CORRECTED COPY 

UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

LIND, KRAUSS1, and PENLAND 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Major ERIC B. SMITH 

United States Army, Appellant 

ARMY 20120918 

Headquarters, I Corps 

David L. Conn, Military Judge 

William R. Martin, Staff Judge Advocate 

For Appellant: Captain Ian M. Guy, JA; William E. Cassara, Esquire (on brief); 

Captain Michael E. Millios, JA; William E. Cassara, Esquire (Petition for New Trial 

and reply to answer to Petition for New Trial). 

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA; 

Major John Choike, JA; Captain Timothy C. Erickson, JA (on brief and answer to 

Petition for New Trial). 

17 July 2015 

---------------------------------- 

MEMORANDUM OPINION 

---------------------------------- 

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. 

LIND, Senior Judge: 

 An officer panel sitting as a general court-martial convicted appellant, 

contrary to his pleas, of wrongful use of cocaine in violation of Article 112a, 

Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 912a (2006). The 

panel sentenced appellant to confinement for twenty-four months and forfeiture of 

all pay and allowances. The convening authority approved the adjudged sentence, 

but suspended the execution of any confinement in excess of confinement already 

served and suspended the execution of any forfeitures, to include adjudged 

 

1

 Judge Krauss took final action in this case prior to his departure from the court. 
SMITH—ARMY 20120918 

2

forfeitures, for six months, at which time unless the suspension was sooner vacated, 

the suspended part of the sentence would be remitted without further action. 

 This case is before the court for review under Article 66, UMCJ. Appellant 

raises five assignments of error. Appellant’s allegation that he received ineffective 

assistance of counsel merits discussion and relief. Appellant’s remaining 

assignments of error are without merit. In light of our disposition of appellant’s 

case on appeal, appellant’s petition for a new trial filed pursuant to Rule for Court 

Martial [hereinafter R.C.M.] 1210 is moot. 

 

FACTS AND PROCEDURAL BACKGROUND 

 Appellant was a doctor serving in a residency program in Preventive Medicine 

and Occupational Medicine at Madigan Army Medical Center (MAMC) in 2011. On 

22 July 2011, he was randomly selected to submit a urine sample for a unit 

urinalysis. Appellant was working on rotation away from MAMC and, consequently, 

did not have to provide a sample. The following week on the morning of 28 July 

2011, appellant was notified via email that he was again selected to a unit urinalysis 

on that date. Appellant was working on rotation approximately 40 to 50 miles away 

from MAMC. Although appellant was excused from the urinalysis because he was 

on rotation away from MAMC, he nonetheless drove to MAMC and provided a urine 

sample. 

The Unit Prevention Leader in charge of the 28 July 2011 urinalysis was 

Sergeant (SGT) JF. The samples were sent to the Forensic Toxicology Drug Testing 

Laboratory (FTDTL) at Tripler Army Medical Center, Hawaii. The lab tested the 

samples and advised appellant’s unit that appellant’s sample was positive for 

cocaine. Appellant’s unit notified him of the positive result on 24 August 2011. 

Appellant sought a hair follicle test. On 29 August 2011, a sample of appellant’s 

chest hair was collected in Tacoma, Washington. The collector, Ms. JC, initiated a 

hair and/or urine custody and control form and sent appellant’s chest hair sample to 

Quest Diagnostics (QD), a private drug testing laboratory. On 30 August 2011, QD 

tested the hair follicle sample and found the sample negative for cocaine 

metabolites. 

 Major (MAJ) BG began representing appellant as his detailed defense counsel 

on or about September 2011.2

 The charge was preferred on 18 November 2011. The 

Article 32 investigation was held on 19 March 2012 after several delays, primarily at 

 

2

 Appellant was represented by an additional detailed defense counsel, Captain 

(CPT) HH, who was detailed to the case one month prior to trial in August 2012. 

Major BG handled the merits phase of the trial while CPT HH was responsible for 

the sentencing phase. 
SMITH—ARMY 20120918 

3

the request of the defense. The charge was referred on 4 April 2012. In the 

docketing documents, defense counsel requested a trial date of 19 June 2012. The 

military judge scheduled the trial for 19 June 2012. On 24 May 2012, the convening 

authority approved appellant’s request for Dr. LL, an expert forensic toxicologist 

consultant. Also on 24 May 2012, the defense moved for a continuance of the trial 

until on or after 24 September 2012 to accommodate MAJ BG’s June 2012 

permanent change of station and to give the government time to process the 

approved expert request for Dr. LL. The military judge granted the defense request 

for continuance and re-scheduled appellant’s trial for 26 September 2012. On 

29 August 2012, the I Corps (Rear) (Provisional) Commander withdrew the Charge 

and transferred it to the Commander, I Corps, who then re-referred the Charge that 

same day. Appellant was arraigned on the re-referred charges on 26 September 

2012. 

 Major BG moved out of Trial Defense Services as a result of his permanent 

change of station in June 2012.3

 Although the request for Dr. LL was approved on 

24 May 2012, his contract was not finalized until 18 July 2012. Major BG was 

notified of the finalization of Dr. LL’s contract on 8 August 2012. On 6 September 

2012 and again 21 September 2012, the defense requested a further continuance until 

31 January 2013 to allow defense counsel and Dr. LL the opportunity to travel to the 

FTDTL to view voluminous discovery available for review at the lab and to 

accommodate MAJ BG’s schedule in his new duty assignment. The military judge 

denied the defense requests for continuance.4

 

 Trial on the merits began on 26 September 2012. The government’s case in 

chief consisted of the testimony of SGT JF, who was in charge of running the 

28 July 2011 urinalysis; a stipulation of expected testimony from the urinalysis 

Observer; testimony from the FTDTL forensic toxicology expert, MAJ DP;5

 and a 

redacted litigation packet of the forensic testing of appellant’s urine sample. The 

 

3

 On or about September 2012, appellant’s request for MAJ BG to continue his 

representation of appellant as Individual Military Counsel was approved. The record 

of trial reveals MAJ BG represented appellant continuously from September 2011 to 

February 2013. 

4

 There were additional bases for the defense requests for continuance in September 

2012 that are not relevant to this discussion. One of appellant’s assigned errors is 

that the military judge abused his discretion by denying these requests for 

continuance. We conclude the judge did not abuse his discretion. 

5

 Over defense objection, the military judge accepted MAJ DP as an expert in the 

field of forensic toxicology. Appellant alleges the military judge abused his 

discretion in this matter. After review of the record, we conclude the judge did not 

abuse his discretion. 
SMITH—ARMY 20120918 

4

government theory of the case was that appellant’s urine tested positive for cocaine 

in a properly conducted and reliable urinalysis test. 

 Major BG effectively cross-examined SGT JF regarding potential flaws in the 

urinalysis collection and processing. Major BG also elicited from SGT JF that it is 

“not plausible” for doctors who are on temporary duty (TDY) and randomly selected 

for one of MAMC’s weekly urinalysis tests to take the test; and that they would take 

a urinalysis test upon return from TDY. Major BG also vigorously cross-examined 

MAJ DP as to improprieties in lab testing procedures and protocols and potential 

contamination of urine samples because of conditions in the lab. Part of the crossexamination of MAJ DP addressed his consideration of appellant’s negative hair 

follicle test result. Before the cross-examination began, MAJ BG advised the 

military judge that he intended to use the negative hair follicle test to cross-examine 

MAJ DP about the basis for his opinion pursuant to Military Rule of Evidence 

[hereinafter Mil. R. Evid.] 703, but he did not intend on introducing the negative 

hair follicle test result as substantive evidence before the members.6

 The following 

relevant exchanges occurred between the military judge and MAJ BG: 

DC: Sir, I’m sure the court is similarly aware of Rule 703 

which allows for the testing of the basis of opinion by 

experts. 

MJ: All right. But doesn’t that Rule require that the 

underlying testing amount to admissible evidence? 

DC: No, Your Honor, it does not. 

MJ: But you agree, without laying the proper foundation, 

this evidence would be otherwise inadmissible. 

DC: Certainly, your honor.

The military judge allowed MAJ BG to cross-examine MAJ DP to test the basis of 

his opinion pursuant to Mil. R. Evid. 703 using the results of the hair follicle test, 

but did not allow admission of the negative hair follicle test result as substantive 

evidence.7

 Major BG’s cross-examination of MAJ DP elicited that: MAJ DP was 

familiar with hair follicle testing; hair has been used to determine the presence of 

cocaine in the body; the metabolite for cocaine could remain in a hair follicle from 

the top of the head for 90-120 days; MAJ DP did not know whether there was a 

different timeline for chest hair, but the growth for chest hair is different; and that 

 

6

 Defense counsel had the one page negative hair test result from QD marked as 

Defense Exhibit (Def. Ex.) A for identification. 

7

 The military judge approved eleven questions proffered by MAJ BG to ask MAJ DP 

regarding the negative hair follicle test. 
SMITH—ARMY 20120918 

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appellant’s body hair test result for cocaine metabolite dated 30 August 2011 would 

be something MAJ DP would consider in evaluating whether cocaine was present in 

appellant’s urine sample approximately 30-40 days prior to the hair follicle test. 

Major BG’s cross-examination of MAJ DP with respect to his consideration of the 

negative hair follicle test result concluded with the following exchange: 

DC: In preparing your forensic evaluation of this 

case, did you consider the negative results of hair 

follicle testing in this case? 

. . . . 

MAJ DP: Yes. 

. . . . 

DC: And was that part of your report? 

MAJ DP: No. 

DC: In preparing your forensic evaluation of this 

case, did you consider the contradictory findings that 

that hair follicle test presented? 

MAJ DP: Yes 

DC: And on the basis of that contradictory hair 

follicle test, did you conduct further testing of the 

urine in this case? 

MAJ DP: No. 

. . . . 

DC: On the basis of the negative hair follicle test, 

did you evaluate other factors that might have 

contributed to contamination of this sample? 

MAJ DP: No. 

DC: On the basis of the negative hair follicle test, 

did you seek to consult with the medical reviewing 

officer in this case? 

MAJ DP: No. 
SMITH—ARMY 20120918 

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DC: On the basis of the contradictory hair follicle 

test, did you conduct any additional review of the 

testing procedures as executed in this case? 

MAJ DP: No. 

 On redirect examination, MAJ DP testified that the negative hair follicle test 

did not change his opinion that appellant’s urine properly tested positive for cocaine 

because: 

The literature and the testing results indicate . . . [h]air 

testing is very, very useful for detecting a chronic abuser. . 

. . However, when you do hair follicle testing in a person 

who abused drugs maybe one time, you would probably not 

get a positive result on the hair because the level would be 

so low on the hair follicle test. But you would still see it 

in the urine test. So, that’s not uncommon for a one-time 

user, for someone to be negative in hair testing and positive 

for urinalysis testing. 

The following exchange next occurred between trial counsel and MAJ DP: 

TC: Did you have a chance to review any reports regarding 

any hair sample? 

MAJ DP: No. 

. . . . 

TC: As an expert, . . . would you be able to formulate your 

opinion as to whether or not there’s cocaine in someone’s 

system based on simply a . . . results sheet that says “sweat 

sample came up negative”? 

MAJ DP: No. 

TC: Why is that? 

MAJ DP: Because I don’t know which instrument they were 

using. I don’t know if it’s been calibrated in the morning. 

I would like to see them run, you know, positive QC 

material to make sure the instrument’s running properly 
SMITH—ARMY 20120918 

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like--pretty much like what we do with our immunoassay 

analyzer and our GC-MS. 

TC: Now . . . have you had a chance to review such 

documents in this particular case with the urine sample? 

MAJ DP: Yes. 

 On re-cross-examination, MAJ DP testified that a one-time use may or may 

not show up in hair analysis; that the cocaine enzyme might be found in a hair 

sample of a one-time user taken 60 days after use; and cocaine might be detected in 

the one-time user’s hair sample, but might not be above the cutoff. 

 

 In addition to the cross-examination of government witnesses, the defense 

case-in-chief consisted entirely of testimony by appellant. Appellant testified he 

had been in the Army almost 18 years; he was not required to take the 28 July 2011 

urinalysis because he was on rotation that day; he had never used cocaine; he was 

shocked when advised his urine sample came up positive for cocaine; he would 

never use cocaine because he had anxiety and panic disorders and his sympathetic 

nervous system was hyper-stimulated and did not need an extra stimulant; and his 

health was in decline starting in March 2011 because of multiple gastrointestinal 

issues. The following exchange occurred during appellant’s direct testimony: 

DC: After you were notified about the positive urinalysis, 

what did you do? 

ACC: Well, when I gathered my senses, I went and got a 

hair follicle test. 

DC: And what were the results of that? 

ACC: They were negative. 

TC: Objection, your honor. 

MJ: Sustained. Members, disregard the last question and 

answer. 

 On cross-examination, appellant testified that: he might have been exposed to 

cocaine in tobacco shops where he purchased cigarettes; there were instances where 

he acted out on hospital staff; he was counseled for using profanity in the emergency 
SMITH—ARMY 20120918 

8

room; and he reprimanded SGT JF at the urinalysis site8 two weeks after the 28 July 

2011 urinalysis when SGT JF berated doctors for not being “true Soldiers.” 

 On re-direct examination, appellant testified he had his appendix removed on 

9 August 2011 and had to return for three laparotomies; he used profanity because 

he was anxious and felt like he was triaged inappropriately at the emergency room; 

he was frustrated by MAMC’s inability to diagnose his medical issues; and he began 

to manage his own symptoms with online supplements, taking approximately 

30 medications a day. 

 The government re-called MAJ DP in rebuttal to testify that the substances 

appellant had ingested should not have resulted in a false positive result for cocaine. 

On cross-examination, MAJ DP testified that TFDTL does not maintain a database 

listing substances that may test positive for cocaine, and cocaine positives do not 

receive medical review officer screening for prescription drugs. 

 The military judge instructed the members that appellant’s hair follicle test 

could be considered only: 

for the limited purpose of evaluating the basis of the 

expert’s opinion and specifically whether it would have 

impacted his conclusions regarding whether the person who 

submitted the urine sample ingested cocaine. Now, you 

may use this for that purpose only and for no other purpose 

whatsoever. Now specifically you may not consider this 

information for its tendency, if any, to show whether or not 

the accused knowingly and wrongfully used cocaine. 

The members found appellant guilty of wrongful use of cocaine on 27 September 

2012. 

 In December 2012, appellant hired civilian counsel, Mr. SC, to represent him 

in submitting post-trial matters pursuant to R.C.M. 1105. On 25 February 2013, 

MAJ BG withdrew from representing appellant citing as good cause appellant’s 

intent to include in his R.C.M. 1105 matters complaints regarding MAJ BG’s 

performance at trial, including MAJ BG’s failure to offer the hair follicle test 

results. 

 

 

8

 Corrected 
SMITH—ARMY 20120918 

9

 On 30 April 2013, Mr. SC submitted an R.C.M. 1105 package9 on behalf of 

appellant containing an affidavit submitted by appellant alleging that: 

I cannot comprehend why [MAJ BG10] did not secure the 

drug litigation packet related to my negative hair follicle 

test. His inability to do so adversely affected my courtmartial and was manifestly unjust. In fact [MAJ BG] has 

admitted to me on several occasions that he knows that he 

made a grave error in failing to obtain the hair follicle 

litigation packet. [MAJ BG] had promised me prior that he 

would write a clemency letter “owning up” to this 

fundamental and wholly inexcusable error. He has since 

broken that promise and now declines to admit his mistakes. 

 The R.C.M. 1105 matters also include an affidavit by Mr. SC stating: 

I have spoken to [MAJ BG] on several occasions with 

regard to his willingness to concede he made grave errors 

as a military defense lawyer during the above-entitled case. 

Most notably, he admitted to failing to secure the hair 

follicle test in a timely manner. [MAJ BG] previously 

agreed to submit a memorandum of record which addressed 

his legal shortcomings, but later revoked this offer by email transmission. 

Submitted with Mr. SC’s affidavit are e-mails between Mr. SC and MAJ BG wherein 

Mr. SC wrote: “Thanks again for agreeing to draft a letter,” and MAJ BG responded, 

“I have reconsidered my agreement to draft the letter we discussed. It will not be 

forthcoming.” 

 Finally, the R.C.M. 1105 matters submitted by Mr. SC also contain a letter 

from appellant’s supervisor, Colonel (COL) SS, stating in relevant part: “In fact on 

the day of the test in question, I had actually sent an e-mail to the test sergeant 

 

9

 Appellant submitted a second R.C.M. 1105 package through his new detailed 

military defense counsel, CPT BH. 

10 Major BG was subsequently promoted to Lieutenant Colonel (LTC). For purposes 

of this opinion, we will refer to him as MAJ BG. 
SMITH—ARMY 20120918 

10

notifying him that [appellant] was on a rotation away from the installation and 

would likely not make it in for testing.”11

On appeal, appellant argues he received ineffective assistance of counsel 

because: (1) MAJ BG did not attempt to introduce the hair follicle test or call any 

witnesses to testify about the test, and (2) MAJ BG failed to call COL SS to 

corroborate appellant’s testimony that he was not required to be at the 28 July 2011 

urinalysis.12 

 On 11 April 2014, upon motion of government appellate counsel, we ordered 

affidavits from MAJ BG and CPT HH addressing the ineffective assistance of 

counsel issues. Both counsel provided affidavits that are now part of the record. 

Major BG’s affidavit asserts the following relevant facts. 

 Major BG did not contact QD Labs regarding appellant’s hair follicle test 

because during trial preparation: 

I was focused on the unreliability of the . . . test conducted 

at [FTDTL], the potential environmental or handling factors 

that might have led to contamination, the improper conduct 

of the urinalysis at the time of collection, and most 

significantly on pursuing alternate means of case 

disposition for [appellant]. I made the choice to focus on 

aggressive testing and cross-examination of the 

Government’s case at trial. 

. . . . 

I did not initially seek to obtain the litigation packet for this 

hair follicle test because it was originally not my intent to 

offer it at trial. In deciding how best to present this case to 

a military panel, I made a judgment about how persuasive 

this hair follicle test might be at trial. Based on my 

experience, I decided that this test result would not be 

nearly as significant to the panel as the urinalysis conducted 

by [FTDTL], and I focused my efforts on pursuing alternate 

 

11 The R.C.M. 1105 matters submitted by Mr. SC also contain a complete copy of the 

QD litigation package for the negative hair follicle test, lab protocols, and lab 

employee biographies. 

12 Appellant argues in his brief that there is additional testimony MAJ BG should 

have elicited from COL SS. We find this additional testimony would not have been 

admissible at trial. 
SMITH—ARMY 20120918 

11

disposition, getting an expert consultant to assist in my 

attack on the Government’s laboratory and its testing, and 

gathering the necessary discovery to support my tactical 

goals. 

 Major BG changed strategy after the military judge denied his 6 September 

2012 and 21 September 2012 requests for continuance to visit FTDTL with Dr. LL to 

gather further discovery. 

When it ultimately became clear that the military judge was 

not going to allow the Defense sufficient opportunity to 

prepare the case in accordance with my plan . . . I 

coordinated with Dr. [LL] to have him seek the litigation 

packet while I made final trial preparations. The litigation 

packet was not available to us until after trial. At that point, 

and prior to [Mr. SC] being retained, I discussed with 

[appellant] how the hair follicle test result might still be 

used during his clemency request to the Convening 

Authority. 

 During trial, MAJ BG considered “whether there were any alternate means to 

introduce the hair follicle test results” and concluded the rules of criminal procedure 

and military rules of evidence allowed only “cross-examination of MAJ [DP] and 

during direct examination of [appellant], as relevant to his actions near the time of 

the urinalysis.” Major BG “knew neither method would allow introduction of the 

test result itself, but my strategy was to introduce the existence of the additional test 

result for the panel to use as they thought appropriate.” 

 With respect to COL SS, MAJ BG’s affidavit asserts that he “was aware from 

my discussions with [appellant’s] direct supervisor, that [appellant] was not required 

to attend the [28 July 2011] urinalysis” and that: 

Based upon my interaction with [COL SS and appellant’s 

direct supervisor], I believed that any benefit to be gained 

from their corroboration of [appellant’s] assertion that he 

was not required to attend the urinalysis would be greatly 

outweighed by the potential testimony about [appellant’s] 

character and duty performance. . . . My overall trial 

strategy was to present a simple picture of an officer 

overwhelmed by the tragedy of an unreliable urinalysis and 

was focused almost entirely on the Government’s handling 

of [appellant’s] urine specimen and on cross-examination 

of the Government’s expert forensic toxicologist. Had COL 

[SS] testified, I expected his testimony to include comments 
SMITH—ARMY 20120918 

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about the hospital staff’s concern for [appellant’s] erratic 

behavior, belligerence with staff members, and 

unprofessional conduct which led COL [SS] to order 

“Program Level Remediation” (retraining). This is why 

COL [SS] and [appellant’s direct supervisor] were both part 

of the Government’s witness list at trial.[13]

 Major BG’s affidavit states that prior to his withdrawal as appellant’s defense 

counsel, he and Mr. SC discussed numerous errors and abuses of discretion by the 

military judge MAJ BG believed occurred during appellant’s trial (many of which 

are raised as assignments of error before this court). With respect to the negative 

hair follicle test, MAJ BG states in relevant part: 

I discussed with Mr. [SC] why I did not enter the hair 

follicle test into evidence. I had been focused on seeking 

alternate disposition for [appellant’s] case, ways to 

undercut the significant reliance I expected the panel to 

place on the urinalysis result, and, most importantly, the 

employment of my requested expert consultant so that I 

could make the most sense of the available forensic data. 

Because I did not have a litigation packet at trial, I knew I 

could not offer it as evidence, but I used it in my direct 

examination of [appellant] and extensively in my crossexamination of MAJ [DP]. I also discussed my intent to 

include it in [appellant’s] clemency matters. . . . During 

that conversation, I volunteered to provide a letter outlining 

the errors I believed were present in the case and a 

statement describing my lack of introduction of the hair 

follicle results. 

Major BG’s affidavit states he felt it was inappropriate to participate in appellant’s 

post-trial matters after his withdrawal as defense counsel and he so notified Mr. SC 

via email on 8 April 2013. 

Major BG’s affidavit makes reference to additional steps he took on behalf of 

appellant outside of trial to include pressing for an alternate disposition, 

successfully securing a post-trial deferral of confinement for appellant, and 

submitting a request for deferral of forfeitures and submission of a post-trial 

resignation in lieu of court-martial. 

 

13 Captain HH, assistant defense counsel, also filed an affidavit where she attached a 

20 September 2012 email from MAJ BG to the government requesting “production of 

[appellant’s director supervisor] and COL SS in accordance with the [government] 

witness list.” 
SMITH—ARMY 20120918 

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LAW 

 The Sixth Amendment entitles criminal defendants to representation that does 

not fall “below an objective standard of reasonableness” in light of “prevailing 

professional norms.” Strickland v. Washington, 466 U.S. 668, 688 (1984). To 

prevail on an ineffective assistance of counsel claim, an appellant must demonstrate: 

(1) that his counsel’s performance was deficient, and (2) that this deficiency resulted 

in prejudice. Id. at 687. To show deficiency, the errors must have been “so serious 

that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the 

Sixth Amendment.” Id. To show prejudice, appellant “must show that there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Id. at 694. 

Counsel are presumed to be competent. United States v. Cronic, 466 U.S. 

648, 658 (1984); see also Strickland, 466 U.S. at 689 (“[courts] must indulge a 

strong presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance.”); Harrington v. Richter, 562 U.S. 86, 105 (2011) (“even 

under de novo review, the standard for judging counsel’s representation is a most 

deferential one.”). Where an appellant “attacks the trial strategy or tactics of the 

defense counsel, the appellant must show specific defects in counsel’s performance 

that were ‘unreasonable under prevailing professional norms.’” United States v. 

Mazza, 67 M.J. 470, 475 (C.A.A.F. 2009) (quoting United States v. Perez, 64 M.J. 

239, 243 (C.A.A.F. 2006)). “Defense counsel do not perform deficiently when they 

make a strategic decision to accept a risk or forego a potential benefit, where it is 

objectively reasonable to do so.” United States v. Datavs, 71 M.J. 420, 424 

(C.A.A.F. 2012). Consequently, “[w]hile defense counsel would normally be expected 

to introduce potentially exculpatory evidence, their performance is not deficient when a 

tactical reason cautions against admission.” United States v. McIntosh, __ M.J. ___ , 

slip op. at 4 (C.A.A.F. 8 Jul. 2015).

 

However, choices may only be considered tactical or strategic after counsel 

have either fulfilled their duty to make a reasonable investigation, or have made a 

“reasonable decision that makes particular investigations unnecessary.” Strickland, 

466 U.S. at 691. As the Supreme Court cautioned: “strategic choices made after 

thorough investigation of law and facts relevant to plausible options are virtually 

unchallengeable; and strategic choices made after less than complete investigation 

are reasonable precisely to the extent that reasonable professional judgments support 

the limitations on investigation.” Id. at 690-91. 

DISCUSSION 

We will review separately appellant’s allegations of deficiency regarding: 

(1) MAJ BG’s decision not to obtain the litigation packet for the hair follicle test 
SMITH—ARMY 20120918 

14

prior to trial, and (2) MAJ BG’s decision not to call COL SS as a witness to 

corroborate appellant’s testimony that he was on rotation on 28 July 2011 and did 

not have to attend the 28 July 2011 urinalysis. 

Hair Follicle Testing 

Appellant avers MAJ BG’s performance was deficient in failing to introduce 

the negative results of the hair follicle test through the litigation packet with an 

expert witness from QD laying the foundation. We disagree with appellant’s 

framing of the issue. The appropriate inquiry here is whether MAJ BG’s 

performance was deficient in failing to obtain the litigation packet for the negative 

hair follicle test in time to evaluate its potential for admission as substantive 

evidence, and in time to take steps to lay the foundation for admission should the 

tactical decision been made to admit the negative hair follicle test result as 

substantive evidence. 

We examine whether MAJ BG’s actions were reasonable under prevailing 

professional norms. The facts are not in dispute. Appellant submitted his urine 

sample on 28 July 2011. The hair follicle test was conducted 30 August 2011, 

thirty-three days after the urine test. Major BG began representing appellant on or 

about September 2011. Major BG was aware of the existence of the negative hair 

follicle test result and its supporting litigation packet for approximately one year 

before trial and also knew that appellant’s intent when taking the hair test was to 

provide evidence of his innocence. Major BG was also aware that the hair follicle 

test was conducted within a window of time to provide evidence that appellant was 

not a chronic user of cocaine and that the test may or may not detect a one-time use 

of cocaine by appellant on 26-28 July 2011. Major BG did not direct Dr. LL to 

request the litigation packet for the negative hair test until some point after the 

military judge denied his 6 and 21 September 2012 requests for continuance. 

Appellant’s trial was held 26-28 September 2012. The litigation packet did not 

arrive in time to be used at trial, and MAJ BG did not successfully introduce the 

results of the negative hair follicle test as substantive evidence. 

Major BG’s explanation is that, prior to the 6 and 21 September 2012 denial 

of his continuance requests, he did not obtain the litigation packet or speak with 

anyone at QD because he did not intend to introduce the negative hair test result as 

substantive evidence. It was not part of his strategy because he believed that the 

hair test would not be nearly as significant to the members as the urinalysis test. 

Major BG’s defense strategy at the time was to “present a simple picture of an 

officer overwhelmed by the tragedy of an unreliable urinalysis and was focused 

almost entirely on cross-examination of the government’s forensic toxicologist.” 

His affidavit is unclear as to whether he intended to cross-examine MAJ DP 

regarding the negative hair follicle test result before his strategy changed when his 

continuance requests were denied. 
SMITH—ARMY 20120918 

15

We conclude MAJ BG’s failure to properly investigate and evaluate the 

validity, strength, and relevance of the hair follicle test—by at least acquiring the 

litigation packet and speaking with personnel from QD—was unreasonable under 

prevailing professional norms. Appellant obtained a negative hair follicle test 

within a window of time to provide evidence that appellant was not a chronic user of 

cocaine in support of his innocence. This was exculpatory evidence that, if admitted 

as substantive evidence, would have enhanced the defense strategy envisioned by 

MAJ BG. Successful admission of the negative hair follicle test result and its 

litigation packet would have also strengthened the weight of MAJ BG’s crossexamination of MAJ DP when eliciting that MAJ DP did nothing differently when 

confronted with the negative hair follicle test. Major BG’s reliance on experience as 

the basis for his decision to neglect the hair follicle test evidence is not an adequate 

explanation under the circumstances of this case. Absent adequate investigation of 

this testing, MAJ BG was in no position to make any reasonable tactical decision 

regarding use of the hair follicle test result. We find MAJ BG’s failure to 

investigate the hair follicle testing rises to the level of deficient performance. 

The government posits that a review of the litigation packet reveals the chain 

of custody for the hair originated with appellant. We have reviewed the litigation 

packet and it appears both appellant and the collection point of contact at 

ANYLABTESTNOW were present when appellant’s hair sample was collected. 

There is no evidence before us that this was an irregular method of specimen 

collection. A review of the litigation packet and other documentation from QD 

reveals nothing on its face that would preclude admission of the negative hair 

follicle test and litigation packet if properly authenticated and supported by expert 

testimony. Had MAJ BG obtained the hair follicle test litigation packet, examined 

it, and spoken to QD lab personnel, he may have found a myriad of valid tactical 

reasons to avoid admitting the negative hair follicle test results as substantive 

evidence. Examples could include unreliable collection procedures, insufficient 

chest-hair length, questionable QD lab procedures or protocols, or a test result that 

revealed the presence of cocaine metabolites that did not reach the cut-off for a 

positive result. No such examination of the litigation packet happened in this case. 

Even if we were to find MAJ BG’s initial strategy to forego investigation of 

the negative hair follicle test result and focus entirely on attacking the government’s 

case was reasonable, we find MAJ BG’s actions after the denial of the 6 and 21 

September 2012 defense requests for continuance unreasonable. After the 

continuances were denied, MAJ BG had changed strategies and decided to try to 

admit the negative hair test result as substantive evidence and to cross-examine MAJ 

DP’s opinion using the negative hair follicle test result. Having failed to obtain the 

litigation packet earlier, MAJ BG coordinated with Dr. LL to obtain the litigation 

packet from QD. However, MAJ BG himself made no contact with anyone from QD 

and his affidavit has no indication that he instructed Dr. LL to contact QD laboratory 
SMITH—ARMY 20120918 

16

personnel to discuss laying the foundation for admission of the negative hair follicle 

test and litigation packet as substantive evidence at trial. Thus, even if Dr. LL 

obtained the litigation packet in time to use for trial, the defense had not coordinated 

with any witnesses to authenticate the litigation packet and lay the foundation for 

admissibility at trial. 

Failure to Call Witness to Corroborate Appellant’s Factual Testimony 

All affiants again agree on the underlying facts: MAJ BG was aware COL SS 

could give testimony to corroborate appellant’s testimony that he was on rotation 

and did not have to go to the 28 July 2011 urinalysis; COL SS was both on the 

government’s and defense’s witness lists for trial and was therefore available to 

testify to these facts; and MAJ BG did not call COL SS as a witness to corroborate 

appellant’s testimony that he did not have to be at the 28 July 2011 urinalysis. 

We now turn to determine whether MAJ BG’s explanation for his decision not 

to call COL SS was reasonable. Major BG did not call COL SS because he believed 

“any benefit to be gained by their corroboration of [appellant’s] assertion that he 

was not required to attend the urinalysis would be greatly outweighed by the 

potential testimony about [appellant’s] character and duty performance.” Major 

BG’s explanation for failing to call COL SS to corroborate appellant’s testimony 

was not reasonable. If the defense only elicited factual testimony from COL SS that 

appellant was on rotation on 27-28 July 2011 and that because he was on rotation he 

was not required to attend the 28 July 2011 urinalysis, the door would not be open 

for the government to cross-examine the witness about appellant’s character and 

duty performance. Such testimony is beyond the scope of direct examination under 

Mil. R. Evid. 611(b) and does not place appellant’s character and duty performance 

at issue.14 For the foregoing reasons, we conclude MAJ BG’s failure to call COL SS 

to corroborate appellant’s testimony was unreasonable under prevailing professional 

norms. 

We have considered the record as a whole and recognize that MAJ BG 

zealously represented appellant in seeking an alternate disposition for appellant’s 

case, competently and thoroughly cross-examined SGT JF and MAJ DP regarding 

 

14 Mil. R. Evid. 611(b) gives the military judge discretion to permit crossexamination on additional matters as if on direct examination. Any concern by the 

defense that the military judge might allow the government to cross-examine COL 

SS about appellant’s character and duty performance as if on direct examination 

could have been addressed at an Article 39(a) session outside the presence of the 

members. 
SMITH—ARMY 20120918 

17

urine sample collection and processing irregularities, and proactively represented 

appellant in the post-trial phase of the trial until his withdrawal as counsel. 

Nevertheless, with respect to the trial itself for the reasons outlined supra, we find 

his performance was deficient.15

Prejudice 

 

Having found merit to both of appellant’s allegations of deficient 

performance, we must determine whether, absent the errors, there is a reasonable 

probability that the result of the proceeding would have been different. See 

Strickland, 466 U.S. at 694. The record demonstrates a reasonable likelihood that 

the hair follicle test was admissible and sufficiently reliable to warrant a reasonable 

defense counsel to obtain it in advance of trial, evaluate it, consider its admission, 

and if admitted, emphasize its weight on findings and, if necessary, sentencing. A 

properly authenticated hair follicle test result has been admitted by military courts 

when supported by expert testimony.16 In this case, the record reveals MAJ BG tried 

to introduce the negative hair follicle test as substantive evidence during appellant’s 

testimony when he asked appellant the result of his hair follicle test. This question 

drew a sustained objection from trial counsel and a contemporaneous instruction 

from the military judge to the members to disregard the question and the answer. 

Because MAJ BG failed to obtain the litigation packet for the negative hair follicle 

test in time for trial and failed to contact any expert who would be able to lay the 

foundation for admission of the hair follicle test result, the defense ensured that the 

test results would not be considered by the panel as substantive evidence, and the 

defense was limited to using the test result for cross-examination of MAJ DP’s 

opinion under Mil. R. Evid. 703. The military judge properly instructed the panel 

that they could not consider the negative hair follicle test “to show whether or not 

the accused knowingly and wrongfully used cocaine.” See R.C.M. 703 analysis at 

A22-52 (“A limiting instruction may be appropriate if the expert while expressing 

the basis for an opinion states facts or data that are not themselves admissible.”); 

 

15 Normally, we evaluate the defense team as a whole rather than evaluating the 

individual shortcomings of any single counsel. United States v. McConnell, 55 M.J. 

479, 481 (C.A.A.F. 2001). In this case, however, the affidavits from MAJ BG and 

CPT HH indicate that CPT HH was detailed to appellant’s case one month before 

trial, that she worked under the direction of MAJ BG, and that her role in the case 

was limited to the sentencing phase of appellant’s court-martial. Appellant has not 

specifically made an allegation of ineffective assistance of counsel against CPT HH 

and we do not find her performance deficient. 

16 See generally Major Keven Jay Kercher, Time for Another Haircut: A Re-Look at 

the Use of Hair Sample Testing for Drug Use in the Military, 188 Mil. L. Rev. 38, 

67 n.229 (Summer 2006) (citing cases wherein military courts have allowed hair 

sample results into evidence). 
SMITH—ARMY 20120918 

18

United States v. Jackson, ACM 29011, 1992 CMR Lexis 412 (A.F.C.M.R. 10 Apr. 

1992). It also precluded the defense from arguing that the negative hair follicle test 

showed appellant was not a chronic user of cocaine at the time of the positive 

urinalysis test and that the test created reasonable doubt as to whether appellant used 

cocaine at all. This evidence would have buttressed the defense theory of the case: 

why would appellant, a doctor with 17 years of service, who was not a chronic user 

of cocaine, who knew how short a time cocaine metabolites remained in urine, and 

who did not have to be at the 28 July 2011 urinalysis attend the urinalysis if he 

suspected he would come up positive for cocaine? 

Major BG’s failure to obtain the litigation packet prior to trial also 

substantially diminished the quality of his cross-examination of MAJ DP in that his 

cross-examination of MAJ DP was based solely on the one-page negative test result. 

This allowed trial counsel on re-direct examination to marginalize the effectiveness 

of the cross-examination by eliciting from MAJ DP that he reviewed no reports 

regarding any hair sample and that an expert would not base an opinion on a results 

sheet that a sample came up negative because the expert would not know which 

instruments were used in conducting the test, whether they were calibrated and 

running properly, or whether there were quality control measures in place. Major 

DP then contrasted his review of the one-page results sheet for the negative hair 

follicle test with the complete redacted litigation packet offered into evidence by the 

government in support of the positive urinalysis result. 

Further MAJ BG’s decision not to call COL SS left appellant’s testimony—

that he was on rotation on 28 July 2011 and not required to attend the urinalysis—

uncorroborated. The government contends that the fact that appellant was on 

rotation and did not have to attend the urinalysis was not a contested issue. We 

disagree.17 Trial counsel confronted appellant during cross-examination challenging 

his assertion that he wanted to be at the 28 July 2011 urinalysis. Trial counsel also 

challenged appellant’s credibility and cross-examined him on erratic behavior he 

exhibited near the time of the urinalysis. Corroboration of appellant’s testimony 

that he was on rotation and did not have to attend the urinalysis by a witness in his 

supervisory chain would have bolstered appellant’s credibility. 

The government’s case relied on appellant’s positive urinalysis and evidence 

elicited on cross-examination of appellant that he was behaving erratically around 

the time of the urinalysis. The defense case challenged the urinalysis collection and 

processing procedures, but also portrayed appellant as someone who had no reason 

to avoid the 28 July 2011 urinalysis even though he was not required to attend and 

as someone who was stunned when advised of the positive test result. We find that 

 

17 Sergeant JF testified that doctors on rotation do not have to attend urinalysis until 

they return from temporary duty, however, SGT JF did not corroborate that appellant 

was on rotation on 28 July 2011 and did not have to attend the urinalysis. 
SMITH—ARMY 20120918 

19

had defense counsel properly investigated the hair follicle testing in time for 

potential use at trial and had called COL SS as a witness to corroborate appellant’s 

testimony, there is a reasonable probability that the result of appellant’s trial would 

have been different. 

CONCLUSION 

 The findings of guilty and the sentence are set aside. A rehearing may be 

ordered by the same or a different convening authority. The petition for a new trial 

is denied as moot. All rights, privileges, and property, of which appellant has been 

deprived by virtue of the findings and the sentence set aside by this decision, are 

ordered restored. See UCMJ arts. 58a(b), 58b(c), and 75(a). 

 Judge KRAUSS and Judge PENLAND concur. 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: