United States v. Dunn

CCA S31584. On further consideration of the granted issue (69 M.J. 457-58 (C.A.A.F. 2010)), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for consideration of the granted issue in light of United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011), United States v. Blazier, 69 M.J. 218 (C.A.A.F. 2010), and United States v. Blazier, 68 M.J. 439 (C.A.A.F. 2010), and to determine whether the erroneous admission of the cover memoranda and specimen custody documents of the drug testing report was harmless beyond a reasonable doubt.1

(concurring in the result): I affirm my dissenting vote in United States v. Sweeney, 70 M.J. 296, 306-13 (Baker, J., joined by Stucky, J., concurring in part and dissenting in part). I write separately given a notable factual difference from Sweeney. The accused was subjected to a urinalysis test because of his erratic behavior and because he was an informant. It is not entirely clear whether these facts would change the primary purpose of the test or the statements made pursuant thereto. Given this difference, and because this Court is not otherwise considering its significance, I agree that setting aside the United States Air Force Court of Criminal Appeals’ decision and remanding is the most appropriate option.

(dissenting): I would affirm based on the analysis of the Court of Criminal Appeals in this case and based on my separate opinion in United States v. Sweeney, 70 M.J. 296, 306-13 (C.A.A.F. 2011) (Baker, J., joined by Stucky, J., concurring in part and dissenting in part).