UNITED STATES, Appellee 

v. 

Patricia C. MADIGAN, Captain 

U.S. Air Force, Appellant 

No. 05-0417 

Crim. App. No. 35087 

United States Court of Appeals for the Armed Forces 

Argued January 11, 2006 

Decided May 1, 2006 

EFFRON, J., delivered the opinion of the Court, in which GIERKE, 

C.J., and CRAWFORD, BAKER, and ERDMANN, JJ., joined.

Counsel

For Appellant: Captain John S. Fredland (argued); Colonel 

Carlos L. McDade, Lieutenant Colonel Mark R. Strickland, Major 

L. Martin Powell, Major Sandra K. Whittington, and Captain 

Christopher S. Morgan (on brief). 

 

 

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

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

(on brief). 

 

Military Judge: Patrick M. Rosenow 

 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Madigan, No. 05-0417/AF 

2

Judge EFFRON delivered the opinion of the Court. 

At a general court-martial composed of a military judge 

sitting alone, appellant was convicted, pursuant to mixed pleas, 

of dereliction of duty (two specifications), wrongful use of a 

controlled substance (diazepam), wrongful possession of a 

controlled substance (hydrocodone) (two specifications), and 

uttering fraudulent prescriptions for hydrocodone (two 

specifications), in violation of Articles 92, 112a, and 123, 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 912a, 

923 (2000), respectively. The adjudged and approved sentence 

included dismissal and confinement for seven months. The Court 

of Criminal Appeals affirmed in an unpublished opinion. United 

States v. Madigan, No. ACM 35087, 2005 CCA LEXIS 69, at *10, 

2005 WL 486364, at *4 (A.F. Ct. Crim. App. Feb. 17, 2005). 

On Appellant’s petition, we granted review of the following 

issue concerning Appellant’s conviction for wrongful use of 

diazepam: 

WHETHER THE MILITARY JUDGE ERRED BY RULING 

THAT THE PURPORTED POSITIVE BLOOD LAB TEST 

FOR DIAZEPAM WAS ADMISSIBLE WHEN THE 

GOVERNMENT DENIED THE DEFENSE ACCESS TO THE 

EVIDENCE BY DESTROYING THE BLOOD SAMPLE. 

For the reasons set forth below, we affirm. 
United States v. Madigan, No. 05-0417/AF 

3

I. BACKGROUND 

Appellant, a nurse, was stationed at Lackland Air Force 

Base in Texas at the time of the charged offenses. Pursuant to 

a search warrant, the Air Force Office of Special Investigations 

(AFOSI) obtained a sample of Appellant’s blood on May 17, 1999, 

and transmitted it to the Armed Forces Institute of Pathology 

(AFIP). The validity of the search is not at issue in the 

present appeal. 

AFIP received the sample on May 20, 1999, and conducted 

five separate tests. An AFIP report, dated June 2, 1999, stated 

that Appellant’s blood sample tested positive for diazepam. At 

the conclusion of the testing process, about five milliliters of 

the sample remained intact. 

On July 14, 1999, the legal office at Lackland Air Force 

Base asked AFIP to return Appellant’s blood sample to Lackland’s 

AFOSI detachment by July 25, 1999. AFIP did not return the 

container to Lackland, although it was the normal practice of 

AFIP to return a container upon such a request. There is no 

indication in the record that the Lackland office issued a 

follow-up request or otherwise expressed concern when AFIP did 

not return the container. 

On December 8, 1999, AFIP inadvertently destroyed 

Appellant’s blood sample in the course of completing the 

scheduled destruction of negative samples. Under AFIP 
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procedures, negative samples may be destroyed six months after 

receipt. When there is a positive test result, AFIP procedures 

require retention of a blood sample for two years, and 

Department of Defense policy requires retention for one year. 

Dep’t of Defense, Instr. 1010.16, Technical Procedures for the 

Military Personnel Drug Abuse Testing Program para. E1.9.2 (Dec. 

9, 1994) [hereinafter DoD Instr. 1010.16]. The premature 

destruction of Appellant’s blood sample violated these 

requirements. 

During the following two years, drug-related charges 

preferred against Appellant were the subject of three 

investigations under Article 32, UCMJ, 10 U.S.C. § 852 (2000), 

three requests by Appellant for resignation in lieu of courtmartial, and numerous other proceedings related to the charges, 

at which Appellant was represented by counsel. There is no 

indication in the record that Appellant requested access to the 

sample or a retest during the two-year period in which AFIP was 

precluded from destroying the sample. 

In September, 2001, more than two years and three months 

after the sample was received by AFIP, defense counsel discussed 

the test with officials at AFIP. Laboratory officials informed 

defense counsel, incorrectly, that the sample had been discarded 

after two years in accordance with standard AFIP procedure. On 

November 2, 2001, trial counsel noticed an AFIP memorandum 
United States v. Madigan, No. 05-0417/AF 

5

stating that the laboratory had destroyed the sample 

inadvertently on December 8, 1999. The next day, November 3, 

2001, the prosecution turned this information over to defense 

counsel. 

On November 5, the defense moved to dismiss the diazepam 

charge on the grounds that AFIP’s destruction of the remainder 

of Appellant’s blood sample improperly denied Appellant the 

opportunity to retest critical evidence. The defense proceeded 

on the theory that the sample had been destroyed at the end of 

the two-year period following receipt, apparently overlooking 

the information about premature destruction by AFIP. In 

responding to the motion, the prosecution also did not discuss 

the evidence of destruction prior to completion of AFIP’s twoyear retention period. The military judge, who focused on the 

information provided by the parties, denied the motion on the 

grounds that there was no departure from the AFIP’s regulatory 

retention requirements. Although the military judge did not 

exclude the evidence of AFIP’s test results, he required that 

the Government stipulate that the sample had been destroyed 

before Appellant had the opportunity to obtain further testing. 

Appellant declined to contest the charge, but entered a 

conditional plea, thereby preserving the opportunity to 

challenge the military judge’s ruling on appeal. 
United States v. Madigan, No. 05-0417/AF 

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Following the conclusion of trial, defense counsel asked 

the military judge to reconsider his ruling on the motion to 

dismiss the diazepam charge, citing AFIP’s premature destruction 

of the blood sample. The military judge denied the request for 

reconsideration. 

II. DISCUSSION 

 Rule for Courts-Martial (R.C.M.) 703(f)(1) provides: “Each 

party is entitled to the production of evidence which is 

relevant and necessary.” R.C.M. 703(f)(2) governs unavailable 

evidence: 

Notwithstanding subsection (f)(1) of this 

rule, a party is not entitled to the 

production of evidence which is destroyed, 

lost, or otherwise not subject to compulsory 

process. However, if such evidence is of 

such central importance to an issue that it 

is essential to a fair trial, and if there 

is no adequate substitute for such evidence, 

the military judge shall grant a continuance 

or other relief in order to attempt to 

produce the evidence or shall abate the 

proceedings, unless the unavailability of 

the evidence is the fault of or could have 

been prevented by the requesting party. 

The issue before us involves the relationship between the 

requirements of R.C.M. 703 and applicable rules governing 

retention and destruction of drug testing samples. In United 

States v. Pollard, 27 M.J. 376, 377 (C.M.A. 1989), we stated: 

[D]eviating from a regulation or instruction 

which sets out procedures for collecting, 
United States v. Madigan, No. 05-0417/AF 

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transmitting, or testing urine samples does 

not render a sample inadmissible as a matter 

of law; however, such deviation may be 

considered along with all other factors in 

determining if the evidence lacks sufficient 

reliability to be considered by the finders 

of fact . . . . [T]he military judge may 

exclude drug-test results if he finds there 

has been a substantial violation of 

regulations intended to assure reliability 

of the testing procedures. 

Regarding AFIP’s nonresponsiveness to the request by 

Lackland’s legal office for return of the blood sample, 

Appellant notes that AFIP had a routine practice of responding 

to base-level requests for return of drug testing samples, yet 

AFIP did not respond to the request from the Lackland legal 

office. The defense had the opportunity, before and during 

trial, to explore the reasons for the Lackland request and the 

circumstances surrounding AFIP’s failure to respond, and did not 

do so. Instead, the defense chose simply to rely on the fact of 

the request and the lack of a response. There is nothing in the 

record demonstrating that the request was intended to protect 

the integrity of the evidence, or that the absence of a response 

was a matter of concern to Lackland. Under these circumstances, 

Appellant has not established that return of the sample was 

required by a regulation or procedure intended to assure the 

reliability of the testing process. 

 The premature destruction of the sample, in violation of 

AFIP procedure and DoD Instr. 1010.16, represents a more 
United States v. Madigan, No. 05-0417/AF 

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significant concern. As noted in Section I, supra, AFIP was 

required to retain the sample for one year under DoD Instr. 

1010.16 and for two years under AFIP procedure. Instead, the 

sample was destroyed after seven months. 

In United States v. Manuel, 43 M.J. 282 (C.A.A.F. 1995), 

this Court considered the implications of premature destruction 

of a drug testing sample in the context of a defense request for 

retesting. When the accused in Manuel requested a retest six 

months after the initial test, the government advised the 

defense of the inadvertent premature destruction of the sample. 

Id. at 284. The military judge denied a motion to exclude the 

test results, and the Court of Military Review reversed, citing 

noncompliance with applicable rules on retention of positive 

samples. Id. at 285-86. 

In our review of the case under certification from the 

Judge Advocate General, see Article 67(a)(2), UCMJ, 10 U.S.C. § 

867(a)(2) (1994), we agreed with the lower court that the 

applicable regulations concerning retention of drug testing 

samples conferred a right on servicemembers to discover 

evidence. Id. at 287. We added that the regulations did not 

confer on servicemembers the right to any particular remedy, and 

that there was “considerable discretion for courts to fashion a 

remedy to address any deviation from regulatory testing 

procedures.” Id. We also noted that in a case involving: 
United States v. Madigan, No. 05-0417/AF 

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gross negligence in the handling of a urine 

sample and a significant violation of 

regulations intended to insure reliability 

of testing procedures, we will not require 

an accused to make a further demonstration 

of specific prejudice before we sustain the 

remedial relief fashioned by a lower court 

in the exercise of its discretion. 

 

Id. In the course of sustaining the lower court’s exercise of 

discretion, we specifically noted that we were not deciding 

whether the lower court was required to suppress the evidence as 

a matter of law, and that we were not holding “that suppression 

is the appropriate legal remedy in all instances of lost or 

destroyed evidence.” Id. at 289. 

 Appellant has not challenged the validity of the AFIP 

procedures and DoD Instr. 1010.16 regarding scheduled 

destruction of positive samples. Indeed, Appellant relies upon 

the requirement for AFIP to retain positive samples for two 

years. In the context of the destruction of evidence under a 

regulatory schedule that is not under challenge, the Government 

is not responsible for ensuring the availability of the evidence 

after the authorized destruction date in the absence of a timely 

request for access or retention. Without such a request, the 

responsibility for the unavailability of the evidence after the 

authorized destruction date rests with the party that failed to 

make the request that could have prevented the destruction. See

R.C.M. 703(f)(2). Such circumstances eliminate the need for 
United States v. Madigan, No. 05-0417/AF 

10

analysis under R.C.M. 703(f)(2) of whether the evidence in 

question “is of such central importance to an issue that it is 

essential to a fair trial” and whether “there is no adequate 

substitute for such evidence.” 

 In the present case, the defense did not submit a timely 

request. The two-year period following receipt of the sample by 

AFIP in May 1999 was marked by multiple proceedings related to 

the charges at which Appellant was represented by counsel. The 

record contains no defense request during this entire period for 

access to, or retesting of, Appellant’s blood sample. Moreover, 

the defense was notified of disciplinary proceedings related to 

the positive drug test well in advance of the destruction of the 

sample. 

 The first indication that the defense had any interest in 

obtaining access to, or retesting Appellant’s sample, came in 

November 2001, more than two years after the sample was obtained 

and tested by AFIP. The sample was subject to authorized 

destruction two years after it was obtained, well before the 

defense request. Appellant’s later demand for the evidence fell 

outside the window of the Government’s regulatory obligation to 

retain the evidence. Under these circumstances, the premature 

destruction, which occurred after the defense was notified of 

the drug test results and disciplinary proceedings, did not 

impede defense access under the regulation. Accordingly, we 
United States v. Madigan, No. 05-0417/AF 

11

decline Appellant’s invitation to rely on the premature 

destruction as a basis for finding that the military judge erred 

in not excluding the evidence. 

 We emphasize that our decision today rests upon the facts 

and circumstances before us in this case. Different 

considerations might apply in other circumstances, such as when: 

(1) a party seeks access to, or retention of, the evidence 

within a regulatory retention period (including the period 

between any premature destruction and the end of the required 

retention period); (2) a party demonstrates that the regulatory 

retention period was so short that it did not permit a 

reasonable opportunity to request access; or (3) a party 

demonstrates that, in a particular case, the period between 

notice to the party of the test result and destruction of the 

evidence did not provide the party with reasonable time within 

which to request access to the evidence. Those circumstances 

are not before us in the present case, and we reserve judgment 

on the implications of such considerations. 

III. CONCLUSION 

 The decision of Air Force Court of Criminal Appeals is 

affirmed.