UNITED STATES, Appellee 

v. 

Harley T. LUSK, Staff Sergeant 

U.S. Air Force, Appellant 

No. 11-0166 

Crim. App. No. S31624 

United States Court of Appeals for the Armed Forces

Argued April 7, 2011 

Decided August 24, 2011 

PER CURIAM 

Counsel

For Appellant: Captain Phillip T. Korman (argued); Colonel Eric 

N. Eklund and Lieutenant Colonel Gail E. Crawford (on brief); 

Dwight Sullivan, Esq. 

For Appellee: Major Jamie L. Mendelson (argued); Colonel Don M. 

Christensen and Gerald R. Bruce, Esq. (on brief). 

Amicus Curiae for Appellant: Greg Young (law student) (argued); 

George Fisher (supervising attorney) (on brief) -- Stanford 

University School of Law. 

Military Judge: David S. Castro 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Lusk, No. 11-0166/AF 

2

PER CURIAM: 

 Contrary to his pleas, a special court-martial composed of 

officer members convicted Appellant of one specification of 

wrongful use of cocaine in violation of Article 112a, Uniform 

Code of Military Justice, 10 U.S.C. § 912a (2006). The sentence 

adjudged by the court-martial and approved by the convening 

authority included a bad-conduct discharge and reduction to the 

lowest enlisted grade. The United States Air Force Court of 

Criminal Appeals affirmed. United States v. Lusk, No. ACM 

S31624, 2010 CCA LEXIS 367, 2010 WL 4068922 (A.F. Ct. Crim. App. 

Oct. 14, 2010) We granted review to consider issues relating to 

the admissibility of information from a drug testing laboratory 

and related testimony of an expert witness. United States v. 

Lusk, 69 M.J. 481-82 (C.A.A.F. 2011) (order); id. at 483 (order 

granting additional specified issue).1

I 

 Appellant, upon request, provided a urine sample during a 

unit inspection. The Government subjected the sample to two 

different tests. The first test, conducted by the Air Force 

Drug Testing Laboratory (AFDTL), yielded a positive result, as 

 

1 We heard oral argument in this case at the Stanford University 

School of Law, Stanford, California, as part of the Court’s 

“Project Outreach.” This practice was developed as a public 

awareness program to demonstrate the operation of a federal 

court of appeals and the military justice system. 
United States v. Lusk, No. 11-0166/AF 

3

documented in a report issued by the laboratory. The second 

test, conducted by the Armed Force Institute of Pathology (AFIP) 

in response to a request by trial counsel for a retest by a 

different laboratory, also yielded a positive result. The 

report issued by the institute included variety of items, 

including a cover memorandum summarizing the positive test 

results. The cover memorandum bore the names of Barry Levine, 

the Director of the Forensic Toxicology Laboratory, and John F. 

Jemionek, Certifying Scientist. Neither Levine nor Jemionek 

testified at Appellant’s trial. 

 The prosecution introduced into evidence the AFDTL report 

of the first test without objection by the defense. The defense 

moved to exclude the AFIP report of the second test prior to 

entering Appellant’s plea. 

 The military judge granted the defense motion to exclude 

the AFIP report of the second test on the grounds that the 

second report contained testimonial hearsay. As such, the 

military judge concluded that introduction of the AFIP report of 

the second test, without testimony by the individual who 

prepared the report, would deny the defense the right of 

confrontation guaranteed by the Sixth Amendment, citing United 

States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008) (applying 

Crawford v. Washington, 541 U.S. 36 (2004), to the military 

justice system). The military judge reserved the question of 
United States v. Lusk, No. 11-0166/AF 

4

whether the prosecution could introduce the AFIP report of the 

second test into evidence later in the proceedings in the event 

that the defense opened the door to rebuttal. 

 In addition to the AFDTL report of the first test, the 

prosecution relied on the testimony of an expert in forensic 

toxicology, Dr. Smith, who testified as to the reliability of 

the AFDTL results. Citing the AFDTL report of the first test, 

Dr. Smith testified that the results of the first test showed 

that Appellant’s urine specimen tested positive for the 

metabolite of cocaine. 

 The defense undertook an extensive cross-examination of Dr. 

Smith, challenging the validity of the first test by raising 

numerous questions about the reliability of testing by the 

AFDTL. At the prosecution’s request, the military judge then 

considered whether the prosecution could rebut the defense 

attack on the reliability of the laboratory by asking Dr. Smith 

about the details the AFIP report of the second test as a basis 

for his expert testimony about the reliability of the first 

test. The defense objected on the grounds that to allow 

testimony based on the second test would allow the prosecution 

to rely improperly on inadmissible hearsay. 

 The military judge ruled that the prosecution could ask the 

expert witness about the basis of his expert testimony under 

M.R.E. 703 in light of the questions raised by the defense about 
United States v. Lusk, No. 11-0166/AF 

5

the reliability of the laboratory. The military judge then 

emphasized the limited scope of his ruling, noting that “I am 

still not going to allow the AFIP report [into evidence].” In 

that regard, he cited concerns about “testimonial hearsay” and 

reiterated that AFIP report of the second test “will not come 

in.” He further noted that the expert’s testimony about 

specific testing levels in the second test conducted by AFIP 

would not be more prejudicial than probative under M.R.E. 403 

because such testimony would be consistent with the position of 

both parties. He reiterated that he would not allow the AFIP 

report of the second test into evidence, but would allow the 

expert “to testify in a limited fashion that [the AFIP report of 

the second test] is part of his reaching his conclusions about 

the reliability of the lab and the report that he did consider 

[included] a confirmatory test that was conducted by AFIP and 

that was part of the basis for his opinion.” He added that 

testimony about the report of the second test conducted by AFIP 

“falls within [M.R.E.] 703, that is something that he clearly 

considered and that is what he testified to and that is what I’m 

going to allow.” 

 At that point, the trial counsel asked the military judge 

whether the prosecution would be allowed to ask the expert 

witness on redirect examination about the specific numerical 

results in the AFIP report of the second test. The military 
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judge responded that he would allow the expert to testify that 

“he considered a second test, which was a confirmatory test 

conducted by AFIP.” He added that he would then “need to craft 

an instruction that they [the panel members] are not to consider 

that for the truth of the matter asserted but rather for the 

manner in which the expert witness went about reaching his 

conclusion which he is allowed to do under [the] Military Rules 

[of] Evidence.” 

 Trial counsel inquired into the consequences of questions 

about the numerical results, asking whether questions by the 

prosecution about the numerical results would open an 

opportunity for the defense to ask on cross-examination about 

the entire AFIP report of the second test. The military judge 

responded that if “the defense chooses to cross-examine in a 

limited fashion then that is what you are stuck with.” He added 

that if “the defense chooses to conduct an extensive crossexamination then clearly that would open up more issues for you 

on redirect.” 

 Defense counsel sought to clarify the relationship between 

the scope of cross-examination as to the basis for an expert’s 

opinion and the scope of cross-examination that might result in 

introduction of substantive evidence on the merits. Defense 

counsel contended that the AFIP report on the second test 

contained testimonial hearsay, and that the breadth of his 
United States v. Lusk, No. 11-0166/AF 

7

cross-examination as to the AFIP report of the second test, in 

terms of the basis for the expert testimony, would waive “the 

requirement from the court that the government lay the proper 

foundation of Crawford to get the [report] submitted.” 

 Trial counsel then agreed with the general principle that 

information relied upon by an expert as the basis for his 

opinion under M.R.E. 703 could include evidence that is 

otherwise inadmissible, adding that “the government would have 

no objection to [the defense] cross examining on the report 

without admitting it.” The military judge added: “I do not 

think that that is going to trigger the admission of that 

document, [and] I will tell you that I am just inclined to 

continue to keep their report out.” Trial counsel responded: 

“The government agrees, your Honor.” 

 When the proceedings before the members resumed, the 

prosecution asked Dr. Smith for his opinion as to the 

reliability of the first test conducted by AFDTL. Dr. Smith 

responded: “Yes, that was a reliable result.” The prosecution 

followed up by asking whether the first test conducted at the 

AFDTL provided “the only basis for your opinion that the drug 

test was reliable and that drug testing report?” Dr. Smith 

responded that he “had other information,” noting that the 

“Armed Forces Institute of Pathology where I work also tested a 
United States v. Lusk, No. 11-0166/AF 

8

portion of that specimen.” He added that “[i]t was a 

confirmation test, it was a GCMS test.” 

 After establishing that the expert had relied on the second 

test, which had been conducted by AFIP, the prosecution asked 

the expert if he recalled the result of the second test. Dr. 

Smith responded: “Yes, it showed the presence of 

benzoylecgonine” -- the major metabolite of cocaine. 

 Defense counsel then conducted a detailed cross-examination 

of Dr. Smith, including examination into Dr. Smith’s reliance on 

the AFIP report on the second test regarding the presence of 

benzoylecgonine. Without introducing the AFIP report into 

evidence, defense counsel cross-examined the expert about the 

basis for his reliance on the second test in view of the numerical 

results. In particular, defense counsel brought out that 

although the second test showed the presence of benzoylecgonine, 

the numerical value was below the cut-off level established by 

the Department of Defense to show the presence of cocaine. Dr. 

Smith responded: “Yes, but for a retest we don’t have to be 

over the cut off. We just have to be able to detect and 

identify the compound.” On redirect, the trial counsel asked 

the expert to explain the discrepancy between the numerical 

results of the first and second tests, and the expert noted both 

the possibility of deterioration over time and the fact that the 
United States v. Lusk, No. 11-0166/AF 

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Department of Defense did not require a retest to meet the cutoff levels of an initial test. 

 After the parties concluded the presentation of evidence on 

the merits, the military judge discussed instructions with 

counsel. Although not requested to do so by either party, the 

military judge decided to not give a limiting instruction 

regarding the manner in which the members could consider the 

second test performed by AFIP. The military judge recalled that 

he had earlier said that he “was going to instruct them [the 

members] that they are basically [to] just consider that for the 

purposes of how he came to this conclusion and [the] basis for 

his opinion.” He then said: 

After the extensive direct examination, 

cross examination and extensive questioning 

by the members I am inclined not to give 

that instruction because it is out there on 

the table for them now so, does that make 

sense? 

We have gone so far down the path . . . . At 

this point, we had relatively extensive 

direct examination and cross examination. I 

think the results from AFIP and their 

processes are pretty much before the court. 

I can’t put the genie back in the bottle in 

light of counsel. 

The trial counsel responded: “It’s hard to put the toothpaste 

back in the tube . . . . The government has no issue with that.” 

 Defense counsel responded by objecting that “it is still 

hearsay that you relied upon, it is testimonial hearsay and the 
United States v. Lusk, No. 11-0166/AF 

10

evidence was not introduced before the members.” The military 

judge responded that “the evidence is in front of the members 

through his additional testimony so, I will review it and I will 

consider it but I am likely just going to delete that from the 

instructions.” As a result, the military judge declined to give 

a limiting instruction regarding the AFIP report on the second 

test -- the report that had been relied upon the expert but 

which had not been introduced into evidence. 

 The prosecution’s closing argument discussed the testimony 

of the expert witness, the details of the two test results, and 

the reliability of the test results. The prosecution treated 

the reports of both tests as if the report of the second test 

had been introduced into evidence, arguing that “for you to 

believe that this test is not reliable and that it does not meet 

the beyond a reasonable doubt standard you would have to 

essentially expect that lightning struck twice for [Appellant].” 

The prosecution further stated that “you can rely on the result 

for several reasons: . . . number two, [the expert witness] also 

testified that he didn’t just rely on the first drug test 

report; there was another test out there that confirmed it.” 

II 

 In United States v. Neeley, 25 M.J. 105, 107 (C.M.A. 1987), 

we observed that “the military judge should give a limiting 
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instruction concerning the appropriate use of [inadmissible 

evidence relied upon for the basis of the expert opinion].” See

M.R.E. 105 (“When evidence which . . . is . . . not admissible . 

. . for another purpose is admitted, the military judge . . . 

shall restrict the evidence to its proper scope and instruct the 

members accordingly.”); United States v. Affleck, 776 F.2d 1451 

(10th Cir. 1985); United States v. Sims, 514 F.2d 147, 149–50 

(9th Cir.), cert. denied, 423 U.S. 845 (1975) (when “such 

evidence” is admitted, it “becomes necessary for the court to” 

give a limiting instruction to the jury). Importantly, such 

instructions can ensure that the testimony is not transformed 

from evidence introduced for the limited purpose of showing what 

the expert witness relied upon into substantive evidence 

introduced for the purpose of establishing a truth of the 

matter, particularly in view of the potential that the latter 

case could raise constitutional issues under the Confrontation 

Clause of the Sixth Amendment. See United States v. Blazier, 69 

M.J. 218, 224 (C.A.A.F. 2010). Limiting instructions are 

particularly important when evidence that is inadmissible, or 

admissible for only a limited purpose, involves a discrete fact 

or set of facts. See Adamson v. Cathel, 633 F.3d 248, 256 (3d 

Cir. 2011). Here, although the military judge initially 

recognized his obligation to provide such instructions, he 

ultimately declined to do so. His failure to do so was 
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compounded by trial counsel’s reliance on testimony regarding 

the AFIP retest as substantive evidence during his closing 

arguments. 

 In Neeley, we held that the failure to give such an 

instruction sua sponte did not constitute plain error. In the 

present case defense counsel objected, and specifically noted 

that the report of the second test had not been introduced into 

evidence. The military judge declined to give the instruction, 

apparently because he believed that the instruction would have 

no impact on the members. We see no reason, however, to believe 

that members would be any less willing to consider an 

instruction on the limited nature of the testimony in this case 

than in any other case involving limited permissible use. See

Richardson v. Marsh, 481 U.S. 200, 211 (1987) (“The rule that 

juries are presumed to follow their instructions is a pragmatic 

one, rooted less in 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.”). Moreover, had the 

military judge made it clear that he would give the instruction, 

he would have provided a clear signal to the prosecution that it 

could not make affirmative use of information not introduced 

into evidence. 
United States v. Lusk, No. 11-0166/AF 

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III 

 The Court of Criminal Appeals concluded that the military 

judge erred in failing to give the instruction, but concluded 

that the error was harmless. The court, however, did not 

consider whether the failure to limit the use of the information 

from the AFIP report’s cover memorandum, and reliance upon that 

evidence by the prosecution, resulted in a conviction based upon 

inadmissible testimonial hearsay in violation of the 

Confrontation Clause. Given the fact-intensive nature of the 

interrelationship among the instructional matters, the 

Confrontation Clause aspects of the second test, and 

considerations of prejudice, this case warrants a new review by 

the Court of Criminal Appeals. See Blazier, 69 M.J. at 227 

(remanding in view of testimony by an expert witness who 

repeated the contents of an inadmissible cover memorandum). 

 The decision of the United States Air Force Court of 

Criminal Appeals is set aside. The record of trial is returned 

to the Judge Advocate General of the Air Force for remand to 

that court for review consistent with this opinion.