UNITED STATES, Appellee
v.
Ronald L. BREWER, Master Sergeant
No. 04-0567
Crim. App. No. 34936
Argued
Decided
ERDMANN, J., delivered the opinion of the
court, in which
GIERKE, C.J., and EFFRON, J., joined. CRAWFORD and BAKER, JJ.,
each filed
a separate dissenting opinion.
Counsel
For Appellant: Major James M. Winner (argued); Colonel Carlos L. McDade, Major Terry L. McElyea, and Major Sandra K. Whittington (on brief).
For Appellee: Major Kevin P. Stiens (argued); Lieutenant Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer, Major John C. Johnson, and Captain C. Taylor Smith (on brief).
Military Judge: Thomas G. Crossan Jr.
This opinion is subject to revision before
final
publication.
Judge ERDMANN delivered the opinion of the court.
Master
Sergeant Ronald L. Brewer was charged with using marijuana on divers
occasions over
a one-year period in violation of Article 112a, Uniform Code of
Military
Justice (UCMJ), 10 U.S.C. § 912a (2000). He was tried by a
general
court-martial composed of officer and enlisted members who found him
guilty and
sentenced him to confinement for eighteen months and reduction to pay
grade
E-2. The convening authority approved the sentence but waived
mandatory
forfeitures of pay for the benefit of Brewer’s dependent son. The
United
States Air Force Court of Criminal Appeals affirmed the findings and
sentence
in an unpublished opinion on
Brewer was convicted based upon positive results for marijuana from a urinalysis test and a hair analysis test. The Government relied on the permissive inference that Brewer’s use of marijuana was “wrongful” in order to meet that element of the drug charge. Brewer sought to counter that inference by presenting evidence of innocent ingestion. The military judge excluded testimony from witnesses who had frequently observed Brewer during the one-year time period. The military judge also gave the members an instruction regarding the burdens of proof for the permissive inference that Brewer argues created a mandatory rebuttable presumption.
We granted review to determine whether Brewer was wrongly denied the opportunity to counter the permissive inference of wrongful use relied upon by the Government and whether the military judge’s instruction regarding that permissive inference was erroneous.1 We conclude that the errors in this case violated Brewer’s rights under the Due Process Clause and were not harmless beyond a reasonable doubt. We therefore reverse the decision of the United States Air Force Court of Criminal Appeals.
BACKGROUND
The Government’s case against Brewer was based upon two positive drug test results. The first was a urinalysis test on a sample obtained after Brewer was randomly selected to be drug tested. After that sample tested positive for marijuana the Government obtained a search authorization to test a hair sample from Brewer and that test also returned a positive result for marijuana use. Based on the hair analysis, a Government expert witness testified that Brewer “had ingested [marijuana] on multiple occasions in the time period. . . .” In that witness’ opinion Brewer had used marijuana at least thirty times in the twelve months preceding the hair test.
In addition to the test results, to meet the element of the charge that requires that use of a controlled substance be “wrongful,” the Government relied “‘on a permissive inference of wrongfulness which has long been recognized by military law as flowing from proof of the predicate fact of use of’ the drug.” United States v. Ford, 23 M.J. 331, 333 (C.M.A. 1987) (quoting United States v. Harper, 22 M.J. 157, 162 (C.M.A. 1986)). To counter this inference, and in order to mount a defense of innocent ingestion, Brewer sought to introduce the testimony of five witnesses “who were with [Brewer] and observed his behavior for much of the relevant time frame and that [sic] if the accused had used marijuana they would likely have seen some evidence of it.”
The Government made a motion in limine to exclude the testimony of these witnesses. In support of its motion, the Government argued that it was introducing only urinalysis and hair analysis test results and would not be presenting evidence that Brewer used drugs at any specific time. Because of this, the Government contended that the only evidence the defense could offer in rebuttal would be the testimony of someone who had been with Brewer for the entire one-year time period. The Government argued that witness testimony concerning only certain, limited time frames during which that witness had been with Brewer was not relevant and/or was confusing under Military Rules of Evidence (M.R.E.) 401 and 403.
Trial defense counsel responded that presenting the testimony of witnesses who knew the accused well and who were with him for a substantial period of the charged time frame is one of the ways for the defense to respond to the generalized allegations by the Government. Defense counsel noted that it would be impossible to find one witness who had been with Brewer for the entire time period, but stated, “What we are trying to do is build our wall of proof one brick at a time.” The defense offered testimony from Brewer’s live-in girlfriend, a close friend, his direct supervisor, and two people who worked directly with him during the workday to show that none of these people ever saw any evidence of drug use by Brewer. The defense contended that the testimony of all of these people together goes to make a “wall of proof that raises reasonable doubt.”
The military judge granted the Government’s motion to exclude the testimony with regard to all of the witnesses except Brewer’s live-in girlfriend. At the close of the prosecution’s case trial defense counsel made a motion for reconsideration of that ruling but the military judge denied the motion. Brewer’s girlfriend testified that she and Brewer were strict and would not allow marijuana to be smoked in their house. She also testified that she had not seen anything to indicate that Brewer smoked marijuana. A friend of Brewer’s nephew also testified, stating that he and Brewer’s nephew had often smoked marijuana in the house without Brewer’s knowledge and that they had once made spaghetti sauce that contained marijuana and left it on the stove.
At the close of the evidence and prior to deliberations, the military judge instructed the members concerning the permissive inference of wrongful use of drugs utilizing an instruction taken almost verbatim from the Military Judges’ Benchbook. See Legal Services, Dep’t of Army, Pamphlet 27-9, Military Judges’ Benchbook ch. 3, 3-37-2d (2001) [hereinafter Benchbook]. There was no objection to this instruction at trial.
DISCUSSION
1. Did
the
Military Judge Err in Excluding the Four Defense Witnesses?
Brewer
contends
that the military judge erred in granting the Government’s motion to
exclude
the defense witnesses because those witnesses were necessary to counter
the
permissive inference of wrongful use upon which the Government was
allowed to
rely. The Government responds that the military judge properly
excluded
the testimony of the witnesses offered by Brewer because these
witnesses were
improper alibi and character witnesses and their testimony therefore
was
inadmissible and was irrelevant to the proceedings. We review a
military
judge’s decision to admit or exclude evidence for abuse of
discretion. See
Brewer argues that these witnesses would have testified that they “were with [Brewer] and observed his behavior for much of the relevant time frame and that [sic] if the accused had used marijuana they would likely have seen some evidence of it.” The military judge excluded the testimony because he found it not relevant. The lower court affirmed, noting that these witnesses could not properly serve as alibi witnesses because Brewer did not dispute that the drug entered his system and therefore could not properly claim that he had an alibi for the offense. The lower court further held that Brewer was improperly attempting to present testimony regarding specific instances of conduct as character evidence, when such evidence is limited to reputation or opinion testimony under M.R.E. 405(a).
We agree
with the lower court that this evidence is not admissible as character
evidence
under M.R.E. 404 and 405. In United States v. Schelkle,
47 M.J.
110 (C.A.A.F. 1997), the defense argued that evidence of specific
instances of
conduct (statements in letters by friends of the accused that they had
not seen
him use marijuana) should be admissible under M.R.E. 405(b) because
evidence of
“good military character” is an essential element of a defense to
charges of
drug use. In rejecting this argument this court found that
character was
not an essential element of the defense in that case and that evidence
of
character therefore was limited to reputation and opinion
evidence.
Because character is not an essential element of any defense raised by Brewer, we reach the same result in this case. Testimony of these witnesses was not admissible under M.R.E. 405(b). Schelkle did not, however, hold that this testimony could never be admitted and we therefore turn to the question of whether this type of testimony may be admissible on other grounds.
It is important to note that the Government was permitted to prove an essential element of its case -– that Brewer’s use of a controlled substance was wrongful -– by relying “‘on a permissive inference of wrongfulness, which has long been recognized by military law as flowing from proof of the predicate fact of use of’ the drug.” Ford, 23 M.J. at 333 (quoting Harper, 22 M.J. at 162). To counter this inference, Brewer relied on a defense of “innocent ingestion” based in part on the fact that his nephew and his nephew’s friend often smoked marijuana in his house and on one occasion put marijuana in some spaghetti sauce at the house.
In Ford,
we
discussed the permissive inference and its relationship to defense
evidence of
innocent ingestion. In that case the Government’s evidence
consisted of a
positive urinalysis result and testimony by an expert concerning that
result. The defense presented testimony from “several witnesses
who
testified that they observed no abnormalities in his behavior
suggesting drug
abuse.”
This court disagreed with these defense contentions, noting that witness testimony that the defendant did not exhibit behavior indicative of drug use:
challenges the basis in fact upon which the inference of wrongfulness is predicated. . . . It was offered by the defense to create a reasonable doubt in the factfinders’ minds concerning the prosecution’s circumstantial proof of use. A conflict in evidence concerning the existence of the predicate fact, however, does not bar use of the inference. It simply means that the members must resolve the question before they decide whether the inference should be drawn in the present case.
While Ford did not specifically address the issue presented in this case, it does demonstrate that this court has recognized the potential relevance of the type of testimony offered by Brewer. “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R.E. 401. Testimony from people who spent substantial time with Brewer throughout the charged period that they had not seen him purposefully use drugs or observed him under the influence of drugs does go to the issue of whether he knowingly and wrongfully used drugs at least thirty times during the charged period. Contrary to the assertions of the dissent, we believe that if the members found this testimony credible, it would have bolstered Brewer’s innocent ingestion defense.
The dissent is incorrect in arguing that only testimony of those who had observed Brewer in his home would be relevant to his defense. Brewer did not claim the ingestion occurred at his house as the dissent states, but rather offered the possibility that his ingestion may have occurred in his home where his nephew had used the drug to explain his positive urinalysis result. The very nature of an innocent ingestion defense means that Brewer could not prove the time or place of his innocent ingestion, but could only suggest possible explanations. Part of a defense of innocent ingestion requires raising doubt in the minds of the members that the presence of a drug in Brewer’s system came from a knowing and wrongful use of the drug. The testimony of the witnesses offered by Brewer provides grounds for the members to question whether to draw the inference that Brewer’s use of marijuana was wrongful, thereby raising a question as to an essential element of the charged offense.
We find no merit in the Government’s contention that the relevance of this testimony is diminished because the Government has not alleged a specific time of use. The Government’s charge spans a one-year time frame and alleges that Brewer used marijuana multiple times during that period. The Government does not offer specific dates or times of use because the test results upon which it relies do not provide that level of specificity. In response, Brewer offers evidence that also spans that one-year period and goes to show that he was not seen using drugs by those who saw him frequently during that time period.
Under these circumstances it is not unreasonable for the Government to charge a one-year period, but the lack of specificity should not provide a basis to prohibit Brewer from challenging the facts giving rise to the permissive inference relied upon by the Government. The use of a permissive inference of wrongful use by the Government requires that a court allow a defendant some leeway to rebut that inference by using testimony such as that proffered by Brewer in this case. The military judge, of course, retains the power to limit repetitive testimony under M.R.E. 403.
Because
the
military judge in this case precluded testimony from four witnesses who
observed Brewer outside his home during this period, that ruling denied
Brewer
the opportunity to present a line of defense on the element of wrongful
use and
violated Brewer’s due process right to present witnesses in his own
defense. See Chambers v. Mississippi, 410
2.
Was the Military Judge’s
Instruction to the Members
on the Permissive Inference of Wrongful Use Plain Error?
Brewer argues that the military judge’s instruction to the members violated the Due Process Clause because it may have caused a reasonable member to believe that there was a mandatory presumption of wrongfulness, rather than a permissible inference. The Government argues that the military judge’s instruction to the members was not erroneous because it was a correct statement of the law. At the close of the evidence, and prior to deliberations, the military judge instructed the members concerning the permissive inference of wrongful use as follows:
To be punishable under Article 112a, use of a controlled substance must be wrongful. Use of a controlled substance is wrongful if it is without legal justification or authorization.
Use of a controlled substance is not wrongful if such act or acts are: (a) done pursuant to legitimate law enforcement activities (for example, an informant who is forced to use drugs as part of an undercover operation to keep from being discovered is not guilty of wrongful use); (b) done by authorized personnel in the performance of medical duties or experiments; or (c) done without knowledge of the contraband nature of the substance (for example, a person who uses marijuana, but actually believes it to be a lawful cigarette or cigar, is not guilty of wrongful use of marijuana).
Use of a controlled substance may be inferred to be wrongful in the absence of evidence to the contrary. However, the drawing of this inference is not required.
The burden of going forward with evidence with respect to any such exception in any court-martial shall be upon the person claiming its benefit.
If such an issue
is
raised by the evidence presented, then the burden is on the
Knowledge by the accused of the presence of the substance and knowledge of its contraband nature may be inferred from the surrounding circumstances. However, the drawing of the inference is not required.
Following a number of other instructions, the military judge provided the following general instruction: “the burden of proof to establish the guilt of the accused beyond a reasonable doubt is on the government. The burden never shifts to the accused to establish innocence or to disprove the facts necessary to establish each element of the offense.”
As
there was no
objection to the permissive inference instruction at trial, we will
provide
relief only if we find plain error. See
To determine whether there was error, we ask whether a reasonable member could have interpreted the instruction to create a mandatory presumption of wrongfulness in favor of the Government. See Sandstrom v. Montana, 442 U.S. 510, 514 (1979) (“That determination [of the nature of the presumption created by the instruction to the jury] requires careful attention to the words actually spoken to the jury . . . for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction.”).
The
instruction
begins by explaining that the drug use must be wrongful. It then
identifies three situations in which use of a controlled substance is
not
wrongful. It next states that members may infer wrongfulness if
there is
no evidence that it is not wrongful, but that they are not required to
do
so. Then, it tells the members that the burden of going forward
with
evidence of any of the exceptions is on the person claiming the benefit
of the
exception. Finally, the instruction states that if “such an issue
is
raised by the evidence presented, then the
burden of
proof is upon the
The
instruction is
confusing because it does not explain the difference between “a burden
of
production, which only requires that an issue as to an exception be
raised by
the evidence, and a burden of persuasion, which would require an
accused to
affirmatively prove by some standard of proof that he came within the
exception.”
The
military
judge’s later instruction that “[t]he burden never shifts to the
accused to
establish innocence or to disprove the facts necessary to establish
each
element of the offense” does not alleviate this confusion. The
permissive
inference instruction clearly placed some burden on the
defendant. As the
“burden” in the later instruction refers to both a burden of production
and a
burden of persuasion, it does not clarify the nature of the burden
referenced
in the earlier instruction. As a result, the instructions as a
whole
could still confuse a reasonable member.
Adding to the confusion caused by the failure to
explain the
respective burdens on the parties is the use of the word
“exception.” To
categorize the three circumstances that make a use not wrongful as
exceptions
suggests that unless one of those exceptions is found, wrongfulness
should be
presumed (i.e., they are exceptions to the general rule of
wrongfulness).
Inclusion of the word “exception” creates the possibility that a
reasonable
member could have interpreted the instruction to require a presumption
of
wrongfulness absent evidence to the contrary. Because the
confusing
language of the instruction might have led the members to conclude that
there
was a presumption that Brewer’s use of marijuana was wrongful and/or
that
Brewer had the burden of proving that it was not, we find that the
instruction
was erroneous.
Next
we ask
whether the error was plain or obvious. The Government argues
that there
was no obvious error because the instruction was a correct statement of
the law
and was taken almost verbatim from the Benchbook.
However, despite
inclusion of this language in the Benchbook, the military judge
was
still under an obligation to evaluate the instruction and to determine
its
applicability to the case at hand. The Benchbook itself
states
that the instructions should be given “only if the subject matter of
the note
applies to the facts and circumstances of that case.” Benchbook
at ch. 1, ¶ 1-3(b). Otherwise, notes and the accompanying
instructions “are intended to explain the applicability of the
instruction
generally, or to alert the trial judge to optional elements or unusual
applications of the instruction.”
Under the permissive inference instruction given in this case, it would be difficult for a lay person to grasp the subtle distinction between a permissive inference and a rebuttable presumption, or to know the difference between a burden of proof and a burden of persuasion. Because the potential for confusion of these terms is obvious in a case such as this one, the need for more carefully crafted language and for further explanation of this language is obvious as well. See United States v. Curry, 38 M.J. 77, 81 (C.M.A. 1993) (“Even if we, as lawyers, can sift through the instructions and deduce what the judge must have meant, the factfinders were not lawyers and cannot be presumed to correctly resurrect the law.”). Even though the instruction was taken from the Benchbook, it was clearly erroneous under the particular circumstances of this case and therefore obvious error.2
3. Were the Above Errors Harmless Beyond a Reasonable Doubt?
In
regard to the
erroneous instruction, after finding obvious error we ask whether this
error
materially prejudiced Brewer’s substantial rights. Powell, 49 M.J. at 463-65. Because in this case we
have a
constitutional error, we must evaluate whether the Government has shown
that
the error was harmless beyond a reasonable doubt.
Brewer argues that neither of the errors was harmless beyond a reasonable doubt because they affected his ability to properly defend himself on the element of wrongful use. The Government contends that any error that did occur was harmless because of the extent of the evidence against Brewer.
We
find that excluding the four defense witnesses made it impossible for
Brewer to
present his defense that those who saw him most frequently over a
substantial
portion of the charged time frame had not seen him use marijuana,
possess
marijuana paraphernalia, or appear to be under the influence of
marijuana. This line of defense was
relevant to rebut the
inference that his use of marijuana was wrongful. While
the Government is correct that its
evidence was strong to support a finding that Brewer had the marijuana
in his
system, it relied solely on the permissive inference of wrongful use to
meet
that essential element of the charge. Therefore,
the exclusion of these witnesses
was not harmless beyond a reasonable doubt because without their
testimony that
permissive inference was left unchallenged.
This prejudice was compounded by the military judge’s confusing and erroneous instruction. Brewer was not permitted to challenge the inference that his use was wrongful, while at the same time reasonable members may have understood the instruction to require them to find the use wrongful if Brewer did not make a sufficient showing to the contrary. Brewer was left without recourse to rebut an essential element of the charge against him, and the Government was relieved of its burden to prove that element beyond a reasonable doubt. We find that these errors created prejudice to Brewer that is not harmless beyond a reasonable doubt.
DECISION
The decision of the United States Air Force Court of Criminal Appeals is reversed. The findings and sentence are set aside. The record is returned to the Judge Advocate General of the Air Force. A rehearing is authorized.
1
We granted three issues:
I.
WHETHER THE GOVERNMENT
IMPROPERLY SEVERED THE
APPELLANT'S RELATIONSHIP WITH HIS CONFIDENTIAL DEFENSE EXPERT
CONSULTANT.
II.
WHETHER
THE MILITARY JUDGE ERRED BY REFUSING TO PERMIT THE APPELLANT TO PRESENT
A
MOSAIC OF ALIBI WITNESSES TO COUNTER THE PERMISSIVE INFERENCE UNDER
ARTICLE
112a, UCMJ, CREATING AN ERROR VIOLATIVE OF THE DUE PROCESS CLAUSE.
III.
WHETHER
THE MILITARY JUDGE’S INSTRUCTIONS CREATED A MANDATORY REBUTTABLE
PRESUMPTION IN
VIOLATION OF THE DUE PROCESS CLAUSE THAT APPELLANT’S USE OF MARIJUANA
WAS
WRONGFUL.
Because
of our resolution of Issues II and III, we need not reach Issue I.
2
Although this issue was not reached by the Air Force court in this
case, it has
found on two previous occasions that giving this instruction
constitutes
error. See
CRAWFORD, Judge (dissenting):
I respectfully dissent from the majority’s analysis and disposition of both issues. As to Issue II, the majority finds a violation of due process because Appellant was not allowed to introduce specific acts of good character to rebut a permissive inference of knowing use of marijuana, despite Appellant’s own failure to take advantage of the Military Rules of Evidence and our decisions to introduce highly similar evidence under the “good soldier defense.”
As to Issue III, I respectfully dissent because the majority implicitly overrules the provisions of the Manual for Courts-Martial, United States (2002 ed.) (MCM), concerning modes of proof and fails properly to consider the plain error doctrine.
ISSUE II
FACTS
Appellant was randomly selected to give a urine sample, which tested positive for the use of marijuana. Based on this positive test result, the Government obtained a search authorization to seize hair samples from Appellant, which also tested positive. The Government expert testified that Appellant “had ingested [marijuana] on multiple occasions. . . .” In the expert’s opinion, Appellant had used marijuana at least thirty times over a twelve-month period preceding the seizing of the hair samples.
Appellant
asserts that these readings were the result of passive inhalation,
possibly
from individuals who were, unbeknownst to him, smoking marijuana at his
house
and sprinkling his food with marijuana. To support his unknowing,
unwitting, passive inhalation or ingestion, the Appellant sought to
call four
witnesses who did not live with him to testify that they had not
specifically
seen Appellant using drugs. Even though Appellant failed to take
advantage of our relaxed character evidence rules, the majority holds
there was
a violation of due process.
DISCUSSION
The Due
Process Clause “‘require[s] that only the
most basic
procedural safeguards be observed. . . .’”
The Bill of Rights speaks in explicit terms to many aspects of criminal procedure, and the expansion of those constitutional guarantees under the open-ended rubric of the Due Process Clause invites undue interference with both considered legislative judgments and the careful balance that the Constitution strikes between liberty and order.
The Military Rules of Evidence (M.R.E.) are “applicable in courts-martial . . .” M.R.E. 101. The rules governing admission of character evidence are set forth in M.R.E. 404, 405, and 608. These rules have been interpreted very expansively by this Court:
The broad availability of the good soldier defense is supported by many legal doctrines and policy arguments, but none withstand close analysis. Cloaked in the mantle of longstanding court-martial tradition, justified by doctrines of questionable salience, and preserved by judges resistant to the Military Rules of Evidence’s limitations on character evidence, the good soldier defense advances the perception that one of the privileges of high rank and long service is immunity from conviction at court-martial. The defense privileges a certain type of accused servicemember -- a person of high rank and reputation in the military community -- at the expense of the overall fairness of the court-martial system.
However
broadly read and applied, none of these rules permits evidence of
specific acts
of good character pertinent to the character trait Appellant wished to
prove. Unable to rely on any character evidence rule, the
majority relies
on the “relevance” of such evidence as an independent basis for
admissibility
of character evidence prohibited by other rules. Setting aside
for the
moment that relevance alone is not a cognizable category of character
evidence,
a hypothetical demonstrates the fallacy of the majority’s reliance on
relevance
at all. Assume a defendant is charged with vandalism of a car on
The majority would like to hold the opposite. Like Federal Rule of Evidence (Fed. R. Evid.) 405(b), M.R.E. 405(b) prohibits the introduction of specific instances of conduct unless “character or trait of character of a person is an essential element of an offense or defense. . . .” Character is an issue in criminal cases when the defense of entrapment is raised or a character for truthfulness is an essential element of the defense. In civil actions, specific instances are admissible when there has been a negligent entrustment, defamation, or liable actions. None of those applies in this case.
The drafters of the rules recognized that inferences from past behavior would be important, but excluded such proof under Fed. R. Evid. 405(a) (the model for M.R.E. 405(a)) reasoning that “[O]f the three methods of proving character provided by the rule, evidence of specific instances of conduct is the most convincing.” At the same time it possesses the greatest capacity to arouse prejudice, to confuse, to surprise and to consume time.” Fed. R. Evid. 405, Notes of Advisory Committee on Rules. Here, as indicated, the specific instances do not cover the relevant around-the-clock time period, nor could they.
Thus, I respectfully dissent from the further expansion of character evidence rules.
ISSUE III
FACTS
During the
preliminary instructions before voir dire, the military judge stated,
“The
accused is presumed to be innocent of the offense. The Government
has the
burden of proving the accused’s guilt by legal and competent evidence
beyond a
reasonable doubt.” Under oath, all of the members agreed with the
rule of
law that the accused “is presumed to be innocent until his guilt is
established
by legal and competent evidence beyond a reasonable doubt.” All
of the
members agreed to find the accused not guilty unless they were
“convinced
beyond a reasonable doubt . . .” of his guilt. They also agreed
that the
burden of proof to establish the accused’s guilt rests solely upon the
prosecution, that the burden never shifts to the defense to establish
the
accused’s innocence, and that the defense has no obligation to present
any
evidence or to disprove the elements of the offense. The members
also
recognized the distinction between “knowing ingestion of marijuana” and
“using
marijuana unknowingly, which is not a crime.”
The military judge instructed the court members:
Knowledge of the presence of the controlled substance is a required component of use. Knowledge of the presence of the controlled substance may be inferred from the presence of the controlled substance in the accused’s body or from other circumstantial evidence. This permissive inference may be legally sufficient to satisfy the government’s burden of proof as to knowledge.
To be punishable under Article 112a, use of a controlled substance must be wrongful. Use of a controlled substance is wrongful if it is without legal justification or authorization.
Use of a controlled substance is not wrongful if such act or acts are: (a) done pursuant to legitimate law enforcement activities (for example, an informant who is forced to use drugs as part of an undercover operation to keep from being discovered is not guilty of wrongful use); (b) done by authorized personnel in the performance of medical duties or experiments; or (c) done without knowledge of the contraband nature of the substance (for example, a person who uses marijuana, but actually believes it to be a lawful cigarette or cigar, is not guilty of wrongful use of marijuana).
Use of a controlled substance may be inferred to be wrongful in the absence of evidence to the contrary. However, the drawing of this inference is not required.
The burden of going forward with
evidence with
respect to any such exception in a court-martial shall be upon the
person
claiming its benefit.
If such an issue is raised by the
evidence
presented, then the burden of proof is upon the
Knowledge by the accused of the presence of the substance and knowledge of its contraband nature may be inferred from the surrounding circumstances. However, the drawing of any inference is not required.
Emphasis added.
Later, he instructed the members:
You are further advised, first, that the accused is presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt; . . . the burden of proof to establish the guilt of the accused beyond a reasonable doubt is on the government. The burden never shifts to the accused to establish innocence or to disprove the facts necessary to establish each element of the offense.
There was no objection to these instructions. The italicized portions of the military judge’s instructions were taken verbatim from the Manual for Courts-Martial United States (2000 ed.) (MCM), pt. IV, ¶ 37c(5). The instruction from the Military Judges’ Benchbook is as follows:
To be punishable under Article 112a, use of a controlled substance must be wrongful. Use of a controlled substance is wrongful if it is without legal justification or authorization. (Use of a controlled substance is not wrongful if such act or acts are: (a) done pursuant to legitimate law enforcement activities (for example, an informant who is forced to use drugs as part of an undercover operation to keep from being discovered is not guilty of wrongful use); or (b) done by authorized personnel in the performance of medical duties or experiments.)
Knowledge by the accused of the presence of the substance and knowledge of its contraband nature may be inferred from the surrounding circumstances (including but not limited to _________________). (You may infer from the presence of (________________) in the accused’s urine that the accused knew (he)(she) used (_________________).) However, the drawing of any inference is not required.
Use of a controlled substance may be inferred to be wrongful in the absence of evidence to the contrary. However, the drawing of this inference is not required.
Legal Services, Dep’t. of Army Pamphlet 27-9, Military Judges’ Benchbook, ch. 3, para. 3-37-2d (2001).
Defense Argument. Appellant argues it was error to instruct the members using the portion of the instruction highlighted above, because it created a “mandatory rebuttable presumption” that the Appellant’s use of marijuana was wrongful. He contends that “[a] reasonable court member could have interpreted the instruction as relieving the government of its burden of persuasion on the wrongfulness element and shifting that burden entirely to the appellant.” Thus a court member could have understood that “the government had no burden of any kind on the element of wrongfulness. . . .”
Government Argument. The Government argues the military judge’s instruction did not explicitly create a mandatory rebuttable presumption, because it did not direct the members to presume the use of marijuana was wrongful. To the contrary, the instruction properly allowed the members to infer the use was wrongful, but noted that the inference was not required.
DISCUSSION
There was no error. The prosecution is entitled to rely “‘on a permissive inference of wrongfulness, which has long been recognized by military law as flowing from proof of the predicate fact of use of’ the drug.” United States v. Ford, 23 M.J. 331, 333 (C.M.A. 1987)(citing United States v. Harper, 22 M.J. 157, 162 (C.M.A. 1986)). See also United States v. Pabon, 42 M.J. 404, 406 (C.A.A.F. 1995).
The
Supreme Court has stated that “[i]nferences and presumptions are a
staple of
our adversary system of fact-finding. It is often necessary for
the trier
of fact to determine the existence of an element of the crime -- that
is, an
‘ultimate’ or ‘elemental’ fact -- from the existence of one or more
‘evidentiary’ or ‘basic’ facts.”
Who creates presumptions and inferences. As
Justice Powell noted, presumptions may be created by legislative bodies
or
based on “common sense, and experience. . . .” Allen,
442
The courts have uniformly upheld the
assignment of
the initial burden to the defense as to duress, necessity, and mental
responsibility. In fact, as to this latter issue, the MCM
places
upon the defense not only the burden to rebut a presumption of sanity
but the
requirement to do so by clear and convincing evidence.2
Many special or affirmative defenses entail shifts of burdens and
permissible
inferences, e.g., entrapment and duress.
All that said, what this case entails
is a
permissive inference, permitted by the Supreme Court, our case law, the
President, and common sense. As to inferences and presumptions,
the
Supreme Court said:
The most common evidentiary device is the entirely permissive inference or presumption, which allows -- but does not require -- the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant. In that situation the basic fact may constitute prima facie evidence of the elemental fact. When reviewing this type of device, the Court has required the party challenging it to demonstrate its invalidity as applied to him. Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the “beyond a reasonable doubt” standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.
Allen, 442
Mandatory
presumption vs. permissible inference.
A mandatory presumption tells the trier of fact that he, she, or they must
find the elemental fact upon proof of the basic fact, unless the
defendant
has come forward with some evidence to rebut the presumed connection
between
the two facts.
In drug cases such as Appellant’s, members are allowed to infer
wrongful use.
This entirely permissive inference allows, but does not require,
the
trier of fact to infer the elemental fact (wrongfulness) from proof by
the
evidence of the basic fact (presence of the drug’s metabolite in one’s
system),
but places no burden of any kind on the defendant. In other
words, even
if the defendant were to introduce no evidence whatsoever, the members
would be
absolutely free to reject the permissive inference, find that the
Government
had not proved wrongful use, and acquit. Allen, 442
The key issue
in this case
was a sub-element of wrongfulness, i.e., whether there was knowing use
of a
controlled substance by Appellant. Unlike the case in which a
single use
of marijuana is alleged to have occurred when an accused accidentally
ate the
wrong brownie at a party, the evidence of knowing, multiple usage
by Appellant is overwhelming. Under these circumstances,
instructing on
the existence of a permissive inference of wrongfulness is nothing more
than a
reminder to the members that they need not check their common sense at
the door
to the deliberation room.
Initial
allocation. Contrary to Appellant’s argument, the
military
judge was explicit in his instruction that the burden of proving
wrongfulness
was on the Government, and that even if the
defense produced evidence to
support an unknowing or
otherwise lawful use, the burden of proving wrongfulness, beyond a
reasonable
doubt, remained with the Government. The burden of proof, with
regard to
innocence, never shifted to Appellant, nor did the military judge,
through his
instructions, create a rebuttable presumption of guilt. The
instructions
explained the element of wrongfulness, that the members could infer
wrongfulness, if they chose, and that in determining whether to make
that
inference, the members should consider evidence that could establish an
exception
to what might otherwise be a wrongful use. He also instructed the
members: “The burden of going forward with evidence with respect
to any
such exception in any court-martial shall be upon the person claiming
its
benefit.”
Fuller. In arguing that his case is similarly situated to United States v. Fuller, No. ACM 35058, 2004 CCA LEXIS 182, at *11-*16, 2004 WL 1539559 at *4-*6 (A.F. Ct. Crim. App. June 23, 2004)(unpublished opinion), Appellant fails to consider all the instructions given by the military judge in this case, particularly those on knowledge, innocent ingestion, and unknowing ingestion. The military judge appropriately tailored the standard instructions by including and highlighting the evidence raised by the defense. Finally, the military judge concluded his instructions by once again reminding the members that the “burden is on the prosecution to establish the guilt of the accused.”
Plain
error. Even if there were error, it was not
plain. There
was no objection by the defense in this case. R.C.M.
920(f). In fact, during the Article 39(a), UCMJ, session
on the
instruction, there was a discussion of these instructions and neither
side
commented upon it. In Johnson
v.
[B]efore
an appellate court can correct an error not raised at trial, there must
be (1)
“error,” (2) that is “plain,” and (3) that “affects substantial
rights.”
If all three conditions are met, an appellate court may then exercise
its
discretion to notice a forfeited error, but only if (4) the error
“‘seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.’”
520
There is no difference between
“affect[s]
substantial rights” and a “material[]
prejudice[] [of]
substantial rights” under Article 59(a), UCMJ, 10 U.S.C. §
859(a)(2000). See
United States v. Kho, 54 M.J. 63, 66 (C.A.A.F. 2000)(Crawford,
C.J., concurring in the result). Even if there were error
and it
was plain, it did not “affect substantial rights” or “seriously affect
the
fairness, integrity, or public reputation of the judicial
proceedings.” Johnson,
520
The
prosecution
also presented the results of Appellant’s hair analysis to support its
theory
that Appellant had used marijuana on divers
occasions
during the charged timeframe. The testing involved
dividing
hair segments taken from Appellant. As each segment
represented
approximately twelve months of growth, the hair analysis would suggest
a rough
idea of Appellant’s drug use for the twelve months prior to
THC cannot be found in hair unless the body actually metabolizes marijuana. The metabolite for marijuana in the hair is a strong indicator that the individual used marijuana, as it is virtually impossible for THC to enter the hair if the body has not metabolized the drug. Furthermore, expert testimony established that the person whose hair was tested in this case had ingested THC on multiple occasions in the time period.
Appellant’s hair certainly tested positive for marijuana, as did his urine. Appellant did not attack the lab testing procedures, only the interpretation of the results. In the expert’s opinion, based on the hair analysis alone, Appellant had used at least thirty recreational doses of marijuana for the twelve months preceding the date the hair sample was provided.
CONCLUSION
Any rational court-martial panel would have been convinced beyond a reasonable doubt that Appellant knowingly and wrongfully used marijuana, even had all of Appellant’s witnesses testified, and without any instruction on the permissive inference. The numbers from the hair testing alone speak for themselves. The defense evidence attempting to establish possible innocent ingestion and passive inhalation were simply unbelievable. There was also evidence of Appellant’s negative reactions during the search process.
The trial counsel did not rely on the allegedly erroneous instructions or even refer to them in his closing argument. Trial counsel summed up the theme of his argument by telling the members:
Convinced beyond a reasonable doubt. And in this case, it is absolutely there. It is absolutely in front of you. There is no reasonable hypothesis. The one presented by the defense is absolutely not reasonable. There is no other one. We have excluded all reasonable hypotheses to explain his situation.
During closing argument, defense counsel made certain the members understood the correct standard to apply. Defense counsel argued:
The standard you must apply is whether any reasonable doubt exists as to whether Master Sergeant Brewer knowingly and wrongfully used marijuana. . . .
You know, someone may feel that, “Well, I think he probably did it,” or, “He didn’t prove that the urine and hair tests -- he didn’t make any positive proof that the urine and hair tests were wrong.” Well, that is not the standard. . . .
Master Sergeant Brewer, according to the Judge’s instructions which you are going to hear, doesn’t have to prove anything. The burden also rests with the government.
Defense counsel went on to argue, “[w]e don’t have to present any alternative theory. The Government has to present the scenario that it must hold true beyond a reasonable doubt.”
Additionally, once both sides presented their findings arguments, the military judge instructed the members that “the burden of proof to establish the guilt of the accused beyond a reasonable doubt is on the government. The burden never shifts to the accused to establish his innocence or to disprove the facts necessary to establish each element of the offense.”
Under
these
circumstances, it is clear beyond a reasonable doubt that the
instructions at
issue were not erroneous and, even if they were, they did not unfairly
prejudice Appellant. Irrespective of the instructions, the
expert
testimony established beyond a reasonable doubt that Appellant used
marijuana
on multiple occasions. Even if all of Appellant’s evidence had
been
admitted, the overwhelming strength of the Government’s case and the
comparative
weakness of Appellant’s “alibi,” “character,” or “inference defeating”
evidence
lead me to conclude, beyond a reasonable doubt, that the trial results
would
have been the same.
Thus, I respectfully dissent from the majority’s expansion of the
Military
Rules of Evidence under the Due Process Clause, from its failure to
consider
the instructions of the military judge in the context of the entire
case, and
from its rejection of the modes of proof promulgated by the President.
1
See,
e.g., M.R.E. 104(b).
2 Rule
for Courts-Martial (R.C.M.) 916(k)(3)(A).
BAKER, Judge (dissenting):
I agree with the majority that the testimony of these witnesses was not admissible under Military Rule of Evidence (M.R.E.) 405(b). And, I share the majority’s general view that where the Government is allowed a permissive inference of wrongdoing from a drug test, an accused should be allowed some leeway in presenting a defense to counter the inference, especially where the Government is free to charge divers occasions, leaving the accused to defend every minute of every day or every week rather than address a specific act or date. And, in the drug test context, there is something symmetrical (and therefore seemingly fair) about an accused balancing the Government’s permissive inference with a permissive inference of his own that permits him to argue that if Witness A did not see drug activity on Tuesday then there must not have been drug activity on Tuesday night.
The Exclusion of the
Four
Defense Witnesses
The question in this case, however, is not whether the military judge might have permitted Appellant’s “exculpatory witness” testimony on a lenient theory of relevance, but whether the military judge abused his discretion when he did not do so. For the reasons stated below, the military judge did not abuse his discretion when he excluded the testimony of three of the four witnesses. With respect to the fourth witness, whose testimony was improperly excluded, the error was harmless.
As recounted in the majority opinion, four military witnesses would have testified on behalf of Appellant that they were with him and observed his behavior for much of the relevant time frame, and that if the accused had used marijuana they would likely have seen some evidence of it. Three witnesses worked with Appellant, one as his supervisor and two as his co-workers. They would have testified to their observations of Appellant during the daytime hours of the work week, stating that they had never seen evidence of drug use on the part of the Appellant. The fourth witness, Appellant’s close friend and a former Air Force staff sergeant, working as a civilian at Appellant’s duty station at the time, was prepared to testify that he spent significant time with Appellant every weekend and that while he never saw Appellant use drugs or observed him under the influence of drugs, he had observed Appellant’s nephew under the influence of marijuana.
According to defense counsel, such witnesses would have helped to “build our wall of proof one brick at a time.” Trial defense counsel argued for the admissibility of these witnesses’ statements by claiming, “as long as each brick is part of our wall, it is relevant.” The military judge ultimately granted the Government’s motion to exclude this testimony.
It
is undisputed
that an accused has a constitutional right to present relevant evidence
to
defend against the charges. That right, however, is not absolute.
The problem with Appellant’s theory of admissibility is that three of the four witness statements were not relevant to the issue of Appellant’s innocent ingestion of drugs.
Appellant did not contest that he had ingested drugs. The Government offered the results of a urinalysis and hair spectrum analysis on this point, and the results were undisputed. Appellant did not take the stand himself, but he did defend on the grounds that he had innocently ingested the drugs, and that the innocent ingestion was more than likely the result of his exposure to his nephew’s and his nephew’s friend’s illegal conduct in his house while Appellant was off-duty. In the words of his civilian defense counsel:
In September of 2000, Master Sergeant Brewer learned that his random urine sample had tested positive . . . .
. . . .
Master Sergeant Brewer, when learning of his sample, sat in the OSI office stunned, trying to figure out why did this come back positive? “Why was my sample positive for marijuana?”
Fortunately, in the intervening months, Master Sergeant Brewer has been able to find out what likely caused his sample to come back positive.
Now, following the chronology of this, when Master Sergeant Brewer came home that day, he spoke to his 20 year old nephew, Antron Harris –- he is called Tron for short -– about what had happened. And the next day, Tron suddenly moves out of that house. But Master Sergeant Brewer, at that time, didn’t connect the events at all.
. . . .
Over the next six or eight months, he spends a lot of time trying to figure out the answer to this question. He is discussing it with various people, researching it, and during one discussion, one unlikely discussion, he learns that Black ‘n Milds, Black ‘n Milds cigars, the kids will frequently unroll the tobacco from Black ‘n Mild cigars and Philly blunt cigars, cheap cigars that you can get at the 7-11, and fill them back up with marijuana so the cigar tobacco and the marijuana tobacco are together in the cigar and smoke that as a way of delivering marijuana to the body.
And he recalls -– this is when it starts to click –- that Tron, his nephew, smoked Black ‘n Mild cigars. He is unable to get a hold of Tron. He also starts thinking about one of the kids, Tron’s friend, who frequently was at the house that summer with Tron, basically his only friend in the area, a kid named D.J. And that kid was – kind of patterned his style, so to speak, after a rapper called –- a rap star called Eminem. . . .
But in connecting this and starting to think about this, he is thinking about, “Did Tron and D.J. bring marijuana into my house?” And he can’t get a hold of Tron . . . . But he remembers where D.J. works. He goes to D.J.’s work and he confronts him. Bingo.
. . . .
Not only
did they
smoke marijuana, but they ate marijuana. D.J. specifically
recalls on one
occasion, they put marijuana in some spaghetti sauce and ate it to get
high. And that was at the house -– Master Sergeant Brewer’s house.
The sauce
was kept
in Master Sergeant Brewer’s refrigerator like any other food, and it’s
probable
that by eating this sauce that Tron had spiked with marijuana, Master
Sergeant
Brewer tested positive for marijuana.
. . . .
There is no dispute about the science in this case. . . .
The reason we agree with the scientific expert -– substantially agree -- is that the conclusions that he reaches, the science in this case, the hair and urine testing, are not inconsistent with the scenario I described above. If Master Sergeant Brewer had unknowingly ingested marijuana by eating spaghetti sauce during the summer containing a drug, it’s not likely that he would have felt intoxicated.
But he likely would have tested positive on the urinalysis within a reasonable time after that. Moreover, if he ate it more than once, and many people will eat spaghetti as leftovers et cetera, it is also not inconsistent that his hair would test positive, his pubic hair, two months later, even twelve months later.
Emphasis added.
Subsequently, Appellant offered, and the military judge permitted, the testimony of his nephew’s friend, who admitted to smoking marijuana in the house and making food laced with the drug. However, three of the four excluded witnesses could only testify to Appellant’s conduct at work during duty hours. They were not competent to testify to Appellant’s nephew’s conduct or Appellant’s appearance or activities while outside the workplace. Therefore, it is not evident as to which fact of consequence their proffered testimony would have addressed.
Specifically, it is not evident how their testimony would have made it more or less probable that Appellant’s acknowledged drug ingestion at home, the place where he claimed the ingestion had occurred, was innocent or wrongful. These witnesses did not see it. These witnesses did not speak about it with Appellant. And the proffer made no suggestion that these witnesses were competent to testify regarding the conditions, practices, or behaviors in Appellant’s house.
With respect to the fourth excluded witness who intended to testify about Appellant’s off-duty activities and the suspected drug use of Appellant’s nephew, his testimony was improperly excluded. He would have provided evidence relevant to Appellant’s claim of innocently ingesting marijuana that had been brought into the house by his nephew. However, unlike the majority, I cannot determine that this error was a constitutional violation of Appellant’s due process right to defend against the charges against him.
The
right to offer
the testimony of witnesses is in plain terms the right to present a
defense and
the right to present the defendant’s version of the facts. Washington v.
In this case, the Appellant was able to present his defense of innocent ingestion. Though the Appellant never took the stand, his fiancée and a friend of his nephew both testified on his behalf, each asserting that they had never witnessed the Appellant using drugs. Additionally, the nephew’s friend testified at length about marijuana that was smoked in Appellant’s basement and food that was prepared at Appellant’s house that contained marijuana and possibly served to Appellant without his knowledge. While the excluded testimony of the fourth witness might have bolstered that defense, the omission did not deprive Appellant of his right to present it.
When
examining an
error that is nonconstitutional in nature, we seek to determine whether
the
error was harmless, not whether it was harmless beyond a reasonable
doubt.
To counter the Appellant’s argument that he had ingested marijuana unknowingly by passively inhaling the smoke caused by his nephew’s drug use in the basement, the Government presented extensive testimony from Dr. Carl Selavka. Dr. Selavka, the Director of the Massachusetts State Police Crime Laboratory and a forensic chemist and toxicologist, testified at length about passive inhalation studies that had been performed with known subjects who did not have prior marijuana in their systems. These studies sought to determine the likelihood of passive inhalation giving rise to positive findings in blood and urine samples. Dr. Selavka stated that such studies demonstrated that the less smoke is ingested and inhaled, the less metabolite will be detected in an individual’s biological tissues. Specifically, he detailed a study in which individuals were exposed to the second hand smoke from four marijuana cigarettes in a very small, closed environment for one hour at a time every day for six days. The individuals, according to the study, did not test positive for the Department of Defense cutoff after such exposure.
Likewise, Dr. Selavka testified, when asked about the likelihood of the Appellant testing positive for marijuana use after ingesting pasta sauce laced with the drug: “In the absence of other ingestions, there is just not enough ingestion of the THC over the time period represented by the hair to logically give rise to the positive finding from the spaghetti sauce scenario itself.” This testimony would have led the members to question Appellant’s theory by bringing to their attention that there were studies that demonstrated that his explanations for his positive drug tests simply were not plausible. Further, it is unlikely that any testimony from the excluded witness about the nephew’s drug use in the house would have negated Dr. Selavka’s testimony or persuaded the members that Appellant’s possible exposure to the drug was somehow distinguishable from the exposure of the individuals who participated in the study.
Additionally, the excluded testimony of the fourth witness would have directly contradicted evidence presented by the Appellant’s fiancée on the issue of drug use in their home. Specifically, she testified that she and the Appellant would not allow drugs to be used in their home. When questioned about whether she knew that Appellant’s nephew and his friend may have been using drugs in the basement, she responded: “I was never aware of it, but we were very strict about -– we didn’t allow anything like that in our house. But I never knew of it. He never did it in front of me.” She further stated that in the two years she lived in the home with Appellant, she never smelled anything or saw anything that would have lead her to believe that any marijuana use was occurring in their home, specifically in the basement.
The fourth witness would have testified that he noticed the smell of marijuana on Appellant’s nephew and his friend and that he observed them under the influence of the drug in the home. “I saw there [sic] eyes were red or squinting which I observed in others who were high on marijuana.” He also would have testified that he observed them in possession of drug paraphernalia. “I saw that they had Black and Mild cigars which are commonly used by young people to smoke marijuana.” If this witness had been found credible by the members, it is likely that his observations about the nephew’s drug use in the house would have undercut Appellant’s fiancée’s claim that they were very strict about marijuana not being allowed in the house and that there were no signs of it ever being present in the house, thus weakening his defense.
For these reasons, I do not believe the military judge abused his discretion with respect to three of the witnesses and with respect to the fourth, who was erroneously excluded, I believe that error was harmless. Accordingly, I respectfully dissent on Issue II.
The Military Judge’s
Instruction
I
also
respectfully dissent from the majority’s conclusion on Issue III.
To be
sure, the instruction at issue is no model of clarity. It is
confusing,
even to lawyers -- or particularly to lawyers -- who can dissect the
text and
legitimately parse alternative meaning from almost every word and
phrase.
For example, when read in isolation from the remainder of the
instructions, the
military judge’s statement, “If such an issue [an exception to wrongful
use] is
raised by the evidence presented, then the burden is on the
However, the question in this case is whether there was plain and obvious instructional error. This is not a case where the defense counsel objected and proposed alternative language. Nor is this case resolved by asking whether the instruction could be improved. That is plain and obvious. Among other things, plain English would improve the instruction. If confusion alone was the standard for plain error, then plain instructional error would occur with cascading regularity.
Based on the totality of the instructions provided by the military judge in the specific context of this case, I do not believe there was plain error. The one part of the military judge’s instructions that was unequivocally clear, and repetitive, was the part concerning his instructions that the Government never relinquished its burden to prove all the elements beyond a reasonable doubt. Thus, at the outset of his instructions the military judge stated: “The burden is on the prosecution to establish the guilt of the accused.” And at the close of his instructions the military judge stated:
You are further advised, first, that the accused is presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt . . . . And lastly, the burden of proof to establish the guilt of the accused beyond a reasonable doubt is on the government. The burden never shifts to the accused to establish innocence or to disprove the facts necessary to establish each element of the offense.
These instructions were not confusing, nor did they address obscure points of law. Further, these instructions bracketing the military judge’s instructional packet echoed the ingrained and basic understanding members would already have regarding the Government’s burden of proof. As a result, I do not think it is plain or obvious that the confusing language cited above and in the lead opinion would cause reasonable members to otherwise think the burden of proof was on the Appellant rather than the Government.
Based on the foregoing, I would affirm the decision of the United States Air Force Court of Criminal Appeals.
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