United States v. Magyari
2006 WL 1295711
C.A.A.F.
2006
Check Treatment
Docket

*1 STATES, Appellee, UNITED

Henry MAGYARI, Draftsman First A.

Class, Navy, Appellant.

No. 05-0300.

Crim. App. No. 9801499.

U.S. Court

the Armed Forces.

Argued Jan. 2006. May

Decided

cer, along thirty-five forty with other ser- vicemembers, provided sample a urine to the urinalysis coordinators. sample samples and eleven other from COMSUB- PAC received Screening Laboratory in Diego, San Califor- nia, days Appellant’s sample, six later. iden- tified with accession number S9802132117, subsequently in combined samples. of batch sample positive tested methamphetamine. Be- receipt tween of the and release results, approximately twenty test handled tested and/or special After contested court-martial be- members, Appellant fore was convicted wrongful methamphetamine, use of a sched- substance, ule III controlled in violation 112(a), Military Article Uniform Code of Jus- (UCMJ), 912(a) (2000). § tice 10 U.S.C. He pay was sentenced grade reduction to discharge. E-3 and bad-conduct His sen- approved adjudged by tence was as the con- vening authority, except and for the bad- discharge, conduct was ordered executed. Navy-Marine Corps The United States Court of Criminal affirmed unpublished opinion, United States Magyari, No. NMCCA 2000 CCA BAKER, J., opinion delivered the (N.M.Ct.Crim. LEXIS 2000 WL 703572 Court, GIERKE, C.J., May 13, App. Upon Appellant’s peti ERDMANN, JJ., joined. EFFRON and tion, granted review of following we is CRAWFORD, J., separate filed a opinion sue: concurring in the result. WHETHER, IN LIGHT OF CRAWFORD Appellant: For Captain Richard A. WASHINGTON, U.S. Viczorek, (argued). USMC (2004), L.Ed.2d APPEL- Appellee: For Craig Lieutenant A. LANT WAS DENIED HIS SIXTH Poulson, JAGC, (argued); USNR Com- RIGHT AMENDMENT TO CONFRONT brief). Purnell, (on JAGC, C.N. mander USN THE WITNESSES AGAINST HIM

WHERE THE GOVERNMENT’S CASE CONSISTED SOLELY APPEL- OF Judge opinion BAKER delivered the LANT’S POSITIVE URINALYSIS. Court. Commander, negative was attached to the We answer and affirm the (COM- Force, Submarine Pacific Fleet Navy-Marine Corps decision Court of SUBPAC), Harbor, below, Pearl Hawaii. Appeals. spelled Criminal As out On 12,1998, February Navy Drug Screening urinalysis screening, context random program randomly generated Appellant’s equate spe- do where not urinalysis testing Navy name for at the Base cific with individuals or outcomes, in Pearl Harbor. At the orders of COM- tested command, Appellant, petty SUBPAC offi- furtherance of a enforcement law right to confront gues his constitutional techni- investigation, the data entries against him was violated None- the witnesses nature. cians are “testimonial” in the lab any statements contained theless, reports must the lab results and positive reliability report that indicated his tested satisfy the standard for established methamphetamine were presence of 448 U.S. Ohio *3 hearsay could (1980). and 2531, inadmissible testimonial 65 L.Ed.2d 597 against him at not be used

BACKGROUND DISCUSSION at his court-martial Appellant testified objected to at an is When error Navy’s zero tolerance was aware

he trial, applies. error United plain drug he never policy and that had on use (C.A.A.F. Gilley, v. 56 M.J. States to knowingly it. No witness testified violated analy prevail plain To under error Appellant drugs unlawful seeing use ever (1) sis, that: “there was Appellant must show years fifteen of naval service. his obvious; error; or and plain it was against Appellant case The Government’s materially prejudiced a substantial the error Drug Navy a lab from the consisted Tyndale, v. 56 M.J. right.” United States Screening Laboratory Diego San (C.A.A.F.2001). Appellant If meets Appellant’s posi- showed urine tested error, showing plain the burden his burden methamphetamine. The tive for Government any prove the shifts to Government evi- four to introduce the called witnesses beyond a error was harmless constitutional report. contained in the lab The Gov- dence Brewer, doubt. reasonable United at called witnesses stationed ernment three (C.A.A.F.2005). 61 M.J. Hawaii, who involved COMSUBPAC the The Confrontation Clause of Sixth Appellant’s initial urine the collection pros “In all criminal states that Amendment These witnesses included: Sonar ecutions, enjoy right the accused shall the Szymonik, the Technician Chief Michael S. ... to be confronted with the witnesses coordinator, urinalysis Operations Spe- Chief him____” Const, against amend. VI. U.S. Hapeman, designated the urinal- cialist Steve Washington, Supreme v. ysis Appellant’s coordinator at the time of Crawford prosecution that in Court held order testing, and Fire Control Technician Chief “testimonial” out-of-court state- to introduce Chadwick, Appel- R. David who observed the accused, against an into evidence ments fill his in the head. lant bottle men’s requires wit- Clause that the Confrontation Drug Navy from the One witness called unavailable, be who made the statement ness Screening Laboratory Diego, in San Mr. prior oppor- had a that the accused have Czarny, quality J. a civilian assurance Robert tunity to cross-examine witness. Czarny Mr. testified how officer. about 36, 53-54, L.Ed.2d U.S. urine handled and how results are (2004). Laboratory. generated at Mr. Czar- report upon ny signed Appellant’s off on its Crawford, admissibility of out- Prior to release, personally he but was not involved by of-court statements was controlled Ohio handling Appellant’s sample. testing or Roberts, Under the statements Roberts. any not call the lab The Government did could admitted an out-of-court witness Drug Screening Lab- Navy carried against an accused if the statements lab oratory appeared whose names on the reliability. adequate indicia of documents, custody report and chain of 66, 100 paperwork, Appellant’s reviewed tested who departed from the The Court prepared report. his urine or the lab admitting Roberts framework for out-of-court statements, in- and transformed the counsel cross-exam- defense Czarny, any hinging to one on whether the out-of- quiry did not call ined Mr. but scope of comes within the who handled or tested court statement other it testi- sample. Appellant now ar- Amendment because “bears the Sixth mony” against question an accused. The this is before “ lynchpin U.S. at 124 S.Ct. 1354. ‘The of whether the data entries uri nalysis decision ... made its distinction Screening Laboratory between technicians constituted testimonial and nontestimonial hear- statements, say----United Scheurer, or whether States alternative, they represented (C.A.A.F.2005) nontestimonial (quoting M.J. 104-05 hearsay, subject reliability indicia of Hendricks, States 395 F.3d analysis under (3rd Roberts. Cir.2005)). Where nontestimonial issue, statements the statements do contends the data re- scope fall within Crawford’s corded are statements exempted from Confrontation Clause scruti- the lab technicians and that these statements ny altogether. Crawford, 124 fall *4 category under the third of core testimo- nial evidence identified in because Crawford the lab technicians have anticipated would However, the Court did not Crawford that against would used “spell comprehensive out a definition of ‘tes- ” him at trial. The argues Government that timonial,’ leaving to lower courts the re- the reports are business records and sponsibility to determine which statements by therefore are in definition nontestimonial qualify as “testimonial” and fall within its fall scope. nature and outside Crawford’s scope. Nevertheless, Id. the Court identi- fied three forms of “core” testimonial evi- hand, On the one technicians in working (1) They dence. parte include: ex in-court government screening laboratories and test- (2) testimony; extrajudicial statements ing samples surely urine are aware a that (3) materials; formalized trial state- sample testing positive for a controlled sub- ments made under circumstances that would may prosecute stance provider used to the they cause a reasonable witness to believe hand, of the On the other not all 51-52,124 could be at trial. used Id. at S.Ct. samples positive, urine test and not posi- all Further, 1354. the Court identified exam- prosecution. tive end in results The record ples hearsay, of testimonial including “prior in this reflects ease that the lab technicians a testimony preliminary hearing, at samples a work with of before batches contain- grand trial; jury, ing samples or at a former and ... about 200 each. The technicians police interrogations.” equate do not a at with a Id. instead, person; they assign 1354. iden- every sample.

tification numbers to The vast addition, majority samples analyzed of do not test the Crawford positive illegal substances. lab tech- policies linked its legal to the under handling samples nicians in a work nonadver- pinning right to confrontation. It noted environment, they sarial where conduct rou- that of the focus the Confrontation Clause is of requiring virtually tine series tests no protect prosecu criminal defendants from discretionary judgments. The lab techni- “[ijnvolvement torial gov abuse and the of handling Appellant’s particular sample cians production ernment officials of testi suspect had no him of wrongdoing, reason mony eye with an trial.” at towards Id. anticipate and no reason to that his Thus, application 124 1354. S.Ct. of batch, out of all would only depends on meaning not positive test and be used “testimonial,” but on the circumstances and context which out-of-court statements context, In this the better view is that generated, are and whether the out-of-court engaged not these lab technicians were statements were made under circumstances function, law a search enforcement for evi objective that lead an would witness reason anticipation prosecution dence or trial. ably to Rather, believe the statement would be “simply their data were entries trial gov routine, available for use a later objective cataloging unambigu of an 52,124 ernment. Id. ous factual matter.” Bahe- (9th of the Screen- na-Cardenas, normal course 411 F.3d Cir. Further, Dedman, Laboratory’s lab re- 2004- business. ing also State v. See ¶ records, 561, 569, NMSC-37, 30, sults, P.3d analyses, hospital N.M. DNA (finding prepared blood alcohol course oftentimes setting). prepared routine, in a “regularly was nonadversarial business. conducted” merely ca- Because the Nonetheless, types of rec tests, the same the tech- taloging the results routine prepared may also be at the behest reasonably expect them ords nicians could anticipation prosecu testimony” against data would “bear law enforcement entries tion, may make testimoni at his Com- court-martial. See Norman, Verde, Or.App. 444 Mass. monwealth al. See State (drug (concluding are non- the Sixth N.E.2d tests P.3d they implicated if records tech “mere[] where Amendment fact, primary no judgment with or discretion of the proxy not function “as the nicians did analysts”). part on This conclu- police investigation concerning defen [the] dant”). with Court’s Thus, sion is consistent types of lab results or other policy might gov- concerns arise where routine records become testimonial produc- officers are “in the ernment involved already under investi where a defendant testimony eye tion of with an toward trial” gation, testing where the is initiated *5 potential is for “unique and where there incriminating prosecution to discover evi prosecutorial overreaching. abuse” example, For cross-examination dence. 56, 124 541 U.S. a appropriate where defendant rape and con is accused of law enforcement twenty Approximately people different seeks to admit the results from ducts and tests, conducted made clerical notations data People Rogers, See blood or DNA test. records, in Appellant’s or at one time had (N.Y.App. A.D.3d 780 N.Y.S.2d physical custody Appellant’s Div.2004). may also be Cross-examination Navy Drug Screening it was at the while necessary suspect where a is believed to have Laboratory. any no There is that indication operated a vehicle the influence under reason, individuals or were these had drugs alcohol and a or affidavit is or record pressure, under to reach conclu- prose prepared by hospital sion about number Vegas trial. Las cution’s use See S9802132117, they or that to dis- had reason Walsh, (2004), 120 Nev. P.3d tinguish number from S9802132117 (Nev.2004). But 100 P.3d 658 modified routinely thousands of samples the other case play these factors are screened and tested batch at the laborato- today and we do not addressed need not and ry. in what other contexts determine clear, To be we reach based this conclusion might apply. on the facts of this case. The Government’s reports inherently Having that lab in the contention determined the data entries they report testimonial because are business and are not under Craw- lab public sure, error, goes Appel- ford, too was plain records far. For and that there no we report reports is a Mili- lant’s lab business record. must still determine whether the lab 803(6) (M.R.E.) tary properly Rule of Evidence im- admitted at trial. were as evidence Schemer, plies in the this that lab are included Court held that when apply, definition of business records because foren- framework does not impartial examining requirement particular- cen- sic laboratories v. Roberts “Ohio laboratory report guarantees and a is a record of continues ters ized trustworthiness trial, “regularly activity. govern conducted” At confrontation for nontesti- to (internal ample testimony verify- Government elicited monial statements.”1 M.J. at 106 omitted). report ing completed was footnote issue, hearsay wholly design 1. "Where nontestimonial is at it is consistent with Framers' to analyzes Appel report This therefore mine at issue in this Court whether the framework, lant’s claim under the Roberts particularized guarantees case carried other if provides “the declarant is un Consequently, of trustworthiness. we con- cross-examined, available to be the Confron clude there error and that was no permits tation Clause admission of report requirements satisfies of the Rob- hearsay in a only statement criminal trial if: erts test for nontestimonial evidence and the firmly ‘falls within a statement rooted in the statements contained hearsay exception,’ ‘par or it bears other properly admitted as evidence at guarantees ticularized of trustworthiness.’” Roberts, Id. at 107 (quoting DECISION Roberts first condition is satisfied Navy- The decision of the United States here simply because the lab Corps Marine Court Criminal is “regularly activity record of conducted” affirmed. Navy Drug Screening Laboratory qualifies as a business record under M.R.E. 803(6), firmly hearsay rooted exception. CRAWFORD, Judge (concurring in the Supreme

As emphasized Court Rob result): erts, “[p]roperly administered the business I respectfully concur the result and note public exceptions records would seem plain unique error issue is not “[t]he among excep the safest military practice____[and] apply we should tions.’” 448 U.S. at 66 n. Supreme (internal precedent determining quotation S.Ct. 2531 marks omit ted). whether we error not correct raised at Bridges, See also (C.A.A.F.2001) (business Cary, trial.” M.J. United States M.J. record rooted). (C.A.A.F.2006) (Crawford, firmly J., exception concurring The Roberts *6 result). disjunctive, we need not deter- flexibility development afford the in their States law...."