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BOZIN v. SECRETARY OF THE NAVY

April 1, 1987

Steven B. Bozin, Plaintiff,
v.
Secretary of the Navy, Defendant



The opinion of the court was delivered by: GASCH

 Oliver Gasch, Senior Judge.

 I. INTRODUCTION

 This case arises on review of a Marine Corps Special Court-Martial in which plaintiff Steven Bozin was convicted for using marijuana "on or near" the Marine Corps Air Station in Beaufort, South Carolina. Plaintiff urges that the court-martial conviction should be invalidated as violative of due process on five separate grounds. The five issues raised by plaintiff are: (1) whether due process was unconstitutionally abrogated since the trial and appellate military judges lacked the protection of a term of office; (2) whether the government failed to prove its case against plaintiff beyond a reasonable doubt; (3) whether the court-martial lacked jurisdiction because the offense was not "service-connected"; (4) whether plaintiff was denied a fair trial because the prosecutor's argument was inflammatory and prejudicial; and, (5) whether use of drug test results to obtain a criminal conviction of plaintiff violated his equal protection rights where evidence of drug testing may not be used in a criminal proceeding against civilian employees of the Federal Government pursuant to Executive Order 12564, 51 Fed. Reg. 32889 (Sept. 15, 1986).

 II. BACKGROUND

 Plaintiff, prior to his court-martial conviction, was a staff sergeant with eleven years of service in the United States Marine Corps. Amended Complaint at para. 4. At the time of the offense alleged in his conviction, plaintiff was assigned to "Animal Control" at the Marine Corps Air Station in Beaufort, South Carolina. See Court-Martial Transcript ("Tr.") at 307. His duties at this job were primarily dog catching and the entrapment of rabid animals. Id.

 On September 17, 1984, plaintiff and other on-duty personnel provided urine samples for drug testing. Tr. at 52-53. This was a "surprise test" conducted by the Military Police. Id. Bozin's urine sample tested positive for the presence of tetrahydrocannabinol ("THC") or marijuana metabolites under the radioimmunology assay method of testing. The test result was confirmed by means of the Gas Liquid Chromatography/Mass Spectrometry ("GC/MS") test. Tr. at 85-90. The GC/MS test revealed that Bozin's sample had a THC level of 65 nanograms per milliliter. Tr. at 89. Under the Department of Defense ("DOD") standards, a urine sample tests positive for the presence of THC if there is a level of 20 nanograms per milliliter under the GC/MS test. Tr. at 90.

 On December 5, 1984, plaintiff was charged with violating the Uniform Code of Military Justice ("UCMJ"), 10 U.S.C. ยง 912a (1985). Specifically, the charge read that plaintiff ". . . did on or near Marine Air Corps Station, Beaufort, South Carolina, during the period from on or about 19 August 1984 to on or about 18 September 1984, wrongfully use marijuana, a schedule I controlled substance." Tr. at 7. From January 14 to January 16, 1985, a Special Court-Martial tried plaintiff for the above charge. The presiding military judge *fn1" invited both parties to conduct voir dire upon him, however, both parties declined the opportunity. Tr. at 5. At the commencement of trial, plaintiff elected to have his case heard by a military jury, one third of which would consist of enlisted personnel. Tr. at 5-6.

 The trial record below is of considerable length. Discussion of the evidence produced is warranted, however, given plaintiff's contention that his conviction was inadequately proven. The government produced considerable evidence of the manner in which the urine sample at issue was taken, the controls over chain of custody of that sample, and samples in general, and expert evidence regarding testing techniques and results. Tr. at 52-103. There is no claim by plaintiff that the urine sample was not his, or that the testing procedures were faulty or the result of tampering. There is some evidence that on the day plaintiff's urine was tested, plaintiff expressed to the officers in charge his skepticism of urinalysis testing in the Marine Corps. *fn2"

 At trial, Bozin testified that he had never smoked marijuana in his life. Tr. at 147. Bozin further testified that the day before the urinalysis test, he attended a party at the home of Staff Sergeant Gregory Gostomski and his wife, Jane. Tr. at 138-40. Bozin stated that he had consumed six beers before arriving at the party at noon. He proceeded to consume three more beers while at the party and then fell asleep on the couch until he left in the evening. *fn3"

 Mrs. Gostomski testified that during the afternoon, she and some civilian friends, who did not testify, smoked three marijuana cigarettes in the living room where Bozin apparently slept. Tr. at 152-57. *fn4" She further stated that, as a "joke," she put the burning end of a "joint" into her mouth, closed her lips, and blew smoke toward plaintiff's mouth. *fn5" Tr. 153-55. According to testimony, she blew this smoke toward plaintiff's mouth for forty-five seconds as he lay sleeping. Tr. at 155-56. Mrs. Gostomski also testified that she had known plaintiff for eight months and had never seen him smoke marijuana. Tr. at 154.

 The smoking of marijuana in the Gostomski home was corroborated by other witnesses. Corporal Michael L. Gish testified that he was playing horseshoes in the Gostomski yard but saw and smelled marijuana smoke as he passed through the living room. Tr. at 111-15. Sergeant Thomas L. Cox and Staff Sgt. Gostomski also testified that they smelled marijuana smoke that day. Tr. at 131, 163-64. None of these individuals testified that they saw anyone actually smoking it. Id. According to plaintiff's testimony, he was unaware that he had been "shot gunned" at the party until Mrs. Gostomski related the incident to him three or four weeks before trial. Tr. at 144. *fn6"

 In his defense, plaintiff called an expert, Dr. W. J. Cooke, to testify about Bozin's urinalysis results, the potential for passive inhalation of marijuana smoke and variables which may affect a positive test result from passive inhalation, such as cigarette smoking and dehydration through alcohol consumption. Tr. 174-204. Dr. Cooke stated that a scientific "possibility" existed that a positive test result under DOD criteria could result from the circumstances described by Mrs. Gostomski. Tr. 195-96. The government, in turn, called to the stand a Dr. L. L. Pitts, who testified that it was "extremely unlikely" that anyone sleeping in the Gostomski living room, under the conditions described, would have tested positive under the DOD drug screening criteria. Tr. at 220.

 Additionally, there was evidence regarding plaintiff's credibility. On rebuttal, Gunnery Sergeant Guerra, Master Sergeant Goodman and Lieutenant Thomas, all of whom had known Bozin from eight to sixteen months and had worked with him, testified as to their opinion of plaintiff's truthfulness. Each of these individuals stated that he would not believe plaintiff if he testified under oath. Tr. at 208-15. Plaintiff called Harry Edward Palmer, a retired Sergeant Major who had known Bozin for about a year through contact at a gym. Palmer testified that plaintiff had a good reputation in the community for truthfulness. Tr. at 237-38.

 At one point during closing argument, the government counsel referred to Bozin's testimony as "lies." *fn7" Tr. at 265. The defense objected to this statement as improper. In a brief recess, the military judge did not agree that the statement constituted an improper argument but directed government counsel to "stay away from such characterizations." *fn8" Tr. at 266. No other objections to the prosecutor's argument are indicated in the record. Neither side objected to the trial court's instructions, or requested additional instructions. Tr. at 275.

 
Appellant alleges that the evidence failed to establish his guilt beyond a reasonable doubt. We disagree. The Government presented evidence that appellant's urine was properly tested and showed positively the presence of a marijuana metabolite, THC. This Court has found that urinalysis results alone are sufficient to prove beyond a reasonable doubt the wrongful use of marijuana. United States v. Harper, No. 84 2334 (NMCMR 10 September 1984), pet. granted, 20 M.J. 331 (C.M.A. 1985). Once the Government presents evidence of use, such use may be inferred to be wrongful and knowing. An accused then has the burden of going forward with evidence of the absence of knowledge. Para. 37c (5), Part IV, Manual for Courts-Martial, 1984. In the case sub judice, appellant presented evidence that he did not remember using marijuana and that a friend had, without his permission or knowledge, blown marijuana smoke into his mouth while he was sleeping. The Government, in rebuttal, presented opinion testimony of appellant's untruthfulness and expert testimony of the extreme improbability that the circumstances presented by appellant would have resulted in a positive urinalysis result. In addition, several of appellant's own witnesses gave conflicting testimony concerning the events upon which appellant based his defense, thereby further discrediting his story. We therefore find that the Government presented evidence of sufficient weight to justify an inference of knowing and wrongful use of marijuana and to rebut appellant's incredible testimony to the contrary.
 
Appellant also contends that the punishment awarded him was excessive. We again disagree. We find a bad-conduct discharge appropriate for a staff noncommissioned officer (E-6) in the Marine Corps with a prior special court-martial conviction who is convicted of using marijuana.
 
Accordingly, the findings of guilty and sentence, as approved on review below, are affirmed.

 Slip Op. at 2. On April 6, 1986, the United States Court of Military Appeals denied plaintiff's petition for a grant of review.

 III. DISCUSSION

 A. Term of Office for Military Judges

 Plaintiff contends that he was denied due process since the military judges, who heard his case at the trial and appellate levels, were not serving for a fixed term of years. Plaintiff correctly notes that due process requires a judge to be fair and impartial and that this doctrine typically is raised where elements of judicial prejudgment exist toward a particular litigant or issue. Plaintiff does not allege, however, that there was any evidence of this type of judicial prejudgment in his case. Plaintiff's objections are more structural. Specifically, plaintiff asserts that "a judge who has no guaranty that he or she will serve either for life or for a fixed period lacks the independence required by the due process clause for criminal cases." *fn9" Plaintiff's Motion for Partial Summary Judgment at 20.

 The Court rejects plaintiff's argument for a number of reasons. Plaintiff's argument suggests that all courts-martial are, and have been, unconstitutional since no military judge serves a term of years. The Court notes that some commentators have criticized this aspect of military justice. *fn10" Indeed, plaintiff's counsel has written his own article on the very ...


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