United States v. Sweeney , 70 M.J. 296 ( 2011 )

UNITED STATES, Appellee
v.
Joseph A. SWEENEY, Chief Legalman
United States Navy, Appellant
No. 10-0461
Crim. App. No. 200900468
United States Court of Appeals for the Armed Forces
Argued May 17, 2011
Decided August 30, 2011
RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, J., joined. BAKER, J., filed a separate
opinion concurring in part and dissenting in part, in which
STUCKY, J., joined.
Counsel
For Appellant: Major Kirk Sripinyo, USMC (argued); Lieutenant
Michael E. Maffei, JAGC, USN.
For Appellee: Lieutenant Ritesh K. Srivastava, JAGC, USN
(argued); Colonel Louis J. Puleo, USMC, Lieutenant Commander
Sergio F. Sarkany, JAGC, USN, and Brian K. Keller, Esq. (on
brief).
Military Judge: David L. Bailey
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Sweeney, 10-0461/NA
Judge RYAN delivered the opinion of the Court.
Contrary to his pleas, Appellant was convicted by special
court-martial of one specification of failure to go to his
appointed place of duty, one specification of absence without
leave, one specification of making a false official statement,
and one specification of wrongful use of cocaine. Articles 86,
107, 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§
886, 907, 912a (2006). He was sentenced to confinement for
thirty days and a bad-conduct discharge. The convening
authority approved the adjudged findings and sentence, and the
United States Navy-Marine Corps Court of Criminal Appeals
(NMCCA) affirmed. United States v. Sweeney, No. NMCCA
200900468, slip op. at 4 (N-M. Ct. Crim. App. Apr. 29, 2010).
In the Blazier cases,1 we set forth a straightforward path
for analyzing the admissibility of drug testing reports under
the Confrontation Clause. Prior to announcing our decision in
Blazier II, we granted Appellant’s petition for review as a
Blazier trailer to determine whether Appellant was denied his
right of confrontation under the Sixth Amendment.2 Applying the
1
United States v. Blazier (Blazier II), 69 M.J. 218, 222
(C.A.A.F. 2010); United States v. Blazier (Blazier I), 68 M.J.
439 (C.A.A.F. 2010).
2
On September 10, 2010, we granted the petition for review on
two issues:
I. WHETHER, IN LIGHT OF THE UNITED STATES SUPREME COURT’S
RULING IN MELENDEZ-DIAZ v. MASSACHUSETTS, 557 U.S. __,
2
United States v. Sweeney, 10-0461/NA
principles we set forth in those cases as well as prior and
subsequent Supreme Court precedent to the particular facts
before us, we hold that Appellant was denied his right to
confront the witnesses against him, and we remand to the court
below for consideration of whether the error was harmless beyond
a reasonable doubt.
129 S. CT. 2527 (2009), THE ADMISSION INTO EVIDENCE OF
THE NAVY DRUG SCREENING LABORATORY URINALYSIS
DOCUMENTS VIOLATED APPELLANT’S SIXTH AMENDMENT RIGHT
TO CONFRONT THE WITNESSES AGAINST HIM.
II. WHETHER TRIAL DEFENSE COUNSEL’S OBJECTION TO THE DRUG
LABORATORY REPORT CONSTITUTED A VALID CRAWFORD
OBJECTION. IF NOT, THEN WHETHER TRIAL DEFENSE COUNSEL
WAIVED OR FORFEITED THE CONFRONTATION CLAUSE ISSUE,
AND, IF FORFEITED, WHETHER ADMISSION OF THE REPORT
CONSTITUTED PLAIN ERROR.
On February 23, 2011, we specified an additional issue:
WHETHER THE COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF
LAW IN DECLINING TO APPLY MELENDEZ-DIAZ v. MASSACHUSETTS,
129 S. CT. 2527 (2009), IN ASSERTING THAT UNITED STATES v.
MAGYARI, 63 M.J. 123 (C.A.A.F. 2006), “FOUND DRUG
LABORATORY REPORTS TO BE NON-TESTIMONIAL IN NATURE,” AND IN
HOLDING (1) THAT DRUG LABORATORY DOCUMENTS WERE
NONTESTIMONIAL IN NATURE, (2) THAT THE LAB REPORT WAS A
RECORD OF A REGULARLY CONDUCTED ACTIVITY OF THE NAVY DRUG
SCREENING LABORATORY THAT QUALIFIED AS A BUSINESS RECORD
AND FIRMLY ROOTED HEARSAY EXCEPTION UNDER M.R.E. 803(6),
AND (3) THAT THERE WAS NOTHING TO SUGGEST THAT THE LAB
REPORT WAS GENERATED FOR COURT-MARTIAL USE. SEE UNITED
STATES v. BLAZIER, 69 M.J. 218 (C.A.A.F. 2010); UNITED
STATES v. BLAZIER, 68 M.J. 439 (C.A.A.F. 2010); AND UNITED
STATES v. HARCROW, 66 M.J. 154 (C.A.A.F. 2008).
3
United States v. Sweeney, 10-0461/NA
I. BACKGROUND
A. Facts
In February 2008, Appellant reported to the Navy
Mobilization Processing Site (NMPS), Norfolk, after his
unauthorized absence following his return from Iraq. NMPS
policy required any member returning from an unauthorized
absence of twenty-four hours or more to submit to a urinalysis.
Thus, the Officer-in-Charge (OIC) ordered Appellant to provide a
urine sample for testing, which Appellant did.3
The Navy Drug Screening Laboratory (NDSL) tested
Appellant’s sample. According to the Government’s expert
witness, Mr. Albert Marinari, a NDSL employee, NDSL is a
“forensic” laboratory whose “mission” is to “provid[e]
urinalysis drug testing that is scientifically valid and
forensically acceptable as evidence in courts of law,” and which
employs certain procedures “to ensure that the integrity of . .
. the evidence has been . . . preserved.”
3
Although the drug testing report’s specimen custody document
indicates that the sample was submitted voluntarily, the
military judge found, based on the OIC’s testimony, that
Appellant submitted the sample pursuant to the OIC’s order. The
military judge made this finding in the course of ruling on
Appellant’s motion in limine to suppress the urinalysis results
as the fruit of an unlawful search not justified by Military
Rule of Evidence (M.R.E.) 313. The military judge denied that
motion. Appellant has not appealed that ruling, and the issue
is not before this Court.
4
United States v. Sweeney, 10-0461/NA
NDSL determined that Appellant’s sample was presumptively
positive for cocaine and codeine in two immunoassay screen tests
conducted on March 5, 2008. Thereafter, NDSL conducted a gas
chromatograph/mass spectrometry (GC/MS) confirmation test for
cocaine on March 7 and another one for codeine on March 12. All
testing was complete by March 12.
NDSL’s drug testing report includes chain of custody
documents and machine-generated printouts of machine-generated
data produced in the course of testing. It also contains “data
review” sheets for each test, signed by various officials on the
date of the test. The data review sheets for the cocaine and
codeine GC/MS confirmation tests contain handwritten notations
of the results.
In addition to these documents, the report includes a
“specimen custody document” signed by laboratory official “R.
Flowers” on March 13 stating that the sample arrived with the
package and bottle seals intact, indicating that the sample
tested positive for cocaine and codeine, and certifying (unlike
a typical chain of custody document) additional substantive
information: that the “laboratory results indicated on this
form were correctly determined by proper laboratory procedures,
and they are correctly annotated.” Finally, the report includes
a cover memorandum addressed to the Region Legal Service Office
(RLSO) signed by Robert Sroka by direction, certifying that the
5
United States v. Sweeney, 10-0461/NA
immunoassay screens and GC/MS confirmation tests detected
cocaine metabolites and opiate compounds in excess of Department
of Defense (DOD) cutoffs. The cover memorandum is dated
September 26 -- three weeks after Appellant was charged.4
Appellant’s special court-martial began on November 3,
2008, and ended on May 6, 2009.5 The Government sought to pre-
admit the entire drug testing report (PE 13), as well as an
unsigned “report summary” (PE 17) indicating that Appellant’s
sample tested positive for cocaine and codeine. Defense counsel
objected to pre-admitting the documents, citing “proper
foundation” and “chain of custody.” Although the military judge
commented that there would be “a Crawford objection” if the
Government failed to call the “critical witnesses” and “lay the
foundation for the documents,” defense counsel continued to
focus on “foundation” and did not argue that any of the
documents were testimonial. The military judge pre-admitted the
documents subject to the Government “carrying out its
obligations.”
4
Although Appellant initially was charged with wrongful use of
both cocaine and codeine, the specification relating to codeine
was subsequently dismissed. This appeal concerns only the
specification charging wrongful use of cocaine.
5
The Supreme Court would not decide Melendez-Diaz until more
than a month later, on June 25, 2009. And this Court would not
decide the Blazier cases until 2010. At the time of trial, the
Supreme Court had decided Crawford v. Washington, 541 U.S. 36(2004), and this Court had decided Magyari and Harcrow.
6
United States v. Sweeney, 10-0461/NA
In an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2006),
session, defense counsel objected to admission of “the lab
things,” specifically naming a bottle and arguing that “under
Crawford the individual that actually handled the bottle and had
a piece in the process needs to be here too.” When the military
judge asked why the bottle was “testimonial,” defense counsel
began by stating, “it’s the urinalysis in general, sir, all of
the documents, sir.” The military judge then focused defense
counsel’s attention on the bottle. Defense counsel argued that
the individual who signed the bottle label was providing
testimony that that individual handled the bottle correctly.
After the military judge rejected this argument and admitted the
bottle,6 defense counsel stated that he had no further issues he
wished to raise.
During the trial, the Government did not call either
Flowers or Sroka as witnesses but instead called Mr. Marinari as
an expert in forensic chemistry urinalysis testing and
interpretation. Although Mr. Marinari signed both the cocaine
confirmation test data review sheet as the “final lab certifying
official” (FLCO)7 and one of the chain of custody documents, he
6
Appellant has not appealed this ruling and does not argue that
this colloquy constituted a Crawford objection to the drug
testing report or report summary.
7
According to Mr. Marinari, his role as FLCO did not involve
participation in or observation of the testing, but simply
involved certifying the results of the GC/MS cocaine test after
7
United States v. Sweeney, 10-0461/NA
did not sign either the cover memorandum or the specimen custody
document. Moreover, he testified that he did not perform any of
the tests and was “not present when . . . any of the technicians
did any of . . . their work,” including the collection,
shipping, packaging, inspecting, or testing of the sample. When
the Government sought to have Mr. Marinari discuss the NDSL drug
testing report and publish it to the members, defense counsel
again objected citing the “proper foundation” and “chain of
custody” of the bottle. The military judge again overruled the
objection, and defense counsel agreed that there was no issue
with respect to the drug testing report. The military judge
permitted the report to be introduced in its entirety.
Mr. Marinari then testified as to the contents of the drug
testing report. At various points in his direct examination, he
testified that the report showed the presence of cocaine and
codeine, at one point referencing the specimen custody document,
and later referencing a machine-generated printout. Although he
presented his opinions as his own, the Government introduced the
entire drug testing report into evidence. On cross-examination,
defense counsel sought to impeach the reliability of the tests.
reviewing “all the chain of custody documents, and all the test
data” and determining that the test “met all requirements
established by DOD.”
8
United States v. Sweeney, 10-0461/NA
B. NMCCA Decision
The NMCCA found no error in the admission of the laboratory
documents.8 Sweeney, No. NMCCA 200900468, slip op. at 3. The
court relied entirely upon Magyari, which it characterized as
holding that “drug laboratory documents [are] non-testimonial in
nature.” Id. The court also found that, unlike the cover
memorandum that this Court had by then deemed testimonial in
Blazier I, “there is nothing to suggest that the lab report
[here] was generated for court-martial use.” Id. at 3 n.1.
Finally, the court applied the indicia of reliability test set
forth in Ohio v. Roberts, 448 U.S. 56, 65-66 (1980), and
concluded that the entire report was admissible pursuant to the
“firmly rooted hearsay exception” for “business record[s].”
Sweeney, No. NMCCA 200900468, slip op. at 3.
II. LAW
“In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.”
U.S. Const. amend. VI.9 Accordingly, testimonial hearsay may not
8
Despite finding that Appellant “waive[d]” his objection to the
laboratory documents, Sweeney, No. NMCCA 200900468, slip op. at
3 (citing Rule for Courts-Martial (R.C.M.) 905(e), Manual for
Courts-Martial, United States (2008 ed.) (MCM)), the court
nonetheless analyzed whether the admission of those documents
was erroneous and did not apply the plain error test.
9
The “text of the Sixth Amendment” does not contain exceptions
for the military. But see United States v. Sweeney, __ M.J. __
(3) (C.A.A.F. 2011) (Baker, J., dissenting). And our case law
has more than once applied the Confrontation Clause to documents
9
United States v. Sweeney, 10-0461/NA
come into evidence without cross-examination of the declarant
unless (1) the declarant is unavailable, and (2) the declarant
was subject to prior cross-examination on the hearsay. Blazier
II, 69 M.J. at 222; see also Bullcoming v. New Mexico, 131 S.
Ct. 2705, 2710 (2011) (“The accused’s right is to be confronted
with the analyst who made the certification, unless that analyst
is unavailable at trial, and the accused had an opportunity,
pretrial, to cross-examine that particular scientist.”); accord
Cavitt, 69 M.J. at 414; United States v. Dollar, 69 M.J. 411,
412 (C.A.A.F. 2011).
Although “reasonable minds may disagree about what
constitutes testimonial hearsay,” Blazier II, 69 M.J. at 222, a
statement is testimonial if “made under circumstances which
would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.” Blazier
I, 68 M.J. at 442 (quoting Crawford, 541 U.S. at 51-52)
(quotation marks omitted). Thus, “[a] document created solely
generated in the military urinalysis program. See United States
v. Cavitt, 69 M.J. 413, 413 (C.A.A.F. 2011); Blazier II, 69 M.J.
at 222. This case does not involve a statute, presidential
rule, or judicial decision purporting to diminish the
protections afforded by the Confrontation Clause in the military
urinalysis context; nor has the Government attempted to
demonstrate a military exigency requiring diminished protection.
See, e.g., United States v. Jacoby, 11 C.M.A. 428, 433, 29
C.M.R. 244, 249 (1960). Accordingly, we have no cause in this
case to depart from Blazier II, in which we applied the
Confrontation Clause according to the usual principles
established by Supreme Court precedent.
10
United States v. Sweeney, 10-0461/NA
for an evidentiary purpose . . . made in aid of a police
investigation, ranks as testimonial.” Bullcoming, 131 S. Ct. at
2717 (quotation marks and citation omitted). We have held that
testimonial statements include a formalized certification of
results contained in a drug testing report requested by the
prosecutor. Blazier I, 68 M.J. at 443; see also Bullcoming, 131
S. Ct. at 2717; Melendez-Diaz, 129 S. Ct. at 2532. In Blazier
II, we further observed that it “is well-settled that under both
the Confrontation Clause and the rules of evidence, machine-
generated data and printouts are not statements and thus not
hearsay -- machines are not declarants -- and such data is
therefore not ‘testimonial.’” Blazier II, 69 M.J. at 224; cf.
Bullcoming, 131 S. Ct. at 2714 (noting that the
“representations” contained in the testimonial statement at
issue were “not revealed in raw, machine-produced data”).
However, admission of and expert testimony about such documents,
graphs, and charts may nevertheless implicate the rules of
evidence. Blazier II, 69 M.J. at 224 (“Because machine-
generated printouts of machine-generated data are not hearsay,
expert witnesses may rely on them, subject only to the rules of
evidence generally, and M.R.E. 702 and M.R.E. 703 in
particular.”).
What we have not previously decided is what precisely
remains of Magyari after Melendez-Diaz, Blazier I, Blazier II,
11
United States v. Sweeney, 10-0461/NA
and Bullcoming. Answering that question here makes resolution
of this case relatively straightforward.
III. APPLICABILITY OF MAGYARI
At the time of Appellant’s trial, the leading case applying
Crawford to the admission of drug testing reports within the
military justice system was Magyari because Melendez–Diaz,
Bullcoming, Blazier I, and Blazier II had not yet been decided.
Handicapped by the Supreme Court’s failure to give clear
guidance as to how to determine whether hearsay was testimonial,
see Crawford, 541 U.S. at 68 (“We leave for another day any
effort to spell out a comprehensive definition of
‘testimonial.’”), Magyari held that a drug testing report was
nontestimonial in toto if those conducting the tests “were not
engaged in a law enforcement function, a search for evidence in
anticipation of prosecution or trial” and were “merely
cataloguing the results of routine tests.” Magyari, 63 M.J. at
126-27. Magyari concluded that drug tests initiated by a unit
sweep are nontestimonial because “[t]here [was] no indication
that any of [the laboratory technicians] had reason, or were
under pressure, to reach a particular conclusion about [the
accused’s] sample . . . or that they had reason to distinguish
[the accused’s sample] from the other thousands of samples
routinely screened and tested by batch at the laboratory.” Id.
at 127. Conversely, drug testing reports were testimonial
12
United States v. Sweeney, 10-0461/NA
“where the testing [was] initiated by the prosecution to
discover incriminating evidence.” Id. (emphasis added); see
also Harcrow, 66 M.J. at 159 (holding that where the testing was
initiated by the prosecution to discover incriminating evidence,
the laboratory documents were testimonial). As a result, even
after Melendez-Diaz, Blazier I, and Blazier II, the Courts of
Criminal Appeals have continued to cite Magyari without further
analysis as the basis for finding no error in the admission of
all portions of a drug test report except the cover memorandum
where the impetus behind the initial urinalysis was unit
inspection, rather than law enforcement.10
But decisions of this Court and the Supreme Court since
Magyari dictate that further analysis is required. First, it is
emphatically not the case that a statement is automatically
nontestimonial by virtue of it being a “routine” statement of
10
See, e.g., United States v. Lusk, No. ACM S31624, 2010 CCA
LEXIS 367, at *7-*8, 2010 WL 4068922, at *3 (A.F. Ct. Crim. App.
Oct. 14, 2010); United States v. Dunn, No. ACM S31584, 2010 CCA
LEXIS 169, at *27, 2010 WL 3981682, at *9 (A.F. Ct. Crim. App.
Aug. 31, 2010); United States v. Weeks, No. ACM S31625, 2010 CCA
LEXIS 193, at *6-*7, 2010 WL 4069035, at *3 (A.F. Ct. Crim. App.
July 26, 2010); United States v. Burton, No. ACM S31632, slip.
op. at 4 (A.F. Ct. Crim. App. June 18, 2010); United States v.
Stewart, No. ACM S31685, 2010 CCA LEXIS 255, at *8-*9, 2010 WL
4068947, at *3 (A.F. Ct. Crim. App. June 8, 2010); United States
v. Nutt, No. ACM S31600, 2010 CCA LEXIS 198, at *11, 2010 WL
2265272, at *4 (A.F. Ct. Crim. App. May 6, 2010); United States
v. Robinson, No. NMCCA 200800827, 2010 CCA LEXIS 8, at *10-*12,
2010 WL 31686, at *4 (N-M. Ct. Crim. App. Jan. 28, 2010); United
States v. Skrede, No. 2009-09, 2009 CCA LEXIS 443, at *6 (A.F.
Ct. Crim. App. Nov. 23, 2009).
13
United States v. Sweeney, 10-0461/NA
“unambiguous factual matters.”11 Magyari, 63 M.J. at 126
(citations omitted). Indeed, “[m]ost witnesses . . . testify to
their observations of factual conditions or events, e.g., ‘the
light was green,’ ‘the hour was noon.’” Bullcoming, 131 S. Ct.
at 2714. But this does not render such observations
nontestimonial.12 Id. at 10-11. But see Magyari, 63 M.J. at
126-27; Brief of Appellee at 20-24, United States v. Sweeney,
No. 10-0461 (C.A.A.F. Nov. 23, 2010).
Second, Magyari and the dissent notwithstanding, see
Sweeney, __ M.J. at __ (9-11) (Baker, J., dissenting), more
recent case law demonstrates that the focus has to be on the
purpose of the statements in the drug testing report itself,
rather than the initial purpose for the urine being collected
and sent to the laboratory for testing. The relevant question
11
Magyari’s reasoning to the contrary relied, like the Supreme
Judicial Court of Massachusetts in Melendez-Diaz, upon
Commonwealth v. Verde, 827 N.E.2d 701 (Mass. 2005). The Supreme
Court has specifically rejected Verde’s reasoning. See
Melendez-Diaz, 129 S. Ct. at 2532.
12
That a statement is “routine” is relevant only to whether that
statement is made in the “ordinary course of business” -- which
of course does not determine whether the statement is
testimonial. Blazier II, 69 M.J. at 226 n.8 (citing Melendez-
Diaz, 129 S. Ct. at 2538-40). Moreover, that “factual matters”
may be “unambiguous” means only that a declarant need not be
competent to perceive them; it does not mean the declarant was
honest in reporting them -- an equal concern of the
Confrontation Clause. See Bullcoming, 131 S. Ct. at 2715(noting that the purpose of cross-examining the declarant is to
probe “incompetence, evasiveness, or dishonesty”) (emphasis
added); Melendez-Diaz, 129 S. Ct. at 2537 (noting that the
purpose of confrontation is to probe the witness’s competence
and honesty).
14
United States v. Sweeney, 10-0461/NA
is thus whether the statement is “made under circumstances which
would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.” Blazier
I, 68 M.J. at 442 (quoting Crawford, 541 U.S. at 51-52)
(quotation marks omitted). Asked another way, would it be
reasonably foreseeable to an objective person that the purpose
of any individual statement in a drug testing report is
evidentiary? See Blazier I, 68 M.J. at 442 (noting that “fine
distinctions based on the impetus behind the testing and the
knowledge of those conducting laboratory tests” are “relevant”
but not dispositive in determining whether the purpose of a
“statement” is evidentiary).
Although those performing initial drug tests may well be
“independent scientist[s]” carrying out “non-adversarial public
dut[ies],” that does not mean that their statements are not
produced to serve as evidence. See Bullcoming, 131 S. Ct. at
2717 (quotation marks and citation omitted); Melendez-Diaz, 129
S. Ct. at 2536-37. Where, as here, an accused’s sample tests
positive in at least one screening test, analysts must
reasonably understand themselves to be assisting in the
production of evidence when they perform re-screens and
confirmation tests and subsequently make formal certifications13
13
As reflected in Bullcoming, the formality of a document
generated by a forensic laboratory is a factor to be considered
15
United States v. Sweeney, 10-0461/NA
on official forms attesting to the presence of illegal
substances, to the proper conducting of the tests, and to other
relevant information.14 This is all the more evident where, as
here, the Government expert testifies that the forensic
laboratory’s “mission” is to “provid[e] urinalysis drug testing
that is scientifically valid and forensically acceptable as
evidence in courts of law.”15
when determining whether a document is testimonial. See
Bullcoming, 131 S. Ct. at 2717 (holding that “the formalities
attending the ‘report of blood alcohol analysis’ are more than
adequate to qualify [the witness’s] assertions as testimonial”);
see also Melendez-Diaz, 129 S. Ct. at 2543 (Thomas, J.,
concurring) (“I continue to adhere to my position that ‘the
Confrontation Clause is implicated by extrajudicial statements
only insofar as they are contained in formalized testimonial
materials, such as affidavits, depositions, prior testimony, or
confessions.’” (quoting White v. Illinois, 502 U.S. 346, 365
(1992) (Thomas, J., concurring in part and concurring in the
judgment))).
14
Here, for example, the initial screen and re-screen tests were
conducted on March 5, prompting a confirmation test for cocaine
on March 7. Both the cover memorandum and specimen custody
document were completed and signed after all testing was
completed.
15
The fact that a commander, as a matter of command prerogative,
may forgo court-martial proceedings against an alleged wrongdoer
and instead impose nonjudicial punishment, see, e.g., Article
15(b), UCMJ, 10 U.S.C. § 815(b) (2006) (granting the commanding
officer the discretion to “impose one or more . . . disciplinary
punishments for minor offenses without the intervention of a
court-martial”), cannot change the reality that the document
was, on its face, created to serve as evidence. A different
case might arise if the prosecution offers evidence at trial
that raises an issue as to whether a particular document was not
created to serve as evidence. Given the posture of this case,
where the defense did not object to the admission of the
documents on Confrontation Clause grounds, no such issue was
raised or developed in this case.
16
United States v. Sweeney, 10-0461/NA
In short, recent case law from this Court and the Supreme
Court requires an examination of individual statements that goes
beyond Magyari. We now turn to that examination.
IV. PLAIN ERROR
In light of the above, and for the reasons set forth below,
we hold that Appellant’s failure to object to the admission of
the NDSL drug testing report on Confrontation Clause grounds was
forfeited rather than waived in light of Magyari. In addition,
we hold that testimonial hearsay was erroneously admitted; that
the testimony of Mr. Marinari (who was not the declarant of the
testimonial hearsay) did not satisfy the Confrontation Clause;
and that these errors were plain and obvious. We remand to the
Navy-Marine Corps Court of Criminal Appeals to determine whether
these plain and obvious errors were harmless beyond a reasonable
doubt.
17
United States v. Sweeney, 10-0461/NA
A. Waiver/Forfeiture16
“Whereas forfeiture is the failure to make the timely
assertion of a right, waiver is the ‘intentional relinquishment
or abandonment of a known right.’” United States v. Olano, 507
U.S. 725, 732 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458,
464 (1938)); see also Harcrow, 66 M.J. at 156. “[T]here is a
presumption against the waiver of constitutional rights, and for
a waiver to be effective it must be clearly established that
there was an intentional relinquishment of a known right or
privilege.” Harcrow, 66 M.J. at 157 (quotation marks and
citation omitted). To determine whether a failure to object was
waiver or mere forfeiture, we look to the state of the law at
the time of trial, and we will not find waiver where subsequent
case law “opened the door for a colorable assertion of the right
16
On appeal, Appellant challenges the testimony of Mr. Marinari
and the admission of the drug testing report and results report
summary as violating his right of confrontation. Brief of
Appellant at 9, United States v. Sweeney, No. 10-0461 (C.A.A.F.
Oct. 8, 2010). To challenge evidence, an accused must “stat[e]
the specific ground of objection, if the specific ground was not
apparent from the context.” M.R.E. 103(a)(1). At trial,
Appellant did not object to the documents on Confrontation
Clause grounds. Instead, as described above, all of Appellant’s
objections were either that the documents lacked proper
“foundation” or that a laboratory bottle not at issue here was
testimonial. None of these objections was to the laboratory
documents on Confrontation Clause grounds. See United States v.
Mashek, 606 F.3d 922, 929-30 (8th Cir. 2010) (applying plain
error review where the accused had not raised a Confrontation
Clause objection although the judge had admitted evidence
subject to the prosecution establishing proper foundation).
18
United States v. Sweeney, 10-0461/NA
to confrontation where it was not previously available.” Id. at
157-58.
At the time of Appellant’s trial, he had no “colorable
objection” and therefore did not voluntarily relinquish a
“known” right of confrontation. Because Appellant’s urinalysis,
like the urinalysis testing in Magyari, was not initiated at the
outset by law enforcement, any objection by Appellant would have
been overruled under Magyari -- as evidenced by the continued
use of Magyari in the Courts of Criminal Appeals as the basis
for finding no error in the admission of such tests, even in the
aftermath of Melendez-Diaz, Blazier I, and Blazier II. See
supra note 10. And, tellingly, the CCAs have relied on Magyari
as the basis for reversing trial court judges who refused to
admit drug testing reports without the testimony of the
declarants of testimonial hearsay. See, e.g., Skrede, 2009 CCA
LEXIS 443, at *6. Failing to make what would have been a
meritless objection under Magyari’s interpretation of Crawford
cannot possibly signal either a strategic trial decision or a
voluntary relinquishment of a “known” right, see Harcrow, 66
M.J. at 158, in the context of the military justice system. We
therefore review for plain error.
B. Plain Error
Under plain error review, this Court will grant relief only
where (1) there was error, (2) the error was plain and obvious,
19
United States v. Sweeney, 10-0461/NA
and (3) the error materially prejudiced a substantial right of
the accused. Id. Where, as here, the alleged error is
constitutional, the prejudice prong is fulfilled where the
Government cannot show that the error was harmless beyond a
reasonable doubt. Id. at 160.
We find plain and obvious error in the admission of two
statements from the NDSL report. First, it was plain and
obvious error to admit the cover memorandum results
certification. The laboratory made the memorandum after
Appellant had been charged, addressed it to the RLSO, and
included the formulaic language for authenticating a business
record -- language one would expect to find only on a document
made for an evidentiary purpose. In all material respects, this
formal, affidavit-like certification of results resembles those
we found testimonial in Blazier I, and the declarant, Robert
Sroka, was not subject to cross-examination. See Bullcoming,
131 S. Ct. at 2715-17 (finding error in admitting a formalized
certification of results through a surrogate witness without
confrontation of the declarant); Blazier II, 69 M.J. at 223-24
(finding error in admitting the Blazier I cover memoranda
through a surrogate witness and without confrontation of the
declarant).
Second, it was also plain and obvious error to admit the
specimen custody document certification. This certification is
20
United States v. Sweeney, 10-0461/NA
a formal, affidavit-like statement of evidence that not only
presented the machine-generated results, but also indicated
“that the laboratory results . . . were correctly determined by
proper laboratory procedures, and that they are correctly
annotated.” See Bullcoming, 131 S. Ct. at 2715 (holding that
the out-of-court declarant “certified to more than a machine-
generated number” when the statements included affirmations
regarding accuracy and compliance with laboratory protocol).
Such a formal certification has no purpose but to function as an
affidavit. Because the declarant, “R. Flowers,” was not subject
to cross-examination, admission of the specimen custody document
plainly and obviously violated the Confrontation Clause.
Furthermore, this violation was compounded when Mr. Marinari
testified that the specimen custody document showed the presence
of cocaine and codeine. See Blazier II, 69 M.J. at 226 (finding
a violation of the Confrontation Clause where an expert witness
repeated the substance of testimonial hearsay).17
17
Contrary to the dissent, this case does not involve any of the
circumstances Justice Sotomayor mentioned in Bullcoming. First,
“this is not a case in which the State suggested an alternate
purpose, much less an alternate primary purpose, for the
[specimen custody document].” See Bullcoming, 131 S. Ct. at
2722 (Sotomayor, J., concurring in part) (emphasis in original).
Although military readiness may be an “alternate purpose” of the
testing, Mr. Marinari’s testimony makes clear that the formal,
affidavit-like certification on the specimen custody document
itself was made for an evidentiary purpose and not, as the
dissent claims, to “assure[] commanders as well as members of
the Armed Forces -- including those who have not engaged in
21
United States v. Sweeney, 10-0461/NA
In finding that no testimonial hearsay was admitted, the
NMCCA made several errors. First, the court cited Magyari for
the proposition that all drug testing reports are
nontestimonial. Sweeney, No. NMCCA 200900468, slip op. at 3.
Second, in considering the admissibility of the drug testing
report, the court overlooked the fact that while no request
specified that the cover memorandum be made “for court-martial
use,” the memorandum was requested by the RLSO after testing was
complete, thus rendering the purpose for the memorandum facially
evidentiary. See id. at 3 n.1. Third, it considered the drug
testing report in toto without examining the admissibility of
particular statements within the report. Finally, the court’s
unlawful conduct -- that the program is being administered as
intended” or to “assure[] commanders that they have an accurate
understanding of the degree, if any, of controlled substance use
(authorized and unauthorized) in their unit.” Sweeney, __ M.J.
at __ (10) (Baker, J., dissenting). As noted supra note 15, it
could be a different case had the Government presented any
evidence of an alternate purpose of the documents at issue.
Second, as described supra, Mr. Marinari testified that he was
not present for any stage of the testing; he is therefore not “a
supervisor who observed an analyst conducting a test [and who]
testified about the results or a report about such results.”
See Bullcoming, 131 S. Ct. at 2722 (Sotomayor, J., concurring in
part). Third, “this is not a case in which an expert witness
was asked for his independent opinion about underlying
testimonial reports that were not themselves admitted into
evidence.” See id. (Sotomayor, J., concurring in part). The
specimen custody document was admitted into evidence. Finally,
as the dissent acknowledges, “this is not a case in which the
[Government] introduced only machine-generated results, such as
a printout from a gas chromatograph.” See id. (Sotomayor, J.,
concurring in part). Bullcoming commands our decision in this
case; it does not undermine it.
22
United States v. Sweeney, 10-0461/NA
reliance on Roberts and “firmly rooted hearsay exception[s]” to
assess the admissibly of the report in light of the requirements
of the Confrontation Clause is obsolete. Cavitt, 69 M.J. at
414. Once these errors are corrected, it is plain and obvious
that the cover memorandum and specimen custody document are
testimonial.
However, we do not find that the stamps, signatures, and
other notations on the chain of custody documents and data
review sheets, or the results report summary are “plainly and
obviously” testimonial in the context of review for plain error.
Although we are concerned in particular about the admission of
the cocaine confirm data review sheet and results report summary
-- both of which summarize test results -- these documents are
not “plainly and obviously” testimonial as they are neither
formalized, affidavit-like statements, see, e.g., Bullcoming,
131 S. Ct. at 2717; Melendez-Diaz, 129 S. Ct. at 2532; Blazier
I, 68 M.J. at 443, nor statements made in a formal setting, see,
e.g., Hammon v. Indiana, 547 U.S. 813, 830 (2006) (holding that
statements made during a police interrogation which took place
in a formal setting rendered the statements “inherently
testimonial”).18 Moreover, assuming arguendo these two documents
18
While formality may not be the exclusive means of deciding
whether a statement is testimonial, but see Michigan v. Bryant,
131 S. Ct. 1143, 1167 (2011) (Thomas, J., concurring), the
informal stamps, signatures, notations, and numbers are not so
23
United States v. Sweeney, 10-0461/NA
were testimonial, the error still would not be “plain and
obvious”: one of the declarants of the data review sheet was
Mr. Marinari himself, who testified. And because the results
report summary does not name a declarant and was not discussed
at trial, it is by no means plain and obvious that its declarant
did not testify.
An objection at trial, followed by more extensive
development of the evidence and argument on its nature, might
tip the balance the other way in an appropriate case. On this
point, we agree with the dissent that “there is yet room for
litigation over the underlying nature of military urinalysis
documents.” Sweeney, __ M.J. at __ (14) (Baker, J.,
dissenting). Here, however, there was no objection, and the
admission of the chain of custody documents, data review sheets,
and results report summary did not constitute plain error.
C. Prejudice
We grant relief for Confrontation Clause errors only where
they are not harmless beyond a reasonable doubt. Delaware v.
Van Arsdale, 475 U.S. 673, 684 (1986). Among other factors, we
consider the importance of the unconfronted testimony in the
prosecution’s case, whether that testimony was cumulative, the
clearly testimonial as to meet the heightened “plain and
obvious” standard applied on plain error review.
24
United States v. Sweeney, 10-0461/NA
existence of corroborating evidence, the extent of confrontation
permitted, and the strength of the prosecution’s case. Id.We explained the harmless error inquiry in the context of
the erroneous admission of testimonial hearsay in Blazier II:
[The expert witness] could have arrived at an expert
opinion based on training, education, experience and
admissible evidence alone, and considered, but not
repeated, inadmissible evidence in arriving at an
independent expert opinion. Such expert opinion and
admissible evidence together could have been legally
sufficient to establish the presence of drug metabolite in
the urine tested. See United States v. Barrow, 45 M.J.
478, 479 (C.A.A.F. 1997). But in assessing harmlessness in
the constitutional context, the question is not whether the
evidence was legally sufficient to uphold a conviction
without the erroneously admitted evidence. See Fahy v.
Connecticut, 375 U.S. 85, 86 (1963). Rather, “‘[t]he
question is whether there is a reasonable probability that
the evidence complained of might have contributed the
conviction.’” Chapman [v. California], 386 U.S. [18], 23
(quoting Fahy, 375 U.S. 86-87). This determination is made
on the basis of the entire record, and its resolution will
vary depending on the facts and particulars of the
individual case.
Blazier II, 69 M.J. at 226-27. Here, as in Blazier II, the
expert witness’s independent opinion combined with the
admissible machine-generated printouts could have provided
legally sufficient evidence to convict Appellant under Barrow
and Jackson v. Virginia, 443 U.S. 307 (1979). However, we
remand to the Court of Criminal Appeals to determine the
altogether different question whether the inadmissible succinct
summaries and expert’s repetition of inadmissible hearsay were
harmless beyond a reasonable doubt.
25
United States v. Sweeney, 10-0461/NA
V. CONCLUSION
Because the cover memorandum and specimen custody document
contained in the NDSL report were plainly and obviously
testimonial, the decision below is reversed, and the case is
remanded to the United States Navy-Marine Corps Court of
Criminal Appeals for consideration of whether the erroneous
admission of testimonial hearsay was harmless beyond a
reasonable doubt.
26
United States v. Sweeney, No. 10-0461/NA
BAKER, Judge, joined by STUCKY, Judge (concurring in part
and dissenting in part):
INTRODUCTION
The majority reaches two conclusions. First, it concludes
that it was plain and obvious error to admit the cover
memorandum reporting the results of the urinalysis. United
States v. Sweeney, __ M.J. __ (20) (C.A.A.F. 2011). This
conclusion is supported by the holding in United States v.
Blazier (Blazier II), 69 M.J. 218 (C.A.A.F. 2010), with which I
concur. A cover memo drafted specifically for use at a court-
martial reporting urinalysis test results is testimonial and
falls squarely within the Supreme Court’s Crawford v. Washington1
line of cases.
Second, the majority concludes that it was also plain error
to admit the specimen custody document certification, also known
as Department of Defense (DD) Form 2624. Sweeney, __ M.J. __ at
(20). This is the Department of Defense’s basic chain of
custody form for running its urinalysis program, for purposes of
military readiness as well as for purposes of military justice.2
1
541 U.S. 36 (2004).
2
Among other things, the form records the accession numbers of
up to twelve servicemembers, as well as a unit identification
code and the batch number in which the specimen was tested, the
substances tested for, and the result (negative or in the case
of a positive, the drug involved, e.g., “cocaine”). The back of
the form includes unit identification coding for the Army, Navy,
United States v. Sweeney, No. 10-0461/NA
I would not find plain error with respect to the admission of
this document or any other urinalysis documents.
As discussed below, Bullcoming v. New Mexico, 131 S. Ct.
2705 (2011), delimits the reach of Crawford, as did Davis v.
Washington, 547 U.S. 813 (2006), before. Among other things,
Bullcoming requires lower courts to consider the primary purpose
behind documents, and the statements therein, at the time they
were created. 131 S. Ct. at 2717. Justice Sotomayor’s decisive
concurring vote also suggests that an alternate purpose for
creating the document and the statements therein may change the
analysis as well. Id. at 2720. (Sotomayor, J., concurring in
part).
What the primary purpose was for filling out the DD 2624 at
issue in this case at the time it was filled out, as well as the
statements it contains if any, has not been litigated but can
only be inferred at this point. However, clearly, there was an
alternate purpose to the urinalysis document at issue in this
case as well as the information it contained. This is manifest
in Department of Defense regulations. It is manifest in the
Marine Corps, and Air Force as well as spaces for persons
handling the batch to document their custody. It also includes
in block H the following “certification”: “I certify that I am
a laboratory official, that the laboratory results indicated on
this form were correctly determined by the proper laboratory
procedures, and they are correctly annotated.” In this case,
the certifying official is R. Flowers, who did not testify at
Appellant’s trial.
2
United States v. Sweeney, No. 10-0461/NA
mission statement of the testing laboratory. And it is manifest
from the testimony at trial. To the extent that the Supreme
Court’s guidance is clear as to how it would apply in a military
context, it is clear only with respect to the cover memorandum
expressly prepared for trial as in Blazier II and in this case.
As a separate matter, neither Bullcoming nor any other of the
Supreme Court’s Crawford cases addresses the distinct and
specific constitutional questions raised in the context of a
military urinalysis program addressed to military readiness as
well as military justice. Nor do these cases address the
possible implications of other constitutional principles that
might impact the analysis, including the President’s authority
as Commander-in-Chief, Congress’s “Rules and Regulations”
authority under Article I of the United States Constitution,3 and
exceptions contained within the text of the Sixth Amendment4
applied to members of the armed forces.5 Whether the
3
U.S. Const. art I, § 8, cl. 14.
4
U.S. Const. amend. VI.
5
We know that the First Amendment, U.S. Const. amend I, may
apply differently in the military context. Parker v. Levy, 417
U.S. 733 (1974). Most importantly, we know that the Fourth
Amendment, U.S. Const. amend. IV, may apply differently in
military context, including military readiness inspections.
Comm. For G. I. Rights v. Callaway, 518 F.2d 466, 474 (D.C. Cir.
1975). In Comm. For G. I. Rights, the United States Court of
Appeals for the District of Columbia Circuit upheld the
constitutionality of an “administrative search exception” to the
3
United States v. Sweeney, No. 10-0461/NA
constitutional rights of military persons will be implicated in
the same ways as civilians in the context of the Confrontation
Clause6 and urinalysis has not been litigated or addressed by the
Supreme Court or this Court.7 At a minimum, before this area of
Fourth Amendment with regard to random drug testing of military
personnel, reasoning:
To strike the proper balance between legitimate
military needs and individual liberties we must
inquire whether “conditions peculiar to military life”
dictate affording different treatment to activity
arising in a military context.
Id. at 476 (citing Carlson v. Schlesinger, 511 F.2d 1327, 1331
(D.C. Cir. 1975)). The court held that the state’s strong
public interest to ensure military readiness outweighs the
privacy interests of servicemembers who already serve under
considerably diminished Fourth Amendment rights. As the written
statement, known as a circular, at issue in the case stated:
Search and seizure restrictions do not limit the
commander’s authority to conduct inspections. An
inspection does not presuppose a criminal offense and
is not a search for evidence. It may be used for the
purpose of examining the clothing, equipment, and arms
of a unit to determine its fitness and readiness to
perform its mission, or to seek out contraband (e.g.,
illegal weapons, explosives, drugs).
Id. at 474-75.
6
U.S. Const. amend. VI, cl. 3.
7
As the Comm. For G. I. Rights court recounted:
[A] number of cases . . . have recognized the
differences between military and civilian life and the
constitutional standards to be applied to each. See,
e.g., Parker v. Levy, 417 U.S. 733, 94 S. Ct. 2547, 41
L. Ed. 2d 439 (1974); Secretary of the Navy v. Avrech,
418 U.S. 676, 94 S. Ct. 3039, 41 L. Ed. 2d 1033(1974); Schlesinger v. Councilman, 420 U.S. 738, 95 S.
4
United States v. Sweeney, No. 10-0461/NA
law is set, the issues should be fully litigated and adjudicated
at the appellate level before this Court. Contrary to the
majority view, the issue that divides the majority and the
dissent is not whether the confrontation clause applies but how.
Until these issues are addressed, this Court should
interpret Crawford and Bullcoming with a high degree of
contextual caution. Moreover, without addressing these
questions it is not clear how we can find plain error in the
admission of urinalysis documents that are generated not for a
specific trial, but as part of the military’s worldwide
urinalysis program. Nevertheless, it appears unlikely that the
drug testing report, other than the cover memorandum, is
testimonial under Supreme Court precedent, especially given the
circumstances of this case.
Ct. 1300, 43 L. Ed. 2d 591 (1975); and Carlson v.
Schlesinger, 511 F.2d 1327 (1975). While reaffirming
the general principle that the members of the Armed
Forces are entitled to constitutional protections,
these cases stress that “the different character of
the military community and of the military mission
require a different application of those protections.
The fundamental necessity for obedience, and the
consequent necessity for imposition of discipline, may
render permissible within the military that which
would be constitutionally impermissible outside of
it.”
518 F.2d at 474 (citing Parker v. Levy, 417 U.S. at 758).
5
United States v. Sweeney, No. 10-0461/NA
DISCUSSION
I. From Crawford to Bullcoming
In Crawford, 541 U.S. at 61, the Supreme Court held that
the Sixth Amendment’s Confrontation Clause is not a guarantee of
“amorphous notions of ‘reliability.’” It is not a substantive
but a procedural right to “testing in the crucible of cross-
examination” before admitting prior testimonial statements of
witnesses who are unavailable at trial. Id. Further, the Court
held that “even if the Sixth Amendment is not solely concerned
with testimonial hearsay, that is its primary object, and
interrogations by law enforcement officers fall squarely within
that class.” Id. at 53; see Davis, 547 U.S. at 823.
In Melendez-Diaz v. Massachusetts, the Supreme Court held
that the Confrontation Clause required more than unsupplemented
“affidavits,” and a witness must testify where the documents
were “made for the purpose of establishing or proving some fact
. . . [and were] functionally identical to live, in-court
testimony.” 129 S. Ct. 2527, 2532 (2009).
The Court subsequently refined and to a certain extent
delimited Crawford. In Davis, for example, the Court introduced
a “primary purpose” test holding that a 911 call was not
testimonial because the statements were “made in the course of
police interrogation under circumstances objectively indicating
that the primary purpose of the interrogation is to enable
6
United States v. Sweeney, No. 10-0461/NA
police assistance to meet an ongoing emergency.” 547 U.S. at
822. On the other hand, where the “primary purpose of the
interrogation is to establish or prove past events potentially
relevant to later criminal prosecution,” the statements are
testimonial. Id. In Michigan v. Bryant, the Court applied the
primary purpose test to hold admissible the statements of a man
who had been shot, under an “ongoing emergency” primary purpose
test:
Because the circumstances of the encounter as well as
the statements and actions of [the declarant] and the
police objectively indicate that the primary purpose
of the interrogation was to enable police assistance
to meet an ongoing emergency, [the declarant’s]
identification and description of the shooter and the
location of the shooting were not testimonial hearsay.
131 S. Ct. 1143, 1166-67 (2011) (citation and quotation
marks omitted).
Finally, in Bullcoming, the Court addressed a blood
analysis report from the Scientific Laboratory Division of the
New Mexico Department of Health -- a report created specifically
and exclusively for a criminal trial in New Mexico. 131 S. Ct.
at 2710. In that context, the majority concluded that the
Confrontation Clause did not permit “the prosecution to
introduce a forensic laboratory report containing a testimonial
certification -- made for the purpose of proving a particular
fact -- through the in-court testimony of a scientist who did
not sign the certification or perform or observe the test
7
United States v. Sweeney, No. 10-0461/NA
reported in the certification.” Id. However, the majority also
noted, “[t]o rank as ‘testimonial,’ a statement must have a
‘primary purpose’ of ‘establish[ing] or prov[ing] past events
potentially relevant to later criminal prosecution.” Id. at
2714 n.6.
Justice Sotomayor’s fifth and deciding vote delineates the
opinion’s reach:
First, this is not a case in which the State suggested
an alternate purpose, much less an alternate primary
purpose, for the BAC report . . . .
Second, this is not a case in which the person
testifying is a supervisor, reviewer, or someone else with
a personal, albeit limited, connection to the scientific
test at issue . . . .
Third, this is not a case in which an expert witness
was asked for his independent opinion about underlying
testimonial reports that were not themselves admitted into
evidence . . . .
Finally, this is not a case in which the State
introduced only machine-generated results, such as a
printout from a gas chromatograph. . .
Id. at 2722 (Sotomayor, J., concurring in part).
II. Bullcoming Applied
The present case activates all but one of Justice
Sotomayor’s caveats, placing into question how, if at all,
Crawford applies to any of the underlying urinalysis documents
in this case. However, one need look no further than the first
of these caveats to determine that there was no plain error in
this case with respect to the DD Form 2624 and the certification
8
United States v. Sweeney, No. 10-0461/NA
contained on it. Bullcoming clearly establishes a purpose test
as a core element of the Crawford analysis. Indeed it suggests
that the identification of an alternative purpose for the drug
report and the information contained within it might change the
analysis. Contrary to the majority opinion’s assertion, the
sole purpose of military urinalysis testing in general, and
particularly the information contained in the DD 2624 in this
case, was not to “provid[e] urinalysis drug testing that is
scientifically valid and forensically acceptable as evidence in
courts of law,” employing “certain procedures ‘to ensure that
the integrity of . . . the evidence has been . . . preserved.’”
Sweeney, __ M.J. __ at (4) (alterations in original). That is
relevant testimony, for sure. But it does not in fact address
the question as to what, under Davis and Bullcoming, the primary
purpose is behind military urinalysis testing in general, or
more specifically what the primary purpose, or alternate purpose
of the test and the information contained in the DD 2624 at
issue in this case was at the time the form was filled out.
Rather the quoted testimony responds to a line of questions
about the reliability of urinalysis testing intended to give the
members confidence in the result, not so that they can apply the
Supreme Court’s analysis in Davis.
Department of Defense regulations make it clear that, at
minimum, there are alternate purposes for the creation of the
9
United States v. Sweeney, No. 10-0461/NA
custodial document, certification, and related attachments. The
military drug testing program operates under Department of
Defense regulations. Dep’t of Defense Dir. 1010.1, Military
Personnel Drug Abuse Testing Program (Dec. 9, 1994)
(incorporating Change 1, Jan. 11, 1999). This directive
mandates three purposes for drug testing: (1) to deter military
members and those entering active duty from abusing drugs; (2)
“to permit commanders to detect drug abuse and assess the
security, military fitness, readiness, good order, and
discipline of their commands”; and (3) “as a basis to take
action, adverse or otherwise (including referral for treatment),
against a Service member based on a positive test result.” Id.at para. 3.1. The certification at the bottom of the DD 2624
therefore serves more than one purpose. It assures commanders
as well as members of the armed forces -- including those who
have not engaged in unlawful conduct -- that the program is
being administered as intended. In other words, the
certification helps to assure military members that they will
not be victims of false positive tests. It also assures
commanders that they have an accurate understanding of the
degree, if any, of controlled substance use (authorized and
unauthorized) in their unit. And, of course, the document can
serve as a basis to initiate administrative, disciplinary, or
10
United States v. Sweeney, No. 10-0461/NA
criminal proceedings against a servicemember and provide a
forensically sound basis for so doing.8
It is also noteworthy that the mission statement of the
Navy Drug Screening Laboratory that created the Form DD 2624 at
issue here includes a purpose distinct from the production of
forensic evidence for prosecution. Indeed, the stated mission
of the Navy Alcohol and Drug Abuse Prevention program under
which the urinalysis testing is authorized, is to “support Fleet
readiness by fighting alcohol abuse and drug use.”9 Thus, it is
clear that the laboratory has an alternate purpose for testing,
documenting, and certifying laboratory reports. This readiness
purpose is reflected in the Military Rules of Evidence (M.R.E.)
as well.
With the possible exception of a probable cause urinalysis,
most urine collections are considered inspections under M.R.E.
313. Under the rule, “[a]n ‘inspection’ is an examination of .
. . a unit . . . as an incident of command the primary purpose
of which is to determine and to ensure the security, military
8
The majority misapprehends the distinction between the majority
and this dissent. The purpose of the drug testing is not
determinative of the purpose behind any statements that may be
testimonial that are contained in drug testing reports.
However, the dissent believes that the purpose of the test may
inform one’s judgment as to the purpose of any statement in the
resulting report.
9
Navy Alcohol and Drug Abuse Prevention (OPNAV 135F), http://
www.public.navy.mil/bupers-npc/support/nadap/Pages/default2.aspx
(last visited August 29, 2011).
11
United States v. Sweeney, No. 10-0461/NA
fitness, or good order and discipline of the unit.” M.R.E.
313(b). It is unclear how one would assess the collection of
M.R.E. 313(b) samples under the “primary purpose” test,
including the test results documented on the DD 2624 in this
case, because it has not been litigated and addressed. However,
what is clear is that any documents and statements recording and
validating the results of such an inspection, both positive and
negative, would have as an alternate purpose, if not a primary
purpose, the “military fitness, or good order and discipline of
the unit.” This contrasts with the cover memorandum, which is a
document generated after the results of an inspection became
known, and after the decision to prosecute was taken for the
sole purpose of presenting evidence at court-martial.
Further, the record in this case suggests that the
technicians conducting the lab testing would not necessarily
anticipate the use of even positive results and their recording
and validation of these results in criminal proceedings. Of
course, questions were not posed to the witnesses at trial to
explore this point of the Crawford analysis.10 However, civilian
senior chemist Marinari testified that of the one million
10
Whether this is important or not depends on how one reads the
Crawford terminology: “statements . . . made under
circumstances which would lead an objective witness reasonably
to believe that the statement would be available for use at a
later trial.” 541 U.S. at 52.
12
United States v. Sweeney, No. 10-0461/NA
samples tested in the Navy and Marine Corps that year, ninety-
nine percent were negative, which suggests that approximately
ten thousand were screened positive. Given that there were 2966
total cases tried by court-martial involving all offenses in the
Navy and Marine Corps for that year,11 clearly not all positive
urinalyses or their corresponding reports led to or were used at
courts-martial. Indeed, it suggests that only a small
percentage of such testing lead to courts-martial. In such a
context, one would not expect a technician or lab supervisor to
prepare a lab document with the assumption that it would be used
for criminal prosecution. Moreover, the Army Health
Promotion/Risk Reduction/Suicide Prevention Report (2010) (2010
Report) confirms that a majority of positive test results do not
go to criminal prosecution in the military.12
This is not to say that the primary purpose, sole purpose,
or an alternate purpose behind the use of the laboratory
results, laboratory certifications, or laboratory forms in this
11
Annual Report of the Code Committee on Military Justice 14
(2007), reprinted in 67 M.J. LXXIII, CXXX (2008).
12
The Medical Review Officer “clearance rate,” defined as “the
percentage of excused positive tests” for warriors using
prescription drugs in 2009 was 90%. 2010 Report at 44-45.
Moreover, in 2009 there were 1,415 illicit drug use positives
(excluding marijuana) not reported to law enforcement, and
“consider[ing] the fact that 25% of all investigated drug cases
lead to multiple subjects, this number could be closer to 2,000
drug related subjects.” 2010 Report at 60.
13
United States v. Sweeney, No. 10-0461/NA
or any other case are, or are not, covered by Crawford. The
point is that while there is yet room for litigation over the
underlying nature of military urinalysis documents, there was no
obvious and clear error in this case beyond the admission of the
cover memorandum. The majority dismisses the existence of
alternate purposes behind military drug testing by stating that
the Government did not prove that there were any such purposes.
However, this is a plain error case. Thus, the burden is on
Appellant to demonstrate plain and obvious error not on the
Government to demonstrate the lack of plain error. As to
whether further Crawford error might lurk within the confines of
additional urinalysis documents is a matter that has not been
fully litigated before or after Bullcoming affected Crawford’s
reach.13 It is tempting to create clarity with a blanket rule
13
Justice Sotomayor’s second and third concurring caveats are
also in play, but are not essential to the outcome of this case.
Second, it is not clear after Bullcoming whether or not the
testimony of Mr. Marinari as a lab supervisor is adequate under
Crawford to satisfy the confrontation clause with respect to the
underlying tests and materials. Justice Sotomayor’s concurrence
does not answer this question, but puts it into play. “It would
be a different case if, for example, a supervisor who observed
an analyst conducting a test testified about the results or a
report about such results.” 131 S. Ct. at 2722 (Sotomayor, J.,
concurring in part). Is Mr. Marinari such an official? Is he
such an official for the purposes of Form DD 2624? These
questions were not litigated at trial for the purposes of
Bullcoming and the parties have not had the opportunity to make
their arguments on this point.
Justice Sotomayor’s third caveat is implicated as well, though
less directly. That is because this is a case where the expert
witness was asked for his independent opinion about underlying
14
United States v. Sweeney, No. 10-0461/NA
that reaches beyond Crawford and Bullcoming. But the issues
involved are too important and the impact is too significant to
apply Crawford in a robotic manner without first fully
litigating and exploring the nuances that the Supreme Court
identified in Bullcoming, as well as the military context in
which these issues are raised.
III. The Military Context Has Not Been Addressed
There is an additional problem in applying Crawford in a
mechanical manner without further litigation: the Supreme
Court’s Crawford cases do not address military-specific
distinctions at all. That should be done by this Court, in the
first instance. At least three significant distinctions are in
play, in addition to those identified by Justice Sotomayor.
First, while the Supreme Court’s analysis adopts a primary
testimonial reports; however, the underlying testimonial reports
were themselves admitted into evidence. Thus, Bullcoming does
not speak directly to this case on this point, but it can be
read to suggest that where the reports themselves are admitted
there may be a Crawford problem. In any event, Blazier II has
already addressed the basic point: an expert witness may,
pursuant to M.R.E 703, offer an independent opinion about
underlying testimonial reports. 69 M.J. at 224; see United
States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009) (“Crawford
forbids the introduction of testimonial hearsay as evidence in
itself, but it in no way prevents expert witnesses from offering
their independent judgments merely because those judgments were
in some part informed by their exposure to otherwise
inadmissible evidence”). The harder and more contextual
question is whether the admission of such expert testimony can
render harmless the admission of Crawford-triggering report
testimony. Our cases have not been litigated at the appellate
level with this issue in mind.
15
United States v. Sweeney, No. 10-0461/NA
purpose test, and perhaps an alternate purpose test, the Supreme
Court’s discussion of alternative purposes is directed to
medical or administrative purposes, but not a context where the
alternate or primary purpose is military readiness. Whether
that would or should change the analysis is not settled, and the
issue has not been litigated or decided at any appellate level.
That also means that the Crawford cases do not address
circumstances where there are potentially competing or
countervailing constitutional principles found in Articles I and
II. The constitutional issue in each of the Crawford cases is
directed solely to the Confrontation Clause. Therefore, the
question is open as to whether the analysis or interpretation
might be different if, for example, additional constitutional
authorities are implicated. If the President expressly
authorized a urinalysis program for the purpose of military
readiness, would that change the analysis? The question has not
been litigated or addressed. To be clear, the issue is not
whether the Confrontation Clause applies. It does. The
question is how. However, if the analysis in the military
context were that simple, we should simply cite the text of the
Confrontation Clause and remand. Moreover, if it were that
plain and obvious, then it should be clear which of the other
underlying documents admitted constitute plain error.
16
United States v. Sweeney, No. 10-0461/NA
Third, and least important, the practical impact of its
ruling in Bullcoming was important enough to the Supreme Court
that it was included in the Court’s majority opinion and
dissent. Therefore, it should be fully litigated and addressed
in the military context as well. For example, the majority and
dissenting opinions in Bullcoming address the administrative
impact of the decision on the ability of state authorities and
state laboratories to comply with Crawford, including the
potential distances a lab technician might have to travel. 131
S. Ct. at 2728 (Kennedy, J., dissenting). However, the opinion
clearly is not intended to address the impact of Crawford on
running a national and even worldwide military laboratory
testing program. Thus, the Bullcoming Court did not contemplate
the potential for travel to Afghanistan, Iraq, or such other
worldwide locations where a court-martial might occur, or the
potential operational consequences of compelling commanders to
withdraw servicemembers from the field for courts-martial in the
continental United States to avoid the difficulties of procuring
extensive travel for a laboratory technician. Neither is it
clear what the implications to military readiness, if any, will
be if this Court applies Crawford as proposed by the majority.
For example, will this Court’s application of Crawford cause the
government to revise the checks and balances currently used to
ensure the military’s urinalysis program is a reliable tool of
17
United States v. Sweeney, No. 10-0461/NA
military readiness and discipline by limiting or avoiding the
use of certifications? Such issues should be explored as part
of or parallel to any sweeping Crawford pronouncements.
Conclusion
Based on the foregoing reasons, I would not find plain
error in this case with respect to any of the urinalysis
documents other than the cover memorandum. I would not reach
further. Given the importance of the Crawford line of cases in
upholding an accused’s right to confrontation and given the
importance of the urinalysis program to military readiness and
not just discipline -- in short, the larger importance of
performing drug tests and ensuring their accuracy -- such
conclusions should await the full litigation of the issues
identified above.
Whether the admission of the cover memorandum was harmless
beyond a reasonable doubt is a question of prejudice that this
Court is well situated to address. A remand on this point could
be reasonable in light of the expertise of Courts of Criminal
Appeals in assessing trial impact. However, in this uncertain
and changing context, this Court should take the lead in
addressing prejudice in this case. It is this Court and perhaps
ultimately the Supreme Court, and not the Courts of Criminal
Appeals, that will determine which of the underlying documents,
18
United States v. Sweeney, No. 10-0461/NA
marks, and measurements are “testimonial” and what weight such
testimony bears.
19