                       UNITED STATES, Appellee

                                    v.

            Hector R. GONZALEZ Jr., Airman First Class
                     U.S. Air Force, Appellant

                              No. 03-0394

                         Crim. App. No. 34691

       United States Court of Appeals for the Armed Forces

                       Argued October 19, 2005

                       Decided February 1, 2006

ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and CRAWFORD, EFFRON, and BAKER, JJ., joined.

                                 Counsel

For Appellant: Captain John N. Page III (argued); Colonel
Carlos L. McDade, Colonel Beverly B. Knott, Major Terry L.
McElyea, Major Sandra K. Whittington, and Captain Jennifer K.
Martwick (on brief).

For Appellee: Major Jin-Hwa L. Frazier (argued); Lieutenant
Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer, and
Major John C. Johnson (on brief); Captain Matthew J. Mulbarger.

Military Judge:   Kirk R. Granier


       This opinion is subject to revision before final publication.
United States v. Gonzalez Jr., No. 03-0394/AF

     Judge ERDMANN delivered the opinion of the court.

     Airman First Class Hector Gonzalez pled guilty to wrongful

possession of marijuana in violation of Article 112a, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 912a (2000).

Gonzalez pled not guilty to wrongful use of ecstasy and carrying

a concealed weapon in violation of Articles 112a and 134 of the

UCMJ, respectively.    10 U.S.C. §§ 912a, 934 (2000).   He was

convicted on all of the charges and sentenced to a bad-conduct

discharge, 148 days of confinement, forfeiture of all pay and

allowances and a reduction in grade to E-1.   The convening

authority approved the sentence and the findings and sentence

were affirmed by the United States Air Force Court of Criminal

Appeals in an unpublished opinion.    United States v. Gonzalez,

No. ACM 34691, 2003 CCA LEXIS 57, 2003 WL 827254 (A.F. Ct. Crim.

App. Feb. 28, 2003).   On appeal, this court set aside the Air

Force court’s decision and remanded for reconsideration of a

specified issue.   United States v. Gonzalez, 59 M.J. 159

(C.A.A.F. 2003).   Following the Air Force court’s ruling on

remand, United States v. Gonzalez, No. ACM 34691, 2004 CCA LEXIS

198, 2004 WL 1944723 (A.F. Ct. Crim. App. Aug. 17, 2004), this

court again granted review.

     Where the Government fails to disclose discoverable

material pursuant to a specific request, “the appellant will be

entitled to relief unless the Government can show that



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United States v. Gonzalez Jr., No. 03-0394/AF

nondisclosure was harmless beyond a reasonable doubt.”     United

States v. Roberts, 59 M.J. 323, 327 (C.A.A.F. 2004).      We have

previously held that the Government’s failure to turn over a

Brooks Laboratory Discrepancy Report was error under Rule for

Courts-Martial (R.C.M.) 701(a)(2)(B).     United States v. Jackson,

59 M.J. 330, 335 (C.A.A.F. 2004).      We have also held that the

Government’s failure to turn over the Discrepancy Report is to

be treated as prejudicial error where the other available

evidence does not constitute “independent evidence of illegal

drug use.”    Id.   Where there is sufficient independent evidence

of illegal drug use, the Government’s error may be treated as

harmless.    We granted review in this case to determine if there

was sufficient independent evidence that Gonzalez had wrongfully

used ecstasy.    We also considered whether defense counsel was

ineffective in failing to discover that that the Discrepancy

Report was not provided.1    We find that the Government’s failure

to turn over the report was erroneous, but that the error was


1
    We granted review of the following issues:
       WHETHER BRADY v. MARYLAND, 373 U.S. 83 (1963), AND R.C.M.
       701 REQUIRED THE GOVERNMENT TO DISCLOSE EVIDENCE REGARDING
       AN AUGUST 2000 BROOKS LAB ANALYTICAL FALSE POSITIVE
       URINALYSIS RESULT AND PREJUDICIALLY ERRED IN FAILING TO DO
       SO.

       WHETHER THE COURT OF CRIMINAL APPEALS ERRED ON REMAND WHEN
       IT FOUND NO INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE
       DEFENSE COUNSEL FAILED TO DISCOVER EXCULPATORY EVIDENCE
       REGARDING AN AUGUST 2000 BROOKS LAB ANALYTICAL FALSE
       POSITIVE URINALYSIS RESULT.



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United States v. Gonzalez Jr., No. 03-0394/AF

harmless beyond a reasonable doubt.    We also find that that

Gonzalez was not denied effective assistance of counsel.

                           BACKGROUND

     Agents from the Air Force Office of Special Investigations

(OSI) called Gonzalez into their office for questioning after a

pacifier believed to belong to Gonzalez was found at the Central

Quarters (CQ) desk in Gonzalez’s dormitory.   The Military

Training Leader who found the pacifier knew that Gonzalez had no

children and that pacifiers are considered drug paraphernalia

associated with ecstasy use.   During the OSI interview Gonzalez

admitted to sucking on the pacifier found at the CQ desk and

attending at least one “rave” party.    He claimed that he

innocently ingested ecstasy at that rave and he expressed

familiarity with the effects of ecstasy.   Gonzalez consented to

a search of his dormitory room, his car and a rental car.    The

search uncovered two more pacifiers and more than a dozen fliers

advertising raves.

     Gonzalez also consented to a urinalysis, which was positive

for ecstasy,2 and the observer from his drug test testified that

Gonzalez behaved oddly during the test, stating that he was

“excited” and “talkative” and that “his eyes were a little


2
  There was testimony at trial that the metabolites found in
Gonzalez’s urine could not have been the result of the alleged
innocent ingestion incident, which had allegedly occurred
sixteen days earlier.


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United States v. Gonzalez Jr., No. 03-0394/AF

glassy.”    Several months later, Gonzalez’s car was searched as

he tried to enter Sheppard Air Force Base because Security

Forces had reason to believe that Gonzalez had stolen a gun.

The search turned up a weapon, as well as a baggie of marijuana.

        Gonzalez’s urine sample was tested by the Air Force Drug

Testing Laboratory at Brooks Air Force Base in early September

2000.    Aware that the Government would rely heavily on the

results of his drug test, Gonzalez made several discovery

requests for background information relevant to the drug-testing

program at the Brooks Lab.    He asked for reports created at or

written about the Brooks Lab, particularly those concerning

inspections, “false positives” and “false negatives”,

contamination, misplacement and mishandling of samples, and any

testing, processing or administrative errors.    He also asked for

reports written in the month Gonzalez’s sample was tested as

well as several preceding and following months.

        In response the Government produced quality assurance

monthly inspection reports for June through October 2000.       The

Government also produced five months of quality control monthly

reports, including a report dated August 10, 2000, which

included the annotations “BQC Unacceptable – 1,” and “Technician

Error – 1”.    The Government also produced fourteen discrepancy




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United States v. Gonzalez Jr., No. 03-0394/AF

reports, including five from August 2000 and one from September

2000.3

     The Government did not, however, produce an August 2, 2000

Discrepancy Report, which explained that on July 31, 2000 the

lab had improperly identified a negative “blind quality control”

specimen as positive for cocaine metabolites.   That report also

explained that no conclusion could be drawn about what caused

the false positive result and that all lab personnel were

encouraged to “pay closer attention” to their tasks.   The false

positive quality control sample was processed by the lab one

month before Gonzalez’s sample was tested and at least one of

the employees who handled the misidentified quality control

sample also handled Gonzalez’s sample.

     It is of some significance that the Discrepancy Report

which was not produced was the only one that described a false

positive result.   The others produced by the Government

concerned ten incidents where the intralaboratory chain of

custody was broken –- including several instances of employees

forgetting to properly sign or annotate the chain of custody

sheet, one where a chemist failed to perform an “in-run prime”


3
  A discrepancy report is generated any time the Quality
Assurance section of the Brooks Lab determines that there was
some deviation from standard procedures or some problem with a
quality control sample. The report identifies each individual
who handled the specimen in question, reaches a conclusion about
the cause and impact of the error and makes a recommendation
about how similar problems can be avoided in the future.

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United States v. Gonzalez Jr., No. 03-0394/AF

when restarting the equipment after a mechanical failure, one

instance of unacceptable chromatography, and two incidents of

improperly performed extractions.

        At trial, Lieutenant Colonel Dale Haak, an Army Drug

Testing Program Manager and expert in forensic toxicology and

biochemistry, testified concerning the results of Gonzalez’s

drug test, as well as the Brooks Lab quality control procedures.

He testified about the difference between internal and external,

and open and blind quality controls.       He testified that Brooks

Lab has never misanalyzed an external quality control sample and

that there was no error with regard to the controls run in the

same batch as Gonzalez’s sample.       On cross-examination, however,

Haak testified that internal blind quality control samples come

back with incorrect results approximately two percent of the

time.

                              DISCUSSION

I.      Failure to Produce August 2 Discrepancy Report

        Rule for Courts-Martial 701 (a)(2)(B) requires the

Government, upon request, to turn over “results or reports . . .

of scientific tests or experiments” that are “material to the

preparation of the defense.”    When a defendant makes a specific

request for discoverable information, it is error if the

Government does not provide the requested information, and “the

appellant will be entitled to relief unless the Government can



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United States v. Gonzalez Jr., No. 03-0394/AF

show that nondisclosure was harmless beyond a reasonable doubt.”

Roberts, 59 M.J. at 327.   Harmless beyond a reasonable doubt is

a high standard, but it is not an impossible standard for the

Government to meet.   See Neder v. United States, 527 U.S. 1, 18

(1999) (“To set a barrier so high that it could never be

surmounted would justify the very criticism that spawned the

harmless-error doctrine in the first place: ‘Reversal for error,

regardless of its effect on the judgment, encourages litigants

to abuse the judicial process and bestirs the public to ridicule

it.’”) (quoting R. Traynor, The Riddle of Harmless Error 50

(1970)); United States v. Vazquez-Rivera, 407 F.3d 476, 489-90

(1st Cir. 2005) (describing harmless beyond a reasonable doubt

as “an extremely difficult, but not impossible, standard to

meet”).   We have previously held that the Government’s failure

to turn over the August 2 Discrepancy Report should be treated

as prejudicial error where the other available evidence does not

constitute “independent evidence of illegal drug use.”   Jackson,

59 M.J. at 335.

     There is no dispute in this case that Gonzalez made a

specific request for documents concerning the operations and

accuracy of the Brooks Lab.   It is equally clear that the

Government did not produce the August 2 Discrepancy Report.    The

Government’s failure to provide the Discrepancy Report violated

Gonzalez’s right to discovery under R.C.M. 701(a)(2)(B).



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United States v. Gonzalez Jr., No. 03-0394/AF

Jackson, 59 M.J. at 335.   Thus, there was error and the burden

is on the Government to show that it was harmless beyond a

reasonable doubt.

     With respect to prejudice, this case differs from our prior

cases due to the level and character of the independent evidence

of illegal drug use.   See Jackson, 59 M.J. at 335; see also

United States v. Israel, 60 M.J. 485, 486 (C.A.A.F. 2005).      In

addition to the positive drug test, the prosecution introduced

independent evidence of drug use including evidence that

Gonzalez had drug paraphernalia associated with ecstasy both in

his car and at his work station, and that he had sucked on at

least one of the pacifiers.4   Gonzalez also admitted that he

attended at least one rave party and had fliers for thirteen

rave parties in his car.   Although drug use is not a necessary

element of a rave, the two are often linked.5


4
  Pacifiers are linked to ecstasy because they alleviate the
involuntary tightening of the jaw muscles and grinding of the
teeth that can be caused by ecstasy use. See McClure v.
Ashcroft, 335 F.3d 404, 407 (5th Cir. 2003).
5
  Merriam-Webster’s Collegiate Dictionary defines a rave as “a
large overnight dance party featuring techno music and usu[ally]
involving the taking of mind-altering drugs.” Merriam-Webster’s
Collegiate Dictionary 1033 (11th ed. 2004); see also Nat’l Drug
Intelligence Center, U.S. Dep’t of Justice, Information
Bulletin: Raves, Prod. No. 2001-L0424-004 (Apr. 2001),
available at
http://www.prevlink.org/clearinghouse/catalog/drugs/club_drugs/r
aves.pdf (last visited Feb. 1, 2006) (“While techno music and
light shows are essential to raves, drugs such as MDMA . . .
[ecstasy], ketamine, GHB . . . , Rohypnol, and LSD . . . , have
become an integral component of the rave culture.”); United

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United States v. Gonzalez Jr., No. 03-0394/AF

     Gonzalez also admitted to prior drug use and to possession.

He told investigators that he innocently ingested ecstasy at a

rave he attended and testified that he was familiar with its

effects.   The observer at Gonzalez’s drug test testified that he

behaved oddly during the test and that he was “excited” and

“talkative” and that “his eyes were a little glassy.”

Additionally, Gonzalez pled guilty to possessing marijuana.

     We have taken into account the available independent

evidence that Gonzalez used ecstasy and weighed that evidence

against the claimed error.   Although the missing Discrepancy

Report may have raised some questions about the accuracy of the

testing process at the Brooks Lab, we also considered that

Gonzalez’s urine sample was subjected to four different tests,

each of which showed positive for ecstasy use.   When the missing

report is balanced with the evidence arrayed against Gonzalez,

the scales tip strongly in favor of Gonzalez’s conviction.

Thus, we conclude that the Government’s error in failing to

produce the Discrepancy Report was harmless beyond a reasonable

doubt.



States v. Price, No. ACM 33503, 2001 CCA LEXIS 103, at *10, 2001
WL 322121, at *3 (A.F. Ct. Crim. App. Mar. 30, 2001) (defining a
rave as “a dance or music party at which drugs are known to be
readily available”); People v. Fitzner, No. 233210, 2002 Mich.
App. LEXIS 1885, at *1 n.2 2002 WL 31947943, at *1 n.2 (Mich.
Ct. App. Dec. 3, 2002) (“a ‘rave’ party is marked by dancing,
music and drugs, often in an abandoned warehouse and typically
‘after hours’”).


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United States v. Gonzalez Jr., No. 03-0394/AF

      Our finding of harmlessness is further supported by

testimony elicited at trial concerning internal blind quality

control error rates at the Brooks Lab.    Although the August 2

Discrepancy Report was not produced, defense counsel had

sufficient information to attack the reliability of the

laboratory testing process.   During the cross-examination of

Haak, defense counsel elicited testimony that approximately two

percent of internal blind aliquots are reported as false

positives or with other incorrect results.   Thus, while the

Government’s failure to produce the Discrepancy Report remains

error, the evidence the defense would have introduced if it had

the Discrepancy Report would have been to some degree cumulative

of the overall false positive rate already in evidence.     In

addition, Gonzalez was tried by a military judge sitting alone.

The expert testimony provided by Haak was of a type that is

regularly considered by military judges.   Accordingly, it is

unlikely that the missing Discrepancy Report would have had a

substantial impact on the military judge’s ruling in light of

the four different positive test results that were also in

evidence.

II.   Ineffective Assistance of Counsel

      Servicemembers are guaranteed the right to effective

assistance of counsel at trials by court-martial.   United States

v. Davis, 60 M.J. 469, 473 (C.A.A.F. 2005) (citing United States



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United States v. Gonzalez Jr., No. 03-0394/AF

v. Knight, 53 M.J. 340, 342 (C.A.A.F. 2000)).    Gonzalez alleges

that he received ineffective assistance of counsel because his

counsel failed to determine, based on the documents produced by

the Government, that the August 2 Discrepancy Report existed and

had not been produced.

     Under Strickland v. Washington, 466 U.S. 668, 687 (1984),

Gonzalez must show both that his counsel’s performance was

deficient and that the deficiencies were so serious as to

deprive him of a fair trial.   An appellant “who seeks to

relitigate a trial by claiming ineffective assistance of counsel

must surmount a very high hurdle.”    United States v. Saintaude,

61 M.J. 175, 179 (C.A.A.F. 2005) (quoting United States v.

Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997) (quotation marks

omitted)).   There is a presumption that counsel provided

adequate professional service.   United States v. Garcia, 59 M.J.

447, 450 (C.A.A.F. 2004).    This presumption is rebutted only by

“a showing of specific errors made by defense counsel that were

unreasonable under prevailing professional norms.”   Davis, 60

M.J. at 473 (citing United States v. McConnell, 55 M.J. 479, 482

(C.A.A.F. 2001)).   In addition, even where counsel made an

error, the error must have been so prejudicial “as to indicate a

denial of a fair trial or a trial whose result is unreliable.”

Davis, 60 M.J. at 473 (citing United States v. Dewrell, 55 M.J.

131, 133 (C.A.A.F. 2001)).   As we have previously explained,



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United States v. Gonzalez Jr., No. 03-0394/AF

this court applies a three-prong test to determine if the

presumption of competence has been overcome:

     (1)   Are the allegations true; if so, “is there a
           reasonable explanation for counsel’s actions?”;

     (2)   If the allegations are true, did defense counsel’s
           level of advocacy fall “measurably below the
           performance . . . [ordinarily expected] of fallible
           lawyers?”; and

     (3)   If defense counsel was ineffective, is there a
           “reasonable probability that, absent the errors,”
           there would have been a different result?

Garcia, 59 M.J. at 450 (citing United States v. Grigoruk, 56

M.J. 304, 307 (C.A.A.F. 2002)).    Where the case can be resolved

by addressing the third prong -- the question of prejudice --

first, the court need not determine whether counsel’s

performance was deficient.   United States v. Quick, 59 M.J. 383,

386 (C.A.A.F. 2004) (citing Strickland, 46 U.S. at 697).

     Applying the Grigoruk three-prong test, we find that

Gonzalez did not receive ineffective assistance of counsel

because there is no reasonable probability that the missing

Discrepancy Report would have produced a different result.     As

we noted above, there was enough independent evidence that

Gonzalez used ecstasy that the Government’s failure to turn over

the report was harmless error.    For the same reasons, we cannot

say that if defense counsel had read all of the materials that

were produced, drawn all reasonable inferences and conclusions

from the materials and made further inquiry into the meaning of



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United States v. Gonzalez Jr., No. 03-0394/AF

the notations “BQC Unacceptable – 1” and “Technician Error – 1,”

any additional documents that might have been produced by the

Government would have changed the outcome of this case,

especially in light of the fact that it was a bench trial.    As

Gonzalez has not established that his counsel’s performance

prejudiced the outcome of his case, he has not established that

his Sixth Amendment right to counsel was violated.

                            DECISION

     The decision of the Court of Criminal Appeals for the

United States Air Force is affirmed.




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