UNITED STATES, Appellee 

v. 

Hector R. GONZALEZ Jr., Airman First Class 

U.S. Air Force, Appellant 

No. 03-0394 

Crim. App. No. 34691 

United States Court of Appeals for the Armed Forces 

Argued October 19, 2005 

Decided February 1, 2006 

ERDMANN, J., delivered the opinion of the court, in which 

GIERKE, C.J., and CRAWFORD, EFFRON, and BAKER, JJ., joined. 

Counsel 

For Appellant: Captain John N. Page III (argued); Colonel 

Carlos L. McDade, Colonel Beverly B. Knott, Major Terry L. 

McElyea, Major Sandra K. Whittington, and Captain Jennifer K. 

Martwick (on brief). 

For Appellee: Major Jin-Hwa L. Frazier (argued); Lieutenant 

Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer, and 

Major John C. Johnson (on brief); Captain Matthew J. Mulbarger. 

Military Judge: Kirk R. Granier 

This opinion is subject to revision before final publication. 
United States v. Gonzalez Jr., No. 03-0394/AF 

2

Judge ERDMANN delivered the opinion of the court. 

 Airman First Class Hector Gonzalez pled guilty to wrongful 

possession of marijuana in violation of Article 112a, Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. § 912a (2000). 

Gonzalez pled not guilty to wrongful use of ecstasy and carrying 

a concealed weapon in violation of Articles 112a and 134 of the 

UCMJ, respectively. 10 U.S.C. §§ 912a, 934 (2000). He was 

convicted on all of the charges and sentenced to a bad-conduct 

discharge, 148 days of confinement, forfeiture of all pay and 

allowances and a reduction in grade to E-1. The convening 

authority approved the sentence and the findings and sentence 

were affirmed by the United States Air Force Court of Criminal 

Appeals in an unpublished opinion. United States v. Gonzalez, 

No. ACM 34691, 2003 CCA LEXIS 57, 2003 WL 827254 (A.F. Ct. Crim. 

App. Feb. 28, 2003). On appeal, this court set aside the Air 

Force court’s decision and remanded for reconsideration of a 

specified issue. United States v. Gonzalez, 59 M.J. 159 

(C.A.A.F. 2003). Following the Air Force court’s ruling on 

remand, United States v. Gonzalez, No. ACM 34691, 2004 CCA LEXIS 

198, 2004 WL 1944723 (A.F. Ct. Crim. App. Aug. 17, 2004), this 

court again granted review. 

 Where the Government fails to disclose discoverable 

material pursuant to a specific request, “the appellant will be 

entitled to relief unless the Government can show that 
United States v. Gonzalez Jr., No. 03-0394/AF 

3

nondisclosure was harmless beyond a reasonable doubt.” United 

States v. Roberts, 59 M.J. 323, 327 (C.A.A.F. 2004). We have 

previously held that the Government’s failure to turn over a 

Brooks Laboratory Discrepancy Report was error under Rule for 

Courts-Martial (R.C.M.) 701(a)(2)(B). United States v. Jackson, 

59 M.J. 330, 335 (C.A.A.F. 2004). We have also held that the 

Government’s failure to turn over the Discrepancy Report is to 

be treated as prejudicial error where the other available 

evidence does not constitute “independent evidence of illegal 

drug use.” Id. Where there is sufficient independent evidence 

of illegal drug use, the Government’s error may be treated as 

harmless. We granted review in this case to determine if there 

was sufficient independent evidence that Gonzalez had wrongfully 

used ecstasy. We also considered whether defense counsel was 

ineffective in failing to discover that that the Discrepancy 

Report was not provided.1 We find that the Government’s failure 

to turn over the report was erroneous, but that the error was 

 

1

 We granted review of the following issues: 

WHETHER BRADY v. MARYLAND, 373 U.S. 83 (1963), AND R.C.M. 

701 REQUIRED THE GOVERNMENT TO DISCLOSE EVIDENCE REGARDING 

AN AUGUST 2000 BROOKS LAB ANALYTICAL FALSE POSITIVE 

URINALYSIS RESULT AND PREJUDICIALLY ERRED IN FAILING TO DO 

SO. 

WHETHER THE COURT OF CRIMINAL APPEALS ERRED ON REMAND WHEN 

IT FOUND NO INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE 

DEFENSE COUNSEL FAILED TO DISCOVER EXCULPATORY EVIDENCE 

REGARDING AN AUGUST 2000 BROOKS LAB ANALYTICAL FALSE 

POSITIVE URINALYSIS RESULT. 
United States v. Gonzalez Jr., No. 03-0394/AF 

4

harmless beyond a reasonable doubt. We also find that that 

Gonzalez was not denied effective assistance of counsel. 

BACKGROUND 

 Agents from the Air Force Office of Special Investigations 

(OSI) called Gonzalez into their office for questioning after a 

pacifier believed to belong to Gonzalez was found at the Central 

Quarters (CQ) desk in Gonzalez’s dormitory. The Military 

Training Leader who found the pacifier knew that Gonzalez had no 

children and that pacifiers are considered drug paraphernalia 

associated with ecstasy use. During the OSI interview Gonzalez 

admitted to sucking on the pacifier found at the CQ desk and 

attending at least one “rave” party. He claimed that he 

innocently ingested ecstasy at that rave and he expressed 

familiarity with the effects of ecstasy. Gonzalez consented to 

a search of his dormitory room, his car and a rental car. The 

search uncovered two more pacifiers and more than a dozen fliers 

advertising raves. 

Gonzalez also consented to a urinalysis, which was positive 

for ecstasy,2

 and the observer from his drug test testified that 

Gonzalez behaved oddly during the test, stating that he was 

“excited” and “talkative” and that “his eyes were a little 

 

2

 There was testimony at trial that the metabolites found in 

Gonzalez’s urine could not have been the result of the alleged 

innocent ingestion incident, which had allegedly occurred 

sixteen days earlier. 
United States v. Gonzalez Jr., No. 03-0394/AF 

5

glassy.” Several months later, Gonzalez’s car was searched as 

he tried to enter Sheppard Air Force Base because Security 

Forces had reason to believe that Gonzalez had stolen a gun. 

The search turned up a weapon, as well as a baggie of marijuana. 

Gonzalez’s urine sample was tested by the Air Force Drug 

Testing Laboratory at Brooks Air Force Base in early September 

2000. Aware that the Government would rely heavily on the 

results of his drug test, Gonzalez made several discovery 

requests for background information relevant to the drug-testing 

program at the Brooks Lab. He asked for reports created at or 

written about the Brooks Lab, particularly those concerning 

inspections, “false positives” and “false negatives”, 

contamination, misplacement and mishandling of samples, and any 

testing, processing or administrative errors. He also asked for 

reports written in the month Gonzalez’s sample was tested as 

well as several preceding and following months. 

In response the Government produced quality assurance 

monthly inspection reports for June through October 2000. The 

Government also produced five months of quality control monthly 

reports, including a report dated August 10, 2000, which 

included the annotations “BQC Unacceptable – 1,” and “Technician 

Error – 1”. The Government also produced fourteen discrepancy 
United States v. Gonzalez Jr., No. 03-0394/AF 

6

reports, including five from August 2000 and one from September 

2000.3

The Government did not, however, produce an August 2, 2000 

Discrepancy Report, which explained that on July 31, 2000 the 

lab had improperly identified a negative “blind quality control” 

specimen as positive for cocaine metabolites. That report also 

explained that no conclusion could be drawn about what caused 

the false positive result and that all lab personnel were 

encouraged to “pay closer attention” to their tasks. The false 

positive quality control sample was processed by the lab one 

month before Gonzalez’s sample was tested and at least one of 

the employees who handled the misidentified quality control 

sample also handled Gonzalez’s sample. 

It is of some significance that the Discrepancy Report 

which was not produced was the only one that described a false 

positive result. The others produced by the Government 

concerned ten incidents where the intralaboratory chain of 

custody was broken –- including several instances of employees 

forgetting to properly sign or annotate the chain of custody 

sheet, one where a chemist failed to perform an “in-run prime” 

 

3

 A discrepancy report is generated any time the Quality 

Assurance section of the Brooks Lab determines that there was 

some deviation from standard procedures or some problem with a 

quality control sample. The report identifies each individual 

who handled the specimen in question, reaches a conclusion about 

the cause and impact of the error and makes a recommendation 

about how similar problems can be avoided in the future. 
United States v. Gonzalez Jr., No. 03-0394/AF 

7

when restarting the equipment after a mechanical failure, one 

instance of unacceptable chromatography, and two incidents of 

improperly performed extractions. 

At trial, Lieutenant Colonel Dale Haak, an Army Drug 

Testing Program Manager and expert in forensic toxicology and 

biochemistry, testified concerning the results of Gonzalez’s 

drug test, as well as the Brooks Lab quality control procedures. 

He testified about the difference between internal and external, 

and open and blind quality controls. He testified that Brooks 

Lab has never misanalyzed an external quality control sample and 

that there was no error with regard to the controls run in the 

same batch as Gonzalez’s sample. On cross-examination, however, 

Haak testified that internal blind quality control samples come 

back with incorrect results approximately two percent of the 

time. 

DISCUSSION 

I. Failure to Produce August 2 Discrepancy Report

Rule for Courts-Martial 701 (a)(2)(B) requires the 

Government, upon request, to turn over “results or reports . . . 

of scientific tests or experiments” that are “material to the 

preparation of the defense.” When a defendant makes a specific 

request for discoverable information, it is error if the 

Government does not provide the requested information, and “the 

appellant will be entitled to relief unless the Government can 
United States v. Gonzalez Jr., No. 03-0394/AF 

8

show that nondisclosure was harmless beyond a reasonable doubt.” 

Roberts, 59 M.J. at 327. Harmless beyond a reasonable doubt is 

a high standard, but it is not an impossible standard for the 

Government to meet. See Neder v. United States, 527 U.S. 1, 18 

(1999) (“To set a barrier so high that it could never be 

surmounted would justify the very criticism that spawned the 

harmless-error doctrine in the first place: ‘Reversal for error, 

regardless of its effect on the judgment, encourages litigants 

to abuse the judicial process and bestirs the public to ridicule 

it.’”) (quoting R. Traynor, The Riddle of Harmless Error 50 

(1970)); United States v. Vazquez-Rivera, 407 F.3d 476, 489-90 

(1st Cir. 2005) (describing harmless beyond a reasonable doubt 

as “an extremely difficult, but not impossible, standard to 

meet”). We have previously held that the Government’s failure 

to turn over the August 2 Discrepancy Report should be treated 

as prejudicial error where the other available evidence does not 

constitute “independent evidence of illegal drug use.” Jackson, 

59 M.J. at 335. 

There is no dispute in this case that Gonzalez made a 

specific request for documents concerning the operations and 

accuracy of the Brooks Lab. It is equally clear that the 

Government did not produce the August 2 Discrepancy Report. The 

Government’s failure to provide the Discrepancy Report violated 

Gonzalez’s right to discovery under R.C.M. 701(a)(2)(B). 
United States v. Gonzalez Jr., No. 03-0394/AF 

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Jackson, 59 M.J. at 335. Thus, there was error and the burden 

is on the Government to show that it was harmless beyond a 

reasonable doubt. 

 With respect to prejudice, this case differs from our prior 

cases due to the level and character of the independent evidence 

of illegal drug use. See Jackson, 59 M.J. at 335; see also

United States v. Israel, 60 M.J. 485, 486 (C.A.A.F. 2005). In 

addition to the positive drug test, the prosecution introduced 

independent evidence of drug use including evidence that 

Gonzalez had drug paraphernalia associated with ecstasy both in 

his car and at his work station, and that he had sucked on at 

least one of the pacifiers.4

 Gonzalez also admitted that he 

attended at least one rave party and had fliers for thirteen 

rave parties in his car. Although drug use is not a necessary 

element of a rave, the two are often linked.5 

 

4

 Pacifiers are linked to ecstasy because they alleviate the 

involuntary tightening of the jaw muscles and grinding of the 

teeth that can be caused by ecstasy use. See McClure v. 

Ashcroft, 335 F.3d 404, 407 (5th Cir. 2003). 

5

 Merriam-Webster’s Collegiate Dictionary defines a rave as “a 

large overnight dance party featuring techno music and usu[ally] 

involving the taking of mind-altering drugs.” Merriam-Webster’s 

Collegiate Dictionary 1033 (11th ed. 2004); see also Nat’l Drug 

Intelligence Center, U.S. Dep’t of Justice, Information 

Bulletin: Raves, Prod. No. 2001-L0424-004 (Apr. 2001), 

available at

http://www.prevlink.org/clearinghouse/catalog/drugs/club_drugs/r

aves.pdf (last visited Feb. 1, 2006) (“While techno music and 

light shows are essential to raves, drugs such as MDMA . . . 

[ecstasy], ketamine, GHB . . . , Rohypnol, and LSD . . . , have 

become an integral component of the rave culture.”); United 
United States v. Gonzalez Jr., No. 03-0394/AF 

10

Gonzalez also admitted to prior drug use and to possession. 

He told investigators that he innocently ingested ecstasy at a 

rave he attended and testified that he was familiar with its 

effects. The observer at Gonzalez’s drug test testified that he 

behaved oddly during the test and that he was “excited” and 

“talkative” and that “his eyes were a little glassy.” 

Additionally, Gonzalez pled guilty to possessing marijuana. 

We have taken into account the available independent 

evidence that Gonzalez used ecstasy and weighed that evidence 

against the claimed error. Although the missing Discrepancy 

Report may have raised some questions about the accuracy of the 

testing process at the Brooks Lab, we also considered that 

Gonzalez’s urine sample was subjected to four different tests, 

each of which showed positive for ecstasy use. When the missing 

report is balanced with the evidence arrayed against Gonzalez, 

the scales tip strongly in favor of Gonzalez’s conviction. 

Thus, we conclude that the Government’s error in failing to 

produce the Discrepancy Report was harmless beyond a reasonable 

doubt. 

 

States v. Price, No. ACM 33503, 2001 CCA LEXIS 103, at *10, 2001 

WL 322121, at *3 (A.F. Ct. Crim. App. Mar. 30, 2001) (defining a 

rave as “a dance or music party at which drugs are known to be 

readily available”); People v. Fitzner, No. 233210, 2002 Mich. 

App. LEXIS 1885, at *1 n.2 2002 WL 31947943, at *1 n.2 (Mich. 

Ct. App. Dec. 3, 2002) (“a ‘rave’ party is marked by dancing, 

music and drugs, often in an abandoned warehouse and typically 

‘after hours’”). 
United States v. Gonzalez Jr., No. 03-0394/AF 

11

Our finding of harmlessness is further supported by 

testimony elicited at trial concerning internal blind quality 

control error rates at the Brooks Lab. Although the August 2 

Discrepancy Report was not produced, defense counsel had 

sufficient information to attack the reliability of the 

laboratory testing process. During the cross-examination of 

Haak, defense counsel elicited testimony that approximately two 

percent of internal blind aliquots are reported as false 

positives or with other incorrect results. Thus, while the 

Government’s failure to produce the Discrepancy Report remains 

error, the evidence the defense would have introduced if it had 

the Discrepancy Report would have been to some degree cumulative 

of the overall false positive rate already in evidence. In 

addition, Gonzalez was tried by a military judge sitting alone. 

The expert testimony provided by Haak was of a type that is 

regularly considered by military judges. Accordingly, it is 

unlikely that the missing Discrepancy Report would have had a 

substantial impact on the military judge’s ruling in light of 

the four different positive test results that were also in 

evidence. 

II. Ineffective Assistance of Counsel

Servicemembers are guaranteed the right to effective 

assistance of counsel at trials by court-martial. United States 

v. Davis, 60 M.J. 469, 473 (C.A.A.F. 2005) (citing United States 
United States v. Gonzalez Jr., No. 03-0394/AF 

12

v. Knight, 53 M.J. 340, 342 (C.A.A.F. 2000)). Gonzalez alleges 

that he received ineffective assistance of counsel because his 

counsel failed to determine, based on the documents produced by 

the Government, that the August 2 Discrepancy Report existed and 

had not been produced. 

Under Strickland v. Washington, 466 U.S. 668, 687 (1984), 

Gonzalez must show both that his counsel’s performance was 

deficient and that the deficiencies were so serious as to 

deprive him of a fair trial. An appellant “who seeks to 

relitigate a trial by claiming ineffective assistance of counsel 

must surmount a very high hurdle.” United States v. Saintaude, 

61 M.J. 175, 179 (C.A.A.F. 2005) (quoting United States v. 

Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997) (quotation marks 

omitted)). There is a presumption that counsel provided 

adequate professional service. United States v. Garcia, 59 M.J. 

447, 450 (C.A.A.F. 2004). This presumption is rebutted only by 

“a showing of specific errors made by defense counsel that were 

unreasonable under prevailing professional norms.” Davis, 60 

M.J. at 473 (citing United States v. McConnell, 55 M.J. 479, 482 

(C.A.A.F. 2001)). In addition, even where counsel made an 

error, the error must have been so prejudicial “as to indicate a 

denial of a fair trial or a trial whose result is unreliable.” 

Davis, 60 M.J. at 473 (citing United States v. Dewrell, 55 M.J. 

131, 133 (C.A.A.F. 2001)). As we have previously explained, 
United States v. Gonzalez Jr., No. 03-0394/AF 

13

this court applies a three-prong test to determine if the 

presumption of competence has been overcome: 

(1) Are the allegations true; if so, “is there a 

reasonable explanation for counsel’s actions?”; 

(2) If the allegations are true, did defense counsel’s 

level of advocacy fall “measurably below the 

performance . . . [ordinarily expected] of fallible 

lawyers?”; and 

(3) If defense counsel was ineffective, is there a 

“reasonable probability that, absent the errors,” 

there would have been a different result? 

Garcia, 59 M.J. at 450 (citing United States v. Grigoruk, 56 

M.J. 304, 307 (C.A.A.F. 2002)). Where the case can be resolved 

by addressing the third prong -- the question of prejudice -- 

first, the court need not determine whether counsel’s 

performance was deficient. United States v. Quick, 59 M.J. 383, 

386 (C.A.A.F. 2004) (citing Strickland, 46 U.S. at 697). 

Applying the Grigoruk three-prong test, we find that 

Gonzalez did not receive ineffective assistance of counsel 

because there is no reasonable probability that the missing 

Discrepancy Report would have produced a different result. As 

we noted above, there was enough independent evidence that 

Gonzalez used ecstasy that the Government’s failure to turn over 

the report was harmless error. For the same reasons, we cannot 

say that if defense counsel had read all of the materials that 

were produced, drawn all reasonable inferences and conclusions 

from the materials and made further inquiry into the meaning of 
United States v. Gonzalez Jr., No. 03-0394/AF 

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the notations “BQC Unacceptable – 1” and “Technician Error – 1,” 

any additional documents that might have been produced by the 

Government would have changed the outcome of this case, 

especially in light of the fact that it was a bench trial. As 

Gonzalez has not established that his counsel’s performance 

prejudiced the outcome of his case, he has not established that 

his Sixth Amendment right to counsel was violated. 

DECISION 

The decision of the Court of Criminal Appeals for the 

United States Air Force is affirmed.