U.S. v. Brewer, 61 M.J. 425

Core Criminal Law Subjects: Defenses: Innocent Ingestion

1. the very nature of an innocent ingestion defense in a use-of-drugs case means that an accused cannot prove the time or place of his innocent ingestion, but can only suggest possible explanations; part of an innocent ingestion defense requires raising doubt in the minds of the members that the presence of a drug in an accused’s system came from a knowing and wrongful use of the drug; the testimony of witnesses who were with him and observed his behavior for much of the relevant time frame and saw no evidence of drug use provides grounds for the members to question whether to draw the inference that an accused’s drug use was wrongful, thereby raising a question as to an essential element of the charged offense; the use of a permissive inference of wrongful use by the government requires that a court allow an accused some leeway to rebut that inference by using such testimony; the military judge, of course, retains the power to limit repetitive testimony under MRE 403
2. in a use-of-drugs case, where the military judge precluded testimony from several witnesses who were with the accused and observed his behavior for much of the relevant time frame and saw no evidence of drug use, that ruling denied the accused the opportunity to present a line of defense on the element of wrongful use and violated his due process right to present witnesses in his own defense; few rights are more fundamental than that of an accused to present witnesses in his own defense; thus, the military judge abused his discretion in his ruling

Core Criminal Law Subjects: Evidence: Character

1. in a use-of-drugs case, where the accused sought to present evidence of innocent ingestion through the testimony of witnesses who were with him and observed his behavior for much of the relevant time frame and saw no evidence of drug use, this evidence was not admissible as character evidence under MRE 404 and 405 because character was not an essential element of that defense

Core Criminal Law Subjects: Evidence: Relevance

1. 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
2. in a use-of-drugs case, testimony from people who were with the accused and observed his behavior for much of the relevant time frame and saw no evidence of drug use goes to the issue of whether he knowingly and wrongfully used drugs on numerous occasions during the charged period; if the members found this testimony credible, it would have bolstered the accused’s innocent ingestion defense and thus was relevant; the use of a permissive inference of wrongful use by the government requires that a court allow the accused some leeway to rebut that inference by using such testimony; the military judge, of course, retains the power to limit repetitive testimony under MRE 403

Trial Stages: Merits: Instructions › Generally

1. where there is no objection to an instruction at trial, an appellate court will provide relief only if it finds plain error
2. where the instruction on the permissive inference of wrongful use of drugs begins by explaining that the drug use must be wrongful, identifies three situations in which use of a controlled substance is not wrongful, 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, 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, and finally, states that if such an issue is raised by the evidence presented, then the burden of proof is upon the United States to establish that the use was wrongful, that instruction is confusing; it 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; without such an explanation, a member may believe that it is the accused’s responsibility to prove that one of the exceptions applies, rather than simply to raise the issue by presenting some evidence to that effect; further, a member may believe that it is not until one of the exceptions has been proven by the accused that the burden shifts back to the government to show wrongful use; 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 the accused’s use of drugs was wrongful and/or the accused had the burden of proving that it was not, the instruction was erroneous
3. under the permissive inference of wrongful use of drugs 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 use-of-drugs case, the need for more carefully crafted language and for further explanation of this language is obvious as well; even though the instruction was taken from the Benchbook, it was clearly erroneous under the particular circumstances of this case and therefore obvious error

Trial Stages: Appeals: Harmless / Prejudicial Error

1. with regard to a military judge’s erroneous ruling excluding defense witnesses, because an accused has the right to present witnesses under the Constitution and RCM 703(b), the government must show that this error was harmless beyond a reasonable doubt
2. excluding several defense witnesses made it impossible for the accused to present his innocent ingestion 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’s evidence was strong (urinalysis and hair analysis) to support a finding that the accused had 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; the accused 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 he did not make a sufficient showing to the contrary; thus, the accused 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; these errors created prejudice to the accused that was not harmless beyond a reasonable doubt

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where there is no objection to an instruction at trial, an appellate court will provide relief only if it finds plain error; to meet the test for plain error, an appellant must show that there was error, the error was plain or obvious, and the error materially prejudiced his substantial rights; if the appellant meets this test, the burden shifts to the government to show that the error was harmless beyond a reasonable doubt; the court reviews these questions de novo

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews a military judge’s decision to admit or exclude evidence for abuse of discretion
2. where there is no objection to an instruction at trial, an appellate court will provide relief only if it finds plain error; to meet the test for plain error, an appellant must show that there was error, the error was plain or obvious, and the error materially prejudiced his substantial rights; if the appellant meets this test, the burden shifts to the government to show that the error was harmless beyond a reasonable doubt; the court reviews these questions de novo
3. to determine whether there was an instructional error in a military judge’s instruction to the members on the permissive inference of wrongful use in a use-of-drugs case, an appellate court asks whether a reasonable member could have interpreted the instruction to create a mandatory presumption of wrongfulness in favor of the government
4. where an appellate court finds a constitutional error, it must evaluate whether the government has shown that the error was harmless beyond a reasonable doubt