#### UNITED STATES, Appellee, v. Michael W. BUSH, Staff Sergeant, U.S. Air Force, Appellant.

No. 96-1239.

Crim.App. No. 31462.

U.S. Court of Appeals for the Armed Forces.

Argued May 14, 1997.

Decided Sept. 30, 1997.

Certiorari Denied Feb. 23,1998.

See 118 S.Ct. 1048.

Crawford, J., filed dissenting opinion.

For Appellant: *Major Kevin P. Koehler*(argued); *Lieutenant Colonel Kim L. Sheffield,*(on brief); *Colonel David W. Madsen.*

*306For Appellee: *Lieutenant Colonel Michael J. Breslin*(argued); *Colonel Theodore J. Fink*(on brief).

*Opinion of the Court*

SULLIVAN, Judge:

During July of 1994, appellant was tried by a general court-martial composed of officer members at Andrews Air Force Base, Maryland. Contrary to his pleas, he was found guilty of dereliction of duty by failure to provide a urine sample; and wrongfully using cocaine, in violation of Articles 92 and 112a, Uniform Code of Military Justice, 10 USC §§ 892 and 912a, respectively. He was sentenced to a bad-conduct discharge, 45 days’ confinement, and reduction in rank to E-l. On January 13, 1995, the convening authority approved the sentence. On June 13, 1996, the Court of Criminal Appeals affirmed. 44 MJ 646.

On January 9, 1997, this Court granted review on the following questions of law:

> I

> WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY DENYING THE DEFENSE MOTION TO SUPPRESS EVIDENCE OBTAINED AS A RESULT OF AN IMPROPER SEIZURE OF APPELLANT’S HAIR, SINCE OMISSION OF INFORMATION FROM THE AFFIDAVIT TO THE MAGISTRATE UNDERMINED THE MAGISTRATE’S FINDING OF PROBABLE CAUSE TO SEIZE THE HAIR.

> II

> WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY DENYING THE DEFENSE MOTION TO DISALLOW INTRODUCTION OF TESTIMONY CONCERNING THE RESULTS OF THE HAIR ANALYSIS TEST CONDUCTED ON APPELLANT’S HAIR, SINCE THE TEST WAS NOT A RELIABLE PROCEDURE AS IMPLEMENTED.

We hold that the military judge did not legally err by admitting hair-analysis evidence in this case. *See generally Ornelas v. United States,*517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); *United States v. Nimmer,*43 MJ 252 (1995).

The Court of Criminal Appeals found the following facts pertinent to this appeal:

> On November 15, 1993, appellant was selected to provide a sample for a random drug urinalysis. He showed up at the base theater, as he was directed to do. Thereafter, accompanied by Technical Sergeant (TSgt) Robichaud, the observer, appellant took the sample bottle to the men’s room to provide a specimen. A number of irregularities, the significance of which was not then appreciated, ensued. Appellant elected to use a stall, rather than a urinal, complicating Robichaud’s observation. He continued to wear his field jacket, and had to be directed by Robichaud to turn slightly so that Robichaud could see him urinate. Even then, as Robichaud later admitted, appellant was positioned in such a way that he did not actually see if appellant urinated, but only that liquid appeared to be filling the bottle. Robichaud, and subsequently the urinalysis monitor, remarked on the clarity of the specimen. However, when asked, appellant explained that he had been drinking a great deal of fluid, and the matter passed. The specimen bottle, which had not left appellant’s possession from the time he was given it until he gave it back to the urinalysis monitor, was duly logged, initialed, signed, taped, secured, and mailed to the Armstrong Laboratory at Brooks Air Force Base (AFB) for testing. Once there, one of the laboratory technicians observed that the specimen was colorless, odorless, and did not foam when shaken.

> She suspected that a false or adulterated sample had been provided. When a field test indicated that the specimen was not urine, she sent it to Wilford Hall Medical Center, which confirmed that the specimen was not urine, but some sort of saline solution.

*307Over defense objection, the government introduced evidence that appellant, a medical technician assigned to the Malcolm Grow Medical Center on Andrews Air Force Base (AFB), had access to intravenous bags containing saline solution, along with surgical tubing and a thumbscrew to control flow from the bags. As well, testimony indicated that appellant was capable of reverse self-catheterizing, replacing the urine in his bladder with a saline solution. Regardless of the specific mechanism employed, it is clear that appellant did not provide a genuine urine specimen as he was required to do.

On learning of the discrepancy in early December, the base looked into the possibility of testing appellant’s hair for the presence of drugs. Special Agent (SA) Toni, of the Air Force Office of Special Investigations (AFOSI), contacted the FBI’s forensics laboratory, and was advised that the technology existed to test hair based upon the same biomedical and scientific principles as urinalysis. The advantage, he learned, was that hair potentially would continue to show the presence of cocaine for a period of months after ingestion. The FBI agreed to perform the tests. Using an example borrowed for the AFOSI at Langley AFB, Virginia, SA Toni then prepared an affidavit, stating in pertinent part as follows:

> 4____As a result of your affiant’s training and information gathered from the Federal Bureau of Investigation (FBI) forensics laboratory, and the Brooks AFB forensics laboratory, your affiant believes trace amounts of drugs may be trapped in the cortex of BUSH’s hail [sic] follicles and in his urine. This is based on the following:

> a. As blood circulates through the body, it nourishes the hair follicle. If there are drugs in the blood, trace amounts of the drug become entrapped in the core of the hair in amounts roughly proportional to those ingested. These cannot be washed or flushed out, and do not diminish with time. Urine tests can only determine if drugs have been used within the few days prior to providing a sample, however, hair analysis can detect the use of drugs for months, depending on the length of the hair sample.

> b. Hair analysis is not subject to false negatives due to temporary abstention or excessive fluid intake. Hair records drug use in a chronological manner and in proportion to the amount consumed. The FBI laboratory can distinguish between heavy, medium, and light drug users.

> 5. If drug metabolites are present in BUSH’s hairs, at a level in excess of 3 ng/mg of hair, it would indicate repeated use of drugs.

> 6. Based on all the information provided above, your affiant requests authorization to seize approximately 100 hairs and a urine sample from the body of SSgt MICHAEL W. BUSH.

> The search authority, Colonel Moore, swore SA Toni to the affidavit and granted authority to seize “approximately, 100 hairs,” but did not authorize seizure of appellant’s urine. Pursuant to that authority, approximately 100 hairs were cut from the crown of appellant’s head. Although never precisely measured, there was a general consensus that appellant’s hair was “quite short,” and that the hairs measured approximately % inch in length. Observing the same chain of custody procedures employed in urinalysis drug testing, the hairs were placed into a bottle, sealed, and sent to the FBI laboratory. By letter of February 28, 1994, the FBI reported that the specimens contained “cocaine and its metabolite, benzoylecgo-nine at concentrations of 17 and 2.7 na-nograms per milligram of hair, respectively.”2

> Based upon this evidence, a general court-martial consisting of members convicted appellant, contrary to his pleas, of dereliction of duty for failure to provide a urine specimen on November 15, 1993, and use of cocaine between on or about *308November 15, 1993, and January 12, 1994....

I

The first question in this case is whether the military judge erroneously denied the defense motion to suppress the Government’s evidence of hair analysis because the tested hair was unlawfully seized from appellant. *See generally*Mil.R.Evid. 311(a), Manual for Courts-Martial, United States, 1984. Appellant initially asserts that his hair at the time of its seizure was too short to show drug use at the time he was suspected of using it. Accordingly, he argues that neither the investigating AFOSI agent nor the commander ordering the seizure of his hair could possibly have probable cause to believe evidence of that drug use would still be in his hair. *See generally United States v. Poole,*30 MJ 271, 275 (CMA 1990) (probable cause may evaporate with the passage of time). He also asserts that the commander who ordered his hair seized on January 12, 1994, was deliberately or recklessly denied material information that would have dissuaded him from ordering that probable-cause seizure. *See generally Franks v. Delaware,*438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). He contends that the investigating officer should have particularly informed the commander that his hair’s length as of January 12th, the date of the expected seizure, was scientifically insufficient to determine cocaine use on or about November 15,1993.

Initially, we note that the record does not support appellant’s assertion that probable cause had evaporated because his hair was only {(-inch long on January 12,1994. In fact, the agent testified that he did not know “exactly how long” appellant’s head hair or pubic hair was on January 12, 1994. He estimated that “[i]t would have been at least a half inch. It was probably a half inch to an inch” at the time it was seized. The fact that the hair sample seized was {(-inch long does not undermine the investigator’s and the commander’s practical judgment that a relevant hair sample could still be seized from appellant. *See generally Ornelas,*517 U.S. at 695, 116 S.Ct. at 1661 (probable cause not legally technical determination but practicable one).

The initial premise of appellant’s second argument is that the investigating police officer was frilly aware of the scientific principles upon which hair analysis was based but “deliberately or recklessly” failed to explain those principles to the commander. In addition, he notes that the police investigator did not tell the commander that hair grows ( inch per month and at least 1-inch hair would be required on January 12, 1994, to determine whether appellant used drugs on or about November 15, 1993. He notes further that the police investigator failed to inform the commander that appellant’s hair on January 12, 1994, was only {(-inch long and would only show drug use on or after December 12, 1993. He contends deliberate deception or reckless disregard for the truth existed in this case, not mere negligence. *See Franks, supra*at 170, 98 S.Ct. at 2683-84.

We note that the investigating officer in his supporting affidavit did provide a basic explanation of the scientific principles of hair analysis to the commander. Moreover, he specifically advised the commander:

> Urine tests can only determine if drugs have been used within the few days prior to providing a sample, however, hair analysis can detect the use of drugs for months, depending on the length of the hair sample.

Finally, although he admitted that he was aware of the {(-inch rule at the time of applying for the search authorization, he asserted *309that he understood that the hair sample could be taken from the head, pubic area, or other part of the body. In this context, appellant’s deliberate-or-reckless-omission argument is not well taken. *See generally United States v. Figueroa,*35 MJ 54, 57 (CMA 1992); *United States v. Colkley,*899 F.2d 297, 301 (4th Cir.1990).

This is not a case in which the probable-cause determination required precise mathematical measurements implementing a specific scientific formula. As noted in the findings of fact by the military judge, Agent Toni’s guidance from the FBI was rather general in nature:

> The FBI instructed Agent Toni to obtain the longest hair possible, to cut the hair at the base of the scalp. Agent Toni was not told to obtain a certain or minimum length of hair. The FBI told Agent Toni that hair grows approximately one half inch per month and that drugs could possibly remain in the hair for a period as long as three months, depending on the length of hair sample seized and the growth rate.

Moreover, according to the findings of fact by the military judge, after Agent Toni obtained the search warrant—

> Agent Toni subsequently seized about 100 hair samples from the scalp of the accused. The hair was difficult to measure and a measure was not taken after it was cut, because the hair was matted and curly. To the best estimate of Agent Toni, the hair was at least one half inch long to about an inch.

Under these circumstances and in light of the circumstances surrounding the urinalysis which gave rise to the request for a search authorization, it was reasonable for Agent Toni to proceed under the search authorization without applying a precise mathematical limitation to the length of the hair obtained from appellant.

II

Appellant’s basic argument on the second granted issue is that evidence of mass-spectrometry hair analysis was unlawfully admitted at his court-martial to establish his guilt of using cocaine. Citing the decision of the Navy-Marine Corps Court of Military Review* in *United States v. Nimmer,*39 MJ 924 (1994), he argues in his 1997 Final Brief to this Court at 17-18, 24, that such evidence is *per se*inadmissible under Mil.R.Evid. 702. Citing the decision of the Army Court of Criminal Appeals in *United States v. Hill,*41 MJ 596 (1994), he contends such evidence is not admissible as the sole proof of drug use at a court-martial. Finally, citing the landmark decision of the Supreme Court in *Daubert v. Merrell Dow Pharmaceuticals, Inc.,*509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), He avers that the military judge abused his discretion in admitting this evidence for the first time in any court in our country.

Appellant first asserts that this Court should decide the question of admissibility of hair-analysis evidence *“de novo*” and ensure “uniform precedent within the federal system regarding the reliability of particular scientific techniques____” Final Brief at 18. He also cites the *Nimmer*decision of the Navy-Marine Corps Court of Military Review and implies that we should follow that court’s rejection of hair-analysis evidence (“it lacks the necessary scientific underpinning to reliably be able to detect a one-time use of cocaine____” 39 MJ at 928). Final Brief at 17-18. We reject appellant’s invitation to establish a *per se*rule precluding admission of evidence of hair analysis at courts-martial.

The obvious answer to appellant’s argument in his 1997 brief is the decision of this Court in *United States v. Nimmer,*43 MJ 252 (1995). There, this Court set aside the decision of the service appellate court in *Nimmer*and remanded that case for a hearing on admissibility of hair-analysis testimony in light of *Daubert v. Merrell Dow Pharmaceuticals, Inc., supra.*The *Nimmer*decision- relied on by appellant, therefore, has no precedential value, so there is no reason to follow it in this case, especially where a proper Daubert-type hearing has been held. In addition, we note that Congress has not provided that this Court make *310*“de novo”*admissibility determinations on different types of scientific evidence without regard for evidence of record and a military judge’s ruling under Mil.R.Evid. 702. *See United States v. Beasley,*102 F.3d 1440, 1445 (8th Cir.1996) (Absent judicial notice of reliability of scientific knowledge, *Daubert*hearing will be held.).

We next turn to appellant’s argument that hair-analysis evidence is inadmissible if it is used as the sole test to determine cocaine use. Appellant notes evidence in the record that the scientific community only considers hair analysis reliable to corroborate or confirm other evidence of cocaine use. He then cites the Army Court of Criminal Appeals decision in *United States v. Hill, supra,*as generally holding that confirmatory testing evidence is inadmissible at courts-martial if no other evidence shows drug use. Finally, he avers that no other evidence of drug use was admitted in his case and, therefore, the military judge legally erred in admitting the hair-analysis evidence of the Government.

We reject this legal argument for several reasons. First, the Army Court of Criminal Appeals in *United States v. Hill, supra,*addressed the particular question of admissibility of luminol testing to detect human blood, not hair analysis to detect cocaine or its metabolites. The evidence supporting admission of hair-analysis evidence presented in this case was not before that court, so its decision cannot be considered dispositive of this different question of law. Second, appellant has cited no statute, evidentiary rule, or case law which requires a court to defer to the scientific community’s labeling of a test as “confirmatory.” We agree with the military judge that Mil.R.Evid. 702 and *Daubert v. Merrell Dow Pharmaceuticals, Inc., supra,*give a military judge broad discretion to regulate admission of scientific evidence at courts-martial with due regard for the advisory opinions of the scientific community. *See United States v. Gipson,*24 MJ 246, 252 (CMA 1987). Finally, we agree with the Court of Criminal Appeals in this case that other evidence of drug use was admitted which the hair-analysis evidence corroborated. In particular, the appellate court below noted that evidence was admitted that appellant surreptitiously substituted a saline solution for a mine sample on November 15, 1993. *See generally 2*Wigmore, *Evidence*§ 276 (Chadbourn rev.1979).

Appellant finally attacks the decision of the military judge admitting the hair-analysis evidence as an abuse of his discretion provided in Mil.R.Evid. 702. *See generally United States v. Houser,*36 MJ 392, 397 (CMA 1993) (to establish abuse of discretion, “appellant must come ‘forward with conclusive argument’ ”). He contends that proper application of the *Daubert*factors to the evidence in his case would lead to the conclusion that hair-analysis evidence is unreliable and inadmissible. These arguments are essentially the same arguments presented to the military judge at trial to prevent admission of the challenged evidence.

The Eighth Circuit in *Beasley,*102 F.3d at 1447, recently commented on this type of appellate argument:

> In this appeal, Oliver Beasley reasserts his claim that PCR testing does not meet the *Daubert*standard of reliability. He fails, however, to support this claim with any fact-based arguments designed to convince us that any of the District Court’s findings concerning the reliability of PCR testing are clearly erroneous. Moreover, he does not contend (nor could he plausibly do so) that the District Court failed to follow the method that *Daubert*prescribes for the judicial assessment of the admissibility of scientific evidence. Instead, in his brief he merely incorporates by reference the arguments found in his trial counsel’s memorandum in support of the motion to exclude the government’s DNA evidence. We reject these arguments. First, they are not properly before us; a litigant cannot make arguments on appeal by incorporating by reference into his appellate brief arguments made in written submissions to the trial court. *See*8th Cir. R. 28A(j); *Sidebottom v. Delo,*46 F.3d 744, 750 n. 3 (8th Cir.), *cert. denied,*— U.S.-, 116 S.Ct. 144, 133 L.Ed.2d 90 (1995). Second, even if these arguments were properly before us, they are not geared to the stan*311dard of review, the dear-error standard, that governs our consideration of alleged errors in the trial court’s fact-finding. *See*Fed.R.Civ.P. 52(a); *Anderson v. City of Bessemer City,*470 U.S. 564, 573-75, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985). These arguments thus would be of no assistance to Beasley in persuading us that the District Court’s reliability finding regarding the science of PCR testing is clearly erroneous.

We generally agree with the Eighth Circuit that an appellate court of law is not an appropriate place to relitigate a motion to admit expert testimony under Mil.R.Evid. 702. Therefore, we again reject appellant’s invitation to determine *de novo*the reliability of the hair analysis admitted by the judge in this case. *See United States v. St. Jean,*45 MJ 435, 444 (1996) (recognizing abuse-of-discretion standard). As noted by the First Circuit in *United States v. Gonzalez-Maldonado,*115 F.3d 9, 15 (1997), a judge’s decision on admissibility “is entitled to great deference” and an appellate court “will reverse ... [his] decision on this question only if (1) the ... [trial judge] based the decision on an incorrect legal standard, or (2) we have a definite and firm conviction that the ... [judge] made a clear error of judgment in the conclusion ... [he] reached based on a weighing of the relevant factors.” (Internal quotation marks omitted.) *See generally United States v. Houser, supra*(conclusive argument of error).

Turning to appellant’s brief, we note that he does not aver that the military judge relied on an incorrect principle of law in deciding to admit the challenged hair-analysis evidence. *See generally United States v. Rouse,*100 F.3d 560, 568 (8th Cir.1996). In *United States v. Nimmer,*43 MJ 252, we remanded the case for a hearing because the military judge did not have the benefit of the *Daubert*decision in determining that hair analysis was inadmissible. Here, individual defense counsel herself called the military judge’s attention to the *Daubert*decision, and the military judge expressly referred to it in his written decision. Accordingly, our sole concern in this case is whether appellant has made a conclusive argument that the military judge made a clear error in this case. We are not so persuaded.

Appellant argues that the military judge made a clear error in judgment in determining from the evidence presented in this case that *Daubert*factors show reliable scientific knowledge was established in this case. He notes the *Daubert*factors and states: “[T]he expert testimony in the present case fails to meet the criteria of even one of these factors.” Final Brief at 19. He then cites evidence of record supporting his arguments on the individual factors and concludes that a finding of reliability was not justified in this case.

In particular, appellant first contends that there was overwhelming evidence presented in this case that mass-spectrometry hair analysis was an untested procedure in detecting drug use. He also contends that there was insufficient evidence of peer review and publication because the only article reviewing the technique was written by the FBI laboratory who performed the test. He also avers that there was no evidence admitted showing an error rate for the hair-analysis procedure performed in this case. Finally, he asserts that there was “insufficient and incomplete documentation of the procedures” (Final Brief at 31) of hair analysis used in this case.

The Government delineates in particular detail in its Answer to Final Brief the substantial evidence presented by the prosecution on each of the above *Daubert*factors. We agree with its reading of the record. Admittedly, there was disagreement between the experts presented by the parties with respect to some of the *Daubert*considerations. Nevertheless, we concur with the intermediate appellate court’s conclusion that these disputes do not dictate that the evidence of hair analysis be excluded. It said:

> That experts might dispute some particularities of the testing protocol or suggest ways that it could have been improved, or that different controls might be used, or that SOFT [Society of Forensic Toxicologists] might harbor policy concerns about the feasibility of hair analysis for workplace testing, or deem it prudent to have *312independent corroboration of hair analysis, [sic] even considered in the aggregate, are insufficient bases upon which to exclude the results. A vigorous forensic dialogue between both experts was aptly engaged before the triers of fact, who ultimately decided that Dr. Goldberger’s reservations about and disagreements with Dr. Donnelly’s conclusions were insufficient to raise a reasonable doubt that appellant had used cocaine. *U.S. v. Thomas,*43 MJ [626,] at 633 [ (A.F.Ct.Crim.App.1995) ]. Thus, we hold the military judge did not abuse his discretion in denying appellant’s motion in limine and permitting qualitative and quantitative analysis of appellant’s hair to go before the court members.

44 MJ at 652 (footnote omitted). In these circumstances, we have no firm and definite conviction that the military judge erred in determining that the proffered hair-analysis evidence was reliable and relevant in appellant’s case. (The detailed ruling of the military judge on admissibility is attached as an appendix.)

CONCLUSION

In summary, we conclude that the evidence of mass-spectrometry hair analysis proffered in this ease was admissible because the hairs analyzed were lawfully seized from appellant with probable cause. *See Ornelas v. United States, supra*(probable cause should be practically, not technically applied). In addition, we conclude that the military judge did not abuse the discretion provided to him under Mil.R.Evid. 702, when based on the record before him, he admitted evidence of hair analysis in this case. *See generally United States v. Nimmer,*43 MJ 252 (CMA 1995). Such a decision is not unprecedented in Federal law. *See United States v. Medina,*749 F.Supp. 59 (E.D.N.Y.1990).

As a postscript, there is some irony to be noted in this case. For years, the military has used urinalysis to prove drug use. *See generally United States v. Ford,*23 MJ 331 (CMA 1987); *United States v. Murphy,*23 MJ 310 (CMA 1987); *United States v. Harper,*22 MJ 157 (CMA 1986). In this case, Staff Sergeant Bush thwarted a urinalysis by surreptitiously substituting a saline solution for a urine sample. The Government now has seized his hair and, by due process, proved drug use. This may be the first drug-use conviction by hair analysis, and it is ironic that Sergeant Bush had a hand in making the Government break new ground in drug detection to catch him.

The decision of the United States Air Force Court of Criminal Appeals is affirmed.

Chief Judge COX and Judges GIERKE and EFFRON concur.

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2

UnIike urinalysis, where principally metabolized cocaine (benzoylecgonine) is excreted in urine, unmetabolized cocaine is typically found in hair in five times the amount of its metabolite. According to the testimony of Dr. Donnelly, the government's expert, the 5-1 ratio is typical of actual ingestion, and indeed, "almost precludes any possibility of external contamination.” External contamination would yield a much higher ratio. This datum proved significant in the trial itself, as appellant repeatedly suggested that the hair sample might have become contaminated through some kind of passive exposure.

44 MJ at 647-48 (footnote 1 omitted).

*

*See*41 MJ 213, 229 n.* (1994).