to effective assistance 

of counsel because his defense team, consisting of detailed military counsel and 

civilian defense counsel, failed to move to suppress the marijuana as the “fruit of an 

unlawful search.” We disagree and hold that appellant has not shown such a motion 
WILLIAMSON – ARMY 20030855 

2

would have been meritorious and, therefore, has not met his 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 record pursuant to Military Rule of Evidence [hereinafter 

Mil. R. Evid.] 803(6). He argues the military 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 nature. 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 find, however, the military judge’s error in admitting the 

laboratory report was harmless beyond a reasonable doubt. 

FACTS 

In August 2003, appellant was convicted of wrongfully possessing 3.79 

pounds of marijuana with intent to distribute, on or about 27 November 2002, for 

possessing a box containing three bundles of marijuana, which he received through 

Federal Express while he was on leave in New Orleans, Louisiana. At trial, the 

government called Detective (Det.) Joel Pena from the El Paso, Texas, Police 

Department during its case-in-chief. Without defense objection, the military judge 

recognized Det. Pena “as an expert in the field of narcotics interdiction . . . to 

include distribution and 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 was consistent with and supplemented by his affidavit 

supporting the request for a search warrant (admitted into evidence as Prosecution 

Exhibit (P.E.) 3 without defense objection), and by the DEA Task Force police 

report (admitted into evidence 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. Since military appellate cases are considered pending on 

direct review, the “new rule of criminal procedure” 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 the conduct of criminal prosecutions is to be applied 

retroactively to all cases, state or federal, pending on direct 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 three-officer DEA Task Force 

working at the El Paso International Airport. El Paso Police Department Officers 

Sal Vargas and Douglas Fairbanks2 completed the team. During the day, the officers 

conducted a drug interdiction operation in the Federal Express outbound freight 

terminal. They chose outbound 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 sniff outbound packages for narcotics. The DEA Task Force 

team became suspicious of a particular outbound package because 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 telephone numbers were missing, and the sender 

identified the recipient only as “Will” without including a last name. Detective Pena 

commented that “most people . . . sending . . . an article to someone else . . . will 

[include] a full name” on the Airbill.®

 Once the DEA Task Force team “determined the box was suspect,” the team 

moved the box from the Federal Express terminal 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 its suspected illegal 

contents, i.e., narcotics. 

 In his affidavit supporting the request for the search 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) cardboard box, 

wrapped in brown paper, sealed with clear tape. 

. . . . 

 

2

 Officer Vargas testified only during the Article 32, UCMJ, investigation. Officer 

Fairbanks did not testify before any proceeding 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/services/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 probable cause for the said belief by 

reason of the following facts, to wit: . . . Officer Douglas 

Fairbanks is employed as a police officer by the City of El 

Paso and has been so employed for the 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 Association (NNDDA) 

and was certified by both associations to detect the odor of 

marijuana, cocaine, heroin and methamphetamine. Canine 

“JB” has been working in the El Paso area along with 

Officer Fairbanks for the past six months and since that 

time has alerted successfully on over 40 occasions where 

narcotics or narcotic related currency has been seized. 

Officer Fairbanks was utilizing his narcotics detector 

canine “JB” to sniff through the freight for the presence of 

narcotics. At approximately 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 several other boxes at the time 

of the alert. 

 Detective Pena testified that, in his opinion, he thought the drug dog, JB, was 

certified, and made that 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 Det. Pena about this “misinformation,” 

Det. Pena said he gave the judge who issued the warrant the information “in good 

faith [and i]t’s not like I knew beforehand and I [was] trying 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 also cross-examined Det. Pena regarding other aspects of 

the search warrant. Trial counsel objected to the line of questioning, and the 

military judge stated on the record: “There is no motion on the warrant, so I will 

give you latitude, but do we need to have an Article 39(a) session?” Civilian 

defense counsel responded: “I don’t think we need to have one.” 
WILLIAMSON – ARMY 20030855 

5

certified on a yearly basis and it’s a team effort. It’s the canine and the officer that 

go through various tests . . . .” 

Once Det. Pena obtained the search warrant at the courthouse, he told Officers 

Vargas and Fairbanks they could open the box. When Det. Pena returned to the DEA 

Task Force office, he saw that the box contained “rolls of toilet paper” and “bundles 

of marijuana wrapped in black tape.” The bundles of marijuana were “secured onto 

the toilet paper [rolls] with the duct tape.” Consistent with his testimony on the 

merits, in both the inventory section of the search warrant and in his police report, 

Det. Pena described the property 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 and experience with 

marijuana,” the “way it was packaged[,] and how it was wrapped.” Detective Pena 

and Officers Vargas and Fairbanks kept the marijuana in their continuous custody—

approximately five hours—until they transferred it for the controlled delivery in 

New Orleans. 

After repackaging the marijuana and rewrapping the box6—to preserve its 

original condition for the controlled delivery—Det. Pena gave the box to Sheila 

Ryan, a U.S. Postal Inspector. Ms. Ryan immediately shipped 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 jurisdiction. Detective Jacque 

picked up the box from the post office, locked it in the police station vault, and 

obtained a search warrant for the address written on the FedEx USA Airbill.® Ten to 

fifteen minutes after the controlled delivery was made, Det. Jacque and other 

officers executed the search warrant. 

During the delivery, Det. Donald Nides of the New Orleans DEA Task Force 

posed as a Federal Express deliveryman. Upon arrival at the residence, Det. Nides 

spoke with Ms. Quillen, appellant’s sixty-two-year-old grandmother. After 

announcing he had a package for “Mr. Will,” Ms. Quillen responded, “Yeah. John 

 

5

 Consistent with Det. Pena’s testimony, Det. Wayne Jacque of the New Orleans 

Police Department (narcotics section) testified he also weighed the three marijuana 

bundles and found they weighed “more than [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 “opening” 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 told him “he had a package.” “It’s your 

package, John,” she said. Detective Nides said he needed a signature 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 money back to him, because it’s our fault.” 

Responding to Det. Nides’ comment about late delivery, appellant said, “Thank you. 

. . . Oh, yeah, because I called to get a--[.]” Appellant accepted the package and 

signed a document acknowledging its receipt. Detective Nides departed the area.7

Ten to fifteen minutes later, Det. Jacque and other officers executed the 

search warrant. Detective Jacque knocked on the door, and when Ms. Quillen 

answered, he advised her he had a search warrant and entered the house. Shortly 

thereafter, Det. Jacque found appellant in an upstairs bedroom. As the detectives 

entered the bedroom, Det. Jacque said he saw appellant “raising himself from the 

bed . . . and[,] also on the bed and in the immediate area where [appellant] was[,] 

was the control delivered package. . . . [Appellant] appeared shocked and nervous.” 

After appellant was detained on the first-floor in the 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 said nothing. When 

Ms. Quillen left the living room, appellant gave several 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 going to mail him a package to 

his house,” but appellant never asked the friend what he was sending, and did not 

reveal the friend’s name to Det. Jacque. Detective Demond Lockhart, another 

member of the New Orleans DEA Task Force, heard appellant say “he had a friend 

that was into marijuana and that could have been a friend that mailed him that 

package,” but he did not reveal that friend’s name either, and that “he didn’t know 

anything about anything,” intimating he could 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. Without defense objection, assistant trial counsel played for the 

panel during trial the recorded conversations that occurred during delivery of the 

package. The military judge admitted the recording into evidence 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.” After appellant signed for the box, 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 police were already in the house and detained him. It 

was only after being detained that Det. Jacque showed appellant the contents of the 

box and laid the contraband on the living room coffee table. Appellant told the 

officers he did not know who sent the box, where it came from, could not have 

possibly known the contents, and suggested someone had set him up. 

Detectives Jacque and Pena testified that when a person possesses between 

three and four pounds of marijuana, he possesses with intent to distribute it; that 

large an amount is not for personal use. After appellant’s arrest, the New Orleans 

Police Department retained the marijuana in its custody. Through two stipulations 

of expected testimony—agreed to personally by appellant and entered into evidence 

without defense objection as P.E. 11 and P.E. 12—and testimony from two U.S. 

Army Criminal Investigation Command (CID) special agents, the government 

demonstrated a chain of custody accounting for the marijuana from the time it left 

the New Orleans Police Department, passed through the Fort Polk and Fort Bliss 

CID offices, and ultimately arrived at the U.S. Army Criminal Investigation 

Laboratory (USACIL)8

 in Forest Park, Georgia, for forensic chemical analysis 

testing. Without defense objection, the military judge entered into evidence as 

P.E. 8 a chain of custody document listing specific dates and all law enforcement 

personnel who handled the marijuana. Special Agent (SA) Hector Hernandez from 

the Fort Bliss CID office testified regarding the accuracy of the information 

contained in this document. Special Agent Hernandez also told the panel he had 

been a CID special agent for five years; prior to becoming a special agent, he had 

been a military police investigator for four years. 

After a senior forensic chemist at the USACIL tested the marijuana, he 

generated a report confirming the substance submitted for testing was, in fact, 

marijuana and weighed 1,375.69 grams (or 3.03 pounds). At trial, the government 

moved to admit the laboratory report over defense objection. Specifically, trial 

defense counsel argued: (1) the laboratory 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 prosecution support tool; rather, by its 

own mission statement, USACIL 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 under Mil. R. Evid. 902(4a) (self-authenticating documents or records 

of the United States accompanied by an attesting certificate); (2) testimony from an 

expert witness involved in the testing process was necessary to lay a proper 

foundation for the laboratory report; (3) a chain of custody for the marijuana and the 

laboratory report was not properly established; and (4) the laboratory report 

constituted inadmissible hearsay, contrary to Mil. R. Evid. 803(6) (hearsay 

exception for records of a regularly conducted activity, i.e., “business records”). In 

ruling on the defense objections, the military judge made the following findings: 

(1) the laboratory report was properly self-authenticating under Mil. R. Evid. 

902(4a); (2) expert-witness testimony was not required to lay a foundation for the 

laboratory report; (3) a chain of custody was properly established; and (4) the 

laboratory report was a properly-authenticated business record, and, as such, was 

admissible under Mil. R. Evid. 803(6). 

INEFFECTIVE ASSISTANCE OF COUNSEL 

Law 

Right to Effective Assistance 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 for each general and special court-martial [and] . . . must be 

certified as competent to perform [defense] duties . . . .”). 

We review an appellant’s ineffective assistance 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)). Specifically, “to prevail, the [accused] must show both that counsel’s representation fell below an objective standard of reasonableness, . . . and that there 

exists a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.” Kimmelman v. Morrison, 

477 U.S. 365, 375 (1986) (internal citation omitted); Edmond, 63 M.J. at 351 

(stating same). 
WILLIAMSON – ARMY 20030855 

9

Furthermore, our retrospective review of counsel’s representation is “‘highly 

deferential,’” and reinforced by “‘a strong presumption[9] that counsel provided 

adequate professional 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 “long-standing principle 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 court set forth the 

following three-question test to determine whether the presumption of competence 

has been overcome: 

(1) Are the allegations made by appellant true; and, if they 

are, is there a reasonable explanation for counsel’s actions 

in the defense of the case? (2) If they are true, did the 

level of advocacy “fall[] measurably below the performance . . . [ordinarily expected] of fallible lawyers”? (3) If 

ineffective assistance of counsel is found to exist, “is . . . 

there . . . a reasonable probability 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)) (alterations in original); United States v. 

Haney, 64 M.J. 101, 106 (C.A.A.F. 2006) (stating same). Moreover, where 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), rather than focus on individual counsel’s efforts or shortcomings. 

Nevertheless, “[c]ounsel 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 Amendment right to effective representation is not ‘complete’ until the 

defendant is prejudiced.” 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, ‘rooted 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 assistance claims involving Fourth 

Amendment motions carry the specific burden of showing that counsel’s deficiency 

in performance regarding the motion, or failure to make the motion, prejudiced their 

case. As our superior court has reinforced, “[w]here a claim of ineffective 

assistance of counsel is based on ‘defense counsel’s failure to litigate a Fourth 

Amendment’ objection to evidence, [to demonstrate actual prejudice] appellant 

‘must . . . prove that his Fourth Amendment claim is meritorious and that there is a 

reasonable probability that the verdict would have been different absent the 

excludable evidence.’” United States v. Loving, 41 M.J. 213, 244 (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 (stating same regarding counsel’s failure to 

move to suppress accused’s statement). “Thus, while [appellant’s] defaulted Fourth 

Amendment claim is one element of proof of his Sixth Amendment claim, the two 

claims have separate identities and reflect different [C]onstitutional values.” 

Kimmelman, 477 U.S. at 375. 

Search Warrant Requirements 

 A valid search warrant must be supported by “probable 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 located in the place or on the person to be 

searched[,] . . . [and] may be based upon hearsay evidence 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 search authorization supported by 

probable cause . . . .”); United States v. Berry, 90 F.3d 148, 153 (6th Cir. 1996) (“A 

valid search warrant may be issued only upon a finding of probable cause . . . .”); 

see Mil. R. Evid. 316(b) (“Probable cause to seize property or evidence exists when 

there is a reasonable belief that 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 found in a particular place.” Illinois v. Gates, 462 U.S. 

213, 238 (1983). In determining whether probable cause exists, the issuing 

magistrate must make a “common-sense decision whether, given all the 

circumstances set forth in the affidavit before him, including the ‘veracity’ and 

‘basis of knowledge’ of persons supplying hearsay information, there is a fair 

probability that contraband or evidence of a crime will be found in a particular 

place.” Id. 

A dog sniff can be determinative 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, 393–94 (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 affidavit that dog was “trained narcotics 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 reviewing 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)) (alterations in original); Leedy, 65 M.J. at 213. 

We review the military judge’s factually-derived “substantial basis” using a clearlyerroneous standard, and whether the “substantial basis” legally supports a probable 

cause determination 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). Probable cause determinations are 

entitled to “great deference by reviewing courts.” Gates, 462 U.S. at 236. 

Challenging the Affidavit Supporting a Warrant—Franks Hearing

A meritorious motion to suppress evidence—invalidating a search and seizure 

warrant because a government agent withheld or misrepresented material facts in the 

information provided to the authorizing official—requires the defense to overcome 

several hurdles. See Franks v. Delaware, 438 U.S. 154, 155–56 (1978) (“We hold 

that, where the defendant makes a substantial preliminary showing that a false 

statement knowing[ly] and intentionally, or with reckless disregard for the truth, was 

included by the affiant in the warrant affidavit, and if the alleged false statement is 

necessary to the finding of probable cause, the 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]he Supreme Court . . . 

permits an accused a hearing to go below the surface of a facially-sufficient 

affidavit . . . .”), pet. denied, 9 M.J. 17 (C.M.A. 1980). 

Military Rule of Evidence 311(g)(2) codifies the Supreme Court’s Franks

decision by clarifying that when “the defense makes a substantial preliminary 
WILLIAMSON – ARMY 20030855 

12

showing that a government agent included a false statement[10] knowingly and 

intentionally or with reckless disregard for the truth in the information presented to 

[the magistrate issuing the warrant], and if the allegedly false statement is necessary 

to the finding of probable cause, the defense, upon request, shall 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. Evid. 311(g)(2). Once that burden is met, 

the prosecution must prove, by a preponderance of the evidence, that without the 

false information, the “remaining information” provided to obtain the warrant from 

the magistrate sufficiently establishes probable cause. Id. 

Discussion 

 Appellant contends his trial defense team was ineffective because “they knew 

that Det. Pena had misled the magistrate when obtaining the warrant” regarding the 

drug-detector dog’s certification, but “fail[ed] to attempt to suppress the marijuana” 

as evidence. Essentially, appellant asserts the first warrant obtained by Det. Pena to 

search the contents of the box for marijuana, and the second, anticipatory warrant 

obtained by Det. Jacque to search appellant’s home for 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 the first search warrant, Franks, 438 U.S. at 155 (emphasis 

added), or that his misstatements regarding the drug-detector dog’s certification 

amounted to a “reckless disregard for the truth.” Id. Although Det. Pena admitted 

he thought JB was certified—and did not discover anything 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 offered no information clarifying why he misstated JB’s 

certification, or how he later found out he had been incorrect. Trial defense counsel 

did not pursue the matter any further on the merits other than through his limited 

 

10 Our superior court has applied this standard—used for misrepresentations—to 

omissions as well. United States v. Figueroa, 35 M.J. 54, 56–57 (C.M.A. 1992) 

(holding that “[o]missions do not ‘undermine probable cause’ unless they are 

intentional or made ‘with reckless disregard for the’ accuracy of the information. 

Merely ‘negligent omissions’ do not ‘undermine’ probable cause. United States v. 

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

13

cross-examination. We find that including the misstatement in the affidavit 

constitutes, at best, an innocent mistake, or, at worst, simple negligence. 

Detective Pena further explained at trial that “JB [had] been around for a 

while. . . . [O]ur dogs are certified 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 for 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 evidence tending to contradict Det. Pena’s “good 

faith” assertions or the facts stated in the affidavit regarding JB’s reliability, i.e., 

that JB had over forty successful alerts during the past six months. Based on the 

information contained in the affidavit and elicited from Det. Pena at trial, we find 

appellant has failed to persuasively marshal those facts and make the substantial 

threshold showing required 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 falsehood or of 

reckless disregard for the truth, 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 they should be accompanied by a 

statement of supporting reasons. Affidavits or sworn or 

otherwise reliable statements of witnesses should be 

furnished, or their absence satisfactorily 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 remaining material in the affidavit adequately 

establishes probable cause—cuts against appellant. The additional information 

provided in the affidavit adequately establishes probable cause. Regardless of 

whether JB was actually certified, the experience of JB’s handler, coupled with JB’s 

 

11 Appellant has the burden of proof on this point, and we will not speculate about 

the many possible explanations why JB was not certified. Nevertheless, appellant 

has not developed this information. 
WILLIAMSON – ARMY 20030855 

14

forty-plus successful alerts, provided the probable cause necessary to issue the 

search warrant. 

We also find the second, anticipatory warrant to search appellant’s New 

Orleans home depended upon the validity of the first (El Paso) warrant because the 

second warrant was based upon the assertion that the El Paso DEA Task Force, 

utilizing a drug-detection dog, “intercepted a package containing 41⁄2 pounds of 

marijuana through Federal Express Parcel Service.” Satisfied that Det. Pena’s El 

Paso search warrant was valid, this court is also satisfied the second, anticipatory 

warrant to search appellant’s home was also valid. 

 Based on our findings, appellant has failed to “‘prove that his Fourth 

Amendment claim is meritorious and that there is a reasonable probability that the 

verdict would have been different absent 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 deficiency in counsel’s performance [by not moving to 

suppress the marijuana], but how that deficiency prejudiced his defense.” Dobrava, 

64 M.J. at 505. Hence, we find appellant received effective 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. Davis, 2 Federal Standards of Review § 11.02 (2d ed. 

1992) (evidentiary rulings reviewed for abuse of discretion). An abuse of discretion 

review entails examining a military judge’s findings of fact 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 erroneously admits hearsay12 evidence and violates an 

accused’s Sixth Amendment right to confrontation—due to a deprivation of the right 

to cross-examination—the resulting error is an error of Constitutional dimension. 

See United States v. Hall, 58 M.J. 90, 94 (C.A.A.F. 2003) (finding Constitutional 

error where appellant was “denied her [C]onstitutional right of confrontation 

through cross-examination” of hearsay declarant). Moreover, to affirm the trial 

court’s decision despite the erroneous admission, we must find such Constitutional 

error “harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 

24 (1967). “We review ‘de novo’ whether the ‘[C]onstitutional error was harmless 

beyond a reasonable 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 reasonable doubt is 

‘whether, beyond a reasonable doubt, the error did not 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)). Specifically, “‘[o]ur focus is not on whether the members were 

right in their findings but, rather, on whether the error 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 statement. Mil. R. Evid. 801(c); see Mil. R. Evid. 802–

805 (enumerating exceptions to the general prohibition against admitting hearsay as 

evidence); Mil. R. Evid. 807 (residual hearsay exception). “Although the right of 

confrontation and the hearsay rule stem from the same roots, they are not 

coextensive, and evidence admissible under a hearsay exception may still be 

inadmissible under the Confrontation 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 admission of child-victim’s videotaped 

statement was erroneous, but finding admission not harmless beyond a reasonable 

doubt); see California v. Green, 399 U.S. 149, 155–56 (1970) (recognizing the 

overlap between hearsay rules and Confrontation Clause is not complete, and stating 

“we have more than once found a violation of confrontation values even though the 

statements in issue were admitted under an arguably recognized hearsay exception”). 
WILLIAMSON – ARMY 20030855 

16

Sixth Amendment Right to Confrontation

The Sixth Amendment to the U.S. Constitution states: “In all criminal 

prosecutions, the accused shall 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 declarant in person, and cross-examine him in 

front of the trier 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 firmly rooted hearsay exception,’ see, e.g., White v. 

Illinois, [502 U.S. 346, 355 (1992)], or has ‘particularized 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 landmark 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 unavailable declarant’s out-of-court statements 

are “testimonial” or “nontestimonial” in nature. Id. at 67–68. The Court held that 

the Sixth Amendment’s Confrontation Clause bars “admission 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 Armed Forces has further clarified that 

applying the Crawford analysis “depends on the meaning of ‘testimonial,’ [as well 

as] on the circumstances and context in which out-of-court statements are generated, 

and whether the out-of-court statements were made under circumstances that would 

lead an objective witness reasonably to believe the statement would 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 military judge admitted the laboratory 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 regularly conducted activity”). 

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

 (continued . . .) 
WILLIAMSON – ARMY 20030855 

17

a statement “made under circumstances which would lead an objective witness 

reasonably to believe that the statement would be available for use at a later trial,” 

Crawford, 541 U.S. at 52, is testimonial or nontestimonial, we must consider the 

following factors: 

First, was the statement at issue elicited by or made in 

response to law enforcement or prosecutorial inquiry? 

Second, did the “statement” involve more than a routine 

and objective cataloging of unambiguous factual matters? 

Finally, was the primary purpose 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 (2007). Writing for the Court in Davis, Justice Scalia 

explained what might be called a “primary purpose” test for distinguishing between 

testimonial and nontestimonial statements: 

Statements are nontestimonial when made in the course of 

police interrogation under circumstances objectively 

indicating that the primary purpose of the interrogation is 

to enable police assistance to meet an ongoing emergency. 

They are testimonial when the 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 testimony that the defendant was 

unable to cross-examine, or similar pretrial statements that 

declarants would reasonably expect to be used prosecutorially; [2] extrajudicial statements . . . contained in 

formalized testimonial materials, such as affidavits, 

depositions, prior testimony, or confessions; [and 

3] statements that were made under circumstances which 

would lead an objective witness reasonably to believe that 

the statement would be available for use at a later trial. 

541 U.S. at 51–52 (third alteration in original) (internal 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 (emphasis added). 

 The last of the Rankin Court’s factors requires military courts to conduct a 

“contextual analysis” to determine “whether the primary purpose of the document 

[or statement] was prosecutorial in nature.” Foerster, 65 M.J. at 124. “[O]ur goal is 

an objective look at the totality of the circumstances surrounding the statement to 

determine if the statement was made or elicited 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 military judge erred by admitting the laboratory report 

(identifying the substance in the package appellant possessed as marijuana) as a 

business record in accordance with Mil. R. Evid. 803(6). This ruling, appellant 

argues, contradicts the Crawford Confrontation Clause requirements because the 

report is testimonial in nature. The question we must decide is whether the forensic 

laboratory report produced by the USACIL constitutes testimonial hearsay, or 

whether, in the alternative, the report represents nontestimonial hearsay subject to a 

reliability analysis 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) (granting review on the issue “whether the lower court 

erred by finding that two Virginia state forensic laboratory reports were not 

testimonial hearsay under Crawford”). We also note that while our decision 

comports with the views of some state courts, see, e.g., State v. Moss, 2007 Ariz. 

App. LEXIS 86, *19 (Ariz. Ct. App. May 29, 2007) (concluding expert witness 

testimony, based on laboratory report produced for the “primary reason” of using the 

results “prosecutorially,” was testimonial); Johnson v. State, 929 So.2d 4, 7 (Fla. 

Dist. Ct. App. 2005) (holding laboratory report establishing contraband nature of 

substance was testimonial); Las Vegas v. Walsh, 124 P.3d 203, 207–08 (Nev. 2005) 

(holding affidavit regarding blood draw for chemical analysis 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 conclusion is limited to the facts of this 

case. Civilian law enforcement officers arrested appellant and seized the marijuana 

on 27 November 2002. The government preferred the charge and its specification on 

4 April 2003, and the USACIL issued its laboratory report on 9 April 2003. 

 

(. . . continued) 

(holding blood test report was testimonial); State v. Crager, 844 N.E.2d 390, 394–

400 (Ohio Ct. App. 2005) (holding DNA analysis report was testimonial because it 

was prepared “in anticipation of litigation”), rev. granted, 846 N.E.2d 532 (Ohio 

2006), other state courts and our sister service court have divergent views, see, e.g., 

Bohsancurt v. Eisenberg, 129 P.3d 471, 478–80 (Ariz. Ct. App. 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 chemical analysis”) of cocaine analysis fell within business 

records exception to the Confrontation Clause because it is “neither discretionary 

nor based on opinion[,] . . . state[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 reports “prepared and 

kept in the course of a regularly conducted business” are nontestimonial where they 

are not “wholly” and “solely” prepared for “litigation” or “prosecution”); State v. 

Dedman, 102 P.3d 628, 636 (N.M. 2004) (holding blood-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,” because “lab personnel . . . would have no way 

of knowing either the testing premise or the identity of the individual[,] . . . whether 

prosecution was anticipated[,] or whether the sample was part of a normal random 

urinalysis screening”), 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 chemical analysis reports, positively indicating 

presence of “heroin and cocaine,” were “non-testimonial and were admissible under 

the business records hearsay exception”). Additionally, in describing the historical 

development of Sixth Amendment Confrontation 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 (internal citations omitted) (emphasis 

added). 
WILLIAMSON – ARMY 20030855 

20

Therefore, we base our conclusion primarily on the fact that the “statement” is a 

post-apprehension16 laboratory report, requested after local police arrested appellant. 

 The military judge found the laboratory report was a properly-authenticated 

business record, and, as such, was admissible under Mil. R. Evid. 803(6). Pursuant 

to trial counsel’s request, and aided by Fort Bliss CID special agents, the laboratory 

conducted a forensic examination of the marijuana 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 (finding victim’s forgery 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 “with the forensic needs of law enforcement 

and prosecution in mind.” Gardinier, 65 M.J. at 66. The laboratory technician in 

appellant’s case was “engaged in a law enforcement function, a search for evidence 

in anticipation of prosecution or trial[,]” and the report was “prepared at the behest 

of law enforcement” while appellant was “already under investigation, and where the 

testing [was] initiated by the prosecution to discover incriminating evidence.” 

Magyari, 63 M.J. at 126–27 (internal citation omitted). 

Moreover, although we find generating the USACIL forensic report akin to an 

“objective cataloging of unambiguous 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” responded to a law enforcement inquiry, and the “primary 

purpose for making, or eliciting, the [report]” was to produce evidence “with an eye 

toward trial,” i.e., the report was produced months after appellant’s arrest, and after 

the government preferred the charge alleging narcotics possession with intent to 

distribute. Id. Accordingly, we hold the laboratory report was 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 laboratory report was harmless beyond a reasonable doubt. 

 

16 “Apprehension is the taking of a person into custody.” R.C.M. 302(a)(1). 

“Apprehension is the equivalent 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 (finding chemical analysis certificate “admissible 

only as prima facie evidence of the composition, quality, and weight of the 

substance”). 
WILLIAMSON – ARMY 20030855 

21

Harmless Beyond a Reasonable Doubt 

 In reviewing de novo the military judge’s decision to admit the laboratory 

report, we must determine “‘whether the error had[,] or reasonably may have had[,] 

an effect upon the members’ findings.’” Hall, 58 M.J. at 94 (quoting Bins, 43 M.J. 

at 86). We must find this Constitutional error was “harmless beyond a reasonable 

doubt” to affirm appellant’s conviction. Chapman, 386 U.S. at 24. After setting 

aside the laboratory report, which identified 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 admitting the laboratory 

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 pertaining to each element of the offense of possession of a 

controlled substance with intent to distribute. See UCMJ art. 112a. The military 

judge recognized Det. Pena, a DEA Task Force member, “as an expert in the field of 

narcotics interdiction[,] . . . includ[ing] distribution and transportation.” Detective 

Pena had been working for the El Paso Police Department for fourteen and a half 

years, including six years “specifically [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 purchased different types of narcotics,” 

conducted “hundreds” of interviews, made “hundreds” of arrests, participated in 

“hundreds” of investigations, and secured “hundreds” of search warrants. As a 

narcotics detective, Det. Pena “taught or trained . . . new officers that would come 

into the . . . narcotics interdiction . . . unit.” He testified “[q]uite a few [times] . . . 

in civilian court . . . as an expert [qualified] . . . in narcotics[-]related fields.” 

Based on his training and experience, Det. Pena testified that “transporting 

marijuana through Fed Ex” is a common method of shipping “large quantities of 

marijuana” because “of the low risk to the sender.” The sender can present a 

“prepackaged . . . box[ for shipping,] . . . pay [his] money, and [he is] out of there.” 

He also said: “[I]f [the package] gets through the line, . . . [and] gets delivered[,] 

it’s a done deal. A very low risk of getting caught . . . . If that package is 

intercepted, . . . you have a bogus address on it, . . . [and] no leads.” 

Officer Fairbanks—another DEA Task Force member, fifteen-year veteran of 

the El Paso Police Department, and dog handler—along with the third member of the 

team, Officer Vargas, discovered the suspiciously-addressed box at the Federal 

Express terminal with the aid of his “K-9 partner,” drug-detector dog JB (arguably 

the fourth member of the Task Force team). JB had been working with Officer 
WILLIAMSON – ARMY 20030855 

22

Fairbanks for six months and, during that time, “alerted successfully on over 40 

occasions where narcotics or narcotic[-]related currency ha[d] been seized.” 

Detective Pena told the panel: “JB [has] 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 through various tests” set forth by two different certification 

associations, NAPWDA and NNDDA, to ensure the dog can “detect the odor of 

marijuana, cocaine, heroin and methamphetamine.” 

After JB alerted on the suspicious box, Officers Fairbanks and Vargas took 

the box into police custody, and the DEA Task Force team obtained a search 

warrant. They then opened the box and examined its contents. 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 and the duct tape . . . . 

A. And then it was secured onto the toilet paper with the 

duct tape. 

Q. What was secured onto 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 identification. What is it? 

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

Q. How do you recognize it? 
WILLIAMSON – ARMY 20030855 

23

A. Well, I recognize 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 safeguard this [marijuana]? 

A. It was in the custody of our 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 [holding 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) and P.E. 17 (a clear, plastic 

bag containing the seized marijuana) into evidence over defense objection. The 

panel received these exhibits for examination during its deliberations on findings. 

The panel also received 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 certified narcotics canine handler, 

was utilizing his canine “JB” to sniff through outbound 

freight [at the Federal 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 three (3) bundles of marijuana with the 

gross approximate weight of 4.95 pounds. The bundles of 

marijuana were wrapped in black tape. The bundles were 

attached with duct tape to “Soft n Touch” toilet paper. 

Detective Pena further told the panel marijuana is shipped with toilet paper 

“to mask the odor” of the drug and “to throw off the dog.” Although he did not test 

the substance to confirm it was marijuana, Det. Pena and the other Task Force 

members knew they discovered a package containing marijuana at the Federal 

Express terminal. Detective Pena elaborated upon this knowledge for the panel in 

further questioning by trial counsel. The following 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 department policy to test marijuana. 

Q. But you knew it was marijuana? 

A. Right . . . based on our knowledge and experience with 

marijuana, we based it on that. 

Detective Jacque, a New Orleans narcotics detective, also told the panel he 

weighed the marijuana, which he described as “three separate[,] . . . hard and 

compressed . . . pieces of material . . . resemble[ing] . . . brick[s] or . . . bundles.” 

The three bricks, he said, weighed “more than [three] pounds.” Furthermore, Det. 
WILLIAMSON – ARMY 20030855 

25

Jacque and Det. Pena testified that, in their professional opinions, a person 

possessing three to four pounds of marijuana intends to distribute it, not to 

personally use it. 

After examining P.E. 17, SA Hernandez also told the panel it contained the 

originally-tagged drug evidence he forwarded to the USACIL for testing. When 

asked by assistant trial counsel, “[W]hat[,] to your trained eye[,] does that appear to 

be inside that bag?” agent Hernandez answered, “It appears to be bundles of 

marijuana . . . tape, plastic bags, and a tag from [the] New Orleans P[olice] 

D[epartment].” He also said he “sent marijuana off to be tested at the lab . . . 

[c]ountless times,” and that a “brick” of marijuana “is where 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 and words further indicate criminal intent. When 

the police executed the search warrant at appellant’s home, appellant appeared 

“shocked and nervous,” and was initially quiet. Appellant gave Det. Jacque and 

Det. Lockhart several conflicting explanations why 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 because he was not involved in sending it to his 

grandmother’s house, and did not know the box contained marijuana before he was 

arrested. The evidence admitted at trial, however, suggests otherwise. Appellant 

considered himself a rap music artist of sorts,18 and his defense relied upon the 

 

18 Notably, assistant trial counsel cross-examined appellant regarding some of his 

song lyrics, which included: “Moved up from packaging boy to the transporter;” 

“Got big figures and big bundles;” “Some call me dope man and I’m a dope man;” 

“Don’t be surprised when 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 trying to get it right;” 

“Don’t think you can arrest me or test me.” When asked if he was “talking about 

drug dealing,” appellant responded, “It’s metaphors. . . . This is metaphors that 

relate to music.” Assistant trial counsel also reminded appellant that when the 

government moved to admit into evidence and play one of appellant’s CDs for the 

panel, the military judge sustained a defense objection to the request. Assistant trial 

counsel then asked appellant why the defense objected to playing these songs. 

Despite being tried by court-martial on a single specification of possession of 

 (continued . . .) 
WILLIAMSON – ARMY 20030855 

26

possibility that a competing artist sent the drugs to him, without his knowledge, to 

set him up for a drug conviction and eliminate 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 package 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 indicated by appellant’s leave form (admitted into 

evidence as D.E. G). 

Based on the foregoing evidence, even in the absence of the cumulative 

laboratory report, the panel had substantial reliable evidence to support appellant’s 

conviction. The members were free to make witness-credibility determinations, give 

relative weight to witness testimony and physical evidence, believe or disbelieve 

witness testimony, and draw reasonable inferences from the evidence presented.19 In 

this light, we are confident the military judge’s error in admitting the laboratory 

report did not affect the members’ findings of guilty. Therefore, the error was 

harmless beyond a reasonable doubt. 

CONCLUSION 

Appellant has not shown a motion to suppress the marijuana based on 

defective search warrants would have been meritorious had his defense team made 

one at trial. Appellant has not met his burden of demonstrating a deficiency in 

counsel’s performance with resulting prejudice. Furthermore, under the 

circumstances of this case, the laboratory report confirming the presence of 

marijuana was testimonial under the principles of Crawford and, therefore, was 

improperly admitted as a business record under Mil. R. Evid. 803(6). The military 

judge’s erroneous admission of the laboratory report, however, was harmless beyond 

a reasonable doubt. 

 

(. . . continued) 

marijuana with intent to distribute, appellant said, “[I]t doesn’t relate to this. This is 

not what I’m being on trial for.” Assistant trial counsel then reminded appellant: 

“You’re being on trial for the 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 credibility determinations are 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 the factfinder using the standard of reasonable 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: